How to notarize a loan between individuals. How to draw up a cash loan agreement between individuals - a sample and rules. The nuances of a loan agreement with an individual
Often times in our life there are situations when, in order to solve life problems, there is a need for urgent receipt of funds. This can be related to purchasing expensive things, such as an apartment or a car, or investing in yourself, such as education. Of course, you can contact the bank, collect all the required documents and get the required amount at the percentage specified by the terms of the agreement.
But there is another way - to turn to a relative, friend or acquaintance and, with a minimum of formalities, get the same money. It is possible that for the borrower the terms of a loan agreement concluded with a relative, friend or acquaintance will be incomparably softer than when applying to a credit institution, because current legislation suggests the possibility of concluding an interest-free loan agreement.
You will learn about what a loan agreement is, what conditions the law imposes on this type of agreement, how to protect yourself from possible non-return of funds under a loan agreement and how to protect your rights in court, you will learn from this article.
The main document (regulatory legal act) governing civil law relations arising in Russia, between individuals, between legal entities, as well as between individuals and legal entities, is the Civil Code Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation). Chapter 42 of the Civil Code of the Russian Federation is called "Loan and Credit" and establishes general rules for relations between the parties arising on the basis of loan and credit agreements. In this article, we will consider the legal relationship between individuals arising from the loan agreement of funds - § 1 of Chapter 42 of the Civil Code of the Russian Federation.
Item 1, Art. 807 of the Civil Code of the Russian Federation defines a loan agreement - under a loan agreement, one party (the lender) transfers to the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money (loan amount) or an equal number of others to the lender received by him things of the same kind and quality. A loan agreement is considered concluded from the moment of transfer of money or other things.
The parties to the loan agreement are the lender - a person who transfers funds or other values \u200b\u200bto another party, and the borrower - a person who receives money or things.
A loan agreement is a real agreement, that is, it is considered concluded from the moment money or other things are transferred. To conclude a real contract, two conditions must be met simultaneously:
- an agreement of the parties clothed in the appropriate form;
- transfer of property specified in this agreement.
The subject of a loan agreement can be either cash or other things defined by generic characteristics.
According to paragraph 2 of Art. 807 of the Civil Code of the Russian Federation, foreign currency and currency values \u200b\u200bmay be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Art. 140, 141 and 317 of the Civil Code of the Russian Federation and Federal Law of December 10, 2003 N 173-FZ "On foreign exchange regulation and currency control "
So, for example, according to Art. 317 of the Civil Code of the Russian Federation Monetary obligations must be expressed in rubles (Art. 140 of the Civil Code of the Russian Federation). Paragraph 2 of the same article states: a monetary obligation may provide that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ECU, "special drawing rights", etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the corresponding currency or conventional monetary units on the day of payment, unless another rate or another date for its determination is established by law or by agreement of the parties.
Regarding the form in which the loan agreement must be concluded, the legislator has established that the agreement can be concluded both orally and in writing. When determining the form of the contract, it is necessary to take into account the provisions of paragraph 1 of Art. 808 of the Civil Code of the Russian Federation, which established that a loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law.
In accordance with Federal Law of June 19, 2000 N 82-FZ "On the minimum wage", the base amount used in calculating scholarships, benefits and other mandatory social payments, calculating taxes, fees, fines and other payments, calculating payments for civil obligations, the amount of which, in accordance with the legislation of the Russian Federation, is determined depending on, is 100 (one hundred) rubles. Thus, when concluding a loan agreement between citizens for an amount exceeding 1,000 (one thousand) rubles, this agreement must be in writing.
Failure to comply with this provision in accordance with Art. 168 of the Civil Code of the Russian Federation entails the invalidity of the agreement - a transaction that does not meet the requirements of the law or other legal acts is void.
According to Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment of its completion. If the transaction is invalid, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided), reimburse its value in money, if other consequences invalidity of the transaction is not provided for by law.
In accordance with paragraph 2 of Art. 808 of the Civil Code of the Russian Federation, in confirmation of the loan agreement and its conditions, a receipt of the borrower or other document can be presented, certifying that the lender has transferred a certain amount of money or a certain number of things to him.
Commenting on the provisions of Art. 808 of the Civil Code of the Russian Federation, the attention of the reader, not experienced in legal casuistry, should be drawn to the fact that, based on the meaning of the article, compliance with the written form of the loan agreement will be a receipt of the borrower, which will indicate that a certain amount of money was transferred by one person and by another person accepted. And it is this document that will confirm the conclusion of the loan agreement and compliance with its written form! Of course, ideally, it is necessary to draw up a separate loan agreement, which will spell out the conditions that determine the size of the loan, the procedure for its return, the availability of interest payable, and the responsibility of the parties for non-compliance with the terms of the agreement and, as an annex to it, draw up a receipt for receiving funds. However, the realities of life are far from ideal and in practice they often get by with drawing up a receipt, which is the only document confirming the loan of funds and, using which you can return the funds in court.
It is also worth drawing the reader's attention to the fact that the receipt must necessarily reflect not only the time (date) and place (city) of drawing up the receipt (conclusion of the contract), but also the fact of the transfer of funds, that is, that “money has been transferred and received "! Such a formulation as "one party transmits, and the other receives ..." does not indicate the fact of transfer!
