ПРОБЛЕМИ ЗАХИСТУ ПРАВ СТОРІН ДОГОВОРУ ПОЗИКИ, ПОВ’ЯЗАНІ З НЕДОЛІКАМИ ЙОГО ОФОРМЛЕННЯ

Abstract

The legal requirements for the form of the loan agreement are analyzed. It is determined that the loan agreement may be concluded in writing by recording the content of the agreement in one or more documents (including electronic), in letters, telegrams exchanged by the parties, as well as to confirm the fact of the agreement and its terms the borrower’s receipt may be issued. The main problems encountered in the judicial practice of resolving disputes arising from the loan relationship and related to the shortcomings of the loan agreement are identified. It is established that courts when considering the cases of debt collection under a loan agreement, executed by a single document signed by both parties, need to analyze in detail the content of the agreement and from its points to draw conclusions about whether funds were transferred during the agreement. In itself, the existence of a written agreement does not always confirm the transfer of funds and, accordingly, its conclusion. The main conditions for the novation of the debt into a loan obligation are worked out and the rules for drawing up the relevant agreement are established. The condition for the application of the innovation is the existence of an outstanding undisputed monetary obligation between the parties. The novation agreement shall be concluded in compliance with the form prescribed by the law for the loan agreement in Art. 1047 of the Civil Code of Ukraine. Moreover, in contrast to the original loan agreement, to confirm the conclusion of the novation agreement, a receipt from the borrower can not be considered sufficient. The novation agreement shall contain a condition on the original monetary obligation and the grounds for its occurrence and a condition on the termination of this obligation. This agreement shall also specify the amount of the loan, the debtor's obligation to return the specified amount to the creditor and the terms of such repayment. Compliance with these requirements must be taken into account by the courts in resolving disputes arising from debt novation agreements into debt obligations. It is also advisable to supplement Art. 1053 of the Civil Code of Ukraine with the provisions on the essential terms of the contract of novation. The cases of execution of a written loan agreement or a promissory note without actual transfer of funds to the borrower are analyzed. It is proven that a loan agreement can be challenged due to its lack of money in court by filing a lawsuit to invalidate it. In this case, the ground for recognizing such an agreement invalid is the failure of the party (parties) to comply with the requirements established by parts one ‒ three, five and six of Article 203 of the Civil Code of Ukraine (e.g. fraud, error, violence), which led to that the money or items were not actually received by the borrower from the lender or were received in smaller quantities than specified in the contract. Amendments to the relevant legislation and recommendations to the courts in its application are proposed.