As noted earlier, the Concept for Reforming Civil Legislation, and, in particular, Draft Federal Law No. 47538-6 provided for the introduction of nominal accounts in the Civil Code of the Russian Federation.
In addition to escrow accounts, Art. 4 of Law No. 379-FZ "On Amendments to Certain Legislative Acts Russian Federation"was supplemented by articles 860.1 - 860.6 which directly regulate nominal accounts.
To some extent, the introduction of nominal accounts in the Civil Code of the Russian Federation was a matter of time, since the Federal Law of December 30, 2012 No. 302-FZ "On Amendments to Certain Legislative Acts of the Russian Federation", in paragraph 18 of Art. 1 provided that, indicated in Art. 37 of the Civil Code of the Russian Federation, the amounts of alimony, pensions, benefits, compensation for harm to health and harm incurred in the event of the death of the breadwinner, as well as other funds paid for the maintenance of the ward, with the exception of income that the ward has the right to dispose of independently, are subject to crediting to a separate nominal account opened by the guardian or trustee in accordance with Chapter 45 of this Code, and are spent by the guardian or trustee without the prior permission of the guardianship and guardianship authority. Also in this Federal Law in paragraph 4 of Art. 2 says that paragraph 18 of Art. 1 comes into force from the date of entry into force of the federal law, which would amend the Civil Code of the Russian Federation regarding the introduction of nominal accounts.
According to Art. 860.1 of the Civil Code of the Russian Federation, a nominal account can be opened for the account holder to carry out transactions with funds, the rights to which belong to another person - the beneficiary.
Particular attention should be paid to the fact that the rights to cash that are credited to this account, regardless of who contributes, will belong to the beneficiary(s).
The law provides for the possibility of concluding a nominal account agreement both with and without the beneficiary. In the event that the agreement was concluded without a beneficiary, then the agreement should provide for the obligation to inform the account owner about the presence of beneficiaries, as well as the grounds on which they participate in the nominal account agreement.
One of the most important provisions regarding the protection of the rights of beneficiaries provides for the possibility to oblige the bank to control the funds that the account holder uses in the interests of the beneficiary, but only to the extent that are provided for by the nominal account agreement.
It should also be noted that a nominee account agreement can reduce the number of operations that are allowed to be performed in accordance with the will of the account holder, among them are:
1) persons to whose accounts the transfer of funds is possible;
2) persons who give consent to conduct operations on the account;
3) documents on the basis of which operations are performed on the account;
4) other circumstances that allow the bank to control compliance with the established restrictions on transactions.
Article 860.5 provides that, with the exception of obligations to credit the account and pay the bank's expenses for maintaining the account, it is not possible to suspend operations on a nominal account, as well as its arrest or write-off of funds that are on the account, for the obligations of the account holder. At the same time, paragraph 2 of this article allows, in relation to the obligations that the beneficiary has, to seize or write off the funds that are on the nominal account, if there is a court decision for this. The nominal account agreement of the Civil Code of the Russian Federation or other law may also provide for the possibility of debiting funds for the obligations of the beneficiary.
The introduction of nominal accounts gave rise to the need to amend the Federal Law "On Enforcement Proceedings". According to Art. 14 of Law No. 379-FZ, it is supplemented by Art. 72.1, concerning the specifics of foreclosure of the debtor's funds in a nominal bank account. In general, it duplicates the provisions that will be in force in the Civil Code of the Russian Federation.
Regarding the amendment or termination of the nominal account agreement with the participation of the beneficiary, the law provides that its termination or amendment is possible only with his consent, unless otherwise provided by the agreement or the law. In addition, the bank has an obligation to notify the beneficiary in a timely manner if the account holder declares his desire to terminate the nominal account agreement.
In the event that the nominal account agreement is terminated, the funds remaining on the account are transferred to the beneficiary's account, or to another nominal account of the owner, unless otherwise provided by law or the agreement.
