A mortgage is a pledge of real estate to secure obligations to a creditor. At mortgage lending the borrower receives a loan to buy real estate. His obligation to the creditor is the repayment of the loan, and the pledge of real estate ensures the fulfillment of this obligation. At the same time, you can buy and mortgage not only housing, but also other real estate objects - land, a car, a yacht, etc. Property purchased under mortgage program, is the property of the loan borrower from the moment of acquisition.
Mortgage has been known for a long time and was successfully used hundreds of years before our era in public entities in what is now China.
The word mortgage is of Greek origin. It was first used in the legislation of Solon (VI century BC).
In 594 BC Solon, one of the legendary "seven wise men" of antiquity, proposed to put up a pillar with an inscription on the debtor's estate (usually on the boundary line), stating that this land serves as security for the rights of the creditor for a certain amount. Such a pillar was called a mortgage (from the Greek huroteka - stand, prop). It marked all the debts of the owner of the land. Later, special books called mortgage books began to be used for this purpose. Already in Ancient Greece publicity was provided, allowing each interested person to freely ascertain the state of this landed property. In other words, a single agreement between the seller and the buyer was not enough to acquire ownership of land or other real estate with a mortgage. A condition was required under which third parties could be convinced of the existence of such a right, namely, the availability of special available information about this right.
The modern concept of a mortgage did not arise immediately. Its appearance was caused by the economic needs of society, the development of its commodity-money relations. Over time, it has been constantly improved, reflecting the characteristics of time and a particular country.
Particular merit in the development of legislation in the field of legal support for the fulfillment of obligations belongs to Roman civil law. It is it that introduces into practice a system for ensuring the fulfillment of obligations by a pledge not movable property.
Initially, the property pledged under the agreement was transferred to the creditor in ownership until the debtor fulfilled his obligations. This form of property security was called "fiducia" (from the Latin fiducia - a transaction on trust, or a trust transaction). At the first stage of the development of the fiduciary institution, the debtor had practically no protection, and the creditor himself decided what was more profitable for him: to demand payment of the debt from the borrower or not to return the property to him. In Old Russian and Old German civil law, the acquisition of ownership by a creditor was not related to the moment of establishing a pledge, but to the moment of delay in fulfilling an obligation.
Subsequently, an official provision was introduced to the pledge document, which canceled this rather advantageous alternative to the creditor. According to this provision, if the debtor fulfilled his obligation, an action was issued for the return of the thing (actio fiducia). The parties to the fiduciary could set conditions in the contract:
pactum vendendo, which gives the creditor the right, in the event of non-payment of the debt, to sell the pledged thing and pay off the debt from the proceeds;
lex commissoria, which gives the creditor the right to keep the pledged thing in case of non-payment of the debt.
But all the same, there were quite serious legal aspects in the technology of the transaction that the lender could take advantage of and which were unprofitable for the borrower.
The next form of development of real security - pignus (from Latin pignus - informal pledge) - to a greater extent protected the borrower from the willful actions of the lender. The pledge agreement at this stage provided for the transfer of the pledged real estate no longer into ownership, but only into possession, and only as a guarantee of the fulfillment of the obligations assumed by the borrower. At the same time, he could use the pledged thing either as a tenant or temporarily. Moreover, the debtors had the right to demand that the creditor not use this property, but only keep it. The creditor retained the conditional right to sell the pledged thing in order to recover his funds, only if the borrower failed to fulfill his obligations. At the same time, even then the creditor was forbidden to keep the real estate (collateral) for sale at home. In case of non-fulfillment of obligations by the debtor, after the sale of real estate, the creditor returned to the borrower the entire difference between the proceeds for real estate and the balance of the debt. This type transactions were carefully regulated. Requirements that were not included in the regulation were the subject of special litigation.
This form of collateral increased the creditor's confidence in the repayment of the debt, but created significant difficulties in the management of real estate. In addition, the need for borrowed capital rarely corresponded to the value of the property provided as collateral. All this hindered the development of credit relations, generated material losses not only for the lender and borrower, but also for the state.
The appearance of the mortgage itself was justified by political and economic conditions of that time: the weakening of the slave-owning economy in Rome and the massive transfer of land to tenants led to the emergence of the classical institution of the mortgage. According to the existing legislation, no existing legal form was suitable for guaranteeing this type of transactions between land owners (latifundists) and tenants, since small tenants had nothing but tools that they, by virtue of their profession, could not pawn. The way out of this situation was the introduction new form collateral - a pledge by tenants of the tools themselves, and without transferring the collateral into the possession of the lessor.
Later, a new type of pledge spread to other types of property, in particular real estate. concept mortgage security meant material support obligations, but without the transfer of real estate to the person to whom it guaranteed the fulfillment of the obligation.
A mortgage loan enabled the mortgagor to continue to use the collateral for his own needs, and the lender to exercise some control over its use in order to prevent deterioration or disappearance of the collateral.
Thus, the concept of "mortgage" is based on the ancient Roman principles of pledge, being its more perfect form. Over time, only the conditions for granting, the volume and purpose of a mortgage loan, and the reliability of its security have changed.
Mortgage is one of the forms of property security of the debtor's obligation, in which real estate remains in the ownership of the debtor, and the creditor, if the latter fails to fulfill his obligation, acquires the right to receive satisfaction through the sale of this property.
The debtor's obligation can be not only a bank one, but also an obligation based on the sale, lease, contract, other contract, damage, etc.
The mortgage secures the payment to the pledgee of the principal amount of the debt under the loan agreement, interest for the use of the loan (borrowed funds), as well as other expenses associated with foreclosure and sale of the pledged property and compensation for the creditor's losses due to improper performance of the obligation secured by the mortgage.
The salient features of a mortgage are:
firstly, a mortgage, like any pledge, in essence, is a way to ensure the proper performance of another (main) obligation - a loan or loan agreement, a lease agreement, a contract, compensation for damage, etc.;
secondly, the subject of mortgage is always real estate. To real estate include land plots and everything that is firmly connected with them: buildings, structures, perennial plantations, etc.;
thirdly, the subject of mortgage remains in the possession of the debtor. The latter remains the owner, user and actual owner of this property;
fourthly, the agreement between the creditor and the debtor on the establishment of a mortgage is drawn up in a special document - a mortgage, which is also subject to state registration;
fifthly, if the value of the collateral exceeds the amount of the issued loan, the mortgage makes it possible to obtain additional mortgage loans secured by the same property (second, third mortgage).
And finally, in case of non-fulfillment of an obligation secured by a mortgage, the creditor has the right to demand the sale of the pledged property at public auction.
In this way, mortgage-- this is a loan, obligations, the return of which is secured by a pledge of real estate (mortgage).
Mortgage lending is a holistic mechanism for the implementation of relations arising from the organization, sale and servicing of mortgage loans.
The concepts of "mortgage" and "mortgage lending" are closely related, but not identical. Mortgage lending as a system of financial and economic relations includes mortgage as a basic subsystem -- part or an essential element in the form of direct collateral technologies.
On the other hand, mortgage lending is one of the types of transactions with real estate, the obligations under which are secured with the help of a mortgage.
Dear readers! The article talks about typical solutions legal issues but each case is individual. If you want to know how solve exactly your problem- contact a consultant:
It's fast and IS FREE!
The legislation does not make it a mandatory condition to secure a loan when it is received. In such a situation, credit institutions have the right to establish the rules and conditions themselves, since the issuance of large sums of money for long term, without additional guarantees, is a rather risky business.
Thus, loan security acts as a set of legal measures aimed at reducing the risk of non-repayment of borrowed funds and obtaining additional guarantee measures by the lender.
Currently, on financial market valid a large number of institutions that put forward various conditions and lending programs. Getting a loan has not become a problem, and many customers believe that banks lend funds to any category without putting forward strict requirements.
In fact, such organizations always foresee their risks and include their minimization in the terms of borrowing, thereby minimizing them.
There are two instruments that guarantee the maximum level of return on borrowed funds:
Client verification options depend on the amount they are requesting. The larger the amount, the more carefully it will be checked. The security service of the bank and the credit committee are engaged in checking.
Loan collateral is an acceptable and legal procedure used by banks. Most often, institutions are required to provide property with high liquidity as collateral.
The classic view is real estate and vehicles. To expand interim measures, banks began to accept jewelry, securities, deposit accounts, etc. as collateral.
Collateral is used to ensure that the transaction being concluded is as safe as possible for the creditor. It gives a guarantee that the issued loan will be fully repaid, or in the event that the client does not fulfill the obligations assigned to him under the contract, the lender will be able to return his money in any case.
Thus, interim measures are a well-established guarantee of return Money.
