1. 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 to the lender the same amount of money (loan amount) or an equal number of other things of the same kind received by him and quality (Article 807 of the Civil Code of the Russian Federation). The loan agreement is considered concluded from the moment of transfer of money or other things. The objects of civil rights include things, including money and securities, other property, including property rights; works and services; information; results of intellectual activity, including exclusive rights to them (intellectual property); intangible benefits (Article 128 of the Civil Code of the Russian Federation). Under a loan agreement, money and other things defined by generic characteristics can be transferred.
Securities refer to things and are defined by a generic attribute with money. The bill refers to securities. Article 143 of the Civil Code of the Russian Federation determines that securities are: government bond, bond, bill, check, deposit and savings certificates, banking savings book bearer, bill of lading, shares, privatization securities and other documents that are classified as securities by securities laws or in the manner prescribed by them. The Civil Code of the Russian Federation does not indicate whether it should be its own bill or a bill of a third organization. The main thing is that the relations of the parties on a bill of exchange do not contradict the legislation on a transferable and promissory note. From this we can conclude that under a loan agreement, the lender can transfer to the borrower a promissory note of both a third organization and his own.
The question of which bills of exchange can be considered things of the same kind and quality is not regulated by law.
Thus, bills of exchange are things defined by generic characteristics, and, therefore, a contract for a loan of bills of exchange is theoretically possible.
However, such an agreement would be lawful subject to the simultaneous observance of following conditions:
the subject of the said agreement may be the transfer by one party (the lender) to the other party (the borrower) of a certain type of bills, and the borrower, in accordance with the subject of the said contract, undertakes to return to the lender an equal number of bills of the same kind and quality;
the subject of the contract may be the transfer of only several (and not one) bills of exchange;
due to the fact that the legislation does not establish which bills of exchange can be considered things of the same kind and quality, the parties to the contract should determine this directly in the contract.
It follows from the foregoing that the return of money under a bill of exchange loan agreement or the repayment of counter obligations is impossible based on the very definition of a loan agreement. The subject of a bill of exchange loan agreement or a contract for the sale of a security cannot be the drawer's own bill of exchange, since for him, according to Art. 815 of the Civil Code of the Russian Federation, a bill is not property (a thing, security), but a document certifying an unconditional obligation to pay, upon the expiration of the period stipulated by the promissory note, the amounts of money received on loan.
In relations between the drawer and the first holder of a bill related to the issuance of a bill, the bill cannot be considered as an object of a material nature. Provisions on the sale and purchase of securities (bills) do not apply to transactions underlying the issuance of bills of exchange. When issuing (drawing up and handing over) a bill of exchange, there is no transfer of a thing and no assignment of property rights certified by a document, but the establishment of a bill of exchange obligation, its subject composition and essence are determined.
2. According to Art. 815 of the Civil Code of the Russian Federation, the issuance of a bill of exchange in accordance with the agreement of the parties by the borrower is a certificate of the obligation of the drawer or other payer specified in the bill to pay the borrowed funds upon the expiration of the period stipulated by the bill. In the situation under consideration, the bill was issued by the lender, and not by the borrower, so we are talking about a loan agreement for a thing - a security.
For the purpose of calculating income tax, cash or other property transferred under a loan agreement, as well as funds used to repay it, are not taken into account when determining tax base on income tax (clause 12, article 270 of the Tax Code of the Russian Federation). Thus, for organization C, expenses in the form of repayment of obligations under a loan agreement are not taken into account for the purpose of calculating income tax.
If the loan agreement provides for the accrual of interest, then these interest are included by the organization in the non-operating expenses taking into account the features provided for by Art. 269 ​​of the Tax Code of the Russian Federation (clause 2, clause 1, article 265 of the Tax Code of the Russian Federation).
If the promissory note is transferred to organization C under a sale and purchase agreement, then we are talking about a security sale and purchase agreement, i.e. financial investments. According to paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under a sales contract, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it. In accordance with Art. Art. 488 and 489 of the Civil Code of the Russian Federation, the contract of sale may provide for payment for goods on credit or in installments.
Implementation on the territory Russian Federation securities are not subject to VAT, therefore, VAT deduction in this case is impossible due to the absence of the tax itself (clause 12, clause 2, article 149 of the Tax Code of the Russian Federation).
Funds directed by the organization to repay the value of a bill under a sale and purchase agreement ( financial investments are not the subject of the organization's activities), subject to the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation (expenses must be justified, documented (including expenses incurred outside the Russian Federation and confirmed by documents drawn up in accordance with the legislation of a foreign state), economically justified, their assessment is expressed in monetary form, and expenses are made for the purpose of generating income) are included in other expenses related to production and (or) sales (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation).
3. The term for the return of the subject of the loan agreement, as well as the period for deferral (installment plan) of payment, is not limited by civil law. The tax legislation does not establish any features of taxation depending on these terms.
Summarizing the above, we can draw the following main conclusions:
the contracts under consideration from the point of view of civil and tax legislation are lawful and equal;
In practice, a promissory note loan agreement is difficult to implement and has no advantages over a promissory note sale and purchase agreement with a deferred (installment plan) payment, and therefore its use in economic practice has not received any wide distribution.
S. Efremova
ACG "Balance plus"
Signed for print
05.10.2005
"Financial newspaper", 2005, N 40

