Problems of fulfillment of a monetary obligation in the light of reforming the civil legislation of Russia. Determination of the moment of fulfillment of obligations by the payer and credit institutions in case of non-cash payments A monetary obligation is considered fulfilled

Since July 1, 2015, changes have been made to the rules on the place of fulfillment of an obligation - the place of fulfillment of a monetary obligation to pay non-cash funds has been specified. This is the location of the bank (its branch, division) that serves the creditor, unless otherwise provided by law. According to the contract, the delivery of goods is carried out after receiving an advance payment. Does this mean that the place of fulfillment of the obligation to pay is the buyer's bank, and the moment of fulfillment of the obligation is the debiting of money from the correspondent account of the bank serving the buyer? In the case of delivery of goods on the terms of deferred payment, the place and moment of fulfillment of the obligation to pay are the supplier's bank and the transfer of money to the correspondent account of the bank serving the supplier?

Answer

An analysis of the Concept for Improving the General Provisions of the Law of Obligations of Russia, the Concept for Improving the General Provisions of the Law of Obligations of Russia and the Concept for the Development of Legislation on Securities and Financial Transactions, as well as draft amendments to Sections I and III of the Civil Code of the Russian Federation published on the website of the Supreme Arbitration Court of the Russian Federation, allows us to say that in terms of regulating monetary and non-cash payments, the reform of the legislation will not take place: the amendments are limited to the legalization of doctrinal structures developed in the second half of the 90s - early 2000s.

These constructions appeared due to the fact that the norms of the Civil Code of the Russian Federation did not take into account the essence of relations related to non-cash payments for monetary obligations. The constructions were supposed to painlessly link the "virtual" or "verbal reality" of the norms of the Civil Code with the objectively existing ("external") reality of many forms of cashless payments that turned out to be incomprehensible to the legislator of the last decade of the last century. They blurred the boundary between the norms of the Civil Code and the relations they did not take into account, and did not change or supplement the law. This is true, because the doctrine is not a source of domestic law. But the compromise nature of the doctrinal approaches now dressed as the norm does not allow filling the long-revealed gaps in the Civil Code of the Russian Federation in terms of regulating settlements on monetary obligations.

In the article, we consider only a number of issues related to the problems of fulfilling a monetary obligation, left unanswered by the draft new version of Section III of the Civil Code of the Russian Federation and not reflected in the Concept for the Development of Legislation on Securities and Financial Transactions (which should mean their absence in the draft new version as well). parts of the second Civil Code of the Russian Federation):

First, about the legal registration of non-cash payments as a way to fulfill a monetary obligation;

Secondly, about the inapplicability to non-cash payments of such an institution of money settlements as a place of fulfillment of a monetary obligation;

Thirdly, on determining the moment of fulfillment of a monetary obligation, depending on the form of non-cash payments;

Fourthly, about the method of protecting the creditor in a monetary obligation from the use by the debtor for settlements of an insolvent credit institution;

Fifth, about the problems of legal interest and interest for the use of other people's money.

1. Non-cash form of payment in terms of the proper fulfillment of a monetary obligation

(1) Practically any work that speaks of a monetary obligation in civil law, the first problem is the lack of a legal definition of it and the plurality of such definitions in the doctrine. In the domestic civil law doctrine, we meet definitions of a monetary obligation from the classical one (monetary obligation should be called an obligation, the subject of which is banknotes - L.A. Luntz), which excludes from the concept of proper execution any action other than the transfer of money, to "modified" in such a way that payment in a non-cash form also becomes proper execution ( for example, D.G. Lavrov, V.A. Belov).

The issue of legalizing the definition of a monetary obligation was not considered either by the Concept for Improving the General Provisions of the Law of Obligations in Russia, or by the Concept for the Development of Legislation on Securities and Financial Transactions. As a result, the Draft under consideration also does not offer (in our opinion, fairly) a legal definition of a monetary obligation.

But historically, the state attaches the importance of a legal means of payment to the subject of a monetary obligation (a means that, with a proper offer, repays a monetary obligation, regardless of the consent of the creditor to accept it in payment; refusal to accept which entails unfavorable consequences for the creditor defined by law (falling into arrears); depositing which in the manner and in compliance with the conditions specified in the law, terminates the monetary obligation).

By the 18th century there was a concept that the property of a legal tender receives a banknote by virtue of the prescription of the law, and the mere fact of issuing them into circulation by the state does not create a legal tender. What is the situation with the definition of legal tender by the current domestic legislation?

Paragraph 1 of Art. 140 of the Civil Code of the Russian Federation and Articles 27-30 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)", which establish the general provisions on the monetary system of the Russian Federation, indicate that property endowed with the property of legal tender is issued by the Bank of Russia in the form of bank notes and coins banknotes, the value of which, in accordance with Part 1 of Art. 75 of the Constitution of the Russian Federation, expressed in rubles.

(2) As in the case of a cash payment ("cash payment"), the consequences of a creditor's refusal to accept a non-cash transfer of funds in repayment of a monetary obligation are determined by modern legislation on the rules on the creditor's delay. This is due to the fact that legal systems have developed in which a non-cash payment, not being able by its nature to become a legal means of payment, repays a monetary obligation forcibly, regardless of the consent or disagreement of the creditor ( V.V. Vitryansky).

Thus, the wording of para. 2 p. 1 art. 140 of the Civil Code of the Russian Federation, according to which "Payments on the territory of the Russian Federation are made by cash and non-cash payments", as well as clause 2 of Art. 861 of the Civil Code of the Russian Federation ("Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a cashless manner " ) introduce non-cash transfer of funds as one of the forms of fulfillment of a monetary obligation by payment. (Similar norms are found in the Civil Code of Quebec - paragraph 1 of article 1561, paragraphs 1 and 2 of article 1564.This is similar to French. The law of October 22, 1940 (with add.), Establishing the obligatory use of checks or transfers for most payments in excess of 2 thousand francs. and wages in excess of 1,000 francs. - Savate R.)

This fits into the theory L.A. Luntza: law or legitimate force is capable of creating an extreme and coercive means of fulfilling a pecuniary obligation that was not legal tender. By virtue of the legislative establishment, a non-cash payment is a means of fulfilling a monetary obligation, and for decades, domestic civil law has known various ways to give a non-cash payment the value of an extreme and compulsory means of execution.

In the RSFSR, this was a direct coercion of the parties to carry out settlements exclusively in non-monetary form ( see Art. 830 OGZ 1961 and Art. 391 of the Civil Code of the RSFSR 1964). This is currently being done in the Russian Federation:

In relation to a loan obligation, by direct equalization of the transfer of money and the crediting of funds to the bank account of the lender as a way to return the loan amount ( paragraph 3 of Art. 810 of the Civil Code of the Russian Federation);

In the general case, by means of the possibility of establishing by law a ban on settlement in money or a limit (maximum) amount of such a payment ( paragraph 2 of Art. 861 of the Civil Code of the Russian Federation).

The implementation of the latter method for the second decade is an example of a long, habitual violation of the established order by law, in the absence of any visible obstacles to its observance.

(3) This can be illustrated only by a consistent display of legal acts that have changed (from 1992 to the present day), introducing restrictions on payments in money ("cash"). The volume of theses does not allow us to do this, but the audience will be given the opportunity to get acquainted with all the vicissitudes of regulating these relations. Briefly, the state of affairs is as follows.

If Art. 14 of the Law of the Russian Federation "On the Monetary System of the Russian Federation" obligated legal entities to carry out non-cash settlements in an amount exceeding the amount determined by the Government of the Russian Federation, then with the abolition of this law in April 1995, such a norm delegating the powers of the executive branch disappeared from Russian legislation. Moreover, the second part of the Civil Code of the Russian Federation, adopted in 1996, left the possibility of banning (or limiting) money settlements exclusively to the law.

Meanwhile, since September 1995, the Central Bank of the Russian Federation has set a limit on the amount of cash settlements, without even referring to paragraph 2 of Art. 861 of the Civil Code of the Russian Federation, and indicating as a justification for their powers: the request of the Government of the Russian Federation; decisions of the Board of Directors of the Bank of Russia and, finally, Art. 4 "On the Central Bank of the Russian Federation (Bank of Russia)", which does not contain the implied paragraph 2 of Art. 861 of the Civil Code of the Russian Federation restrictions on making payments in cash in the course of business activities.