In assuming a secured loan obligation, the borrower must be aware that if the debt cannot be repaid, the lender will receive legal ownership of the security property. If we are talking about a guarantee, then the persons who acted as guarantors will assume the loan obligations of the applicant.
The main conditions for placing collateral include:
| When placing collateral property, its material assessment is carried out | and the condition is written in , including its total estimated value |
| If you fail to fulfill your obligations | the object of security becomes the property of the creditor |
| Only citizens with Russian citizenship can apply | any property of the client that has a certain value can act as collateral |
| The involvement of guarantors may act as another means of security. | if a person fails to return the loan taken in a timely manner, all responsibility for its return lies with the guarantors |
| Through the court, the guarantor can be held liable for property liability in terms of repayment of a debt obligation | collateral can be a penalty charged for late payments by the client |
What kind of security will be chosen is decided in individually upon agreement of credit terms between both parties.
Video: how to draw up a loan agreement correctly
A secured loan is issued in the usual manner, that is, a potential applicant applies to a credit institution with an application. The main thing is that in terms of lending, we should talk about the provision of certain security for the transaction being concluded.
Basic moments:
Collateral is a popular measure that gives the bank additional guarantees for the timely repayment of the loan.
The most common safeguards are:
Quite often, security is required when participating in various tenders, auctions, for the supply of certain goods and services. Not always the participant of the procedure has the necessary amount to confirm his financial solvency.
In this case, a loan is issued to secure the application. This type is issued for a period of validity.
Each credit institution establishes specific security measures independently and, in agreement with the client, adjusts in the process of concluding a transaction.
The most popular loan collateral is real estate. Owning such property, the borrower can expect to receive a fairly large amount of money for a long period, and the lender, a guarantee of the return of their investments.
Among the types of real estate that can act as collateral, there may be:
Residential real estate is accepted as collateral by many credit institutions, since it is it that can be quickly and profitably sold if the borrower cannot return the borrowed funds.
Lands and summer cottages are accepted less frequently, since legislation in this area is not fully regulated and problems often arise with the sale of property. In addition, the price of land and cottages can change quite quickly.
In special credit programs, garages and commercial real estate can act as an interim measure.
Do not forget that an additional pledge of real estate is regulated by the rules, which spell out the procedure for concluding this type.
All real estate transactions are subject to state registration, which may take additional time for its registration.
Vehicles are the second most popular type of collateral. This type of property is liquid and quickly sold, in case of non-payment of the debt by the borrower.
Peculiarities:
On the security of the car, the client can take a large amount of money. This type of property, acting as collateral, does not require additional registration when making a deal, therefore, it can be concluded within one hour.
When concluding between individuals, the following can act as collateral:
The transfer of special valuable property (apartment, houses, vehicles, etc.) can act as an object only with prior receipt consent of the client's relatives who have the same ownership rights to him.
An interest-free loan can be provided if a condition is included in the agreement on the deposit of the client's personal valuables as a pledge.
must contain the following conditions:
As in other cases, if it is impossible to repay the debt on time, the property acting as collateral for the transaction becomes the property of the creditor.
A common type of provisional measures is a surety from third parties. In the event that the borrower fails to fulfill its repayment obligations, the creditor will first demand the repayment of the debt from him.
And only if the original debtor does not repay the debt, the claims will be sent to the guarantor. Under one contract, one or more guarantors can be involved, it all depends on the amount.
Getting a secured loan is one of the convenient ways lending, because thanks to the security, the client simplifies the procedure for registration and shows the bank the seriousness of their intentions to repay the debt.
Registration of this type takes place according to the traditional scheme used by almost all banking institutions. For the client, it is necessary to know the registration procedure itself and all the nuances related to it.
When concluding a deal with collateral, you will need to collect a certain package of documents, which will differ depending on what the subject of collateral will be.
To draw up a loan agreement between individuals, the following documents will be required:
If the subject of collateral is motor vehicles, title documents for it will be required (registration certificate, OSAGO policy, diagnostic card, valuation report on the cost of the car, etc.).
If the object of the loan is real estate, then the package required documents will include:
If the property is transferred together with the land on which it is located, the following may additionally be required:
When guaranteeing, the parties provide only their passports. When drawing up a contract, it is important to pay attention to the mandatory indication in the conditions of the details of the parties and their signatures.
If these data are missing, the contract will be considered not concluded. In addition, a sample agreement with collateral includes the amount of the loan, interest, payment schedule, list of property acting as collateral, its location during the entire term of the agreement, etc.
The contract is always concluded in writing. As a rule, banks work according to a standard contract form developed within the institution.
Borrowers should be aware that it is not possible to get a loan secured by any property or any other security. Each credit institution imposes its own specific requirements on the object of collateral. If it does not respond to them, then the applicant may be denied receipt.
The main requirements include:
The period of interim measures is equal to the period for which the borrower assumes credit obligations. As soon as they are fully executed, all encumbrances from the object will be removed.
To secure a loan with collateral, a specialist in a credit institution must calculate the amount of obligations of the future debtor, according to the following scheme - accrued interest for the period of using the funds (based on the repayment schedule) is added to the loan amount, resulting in a loan obligation.
The next step is to evaluate the collateral for the loan. It must necessarily fully cover the amount of the obligations taken on the loan. When providing with especially valuable property, the registration of contracts takes place in the competent authorities and is notarized.
For a more accurate understanding of the calculation procedure, you should pay attention to the following two examples:
| Example 1 | the borrower has issued a loan to replenish the working capital of the enterprise. The amount amounted to 5 million rubles, at a rate of 11% per annum Term - 5 years. As an interim measure, three bedroom apartment, the estimated cost of which is 16 million rubles. When calculating the collateral value of real estate, a credit institution applies a liquidity ratio ranging from 40 to 70% of total cost property. In this situation, the coefficient will be 50%. Thus, the apartment will be valued at 8 million rubles. Now you should calculate the amount of obligations - 5 million rubles * 11% * 5 years = 7,750,000 rubles. The provided obligation will fully cover the funds taken by the borrower |
| Example 2 | individual draws up a mortgage loan for the purchase of an apartment, the cost of which is 14 million rubles. The interest rate on the loan is 10% per annum for a period of 10 years. In case of mortgage lending, the acquired property will act as a security measure. The liquidity ratio will also be 50%. Based on the initial cost of the apartment, the estimated cost, after applying the coefficient, will be 7 million rubles. The amount of liabilities to the bank will amount to 28 million rubles (14 million rubles * 10% * 10 years). There is a difference of 21 million rubles. This difference will require an additional deposit. In mortgage lending, one of the conditions is the contribution of own funds to the acquired property ( an initial fee). The amount of such a contribution varies from 30 to 70% |
Thus, the exact amount of security depends on many circumstances and is calculated individually in each case.
Security benefits include:
The disadvantages of security include:
When pledging property, the borrower should pay attention to the possibility of using it during the encumbrance period, otherwise, he may not be in the most advantageous situation.
Do not lose sight of the fact that a large number of scammers operate in the credit market. By persuading a borrower who may need money very urgently, the lender puts him at a disadvantage and receives his collateral at a low price.
When concluding any agreements related to securing a loan, you should carefully read the terms of the loan, especially in terms of the procedure for providing collateral.
When applying for a secured loan, you should correctly calculate your strength in terms of debt repayment, since at the slightest violation of the conditions, the borrower may lose his property.
APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.
In accordance with Art. 329 of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), the fulfillment of obligations may be secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or an agreement. A penalty (fine, penalty) is present, as a rule, in all loan agreements, but is, in essence, a certain measure of the debtor's liability for failure to fulfill obligations to the creditor. The penalty cannot be attributed to effective ways to ensure the fulfillment of obligations. Non-repayment of a loan by a borrower, as a rule, is associated with a lack of funds from the latter, which does not allow collecting a penalty from him, among other things. Withholding and deposit are not used to secure the performance of credit obligations, as they are incompatible with the nature of credit obligations. The most effective ways to ensure the fulfillment of obligations of borrowers under loan agreements, which are most often used by credit organizations, are collateral, surety and bank guarantee. This article is devoted to the consideration of the features of the pledge.
When deciding the issue of granting a loan to a particular borrower, the authorized body (official) credit institution accepts credit risks either on the financial condition of the borrower, or on certain security for the performance of obligations (pledge, guarantee, bank guarantee). And you should always remember the principle contained in paragraph 3 of Art. 329 of the Civil Code of the Russian Federation: the invalidity of the main obligation entails the invalidity of the obligation securing it, unless otherwise provided by law (for example, in relation to a bank guarantee). Therefore, when accepting credit risks as collateral, it is necessary to be sure that the main obligation - loan agreement is a valid transaction in accordance with the law.