CONTRACT
a loan with a bill of exchange

date and place of signing

We hereinafter refer to __ as the "Lender", represented by _________________, acting __ on the basis of _________________, on the one hand, and _________________, hereinafter referred to as the "Borrower", represented by _________________, acting __ on the basis of _________________, on the other hand, collectively referred to as the "Parties", and individually, the "Party", have entered into this agreement (hereinafter referred to as the Agreement) as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. The Lender transfers to the Borrower a promissory note (or: a transferable) promissory note in the amount of ______ (____________) rubles (hereinafter referred to as the "Loan Amount"), and the Borrower undertakes to return the Loan Amount to the Lender and pay interest on it within the terms and in the manner prescribed by the Agreement.

1.2. Details of the bill to be transferred:

1.3. The Lender is obliged to transfer the bill of exchange specified in clause 1.1 of this Agreement no later than "___" __________ ____ under the Transfer and Acceptance Certificate, which is an integral part of this Agreement.

1.4. The loan amount is provided for a period of up to ___________________.

1.5. The loan amount is considered returned at the time of _________________ (crediting of the relevant Money to the Lender's bank account/depositing the relevant funds to the Lender's cash desk/return of the promissory note.

1.6. Lender __________ (does not give / gives) on early return Loan amounts and interest additional receipt The borrower's written approval to this effect.

2. PROCEDURE FOR CALCULATION AND PAYMENT OF INTEREST

2.1. For the use of the Loan Amount, the Borrower shall pay interest to the Lender at the rate of _____ percent per annum.
The amount of these interest and interest on the bill (clause 1.2 of this Agreement) may differ.

2.2. Interest is accrued from the day following the day of transfer of the promissory note (clause 1.3 of this Agreement) until the day of repayment of the Loan Amount (clause 1.5 of this Agreement), inclusive.

2.3. Interest for the use of the Loan Amount shall be paid on _____________________ (no later than the _____ day of each month, starting from the month following the month in which the Loan Amount was granted (clause 1.2 of this Agreement). Interest accrued for the last period of using the Loan Amount shall be paid simultaneously with the return of the Loan Amount /simultaneously with the return of the Loan Amount/in accordance with the Interest Payment Schedule, which is an integral part of this Agreement (Appendix No. 1)).

3. RESPONSIBILITIES OF THE PARTIES

3.1. For untimely repayment of the Loan Amount (clause 1.3 of this Agreement), the Lender has the right to demand payment of ____________________ (interest) from the Borrower in the manner provided for in clause 1, article 811, clause 1, article 395 of the Civil Code of the Russian Federation (regardless of the payment of interest provided for in clause 2.1 of this Agreement / penalty (penalty) in the amount of _____ percent of the unpaid amount for each day of delay).

3.2. For violation of the interest payment deadlines (clause 2.3 of this Agreement), the Lender has the right to demand from the Borrower payment of a penalty (penalty) in the amount of _____ percent of the amount not paid on time for each day of delay.

3.3. The collection of penalties and interest does not relieve the Party that violated this Agreement from the performance of obligations in kind.

3.4. In all other cases of non-fulfillment of obligations under this Agreement, the Parties shall be liable in accordance with the current legislation of the Russian Federation.

4. FORCE MAJOR

4.1. The Parties are released from liability for non-fulfillment or improper fulfillment of obligations under the Agreement in the event of force majeure, that is, extraordinary and unavoidable circumstances under the given conditions, which are understood as: __________________ (prohibited actions of the authorities, civil unrest, epidemics, blockades, embargoes, earthquakes, floods, fires or other natural disasters).

4.2. In the event of these circumstances, the Party is obliged to notify the other Party within _____ days.

4.3. Document issued by ____________________ (Chamber of Commerce and Industry, authorized government agency etc.) is sufficient evidence of the existence and duration of force majeure.

4.4. If force majeure circumstances continue to operate for more than _________________, then each Party has the right to terminate the Agreement unilaterally.

5. DISPUTES RESOLUTION

5.1. The Parties will strive to resolve all possible disputes and disagreements that may arise under the Agreement or in connection with it, through negotiations.

5.2. Disputes not settled through negotiations are referred to the court in the manner prescribed by the current legislation of the Russian Federation.

6. AMENDMENT AND EARLY TERMINATION OF THE AGREEMENT

6.1. All changes and additions to the Agreement are valid if made in writing and signed by both Parties. The relevant additional agreements of the Parties are an integral part of the Agreement.

6.2. The Agreement may be terminated early by agreement of the Parties or at the request of one of the Parties in the manner and on the grounds provided for by the current legislation of the Russian Federation.

7. FINAL PROVISIONS

7.1. The Agreement is made in two copies, one for each of the Parties.

7.2. Attached to the Agreement:
Interest payment schedule (Appendix No. 1) (if you select the appropriate condition under clause 2.3 of the Agreement).

The act of acceptance and transfer of the bill.

