Offer in the Lending Area
The notorious loan offer
According to Part 1 of Art. 435 of the Civil Code of the Russian Federation, an offer that is addressed to one or more specific persons is considered to be an offer that is sufficiently clear and expresses the intention of the person who made the offer to consider himself a contractor with the addressee to whom the proposal will be accepted.
The offer must contain all the essential terms of the contract.
The offer is connected by the person who sent it from the moment it was received by the addressee.
According to Part 1 of Art. 438 of the Civil Code of the Russian Federation accepts the answer of the person to whom the offer is addressed, about its acceptance. In accordance with Part 3 of Art. 438 of the Civil Code of the Russian Federation, the commission by a person who received an offer within the time period established for its acceptance of actions to fulfill the terms of the contract specified in it (provision of services, performance of work, payment of a corresponding amount, etc.) is considered an acceptance, unless otherwise provided by law, other legal acts or not indicated in the offer.
Thus, the law provides for a simpler procedure for concluding contracts - by accepting offers.
This procedure is also applicable in the sphere of banking services.
As practice shows, Banks very often use this form when concluding loan agreements. And this form is used in most cases when issuing and servicing credit cards.
Are there problems in concluding contracts by accepting offers in the sphere of lending? What are the necessary conditions that must be met when the treaty is recognized as a prisoner?
What does the Bank infringe upon human and civil rights? What is the conflict in the law when considering this issue?
To receive a credit card, a bank customer(borrower) submits a bank application for a bank card. This application, questionnaire, application form (in different banks this document has a different name) is regarded as an offer.
Indeed, this statement can be regarded as an offer.
In accordance with Part 1 of Art. 435 of the Civil Code of the Russian Federation, the offer must contain all the essential conditions of the contract. Essential terms of the loan agreement are contained in art. 30 FZ "On Banks and Banking Activities".
If you refer to this document (statementborrower), then you can see that the document contains both the loan amount, and the loan term, and the interest rate on loans, and the nature of the legal relationship, and even contains data from both the lender and the borrower. The liability of the parties in case of default is also contained in the offer.
Thus, it is established and legally proved,that the application, questionnaire or other document submitted by the borrower to the Bank for granting a loan can be regarded as an offer in the sense of Part 1 of Art. 435 Civil Code of the Russian Federation.
What is contained in the offer of the borrower infringing on his rights of man and citizen? Why do banks apply this form when concluding a loan agreement for servicing a bank card.
To deal with this issue it is necessary to address and analyze the offer of the borrower.
Consider the offer of the borrower in ZAO Bank "Russian Standard".
The offer states that the borrower recognizes its application as an offer and asks the Bank to enter into a mixed contract with it, the elements of which are:
1. Open to him a bank current account;
2. Issue a bank card in his name;
3. And it does not mean ambiguously to procredicate the account opened by the Bank in the manner of art. 850 Civil Code of the Russian Federation.
Let's consider these proposals in more detail.
1. Opening of bank current accounts.
In accordance with Art. 845 of the Civil Code of the Russian Federation under a bank account agreement, the bank undertakes to accept and credit incoming funds to the account opened to the customer (the account holder), to execute the client's orders for transferring and issuing the corresponding amounts from the account and conducting other operations on the account.
In accordance with Part 2 of Art. 846 of the Civil Code of the Russian Federation The bank is obliged to enter into a bank account agreement with a customer who has applied to open an account on the terms and conditions established by the bank for the opening of accounts of this type that meet the requirements established by law and established in accordance with banking rules.
Thus, the legislator gives us the notion ofthat in the event that the borrower receives an offer to the Bank to enter into a bank account agreement with him, in such a case the Bank is obliged to conclude a bank account agreement with the client who applied to him with such an offer. Thus, it becomes clear that in this case we are not talking about the general terms of contract in the sense of art. 435, part 3 438 of the Civil Code of the Russian Federation, but we are talking about the mandatory procedure for concluding a contract
The obligatory procedure for concluding a contract by submitting an offer is regulated by Art. 445 Civil Code of the Russian Federation.