To do this, when deciding whether to grant a loan to any legal entity, you need to make sure that such entity registered in the Unified State Register of Legal Entities, analyze its constituent documents for legal capacity and the structure of governing bodies to determine the body authorized to make a decision on obtaining a loan and sign a loan agreement. At the same time, in without fail it is checked whether the term of office of the specified body has expired and whether it has been properly elected (appointed), for which the borrower is requested copies of the protocols (decisions) on the election (appointment) of this body. In cases stipulated by the current legislation or the constituent documents of a legal entity, the authorized body must make a decision on obtaining a loan by the borrower, a duly certified copy of which is provided to the creditor. This decision must contain all the terms of the loan received that are essential for this transaction (amount, term, interest rate, type of collateral, intended use of the loan and other conditions recognized as material parties to the loan agreement). The same legal expertise should be carried out in respect of pledgors and guarantors. At the same time, it is necessary to take into account the legal capacity of various types of legal entities.
For example, the Federal Law of November 14, 2002 N 181-FZ "On State and Municipal Unitary Enterprises" (hereinafter - Law N 181-FZ) provides that transactions of unitary enterprises, in which there is an interest, large transactions (Article 22 , 23), as well as transactions for the provision of guarantees and pledge of immovable property (Article 18) must also be carried out by unitary enterprises with the consent of the owner of the property of a unitary enterprise. This must be remembered when concluding surety agreements and pledge agreements with unitary enterprises as security for the fulfillment of borrowers' obligations. In addition, one should take into account the special legal capacity of a unitary enterprise (Article 3 of Law N 181-FZ) - the ability to have civil rights corresponding to the subject and goals of its activities provided for in the charter of this unitary enterprise, as well as the fact that unitary enterprises can be created in cases specifically provided for in Art. 8 of Law N 181-FZ.
In connection with the foregoing, we can conclude that the ability to act as a guarantor and pledgor as security for the fulfillment of obligations of a third party should be provided for by the charter of a unitary enterprise. An interesting rule is contained in paragraph 3 of Art. 18 of Law N 181-FZ, which provides that a state or municipal enterprise disposes of movable and immovable property only to the extent that does not deprive it of the opportunity to carry out activities, the goals, subject and types of which are determined by the charter of such an enterprise. Transactions made by a state or unitary enterprise in violation of this requirement are void.
Consider an example. A unitary enterprise engaged in air transportation of passengers and having three passenger aircraft in its economic management, when receiving a loan from a bank, transfers these aircraft as collateral. If this enterprise fails to fulfill its obligations to repay the loan, foreclosure may be levied on the aircraft, and they will be implemented in the manner prescribed by applicable law. Thus, when concluding such transactions with a unitary enterprise, it is necessary to assess how much the alleged subject of pledge is occupied in the production process and whether its alienation will lead to the impossibility of the unitary enterprise to carry out its statutory activities. Although the pledge itself is not a transaction for the alienation of property, the possible realization of the pledge may be a void transaction, and accordingly such a pledge cannot be regarded as proper security.
It should be remembered that the invalidity of a loan agreement entails the invalidity of the obligation that secures it, unless otherwise provided by law (clause 3 of article 329 of the Civil Code of the Russian Federation). Thus, if the loan agreement is recognized as invalid, including on the grounds discussed above, the collateral (guarantee, pledge, except for a bank guarantee) will be lost.
Pledge as a way to secure the fulfillment of obligations
The most effective way to ensure the fulfillment of obligations is a pledge, since the satisfaction of the creditor's requirements through a pledge does not depend on financial condition neither the debtor nor the guarantor, which makes it possible to actually fulfill the obligations of the debtor to the creditor at the expense of the property that is the subject of pledge.
According to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) has the right, in the event that the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law. The rule on priority in foreclosure also confirms the advantage of a pledge over other methods of securing obligations.
In order for a pledge to be a truly appropriate and effective method of security, it is necessary to pay attention to the following important points when considering a specific property as a subject of pledge.
1. In accordance with Art. 335 of the Civil Code of the Russian Federation, the mortgagor of a thing may be its owner or a person having the right of economic management over it, and the mortgagor of a right - a person who owns the pledged right. Accordingly, the potential mortgagor must provide the lender with documentary evidence of his rights to the property offered as collateral. Such documents can be: an agreement on the basis of which the property was acquired (rights were transferred), with proof of the transfer of ownership of the property in the manner prescribed by Art. Art. 223, 224 of the Civil Code of the Russian Federation (act of acceptance and transfer, waybill, bill of lading, other document of title, depending on the terms of the contract), or transfer (emergence) of rights; for property (right) subject to state registration - the relevant certificate of registration.
In practice, a situation often arises when the pledgor cannot provide an agreement that is the basis for the acquisition of property, due to its loss over the years. In this case, Art. 234 of the Civil Code of the Russian Federation on acquisitive prescription. According to this article, a person - a citizen or a legal entity - who is not the owner of the property, but in good faith, openly and continuously owns as his own real estate for fifteen years or other property for five years, acquires the right of ownership to this property.
In accordance with paragraph 4 of Art. 234 of the Civil Code of the Russian Federation during the period of acquisitive prescription in respect of things held by a person from whose possession they could be claimed in accordance with Art. Art. 301 and 302 of the Civil Code of the Russian Federation, begins no earlier than the expiration of the limitation period for the relevant requirements.
In paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court RF dated 25.02.1998 N 8 states that the period of acquisitive prescription begins no earlier than the expiration of the limitation period on the vendication claim of the owner or other title owner.
The term applicable to the specified requirements limitation period is three years (Article 196 of the Civil Code of the Russian Federation) and in accordance with paragraph 1 of Art. 200 of the Civil Code of the Russian Federation begins to flow from the day when the person whose right was violated learned or should have known about the violation of his right. Based on the norm of paragraph 1 of Art. 200 of the Civil Code of the Russian Federation, it is not possible to definitely establish the moment when the limitation period begins to run, this issue is an estimate and should be decided in each case, taking into account specific circumstances. Moreover, as a rule, these circumstances are known only to the potential plaintiff, and the person who considers himself the owner of the property by virtue of the rules on acquisitive prescription does not have information about when the owner (another owner) found out about the violation of his rights. Therefore, by studying the documents confirming the ownership of property, it is impossible to definitely establish the moment when a person's right of ownership arises due to acquisitive prescription. At the same time, taking into account the foregoing, in order to confirm the right of ownership of a person to movable property, it should be assumed that a person claiming property in accordance with the rules on acquisitive prescription must provide evidence of ownership of the said property (as a rule, these are documents accounting) for at least eight years.
When accepting as a pledge the rights of lease or another right to someone else's thing, it should be remembered that such a pledge is not allowed without the consent of the owner or the person having the right of economic management to it, if the law or the contract prohibits the alienation of this right without the consent of these persons.
2. In accordance with Art. 336 of the Civil Code of the Russian Federation, the subject of pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor, in particular claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law. The pledge of certain types of property, in particular the property of citizens, which is not subject to foreclosure, may be prohibited or limited by law. The list of types of property that cannot be levied is contained in Art. 446 of the Civil Procedure Code of the Russian Federation. Article 51 of the Basic Legislation of the Russian Federation on Culture (approved by the Supreme Council of the Russian Federation on 09.10.1992 N 3612-1) provides that cultural values stored in state and municipal museums, art galleries, libraries, archives and others cannot be pledged. government organizations culture. According to Art. 63 of the Federal Law "On Mortgage (Pledge of Real Estate)" mortgage is not allowed:
Land plots that are in state or municipal ownership;
Parts land plot, whose area is less minimum size established regulations subjects of the Russian Federation and regulations of local governments for lands of various purposes and permitted use.
The list of property, the pledge of which is limited, was approved by Decree of the President of the Russian Federation of February 22, 1992 N 179. The List contains property, the free sale of which is prohibited. According to Art. 129 of the Civil Code of the Russian Federation, such property can belong only to certain participants in the turnover, or its presence in circulation is allowed by special permission. So, the pledge of the said property itself is not prohibited, but the pledge holder may have difficulties in foreclosing such property, since the circle of its purchasers is limited. In accordance with Decree of the Government of the Russian Federation of December 10, 1992 N 959, the said property (products) is supplied to consumers who have permission to use it in the Russian Federation, or on the basis of quotas.
Consider some types of collateral that are quite widespread in banking practice.
