of June 27, 2019 No. 1
About application of the legislation by courts in case of the dispute resolution, arising from loan agreements
Having discussed court practice of the dispute resolution, arising from loan agreements, for the purpose of ensuring the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:
1. Draw the attention of courts that the correct and uniform application of the legislation in case of the dispute resolution, arising from loan agreements, is guarantee of protection of the civil laws and the interests of the parties of loan legal relationship protected by the law, it is designed to promote increase in efficiency of judicial protection of participants of civil circulation and ensuring execution of the obligations by them.
2. Courts need to mean that legal relationship according to the loan agreement are regulated by the Civil code of the Republic of Belarus (further - group of companies), the Decree of the President of the Republic of Belarus of December 21, 2017 No. 8 "About development of digital economy" (further - the Decree No. 8), the Presidential decree of the Republic of Belarus of June 30, 2014 No. 325 "About attraction and provision of loans, activities of the microfinancial organizations" (further - the Decree No. 325), the Presidential decree of the Republic of Belarus of May 5, 2006 No. 296 "About streamlining of use of financial resources of the state organizations and economic societies from shares of the state in authorized funds", and also other regulatory legal acts of the Republic of Belarus.
In cases when features of legal regulation of separate agreement types of loan are established by the decree or the presidential decree of the Republic of Belarus, regulations of group of companies are applied in the part which is not settled by these legal acts (Item 2 of Article 3 of group of companies).
3. Taking into account requirements of Article 760 of group of companies money, securities, and also other things determined by patrimonial signs can be the subject of the agreement of loan.
The foreign currency and currency values can be the subject of the agreement of loan in the territory of the Republic of Belarus only with observance of rules of Articles 141, of 142, of 298 groups of companies and the Law of the Republic of Belarus of July 22, 2003 No. 226-Z "About currency control and currency exchange control".
By provision of foreign currency loan the creditor has the right to demand from the borrower of loan repayment and interest for using by it in loan currency if legal acts or the agreement of the parties do not establish other.
In cases when under the terms of the loan agreement the amount equivalent to certain amount in foreign currency is subject to return, its collection is made by court in Belarusian rubles on the official rate of the corresponding currency established by National Bank of the Republic of Belarus on the date of decision if other rate or other date of its determination are not stipulated by the legislation or the agreement of the parties.
4. It is necessary to consider that the loan agreement is real and it is considered concluded after the date of transmission of money or other things if other is not established by legal acts.
The agreement on provision of loan in the future including signed in writing before date of transmission of subject of loan does not attract origin for the parties of the rights and obligations according to the loan agreement.
5. Draw the attention of courts that the loan agreement can be signed in oral or written form.
In cases when the loan agreement amount between citizens exceeds ten times the size of basic size which was at least established by the legislation and also when creditor is the legal entity, the loan agreement is signed in writing.
Non-compliance with written form of the loan agreement does not attract its invalidity, however owing to provisions of Item 1 of Article 163 of group of companies deprives of the party of the right in case of dispute to refer in the agreement confirmation and its conditions to the testimony.
In confirmation of the fact of the conclusion of the loan agreement the receipt of the borrower on receipt of certain sum of money or certain quantity of other things by it from the creditor or other document testimonial of origin between the parties of loan legal relationship (debt documents) can be provided.
6. Courts should mean that feature of the loan agreement is the obligation of the borrower to return to the creditor loan amount or equal quantity of the received things of the same sort and quality.
To return obligation of the borrower to the creditor subject of loan shall follow from the text of the agreement, the debt document or be confirmed by other proofs meeting the requirements of admissibility.
7. Draw the attention of courts that the creditor has the right from the borrower of percent to loan amount, except as specified, directly stipulated by the legislation (for example, Item 3 of Article 762 of group of companies) or the loan agreement.
The size of interest for using loan and procedure for their payment are determined by the loan agreement if other is not provided by acts of the legislation.
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