It is worth noting that some scientists note that the escrow account considered earlier is a type of nominal account, it is difficult to agree with this, since the separation of other people's funds occurs in the nominal account, while the depositor separates his funds in the escrow account in order to further their transfers for purchased goods, works and services. Also, according to the escrow account, the only person who can transfer funds, in fact, becomes the bank. When we talk about a nominal account, the person who makes the funds transfer order is its beneficiary.
According to experts, the main problem associated with the appearance of nominal accounts could be the lack of regulatory framework and understanding how banks should reflect account data on their balance sheets.
However, the Central Bank of the Russian Federation reacted quite quickly to the emergence of new types of accounts and, even before the entry into force of the norms regulating nominal accounts, issued Instructions of the Bank of Russia dated May 30, 2014 N 153-I. With this instruction, the Central Bank of the Russian Federation, among other things, provided for the features of opening and closing nominal accounts, which allowed banks to put them into practice as quickly as possible.
In general, we can say that the considered account received a greater response in practice than the escrow account agreement; offers to open it can be found in almost every bank. It is especially relevant in legal relations between guardians and trustees, and it is precisely such nominal accounts for crediting social payments that are proposed to be opened, for example, in JSC Rosselkhozbank or PJSC Sberbank, similar offers can be found in other credit institutions.
Although arbitrage practice regarding disputes related to the application of this agreement is quite fragmentary, it can be assumed that this is largely due to the fact that, as noted above, the opening of these accounts is currently most in demand by individuals. Considering that market participants and, first of all, banks are interested in this agreement, it can be said with confidence that its introduction into the Civil Code of the Russian Federation was a good idea on the part of the legislator and the expert group on reforming civil legislation.
Full text of Art. 860.1 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice under Article 860.1 of the Civil Code of the Russian Federation.
1. A nominee account may be opened for the account holder to perform transactions with funds, the rights to which belong to another person - the beneficiary. open for transactions with funds, the rights to which belong to several persons - beneficiaries, with the exception of cases established by law. (Paragraph as amended from December 23, 2014 federal law dated December 22, 2014 N 432-FZ.
2. An essential condition of the nominal account agreement is an indication of the beneficiary or the procedure for obtaining information from the account holder about the beneficiary or beneficiaries, as well as the basis for their participation in relations under the nominal account agreement.
3. A law or a nominee account agreement with the participation of the beneficiary may impose on the bank the obligation to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or the agreement. December 2013 N 379-FZ)
1. On July 1, 2014, the Civil Code of the Russian Federation was supplemented with a new article regulating the nominal account agreement, which is a type of agreement bank account. Note that the institution of a nominal account is used in practice developed countries. It has been successfully used for a long time in structuring complex financial transactions, primarily in securitization transactions, as well as in project financing.
The purpose of the nominal account agreement is to strengthen in commercial practice financial, trading and other operations, in the course of which funds are credited to the bank accounts of persons to whom these funds do not belong in economic sense. Such persons should include, for example, a trustee, nominee valuable papers, broker, notary, agent, commission agent, attorney.
Thus, a nominal account agreement can be used in tax relations when collecting taxes from the owner of such a nominal account and the beneficiary.
An analysis of paragraph 1 of the commented article shows that a nominal account is opened for the account owner to carry out transactions with funds, the rights to which belong to another person - the beneficiary. Nominal account funds do not belong to the account holder, they are accumulated on this account for a specific purpose, and the account holder can manage them, i.e. there is a target (conditional) deposit of funds.
Under the beneficiary, within the meaning of the commented article, is understood the person to whom the cash payment, or otherwise, - the recipient of profit, income, money, benefits.
In particular, a nominal account can be opened for a bondholder.
It goes without saying that all rights to funds received on a nominal account, including through their deposit by the owner of this account, belong only to the beneficiary.
Paragraph 1 of the commented article allows the opening of a nominal account for transactions with funds, the rights to which may also belong to several persons at once - beneficiaries.
2. Clause 2 of the commented article contains the essential (mandatory) terms of the nominal account agreement.
By general rule contractual terms fix the mutual rights and obligations of the parties under the contract. There are three groups of conditions: essential, ordinary and random. The Civil Code of the Russian Federation fixed essential conditions contracts.