As security for the fulfillment of obligations to repay the loan as collateral, property rights to funds that will be credited to the mortgagor's account in the future are accepted. As a rule, such a pledge is used if the payer of the funds is a fairly well-known and financially reliable organization. Despite the widespread use of this type of security, it should be remembered that the agreement under which these rights are accepted as a pledge is invalid in accordance with Art. 168 of the Civil Code of the Russian Federation, since it contradicts Art. 336 of the Civil Code of the Russian Federation. Rights to funds may be pledged to the extent that the rights under the contract bank account may be assigned, and during the validity period of the account agreement, a partial assignment of rights under the bank account agreement is not possible. So the pledge property rights in relation to the funds in the account can take place only in relation to those rights that arise after the termination of the bank account agreement (in relation to the balance of funds in the account). This position is based on arbitration practice regarding the possibility of assignment of rights of claims during the validity period of a bank account agreement (see, for example, Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.27.1997 N 584/97, of 04.29.1997 N 4966/96, of 29.04 .1997 N 1435/97).
Pledgers-owners of the exclusive right to a trademark offer banks as security for the fulfillment of their obligations to repay a loan of the right to a trademark. At the same time, RF Law No. 3520-1 of September 23, 1992 "On Trademarks, Service Marks and Appellations of Origin of Goods" does not directly provide for the possibility of transferring the rights to a trademark as a pledge. According to Art. Art. 25, 26 of this Law, the transfer of the exclusive right to a trademark is possible only in the form of an assignment, and the transfer of the right to use a trademark - under a license agreement. The law does not provide for other forms of transfer of a trademark or the right to use it. Thus, to exercise exclusive rights to a trademark or the right to use it in accordance with Art. 350 of the Civil Code of the Russian Federation is impossible. Therefore, these rights cannot be accepted as a pledge.
Quite often, in addition to valuable papers, the features of the pledge of which will be discussed below, the pledger's share in the authorized capital of a limited liability company is offered as a pledge.
Article 22 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies" (hereinafter referred to as the LLC Law) grants a company member the right to pledge his share (part of a share) in the company's authorized capital to another company member or a third party. Pledge of a share in the authorized capital of an LLC to a third party is possible only by decision general meeting members of the company, adopted by a majority of votes of all members of the company, if the need for a larger number of votes of the participants to make such a decision is not provided for by the charter of the LLC. A share in the charter capital of an LLC cannot be pledged if the charter of the company contains a prohibition on such transactions. Thus, the decision on the issue of accepting a share in the charter capital of an LLC as a pledge must be preceded by a legal examination of the charter of the LLC for the presence of the above provisions in it.
You should also check the payment by the participant of the company of his share, which is pledged as collateral, since in accordance with paragraph 3 of Art. 21 of the Law on LLC, the share of a member of the company may be alienated only in the part in which it is paid. If an incompletely paid share is pledged as a pledge, the subject of the pledge will be determined based on the actually paid share of the LLC participant.
3. In accordance with paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, a pledge arises by virtue of an agreement, as well as on the basis of a law upon the occurrence of the circumstances specified in it, if the law provides for what property and to ensure the fulfillment of which obligation is recognized as being in pledge.
The emergence of a pledge on the basis of the law provides, for example, Art. 488 of the Civil Code of the Russian Federation: from the moment of its transfer to the buyer and until the moment of its full payment, the goods are considered to be pledged to the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods, unless otherwise provided by the contract of sale. This rule should be guided by the legal examination of the pledge. Analyzing the contract, which is the basis for the acquisition of the property offered as collateral, it is necessary to pay attention to the payment procedure provided for in the contract. If at the time of pledging the property was not paid by the buyer (pledger), that is, there is a pledge by virtue of law, the pledge of this property as security for the repayment of the loan will be a subsequent pledge. According to Art. 342 of the Civil Code of the Russian Federation, if the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgees. Thus, when accepting property for a subsequent pledge, it is necessary to assess the size and terms of the claims of previous pledgees and correlate them with the assessment of the pledged item, so that the subsequent pledgee has enough money from the sale of the pledged item.
A subsequent pledge is allowed if it is not prohibited by previous pledge agreements. Violation of this requirement entails the recognition of the subsequent pledge as invalid under Art. 168 of the Civil Code of the Russian Federation. To reduce the risk of loss of security for this reason, it is necessary to require the pledgor to provide documents confirming the absence of an encumbrance in the form of a pledge on the property offered as pledge (extract from the pledge record book, extract from the Unified State Register of Rights to Real Estate). In accordance with paragraph 3 of Art. 342 the pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property, provided for in paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, and is liable for losses caused to pledgees by failure to fulfill this obligation.
According to paragraph 5 of Art. 488 of the Civil Code of the Russian Federation, it is possible to require the pledgor to include in the contract under which the property was acquired, the condition that until the moment of full payment, the property is not pledged from the seller.
Based on the law, from the moment of state registration of the borrower's ownership of the relevant residential building or apartment, a mortgage arises for a residential building or apartment purchased or built in whole or in part using credit funds from a bank or other credit institution (clause 1, article 77 of the Federal Law "On Mortgage (mortgage of real estate)" as amended, effective from January 11, 2005. federal law dated December 30, 2004 N 216-FZ).
4. Article 339 of the Civil Code of the Russian Federation establishes the requirement to conclude a pledge agreement in writing, which can be observed in a written agreement drawn up in the form of a single document, as well as in the case of an exchange of documents between the parties to a pledge agreement by means of postal, telegraph, teletype, telephone, electronic or other connection that allows you to reliably establish that the document comes from a party to the contract. In order for the parties to have such an opportunity, they must first agree on the intended means of communication, methods of identifying the parties (postal address, fax number, address Email etc.) and the procedure for exchanging documents (determine the terms, authorized persons, the procedure for the entry into force of an agreement concluded using the means of communication listed above). This agreement can be implemented in a contract drawn up in the form of a single document. For a mortgage agreement, Art. 339 of the Civil Code of the Russian Federation also provides for mandatory registration in the manner established for the registration of transactions with the relevant property.
In addition, this article defines the essential terms of the pledge agreement: the subject of the pledge and its assessment; the amount and term of fulfillment of the obligation secured by the pledge; an indication of which party has the pledged property. A pledge agreement will be considered concluded if an agreement is reached between the parties in the form required in the relevant cases on all essential terms of the agreement (Article 432 of the Civil Code of the Russian Federation). In the absence of at least one of essential conditions the pledge agreement is not concluded.
Consider the essential terms of the pledge agreement in more detail.
Subject of the contract and its evaluation
In addition to the name of the property being pledged, the contract must contain individualizing features of this property that distinguish it from other similar property (model, grade, country of origin, year of manufacture, compliance with GOST, inventory number, serial number, other quantitative and qualitative indicators) . As provided for in paragraph 2 of the Review of the practice of resolving disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26), when determining the subject of pledge in an agreement, not only the type of property, but the individual characteristics of the subject of pledge must also be indicated, allowing it to be distinguished from homogeneous things. Accordingly, in the absence of information in the pledge agreement that individually determines the pledged property, the pledge agreement cannot be considered concluded (see, for example, Resolution of the Federal Arbitration Court of the West Siberian District of December 21, 2004 N F04-8852 / 2004 (7083-A03- 36), Resolution of the Federal Arbitration Court of the Moscow District dated October 7, 2004 N KG-A40 / 9232-04). The exception is goods in circulation, the features of the pledge of which will be discussed below.
The Civil Code does not establish any requirements for determining the valuation of the subject of pledge. At the same time, the property that is the subject of a pledge may have several different estimates: book value, market value, price contained in the decision of the board of directors or the general meeting of the joint-stock company on the conclusion of a pledge transaction, which is a major transaction or a transaction of interest for this joint-stock company . The question arises: which of these assessments should be included by the parties in the pledge agreement as its essential condition? The valuation of the subject of pledge is the valuation determined by agreement of the parties, which may not coincide with either the market or book value. At the same time, the price of the subject of pledge (transaction price) contained in the decision of the board of directors or the general meeting of the joint-stock company on the conclusion of a pledge transaction, which is a major transaction or a transaction with interest, must be included in the pledge agreement as its essential condition.
The valuation of the subject of pledge by the parties to the agreement must be objective and correlated with either the book value or the market value of the subject of pledge. In the current banking practice, the valuation of the subject of pledge is determined by discounting market value property. It seems that in case of a significant underestimation of the subject of pledge, it can be said that the parties did not agree on the specified assessment. It should also be borne in mind that the valuation of the subject of pledge must not be lower than the amount of the obligation secured by the pledge, otherwise there will be no security character of the pledge (unless the pledge secures a part of the main obligation, the amount of which is equal to the assessment of the subject of pledge).