(4) Therefore, we join those who do not consider legal the existing restrictions on the use of money in settlements ( L.A. Novoselova, K. Trofimov). How can this be fixed? One of two ways.

The first is the adoption of the corresponding, implied paragraph 2 of Art. 861 of the Civil Code of the Russian Federation of the federal law containing a ban on settlements in "cash" or limiting the amount of these settlements.

The second - by changing the wording of paragraph 2 of Art. 861 of the Civil Code of the Russian Federation, legalizing the current practice: "2. Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a non-cash manner. In the manner and amount determined by the Central Bank of the Russian Federation, R R Settlements between these persons may also be made in cash, unless otherwise provided by law.

The concept of the development of legislation on securities and financial transactions indicates that this issue was not considered, which means that we are unlikely to see this or a similar rule in the draft new version of part two of the Civil Code of the Russian Federation. The likely outcome will be the persistence of the situation of non-compliance by the Russian state with the imperative norm of the Civil Code of the Russian Federation, which has existed for more than a decade and a half.

2. The value of the place of fulfillment of a monetary obligation in non-cash forms of payment

(1) To make a cash payment, i.e. in order for the debtor to transfer from hand to hand banknotes for a stipulated amount, both the debtor and the creditor must be at the same place at the time when the execution of the monetary obligation is scheduled. That is, when paying a sum of money in money, the value of the spatial and temporal components coincide: in order not to fall into delay, both the debtor and the creditor must know where they should meet on the day the monetary obligation is fulfilled.

And since during non-cash payments the debtor does not transfer anything from hand to hand to the creditor, their spatial arrangement relative to each other has no effect on meeting the deadline for fulfilling the monetary obligation. Moreover, since non-cash payments are made by the actions of credit institutions serving the debtor and creditor, raising the question of the place of performance of a monetary obligation in non-cash payments is not only meaningless, but also misleading.

This is what determines the inapplicability to non-cash payments of the current par. 5 st. 316 of the Civil Code of the Russian Federation. Because of this, the new paragraph proposed by the Draft will not apply. 6 art. 316 of the Civil Code of the Russian Federation declaring that execution must be carried out " for a monetary obligation to pay non-cash funds - at the location of the bank (its branch, subdivision) in which the bank account is opened for the creditor". Let's illustrate this.

(1.1) Let the creditor's settlement account be opened in a bank subdivision (additional office), which cannot have a correspondent account. Based on the formula proposed by the Draft, the monetary obligation is fulfilled in the bank's additional office - at the location of the territorially isolated part of the commercial bank that maintains the current account of the business entity. And this means that a monetary obligation can be fulfilled only when funds are credited to the creditor's current account.

But this contradicts the almost unanimous opinion of recent years and judicial practice, and the doctrine that a monetary obligation is fulfilled at the time the funds are credited to the correspondent account of the bank servicing the creditor. In this case, contrary to the formula of the new paragraph 6 of Art. 316 of the Civil Code of the Russian Federation, the place of execution cannot in any way be the location of the additional office of the bank (i.e. its division), " in which the creditor has a bank account "!

(1.2) Let now the funds are transferred to the creditor's account opened in a bank that has neither sub-offices nor branches. For clarity, the bank is geographically located in one place - on the outskirts of the city, but its two correspondent accounts are open: one - in the RCC, located in the city center, and the second (NOSTRO) - in a commercial bank located in the same building as the RCC . The funds intended for crediting to the creditor's settlement account are credited to the bank (located on the outskirts of the settlement) to one of its correspondent accounts, which are opened in institutions located in the city center.

What is the place of fulfillment of a monetary obligation, if it is considered fulfilled at the time the funds are credited to the correspondent account of the bank servicing the creditor? Correspondent accounts are maintained outside the location of the bank in which the creditor has a current account, and this again excludes the wording of the new paragraph 6 of Art. 316 of the Civil Code of the Russian Federation!

(2) The absurdity of the situation indicates that the Civil Code of the Russian Federation is trying to solve a non-existent problem: the doctrine legalized by the Draft describes the relations associated with non-cash payments by categories that belong to payment in money.

What is the way out of this situation? We see three of them:

The first is to keep the proposed new paragraph 6 of Art. 316 of the Civil Code of the Russian Federation and again, as it was ten years ago, consider the moment of fulfillment of a monetary obligation the moment the funds are credited to the creditor's settlement account (thus making the debtor responsible for the improper behavior of the bank serving the creditor);

The second - continuing to believe that the monetary obligation is fulfilled by crediting funds to the correspondent account of the bank serving the creditor, depending on the form of payment used and where the correspondent accounts of the bank (LORO or NOSTRO) and the creditor's settlement accounts are opened (in the bank itself, in its branch or additional office), provide for in Art. 316 of the Civil Code of the Russian Federation, respectively, different places for the fulfillment of a monetary obligation for non-cash payments. The number of combinations is limited and is not at all astronomical;

The third is to keep the proposed new wording on the place of fulfillment of a monetary obligation when paying in cash, refusing to force this institution on non-cash payments, i.e. exclude the provision proposed by the draft new version of Section III of the Civil Code of the Russian Federation on the place of fulfillment of a monetary obligation in case of non-cash payments.

The first two proposals are absurd from the point of view of commercial turnover (and the first one is also harmful), but the legislator is free in his decisions.

The last sentence is not at all revolutionary: we do not even claim its authorship. It follows from modern domestic civil law doctrine and practice. The authors of numerous articles and monographs, having barely begun to talk about the place of fulfillment of a monetary obligation in cashless payments, immediately proceed to logical constructions about determining the moment of fulfillment of a monetary obligation, depending on the form of cashless payments used ( A.A. Pavlov, L.A. Novoselova, V.V. Vitryansky, the list is far from complete). Practice raises questions not about the place of fulfillment of a monetary obligation in case of cashless payments, but about the moment of its fulfillment: all litigation and court decisions are about this.

3. The moment of fulfillment of a monetary obligation, depending on the form of cashless payments used

To determine the moment of fulfillment of a monetary obligation for non-cash payments, we propose to proceed from the following criteria:

Which of the participants in the settlements bears the risk of bankruptcy of the banks involved in the settlements;

Who bears the risk of choosing a counterparty;

Who is responsible for the involved banks.

These criteria are not new: most of the authors who analyze this issue point to them; they are also indicated in clause 2.4.4 of the Concept for the Development of Civil Legislation on Securities and Financial Transactions (however, for some reason, in relation only (?) to collection settlements). However, the application of these criteria often gives opposite results.

(1) The moment of fulfillment of a monetary obligation in settlements by payment orders. Judicial practice presents two opposite approaches to determining the moment of fulfillment of a monetary obligation in settlements with payment orders:

According to one of them, a monetary obligation is considered fulfilled at the moment the funds are credited to the creditor's account ( for example, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 13, 2001 No. 6721/00 in case No. A40-35443 / 99-105-205. In the doctrine, we find a similar approach at a later time - R.D. Zorkals);

At the same time, we will find the opinion that the monetary obligation is repaid at the moment the funds are credited to the correspondent account of the beneficiary's bank ( Clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 No. 5 "On Certain Issues of the Practice of Considering Disputes Related to the Conclusion, Execution and Termination of Bank Account Agreements").

The latter approach has become dominant in jurisprudence ( for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 5474/99 dated 03/28/2000. See also L.A. about it. Novoselov) and in doctrine ( A.A. Pavlov, L.A. Novoselova, V.V. Vitryansky, L.G. Efimova and others.). Doctrinally, this position is substantiated by the fact that the debtor (payer) under the main monetary obligation cannot bear the risk associated with the choice of a bank serving the latter by the creditor.

In relations under a loan agreement, the Civil Code of the Russian Federation expressly established that, unless otherwise provided by the loan agreement, the loan amount is considered returned at the time it is transferred to the lender or the appropriate funds are credited to his bank account (clause 3 of article 810). These provisions also apply to relations under a loan agreement (clause 2, article 819 of the Civil Code of the Russian Federation).

(1.1) We believe that from the balance of interests of the debtor and the creditor, the approach that determines the moment of fulfillment of a monetary obligation when settling by payment orders is the moment of crediting funds to the correspondent account of the creditor's bank is more correct. However, this approach is somewhat simplified and does not take into account the peculiarities of relations that develop when making settlements not through correspondent accounts opened with the Bank of Russia (for example, when making settlements within one bank, as well as through net settlement systems). It is not always applicable for settlements using correspondent accounts opened with other commercial banks.

