02.01.2019

In life, everyone has come across a loan agreement and entered into a loan relationship. We lend to a friend up to the paycheck, we cannot refuse neighbors, we lend to relatives to buy furniture.

It's good when you can rely on your word of honor, but it's better to have additional guarantees that the money will come back. But what is the right way to lend? How to draw up a contract and guarantee a refund? Let's understand the concept of a loan, the form and requirements for the agreement, consider how to legally draw up a loan agreement in different situations.

Use the proposed sample loan agreements and recommendations for their drafting, ask questions to lawyers specializing in contractual legal relations.

Monetary funds, securities and other things can be transferred under a loan agreement. The agreement is concluded for a certain period (fixed-term agreement) or without setting this period (unlimited loan agreement). The loan agreement may contain conditions for the payment of interest for the use of the loan (paid agreement), or it may be interest-free.

Loan agreements can be concluded between citizens, between legal entities, as well as between individuals and legal entities. One of the varieties of a loan agreement is a loan agreement in which banks and other credit organizations act as lenders.

The concept and form of a loan agreement

Loan agreement concept

The concept of a loan agreement is enshrined in article 807 of the Civil Code of the Russian Federation. The law calls the person who transfers the money the lender, and the person who accepts the money the borrower. A loan agreement is an agreement between the parties, according to which the lender transfers the money (other things) to the borrower into ownership, and the borrower assumes the obligation to return this amount (or other things).

The transfer of money to ownership means that the borrower has the right to freely own, use and dispose of the money received. If it is necessary to limit the rights of the borrower, a targeted loan is issued, when the money received can be spent only on certain needs (for example, buying real estate or a car).

The drafting of the text of the agreement and its signing by the parties does not mean that it has already been concluded. The loan agreement becomes concluded only from the moment the funds are transferred. Receipt of money is usually issued on behalf of the borrower.

Cash liabilities for a loan must be determined in rubles. If the loan is made in a foreign currency, then the debt is paid in rubles in accordance with the official exchange rate of this currency on the day of payment. The parties can fix in the agreement a different rate and another date on which the corresponding exchange rate is determined.

Loan agreement form

The Civil Code provides for both oral and written form of the loan agreement. A written form of the agreement is required if the loan amount is more than 1000 rubles, which corresponds to 10 minimum wages. A loan agreement between legal entities or a loan agreement by an individual to a legal entity is drawn up in writing, and the size of the borrowed amount does not matter.

It is recommended in all cases to use only the written form of the loan agreement. This will help to prove your case in court, since it will be difficult for the lender to present other evidence, and the testimony of witnesses under the terms of the transaction, which must be made in writing, will not be accepted by the court.

Instead of drawing up a loan agreement, you can use a written form, where the borrower will confirm the amount of the borrowed amount, indicate the period and procedure for its return.

Interest under the loan agreement

Paid loan agreement

Interest under the loan agreement is the payment of the borrower for the period of using the lender's funds. All loan agreements are considered onerous (that is, issued at interest), even if the amount of this interest is not fixed in the agreement itself, the lender has the right to apply the refinancing rate of the Central Bank of Russia. An exception to this rule is interest-free contracts.

The amount of interest under the agreement is determined by agreement of the parties, it can be expressed as a percentage for each day, month, year or any other period of use of borrowed funds. The amount of interest can be expressed in relation to the amount borrowed (for example, 20% per annum) or determined in a fixed amount (500 rubles for each day of using the loan amount).

It should be borne in mind that the condition of the loan agreement on inflated interest rates significantly exceeding those established in business turnover may be recognized by the court as an onerous transaction.

Interest-free loan agreement

As an exception to the general rule on the repayment of a loan, an agreement between individuals, which does not apply to entrepreneurial activity, should be considered. Moreover, the amount of such a loan should not exceed 5,000 rubles. In this case, the loan agreement will be interest-free if the text of the agreement does not explicitly indicate the payment of interest.

Loans are also considered to be interest-free, in which not money is transferred, but some other things. However, this does not prevent the parties to the contract from securing the term on interest, proceeding from the value of things or accepting a different remuneration for the provision of a loan.