It is best to finish the main text of the receipt with the words: “The amount was transferred to the Borrower in full, which is _________ (____________) rubles. The Borrower _________ (full name) has no claims to the Lender _________ (full name) regarding the transfer of the loan amount. "
Failure to comply with these rules may lead to the impossibility of refunding funds in court. For example, the borrower may, in the order of Art. 812 of the Civil Code of the Russian Federation to challenge the loan agreement due to its lack of money, proving that the money was not actually received by him from the lender or received in less quantity than indicated in the agreement, while, by virtue of paragraph 2 of this article, if the loan agreement must be completed in in writing, challenging it for lack of money by means of witness testimony is not allowed, except in cases where the contract was concluded under the influence of deception, violence, threat, malicious agreement between the borrower's representative and the lender, or a combination of difficult circumstances.
At the request of the parties and for additional protection of their interests, the loan agreement can be certified by a notary, although the law does not oblige this. It should be remembered that additional protection in this case will be the notary's certification of the fact of the conclusion of the contract (its signing) by the relevant persons.
There are two types of loan agreements: reimbursable and gratuitous.
Art. 809 of the Civil Code of the Russian Federation determines the conditions for the repayment of the loan agreement.
As a general rule, unless otherwise provided by law or agreement, the lender has the right to receive interest from the borrower on the amount of the loan 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 existing in the place of residence of the lender, and if the lender is a legal entity, in the place of its location by the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part. Unless otherwise agreed, interest is paid monthly until the day the loan is repaid.
Unless otherwise expressly provided in the loan agreement, such an agreement is assumed to be interest-free, in cases where:
- the contract was concluded between citizens for an amount not exceeding fifty times the minimum wage established by law and is not associated with the implementation of entrepreneurial activity by at least one of the parties;
- under the agreement, not money is transferred to the borrower, but other things determined by generic characteristics.
The procedure for the return of funds under the loan agreement is determined by Art. 810 of the Civil Code of the Russian Federation.
In accordance with this article, the borrower is obliged to return the received loan amount to the lender on time and in the manner provided for by the loan agreement, and in cases where the repayment period is not established by the agreement or is determined by the moment of demand, the loan amount must be returned by the borrower within thirty days from the day the lender submits a demand for this, unless otherwise provided by the contract. Unless otherwise provided by the loan agreement, the amount of the interest-free loan may be repaid by the borrower ahead of schedule. The loan amount provided at interest can be repaid ahead of schedule with the consent of the lender. Unless otherwise provided by the loan agreement, the loan amount is considered returned at the time of its transfer to the lender or the transfer of the corresponding funds to his bank account.
It is worth mentioning that in order to protect their interests, the borrower, when returning the principal amount of the loan and paying the interest associated with it, has the right to demand from the lender a receipt for the specified funds to confirm the fulfillment of the terms of the loan agreement on his part. In this receipt, as well as in the receipt for receipt of funds when concluding a loan agreement, the fact of transfer of funds from the borrower to the lender must be reflected.
The consequences of failure by the borrower to fulfill their obligations under the loan agreement are determined by Art. 811 of the Civil Code of the Russian Federation. By default, that is, unless otherwise provided by law or the loan agreement, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, from the day when it must was returned before the day of its return to the lender, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation. Also, if the loan agreement provides for the return of the loan in parts (in installments), then if the borrower violates the deadline established 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.
The aforementioned Art. 395 of the Civil Code of the Russian Federation determines the size and conditions for the application of civil liability measures to the debtor for failure to fulfill a monetary obligation, namely, for the use of other people's funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another persons are payable interest on the amount of these funds. The amount of interest is determined by the existing in the place of residence of the creditor, and if the creditor is a legal entity, in the place of its location by the discount rate of the bank interest on the day of the fulfillment of the monetary obligation or its corresponding part.
Commenting on Art. 811 of the Civil Code of the Russian Federation, I would like to draw your attention to the fact that the measures of civil liability applied to the borrower, provided for by this article, namely, the payment of interest in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, for late repayment of the loan amount, are payable by the borrower, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, since they are responsible for non-fulfillment of a monetary obligation, and the interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, are interest on the loan amount for using the borrower's funds (borrower's remuneration), that is, they have a different legal nature, and, accordingly, do not affect each other. The amount of interest established in paragraph 1 of Art. 811 of the Civil Code of the Russian Federation, for non-return by the borrower on time, the loan amount can be changed by the parties by making the appropriate condition in the agreement.
As mentioned above, the loan agreement can be challenged by the borrower for his lack of money, proving that money or other things have not actually been received by him from the lender or received in less quantity than indicated in the agreement (Article 812 of the Civil Code of the Russian Federation). At the same time, if the loan agreement must be made in writing (Article 808 of the Civil Code of the Russian Federation), its challenging due to lack of money by means of testimony is not allowed, except for cases when the agreement was concluded under the influence of deception, violence, threat, malicious agreement of the borrower's representative with a lender or a combination of difficult circumstances. If, in the process of challenging the loan agreement by the borrower due to his lack of money, it is established that money or other things were not actually received from the lender, the loan agreement is considered not concluded. When money or things are actually received by the borrower from the lender in a smaller amount than indicated in the agreement, the agreement is considered concluded for this amount of money or things.