Making a loan today involves drawing up a special agreement. One of the most frequently asked questions of lawyers is the following - is it possible to conclude a loan agreement with a promissory note? The issue of the use of securities is considered in sufficient detail in local legislation.

Dear readers! The article talks about typical solutions legal issues but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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General provisions

According to the article, the lender must transfer to the borrower an item that has certain generic characteristics.

Moreover, it should be noted that items that can be appropriately transferred on credit must have certain characteristics. These are some measures, weight, or something else.

Accordingly, such characteristics imply generic characteristics. The security itself (bill) as such has certain details.

According to the legislation, those in a particular case are generic features.

Accordingly, the securities loan agreement "has the right to exist." It is possible to conclude such a contract in accordance with the legislation in force in the Russian Federation.

But again, you need to carefully familiarize yourself with all the intricacies of the process, design. All of them are defined by legal documents.

What it is

A promissory note loan agreement is a special agreement formed in a certain form and at the same time implying the transfer of some valuables into temporary ownership.

Accordingly, securities are understood as the object of such a transaction. The main purpose of concluding this kind of contract is precisely to obtain some profit.

The cost of paper directly depends on its type and many other factors.

According to Civil Code In the Russian Federation, a securities loan agreement does not have a specific standard form that is rigidly established at the legislative level.

According to the legislation, legal organizations have the right to independently draw up this type of document. But at the same time there is a list of items, the presence of which in the contract is strictly mandatory.

All the subtleties of a particular contract will need to be dealt with in advance.

Usually, a variety of complex, difficult situations, controversial issues arise only because of a banal misunderstanding by a citizen of the terms of this type of agreement.

If possible, these should be resolved out of court.

If this is not possible for some reason, then you need to go to court at the place of registration of the defendant. At the same time, the contract itself must be drawn up within the framework of the law.

If there are any violations, then the securities loan agreement may be invalidated partially or completely. However, this will not release the parties from certain obligations.

Between whom is

Various subjects can act as parties to an agreement that can enter into an agreement of this type:

Accordingly, it is necessary to take into account certain differences in the occurrence of such relations between different subjects of law.

For example, individuals and individual entrepreneurs are responsible for all their obligations with personal property.

This moment is determined by law. At the same time, things are somewhat different with individuals.

It is also important to consider that a loan agreement can only be drawn up with a capable, adult individual.

In all other cases, if a citizen is not of age, his interests must be represented by some authorized representative.

Any citizen can be such - his, otherwise. In turn, there are a number of other subtleties and features associated with the execution of a loan agreement.

Various other requirements may be established for the parties to an agreement on the provision of securities for temporary use.

In each case, they are determined individually by the parties to the agreements themselves. With such a moment it will be necessary to deal with it in advance.

Where to go

Drawing up a bill of exchange loan agreement can be carried out in various ways:

1. On one's own.
2. With the help of a qualified lawyer.
3. Using the services of the online service.

In fact, there are no difficulties in drawing up such an agreement. But it is important to consider that the process itself has some technical features.

If mistakes are made, this can lead to quite serious troubles. Until the trial.

Therefore, it is best to familiarize yourself in advance with all the intricacies of drafting, as well as a sample agreement between legal entities.

The way out is to contact qualified lawyers who specialize in drafting such contracts and their conclusion.

Thus, the probability of making mistakes will be reduced to the very minimum.

On the this moment there are a number of different companies working in this direction, specializing in this. But before contacting any particular one, it will be necessary to study the reviews.

Since today in this direction there is a very large number of scammers. The choice should be made in favor of companies that have been operating for a long time.

Thus, the likelihood of problems will be minimized. If both of the indicated options are not suitable for some reason, the way out will be to use online services.

With the help of those, it will be possible to obtain a high-quality document at the output with a minimum investment of time.

Separately, it is worth noting that in some cases the contract must be notarized. In such a situation, there will be additional costs.

First of all, precisely because of the need to pay technical work specialist. The cost of registration and certification of such an agreement can vary greatly.

The price is influenced by many different factors. First of all, this is the volume of the document, the cost of the goods and the city in which the registration takes place.

Drawing up a commodity loan agreement is one of the most milestones. Therefore, it is necessary to carefully understand all the subtleties of the process. In this way, some difficulties will be avoided.

First of all, this concerns the omission of certain mandatory sections. Obtaining advice in the absence of experience in concluding such contracts is mandatory. In this way, a variety of difficulties can be avoided.

Promissory note loan agreement

A promissory note loan agreement can only be drawn up if a whole list of very different important conditions is met. All of these will need to be dealt with before it becomes necessary to sign one.

Moreover, it should be noted that such conditions should not violate the rights of any of the parties to the agreement. Otherwise, the contract will be declared invalid. You will also need to prepare a number of mandatory documents.

Drawing up a bill of exchange loan agreement can be carried out in a different mode. At the same time, a bill of exchange is often used as an ordinary pledge.

Accordingly, there are certain alternatives to the usual promissory note loan. Therefore, before using such an agreement, it will be necessary to weigh all the pros and cons. There are positive and negative sides.