Loan agreement

Cash loan agreements, like any other agreements, can be changed by the parties themselves if there is an appropriate agreement between them. The loan agreement can be terminated by the parties by their mutual agreement on the terms and conditions established by them. To consolidate such actions of the parties, an agreement to the loan agreement is provided.

In the agreement, you can set a new date for the return of funds, change the amount of interest on the loan, determine the sanctions for violating the terms of repayment of the debt. Once signed, the agreement is part of the loan agreement and the loan agreement should be construed only in the light of this agreement of the parties. The supplementary agreement must be executed in the same form as the main contract.

If the parties have not come to an agreement on changing or terminating the loan agreement, this is done only in court.

Execution of a loan agreement

Debt repayment under a loan agreement

Debt repayment should be determined by the parties and fixed in the loan agreement. The parties have the right to provide for any procedure and terms for the return of borrowed funds. Money can be paid in one amount or paid in periodic installments. For interest under the loan agreement, the rule is that they are paid monthly, unless otherwise specified in the agreement.

If the parties have not specified the term and procedure for the return of the borrowed funds, the loan agreement is considered indefinite. Under an open-ended agreement, the lender has the right to demand the repayment of the debt at any time, while the borrower is obliged to return them within 30 days from the date of receipt of such a demand.

If the loan agreement is onerous, then an early return of funds can be made only with the consent of the lender. An exception is the situation when the borrower took money for personal, home or family use, that is, not related to entrepreneurial activity.

Debt repayment must also be confirmed in writing. When transferring funds in cash, a receipt is drawn up. Cashless refunds are confirmed by bank documents.

If the borrower refuses to receive money, you can put it on a deposit or open an account in the name of the lender in the bank. In this case, a notice to the lender is mandatory, which can then be confirmed in court.

Breach of a loan agreement

For violation of the terms of the loan agreement, civil liability is provided. First of all, this is responsibility for the consequences of a delay in repayment of the loan amount. For violation of the terms for the return of funds established by the contract, liability can be envisaged in the contract itself in the form of interest on borrowed funds or in a specified amount of money.

The payment of this interest will be made without taking into account the interest for the use of borrowed funds. Under agreements providing for the repayment of debt in periodic payments, special consequences of violations of the terms of payment of the next payment have been established. In this case, the lender may demand the return of the entire loan amount with interest ahead of schedule. Such interest should be considered the interest accrued for the entire period established by the agreement for the return of the loan amount, and not only the interest accrued by the time of its early repayment.

To collect debt under a loan agreement, use:

Challenging a loan agreement

Loan agreements, like other transactions, are subject to the rules for void and void transactions. In addition, the borrower has the right to challenge the loan agreement due to his lack of money. Lack of cash means that the borrower did not receive money on loan or received it in a smaller amount than indicated in the loan agreement.

If it is established in the court session that the loan agreement is non-cash, the court will refuse to satisfy the claims on this basis or reduce the amount recovered if the money was transferred in a smaller amount than indicated in the agreement.

Drawing up a loan agreement in writing will exclude the possibility of challenging his lack of money with testimony, except in cases of deception, violence and threats.

It is necessary to distinguish a non-cash loan agreement from the novation of a debt obligation into a loan. By agreement of the parties to the contract, debts under contracts of sale or lease of property, as well as other contracts providing for the payment of funds, can be replaced with debt obligations.

Loan agreement template

LOAN AGREEMENT

________________ "___" __________ ____

I, _______________________________________, hereinafter referred to as the "Lender", on the one hand, and

I, _______________________________________, hereinafter referred to as the "Borrower", on the other hand, have entered into an agreement on the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this agreement, the Lender transfers to the ownership of the Borrower funds in the amount of _______ rubles, and the Borrower undertakes to return the loan amount and interest accrued to the Lender on the conditions stipulated by the Agreement.

1.2. The interest rate under the agreement is _______ of the loan amount.

2. PROCEDURE FOR PROVISION AND REFUND OF THE LOAN AMOUNT

2.1. The Lender transfers to the Borrower the loan amount "___" __________ ____. The fact of the transfer of funds is confirmed by the receipt of the Borrower.