Let's turn to international practice. Paragraph 1 of Art. 19 “Completion of a credit transfer” of the UNCITRAL Model Law on International Credit Transfers (1992) establishes when a credit transfer is completed: the transfer ends with the acceptance of the payment order by the beneficiary's bank in the interests of the beneficiary. The acceptance of a payment order by the beneficiary's bank means a number of conditions (Article 9), of which the following apply in Russian banking practice:

"a) when a bank receives a payment order, provided that the sender and the bank have agreed that the bank will execute the sender's payment orders upon receipt;

b) when the bank sends a notice of acceptance to the sender;

c) when a bank debits the sender's account with that bank as payment against a payment order;

d) when the bank credits the beneficiary's account or otherwise places funds at the beneficiary's disposal;

e) when the bank sends a notice to the beneficiary that he has the right to withdraw funds or use the credited funds".

This will make it possible to take into account the peculiarities of non-cash settlements carried out through non-bank settlement credit organizations, the peculiarities of non-cash settlements made within the same bank (including inter-branch ones), as well as non-cash settlements carried out on the basis of direct correspondent relations between banks.

(1.2) When concluding civil law contracts, the moment of fulfillment of financial obligations is determined in various ways: such optionality is derived from the instruction of the Plenum of the Supreme Arbitration Court of the Russian Federation that the moment of fulfillment of the obligation of the payer's bank to the client on a payment order can be determined by a bank account agreement ( Clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5).

However, the moment of fulfillment of a monetary obligation cannot be determined dispositively and must be established imperatively. Since the content of the monetary obligation is determined only by the doctrine, the optionality of determining the moment of fulfillment of the monetary obligation leads to the impossibility of establishing a certain range of actions that must be performed to fulfill the monetary obligation.

It should also be taken into account that the freedom of discretion in determining the moment of fulfillment of a monetary obligation between the debtor and the creditor is limited by how the moment of fulfillment of the obligation to transfer funds in relations between these persons and the banks servicing them is determined. Both the creditor and the debtor in a monetary obligation can influence the latter very limitedly. Dispositiveness in determining the moment of fulfillment of a monetary obligation may lead to the fact that the person who will bear the risk for non-fulfillment of the obligation by the banks involved in settlements will not be able to file a claim against the bank with which he has concluded a bank account agreement, and will not be able to protect your interests.

(2) The moment of fulfillment of a monetary obligation in case of settlements by checks and in the form of letters of credit. The moments of fulfillment of a monetary obligation in case of settlements by checks and in the case of a letter of credit form of settlement will be determined similarly to the moment of fulfillment of a monetary obligation in case of settlements by payment orders.

(3) The moment of fulfillment of a monetary obligation in settlements for collection. Paragraph 4 ch. 46 "Settlements for collection" of the Civil Code of the Russian Federation is limited to three articles (874-876), containing general provisions on settlements for collection: such a number of rules is clearly not enough to regulate such complex civil legal relations, which should be taken into account when reforming part two of the Civil Code of the Russian Federation.

Banking rules divide settlements in the manner of collection into settlements carried out on the basis of payment requests, the payment of which can be made at the order of the payer (with acceptance) or without his order (without acceptance), and into settlements by collection orders, payment for which is made without the order of the payer ( indisputably). An analysis of the current Regulations on non-cash payments in the Russian Federation shows the following.

(3.1) Of the provided grounds for settlements by payment orders without acceptance, only one is currently valid: the cases provided for by the parties under the main agreement, provided that the bank servicing the payer is granted the right to debit funds from the payer's account without his disposal. In fact, it is a matter of prior acceptance.

(3.2) Indicating the grounds for the indisputable debiting of funds in settlements by collection orders, the Central Bank of the Russian Federation mixed civil law and public law relations. The external similarity of these relations is deceptive: in public law relations, the obligations of the executing bank will be completely different, and the issuing bank may not exist at all as a party to the legal relationship; the executing bank in public law relations will be liable for the execution of collection documents directly to the state. In these legal relations, it would be more correct to recognize the moment of their debiting from the payer's account as the moment of fulfillment of public obligations to pay money: this is fixed by tax and customs legislation.

(3.2.1) This confusion has led to the fact that modern civil legislation has established non-contractual obligations for the executing bank (Article 875 of the Civil Code of the Russian Federation), which is not characteristic of either international acts on collection settlements or the spirit of civil law.

(3.2.2) Operating with the term "non-acceptance" and "indisputable" write-off in cases stipulated by the parties under the main contract, the legislation, however, established such a procedure for settlements on collection in civil law relations, which made them exclusively acceptance. Even in such a case of direct debiting of funds during collection settlements, as granting the bank serving the payer the right to debit funds from the payer's account without his order, in essence, we are talking about prior acceptance.

(3.2.3) If, according to the Uniform Collection Rules, the executing bank (representing bank) is obliged to transfer funds directly to the party from which the collection order was received, then domestic civil legislation and banking rules do not contain such rules, and the executing bank has the right to independently choose the route payment. Taking into account the fact that the risk of non-payment of banks attracted by the executing bank lies with the creditor, this state of affairs unreasonably infringes on the interests of the latter. The executing bank, involving intermediary banks, from the moment the funds are debited from its correspondent account, has no obligation to receive funds to the issuing bank, since such an obligation is not stipulated by law.

(3.3.3) As a result, the generally accepted point of view about writing off funds from the payer's account as about the moment of fulfillment of a monetary obligation in settlements in the manner of collection ( for example, L.G. Efimova, L.A. Novoselova, R. Sadykov and R. Sadykov), leads us to a dead end:

Funds have been debited from the current account, they are even debited from the correspondent account of the executing bank, but - all of a sudden - they are frozen in the attracted bank, since that bank has not a penny on its correspondent accounts and a huge file of unexecuted payment documents;

The executing bank, involving intermediaries on a contractual basis, is not obliged to bring the funds to the issuing bank, since this is not part of its responsibilities prescribed by law:

The issuing bank cannot demand anything from attracted banks, since, on the one hand, it is not in contractual relations with them, on the other hand, the legislation does not grant it any rights in relation to such banks.

(3.3.4) The rules governing collection settlements should be radically revised:

Firstly, it is necessary to exclude from settlements in the collection procedure settlements for the performance of public legal obligations, since they are built according to a different risk distribution scheme and, in addition, are already regulated by the relevant federal laws;

Secondly, it is necessary to define in detail the obligations and responsibilities of the persons involved in the implementation of settlements, and the risks of non-payment of banks participating in the settlements;

Thirdly, to eliminate the non-contractual liability of the executing bank by harmonizing the norms of the Civil Code with the Uniform Rules for Collection;

Fourth, to establish that the transfer of funds by the executing bank should be carried out to the bank from which it received a collection order (payment request) (it is assumed that correspondent relations have been established between these banks).

After the fulfillment of these requirements, the moment of fulfillment of the monetary obligation when settling in the manner of collection, which is most consistent with the interests of the parties and fairly distributes the risks between them, will be the moment of crediting funds to the correspondent account of the bank from which the executing bank received collection documents.

4. Ways to protect the creditor in a monetary obligation from the use by the debtor for settlements of an insolvent credit institution

(1) What kind of protection can domestic civil law offer to a creditor in a monetary obligation if his debtor has engaged an insolvent credit institution for settlements, and at the same time, the actions taken by him are sufficient to recognize the monetary obligation as fulfilled, and the creditor does not have the opportunity to dispose of funds in an insolvent credit institution ?

This issue was irrelevant for the domestic civil law doctrine and, perhaps, therefore, it is absent both in the Concept for Improving the General Provisions of the Law of Obligations of Russia and in the Concept for the Development of Legislation on Securities and Financial Transactions, and in the draft amendments to Section III of the Civil Code of the Russian Federation.

(2) This problem received publicity outside of civil law relations. This was faced by the tax authorities when clients, having presented a promissory note to a bank that did not have funds in a correspondent account for payment, credited the amount of money to a current account opened with this bank (in this case, crediting is done bypassing the correspondent account), after which the client gave an order to write off funds to pay off tax liabilities. Due to the insufficiency of funds on the correspondent account, the bank did not credit funds to the account of the tax authority, but the debiting of funds from the taxpayer's current account was the basis for considering tax obligations fulfilled.