According to Part 1 of Art. 445 of the Civil Code of the Russian Federation in cases where, in accordance with the Civil Code or other laws for the party to which the offer is sent (draft agreement), the conclusion of the contract is mandatory, this party must send the other party a notice of acceptance, either rejection of acceptance, or acceptance of an offer on other terms (the protocol of disagreements to the draft contract) within thirty days from the date of receipt of the offer.
This is one of the special cases in law. A particular case in this case is regulated by the rules of law (Article 445 of the Civil Code of the Russian Federation), so the general rules of law (part 3 of article 438 of the Civil Code) are applied to the extent that they do not contradict private norms.
Thus, it turns out that within 30calendar days, the Bank is obligated to send a notice of acceptance to the client in writing, specifying the customer's bank account number (in case the Bank has accepted the offer of the borrower client).
However, Banks, contrary to this rule of civilthe legislation does not notify the client of the account number, of its acceptance, but consider acceptance of the actions specified in the offer, namely actions for opening a bank account. In addition, the cards themselves come to customers by mail in simple letters and in 3-6 months, at the very least.
2. Issue a bank card in the name of the borrower.
This point is generally very vulnerable to the following reasons.
Let's turn again to CJSC Bank "RussianStandard". This Bank has the Terms and Conditions for the provision and maintenance of bank cards. Here you can see with an unaided eye that even in the very name of the document, and also about it, in the offer of the borrower, the name of the bank card goes.
And what kind of map does this have? After all, bank cards come in several forms - debit, credit, salary, discount, etc. In addition, following the content of the offer in ZAO Bank "Russian Standard" borrower asks the Bank to conclude a mixed card agreement with him. The agreement on the card - without explaining what kind of card this card is. Already in the very title of the Treaty, the name of the General Conditions for the provision of bank cards is a violation of the law, since the nature of legal relations with the Bank can not be determined from the content of documents.
The offer states that the borrower fully agrees,acquainted and undertakes to comply with the General Conditions, Tariff Plan. However, these word-combinations contradict the meaning of Part 1 of Art. 435 of the Civil Code of the Russian Federation, since the offer must contain the essential terms of the contract, and not the essential terms of the contract should be attached to the offer. In addition, the offer does not specify the exact terms and conditions for the provision of bank cards, the borrower is acquainted with the date, number of persons, by whom they are put into effect and the period of validity of these General Conditions. Analysis of practice shows that when the Bank requires these documents (General Conditions, Tariff Plan) it turns out, in most cases, that on these General Conditions, Tariff Plans do not cost the client's signature.
Analyzing the current situation, the court risesquestion - and with what conditions and tariff plan was the borrower acquainted? The offer does not mention this, the terms themselves do not have a borrower's signature. But courts, fearing, most likely the cancellation of their decisions in higher courts, ignore this requirement of the law and give legal effect to the offer of the client (borrower).
However, as can be judged from all of the above,neither the General Conditions nor the Tariff Plan is signed by the client, these documents do not bear the date of their adoption, by whom they are accepted. And according to the laws of jurisprudence, such a document can not be considered a proof, since it does not contain the elementary requirements that the law makes to such evidence.
3. Procredit an open bank account in the manner of art. 851 Civil Code of the Russian Federation
In accordance with Art. 850 of the Civil Code of the Russian Federation in cases where, in accordance with the contract of the bank account, the bank makes payments from the account, in spite of the lack of funds (crediting of the account), the bank is considered to have granted the client a loan for the corresponding amount from the date of such payment.
Here you have the answer to all the questions. Issuing a credit card and concluding with the borrower the Agreement on the Card, the Bank applies completely different provisions than the provisions on the loan agreement.
In fact, there is no loan agreement. There is a bank account agreement and crediting this account.
With the naked eye it is immediately evident that the main element of such a mixed Card Agreement is the Bank Account Agreement.
Hence, according to the meaning of the law, it becomes clear andIt is clear that the borrower does not care when the Bank accepted the offer and made an acceptance, i.e. actions specified in the offer. The borrower does not care if the account is opened, when the funds are transferred to his account. The principal written notice to the Borrower in the order of Article 445 of the Civil Code of the Russian Federation.
However, the Bank does not send a notification. What then should happen?
