The Prosecutor's Office informs. How to properly formalize a decision to lend money
How to properly formalize a decision to lend money…
If you and your borrower are citizens of Belarus or stateless persons who have a residence permit in our country, and you are not acting as an individual entrepreneur, then the following options for formalizing such legal relations exist:
The transaction you are making when lending money is called a loan agreement. Under this agreement, one party (the lender) transfers a certain amount of money to the other (the borrower). The borrower, in turn, undertakes to return the same amount.
A loan agreement can be concluded in oral, simple written, or notarized written forms.
What is an oral agreement:
If you plan to lend no more than 10 BCV, an oral agreement with the borrower is sufficient (para. 1, Art. 761 of the Civil Code). Currently, this amount is
370 rubles, as the base value is 37 rubles.
To confirm the fact and amount of the debt if necessary, it is advisable to transfer money either in the presence of witnesses or by drawing up a receipt. You can protect yourself with both witnesses and a receipt simultaneously.
The receipt is drawn up by the borrower in free form, preferably in their own handwriting (in case of a handwriting examination). It is advisable to indicate: the full name, passport data, and place of residence of the lender and borrower, witnesses (if present); the fact of the borrower receiving a certain loan amount (in numbers and words) indicating the loan currency, and the borrower's obligation to return the specified amount.
You can lend both Belarusian rubles and foreign currency, including with interest. In this case, it should be borne in mind that foreign currency can only be lent to another person for personal, family, household, or other needs not related to entrepreneurial activity.
In addition, the receipt should indicate: the amount of interest for using the loan (if you have provided for it); the loan repayment period.
If the loan repayment period is not specified in the receipt, the borrower must return the money within 30 days from the date you present
requirements. To confirm the date of claim submission, it should be drawn up in writing in 2 copies, or 1 copy should be sent to the borrower by registered mail with notification of delivery; or 1 copy of the claim should be personally handed over to the borrower, and they should be asked to indicate on your copy in their own handwriting that they have received the claim, the date of receipt, and their signature with decryption (borrower's initials and surname);The date of drawing up the receipt and the borrower's signature, as well as the signatures of witnesses, if any, must be indicated.
Until the loan is repaid, the receipt remains with the lender. In practice, upon repayment of the money, the lender indicates on the receipt that the debt has been paid, puts their signature, and hands the receipt over to the borrower.
If the amount lent is more than 10 basic units (BU), the loan agreement must be concluded in writing (para. 1, Art. 761 of the Civil Code). It is best to do this by drawing up the loan agreement in 2 copies (one will remain with the lender, the second - with the borrower). The agreement should preferably specify the same terms as the receipt.
If the loan agreement does not contain a clause on the borrower paying interest for the use of the loan, for a loan amount up to 50 BU (inclusive), it is considered interest-free.
If the loan amount exceeds 50 BU, the lender has the right to demand interest on the loan amount. The amount of such interest is determined by the refinancing rate of the National Bank on the day of debt repayment (para. 1 and 3, Art. 762 of the Civil Code).
Unless otherwise provided by law or the loan agreement, in cases where the borrower does not return the loan amount on time, interest shall be paid on this amount at the rate provided for in paragraph 1 of Article 366 of this Code, from the day it was supposed to be returned until the day it is returned to the lender, regardless of interest payment.
The agreement may provide for penalties in case the debtor does not return the money or returns it later than the agreed date. Such penalties can be established in the form of a one-time fine in a fixed amount or a penalty for each day of delay in repayment.
debt. If the loan agreement provides for the repayment of the loan in parts (in installments), then if the borrower violates the deadline set for the repayment of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount along with the accrued interest.If a large sum is lent, then in addition to the loan agreement, a pledge agreement can be concluded. This will allow, in case of non-repayment of the loan, to cover the debt by selling the borrower's pledged property. However, it should be borne in mind that the registration of a pledge of certain property has its own peculiarities. Thus, when pledging real estate (house, apartment, etc.), the agreement must be registered with the territorial organization for state registration of immovable property, rights to it and transactions with it.