The initial approach of the courts, which sided with the tax authorities, was associated with the indication that, due to the lack of funds in the correspondent account real (?) funds were not credited to the client's account, or could not be really (?) credited to the account. Only a later ("memorable") clarification of the Constitutional Court of the Russian Federation on the need to apply in this case the criterion of good faith of the taxpayer returned the judicial practice to a state of adequate interpretation of substantive law. The funds are no longer recognized as "unreal" and their crediting to the current account as "unreal", since the crediting was made in accordance with the accounting rules.

Can following this path in civil law lead us to a way out of the situation formulated as a problem at the beginning of this section?

(3) Let's immediately note the constructions of "unreality" of funds in the account or their crediting to the account in an insolvent credit institution. From a legal point of view, all these actions are legitimate, and the system of settlements and account management, the design of banking operations allows such actions. For the adequacy of understanding, it is only necessary to abandon the identification of the account entry with money and understand that it only reflects one of the parties to the obligations of the credit institution and the client under the bank account agreement.

This means that we are faced with the actions of a person based on the law, but leading to results that clearly go beyond the concept of law. This formula leads us to such a civil law institution as "abuse of the right" (Article 10 of the Civil Code of the Russian Federation). Patriotic doctrine ( A.L. Makovsky, authors of the Conceptimproving the general provisions of the law of obligations in Russia) and judicial practice ( Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 25, 2008 No. 127 "Review of the practice of applying Article 10 of the Civil Code of the Russian Federation by arbitration courts") recognize under other forms of abuse of the right or " obvious, obvious manifestations of dishonest behavior" , or "unscrupulous behavior of participants in the turnover, leading to adverse consequences for other persons". The situation of payment with the involvement of an insolvent credit institution, which we are considering, falls under these interpretations.

(4) However, the same concept of improving the general provisions of the Russian law of obligations indicates a number of shortcomings in the current wording of paragraph 2 of Art. 10 of the Civil Code of the Russian Federation:

There is no provision in the current legislation that allows applying compensation for damages in case of abuse of the right. The risk remains that the losses caused to the victim as a result of the abuse of the right will not be attributed to the person who committed the corresponding violation;

It does not directly follow from the norm that it should be equally applicable both in the case when the person who abused it applies for protection of the right, and when the victim applies for the protection of his violated right.

The risk of non-compensation for losses caused by abuse of the right is eliminated by the draft new version of Section I of the Civil Code of the Russian Federation by direct references to Articles 15 and 1064 of the Civil Code of the Russian Federation.

But the new edition of paragraph 2 of Art. 10 of the Civil Code of the Russian Federation retains the nature of the institution of the prohibition of the abuse of the right: this institution is implemented in the form of a refusal to protect the actions of the subject of civil legal relations who have abused the right. Application of Art. 10 of the Civil Code of the Russian Federation (the current version and the draft new version) as a basis for a claim by a creditor against a debtor who has abused his right in the form of payment with the involvement of an insolvent credit institution, is possible only with the expansion of its interpretation.

(5) Also, do not forget that funds credited to a current account in an insolvent credit institution are just as legally "real" as funds credited to an account in a solvent one. And the question of the return of these funds by the creditor to the debtor's account is not abstract: otherwise, the creditor's claim for unjust enrichment will be absolutely justified.

(6) The simplest way out of the situation would be to supplement Art. 409 of the Civil Code of the Russian Federation with a new paragraph with the following content: "3. If the debtor in a monetary obligation to make a payment uses a credit institution that does not have sufficient funds in correspondent accounts, or another payment system, provided that this system is not able to issue money or make settlements with other payment systems due to insufficient funds, then such a payment financial obligation does not terminate".

Such a norm makes it senseless for the debtor to use insolvent credit institutions for settlements; clearly assigns to the debtor the risks of insolvency of the credit institution servicing the debtor; guarantees the interests of the creditor by a direct order, without the need to prove in court the violation of one's interest and the debtor's abuse of the right.

5. Legal interest and interest for the use of other people's money

(1) The draft of a new version of Section III of the Civil Code of the Russian Federation proposes to establish a new category of "legal interest", in connection with which a new article 317 1 "Interest on a monetary obligation (legal interest)" should appear in the Civil Code of the Russian Federation, which regulates the calculation of interest on any monetary obligation between commercial organizations: "Unless otherwise provided by law or an agreement, a creditor under a monetary obligation, the parties to which are commercial organizations, has the right to receive interest from the debtor on the amount of the debt for the period of use of the funds in the amount and in the manner determined by the agreement. In the absence of a clause in the agreement on the amount of interest, their amount is determined by the bank interest rate (refinancing rate) existing at the location of the creditor on the day the debtor pays the amount of the debt or its corresponding part (legal interest).

What the need for the appearance of this norm in the Civil Code of the Russian Federation expresses is not entirely clear to us. Perhaps, in this way it was supposed to solve the long-standing dispute about the legal nature of legal interest, i.e. now there are legal interest as a payment for the use of funds, and interest for the use of other people's funds as a measure of responsibility. But what the need for economic turnover consisted of is not at all clear.

For example, for bills of exchange with a certain maturity, interest is not allowed at all: it is assumed that the parties have already taken into account the payment for the loan in the amount of the main monetary obligation. Why exactly for the relations of commercial organizations among themselves, i.e. professionals who cannot miss the consideration of this issue, the authors of the Draft introduced this dispositive rule on the calculation of interest on any monetary obligation?

Formally, something similar exists for monetary obligations arising from contractual relations, and in the current Civil Code of the Russian Federation. So paragraph 2 of Art. 823 of the Civil Code of the Russian Federation provides for the application of the rules of Chapter 42 "Loan and Credit" to a commercial loan (unless otherwise provided by the rules on the contract from which the corresponding obligation arose, and does not contradict the essence of such an obligation). Article 809 of the Civil Code of the Russian Federation provides for the presumption of payment for a loan agreement. However, judicial practice application of the norms of Art. 809 of the Civil Code of the Russian Federation to relations on a commercial loan is rejected under the formal pretext that the text of the contract does not contain a direct indication that it provides for a commercial loan. How the authors of the Draft are going to change these norms in the light of the prevailing judicial practice is not entirely clear.

Perhaps the authors of the Draft, by stating in Art. 317 1 of the Civil Code of the Russian Federation of these rules were going to achieve the payment of increased interest for commercial organizations in cases of delay in monetary obligations, since in this case both legal interest and interest for the use of other people's funds would be paid. But it would be easier to achieve by indicating increased interest in Art. 395 of the Civil Code of the Russian Federation following the example of the German Civil Code (§ 288). It seems that the parties in most cases will level this norm by specifying in the contract that monetary obligations are interest-free.

(2) For the first time, the rules on the payment of interest on the overdue amount of debt appeared in the draft Civil Code of the Russian Empire ( articles 1632 and 1666): these percentages did not have an independent name, being referred to along with others as "annual interest" and "legalized interest".

In comparison with the draft GU, the concept of "legalized interest" was used by the Civil Code of the RSFSR in 1922 much narrower: they were charged only on money debt ( Art. 110), but due to the fact that such interest was applied only to the delay in payment of a sum of money ( Art. 122), then in fact this was the only basis for applying the indicated percentages.

The 1964 Civil Code of the RSFSR also contained an article ( 226 "Delay of the debtor on a monetary obligation"), regulating the accrual of interest per annum in case of delay on a monetary obligation, however, there was already no indication of legalized interest in this article. It is noteworthy that in relations between socialist organizations these percentages are called fines.

But in the OGZ 1991 ( paragraph 3 of Art. 66) we already meet the indication of interest charged for the use of other people's funds.

How this not entirely successful terminology appeared in the OGZ of 1991 remains a mystery. For the first time, the mention of "other people's money" is found in L.A. Luntza in the title of his work "Money and Monetary Liabilities": this phrase was indicated in quotation marks, which emphasized its very non-legal nature, and in the corresponding section of the work it is said about "foreign" capital, which clearly indicates economic rather than legal terminology.