If the borrower does not return the funds under the loan agreement, then the lender has the right to go to court with a claim against the borrower to collect funds under the loan agreement.
When applying to the court, you must remember that the law establishes a limitation period. In accordance with Art. 195 of the Civil Code of the Russian Federation, the limitation period is the term for protecting the right at the claim of a person whose right has been violated. The general limitation period is set at three years (Article 196 of the Civil Code of the Russian Federation). It is also worth remembering that the agreement of the parties on changing the limitation periods and on the procedure for calculating them is invalid (Article 198 of the Civil Code of the Russian Federation). However, the limitation period is not “automatically” applied by the court! The court will accept statement of claim regardless of whether the statute of limitations has expired or not. The fact that the limitation period has expired must be declared to the court of one of the parties before the decision is made. The expiration of the limitation period, the application of which is declared by the party to the dispute, is the basis for the court's decision to dismiss the claim (Article 199 of the Civil Code of the Russian Federation).
The beginning of the course of the limitation period must be calculated from the day when the person learned or should have learned about the violation of his right.
If the loan agreement defines the term for the return of funds, the limitation period should be calculated at the end of the performance period, that is, from the day following the day when the borrower had to return the loan amount. If the repayment period is not determined by the parties, or is determined by the moment of demand, the limitation period begins from the moment when the borrower has the right to present a claim for the return of borrowed funds (Article 200 of the Civil Code of the Russian Federation).
Art. 203 of the Civil Code of the Russian Federation, it is established that the course of the limitation period is interrupted by filing a claim in the prescribed manner, as well as by the commitment of the obliged person to actions that indicate recognition of the debt. Actions indicative of debt recognition may be, for example, partial repayment of the debt, or the parties concluding an additional agreement to the loan agreement on the procedure for repaying the debt. In this case, the course of the limitation period begins anew, and the time elapsed before the break (the performance of these actions) is not included in the new period!
If, nevertheless, the claimant missed the statute of limitations and the defendant stated this in court, then the law grants the right to restore this term. To restore it, the plaintiff must prove at the hearing that he had valid reasons, because of which he could not promptly apply to the court to protect his rights and interests. In exceptional cases, when the court recognizes a valid reason for missing the statute of limitations due to circumstances related to the personality of the plaintiff (serious illness, helpless state, illiteracy, etc.), the violated right of the citizen is subject to protection. At the same time, the reasons for missing the limitation period can be considered valid if they took place in the last six months of the limitation period (Article 205 of the Civil Code of the Russian Federation).
If the borrower voluntarily returned the loan amount in full after the expiration of the limitation period, then he has no right to demand the executed back (Article 206 of the Civil Code of the Russian Federation).
The procedure for applying the statute of limitations to claims under a loan agreement in relation to the interest provided by it and forfeit for non-fulfillment of the terms of the agreement, the so-called additional requirements, is determined by Art. 207 of the Civil Code of the Russian Federation, according to which with the expiration of the limitation period for the main claim, the statute of limitations expires and for additional requirements.
A statement of claim for the collection of funds under a loan agreement, as a general rule, is filed at the place of residence of the borrower (Article 28 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation)). If the place of residence of the defendant is unknown, then the statement of claim is filed at his last known place of residence (clause 1 of article 29 of the Code of Civil Procedure of the Russian Federation). The last famous place residence may be the address where the defendant is registered, indicated in the loan agreement (receipt of funds).
This case will be within the jurisdiction of the magistrate if the size of the requirements stated in the statement of claim does not exceed five hundred minimum wages, that is, 50,000 (fifty thousand) rubles (subparagraph 5 of paragraph 1 of article 23 of the Code of Civil Procedure of the Russian Federation), in the case of exceeding this amount, the case is within the jurisdiction of the district court (Articles 22 and 24 of the Code of Civil Procedure of the Russian Federation).
In order for the court to accept and consider the claim, the plaintiff must pay a state fee, the amount of which is calculated based on the amount of the claim.
Pp. 1 p. 1 of Art. 333.19 of the Tax Code of the Russian Federation establishes the procedure for determining the amount of state duty.
In cases considered in courts of general jurisdiction by justices of the peace, the state fee is paid in the following amounts:
when filing a statement of claim of a property nature, subject to assessment, at the price of the claim:
- up to 10,000 rubles - 4 percent of the value of the claim, but not less than 200 rubles;
- from 10,001 rubles to 50,000 rubles - 400 rubles plus 3 percent of the amount exceeding 10,000 rubles;
- from 50,001 rubles to 100,000 rubles - 1,600 rubles plus 2 percent of the amount exceeding 50,000 rubles;
- from 100,001 rubles to 500,000 rubles - 2,600 rubles plus 1 percent of the amount exceeding 100,000 rubles;
- over 500,000 rubles - 6,600 rubles plus 0.5 percent of the amount exceeding 500,000 rubles, but not more than 20,000 rubles.