The questions that need to be sorted out in advance include first of all:

• what are the conditions;
• the order of compilation;
• Attached documents;
• How does the return work?
• pros and cons;
• important conditions;
• what is regulated.

What are the conditions

Typically, a securities agreement includes the following basic sections:

• the name of the document itself;
• subject of the contract;
• the duration of this agreement - usually after the end of it, it will be necessary to return the securities;
• rights as well as obligations of various parties;
• the responsibility of the parties;
• grounds for terminating the agreement, the procedure for terminating the relevant agreement;
• dispute resolution;
• Force Majeure;
• other conditions;
• application list;
• addresses, details of the parties.

Such an agreement must necessarily include the sections presented above. Another important point- the contract must necessarily reflect the data on the bills themselves.

These include the following:

1. Series and number of the security.
2. Denomination value.
3. Amount.
4. Payment deadline.

Accordingly, again, at the very beginning of the contract, information must be reflected on the conditions under which the loan is provided.

These loan options include:

• loan terms;
• the amount lent against the security of the bill;
• the amount of the interest rate;
• other important conditions.

Accordingly, when the fact of signing under the terms of the contract implies the consent of the borrower with all the conditions reflected in the contract. In this case, you will need to familiarize yourself with all of them in advance.

The same is true for the lender. After the signing of the agreement, it will be necessary to fulfill all the obligations assumed on a bilateral basis.

Compilation procedure

The procedure for concluding a securities loan agreement is It is worth mentioning the question notarial registration. The process itself has some subtleties.

In this case, the procedure for drawing up a contract will look like this:

Contacting a notary, a qualified lawyer to draw up this type of document, will prevent a large number a variety of difficulties. First of all, it concerns violations of the law.

A qualified lawyer will provide detailed information about the registration of securities. This will prevent a variety of problems.

First of all, compliance legislative documents will help to avoid the increased attention from the side tax service. All the subtleties need to be dealt with in advance.

The amount of fines for non-payment tax collection large enough. It is also worth getting advice from a good accountant if possible.

Judicial practice on a securities loan agreement is very extensive and ambiguous. That is why the best solution would be to comply with legislative norms in order to avoid all sorts of difficult situations, problems.

In addition, litigation can lead to significant financial costs.

In some cases, it will be impossible to use securities for their intended purpose - to obtain benefits.

That is why, before you start drawing up such an agreement, you need to carefully analyze all the main subtleties, features of the process. It is also important to carefully study the legislation.

It will not be difficult to find a sample of filling out a loan agreement with a bill of exchange. There is an extensive list of various subtle points related specifically to the wording of individual points in this case.

Separately, it is worth noting that court decisions regarding a loan agreement are extremely ambiguous and sometimes represent contradictory situations.

Nevertheless, it is worth carefully studying all these points. Especially if there was controversial situation and a trial is required.

Attached documents

The main document, without which it will be virtually impossible to conclude the type of agreement in question, is precisely the actual confirmation of ownership.

Moreover, depending on the type of security, the document by which ownership rights are confirmed will differ.

Currently, these documents include:

In each case, the list of required documents may vary slightly depending on various factors.

Accordingly, again, in the absence of experience in drafting such agreements, it will be necessary to consult with specialists. Otherwise, certain difficulties may arise.

Paperless securities are a separate case. In this case, the record of ownership of specific securities will be established with a specific registry holder.

Again, loss of rights implies records by depositories. Each case regarding the conclusion of property rights is significantly different. That is why it will be necessary to carefully deal with all the subtleties in advance.

How is the return

The return of the bill is carried out in the standard way. A special document is drawn up, all data on the transferred securities are necessarily recorded.

The following information about them is indicated:

1. Series and number.
2. Nominal cost.
3. The total number of pieces.
4. Payment deadline.

Pros and cons

The use of a bill of exchange agreement has both its own positive points, as well as negative ones.

The main advantages include:

• the ability to set a relatively low interest rate;
• ease of making a deal;
• the minimum amount of time required to draw up a contract.

The disadvantages include a non-standard list of documents and certain aspects of concluding this type of agreement, depending on the type of bill. You will need to familiarize yourself with the main features in advance.

Video: invalidity of a promissory note loan agreement

Important nuances

The main return parameter is the period of time during which the return of securities is carried out.

At the moment, there are a lot of very different subtleties associated with the return.

Conditions in each case are discussed on an individual basis and should be detailed in the loan agreement.

What is regulated

Main regulatory documents, which covers the issue of the use of a bill, is considered in the Federal Law:

"AKDI "Economics and Life", N 7, 2001

The multifunctional and universal legal nature of bills is constantly in the field of view of jurists. However, when discussing the peculiarities of bill circulation, they often go into theoretical jungle and forget about the very real problems of using bills of exchange in economic circulation. Meanwhile, the lack of due attention to the issues of registration of transactions with bills of exchange leads to the fact that in practice legally incorrect, and sometimes simply illiterate contracts are concluded, causing accounting errors. At the same time, such negative manifestations can be avoided with a clear understanding of the legal nature of operations with bills of exchange, which, along with the correct execution of contractual relations, is the key to avoiding distortions in accounting and taxation.