Essential conditions are such conditions that are necessary and sufficient to consider the contract concluded, i.e. one that gives rise to rights and obligations for the parties (see Article 432 of the Civil Code of the Russian Federation). The contract will be considered concluded only if the parties, in the form required by law, have reached an agreement on each of its essential conditions. This circumstance is of particular importance, since otherwise the contract will be considered not concluded. Thus, the essential conditions determine the stage (list of operations) performed by each party to the contract and the ultimate goal (result) of joint actions.
The Civil Code of the Russian Federation establishes the following three conditions:
- indication of the beneficiary;
- the procedure for obtaining information from the account holder about the beneficiary or beneficiaries;
- the basis for the participation of the beneficiary or beneficiaries in relations under the nominal account agreement.
All other, except for the above, terms of the nominal account agreement, therefore, from the point of view of the emergence of relations, are of no particular importance. The terms of the contract, if they are not agreed (orally or in writing) directly by the parties, should be determined in regulatory legal acts.
3. Paragraph 3 of the commented article allows for the possibility of imposing on the bank the obligation to control the use of funds by the account holder in the interests of the beneficiary.
The limits and procedure for such control can be directly established in the law, or in the nominal account agreement itself with the participation of the beneficiary.
This provision is an exception to general rule established by paragraph 3 of Art. 845 of the Civil Code of the Russian Federation, according to which the bank is not allowed to control the direction of the client's use of funds on the account.
4. Applicable law:
- Federal Law No. 395-I of December 2, 1990 "On Banks and Banking Activities";
- instruction of the Bank of Russia dated May 30, 2014 N 153-I.
If you still have questions about Article 860.1 of the Civil Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.
You can ask a question by phone or on the website. Initial consultations are free of charge from 9:00 to 21:00 Moscow time daily. Questions received between 21:00 and 09:00 will be processed the next day.
In accordance with Art. 860.1 of the Civil Code of the Russian Federationa nominal account can be opened for the account holder to carry out transactions with funds, the rights to which belong to another person - the beneficiary or beneficiaries. That is, a nominal account agreement can be both a bilateral transaction and a multilateral one.
It refers to contracts in favor of third parties and is governed by the general provisions of Chapter 45 of the Civil Code. For example, in Germany, the agreements under consideration are practically identical: the escrow account agreement is considered as a type of nominal account. This agreement has common features, however, it has a different legal purpose.
In international practice, the nominal account agreement is widely used in financial transactions, remote trading transactions, as well as those related to real estate.
To date, the following areas of its application are seen:
When carrying out transactions with securities. For example, when redeeming bonds, in order to additionally guarantee the protection of the rights of bondholders, their representative can open a nominal account, and then the rights to the funds received from the issuer will belong to the bondholders;
In the interaction of guardians with social support authorities, where the ultimate beneficiary is the child;
When the organizer of the auction interacts with the participants;
In relations between state-owned enterprises and public legal entities (beneficiary);
In legal relations between an arbitration or bankruptcy trustee and creditors, where the latter are beneficiaries.
In addition, the nominal account agreement can be effectively applied in other cases. The conclusion of this agreement must be subject to:
Necessity by virtue of law, when the beneficiary himself cannot dispose of the funds ("children's money");
The purity of the transaction, when with a plurality of beneficiaries (relations between the arbitration manager and creditors);
Control over the banking operations of the account holder (for example, if parents whose children live in another city finance them and want to control how the money is spent in the future).
The nominal account agreement can rightfully be called a novelty, which is difficult to find an analogue among other agreements. It can be especially useful in the relationship of guardians and trustees, since previously they had to act through a power of attorney. Moreover, since January 1, 2015, they have been able to interact with anyone commercial bank(up to this point, "children's money" could only be received in banks where the state share was at least 50%).
Of course, the nominal account agreement has flaws and roughness. So far, it is definitely difficult to talk about shortcomings from a practical point of view, since there is no judicial practice in such cases. Together some aspects legal regulation Nominal account agreements raise questions.