In accordance with paragraph 1 of Art. 154 of the Code of Civil Procedure of the Russian Federation, civil cases are considered and resolved by the court before the expiration of two months from the date of receipt of the application by the court, and by the magistrate before the expiration of a month from the date of acceptance of the application for proceedings.
When resolving the case in favor of the plaintiff, after the entry into force of the decision of the court of first instance, that is, if the decision is not appealed by the defendant within ten days to the court of appeal, the plaintiff is issued a writ of execution, which is to be presented to the Federal Bailiff Service of Russia for the recovery of the awarded monetary funds forcibly within the time period specified in the writ of execution.
Further actions to collect funds from the debtor and return them to the creditor are carried out by bailiffs-executors in accordance with the current legislation.
The list of normative legal acts used when writing the article:
- Tax Code of the Russian Federation (Part 2), dated 05.08.2000 N 117-FZ;
- Civil Code of the Russian Federation (Part 1), dated 30.11.1994 N 51-FZ;
- Civil Code of the Russian Federation (Part 2), dated 26.01.1996 N 14-FZ;
- Civil Procedure Code of the Russian Federation of November 14, 2002 N 138-FZ;
- Federal Law of June 19, 2000 N 82-FZ "On the minimum wage".
One of the types of transactions in civil law is a loan... It can have different varieties (for example, bank loan, loan), but the requirements of the law will be the same.
The parties to the loan should carefully study the rules of the law before entering into a transaction in order to protect themselves and not violate the rights and interests of the other party. Chapter 42 of the Civil Code of the Russian Federation is devoted to this type of transaction.
Article 807 of civil law prescribes the concept of a loan, which means an agreement between the parties, which are the lender and the borrower.
The agreement implies the transfer of funds or other things from the lender to the borrower's disposal.
The borrower, in turn, undertakes to return the borrowed funds or other things that have distinctive generic characteristics.
Features of the loan:
- the transfer of funds to the borrower means that he acquires the right to freely dispose of them;
- if the lender decides to restrict the rights of the borrower, an agreement on the target loan is signed between them. For example, the transferred funds must go to purchase a car or real estate;
- the signing by the parties of the agreement does not give rise to the fact of its conclusion;
- for the agreement to come into legal force, the borrower must receive the amount due to him under the agreement in the form of a loan;
- if money is transferred as a loan, a receipt is drawn up, or the agreement itself must have a condition that it also serves as a receipt.
The legislation allows written and oral forms of the transaction. To conclude an oral agreement, a condition is required that the loan amount does not exceed 1,000 rubles, which is equivalent to 10 minimum wages.
If the agreement does not contain a specific date for repayment of the loan after the presentation of the demand, the loan is subject to repayment within 30 days from the date the borrower received the notification.
In some cases, partial payment of the debt is allowed. Such a condition is recorded in a separate document in the form of a payment schedule.
Download a sample loan agreement between individuals
The transfer of funds in the form of a loan between individuals is a fairly common type of transaction... In most cases, citizens do not seek to formalize it in the form of a written agreement, and legal relations are built orally.
The decision to transfer money to a third party without signing documents carries great risks and possible losses for the lender, since it will be quite difficult to confirm the fact of transferring the loan into the hands of the borrower.
It is not always required to conclude an agreement, it is allowed to sign a simple receipt for receiving money on a loan. If the parties decide to conclude the transaction in the form of an agreement, then it must contain the following conditions:
- the date of the conclusion of the contract or the signing of the receipt;
- the term and conditions for the return of funds;
- accurate information about the parties to the transaction;
- responsibility for violation of the terms of the contract;
- in what form the money is transferred (for a fee or free of charge);
- other conditions at the discretion of the parties and not contrary to the law.
The parties can draw up a loan agreement on their own, or download a sample on the Internet.
There is no unified contract form. Therefore, the parties should be guided by general provisions about the loan. You can download a sample contract.
There are several ways to calculate depreciation. Read about how it happens on the link.
Loan between citizens and legal organizations
The legislation does not prohibit the conclusion of an agreement, where the subjects are a legal entity and a citizen.
It is worth noting that the lender may be an employee of the borrowing organization or be an outsider.
Features of the transaction:
- when transferring money to a loan at interest, the parties must prescribe its size;
- if there is no indication of the percentage, such percentage will be calculated based on the current bank rate on the day the borrower fulfills its obligations to transfer funds;
- the interest received by the citizen - the lender under the transaction, will be subject to mandatory taxation;
- the parties may include in the agreement a condition that all expenses, including taxation, are borne by the borrower;
- money can be transferred to the organization's cashier by transferring to the account;
- loan repayment is possible by transferring funds to the lender's account or issuing money from the cash desk;
- conditions for early repayment of the loan must be spelled out in the contract;
- if the loan amount is large, the lender may require the inclusion of a pledge clause in the agreement, for example, property belonging to a legal entity - the borrower.
The main task of the parties is a detailed description of the loan object. Before signing a loan agreement, the parties should carefully study its terms. For any difficult moments and questions, you should seek help from specialists in the field of law.
Legal relationships between legal entities in terms of concluding a loan agreement are fully covered by civil legislation, respectively, general rules apply to them.
The main feature of this type of agreement is that it is always concluded in writing, regardless of the size and type of loan. Since the parties are legal entities, the contract must contain information about their details.