A signed loan agreement enters into force from the moment the money is transferred to the borrower (para. 2, Art. 760 of the Civil Code).
At the same time, if the lender changes their mind about lending money after signing the agreement, no one can force them to transfer the money.
If the transfer of money is made before signing the agreement or simultaneously with it, this should be indicated in the agreement. For example, the agreement can include a condition that the loan amount has been fully received by the borrower before signing the agreement.
When transferring money to the borrower some time after signing the agreement, it is advisable to draw up a receipt. In addition to the information specified above, it is advisable to note in it, in accordance with which agreement the money was transferred.
If the amount lent is 290 (10 BCV) or more, but a written agreement is not concluded, the lender retains the right to demand repayment of the loan. The existence of the debt in this case can be confirmed by a receipt or other document, for example, a letter from the borrower, where they indicated that they borrowed money. The lender has no right to refer to witness testimony in this case.
As for the notarization of the agreement... notarizing a loan agreement is not mandatory. However, if desired, you can contact a notary for assistance in
составлении договора, так и за его удостоверением. Услуги нотариуса платные.При необходимости по удостоверенному нотариусом договору займа будет проще взыскать долг, если заемщик не вернет деньги вовремя. Для этого достаточно обратится с таким договором к нотариусу. Он совершит исполнительную надпись, по которой судебный исполнитель взыщет долг.
Другим способом защиты прав займодавца является обращение в суд с исковым заявлением о взыскании суммы долга. При необходимости для составления искового заявления можно обратиться в юридическую консультацию.
Законодательством также предусмотрена защита прав заемщика.
Так, заемщик вправе оспаривать договор займа по его безденежности, доказывая, что деньги или другие вещи в действительности не получены им от заимодавца или получены в меньшем количестве, чем указано в договоре.
Если договор займа должен быть совершен в письменной форме (статья 761), его оспаривание по безденежности путем свидетельских показаний не допускается, за исключением случаев, когда договор был заключен под влиянием обмана, насилия, угрозы, злонамеренного соглашения представителя заемщика с заимодавцем или стечения тяжелых обстоятельств.
При оспаривании заемщиком договора займа по его безденежности будет установлено, что деньги или другие вещи в действительности не были получены от заимодавца, договор займа считается незаключенным. Когда деньги или другие вещи в действительности получены заемщиком от заимодавца в меньшем количестве, договор считается заключенным на это количество денег или вещей.
Хотелось бы обратить внимание на то, что при даче денег в долг и написании расписок о взятии денег в долг, следует проявлять бдительность и взвешивать все возможные последствия.
Both for the drafting of the agreement and for its certification. Notary services are paid.
If necessary, it will be easier to recover the debt under a loan agreement certified by a notary if the borrower does not return the money on time. To do this, it is enough to approach a notary with such an agreement. He will make an executive inscription, according to which the bailiff will recover the debt.
Another way to protect the rights of the lender is to apply to the court with a statement of claim for debt recovery. If necessary, you can contact a legal consultation to draft a statement of claim.
The legislation also provides for the protection of the borrower's rights.
Thus, the borrower has the right to challenge the loan agreement for its lack of funds, proving that the money or other things were not actually received by him from the lender or were received in a smaller quantity than indicated in the agreement.
If the loan agreement must be made in writing (Article 761), its challenge for lack of funds by witness testimony is not allowed, except in cases where the agreement was concluded under the influence of deceit, violence, threat, malicious agreement of the borrower's representative with the lender, or a confluence of difficult circumstances.
When the borrower challenges the loan agreement for its lack of funds, it will be established that the money or other things were not actually received from the lender, the loan agreement is considered not concluded. When the money or other things were actually received by the borrower from the lender in a smaller quantity, the agreement is considered concluded for that quantity of money or things.
It should be noted that when lending money and writing receipts for borrowing money, one should exercise vigilance and weigh all possible consequences.