So, for example, articles 860.1 - 860.2 of the Civil Code of the Russian Federation name the essential conditions for the basis for participation in relations under a nominal account agreement, the date of conclusion of the agreement, the indication of the beneficiary or the procedure for obtaining information from the owner about the beneficiary or beneficiaries. Instruction Central Bank No. 153-I points to the list required documents if the beneficiary is indicated. Meanwhile, the Civil Code of the Russian Federation does not indicate what is the procedure for obtaining information about the beneficiary or beneficiaries. The Instruction of the Central Bank of the Russian Federation establishes that the procedure for fixing the specified information is determined by the bank independently in banking rules. It seems that the essential conditions should be fully reflected in the Civil Code of the Russian Federation and be uniform for all banks.
In addition, paragraph 3 of Art. 860.6 of the Civil Code of the Russian Federation does not establish who can initiate the termination of the contract. It seems that with the participation of the beneficiary (multilateral transaction) a nominal account agreement, based on Art. 450 of the Civil Code of the Russian Federation, his consent is mandatory, and if he is not a party to the contract (bilateral transaction), then he is informed of the termination of the contract.
The above-mentioned roughness was the result of the fact that banks are in no hurry to include a nominal account in the list of provided operations, and impose restrictions when providing. For example, the Russian Agricultural Bank offers only a nominal social account, which is intended for crediting the amounts of alimony, pensions, benefits, compensation for harm to health and harm suffered in the event of the death of the breadwinner, as well as other funds paid for the maintenance of wards. The issue of distributing the balance of funds upon termination of the contract was decided by the bank as follows: if the account holder is the initiator of the termination of the contract, the balance is transferred to the nominal account of the owner (there is no indication of the beneficiary). In the event that the closing of the account was initiated by the beneficiary, then the funds are issued to him at the cash desk of the bank or, as directed, are transferred to another account opened with a bank or other credit institution.
Nominal account of the guardian in Sberbank - one of the most discussed topics among recipients of guardianship benefits, because most banks were not ready for changes in legislation in this area. About the cases in which a nominal account is opened and in what order the funds received on it are spent, will be discussed in this article.
On July 1, 2014, amendments to the Civil Code of the Russian Federation provided for by Law No. 302-FZ came into force. They concern the procedure for managing pensions, benefits and other payments received by a person taken under guardianship (guardianship).
Previously, there was a procedure according to which all payments due to the ward were credited to a bank account opened in his name. The guardian had the right to monthly withdraw from the account an amount not exceeding living wage. To receive a larger amount, permission from the guardianship authority was required.
Starting from the second half of 2014, the law provides that payments due to a minor or incapacitated person do not go to his account, but to a nominal account opened with a bank in the name of a guardian (custodian). The guardian spends these funds in full on the needs of his ward without obtaining consent from the guardianship and guardianship authority.
In practice, the application of the new law faced certain difficulties: banks were not technically ready to open a new type of accounts. According to the explanations of representatives of credit institutions, the opening of nominal accounts from the moment the new procedure came into force was impossible for two reasons:
During the second half of 2014, only a few credit institutions (for example, Rosselkhozbank) announced their readiness to open nominal accounts.
Until recently, there was a rule according to which the money of the wards can only go to those credit institutions that are at least half owned by the state. Therefore, one of the most popular institutions for crediting pensions, alimony and benefits for persons taken under guardianship is now Sberbank.
As of January 1, 2015, this rule has been abolished. Now, when crediting the ward's funds to the bank, the following condition must be met: the total amount of funds in one bank should not exceed the amount insurance compensation on compulsory insurance deposits (since December 29, 2014, this amount has been increased from 700 thousand to 1.4 million rubles). This rule also applies to the amount of funds for guardian's nominal account.
Don't know your rights?
In other words, since 2015, not only banks with a state participation of at least 50%, but also other credit institutions can open nominal accounts for crediting guardianship payments.