The signed contract is sealed.
Violation of the terms of the contract
If the parties violate the terms of the contract, they are subject to civil liability. First of all, this includes responsibility for the late return of the loan.
The parties have the opportunity to independently prescribe in the terms of the contract liability in the form of interest for delay. If such a condition is not provided, the parties are guided by the general provisions of Article 395 of the Civil Code of the Russian Federation.
Requests to eliminate violations must be made in the form of a claim, indicating the time frame for their satisfaction.
If the party who violated the terms of the transaction does not satisfy the requirements or ignores the claim, the other party has the right to go to court.
To go to court, you will need to draw up a statement of claim with a full calculation of the loan amount required to be returned and interest for late performance of the obligation.
The loan agreement, as a separate legal institution of civil law, is quite simple to execute. All that is required from the parties to the transaction is to carefully study the norms of the law, correctly arrange the transfer of the loan and, of course, not violate the rights and interests of each other.
For information on how the collection of funds by receipt is carried out, see this video:
Maybe a simple written form, notarized - only if then he does not want to go to the courts, but immediately to the notary and the bailiff.
Regulated by the Civil Code
The simplest form in the application ...CIVIL CODE
RUSSIAN FEDERATIONArticle 807. Treaty
loan1. Under a loan agreement
one party (lender) transfers ownership to the other party (borrower)
money or other things defined by generic characteristics, and the borrower undertakes
return the same amount of money (loan amount) or an equal amount to the lender
other things he received of the same kind and quality.Loan agreement
is considered a prisoner from the moment money or other things are transferred.2. Foreign
currency and currency values \u200b\u200bcan be the subject of a loan agreement on the territory
Of the Russian Federation in compliance with the rules of Articles 140, 141 and 317 of this
Of the Code.3. Features
providing a loan at interest to a citizen borrower for purposes not related to
entrepreneurial activity are established by laws.Article 808. Form
loan agreement1. Loan agreement
between citizens must be concluded in writing if its amount
exceeds at least ten times the statutory minimum amount
wages, and in the case when the lender is a legal entity - regardless of the amount.2. In confirmation
of the loan agreement and its terms, a receipt of the borrower or other
document certifying that the lender has transferred a certain amount of money to him
or a certain number of things.Article 809. Interest
under a loan agreement1. Unless otherwise
provided by law or loan agreement, the lender has the right to receive
from the borrower of interest on the amount of the loan in the amount and in the manner determined
agreement. In the absence of a condition on the amount of interest in the agreement, their amount
is determined by the existing in the place of residence of the lender, and if the lender
is a legal entity where it is located at the rate of bank interest
(refinancing rate) on the day the borrower pays the amount of the debt or
the corresponding part.2. In the absence
otherwise, interest is paid monthly until the day the loan amount is repaid.3. Loan agreement
is assumed to be interest-free, unless it expressly provides otherwise, in
cases when:the contract is concluded
between citizens in an amount not exceeding fifty times the established
the law of the minimum wage, and is not associated with the implementation
business activity of at least one of the parties;under the agreement to the borrower
not money is transferred, but other things defined by generic characteristics.4. In case of return
ahead of schedule the amount of the loan provided at interest in accordance with paragraph 2
article 810 of this Code, the lender has the right to receive from the borrower
interest under the loan agreement, accrued inclusively until the day of return of the amount
the loan in whole or in part.Article 810.
Borrower's obligation to repay the loan amount1. The borrower is obliged
return the loan amount received to the lender on time and in the manner that
provided by the loan agreement.In cases where
the term of return is not established by the contract or is determined by the moment of demand,
the loan amount must be returned by the borrower within thirty days from the date
presentation by the lender of a demand about it, unless otherwise provided
agreement.2. Unless otherwise
provided by the loan agreement, the amount of the interest-free loan can be returned
the borrower ahead of schedule.Loan amount,
provided at interest to a citizen borrower for personal, family,
home or other use not related to business
activities, can be returned by the borrower-citizen ahead of schedule in full
or in parts, provided that the lender is notified of this for at least
thirty days prior to the day of such return. The loan agreement may establish
shorter period of notice to the lender of the borrower's intention to repay
cash ahead of schedule.Loan amount,
provided at interest in other cases, can be returned early from
consent of the lender.3. Unless otherwise
provided by the loan agreement, the loan amount is considered returned at the time
transferring it to the lender or crediting the corresponding funds to his
bank account.
If you need something specific - contact ..
If a person has an urgent need for money, it is not necessary to immediately go to a bank or credit institution. At such a moment, friends or relatives can help out. If we are talking about a small loan amount, then usually nothing is needed except for oral agreements. And in order to get a serious amount, it is appropriate to draw up a receipt or a loan agreement.
An IOU is a document that guarantees the protection of the rights of citizens in a relationship where one party transfers funds for temporary use, and the other accepts them.
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According to the Civil Code, a receipt is issued officially if the borrowed amount exceeds 10 thousand rubles. If the amount is less, then it is enough to conclude an oral agreement on the timing and procedure for the return of funds. Although it is possible to draw up a written receipt regardless of the size of the loan, in the latter case it will not have legal force.
