There are various relationships between people and organizations that are documented in a certain way. One such form of relationship is a loan agreement containing the required elements, without which it cannot exist.
A loan agreement is an agreement between persons, which implies the transfer of any property or funds of one person to another with the condition of their return in a certain period and in a certain amount. Parties to the agreement - the lender and the borrower - have responsibilities. The giving party is obliged to transfer the object under the contract, and the receiving party is to return.
The subject of the agreement can be not only money and property, but also securities and foreign currency. Their movement through the territory of the Russian Federation is regulated by the Civil Code of the Russian Federation.
Mandatory conditions of the loan agreement include, inter alia, the term for repayment of the subject of the agreement. If the date is agreed, problems usually do not arise. In the event that the deadline is not defined, the refund is made within a month from the moment the lender collects the property (or money).
By law, a loan agreement between persons does not need to be certified by a notary, but this action significantly reduces the risk of default and facilitates the recovery process if such a need arises.
Essential terms of the loan agreement
The loan agreement must stipulate conditions that are recognized by the law as material (Civil Code of the Russian Federation):
- precise definition of the subject of the contract;
- accurate definition of the borrower's obligations regarding loan repayment.
These points are the first things to pay attention to when drafting a contract.
In the event that the essential terms of the loan agreement are not in the form of documented items, but the lender has already transferred the subject of such an agreement to the borrower, it will be very difficult to prove that an agreement has been drawn up. As a rule, lenders are those who thoroughly know the content of the articles of the Civil Code of the Russian Federation in chapter 42, paragraph 1 (“Loan”), therefore it is in their interests to prescribe the essential conditions in the manner prescribed by law.
Other conditions
In addition to the essential ones, ordinary and random conditions under the loan agreement are also distinguished. The usual wording contained in the text of the agreement:
- an indication of the conditions for the non-return of the subject of the agreement;
- determination of interest on a loan;
- determination of terms and order of return.
Any additional conditions that either supplement or change the usual conditions can be random.
Cash loans
Most often, agreements between persons are concluded upon transfer of funds in Russian national currency. Such loans can be documented in the case provided for in Article 808 of the Civil Code of the Russian Federation, if the amount exceeds ten minimum wages. If the lender is an entrepreneur, according to the same article, a cash loan agreement is concluded regardless of the amount.
Interest loans
As a rule, the transfer of money for temporary use implies a refund with interest, therefore, during registration it is necessary to indicate the amount of interest for the entire duration of the contract, including in cases of delay.
An interest loan agreement may be executed not only in respect of money, but also in respect of securities, bonds and other property, for the use of which the borrower pays a certain amount to the lender.
The lender determines the size of the interest rate with which the borrower agrees when signing the contract. This amount can be transferred in installments (monthly and quarterly payments) or at the end of the agreement.
Agreement between non-entrepreneurial citizens
In the event that a loan agreement is drawn up between individuals, its form is not as important as its content.
It is recommended that all relevant data be entered into the contract text so that the person (borrower) is identified.
Upon agreement of individuals, the contract may be a regular receipt, which is not sealed. The written form in case of non-return will be a significant evidence in court that the lender has transferred any property or money to the borrower. The oral form of the contract is not valid even if there are witnesses to the transfer of the subject of the agreement.
As a rule, in the absence of a written form, the court rejects the claim.
Agreement between Entrepreneurs
A loan agreement between legal entities is concluded upon the transfer of any amount and differs from agreements between citizens in the following aspects:
- The contract must include the full details of the legal entity, as well as the representative who acts on behalf of the company.
- The contract form must be observed.
- Responsibility for the implementation or non-compliance with the terms of the contract is not solely representative, but the firm as a whole, according to the charter.
A loan agreement between legal entities can be executed not only between organizations, but also within the same enterprise. So, for example, there is a form of an organization’s contract with the founder, and vice versa. Conditions, material and other, must be observed in this case.
Contract of an individual with a legal entity
Cases in which an unauthorized individual (not related to this company) provides a loan to an organization, or a legal entity gives funds to a private one under a loan agreement, are not separately considered by law. In the financial sector, rules are provided that are similar to concluding an agreement between legal entities.
However, a loan agreement of a legal entity to a physical person, if we consider relations in this legal field, may not be related to entrepreneurial activity, which cannot be said about the reverse agreement.
Debt Novation
Borrowed funds have a different form and can be provided both in the form of money and in the form of property, as mentioned earlier.
Moreover, in the Civil Code there is article 818 - "Novation of debt on a loan." This definition means that in the event of a debt on sale, lease or other similar grounds, it is possible to implement a novation - replacing a debt with a loan. In this case, articles 414 and 808 of the Civil Code of the Russian Federation must be respected.
Interest free loan
A loan agreement under the condition of interest-free provision of funds must necessarily contain a reference to the fact that property or funds are issued for a certain period and must be returned in the same amount, without any additional fee.
In the event that this clause is not included in the text of the agreement, the lender has the right to claim the subject of the agreement with interest for use, which are calculated at the refinancing rate in the amount of 1/300 of the main amount.
Target loan
An agreement that provides for a loan in the form of a transfer of funds for the implementation of certain goals is called a target. In this case, the lender has the right to control the spending of these funds in accordance with the subject of the agreement.
A loan agreement between individuals may provide for the purpose according to which the borrower takes money (or property), however this fact should be indicated in the text of the agreement in the same way as in loan agreements between other persons.
Credit
Borrowed funds received by any person from a bank are called a loan. In this case, the organization must have a banking license, otherwise the functions of the institution cannot be carried out. If the bank takes any action without a license, this is a crime.
The essential terms of the loan agreement (loan agreement) are that the bank as the second party indicates the subject of the agreement, a certain amount of money, interest rate and loan term.
A responsibility
The borrower in each case of drawing up a loan agreement is obliged to return the subject of the agreement.
The contract must be drawn up in accordance with all the rules. For individuals, this can be a receipt, for legal entities - a contract with seals. In the event that a refund does not occur, the lender has the right to file a lawsuit.
These cases are considered by the justice of the peace, who makes a decision on the return of the subject of the loan. If there is such a decision, the lender has the right to hold the borrower accountable or to turn to the bailiffs.
In the field of lending, the fact of non-repayment of a loan can be regarded as fraud and qualified under Article 159.1 of the Criminal Code. In this case, it must be proved that the borrower committed fraudulent acts against the bank, namely, he provided deliberately false information about himself, his work, wages, etc. In addition, it must be proved that the citizen had intent to to violate the essential terms of the loan agreement and not to repay the loan.
Fraud cases are instituted only if the bank submits a criminal complaint.