Today's material is just devoted to the topic of contractual regulation of bill circulation and legal qualification of civil - legal transactions using bills of exchange. It seems that recommendations on how to properly qualify and formalize certain relations in which bills are used will be of interest primarily to practitioners responsible for the correctness accounting and taxation of operations of business entities.

* * *

It is believed that there were no historical prerequisites for the emergence and distribution of bills of exchange in Russia, since the trade turnover was characterized by relative stability and did not experience the need for exchange, transfer or credit. money supply. But the long-term transformation of political, social and economic relations led to the fact that the bill, along with mutual settlement, barter and payment in kind in modern Russian economy became the universal financial instrument, which allows economic entities to survive in conditions of widespread chronic shortage of working capital.

If initially promissory notes were used mainly by banking structures in order to raise funds, then since 1996 (since the introduction of part two of the Civil Code of the Russian Federation), this flexible instrument of financial and economic relations has been used without restrictions by all business entities. At the same time, due to the universal nature of the bill, it acts simultaneously as a method of lending, and as a means of payment, and as a form of accumulation.

Modern Russian business and law enforcement practice has developed a number of agreements that formalize transactions related to the use of promissory notes. Depending on whether the bill is used as a thing (security) (Article 143 of the Civil Code of the Russian Federation) or an obligation (Article 815 of the Civil Code of the Russian Federation), this or that procedure is applied legal regulation.

It is important to note that the bill itself is a sufficient basis for making a payment, and therefore the conclusion of any special agreements that would act as additional grounds for making payments on the bill is not required. Nevertheless, the specifics of Russian entrepreneurship predetermined the emergence and widespread use of agreements regulating the circulation of bills.

Such contracts reflect the reason for the appearance of the bill in circulation, explain the essence of the relations that have arisen and serve as the basis for the transaction using the bill. It should be noted that the conditions relating to the use of bills of exchange may also be found in other contracts, the subject of which is not exclusively bill issues. for instance, the condition of the contract of sale on payment for goods with a deferred (installment plan) payment by providing a bill of exchange by the buyer.

* * *

The movement of a bill starts from the moment it is issued to the first bill holder and ends with presentation for payment and payment itself. At all stages of the circulation of a bill in economic circulation, various agreements are concluded between the participants in "bill relations" that regulate issues:

1. the appearance of a bill in circulation;
2. transfer (circulation) of a bill;
3. issuing a guarantee (aval) on a bill of exchange, giving an acceptance (promise to pay), participating in mediation;
4. termination of bill obligations;
5. ways to ensure the fulfillment of bill obligations;
6. conditions and amount of liability for violation of bill obligations, etc.

It should be noted that contracts related to the use of bills of exchange are not regulated by the norms of special bill of exchange legislation and are subject to regulation by civil law. This conclusion follows from Article 16 of Appendix 2 to the Geneva Convention "On the Uniform Law on a Transferable and Promissory Note" dated 06/07/1930, according to which issues related to the grounds for issuing a bill are outside the Uniform Bill of Exchange Law. In this regard, the basis for the issuance of a bill can be any legal civil - legal transaction.

Since the Law does not establish a specific reason for which a promissory note may be issued, the rights certified by the promissory note will be valid regardless of what legal fact (what transaction) led to its issuance.

Of course, practitioners are concerned about the correct legal execution of all contracts, where a promissory note appears as a subject or a separate condition. But in this article we will focus only on those that introduce the bill into economic circulation, and those that allow the bill as an independent object of civil rights to circulate in it.

Contracts related to the appearance of a bill in circulation

The introduction of a bill of exchange into economic circulation is always associated with the issuance of a bill to the first legal holder. The legal facts underlying the issuance of a bill may be different, but before proceeding with their consideration, let's pay attention to two points.

Firstly, a bill of exchange can be issued by any legal entity or capable individual. This is due to the fact that a bill is just a special form of an obligation to make a payment (or an offer to a third party to make such a payment), and the law does not contain any prohibitions own obligations into such a form.

Secondly, the establishment of promissory notes is connected with the transfer (delivery) of the bill to the first holder, and not with its preparation. Since the bill is supposed to be an order security (clauses 11, 77 of the Regulations on a transfer and promissory note, approved by the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR of 08/06/1937 N 104/1341; hereinafter - the Regulations on bills), the obligation to issue it is considered fulfilled when handing over a bill to the holder of a bill and making an endorsement on it - an endorsement. Therefore, the emergence of the legal rights of the bill holder is possible only when such an inscription is made, which transfers all the rights arising from the bill to the person in whose favor such an inscription is made (clause 14 of the Promissory Notes Regulations).

So, the following agreements can be the grounds for issuing bills of exchange to the first purchasers:

1. loan agreement;
2. purchase and sale agreement of a bill;
3. agreement with the condition of deferred payment, drawn up by a bill of exchange.

According to Article 815 of the Civil Code of the Russian Federation, the promissory note certifies the unconditional obligation of the borrower or other person specified in the promissory note to repay the amounts of money received on loan upon the expiration of the period specified in the promissory note. The purpose of the bill when it is issued to the first legal holder is to certify the obligations of the borrower to repay the loan on time and on the terms specified in the bill.