The document indicates the personal data of the borrower and the lender, the size of the loan and the interest for using the money. You especially need to be careful if money is taken in foreign currency, since exchange rate fluctuations can lead to monetary losses for one of the parties. Therefore, in the receipt it will be useful to indicate the exchange rate on the day of the contract.
What and when to use
The fact of transferring money into debt can be accompanied by both a receipt and. At first glance, there is no significant difference between these documents: they indicate the amount of the transaction, the maturity of the debt and the size of the interest rate. Moreover, there are risks in both cases.
However, there is a significant difference: a loan agreement must be certified by a notary only if a large amount is involved, and real estate acts as collateral.
The receipt is certified by a notary when it comes to an amount exceeding ten non-taxable minimum wages. This document can be used in court as additional evidence in the case of non-payment of debt.
What you should pay attention to
If serious mistakes were made in drawing up the receipt, then it cannot be used in court to prove one’s innocence and return funds.
What you need to pay special attention to when drawing up a document:
- Indication of reliable and complete information about the parties (not only full name, but also passport data). In the event of a disputable situation, this will help to prove that it was these people who participated in the transaction.
- Confirmation of the fact of transfer of funds, indicating the exact amount of the loan. Moreover, it is important to note that money is transferred precisely in debt, and not as a gift.
- Description of the terms of the transaction and clear terms for repayment of the debt. If the terms are not specified in the agreement, the borrower undertakes to repay the debt within 30 days after the request of the lender.
- If a target loan becomes the subject of the agreement, this must be indicated in the receipt. If the borrower spends money for other purposes, the lender has the right to demand repayment of the debt ahead of time based on a receipt.
- It is better to write a receipt by hand, since a document printed on a computer is difficult to identify by handwriting, looking at the signature alone.
- The document should not contain crossed out or corrections, especially in the area where the amount or due date of the debt is indicated.
Important standards
The main legislative act regulating the main aspects of the creation of loan agreements is Federal Law No. 353 “On consumer loans”. This law only covers consumer loans. Article 5 of the law sets out the conditions for issuing a loan, as well as the procedure for drawing up such a document. Article 14 contains information on liability for violation of agreements.
The rights and obligations of the parties are clearly spelled out in the Civil Code of the Russian Federation. Article 808 says that the receipt can be used as an attachment to the loan agreement. And in article 408 it is said that either of the parties can demand from the opponent a receipt on the occurrence or termination of obligations.
In some cases, it is possible to replace the loan agreement with a receipt. This option is provided by the decree The Supreme Court RF No. 53-ad06-2.
How to arrange correctly
When concluding an agreement between individuals, it is important to adhere to the basic rules that guarantee the authenticity of the document in case of legal proceedings:
- the receipt is written only by hand;
- the body of the document contains full information about the participants in the transaction, including passport data;
- it is the borrower who writes the receipt;
- decryptions are required near the paintings (full name);
- the amount of the transaction is written in numbers and words, indicating the currency;
- you need to indicate the exact timing of the debt repayment;
- to conclude an agreement in which a large amount appears, it is better to involve witnesses (also indicate their personal and passport data in the agreement);
- if the transaction involves the accrual of interest for the use of the loan, this must be reflected in the document, indicating the amount of accruals.
The main thing is to clearly stipulate the conditions for issuing a loan and reflect this in the document being drawn up. It is important to carefully check the receipt in order to avoid mistakes, and if they occur, you need to re-draw up the document.
Visual content samples
The receipt is written in free form, but the essence is always about the same.
Example:
I am Alena Gennadievna Kolontaeva, born on August 31, 1977, passport 34 16 432156, residing at the address, Moscow, Vernadsky Ave., 43, apt. 29. I borrow 15,000 (fifteen thousand) rubles from Igor Mikhailovich Malikov, born on August 15, 1970, passport 56 12 765890, residing at the address: Moscow, st. Avtozavodskaya, 8, apt. 12.
I undertake to repay the debt by June 25, 2017.
Signature (Alena Gennadievna Kolontaeva) / date.
Subtleties of the format of a loan receipt between individuals
Despite the seeming simplicity and transparency of the transaction, issuing a receipt between individuals can be fraught with some nuances.
For instance:
- The loan agreement is considered valid from the moment the funds are transferred. That is, if at the time of signing the agreement there was a condition that the lender would give money within a week, the borrower has no right to demand this amount earlier.
- The subject of the contract can be not only cash, but also other things that are characterized by generic characteristics, i.e. debt can be repaid by similar things. For example, lumber, building materials, food products.
- Under the loan agreement, you can transfer money in foreign currencies, but in this case, you need to take into account the current exchange rate.
- If the borrower has delayed the date of repayment of the money, the lender has the right to apply to the judicial authorities to collect a forfeit. However, if the body of the contract did not indicate interest for the use of funds, then it will be much more difficult to prove this fact.
Controversial nuances
Is there a guarantee
The receipt does not give a full guarantee of the money back to the creditor. No one is immune from unforeseen situations, including the borrower. Therefore, it is better to discuss force majeure situations at the stage of concluding an agreement.