When accepting property as a pledge, one should remember the provisions of Art. 348 of the Civil Code of the Russian Federation, which provides that foreclosure of pledged property may be refused if the breach of the secured obligation committed by the borrower is extremely insignificant and the amount of the pledgee's claims as a result is clearly disproportionate to the value of the pledged property. Thus, the value of the subject of pledge must be commensurate with the amount of the secured obligation.
Secured obligation
The pledge agreement must specify the nature, amount and term of performance of the obligation secured by the pledge. In relation to the loan agreement, in addition to the loan amount, it is necessary to fix the amount of interest for using the loan, the amount of the penalty for the delay in fulfilling the obligation to repay the loan (payment of interest), as well as the terms for repaying the loan (schedule for repaying the loan in installments) and paying interest. To identify the main obligation, you should also indicate in the pledge agreement the details of the loan agreement secured by this pledge agreement (number and date of conclusion).
The pledge agreement must reflect other conditions of the loan agreement that relate to the substance, size and term of its execution. For example, a loan agreement may provide for the lender's right to demand early repayment of the loan upon the occurrence of certain conditions related to the borrower's breach of its obligations under the agreement, with a change in its financial condition, etc. (in accordance with paragraph 3 of article 450 of the Civil Code of the Russian Federation). In this case, we are talking about changing the loan repayment period, which must be described in the pledge agreement without fail.
According to Art. 337 of the Civil Code of the Russian Federation, unless otherwise provided by the agreement, the pledge secures the claim to the extent that it has by the time of satisfaction, in particular, interest, penalties, compensation for losses caused by delay in performance, as well as compensation for the necessary expenses of the pledgee for the maintenance of the pledged item and expenses for collection. In a pledge agreement, the parties may limit the amount of obligations that are secured by this pledge, for example, only by the amount of the principal debt or only by the amount of interest.
In the event of a change in an obligation secured by a pledge, the pledge agreement, which specifies the nature, amount and term of performance of the main obligation, is also subject to change.
Considering the issue of describing the main obligation in a pledge agreement, one should refer to arbitration practice.
Plenum Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in Resolution No. 6/8 of 01.07.1996 (clause 43) provides that in cases where the pledger is the debtor in the main obligation, the conditions on the nature, amount and timing of the fulfillment of the obligation secured by the pledge should be recognized agreed, if the pledge agreement contains a reference to the agreement regulating the main obligation and containing the relevant conditions.
Thus, arbitration practice has developed different approaches to the problem of specifying in the pledge agreement information about the obligation secured by the pledge: for a pledge agreement concluded by the borrower-pledger, it is sufficient to indicate the name of the loan agreement and its details, and in the agreement concluded by the pledgor - by a third party, it is necessary to indicate in addition to all the essential terms of the loan agreement.
In addition to the essential conditions, without the agreement of which the parties to the agreement will consider the latter not concluded, the parties may include other conditions in the pledge agreement: an indication of the moment the right of pledge arises (clause 1 of article 341 of the Civil Code of the Russian Federation), a prohibition by the contract of a subsequent pledge (clause 2 of article 342 of the Civil Code of the Russian Federation), the distribution of responsibilities for the maintenance and preservation of the pledged property (clause 1 of article 343), the procedure for monitoring by the parties of the subject of pledge (clause 2 of article 343 of the Civil Code of the Russian Federation), determining the procedure and conditions for the use and disposal of the pledged property (art. 346 of the Civil Code of the Russian Federation). An essential condition of the pledge agreement in accordance with paragraph 1 of Art. 339 of the Civil Code of the Russian Federation is also an indication of which of the parties has this property.
Which of the parties to the contract has the pledged property
Article 338 of the Civil Code of the Russian Federation provides for two types of pledge, depending on the location of the subject of pledge with one of the parties: a pledge without transfer and a pledge with the transfer of the pledged property to the pledgee (pawn). Pledge without transfer to the pledgee can be, in turn, of three types: ordinary pledge; pledge, in which the subject of pledge is left with the pledger under lock and key of the pledgee; pledge, in which the subject of pledge is left with the pledgor with the imposition of signs indicating the pledge (firm pledge). In banking practice, the usual pledge is most often used - with the collateral being left with the mortgagor. This type of pledge is less effective, since it allows unscrupulous pledgors, in case of unwillingness to foreclose on the subject of pledge by the pledgee, to carry out any actions related to the concealment of the subject of pledge. The solution to this problem can only be periodic monitoring by the pledgee of the subject of pledge. A pledge, which is a more reliable type of pledge, imposes on the pledgee the obligation to take measures necessary to ensure the safety of the pledged property, including to protect it from encroachments and claims from third parties, which makes the pledge unattractive to the pledgee. One of the most reliable and common types of collateral in banking practice in recent years is a mortgage. According to paragraph 1 of Art. 338 of the Civil Code of the Russian Federation, property on which a mortgage is established is not transferred to the pledgee.
Pledge of securities is widely used in banking practice to ensure the fulfillment of credit obligations. In accordance with paragraph 4 of Art. 338 of the Civil Code of the Russian Federation, when a property right is pledged, certified by a security, it is transferred to the pledgee or to a notary's deposit, unless otherwise provided by the agreement. The specified norm speaks only about the pledge of rights certified by a security. At the same time, considering that, in accordance with Art. 128 of the Civil Code of the Russian Federation, securities are classified as property, and Art. 336 of the Civil Code of the Russian Federation provides that any property and property rights can be the subject of pledge, it is legitimate to talk about the pledge of securities as property and the pledge of rights certified by the security. The difference in the definition of the subject of pledge is related to the form of issuance of securities: in documentary form as a document or in non-documentary form by fixing the rights to securities in a special register (Article 142 of the Civil Code of the Russian Federation).
The Review of the practice of consideration by arbitration courts of disputes related to the application of the rules on a pledge agreement and other security transactions with securities (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 21, 2002 N 67) is devoted to the pledge of securities (hereinafter referred to as the Review). According to paragraph 13 of the Review, the right to pledge for book-entry securities arises from the moment it is fixed in the prescribed manner in accordance with Art. 149 of the Civil Code of the Russian Federation, which provides that operations with book-entry securities can only be carried out when contacting a person who officially records rights. Transfer, provision and restriction of rights (including pledge) must
Credit security is a very common phenomenon. In the case of, the collateral for the loan is the housing being bought, if taken, it is the collateral.
Some lenders make collateral a requirement. This significantly reduces the risk of non-payment of loan funds and interest. Some conditions are even tougher - it is collateral that is mandatory.
The most common form of collateral for loans. It involves, in return for funds received from the lender, the transfer of property, property rights or values in an amount higher than the amount of the loan and interest. A pledge can be expressed by the transfer of rights to real estate (mortgage), transport, securities, jewelry, goods, etc. Both the borrower and another person can act as a pledger. In case of non-payment of the loan, the mortgagee has the right to sell the property at public auction. All this happens after sending the borrower a notification about the start of enforcement. A distinction is made between collateral that is at the time of lending with the lender (mortgage), and with the borrower (in the case of appropriate paperwork). The object of pledge is often required to be insured, and life and health insurance of the borrower is often required. The second - is almost always optional, but can reduce the interest on the loan by 0.5-3%.
Another type of loan collateral is credit guarantee. Its essence is quite simple - an individual or legal entity vouches in writing to repay loan payments if the borrower himself did not do this. This person (or persons) can be either an outsider or a close relative of the borrower. Often, the guarantor is called a co-borrower who does not claim a part of the loan funds received. The guarantor can vouch for the timely repayment of both the entire loan amount and part of it. When repaying a debt obligation to the creditor, the guarantor has the right to demand the paid funds from the borrower; or forgive the debt. The borrower is obliged to promptly notify the guarantor of the status of the loan in order to prevent both and mutual payment. If neither the borrower nor the guarantor repaid the loan on time, the lender judicial order can attract both the borrower and his guarantor.
In addition, both the main and additional collateral for the debt can be guarantee- or any other organization, including a credit institution. The guarantor can guarantee, guarantee the payment of part of the debt, or the entire amount. If the loan was paid not by the borrower, but by the guarantor, the latter has the right to demand from the debtor the amount paid to the creditor, as well as the costs incurred by repayment of the loan.
Pledge - property (or rights to property) or values provided by the borrower (or other person) to the lender to secure a loan, guarantee the return of the borrower's borrowed funds, as well as accrued. The pledge can be real estate, cars / motorcycles, household appliances, securities, bank deposits without the possibility of early withdrawal of funds, precious materials, equipment, etc. The mortgagee can be a bank, a credit institution or private creditors. A loan with collateral is almost always not, and can be spent on any needs of the borrower.