In the current Civil Code of the Russian Federation, the provisions relating to liability for non-fulfillment of a monetary obligation are formulated extremely unsuccessfully, which is already reflected in the title of Art. 395 of the Civil Code of the Russian Federation. The literal interpretation of the grounds for the emergence of regulated legal relations listed in the article ( use of other people's funds due to: their unlawful retention; evading their return; other delay in their payment; their unjustified receipt or saving) gives the following results.

(2.1) What is someone else's money from the point of view of law? Based on other cases of the use of the term "foreign" in the Civil Code of the Russian Federation, it means things that are in the possession of a given person, but do not belong to him by right of ownership. But things defined by generic characteristics may be in the possession of another person and not belong to him on the right of ownership only in the case when they are nevertheless individualized, i.e., for example, during storage or collection. Limit the application of Art. 395 of the Civil Code of the Russian Federation, the legislators did not intend to do this alone; before us is a defect of the legislator, which is subject to correction.

(2.2) What is meant by evasion of return and by the use of money in the sense of Art. 395 of the Civil Code of the Russian Federation? After all, if we proceed from the fact that the debtor is the owner of the money, then he is free to dispose of his property at his own discretion, and in this case we can only talk about non-fulfillment of the monetary obligation, and not at all about the misuse or evasion of the return of his own money.

It turns out that the practice of applying Art. 395 of the Civil Code of the Russian Federation came into conflict with the goals of its writing by the authors of the current Civil Code of the Russian Federation:

According to S.A. Khokhlov- to the leading developer of the current Civil Code of the Russian Federation, this article should not (!) Be limited to cases of non-fulfillment of a monetary debt: in addition, these can be both conditional obligations and others, when, by virtue of title ownership, the debtor withholds the money of the creditor in his favor;

Judicial practice has indicated that Article 395 of the Civil Code of the Russian Federation applies exclusively to the relations of the parties related to " using money as a means of payment" (Decree of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 08.10.1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money"). And under the basis of the obligation to pay interest for the use of other people's money means a delay in the performance of a monetary obligation.

(2.3) The indefinite and terminologically inconsistent abracadabra referred to in Art. 395 of the Civil Code of the Russian Federation as the grounds for the emergence of regulated relations, largely led to the existence of different points of view on the legal nature of interest for the use of other people's funds and on the grounds for applying this rule ( see L.A. Novoselov, V.A. Belova, M. Rozhkov). Therefore, it is not very clear why the Draft did not reflect the change in the wording of the grounds for the emergence of an obligation to pay interest for the use of other people's funds to a terminologically correct and logically consistent one.

(2.4) Changes made to paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, provide for a change in the name of the applied interest rate ( "The amount of interest is determined ... by the discount rate of bank interest(refinancing rate)" ) , as well as the period of time in which its size will be determined ( " The amount of interest is determined ... on the day of fulfillment of the monetary obligation or its corresponding part. When collecting a debt in court, the court Maybe to satisfy yat creditor's claim based on ... rate ... in force at the relevant time periods. These rules apply unless a different amount of interest is established by law or contract.). The novels raise questions:

Why was it necessary to add the name of the bet in brackets to the already fixed one, when " discount rate of bank interest"in the Russian Federation simply does not exist, and judicial practice understands it as the refinancing rate ( Decree of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation");

Why did not find a place for the procedure for determining the amount of interest in the case when the monetary obligation is expressed in foreign currency. Currently, it is also defined by jurisprudence ( Decree of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996), which indicates a corresponding gap in the current Civil Code of the Russian Federation;

It is not clear why the Project did not decide to adhere to a single procedure for determining interest based on the refinancing rate that was in effect in the relevant periods of time, because for an already repaid monetary debt, this rate is determined on the day the monetary obligation is fulfilled.

From the point of view of legal meaninglessness and linguistic absurdity, the phrase " the court may grant": this is probably a typo, and the word " Maybe" was to be removed.

(2.5) The procedure for calculating the amount of interest for the use of other people's funds is not defined by the current Civil Code of the Russian Federation. Arbitrage practice ( ) established it as well: the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, rules binding on the parties, as well as business customs. Probably, this procedure was borrowed from the banking rules that were in force before 1998. Since January 1998, banking rules have changed, now the calculation is carried out from the actual number of days in the corresponding year (365/366) and the actual number of days in the corresponding months, but this has not become widespread in the practice of arbitration courts.

The draft does not address this issue, but on the other hand, paragraph 5 of Art. 395: " 5. Accrual of interest on interest (compound interest) is not allowed, unless otherwise provided by law. For obligations fulfilled in the course of entrepreneurial activities by the parties, the use of compound interest is not allowed, unless otherwise provided by law or contract.

Previously, the use of compound interest by judicial practice was not allowed. Paragraph 1 of Art. 395 of the Civil Code of the Russian Federation only mentions the possibility of the parties under the agreement to establish a different amount of interest, and not the procedure for calculating them. Apparently, the Draft also establishes the possibility, when the parties carry out entrepreneurial activities, to change the procedure for accruing them.

(2.6) Found in the Draft (paragraph 4 of article 395) the reflection and ratio of the contractual penalty and interest for the use of other people's funds: "In the event that an agreement between the parties provides for a penalty for non-fulfillment or improper fulfillment of a monetary obligation, the interest provided for in this article shall not be recoverable, unless otherwise provided by law or the contract."

According to the current judicial practice, the creditor himself chooses one of the prescribed measures of liability ( Decrees of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 08.10.1998). And this is where the difficulty arises:

Firstly, the Draft provides for the ratio of only the contractual penalty to interest, but it does not mention the legal one;

Secondly, interest for the use of other people's money is only a liability for delay in the performance of a monetary obligation, and it is wrong from our point of view to exclude the application of a penalty for other defects in performance.

(2.7) The draft significantly changes the right of the court to reduce the amount of interest, previously derived by judicial practice from the compensatory nature of interest and the application by analogy of Art. 333 of the Civil Code of the Russian Federation. Currently, the court has the right to reduce the amount of interest paid in case of non-performance or delay in the performance of a monetary obligation, if it is clearly not commensurate with the consequences of the delay. When resolving the issue, the court takes into account changes in the size of the refinancing rate of the Central Bank of the Russian Federation during the delay period, as well as other circumstances affecting the size of interest rates ( Decrees of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 08.10.1998).

The draft (clause 6, article 395) provides for such a right of the court, but only if there is an application by the debtor to reduce the interest provided for by the agreement, but not less than the percentage determined from the refinancing rate.

Instead of a conclusion

Joining the high assessments of the current results of the civil legislation reform in terms of the norms on legal entities and property rights, we are forced to express regret due to the lack of any result in terms of the norms on the execution of monetary obligations.

One gets the feeling that instead of new norms that provide answers to questions about the fulfillment of a monetary obligation that have been raised for at least a decade and a half, general doctrinal formulations are legalized, which should activate the reflex of the law enforcement officer: having heard the first phrase set out in the law, he must complete the entire sentence as it is set forth in the books he read and memorized and in court decisions ...

As a result, we get a continuation of the current law enforcement practice, which did not have, and still has not received a firm support in the form of law. In turn, the doctrine and commercial turnover will remain with the same problems that have been discussed for more than one year.

Serebrennikov Sergey Vladimirovich - Senior Lecturer of the Department of Commercial, Entrepreneurial and Financial Law of the Law Institute of the Siberian Federal University

Nikolaev Aleksey Viktorovich – Senior Lecturer of the Department of Commercial, Entrepreneurial and Financial Law of the Law Institute of the Siberian Federal University