To protect yourself from non-compliance with the terms of the contract, it is important that the documentation is drawn up correctly, it contains all the necessary information. For the borrower, it will be correct to take from the lender a receipt for the receipt of money in payment of the debt.
If the borrower does not repay the debt on time, the lender can go to court. And the court, in turn, can decide on the compulsory collection of the debt from the debtor. The situation becomes more complicated if the borrower does not have property that can be withdrawn to pay off debt or official work.
An additional measure in relation to the debtor may be a ban on crossing the border or the arrest of a current account.
Potential risks
The best way to protect yourself from monetary losses is not to lend to anyone. Otherwise, there is always a risk that the debtor will not fulfill his promises.
Official documents in the form of a receipt or a loan agreement will help the lender win the case in court. After the entry of the decision on the enforced recovery of funds, the creditor is issued a copy of this document, with which he applies to the bailiff service.
But in fact, it is not always possible to return your money, for example, if the borrower has no real opportunity to pay off the debt due to lack of work or valuable property. In this case, even the court cannot influence the outcome of the case in any way.
Assurance and witnesses
In some cases, witnesses are involved in concluding a loan agreement. Usually their participation is necessary when transferring large sums of money.
However, in case of hopelessness of debt repayment under the loan agreement, testimony will not help. They can only confirm the illegality of the actions of one of the parties during the conclusion of the transaction.
In case of going to court, witnesses can confirm the facts and circumstances that arose in the process of signing the contract. For example: the place in which the receipt was written, the persons involved in the transaction, whether the parties voluntarily came to an agreement.
The law does not provide for the mandatory certification of loan agreements by a notary, this happens only at the intention of the parties. However, according to the law, it will not be possible to certify one receipt, therefore the loan agreement is certified with an attachment in the form of a receipt.
Advantages and disadvantages
When concluding a loan agreement, a receipt carries both pros and cons:
| pros |
|
| Minuses |
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A receipt is an instrument of civil law relations that allows you to quickly get the required amount of money for use. At the same time, it is a document confirming the fact of the conclusion of the transaction, and can become important evidence in court.
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To obtain urgent financial support, in the idea of \u200b\u200ba loan, it is not necessary to contact credit organizations. Funds can be borrowed from private investors, who can be relatives, friends or other third parties.
Credit conditions in this case will be more loyal, since the borrower will not need to provide information about his income, employment and credit history.
In order for a transaction made between individuals to have legal force, you must adhere to the rules established by law.
The essence of the deal
A loan agreement is a document that regulates the procedure for transferring property with certain generic characteristics or funds from the lender to the borrower. Such a transaction can be formalized both between legal entities and individuals.
It is important to understand that such an agreement is significantly different from a credit one, since the latter can only be drawn up through specialized credit institutions licensed to conduct this kind of activity.
It is customary to call a lender a person who transfers property or funds for use to a person who applied for financial assistance, called the borrower.
The subject of the loan can be transferred on a reimbursable or gratuitous basis. As a rule, in practice, the loan is of a repayable nature, providing for the collection of interest from the applicant for the use of funds. This type of transaction is fully regulated by the current legislation of the Russian Federation.
Legislative acts
The main legal act governing the relationship between the parties is the Civil Code of the Russian Federation.
Essential conditions
Like any other type of transaction, the loan has certain essential conditions, without which, the legal relationship between the parties will be considered invalid.
Essential conditions include:
| Loan size | the terms of the agreement must indicate the exact amount of the transferred funds. The ruble is considered to be a legal means of payment on the territory of the Russian Federation. Accordingly, all payments between citizens of the Russian Federation must be carried out in Russian currency. If the subject of the loan is foreign currency, then the agreement should indicate that the funds are transferred and are subject to return in Russian currency, in an amount equivalent to the amount in foreign currency. If the loan agreement contains an indication that settlements between the parties are made in foreign currency, then such a condition will be invalidated, but the agreement itself as a whole will have the same legal force. |
| Interest under the contract | by law, loans between individuals can be interest-bearing or non-interest bearing. In the first case, the contract specifies the interest agreed by the parties. If there is no such indication, then the interest rate will be calculated based on the refinancing rate of the Central Bank of Russia. If the loan is interest-free, such a condition should be prescribed in the clauses of the agreement, otherwise, it will be considered onerous, and the calculation will be based on the same rate of the Central Bank of the Russian Federation. In the agreement, the parties have the right to indicate any convenient procedure for paying interest on the loan, for example, in cash or non-cash, monthly or at the end of the entire term |
| Return procedure and deadline | must be returned within the period agreed by the parties and prescribed in the text of the contract. If we are talking about a loan without interest, then the return can be made at any time, without prior notice to the lender, unless other conditions were agreed by the parties in the agreement. The procedure for returning the total amount of debt is also agreed by the parties. The loan will be considered returned at the moment of its transfer in cash to the lender or crediting of funds to the account (bank account, bank card). The return must be recorded in writing, in the form of a receipt, in the case of a money transfer, the purpose of payment should indicate that it is being made against the return of the loan under the contract (number and date) |
| Responsibility for non-fulfillment of the assigned obligations under the contract | if the borrower does not repay the loan within the agreed period, then additional penalties will be charged on this amount, in addition to the general interest |
It is worth noting that the interest received by the lender in excess of the principal loan amount will be an economic benefit for him.
