The Financial club. Loan Agreement and Credit Contract. The 3rd meeting. Novelties of Art. 807 of the Civil Code of the Russian Federation

On March 15, 2019, International and Comparative Law Research Center held the next roundtable of Financial club on the topic: «Loan and Credit Agreements». The 3rd meeting. Novelties of Art. 807 of the Civil Code of the Russian Federation".

The event was attended by members of the scientific community and the largest Russian banks.

Maksim Bashkatov welcomed the participants and announced the first subject devoted to the nature of interest-bearing liability and raised a question of a ratio of debt interest and commission.

Artem Karapetov stated the point of view about the necessity to differentiate commercial and consumer agreements. According to his opinion, the law has to stimulate banks to include the amount of consideration in an interest rate. The exception needs to be made for the payments provided for additional services of bank, however, such services must have exact criteria.

Sergei Sarbash supports the opinion that the criteria need explanation. It is necessary to control the features of credit transactions with entrepreneurs since banks have an impact on the economy of the whole country.

Oleg Ivanov drew attention to the fact that the debt interest is a fee charged for using the loan and depending on the period of using the loan. He also drew attention to the problem of imposing credit insurance by banks and it’s an alleged connection with the commission’s abolition.

Roman Bevzenko raised the question of who exactly defray expenses for crediting. Particularly, if it is about small or medium-sized businesses, expenses are paid by the client.

Alexey Chirkov returned to a question of is it possible to take out a loan without the commission. For example, microfinance organizations work without additional fees. Since the adoption of the Consumer Credit Act, there was a descent of debt interests in microfinance organizations and the emergence of additional services at the same time. It is necessary to regulate the general amount of payments on the loan and to regulate additional services too.

Rimma Chichakyan cited as an example French law approach according to which any payment to bank should not be connected with a principal on loan despite the fact that it pays off for using the money.

Some debt interests can be issued as a separate agreement. Art. 809 of the Civil Code and "usurious interest" was the next subject of discussion. M.L. Bashkatov raised a question of a ratio of Article 809 of the Civil Code with oppressive contracts and Article 10 of the Civil Code: whether there has to be a subjective element at calculation of debt interest and is the sanction under Art. 809 is fair?

Roman Bevzenko drew attention to the necessity to consider all aspects of deal. So, if there is a misrepresentation and an agreement is oppressive - protection of borrower is justified. If the agreement is signed voluntarily, but terms are different from the market, there are no reasons for protection.

Sergei Sarbash noted that fight against "usurious interest" is not a dogmatic, but the moral category developed by society. The problems arising in practice can be characterized as the excessive act, anyway, it is necessary an individual approach to a situation. Negative interest rate became the final subject of a discussion.

Maksim Bashkatov raised a question of how to treat negative debt interest.

Artem Karapetov stated a position that such agreement is legal, but does not correspond to any of the qualifying signs and contradicts to legislative regulation of loans. It is another type of contract. The negative interest rate can arise, for example, in a currency deposit.

Eleonora Vitol noted that such an approach was already confirmed in legislation. One of the former edition of Art. 9.1 of the Law About a Mortgage allowed to apply to the loan agreement signed between individuals (not entrepreneurs), some provisions of the Consumer Credit Act. Especially those which concern a restriction of the overall cost of a loan depending on the average market values calculated by the Bank of Russia for certain categories of loans.

Moreover, it was a discussion about the possibility of creation of an interest-free deposit and O.M. Ivanov paid attention that today more than 50% of deposits are transferred to bank accounts which offsets a difference between them.

Rimma Chichakyan described the French experience where the negative interest rate used on purpose to liquidate the consequences of the rise of the Swiss franc against the euro. But this category of agreements was not accepted by the legal community. Moreover, the bank has an economic benefit from the deal with a negative interest rate on the credit.