M. POMINOV
Maksim Pominov, head of contract law department "Consulting. Standard".
One of the most significant issues in the fulfillment of settlement obligations is the determination of the moment of fulfillment of the obligation. According to Art. 316 of the Civil Code of the Russian Federation (place of performance of an obligation) in the event that the place of performance is not determined by law, other legal acts or an agreement, does not appear from the customs of business turnover or the essence of the obligation, the performance of a monetary obligation (if the creditor is a legal entity) must be made in the place its presence at the time the obligation arose. Thus, the moment of fulfillment of a monetary obligation can be determined by the moment of its fulfillment in the proper place of fulfillment.
Place of performance of the monetary obligation
The Supreme Arbitration Court of the Russian Federation in a letter dated January 26, 1994 N ОШ-7 / OP-48 explained that according to Art. 112 of the Fundamentals of Civil Legislation (now Art. 861 of the Civil Code of the Russian Federation), non-cash payments are made by legal entities through the bank in which they opened the corresponding account. Thus, the place of fulfillment of a monetary obligation (in case of non-cash payments) should be considered the bank that opened a settlement or other account for the creditor, to which, in accordance with the terms of the agreement, funds should be credited. Consequently, the obligation is considered to be duly fulfilled at the time the funds are credited to the creditor's account, unless otherwise provided by the agreement, and the creditor has the right to demand from the borrower the payment of interest for the use of funds for the period after the due date for the fulfillment of the obligation until it is credited to the creditor's account, the same circumstance is indicated in Decree of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14 (see also Resolution of the FAS MO of September 15, 1998 in case N KG-A40 / 2138-98). With regard to the repayment of a loan, Art. 810 of the Civil Code of the Russian Federation, it is established that, unless otherwise provided by the loan agreement, the loan amount is considered returned at the time it is transferred to the lender or the relevant funds are credited to his bank account.
There is no need to explain the negative consequences of such a definition of the moment of fulfillment of the obligation. According to paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, the moment of fulfillment of the taxpayer's obligation to pay tax is the submission to the bank of a settlement document for debiting funds from the account. With a different (later) method of determining the moment of interest to us, the taxpayer risks that his order to the bank will not be executed properly, incl. and due to the lack of funds on the correspondent account of the bank. In one of the court cases, the defendant was charged with damages caused by the delay in the execution of the payment. The defendant stated that he submitted the payment document to the bank, of which he is a client, in due time. However, the court found that the funds arrived at the creditor's settlement account late, the banks participating in the settlements fulfilled their obligations properly (there was no delay in the transactions on their part).
It should be emphasized that the provisions of art. Art. 316 and 810 of the Civil Code of the Russian Federation regarding the determination of the moment of fulfillment of a monetary obligation are dispositive, i.e. may be changed by agreement of the parties. In this regard, when concluding contracts, it is recommended that entrepreneurs establish in them a condition regarding the determination of the moment of fulfillment of the obligation to pay for goods, works, services as the moment of presenting an instruction to the bank to transfer the appropriate funds to the creditor, but subject to a sufficient balance on the payer's account. With regard to the fulfillment of obligations to pay taxes, which is mentioned in this article, the concept of "conscientious payer" was introduced by judicial practice (many lawyers doubt the legitimacy of introducing such a concept, however, it seems to be due to the needs of practice). The criteria for such good faith are, in particular, the availability of a balance of funds sufficient for payment on the relevant account, the lack of information from the payer about the insolvency of the bank.
Conscientious fulfillment of conditions and requirements
According to Art. 309 of the Civil Code of the Russian Federation, obligations must be duly performed in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements. In the light of this provision, we present the following judicial precedent.
The landlord filed a lawsuit against the tenant to recover bank interest for the use of other people's money. The essence of the case was that the landlord sent a letter to the tenant with a request to defer the payment until the end of the re-registration of his (the landlord's) bank accounts. Despite this, the tenant made a payment using the same bank details, which caused losses to the landlord.
The court, referring to Art. 309 of the Civil Code of the Russian Federation, indicated the following.
Considering that the deferment of the fulfillment of the obligation was introduced by the plaintiff only for the period of possible re-registration of bank accounts, the defendant had to show the necessary degree of conscientiousness and take measures to fulfill the obligations to pay for the rented premises (see Resolution of the FAS SKO dated April 8, 1999 in case N F08- 496/99).
It has already been pointed out in the legal literature that the debtor under a monetary obligation is obliged to make payment according to the details specified by the creditor. So, S. Rukhtin writes that "the country is already living in a market economy, and not in conditions of socialism, when it was possible to pay money to any bank and not worry about the civil - legal qualification of actions, because all banks were wealthy" (See: BA. N 24. S. 7; see also: V.A. Belov "Money obligations". M., 2001 S. 43, 44).
Indeed, as indicated in the author's article, from which the quote is given, banks are the same business entities that provide services for servicing accounts. Clients of banks to a certain extent bear the risk of non-fulfillment by their bank of their obligations under the presented monetary claims, for example, in the absence of funds on the correspondent account. Thus, the debtor, when fulfilling a monetary obligation, must fulfill it exactly with the instructions of the creditor. In some cases of this kind, there may be a threat of abuse by the latter of his right, and then it can be recommended to deposit funds on a notary's deposit, which, according to Art. 327 of the Civil Code of the Russian Federation will be considered proper execution. However, such a right may be exercised by the debtor in the presence of one of the following circumstances established by this article:
- the absence of the creditor or the person authorized by him to accept the performance in the place where the obligation is to be performed;
- incapacity of the creditor and absence of his representative;
- the apparent lack of certainty as to who is the creditor under the obligation, in particular in connection with a dispute on this issue between the creditor and other persons;
- evasion of the creditor from acceptance of performance or other delay on his part.
In Art. 316 of the Civil Code of the Russian Federation also states that in the event of a change in the location of the creditor and notification of the debtor by him, the latter must fulfill the monetary obligation at the new location of the creditor with the attribution to his account of the costs associated with the change in the place of performance.
According to Art. 406 of the Civil Code of the Russian Federation, the creditor is considered to be in arrears if he has not performed actions provided for by law, other legal acts or an agreement or arising from business practices or from the nature of the obligation, before which the debtor could not fulfill his obligation. The obligee's delay entitles the debtor to compensation for losses caused by the delay, unless the obligee proves that the delay occurred due to circumstances for which neither he himself, nor those persons who, by virtue of law, other legal acts or the obligee's order, were entrusted with the acceptance of performance, do not answer. In addition, the above article establishes the exemption of the debtor from paying interest for the period of delay of the creditor.
So, in another case, the creditor was charged damages in favor of the debtor under a monetary obligation, while the court indicated that the defendant (creditor) did not provide evidence of notifying the plaintiff about the change in his settlement details in connection with the opening of bankruptcy proceedings against the bank serving him. The actions of the defendant caused losses to the plaintiff in the amount of the transferred funds, which were recovered (see Resolution of the FAS MO dated July 5, 2000 in case No. KG-A40 / 2692-00).
Payment to a third party
In practice, in contracts concluded by economic entities, there is often a condition according to which payment for certain goods, works or services is made to a third party in order to repay, in turn, the creditor's monetary obligations to this person. Thus, the FAS MO in its Decree of February 17, 2000 in case No. KG-A40 / 473-00, when deciding to send the case for a new trial in the first instance, indicated that during a new trial, the court needs to investigate in connection with what relations the plaintiff made payments on the payment orders available in the case (with the details of a third party) and whether these payments relate to execution between the plaintiff and the defendant.
When concluding contracts with the condition under consideration, it is recommended to indicate all the details of the third party to whom the payment is made (its full name, location, bank details), and the basis (obligation between the creditor and the third party, which is repaid by the debtor). In addition, the settlement document must also indicate the details of the agreement under which payment is made to a third party, and note that the payment is made on the basis of and in pursuance of this agreement.
In such legal relations, obligations often arise from unjust enrichment. If, for example, an agreement on the basis of which a payment is made to a third party is later declared invalid, the debtor who has fulfilled his monetary obligation has the question of who to recover the funds paid: from the debtor under the agreement or from the one in whose favor the payment was made. payment made, who received the money. A simple example: organization A and organization B entered into a property transfer agreement, according to which organization A, the acquirer of property, repays the debt of organization B to a third organization C as payment for it. The payment was made, but the property was not transferred. This agreement was subsequently declared invalid. In this case, claims should be made against organization B, since, despite the fact that the money was actually transferred to a third organization (C), it was she who was in legal relations with organization A (for obligations from the contract, which subsequently turned out to be invalid, the latter transferred money). Thus, organization B enriched itself at the expense of organization A by saving its funds, which it had to transfer to a third organization on the basis of certain obligations that existed between them.
The Supreme Arbitration Court of the Russian Federation in the Decrees of the Presidium repeatedly drew attention to this: in particular, in the information letter of January 11, 2000 N 49, judicial precedents illustrating the above are given, but in practice problems constantly arise on this issue.
Registration of settlement documents
This article did not set out to consider the relationship of customers with banks in the performance of settlement obligations, however, touching on the topic of proper execution of settlement documents, one cannot help but cite the Decree of the FAS SZO dated October 30, 2000 in case N A56-8110 / 2000, the essence of which is that the client sent a payment order, where the payment amount indicated in words did not match the amount indicated in numbers. The Bank executed the order in the amount indicated in figures, which turned out to be significantly more than that indicated in words. The court came to the defense of the bank's client and recovered from the bank losses, guided by the fact that the bank should accept only properly executed payment documents for execution, therefore the bank is responsible for the consequences of executing documents drawn up in violation of the law (the main such document is the Regulation on cashless payments in the Russian Federation, approved by the Central Bank of the Russian Federation of April 12, 2001 N 2-P (chapter 2)). In addition, in paragraph 2 of Art. 864 of the Civil Code of the Russian Federation, which refers to settlements by payment orders, establishes the right of the bank to request the client to eliminate errors and inaccuracies in the submitted payment documents and, in case of failure to receive a response in due time, return the order to the client without execution.
LINKS TO LEGAL ACTS