Thus, the obligations of one person to transfer money, and the other - to return them, certifying this obligation with an issued promissory note, represent obligations arising under a loan agreement. Therefore, in this case, the bill is used as a way of registration of loan relations between the drawer (borrower) and the first bill holder (lender).

As noted above, the bill itself confirms the existence of a loan relationship between the drawer and the holder of the bill. But in practice, for greater persuasiveness, confidence in the counterparty, stability of legal relations, additional agreements are concluded. Ideally, these should be loan agreements, under the terms of which one person transfers money, and the other issues a bill of exchange to confirm the obligation to return them. The form of such agreements must comply with the form established for loan agreements. According to paragraph 1 of Article 808 of the Civil Code of the Russian Federation, a loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the established minimum wage, and if the lender is entity- regardless of the amount. In confirmation of the loan agreement and its terms, a borrower's receipt or other document certifying the transfer by the lender of a certain amount of money (clause 2 of article 808 of the Civil Code of the Russian Federation) may be presented.

Nevertheless, in practice, the issuance of promissory notes to the first bill holders, by analogy with the issue of emissive securities (shares and bonds), is extremely often formalized by purchase and sale agreements.

Meanwhile, the design of the purchase and sale agreement assumes that the buyer takes ownership of the goods from the seller and pays in return for its purchase price (a certain amount of money, price) (clause 1 of article 454 of the Civil Code of the Russian Federation). Accordingly, when buying and selling a bill as a security (thing), a situation should arise in which one party transfers the bill to the other party, and after actually receiving the bill, it pays a certain amount of money (the price of the bill) for it. In practice, it is done differently - first, funds are paid, and then a bill is issued. Meanwhile, a bill of exchange until the moment of delivery to the first holder is not yet a document certifying a monetary obligation. The drawer can draw up a bill and even make an endorsement on it, however, before the actual delivery of the bill to the person to whom the endorsement was made, and the signing of the act of acceptance and transfer, the bill only indicates intentions to issue it to a third party, but not about the accomplished fact of such a transfer . In addition, the loan agreement refers to the type of real agreements, since it is considered concluded from the moment the subject of the loan is actually transferred (clause 1, article 807 of the Civil Code of the Russian Federation). In other words, the alienation of money into ownership with the intention of receiving it back indicates the existence of relations under a loan agreement.

Thus, an agreement that provides for the obligation of one party to pay money to the other and the obligation of the party that received the money to issue a bill of exchange (a document certifying the obligation to pay a sum of money) is a loan agreement, the receipt and return of which are certified by a bill. And vice versa, an agreement providing for the obligation of one party to transfer a bill of exchange (property) to the other party and the obligation of the other to pay a sum of money for the received bill should be qualified as a bill of sale contract.

Such a construction of contractual relations is likely when a party provides a bill of exchange without expecting to receive any property equivalent in return. In other words, a person issues a bill of exchange, certifying his obligation to pay a certain amount of money on it upon the due date stipulated in the bill. In this case, we have before us a transaction of donation of a bill, according to which the drawer assumes a promise to transfer money as a gift in the future tense (upon presentation of the bill for payment) (clause 1 of article 572 of the Civil Code of the Russian Federation).

However, when donating a bill of exchange, one should not forget that a donation between commercial organizations, with the exception of ordinary gifts, the value of which does not exceed 5 minimum wages, is prohibited (clause 4 of article 575 of the Civil Code of the Russian Federation), and therefore a transaction under which a bill is transferred without consideration is void.

The issuance of a bill may be conditioned by the provision of a deferral (installment plan) of payment for the supply of goods, performance of work or provision of services. The condition of the agreement on deferment (installment plan) of payment for goods (works, services) is called commercial loan, to which the rules of Chapter 42 of the Civil Code of the Russian Federation governing relations under a loan agreement apply.

So, in the contract, the parties may provide that in exchange for the delivered goods, work performed or services rendered, the buyer or customer issues a bill of exchange (we are talking only about own bill buyer (customer). In this case, the issuance of a bill of exchange formalizes the fact of deferred payment under the contract, without repaying the monetary obligation. Such a construction of relations indicates the existence of one of the types of contracts related to the sale of goods (works, services) (for example, purchase and sale, contract, provision of services, etc.), containing a condition on a deferred payment, drawn up by a bill of exchange (Art. .st.815, 823 of the Civil Code of the Russian Federation).

It should be noted that the obligation of the buyer (customer) under such contracts is terminated from the moment the payment is made on the bill. The holder of a bill (seller, executor) may not wait for the maturity of the bill and dispose of the bill by alienating it to a third party. In this case, the obligation of the buyer (customer) to pay for goods (works, services) will also be considered terminated (unless the alienation of the bill to a third party does not imply subsequent recourse to the alienator). V tax legislation(for example, in paragraph 2 of Article 172 of the Tax Code of the Russian Federation) the obligation of the buyer - drawer to pay for goods (works, services) is considered terminated only after the actual payment of funds under the bill.

Contracts related to the circulation (transfer) of bills of exchange

As already noted, the universal legal nature of a bill allows it to simultaneously act both as a way to formalize an obligation, and as a kind of thing - a security (Article 143 of the Civil Code of the Russian Federation).