2.2. The Borrower returns the borrowed funds and accrued interest to the Lender "___" __________ ____

2.3. The loan amount is repaid by the Borrower by _________.

2.4. Confirmation of the return of borrowed funds is a receipt issued by the lender.

3. INTEREST FOR USE OF LOAN AMOUNT

3.1. Interest for using the loan begins to accrue from the day the funds are transferred to the Borrower.

3.2. Interest for using the loan amount is paid in monthly installments until the _____ day of each month until the loan amount is repaid.

4. RESPONSIBILITY OF THE PARTIES

4.1. For late repayment of the loan amount, the Borrower shall pay the Lender a penalty in the amount of _____% of the unpaid loan amount for each day of delay.

5. FINAL PROVISIONS

5.1. The Agreement is considered concluded from the moment the Lender actually transfers the loan amount to the Borrower in accordance with clause 2.1 of this Agreement.

5.2. The Agreement is valid until the Borrower fully fulfills its obligations to return the loan amount and pay interest, which is confirmed by the Lender's receipt.

5.3. The agreement has been drawn up in duplicate, one copy for each of the parties.

6. ADDRESSES AND SIGNATURES OF THE PARTIES

Lender: _________ (________________________________________)

Borrower: _________ (________________________________________)

The agreement should be drawn up in as much detail as possible, it is necessary to enshrine all the agreements of the parties. It is necessary to avoid the possibility of ambiguous interpretation of the terms of the contract. The use of abbreviations in the text is not recommended.

The contract must indicate the place of its preparation (city, town, village, etc.). The place where the loan agreement is drawn up is the locality where the parties signed it.

The loan agreement must indicate the date it was drawn up. The date is indicated in local time at the time of signing the contract.

The agreement contains the full names, surnames and patronymics of the parties (the lender and the borrower), other data that will avoid confusion with the full namesakes, which will completely match these data. You can specify passport details or the date and place of birth of the parties to the contract.

When filling out the contract, it is better to use a citizen's passports, since it is possible to indicate incorrectly the personal data of one of the parties by ear, this will avoid fraudulent actions, and see the signature of the borrower.

The amount of money to be transferred under the loan agreement is indicated in numbers and in words.

The agreement must provide for the procedure for transferring funds into a loan. The transfer can be confirmed in the contract itself or a separate receipt is issued during the transfer. You can indicate the transfer of money with a deferral.

The amount of interest under a loan agreement can be specified per year, per month, for each day of use of borrowed funds. You can express the amount of interest in a specific amount of money.

The parties must provide for the procedure and terms for the payment of interest for the use of the loan. Interest can be paid daily, monthly, annually. It is possible to provide for the payment of all interest simultaneously with the payment of the principal debt, or establish a different payment procedure.

The parties must provide for a period for repayment of the debt under the loan agreement. This period can indicate a specific date or the occurrence of a specific event. If the repayment period is not determined, the loan agreement is considered indefinite, the lender has the right to demand the repayment of the debt at any time, the borrower must return it within 30 days after receiving such a demand.

The contract must specify the procedure for the refund. Money can be returned in cash or by bank transfer.

The loan agreement can provide for the responsibility of the borrower for violation of the terms of debt repayment. The penalty can be determined as a percentage for each day (month, week, year) of delay or determined in a specific amount.

Other conditions can be included in the loan agreement by agreement of the parties. If these additional terms are in conflict with the law, they will not apply.

The loan agreement is drawn up in 2 copies, for each party its own.

At the end of the contract, each of the parties must sign and decipher (indicate the last name, first name and patronymic). If the agreement itself can be drawn up in printed form, then the signatures and their complete decoding must be affixed to everyone with their own hand, which will help in case the parties challenge the authenticity of their signatures.

Banking law Rozhdestvenskaya Tatiana Eduardovna

2. Loan agreement

2. Loan agreement

General characteristics of the loan agreement

By credit agreement the bank or other credit institution (lender) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the contract, and the borrower undertakes to return the received amount of money and pay interest on it (Article 819 of the Civil Code of the Russian Federation).

The subject of the loan agreement is only cash and non-cash funds, both in rubles and in foreign currency.

The loan agreement is bilateral, since, on the one hand, the bank is obliged to provide a loan, and the borrower is obliged to return on time the amount of the loan received and pay interest, on the other hand, the borrower has the right to demand the provision of a loan to him, and the bank receives the right to demand its return and payment percent.