"FOUNDATIONS OF THE CIVIL LEGISLATION OF THE UNION OF THE SSR AND THE REPUBLIC"
(approved by the USSR Supreme Council on May 31, 1991 N 2211-1)
"CIVIL CODE OF THE RUSSIAN FEDERATION (PART ONE)"
No. 51-FZ dated November 30, 1994
(adopted by the State Duma of the Federal Assembly of the Russian Federation on October 21, 1994)
"CIVIL CODE OF THE RUSSIAN FEDERATION (PART TWO)"
dated 01/26/1996 N 14-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on December 22, 1995)
"TAX CODE OF THE RUSSIAN FEDERATION (PART ONE)"
dated 31.07.1998 N 146-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on July 16, 1998)
"REGULATION ON CASHLESS SETTLEMENTS IN THE RUSSIAN FEDERATION"
(approved by the Central Bank of the Russian Federation on April 12, 2001 N 2-P)
INFORMATION LETTER OF YOUR RF DATED 26.01.1994 N OSH-7/OP-48
AMENDMENT AND TERMINATION OF CREDIT AGREEMENTS>
RESOLUTION of the Plenum of the Supreme Court of the Russian Federation N 13, Plenum of the Supreme Arbitration Court of the Russian Federation N 14
dated 08.10.1998
"ON THE PRACTICE OF APPLYING THE PROVISIONS OF THE CIVIL CODE OF THE RUSSIAN
OF THE FEDERATION ON INTERESTS FOR THE USE OF OTHERS' MONEY"
INFORMATION LETTER of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 11.01.2000 N 49
"REVIEW OF THE PRACTICE OF RESOLUTION OF DISPUTES RELATED TO THE APPLICATION OF REGULATIONS
ON UNFAIR ENRICHMENT"
RESOLUTION OF THE FAS OF THE MOSCOW DISTRICT OF SEPTEMBER 15, 1998
N KG-A40/2138-98
FAS RESOLUTION of the North Caucasian District of 04/08/1999
N Ф08-496/99
RESOLUTION of the FAS of the Moscow District dated February 17, 2000 N KG-A40 / 473-00
RESOLUTION OF THE FAS OF THE MOSCOW DISTRICT DATED 05.07.2000
N KG-A40/2692-00
RESOLUTION FAS North - Western District of 30.10.2000
N A56-8110/2000
Business lawyer, N 14, 2002

The contract is concluded according to certain rules. The section describes: the procedure for concluding a work contract, possible problems when concluding a contract, the terms and features of concluding a work contract.

Coordination of the work acceptance procedure with the help of legal acts and regulatory documents

The condition on the acceptance of the work performed (its result) determines the rights and obligations of the parties associated with the acceptance, inspection and verification of the compliance of the work (its result) with the terms of the work contract, as well as with the identification of shortcomings. By virtue of paragraphs 1, 4 of Art. 720 of the Civil Code of the Russian Federation, the customer's obligation to accept includes: inspection and acceptance of the work performed (its result) with ...

Interest for using a commercial loan in the form of a deferral (installment plan) of payment

The contract can provide for the obligation of the customer to pay interest for the use of a commercial loan from the moment the final delivery of the result of work until payment is made under the contract. In this case, the contract must indicate that the customer is provided with a commercial loan in the form of a deferment or installment payment for work (Article 823 of the Civil Code of the Russian Federation). It should be borne in mind that in judicial practice there are ...

Deadline for payment of work after the delivery of its result

Article 711 of the Civil Code of the Russian Federation does not provide for a specific period for fulfilling the obligation to pay for the work performed by the contractor, therefore, the parties are advised to agree on this period in the contract. It can be determined by: the calendar date that comes after the final delivery of the result of the work; a period of time that begins after the final delivery of the result of the work. This period is calculated from the next day after the calendar date ...

Payment for work after the final delivery of its result

Coordination of the conditions for payment for the work after the final delivery of its result This condition is more beneficial to the customer, since, within the meaning of clause 1 of Art. 711, paragraph 1 of Art. 720, paragraph 2 of Art. 405 of the Civil Code of the Russian Federation, in the event of, for example, poor-quality performance of work or violation of the deadline for its completion, he may refuse to accept and pay for this work. Wherein …

Interest on the amount of prepayment (advance) - commercial loan

The contractor agreement may provide for the obligation of the contractor to pay interest on the amount of the advance payment (advance payment) (clause 1, article 823 of the Civil Code of the Russian Federation). In this case, it is recommended to indicate in the contract that: 1) the contractor is provided with a commercial loan in the form of prepayment (advance payment); 2) the contractor pays the customer interest for the use of a commercial loan in the amount of the advance payment (advance) in a certain amount ...

Term and amount of advance payment (advance payment)

In the contract, it is necessary to agree on the term for making the advance payment (advance payment). This period can be determined by: the calendar date that comes before the final delivery of the result of the work or its individual stage; a period of time calculated from a calendar date or an event that must inevitably occur or has occurred (for example, the moment of concluding a contract), until the final delivery of the result of the work or its individual stage. …

Advance payment for work (advance payment)

Advance payment for work (advance payment) means that the customer is obliged to fully or partially pay for the work or its individual stages before the final delivery of the result of the work or its stages (clause 1, article 711 of the Civil Code of the Russian Federation). Agreeing the terms of prepayment (advance payment) Prepayment (advance payment) reduces the risk of the contractor not receiving payment for the work performed, and also allows the contractor at the initial stage ...

Fulfillment of the obligation to pay for work in the event of revocation of a license from the customer's (debtor's) bank

Revocation of a license from a bank that is a counterparty of the customer, entailing a breach by the bank of its obligations to the debtor (customer), is not recognized as a force majeure and does not release the debtor (customer) from fulfilling its obligations to the creditor (contractor). This follows from the content of paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, according to which force majeure does not include, in particular, violation of obligations with ...

Fulfillment of the obligation to pay for work in the event of revocation of the license from the bank of the contractor (creditor)

From the moment the license is revoked, the acceptance and execution of payments on the correspondent accounts of the credit institution to the accounts of the credit institution's customers (individuals and legal entities) are terminated. Credit institutions and institutions of the Bank of Russia return payments received after the date of revocation of the banking license in favor of the clients of the credit institution to the accounts of payers in sending banks (clause 5, part 9 ...

Financing of work by a third party (payer, investor)

As a general rule, the work is paid for by the customer (Articles 702, 711 of the Civil Code of the Russian Federation). A work contract may establish that payment (financing of work) is carried out not by the customer, but by another person (payer, investor). However, the parties should take into account that if this person is not a party to the contract, then he does not have an obligation to pay (clause 3 of article 308 of the Civil Code ...

1. The payer's bank, which accepted the payment order for execution, in accordance with the payer's order, is obliged to execute it in one of the following ways:

1) crediting funds to the bank account of the recipient of funds opened in the same bank;

2) crediting funds to the bank account of the beneficiary's bank opened with the payer's bank, or transferring a payment order to the beneficiary's bank for debiting funds from the bank account of the payer's bank opened with the beneficiary's bank;

3) transfer of a payment order to an intermediary bank for the purpose of crediting funds to the bank account of the beneficiary's bank;

4) other methods provided for by banking rules and the agreement.

2. The bank is obliged to inform the payer about the execution of his payment order no later than the day following the day of execution of the payment order, unless a shorter period is established by banking rules and the agreement. The procedure for such informing is determined by banking rules and the agreement.