The last property of the bill allows it to participate in civil circulation and be freely alienated or transferred in the order of universal succession from one person to another (clause 1 of article 129 of the Civil Code of the Russian Federation). The features of the circulation of bills are that, by virtue of clause 3 of article 146 of the Civil Code of the Russian Federation, rights under order securities (which include bills) are transferred by making an endorsement on this paper - endorsement. An endorsement made on a security transfers all the rights certified by this security to the person to whose order the rights under the security are transferred.

The grounds for the circulation of promissory notes already issued are the same contracts that underlie their issuance to the first holders. The contract may provide for the obligation of the person to transfer the promissory note he has to a third party in exchange for money, other property or free of charge.

If the agreement provides for the transfer of a bill in exchange for money, then this is an agreement for the purchase and sale of a bill. If, under the terms of the contract, a bill of exchange is transferred in exchange for a thing (property, securities, property rights and other property), then the parties have concluded a contract for the exchange of a bill. If the transfer of the bill is made without the expectation of receiving a property equivalent in return, then a donation transaction has been concluded between the parties.

It is important to note that for the correct attribution of the contract for the purchase of bills of exchange to one type or another, it does not matter in what sequence the parties fulfill their obligations: first the bill is transferred, and then the equivalent, or vice versa. The fact is that the subject of any of these three agreements is already a real-life thing - a bill, which means that for the transfer of bills on the basis of contracts of sale, exchange or donation, it is not important to follow the procedure for transferring rights under it. Since the promissory note is supposed to be an order security, the obligation to transfer it is considered fulfilled subject to the delivery of the promissory note with an endorsement made on it in favor of the acquirer (clause 11 of the Promissory Note Regulations).

There is a point of view that a bill can be the subject of any civil - legal transaction. In this regard, the practice of concluding so-called bill lending agreements has become widespread. This type of agreement is used mainly by banking structures, although there are situations when it is used to formalize relations between business entities that have a common legal capacity.

The essence of such a transaction is that a loan agreement (loan agreement) is concluded between the parties, according to which the lender (lender) provides a loan (loan) by issuing a promissory note for the amount of the loan (loan). The borrower can actually receive funds either when the creditor (lender) makes payment on the bill, or when the bill is alienated to a third party. When the credit (loan) matures, the creditor requires the first purchaser of the bill (borrower) to repay the credit (loan) and pay interest on it.

The legal nature of such contracts is different due to their different legal registration. The most common is an agreement under which the loan is provided by promissory notes of the lender. The repayment of the loan is made either in money or in the lender's bills of exchange, or one or the other.

The first thing to pay attention to is that this agreement definitely not credit. By virtue of clause 1 of article 819 of the Civil Code of the Russian Federation on loan agreement bank or other credit organization provides the borrower with the property on the terms of the return of funds. Since a loan can only be issued in money (with the exception of commodity credit), an agreement on the provision of a loan with promissory notes cannot be considered a credit agreement.

If the contract provides for the obligation of the borrower to return the loan in the form of a bill of exchange in cash, then such an agreement should be qualified as a contract for the purchase and sale of a bill with a deferred payment. Under such an agreement, the debtor pays money for the actually completed transaction for the purchase of a bill on the terms of a commercial loan.

If the contract provides for the obligation of the borrower to repay the loan at his choice, either in money or in promissory notes of the lender, then it should be considered a contract of a special kind, the type of which is not established by civil law.

If the agreement provides for the repayment of a loan by transferring its promissory notes to the lender free of charge, then such an agreement should be recognized as a loan agreement, since in accordance with paragraph 1 of Article 807 of the Civil Code of the Russian Federation, a loan received in things is returned in things of the same kind and quality.

However, it is difficult to agree with the legitimacy of concluding such an agreement for the following reasons. The subject of a loan agreement can only be things defined by generic characteristics (clause 1, article 807 of the Civil Code of the Russian Federation). Such things are characterized by number, weight, other units of measurement, i.e. are a certain number of things of the same kind. Things defined by generic characteristics can be alienated, change the composition and natural form, provided that they are preserved total cost. Different from them individually - certain things are legally irreplaceable, individualized and isolated, in connection with which the obligation, the subject of which is such a thing, terminates in the event of its destruction.

Recognizing the admissible loan of promissory notes, one will automatically have to admit that a promissory note is a thing defined by generic characteristics. At the same time, there are a number of circumstances indicating the opposite.

The essence of legal relations under a bill is to certify the obligation to return the amount of money (this is stated directly in Article 815 of the Civil Code of the Russian Federation). But such a restrictive understanding of the nature of the bill of exchange reduces the bill to an ordinary IOU, while the bill has very special properties.

Thus, the transfer of rights under a bill of exchange creates more guarantees for satisfying the requirements of the creditor in comparison with other similar obligations, and this happens according to the most simplified system. However, such guarantees, even for two bills of exchange identical in form and details, may be different.

for instance, bills of exchange may have a different number of endorsements, and different persons may be indicated in the endorsements. Since endorsers may also be among those liable, the guarantees of receipt of payment from the holders of these bills may be different.