A separate agreement is usually created for collateral. It must contain the detailed characteristics of the collateral, the estimated value. The appraisal is usually done at the expense of the mortgagor, regardless of whether a loan is granted or not. The appraiser often needs to be selected from a list provided by the lender.
If property is mortgaged, the borrower's spouse's permission is required.
Pledge, as a rule, increases the maximum loan amount (within 50-80% of the value of the property), improves loan conditions - increases the loan term, reduces the interest rate. It provides an almost one hundred percent chance for the pledgee to return their funds. There are practically no disadvantages for this security for the lender, except for the storage of collateral (and even then, the borrower himself often pays for this). For the mortgagor, on the contrary, there are a lot of minuses. If the loan is not repaid on time, the pledged property almost always passes to the lender (in rare cases, in a court of law, it is possible to obtain the object of pledge by paying the entire or almost the entire loan amount; or to receive part of the money after the sale of the property at an auction). It may also be a minus that the object or object acting as security has limited opportunities. The apartment cannot be changed, it is impossible to cross the border by car, etc.
If the property is already under pledge, it is impossible to re-register it with security.
Often, the collateral is not kept by the creditor physically, but only legally. Apartment, car, plot, etc. remains with the borrower, and the rights to the property are registered as collateral. In this case, the debtor assumes the obligation to maintain the object of pledge and notify the creditor in case of loss or damage to property.
The lender may require that the collateral be insured for a period equal to or longer than the term of the loan agreement. The sum insured must be at least appraised value collateral property. Payment of funds, in case of loss or damage, is sent to the creditor. In some cases, the lender also adds life and health insurance to the borrower as part of the loan terms. If the collateral is not insured and is damaged or lost, the lender and the borrower agree further actions. Another pledge may be made, the loan repaid quickly, etc. If a common language is not found, the creditor files a case with the court. They have the right to both leave the loan agreement the same and oblige the borrower to repay the rest of the loan at the set time, from a month to several years. Otherwise, the court will seize other property, instruct to sell it on public auction. The funds received are sent to the lender to pay for court services, and the balance is returned to the borrower. Both the creditor and the court will be affected by the conditions under which the old pledge has become unusable.
A secured loan is a mutually beneficial option for credit relations. The lender receives a guarantee of payment of funds, and the pledgor - good conditions lending.
Every year the institution of pledge receives amendments that reduce the chances of the pledger to challenge the pledge in court. The lending system is constantly being improved, the so-called lending weights are regulated. On one side of the scale is a profit-making lender, on the other, a borrower with funds at his disposal.
Responsibility of a third party for the fulfillment by the borrower of credit obligations to the creditor. For the correct execution of documents, an additional document must be attached to the loan agreement - a guarantee agreement.
In a surety agreement, on the one hand, the surety acts directly. On the other hand, most often the lender, sometimes the borrower or another person (depending on the legislation of the country, the lender, preferences, etc.). The guarantee agreement differs from the guarantor in that it is not part of the main loan agreement and carries a refund, although convincing, but not guaranteed by a serious organization. Depending on the amount of the loan, the reputation of the borrower and third parties, a bank or other credit organization has the right to require several guarantors.
The guarantor is called by the borrower to additionally secure the repayment of the loan, can vouch for the return of both part of the loan and the full amount, as well as interest on the loan. In addition, the guarantor can take the initiative, and, after the permission of the bank, independently pay the entire loan amount. An enterprise that has the means to operate, but does not have “free” finances, cannot act as a guarantor. 
The same happens with non-payment of the loan and the resolution of the situation in court. In the first case, both parties are equally liable. In the second - the debtor, and if it is not possible to receive the entire amount from him, then the guarantor. The court may confiscate both the property of the debtor and the guarantor.
If the borrower refused to pay, and the guarantor paid for the loan, the second has the right to demand the money paid, as well as additional costs caused by this payment.
If the guarantee agreement is drawn up incorrectly, it is not valid (it is invalid). The death of the debtor does not relieve the guarantor of the obligation to pay the loan.
Becoming a guarantor, a person must necessarily know the borrower well, even better - be in family ties; carefully read the contract and agree with the amount, interest and term of the loan. The borrower can avoid paying off the loan. For example, to leave the country or by a court decision. Circumstances may prevent the borrower from paying, or the lender may refuse to restructure the debt. And all responsibility will fall on the shoulders of the guarantor. The guarantor is regarded by law as a co-borrower, i.e. a party interested in obtaining a loan by the debtor. A guarantor who refuses to pay the loan spoils his credit history, just like the debtor. Repaying even a small part of the amount, the guarantor is obliged to keep all documents (payment receipts, certificates, etc.). Acting as a guarantor, a person assumes obligations that practically exclude the receipt of a loan by him.
No need to vouch for the loan of a new work colleague, an old acquaintance or a very distant relative. First you need to learn more about him, soberly assess his solvency, citizenship, residence permit, marital status, etc.
An individual or legal entity (bank, credit or insurance organization), which guarantees repayment in the event that the borrower has not done so. In terms of lending, the guarantor is credit security, allowing the lender to be more confident in repaying the loan and causing a high probability of issuing a loan, an increase in the maximum loan amount, low interest rate etc. Like other loan collateral, guarantees are required if the lender is not sure that the borrower will fulfill its obligations (spoiled credit history, large debts from other lenders ...)
In the case of a guarantor, an appropriate guarantee agreement is drawn up, which has many details and subtleties. According to them, the guarantor may not pay the credit obligations assigned to him. The guarantor is considered as a co-borrower, an interested person, standing on the same level as the debtor. The guarantor is usually an individual. And people, according to statistics, are more likely to encounter when paying for a loan than serious organizations, banks or reputable persons with the appropriate license.
The guarantor provides a written obligation to pay a specific amount, if required by the creditor. Often, the organization issues guarantees by taking a pledge from the borrower, and acts as an intermediary between the obligatory parties to lending.
In other words, the concepts of guarantor and guarantor are similar in that in the first and second cases they vouch for the borrower, providing loan security, but they differ in that guarantees, in themselves, are much more reliable than suretyship.
A guarantor is a very common type of transaction security. With it, an authoritative person or organization takes responsibility for one of the parties to the transaction.
Bank guarantees are a written (often on special forms) obligation of a bank (or other credit institution) to pay a specific amount in favor of the lender, if the borrower himself does not do this in a timely manner. From time to time, bank guarantees contain many clauses to clarify the circumstances under which payment will occur. The creditor must provide all the documents to the guarantor to get acquainted with the situation and the subsequent payment of the debt.
Bank guarantees are revocable and non-revocable.
Often, some funds act as guarantors, which, for a fee, vouch for the return or. Of course, even when receiving money for their guarantee, fund employees must be sure that the loan will be repaid, even if their requirements for the borrower are not as stringent as those of the lender.
These guarantees are usually regarded by the lender as, which, of course, has a positive effect on the transaction.
By virtue of a pledge If the debtor fails to fulfill this obligation, the creditor under the obligation secured by the pledge has the right to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (the pledger), with exceptions established by law. In cases and in accordance with the procedure established by laws, the satisfaction of the creditor's claim under the obligation secured by the pledge (pledgee) may be carried out by transferring the subject of pledge to the ownership of the pledgee.
Pledge arises:
Choosing a pledge as a means of securing their interests, the creditor is guided by the principle “I trust not the person, but the thing”, in other words, when the property is pledged, there is a real loan.
The pledge has security function, since the subject of pledge is provided to the creditor before the fact of the debtor's failure.
The subject of pledge may or may not be transferred to the pledgee. There are two types of collateral depending on who holds the subject of collateral:
Pledge without transfer of property to the pledgee is the dominant form of pledge, because the pledged property, as a general rule, remains with the pledgor, unless otherwise provided by the agreement (paragraph 1, clause 1, article 338 of the Civil Code). In accordance with paragraph 2 of Art. 338 of the Civil Code, the subject of pledge may be left with the pledgor with the imposition of signs indicating the pledge (firm pledge).
It is also necessary to distinguish subtypes of pledge , which can be distinguished by the subject of pledge, for example:
Based on the features of the legal structure of the pledge, as its independent varieties, the law singles out
The subject of a pledge under a contract of pledge of goods in circulation can be any product, including those determined by specifying a generic attribute ov.
Pledge of things in a pawnshop provides for acceptance from citizens as a pledge of any movable things (not seized or not limited in circulation) intended for personal consumption (to secure short-term loans). Based on this, a number of organizations (for example, pro-fi.ru) offer loans secured by a car, which fully complies with the requirements of the Civil Code of the Russian Federation.