Such benefit will be subject to personal income tax on a general basis, at a rate of 13%. An interest-free loan is not subject to this tax.
Video: is an interest-free loan to an individual subject to personal income tax?
Requirements
On the part of the legislation, the following requirements are put forward for concluding a loan agreement between citizens:
How to properly arrange a loan between individuals
As mentioned earlier, the execution of an agreement on the transfer of funds into a loan between citizens is required if the amount of funds transferred exceeds the established tenfold amount of the minimum wage in the Russian Federation.
When drawing up a contract in writing, you should take into account all legal requirements for this type of transaction.
By decision of the parties, the agreement can be notarized or signed in the presence of witnesses, who, in turn, must put their signatures on the document.
Preparation of contract
At the legislative level, the requirements for the content and execution of the contract are not defined. , must contain:
| At the beginning of the document, its name is written, then the date and place of compilation is put | the "header" indicates the data of the parties (name, passport data) |
| The subject of the agreement must indicate the amount of the loan | the amount is indicated in figures and words or on other material valuestransferred to the borrower |
| The time period is prescribed during which the borrower undertakes to repay the debt | if there is no such indication, the agreement will be considered indefinite and the client is obliged to return the borrowed money within 30 days from the moment when he received the corresponding request from the lender |
| If interest | then an indication is made of the amount of interest and the procedure for calculating them |
| The procedure for the return of the debt taken (non-cash or cash) | and the responsibility of the borrower, for untimely repayment of the debt, in the form of the accrual of additional penalties |
| Other conditions | affecting the issues of the concluded agreement, at the discretion of the parties, as well as the details and signatures of partners |
Drawn up in duplicate. The absence of certain established requirements for the content of the contract makes the process of its drafting quite simple.
Validity
The term for repayment of a borrowed obligation can be determined in the following ways:
Early repayment is allowed upon prior notification of the creditor - at least 30 days in advance. It should be understood that from the moment of notification until the expiration of 30 days, interest on the loan will continue to accrue.
In order to be able to repay the debt earlier, you should prescribe a term condition in the contract itself.
Interest rates
In order for the interest-bearing loan agreement to have legal force and be drawn up correctly, the interest rate should be agreed and prescribed.
To reach a compromise between the parties, the document specifies:
- The period, that is, the loan can be either urgent or indefinite.
- The amount of payments, including interest.
The Civil Code of the Russian Federation, in article 809, allows the lender to set any amount of payments. The same right is also confirmed, where it is said that each of the parties has the right to determine any size of the interest rate.
Attention should be paid to where it is said that if the client goes to court, then in the course of the process, an overstatement of interest rates and abuse of rights by the lender may be recognized.
Emerging nuances
During the conclusion of the transaction, there may be a need to provide additional guarantees for the lender.
For this, the legislator provides for two types of security:
- pledge;
- surety.
Both types of collateral can be used when concluding a transaction between individuals.
If a loan is used with security in the form of a surety, then a separate agreement is drawn up, which indicates:
A loan agreement providing in the form of property will be considered mixed. The collateral acts as a guarantee of the repayment of the debt by the borrower.
Loans from individuals against receipt allow you to confirm the fact of the transfer of funds. There is no official sample and norms for drawing up a receipt in the legislation, therefore, an arbitrary form is used.
In some cases, it is allowed to indicate in the terms of the contract that it serves as.
Not always, in the event of disputes and their transfer to court proceedings, the courts correctly assess this fact, recognizing the transaction as not concluded, since in fact there is no receipt.
Money transfer
The parties to the transaction must agree on the conditions for issuing funds. Among the options are:
- Cash withdrawal.
- Transfer to a bank account or card.
- In another way (through payment systems or electronic wallets).
The procedure for transferring a loan should be prescribed in the terms of the agreement.
Risks of transaction partners
It is easy to conclude a loan agreement, but the parties to the transaction should always be aware of the possible risks. First of all, partners should refuse to conclude a transaction verbally and use only a written agreement.
The lender is always at risk of non-return of funds from the client.
The risks for the borrower can be in the form of fraudulent actions on the part of the usurer:
- accrual of overstated interest;
- unclear terms of the contract;
- demand for early repayment of debt, in the absence of a written document, etc.
A loan agreement may be invalidated at the request of an interested party.
He is considered a prisoner if the transfer of things or other valuable items to the applicant was carried out. If, after signing the agreement, the borrower does not receive the subject of the loan, then the document automatically loses its legal force.
The invalidity of the transaction may also be in the event that the client discovers that in fact there has been a replacement of obligations.
All disputes must be carried out in court, for this the following cases must take place:
The parties to the transaction should try to protect themselves as much as possible, knowledge of their rights, always presupposes a competent approach to determining the circumstances that must be fulfilled in the future.
Existing taxation
An interest rate loan agreement signed between individuals provides for taxation. At the same time, the payment of tax may be imposed on either of the parties to the transaction, depending on what will be spelled out in the terms of the agreement.
The Tax Code of the Russian Federation, in, indicates that any benefit obtained as a result of savings in interest for the use of other people's funds can be attributed to the income of a private person.
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