Unlike a loan agreement, which is a real transaction, a loan agreement is a consensual transaction and enters into force from the moment the parties reach an agreement on the issuance of a loan.

Loan agreement - onerous, since the payment of interest under the contract is an essential condition. The inclusion in the loan agreement of a condition on the provision of an interest-free loan makes the transaction null and void.

Unless otherwise established by the rules of the Civil Code of the Russian Federation or does not follow from the essence of the loan agreement, the rules governing the loan agreement are applied to relations under the loan agreement (clause 2 of article 819 of the Civil Code of the Russian Federation).

Parties to the loan agreement

Lenders banks and non-bank depository credit institutions that have the appropriate licenses from the Bank of Russia may act under a loan agreement. Borrowers there can be any legal entities and individuals with legal capacity and capacity.

Loan agreement form

According to Art. 820 the loan agreement must be concluded in written form. Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered null and void. In practice, credit institutions develop standard loan agreements that are accession agreements(Article 428 of the Civil Code of the Russian Federation). The party joining the contract has the right to demand termination or amendment of the contract if the contract of accession, although it does not contradict the law and other legal acts, deprives this party of the rights usually granted under contracts of this type, excludes or limits the liability of the other party for violation of obligations, or contains other explicitly onerous conditions for the acceding party, which, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract. However, if the acceding party knew or should have known on what conditions it concludes the contract, the request for termination or amendment of the contract is not subject to satisfaction.

If the loan agreement contains a clause on the pledge of real estate, it must be registered (Article 164 of the Civil Code of the Russian Federation). The procedure for state registration is established by the Federal Law of July 21, 1997 No. 122-FZ "On state registration of rights to real estate and transactions with it."

Civil legislation (clause 2 of article 434 of the Civil Code of the Russian Federation), naming the ways of concluding contracts in writing, indicates that an agreement can also be concluded by exchanging documents by telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that a document comes from a party to the contract. In practice, transactions using an electronic digital signature are often used, which meets the requirements of a simple written form.

Rights and obligations of the parties under the loan agreement

The main borrower's right under the loan agreement is the right to demand the provision of funds in the amount and on the terms stipulated by the agreement.

The bank provides funds to legal entities only by bank transfer by crediting funds to the current or correspondent account / subaccount of the borrowing client, opened on the basis of a bank account agreement; to individuals - by bank transfer by crediting funds to the bank account of the client-borrower or in cash through the bank's cash desk. Funds in foreign currency are provided to legal entities and individuals by authorized banks in a non-cash manner.

According to the Regulation of the Bank of Russia No. 54-P dated August 31, 1998 "On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)", the provision of funds by the bank to the bank's customers is possible in the following ways:

1) one-time crediting of funds to bank accounts or the issuance of cash to the borrower - an individual;

2) opening a credit line, i.e. concluding an agreement / agreement, on the basis of which the client-borrower acquires the right to receive and use funds for a specified period, subject to one of the following conditions:

- the total amount of funds provided to the client-borrower does not exceed the maximum amount (limit) specified in the agreement (“issue limit”);

- during the period of validity of the agreement / agreement, the amount of the one-time debt of the client-borrower does not exceed the limit established by the agreement (“debt limit”).

At the same time, banks have the right to limit the amount of funds provided to the client-borrower within the framework of the last open credit line, by simultaneously including both of the above conditions in the corresponding agreement, as well as using any other additional conditions for this purpose.

The conditions and procedure for opening a credit line for a client-borrower are determined by the parties either in a special general (framework) agreement / agreement, or directly in the agreement for the provision (placement) of funds.

The opening of a credit line should also be understood as the conclusion of an agreement for the provision of funds, the terms of which differ in their economic content from the terms of an agreement providing for a one-time (one-time) provision of funds to a client-borrower;

3) lending by the bank to the bank account of the client-borrower (in case of insufficient or lack of funds on it) and payment of settlement documents from the bank account of the client-borrower, if the terms of the bank account agreement provide for the specified operation. Lending by the bank to the bank account of the client-borrower in case of insufficient or lack of funds on it is carried out at the established limit (i.e., the maximum amount for which the specified operation can be carried out) and the period during which the arising loan obligations of the bank client must be repaid.