By general principle collateral relationship is accessory (additional), i.e. can exist only as long as the secured (main) obligation exists. The termination of the principal obligation entails the termination of the pledge(subparagraph 1, paragraph 1, article 352 of the Civil Code), but the termination of the pledge does not entail the termination of the main obligation (paragraph 2, article 329 of the Civil Code).
Assignment by the pledgee to another person of his rights under a pledge agreement is valid if the rights of claim against the debtor under the underlying obligation secured by the pledge have been assigned to the same person. With the transfer to another person of a debt under an obligation secured by a pledge, the pledge is terminated, unless the pledgor has given the creditor consent to be responsible for the new debtor.
Claim secured by collateral must be monetary in nature. In Art. 337 of the Civil Code stipulates that, unless otherwise provided by the contract, the pledge secures the claim to the extent that it has at the time of satisfaction, in particular:
The subjects of the pledge relationship are:
Both legal entities and individuals can act in this capacity.
The pledgor of a thing can be:
Only the person who owns the pledged right can be a pledgor of a right.
Pledge of the right to lease or other right to someone else's thing is not allowed without the consent of its owner, if the law or the contract prohibits the alienation of this right without the consent of these persons (paragraph 3 of article 335 of the Civil Code).
The rights of the pledge holder to the same property may belong to several persons. Such a situation most often arises because the pledged property can be pledged again (for the third time, etc.) This situation is called subsequent pledge, or re-pledge. In this case, the claims of the subsequent pledgee are satisfied from the value of this property after satisfaction of the claims of the previous pledgees (paragraph 1 of Article 342 of the Civil Code) - according to the principle of seniority, according to which the right of the previous pledgee is considered senior, subject to satisfaction predominantly before the rights of subsequent pledgees.
In the event of a subsequent pledge of movable property, the pledgees shall not have the right to demand early performance by the debtor of the obligation secured by the pledge of this property, in the event that execution is levied on it at the request of one of the previous or subsequent pledgees. Such a right here may be established in the contract from which the secured obligation arises.
Since the presence or absence of pledgees of the previous order is of fundamental importance for the pledgee, the law requires the pledger to inform each subsequent pledgee of all existing pledges of this property(Clause 3, Article 342 of the Civil Code). The pledgor shall be liable for losses caused to pledgees by failure to fulfill this obligation. According to paragraph 2 of Art. 342 of the Civil Code, a subsequent pledge is allowed if it is not prohibited by previous pledge agreements.
If the pledgor transfers movable property to a subsequent pledge, despite the prohibition contained in the previous pledge agreement, then in accordance with paragraph 2 of Art. 351 of the Civil Code, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his demand is not satisfied, to foreclose on the subject of pledge.
More
The pledger can be both the debtor himself and a third party (paragraph 1 of article 335 of the Civil Code). If the subject of pledge is the property of a third party, it must make a pledge transaction not on behalf of the debtor, but on its own behalf. An agreement may be concluded between the third party pledgor and the debtor under the main obligation, which defines the rights of the third party to receive compensation in the event of foreclosure on the pledged property. At the same time, a third party pledgor, in order to avoid foreclosing the pledged property, may fulfill the secured obligation for the debtor. In this case, by virtue of the instructions of the law (Article 387 of the Civil Code), the rights of the creditor under this obligation will pass to him.
Joint mortgagees- These are persons who have a share in the right of pledge on known property. If, for example, a person who vouched to the creditor for the fulfillment of the principal obligation by the debtor performs this obligation for the debtor in any part, then, by virtue of the indication of the law, the corresponding share in the right of pledge, which originally belonged in full to the creditor as to the pledgee (clause 1 of article 365 of the Civil Code). Joint pledgees represent one party in a pledge legal relationship, therefore none of them has the right of precedence. All claims in relation to the pledged property can be realized only by joint, coordinated and simultaneous actions, while they are subject to satisfaction in proportion to the share of each pledgee in the right of pledge.
subject of pledge is property specially separated as part of the pledgor's property or transferred to the pledgee, from the value of which the pledgee has the right, in case of non-fulfillment or improper fulfillment of the obligation secured by the pledge, to satisfy his claims primarily to other creditors.
The subject of collateral can be
On bail property rights in the event that the debtor fails to fulfill the secured obligation, the pledgor can foreclose on the pledged right and receive satisfaction at the expense of the money received from its sale, but unlike the pledge of things, the form of realization of the pledged right will be cession.
The rule of paragraph 1 of Art. 336 of the Civil Code does not exclude the possibility of a pledge exclusive rights(Clause 5, Article 1233 of the Civil Code).
However, cannot be pledged claims that are inextricably linked with the personality of the creditor, in particular:
The law allows the pledge of things and property rights that the pledgor will acquire in the future (paragraph 6 of article 340 of the Civil Code). This is the idea of a pledge of future things, known since Roman law. When it is implemented, the right of pledge arises only from the moment the pledger has a legal title to the pledged property. The security force of such a pledge is very conditional: after all, the pledgor’s right to the property pledged may arise much later than the fact of non-performance or improper performance of the secured obligation and even after the expiration of the limitation period on the creditor’s claims, or not arise at all.
Money - Russian rubles cannot be pledged, since the requirements of the pledgee are subject to satisfaction at the expense of the amounts received from the sale of the subject of pledge.
Foreign currency can be pledged, since it can be sold for Russian rubles.
Immovable things may be pledged if the rights to them are registered in accordance with the procedure established for state registration of rights to immovable property and transactions with it. According to the rules established for the mortgage of immovable property, the rights of the tenant (the right to lease) of the real estate and the rights of the participant's claim can be transferred as a pledge shared construction(Clause 5, Article 5 of the Mortgage Law). The pledge of certain types of real estate has its own characteristics, reflected in the special rules of Art. 62-78 Mortgage Law.
When an enterprise or other property complex is mortgaged as a whole, the right of pledge extends to all movable and immovable property included in this enterprise or complex, including exclusive rights and rights of claim, including those acquired during the mortgage period, unless otherwise provided by law or agreement (p. 2 article 340 of the Civil Code, paragraph 2 of article 70 of the Mortgage Law).
Mortgage of a building or structure is allowed only under the condition of simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of the right to lease this site belonging to the pledgor (clause 3 of article 340 of the Civil Code). Subject to these requirements, a land plot belonging to the pledgor on the right of ownership or the right of lease may be simultaneously given in mortgage with a building (construction).
Cannot be pledged:
1) property withdrawn from circulation(for example, land plots occupied by federally owned buildings in which the Armed Forces of the Russian Federation are located for permanent activity - clause 4 of article 27 of the Land Code);
2) certain types of property, the pledge of which is prohibited or limited by law(Clause 2, Article 336 of the Civil Code, Clause 1, Article 446 of the Code of Civil Procedure):
3) part of an indivisible thing as part of the property, the division of which in kind is impossible without changing its purpose (Article 133 of the Civil Code).
Objects civil rights, limited in circulation, may be the subject of pledge. When making a transaction to pledge such objects, one should take into account the special requirements of laws and other legal acts that determine legal regime this property. For example, when making pledge transactions with gold bars and other precious metals, it is necessary to take into account the rules on the subject composition of such transactions and the procedure for their completion (see, for example, Decree of the Government of the Russian Federation of June 30, 1994 No. 756 “On approval of the Regulations on transactions with precious metals on the territory of the Russian Federation).
A part of an indivisible thing as a part of property, the division of which in kind is impossible without changing its purpose (Article 133 of the Civil Code), cannot be pledged. If the thing is indivisible, then the subject of pledge may not be a real part of the indivisible thing, but a share in the right of ownership to it. For example, the owner non-residential building may not pledge any floor (clause 4, article 5 of the Law on Mortgage), but may pledge a share in the ownership right corresponding to the share of the floor in the building. Similarly, if an indivisible thing belongs by right of ownership to several co-owners, each of them may pledge his share in the right of ownership, but not the real part of such a thing. A part of a divisible thing can be pledged only after its division, since before that a part of the thing is not an independent object of law.
If the subject of the pledge is the main thing, then the rights of the pledgee extend to its accessories, unless otherwise provided by the agreement (clause 3, article 5 of the Mortgage Law). The right of pledge extends to the fruits, products and incomes received as a result of the use of the pledged property only in cases provided for by the agreement (clause 1 of article 340 of the Civil Code).
A pledge legal relationship and the right of pledge arising from it may arise both by virtue of an agreement and on the basis of a law upon the occurrence of the circumstances specified in it, if the law provides for what property and to ensure the fulfillment of which obligation is recognized as being pledged (paragraph 3 of Art. 334 GK). To a pledge arising on the basis of a law, unless otherwise provided by the law itself, the rules of the Civil Code on pledge arising by virtue of an agreement are applied.
