of August 14, 2001 No. D12/107
Recognition unconcluded agreements of pledge
The board of judges of the Supreme Economic Court of Ukraine considered according to the procedure, the provided item 8 of Final and transitional provisions of the Law of Ukraine "About modification of the Arbitral Procedure Code of Ukraine" of 21.06.2001 N2539-III, protest of the deputy attorney general of Ukraine on the resolution of judicial board on review of decisions, resolutions of the Supreme Arbitration Court of Ukraine of 29.06.2000, the resolution of 21.02.2000 and the decision of 29.11.99 of Arbitration Court of the Dnipropetrovsk region in case ND12/107 on the claim of JSC A... to commercial bank "P"... about recognition of the agreement unconcluded.
The decision of Arbitration Court of the Dnipropetrovsk region of 29.11.99 on case ND12/107 satisfies the claim of JSC A... to CB P... about recognition unconcluded agreements of pledge of real estate N 50218D of 12.01.98 and the supplementary agreement to it of 19.03.98.
The decision is motivated by what in the controversial agreement of pledge and the supplementary agreement to it, between the parties is not reached consent on essence of the requirement provided with pledge and its size, i.e. the purpose of credit line and the amount of interest payment which is the essential term of the contract that entailed emergence of this dispute is not specified. The reference of the defendant that the agreement of pledge is recognized as the concluded judgment on case ND12-50 between the same parties is not taken by court into account as the fact of the conclusion of the agreement was not determined by court.
The resolution on review of the decision according to the procedure of supervision of 21.02.2000 the chairman of Arbitration Court of the Dnipropetrovsk region Plevako V. I. the decision of 29.11.99 on case ND12/107 is left without changes.
The resolution is motivated that in defiance of Art. 12 of the Law of Ukraine "About pledge" in the controversial agreement of pledge the size of percent and penalty fee under the agreement of crediting, payment due date of percent is not specified. Besides, according to terms of the contract of pledge pledge provides requirements which can "arise in the future (Item 2 of the agreement of pledge), at the same time in defiance of Art. 3 of the Law of Ukraine "About pledge" there is no coordination concerning the amount of providing future requirements and consequently, the controversial agreement of pledge was not signed. In the resolution the chairman of justices specified conclusion inaccuracy in the judgment about determination of the purpose on which the loan, is granted by the essential term of the contract of pledge as Art. 12 of the Law "About Pledge" does not provide it.
During review of the decision the court did not take into account the reference of the defendant to item 9 of the controversial agreement of pledge according to which due to pledged property the requirement in full, including on percent and penalty fee as this circumstance does not exclude obligation of requirements of Art. 12 of the Law "About Pledge" concerning need of coordination of all essential requirements of the agreement of pledge is met. On the contrary, this circumstance demonstrates that interest payment and penalty fee is the essential term of the contract of pledge as it is provided with pledge subject.
The reference of the defendant that the decision on case ND12/50 of 11.08.99 established fact of the conclusion of the agreement of pledge, the chairman of justices is not taken into account as agreement cancelation of pledge of N50218D of 12.01.98, in connection with the termination of the credit agreement was subject of action on this case. At the same time the matter of fact of the conclusion of the agreement of pledge was not researched, assessment was not given to this circumstance.
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