This procedure equally applies to operations on the provision of loans by banks in the event of insufficient or lack of funds in the bank account of a client - an individual ("overdraft") if the corresponding condition is provided for by the concluded bank account agreement or the deposit (deposit) agreement;

4) participation of the bank in the provision of funds to the bank's client on a syndicated (consortium) basis;

5) in other ways that do not contradict the current legislation.

Funds are provided by the bank to the client on the basis of an order signed by an authorized official of the bank, which indicates the number and date of the agreement, the amount of funds provided, the term for payment of interest and the amount of the interest rate, the term / terms (date) of repayment (return) of funds - the total amount or several amounts, if repayment will be made in parts, for loan agreements - a digital designation of the credit risk group, the value of the pledge (if there is a pledge agreement), the amount for which a bank guarantee or surety was received, a list of documents attached to the order and other necessary information.

If the parties accept additional agreements to the agreement for the provision of funds on changing the terms (provision of funds in parts, refund of funds, including payment of interest) and (or) interest rates and other conditions, an additional order is drawn up signed by an authorized official of the bank to the accounting department of the bank.

In accordance with Art. 24 of the Law on Banks, creditor banks are required to create reserves for possible losses on the funds provided in the manner prescribed by the Bank of Russia in order to cover possible losses associated with the non-return of the funds received by borrowers.

The classification of loans and equivalent debts by risk groups, the creation of provisions for possible losses on loans is carried out in accordance with the Instruction of the Bank of Russia dated March 26, 2004 No. 254-P "On the procedure for the formation by credit institutions of reserves for possible losses on loans, for loan and equivalent to her debts ".

According to Art. 821 of the Civil Code of the Russian Federation, the lender has the right to refuse to provide the borrower with the loan provided for by the loan agreement in whole or in part if there are circumstances that clearly indicate that the amount provided to the borrower will not be returned on time (for example: the debtor's insolvency, bringing him to responsibility, etc.) ... The lender also has the right to refuse further lending to the borrower under the agreement if the borrower violates the obligation of the intended use of the loan provided for by the loan agreement (Article 814 of the Civil Code of the Russian Federation).

In turn, the borrower has the right to refuse to receive all or part of the loan without any argumentation, simply because there is no need for it. He must notify the lender of this before the deadline for granting the loan, unless otherwise provided by law or agreement. The agreement may provide for liability for refusal to receive a loan by the borrower, or the possibility of refusal may be completely excluded.

Thus, Art. 821 of the Civil Code of the Russian Federation establishes the possibility of unilateral amendment or termination of the contract.

The main creditor's right under the loan agreement, the right to demand the return of the loan and to receive interest from the borrower on the loan amount in the amount and in the manner determined by the agreement. In the absence of a condition on the amount of interest in the agreement, their amount is determined by the refinancing rate existing at the location of the lender on the day the borrower pays the loan amount or its corresponding part.

Unless otherwise agreed, interest is paid monthly until the day the loan amount is repaid.

The loan must be repaid within the period specified in the agreement. The loan amount can be repaid ahead of schedule only with the consent of the lender. The agreement may set a fee to the lender for the early repayment of the loan by the borrower.

In cases where the borrower does not return the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when it should have been returned to the day it was returned to the creditor, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, charged for using a loan (unless otherwise provided by law or agreement).

If the agreement provides for the return of the loan in parts (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand an early return of the entire remaining loan amount, together with the interest due. Federal Law No. 102-FZ of July 16, 1998 "On Mortgage (Pledge of Real Estate)" established that foreclosure on property pledged to secure an obligation to be fulfilled by periodic payments is allowed if the deadlines for making payments are violated more than three times within 12 months , even if each delay is insignificant, unless otherwise provided by the mortgage agreement.

Control questions

1. What is the banking operation "placement of funds attracted in deposits"?

2. In what civil legal forms is the placement of funds?

3. Give a general description of the loan agreement.

4. Who are the parties to the loan agreement?

5. What are the rights and obligations of the parties under the loan agreement?

6. What are the ways to ensure the return of the loan.

7. How do banks provide funds to their clients?

8. What is a "line of credit"?