Commentary on Art. 865 of the Civil Code of the Russian Federation

1. The norm of paragraph 1 of the commented article repeats the norm of paragraph 1 of Art. 863 of the Civil Code of the Russian Federation (see commentary to it). It established that the payer's bank, which accepted its client's instruction to transfer funds in favor of the recipient, is obliged not only to write off the amount of the transfer from the bank account of its client, but also to ensure that this amount is credited to the account of the recipient of funds (i.e. complete the transfer).

In accordance with paragraph 2 of the commented article, in order to carry out operations to transfer funds to the account specified in the client's order, the payer's bank has the right to attract other banks. This norm is applied in cases where the bank accounts of the payer and the recipient of funds, to whose account it is necessary to credit the transferred funds, are opened in different banks. If the accounts of the payer and the recipient of funds are opened in the same bank, then this bank independently credits the transferred amounts to the bank account of the recipient of funds.

Both the Central Bank of the Russian Federation and other banks may be involved in the execution of the payer's order if there is an appropriate correspondent relationship with the payer's bank (intermediary banks). In order to attract an intermediary bank, the payer's bank must instruct it to transfer funds on its own behalf. In turn, the intermediary bank can also attract the next bank by sending it its own instruction. The number of intermediary banks is not limited by law. As a result, a whole chain of individual actions of various banks is formed, ultimately aimed at executing the payer's order (settlement chain). Such actions are called "settlement transactions" in the legislation and in the literature. In this sense, a settlement transaction should be understood as the bank's actions to execute the order of its client (another bank) to make non-cash payments that it can directly perform.

On the legal nature of settlement banking operations, see paragraph 7 of the commentary to Art. 863 of the Civil Code of the Russian Federation.

From a legal point of view, the assignment by the payer's bank to the intermediary bank of its obligation to transfer the payer's funds should be considered as the assignment of the fulfillment of the obligation to a third party (Article 313 of the Civil Code).

2. The issue of the moment of execution by banks involved in the execution of the payer's order of the obligation to transfer funds is decided differently by legislation and judicial practice.

From the literal meaning of paragraph 1 of the commented article and paragraph 1 of Art. 863 of the Civil Code of the Russian Federation, it follows that the responsibility of the payer's bank is not only to write off money from the client's account, but also to credit the transferred amount to the account of the recipient of funds. It remains to be assumed that the payer's bank should be considered to have properly executed its order from the moment when the transfer of funds can be considered completed - from the moment the amount transferred is credited to the account of the recipient of funds. However, there is an opposite position of judicial practice.

Clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 No. 5 “On Certain Issues of the Practice of Considering Disputes Related to the Conclusion, Execution and Termination of Bank Account Agreements” (hereinafter referred to as Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 5) contains the following interpretation of clause. 1 of the commented article: according to it, the payer's bank is obliged to transfer the appropriate amount to the beneficiary's bank, which, from the moment funds are credited to its correspondent account and receipt of documents that are the basis for crediting funds to the beneficiary's account, has an obligation based on a bank account agreement with the recipient of funds, by crediting the amount to the account of the latter (clause 1 of article 845 of the Civil Code). Therefore, the obligation of the payer's bank to the client under the payment order is considered fulfilled at the time of the proper transfer of the corresponding amount of money to the account of the beneficiary's bank, unless otherwise provided by the contract between the bank account of the client and the payer's bank.

The position of the judicial authorities is explained by the fact that after the transferred amount is credited to the correspondent account of the recipient's bank, further actions to complete the transfer of funds are carried out by the recipient's bank under a bank account agreement with the recipient of funds. The beneficiary's bank is its client's attorney, who is obliged to receive the money sent to the client and credit them to his bank account in a timely manner. The performance made by the attorney entails legal consequences for the principal. Therefore, the fact of crediting the transferred funds to the correspondent account of the bank of the recipient of funds is equal in legal consequences to the payment made directly in favor of the recipient of funds.

For a final clarification of the position of the judiciary, it is important to take into account that the payee's bank may have quite a lot of correspondent accounts in banks in many countries of the world. It is hardly reasonable to believe that crediting the transferred amount to any of them should be considered the proper execution of the payer's order. Probably, we can talk about that correspondent account of the bank of the payee indicated in the payment order, taking into account the place of payment (Article 316 of the Civil Code), which can also follow from the payment order.

3. Settlements by payment orders are carried out by the payer, as a rule, in order to properly fulfill their monetary obligation to the recipient of funds arising from the agreement concluded between them (main agreement).

Meanwhile, the current Russian legislation unambiguously determines the moment of fulfillment of a monetary obligation only in relation to the obligation to pay tax or make a mandatory payment to an off-budget fund, as well as the obligation to repay the loan amount. In accordance with Part 3 of Art. 45 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), this obligation is considered fulfilled by the taxpayer from the moment an instruction is presented to the bank for transferring funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury from the taxpayer's account in the bank if there is a sufficient cash balance on it on the day of payment .

The tax is not recognized as paid if the taxpayer revokes or the bank returns to the taxpayer the payment order for transferring the amount of tax to the budget (off-budget fund).

Paragraph 3 of Art. 810 of the Civil Code of the Russian Federation provides that the loan amount is considered returned at the time it is credited to the bank account of the lender, unless otherwise provided by the loan agreement.

The determination of the moment of fulfillment of a monetary obligation in other cases is carried out by arbitration practice based on the interpretation of the rules of law. To date, when making payments by payment orders, the payer's monetary obligation should be considered terminated from the moment the transferred amount is credited to the correspondent account of the recipient's bank. Such a conclusion necessarily follows from paragraph 3 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 5. If the obligation of banks is to make a payment in favor of the person indicated by the payer, then the moment this obligation is fulfilled (the moment the transferred amounts are credited to the correspondent account of the beneficiary's bank) is simultaneously the moment the payment is made under the main contract (the moment of fulfillment of the monetary obligation). For an exception to this rule, see paragraph 4 of this commentary.

4. If the payer's bank is also the beneficiary's bank and no intermediary banks are involved, then the transferred amounts do not go through the correspondent accounts of any banks. Therefore, the conclusion about the moment of execution by the bank of the payer's order and the moment of execution of the payer's monetary obligation to the recipient of funds must inevitably be changed (see clauses 2 and 3 of this commentary). In this case, such a moment should be considered the moment the transferred amount is credited to the bank account of the recipient of funds.

5. When making "paper" settlements, funds are credited to the payee's account on the basis of a copy of the payment order received by the payee's bank and an extract from its correspondent account confirming the receipt of cash cover. In accordance with clause 2.18 of Regulations of the Central Bank of the Russian Federation N 20-P, the payee's bank credits funds received by its client on the basis of the following documents: 1) an extract from a personal account or an electronic reference and information document confirming the crediting of funds to an account with the Central Bank RF; 2) a completed full-format EPD (an EPD of an abbreviated format and a settlement document on paper, drawn up in accordance with the requirements of the Central Bank of the Russian Federation, or only an EPD of an abbreviated format, if this condition is provided for by the agreement between the bank and the client).

6. Transfer of funds to the account of the payee must be carried out by his bank, taking into account all the information contained in the settlement document received by him, unless otherwise established by the bank account agreement. Special rules are established by the legislation on electronic payments. The amount of an electronic transfer is credited to the correspondent account of the recipient's bank in the settlement network of the Central Bank of the Russian Federation only in accordance with the values ​​of the digital details of the payer and the recipient (the BIC of the credit institution, the number of its correspondent account, etc.), regardless of the content of the text details of the electronic payment instructions (name of the payer (beneficiary), purpose of payment). Claims arising from incorrect crediting of funds to recipients' accounts due to a mismatch between digital and text details should be regulated bypassing the units of the settlement network of the Central Bank of the Russian Federation (clause 1.6 of the Regulations of the Central Bank of the Russian Federation N 36-P). Other rules may be established by law or an exchange agreement (clause 2.13 of the Regulations of the Central Bank of the Russian Federation N 20-P).

7. In accordance with paragraph 3 of the commented article, the client has the right to demand from the bank information (notice) on the execution of the order (report). The procedure for drawing up and the list of data contained in such a notice must be provided for by law, banking rules established in accordance with it, or by agreement of the parties. Transaction reports may be provided in the form of account statements for each transaction or periodically for a group of transactions. Usually, statements on the client's account are issued not after each operation, but once every 3, 5, 10 days, etc.