It is also known that a bill is characterized by abstractness (unconditionality of payment, limitation of objections of persons obligated to a bill), and therefore the validity of a bill depends only on compliance with its form and required details. However, this property of the bill is not absolute. By virtue of clause 10 of the Promissory Notes Regulations, if a bill of exchange not filled by the time of issuance was filled in contradiction with the agreements that have taken place, non-compliance with these agreements cannot be opposed to the holder of the bill, unless he acquired the bill in bad faith or, while acquiring it, did not commit gross negligence . In addition, clause 16 of the Regulation establishes that if someone has lost possession of a bill of exchange due to any event, then the legal bill holder is obliged to return the bill, but only when he acquired it in bad faith or, while acquiring it, committed gross negligence.

Thus, it may happen that for two promissory notes of the same form, the creditor may either receive performance from the debtor (if the interested person does not prove the circumstances of bad faith or gross negligence of the drawer), or not receive it (if the interested person provides such evidence).

A situation may also arise when a person who signed the bill as a representative in excess of his authority becomes liable under the bill. Thus, in accordance with paragraph 8 of the Promissory Note Regulations, everyone who signed a bill of exchange as a representative of a person on whose behalf he was not authorized to act is himself liable for the bill. Meanwhile, the holder of a bill is not indifferent to who will be his debtor.

Consequently, the individuality of the bill is manifested not only in certain marks on it and in its text, but also due to the circulation history, which is individual for each bill. This allows us to conclude that a promissory note is an individually defined thing and the differences between one or another promissory note stem from the legal nature of this security.

Therefore, it must be recognized that the bill of exchange loan agreement is illegal in principle and its conclusion is contrary to the norms of civil law.

Treaty

"____"_____________ G.

open joint-stock company"Organization No. 1", represented by Director Ivanov I.I., acting on the basis of the Charter, and Closed Joint-Stock Company "Organization No. 2", represented by Director Petrov P.P., acting on the basis of the Charter, have concluded this Agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. OJSC "Organization No. 1" issues and transfers, and CJSC "Organization No. 2" takes ownership promissory notes JSC "Organization No. 1" in accordance with Appendix No. 1 to this Agreement, which is its integral part, and pays on the terms of this Agreement.

1.2. The total nominal amount of the bills is 150,000 (one hundred and fifty thousand) rubles 00 kopecks.

1.3. By agreement of the parties, the bills are valued at 143,386 (One hundred and forty-three thousand three hundred and eighty-six) rubles 00 kopecks.

1.4. Payment is made to the account of JSC "Organization No. 1" No. ____________________________.

2. OBLIGATIONS OF THE PARTIES

2.1. CJSC "Organization No. 2" undertakes to transfer the total amount of the transaction in accordance with clause 1.3. of this Agreement no later than 2 (two) working days from the moment of signing this agreement.

2.2. JSC "Organization No. 1" undertakes to issue and transfer, and CJSC "Organization No. 2" to take ownership of the items mentioned in clause 1.1. of this Agreement, the promissory note within a period not exceeding 2 (two) working days from the date of receipt of funds. The transfer of bills of exchange is formalized by an act of acceptance and transfer.

3. SPECIAL CONDITIONS

3.1. If CJSC "Organization No. 2" fails to comply with the conditions provided for in clause 2.1. of this Agreement, the Agreement is considered terminated, and JSC "Organization No. 1" is released from fulfilling its obligations under clause 2.2. actual agreement.

3.2. If CJSC "Organization No. 2" fails to comply with the conditions provided for in clause 2.2. of this Agreement, the bills of exchange are kept in JSC "Organization No. 1" until they are received by CJSC "Organization No. 2". No fee is charged for the storage of promissory notes of JSC "Organization No. 1".

4. FINAL PROVISIONS

4.1. The Agreement comes into force from the moment of its signing and is valid until its full implementation by the Parties, except for the case provided for in clause 3.1. actual agreement.

4.2. In everything that is not expressly provided for by this Agreement, the parties to the Agreement are guided by the current legislation.

4.3. This Agreement is made in 2 (Two) copies, one copy for each of the Parties having equal legal force.

4.4. All changes and additions to this Agreement are possible subject to the mutual consent of the Parties to the Agreement and are formalized by agreements to this Agreement made in the same form as the Agreement.

4.5. Attached to this Agreement the following documents:
- Appendix No. 1.

5. ADDRESSES AND DETAILS OF THE PARTIES TO THE CONTRACT

OJSC "Organization No. 1", TIN ___________, KPP __________
Legal address: ________________________________________________
The actual address: ________________________________________
account ____________________________ in _____________________________;
c / s ___________________, BIK _________________, OKPO _______, OGRN __________-

Tel.: _________, Tel. Fax: ___________-

CJSC "Organization No. 2", TIN________________KPP_____________PSRN____________
Legal address: ________________________________________________________________________
r / s ____________________________________ in _______________________________________
c/s ____________________________________, BIC ___________________________________
OKPO ________________________________, OKONH ________________________________

OJSC "Organization No. 1":

____________________

CJSC "Organization No. 2":
______________________