ДОГОВОР ЗАЙМА: СПОРНЫЕ ВОПРОСЫ ФОРМЫ И ПРЕДМЕТА

Abstract

Рассмотрены особенности формы договора займа, документального подтверждения его заключения, определено правовой статус расписки и ее значение в заемных отношениях, как письменного доказательства заключения договора и получения займа под обязательство его возврата. Подтверждена возможность предоставления на территории Украины денежных средств в заем как в национальной валюте гривне, так и в иностранной, которая индексации не подлежит. Доказано, что не зависимо от валюты долга, валютой платежа по договору займа является национальная валюта Украины. ; Often at the conclusion and realization of the loan agreement arise disputes about the form and the possibility of usage as a subject of the contract the foreign currency. Relevance of the research topic. The lack of unity in the theory and practice of legal regulation of the form of the loan and its subject, requires further scientific research of its individual provisions. Recent research and publications analysis. The research of the legal regulation of loan relationship explores by many scientists, including Bezklubiy I.A., Krivenda O.V., Lepeh S.M., Tupitskaya E.A. and others. But the question of form and subject matter of the loan agreement nowadays remains without proper legal assessment. Paper objective. The research and analysis of the provisions of the current legislation of Ukraine and judicial practice on the form of the loan agreement, documented conclusions and its conditions, and the ability to use foreign currency as the subject of the loan agreement. Paper main body. The legal nature of the loan agreement was considered. The agreement determines the transfer of the ownership of borrower money or other things, with the generic characteristics under the obligation to return the same amount of money (the loan amount), or the same amount of things of the same kind and quality. It is real and one-sided agreement, it can be orally and in writing. It was established that hand receipt or other document certifying the transfer of creditor a sum of money or a certain number of things is important documentary evidence of the transfer of the loan. The usage of hand receipt goes beyond the scope of the loan agreement. It can be confirmed not only by the fact of transfering the funds or property, but with the fact of performance of the obligation. For the storage hand receipt can replace the contract. The point of view of some authors, supported in some cases by judicial practice, that hand receipt replaces a written loan agreement was disproved because it is neither a loan agreement concluded in written form, no deal. The hand receipt is only written confirmation of the loan agreement, its terms and conditions. It is confirmed that the use of foreign currency in Ukraine is allowed in cases established by law. It was argued that the transfer of foreign currency loan is not an obligation and does not require an individual license of the National Bank of Ukraine. Therefore, the transfer of foreign currency loan does not contradict Ukrainian legislation. Execution of the Borrower's obligations under the loan agreement, the subject of which is foreign currency carried out in local currency at the exchange rate of the National Bank of Ukraine. Inflation rate determines the level of depreciation of the purchasing power of the national currency of Ukraine UAH. Therefore, the subject of indexation is hryvnia. Conclusions of the research. Hand receipt is the only proof of the conclusion of the loan agreement and its terms and conditions. It can not be invalidated. Foreign currency can be transferred on loan. The return of the loan is made in local currency at the official rate for the day of return. Foreign currency, which is the subject of the loan agreement, is not the subject of the indexation.