Виконання зобов’язання внесенням боргу на рахунок ЕСКРОУ як альтернатива його внесенню на депозит нотаріуса за законодавством України

Abstract

Annotation. The article deals with the extension of the scope of an escrow account contract application in Ukraine. Amendments were made to Article 537 of the Civil Code of Ukraine, which introduced the possibility of fulfilling the obligation by the debtor by depositing cash or securities into the escrow account. The author analyzes the conditions envisaged by law under which the aforementioned mechanism is available for use. Based on the study of regulatory legal acts of the National Bank, the author establishes the algorithm of actions in case of its application, in particular, the procedure for the participation of a notary. The author analyzes and compares the legislative provisions on the procedure for returning funds to the person who deposited them in order to fulfill an obligation into the deposit of a notary and into the escrow account. In this context, the author analyzes the meaning of the term "depositor" in the legislation on the depository system and in the Procedure for Notarial Acts by Notaries of Ukraine, and draws conclusions about the differences in their meaning. It is found out that the return of monetary amounts and securities to the person who deposited them with a notary is allowed only with the consent of the creditor, which must be in writing. At the same time, termination of the escrow account contract is also permitted only upon receipt of the beneficiary’s written consent. The possibility of returning funds without his consent exists only if there is a relevant court decision. The author examines the peculiarities of an escrow account contract in the context of the beneficiary’s right to instruct the bank to transfer funds from the account to another person, as well as the period during which funds may be received from it as compared to a notary’s deposit. The author clarifies the procedure for protecting the rights and interests of a person who has been unreasonably denied a notarial act such as acceptance of a sum of money or securities from a debtor and crediting them to an escrow account. The author proposes to amend the Law of Ukraine "On the Notary Office" in accordance with the new wording of Article 537 of the Civil Code of Ukraine with an indication of such type of notarial acts as acceptance of a debt from a debtor with opening of an escrow account.