Unfortunately, there is a verythere are many points of view. The law does not provide any liability for the fact that the Bank missed the deadline for written notification of the borrower about the account number. Those. Banks, without notifying the client within the due time, bear no responsibility, and the courts are on the side of the Banks, although as can be seen from the analysis of these norms - such a contract does not correspond to the procedure for concluding contracts and can not be recognized as concluded in writing.
This is indicated only by the information letter of YOURF from 05.05.1997? 14 "Review of the practice of resolving disputes related to the conclusion, modification and termination of contracts." According to this information letter, the FAS of Russia informs that in case the notice of acceptance (the account number in our case) was not received in time - the effect of the offer loses legal force and such a contract is not considered concluded.
This point of view is supposed to be consistent with the norms of civil law and the customs of business turnover.
However, the information letter of the Supreme Arbitration Court of the Russian Federation can not be attributed to the norms of law, this is not a law, but the rule of law, i.e. law - do not regulate this issue.
This is the main conflict of law in the matter under consideration.
However, we sorted out the issue that there is no credit agreement, but there is crediting of the bank account.
Banks take the following position in the courts. They claim that you received a card by post, and you called the Bank, activated it, withdrew money, and used money. And how to give money, then immediately there are some fictitious circumstances. Banks take the position that before the activation of the card, even after the activation of the card, but until the withdrawal of cash in the ATM - no interest is charged.
However, this objection of the Banks contradicts articles of the Civil Code of the Russian Federation.
Let us consider in more detail.
As already mentioned, under the contract of bankingaccounts, the bank undertakes to accept and credit incoming funds to the account opened to the client (the account holder), funds, to execute the client's orders for the transfer and issue of the corresponding amounts from the account and for conducting other operations on the account.
Thus, when the Bank lists itscash to the client's card (his bank account) is considered that the funds are provided. And under such circumstances, activation of the card - to become generally meaningless. The bank accepted the client's offer, opened a bank account, attached the open bank account to the bank card, transferred money to the bank card (ie bank account), ie the bank account was credited. According to the offer, Article 438, Part 3 of the Civil Code of the Russian Federation, referred to by the Bank - the Card Agreement has already been concluded, which means that all its items (interest rate, fines, penalties, forfeit) already apply. Why in such circumstances need activation of the card, and what is it provided for? These questions are not answered yet.
However, what happens next, after all the actions that the Bank has carried out, according to the borrower's offer. And then the bank card comes by mail in a simple letter.
What's going on?
According to the current legislation of RussiaIt is assumed that all citizens know the law. Ignorance of the law is not an excuse. So, suppose that everyone knows the law. Then, according to the logic of things, the following happens. The borrower receives a bank card with a booklet - how to use this card (instructions for use). On the card it is not written that it is credit. The booklet indicates which ATMs to use, for how long it is issued, what to do if the ATM machine "healed" the card, how to receive the pin code, etc. There is no credit at all.
So, the borrower knows that he was making an offerfor the conclusion of the Card Agreement, but he did not receive a written notice of the account number. Consequently, the borrower reasonably believes that the offer is canceled, the contract is not concluded. And this card is mailed by the borrower in its essence as an offer of the Bank to him about concluding an interest-free loan agreement.
Why? Because the offer must contain all the essential conditions of the contract. In the booklet - instructions on servicing - neither about the interest rate, nor about the term of the loan, nor about the monthly payment to say a word. Therefore, it is an interest-free loan.
In addition, bank cards came by mailafter 3-6 months of payment by the borrower of the taken consumer credit (technics on credit). And the borrower, having received the card by mail, in view of the fact that he conscientiously fulfills his obligations, regards this card as a card of a reliable client. Under such circumstances, let's take a loan without interest.
Again, after calling the Bank by phone, and activating this card (ie, made an acceptance). Therefore, the borrower must return the principal amount and the contract is deemed to have been executed.
Thus, the initial offer of the borrower has nothing to do with the bank card sent by mail.
This is the misleading about the quality and quality of the services provided by the banks.
In conclusion, I want to say.
It is worthwhile to think about the fact that in the presenttime bankers have stopped sending cards by mail. If such cards did not violate consumers' rights, would bankers refuse to make good profits in their business? The answer to these questions, I think, you formulate yourself.