There are few cases of the occurrence of a pledge on the basis of the law:
The contract is the most important basis for the emergence of the right of pledge. In paragraph 1 of Art. 339 of the Civil Code states that the pledge agreement must indicate:
The above conditions are classified as essential conditions of the pledge agreement.
The conditions on the subject of the pledge will be considered agreed if the pledgor and the pledgee enter data into it that allows the subject of the pledge to be unambiguously identified. For example, if the subject of pledge is a building, then when it is pledged, the contract must reflect the data contained in the documents that draw up the cadastral, technical registration of real estate, state registration of rights to real estate and transactions with it. We are talking about the address of the building, its purpose, layout, total area, state registration number and other features. The noted requirements on the need to individualize the subject of pledge are a consequence of the principle of the specialty of the pledge: only certain certain property can be the object of pledge.
Conditions on the nature, amount and timing of the performance of an obligation secured by a pledge are recognized as agreed if the pledge agreement contains a reference either to the agreement governing the main obligation and containing the relevant conditions, or to other documents containing data on the nature, amount and timing of the performance of the obligation, secured by collateral. The condition on the valuation of the subject of pledge must be agreed upon by the pledgor and the pledgee (in business transactions, the valuation of the subject of pledge is carried out, as a rule, on the basis of the opinion of professional appraisers. See the Law on Appraisal Activities).
For a pledge agreement, mandatory written form, non-observance of which entails the invalidity of the contract (paragraph 2.4 of article 339 of the Civil Code). In accordance with par. 2 p. 2 art. 339 of the Civil Code, an agreement on a pledge of movable property or a pledge of rights to property concluded to secure obligations under the agreement, which must be notarized, is subject to notarization. An example of such an agreement is a pledge agreement concluded to ensure the fulfillment of obligations arising from a rental agreement for movable property, which itself is subject to notarization in all cases (Article 584 of the Civil Code).
Certain types of pledge may be executed by a document other than a pledge agreement. So, paragraph 2 of Art. 358 of the Civil Code provides for a special form for pledging things in a pawnshop - pledge ticket. In accordance with paragraph 4 of Art. 912 of the Civil Code, goods accepted for storage under a double or simple warehouse certificate, during the time of its storage, may be the subject of pledge by pledging the corresponding certificate (warrant), which is a security. The rights of a pledgee under a mortgage-secured obligation and under a mortgage agreement, as well as under a mortgage arising by virtue of law, may be certified by a mortgage bond (clause 1, article 13 of the Mortgage Law), which is a registered security.
The right of pledge arises from the moment the pledge agreement is concluded (Article 341 of the Civil Code, Article 11 of the Law on Mortgage), and in relation to the pledge of property that is subject to transfer to the pledgee, from the moment this property is transferred, unless otherwise provided by the pledge agreement (Article 341 GK). The right to pledge real estate arises on condition that a mortgage is placed in State Register rights to real estate.
From this moment on, the pledgee acquires the priority right to receive satisfaction from the value of the pledged property over other creditors of the pledgor, with the exceptions established by law (paragraph 1, clause 1, article 334 of the Civil Code). The right of pledge has a predominant character, regardless of what property is the subject of pledge, whether the pledgor has other property, an element of what type of pledge it is. It should, however, be taken into account that in the event of the bankruptcy of the mortgagor, the claims of creditors-mortgage holders are satisfied in the third place (clause 4, article 134 of the Bankruptcy Law). In addition, according to paragraph 4 of Art. 78 of the Law on Enforcement Proceedings, if the debtor has insufficient property to satisfy the claims of all claimants, foreclosure on the pledged property may be levied on the basis of judicial act on foreclosure on pledged property in the interests of non-mortgagor claimants, whose requirements in accordance with Part. 1 Article. 111 of this law relate to the first and second stages, have priority over the claim of the pledgee and arose before the conclusion of the pledge agreement. Subject to the exceptions mentioned the predominant nature of the right of pledge manifests itself in its pure form only when claims of the same order compete that can be satisfied at the expense of certain property.
In cases where things, especially immovable things, are the subject of pledge, the priority right of the pledgee has all the features of a property right. The right of pledge is somewhat different when the subject of pledge is property rights, book-entry securities, as well as goods in circulation. Since these objects are not individually defined things, the right of pledge in respect of them cannot have a property character. So, when they are pledged, the pledgee cannot exercise possessory protection. At the same time, when property rights and book-entry securities are pledged, the right of pledge is retained when they are transferred to other persons (Articles 353, 384 of the Civil Code), i.e. follows these objects and terminates with the termination of the pledged rights (Article 352 of the Civil Code), and the requirements of the creditor-pledge holder are also satisfied regardless of the will of the pledgers as a result of the actions of the pledge holders to levy execution on these objects. Consequently, the right of pledge on them in the form and methods of its implementation in case of non-fulfillment of the secured obligation is the same as the right of pledge on things. Thus, the right of pledge can be characterized as the right to someone else's property, thanks to which the pledgee, in case of default on the obligation secured by the pledge of such property, has the opportunity, by his actions, not dependent on the will of the pledgor, to foreclose on the pledged property and satisfy his claims at the expense of its value. .
With certain restrictions the pledgor retains the right to dispose of the pledged property. He has the right
but only with the consent of the mortgagee, unless otherwise provided by law or contract and does not follow from the nature of the pledge (paragraph 2 of article 346 of the Civil Code). An agreement restricting the right of a pledger-citizen to bequeath the pledged property is void.
If the pledger disposes of the subject of pledge in violation of these rules, the pledgee has the right
When alienating immovable property pledged under a mortgage agreement without the consent of the mortgagee or with other violation of the requirements of the law or the terms of the mortgage agreement, the mortgagee has the right, at his choice, to demand either the recognition of the transaction for the alienation of the pledged property as invalid and the application of the consequences provided for in Art. 167 of the Civil Code, or early fulfillment of an obligation secured by a mortgage and foreclosure on the pledged property, regardless of who owns it (Article 39 of the Mortgage Law). If the pledged property is alienated in violation of the requirements of the law or the terms of the mortgage agreement by a pledgor who is not a debtor under an obligation secured by a mortgage, then in this case, along with the debtor under the obligation secured by mortgage, both the acquirer of the property and the former pledgor shall be jointly and severally liable.
When the subject of pledge remains with the pledgor, the latter has the right, unless otherwise provided by the agreement and does not follow from the nature of the pledge, to use the subject of pledge in accordance with its purpose, including deriving fruits and income from it (paragraph 1 of article 346 of the Civil Code). In the event of a pledge with the transfer of the subject of pledge to the pledgee, the latter has the right to use the subject of pledge transferred to him only in cases provided for by the agreement, regularly submitting a report on the use to the pledgor. According to the agreement, the pledgee may be obligated to extract fruits and income from the subject of pledge in order to repay the principal obligation or in the interests of the pledgor.
Unless otherwise provided by law or the agreement, depending on who owns the pledged property, the pledgor or pledgee is obliged to:
If these obligations are violated by the mortgagor, then the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and if his demand is not satisfied, to foreclose on the subject of pledge (subparagraph 2, paragraph 2, article 351 of the Civil Code). If the pledgee violates his obligations to insure the subject of pledge, ensure its safety, immediately notify the pledger of the threat of loss or damage to the subject of pledge, other violations that create a threat of loss or damage to the pledged property, the pledger has the right to demand early termination of the pledge.
The pledgor bears the risk of accidental loss or accidental damage to the pledged property, unless otherwise provided by the pledge agreement. The pledgor has the right to set off the claim to the pledgee to whom the subject of pledge has been transferred, for compensation for losses caused by the loss or damage to the subject of pledge, in repayment of the obligation secured by the pledge (clause 2 of article 344 of the Civil Code).
The pledgee to whom the pledged property has been transferred is responsible
In the process of implementing a pledge legal relationship, the subject of pledge may be replaced with the consent of the pledgee, unless otherwise provided by law or agreement. When the subject of pledge is destroyed or damaged, or when the right of ownership (economic management) to it is terminated on the grounds established by law, the pledgor has the right to restore the subject of pledge within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement (Article 345 of the Civil Code). In the case of a mortgage, the pledgor’s right to restore the subject of pledge or replace it can take place only if there is a written agreement on this (clause 3, article 36 of the Law on Mortgage), i.e., in fact, the conclusion of a new mortgage agreement regarding another real estate. After all, the right to pledge real estate is subject to state registration, the record of which, by virtue of the principle of specialty, can only apply to specific real estate that is the subject of pledge.