A nominal account is opened in the name of a guardian (custodian) for crediting payments due to minors and incapacitated persons, except for:
To open an account, the guardian (account holder) must present a certificate and a decision of the guardianship authority on appointing him as a guardian. The agreement is drawn up in writing, and the account holder must provide the bank with the following information about the person in whose interests the account is opened:
He must also provide a copy of the child's birth certificate or passport.
Funds from a nominal account are spent by the guardian in any amount without obtaining permission from the guardianship authority. But an annual report must be drawn up on the use of such sums.
Funds from the account cannot be collected for the debts of the account holder (except for the commission for banking operations). Collection of money from a nominal account for the obligations of a ward is possible only by a court decision or in cases provided for by law.
The appearance of nominal accounts should make it easier for guardians to fulfill their duties. Previously, such a formality as obtaining permission from the guardianship authority to withdraw an amount exceeding the subsistence level created a lot of inconvenience, since permission was required to be issued monthly.
The rights to funds received on a nominal account, including as a result of their deposit by the account holder, belong to the beneficiary.
A nominal account may be opened for transactions with funds, the rights to which belong to several persons - beneficiaries, with the exception of cases established by law.
An essential condition of the nominal account agreement is an indication of the beneficiary or the procedure for obtaining information from the account holder about the beneficiary or beneficiaries, as well as the basis for their participation in relations under the nominal account agreement.
A law or a nominee account agreement with the participation of the beneficiary may impose on the bank the obligation to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or the agreement.
Article 8602 Conclusion of a nominal account agreement
The nominal account agreement is concluded in writing by drawing up one document signed by the parties (paragraph 2 of Article 434), with the obligatory indication of the date of its conclusion.
The nominal account agreement can be concluded both with and without the participation of the beneficiary.
The nominal account agreement with the participation of the beneficiary is also signed by the beneficiary.
Failure to comply with the form of the nominal account agreement entails its invalidity. Such an agreement is void.
In the event that the funds of several beneficiaries are recorded on a nominal account, the bank keeps records of the funds of each beneficiary, except for cases when, in accordance with the law or the contract of a nominal account, the obligation to account for the funds of each beneficiary is assigned to the account holder.
Article 8603 Nominal account operations
A law or a nominee account agreement may limit the range of operations that can be performed at the direction of the account holder, including by determining:
1) persons to whom funds may be transferred or issued;
2) persons, with the consent of which operations are performed on the account;
3) documents that are the basis for transactions;
Other circumstances.
Article 8604 Provision of information constituting banking
Secret, to the beneficiary under the nominal account agreement
The beneficiary under the nominal account agreement has the right to require the bank to provide information constituting bank secrecy, if such a right is granted to the beneficiary by the agreement.
2. The beneficiary, under a nominal account agreement with the participation of the beneficiary, has the right to require the bank to provide information constituting bank secrecy.
Article 8605 Seizure or write-off of funds held on
Nominal account
Suspension of operations on a nominal account, arrest or write-off of funds on a nominal account for the obligations of the account holder, with the exception of the obligations provided for in Articles 850 and 851 of this Code, is not allowed.
The arrest or write-off of funds from a nominal account for the obligations of the beneficiary is allowed by a court decision, the write-off of funds is also allowed in cases provided for by law or a nominal account agreement.
Article 8606 Amendment and termination of the nominee account agreement, replacement of the nominee account owner
The nominee account agreement with the participation of the beneficiary may be changed or terminated only with the consent of the beneficiary, unless otherwise provided by law or the nominee account agreement.
If the bank receives an application from the account holder to terminate the nominee account agreement, the bank is obliged to immediately inform the beneficiary about this.
If the owner of the nominal account is the guardian or custodian of the beneficiary, then upon termination of the duties of the guardian or custodian, such owner of the nominal account is replaced by another owner who, in accordance with the procedure established by law, is appointed as the guardian or custodian of the beneficiary. Upon termination of guardianship or trusteeship in cases provided for by law, including when the beneficiary reaches the age of majority, the nominal account agreement is terminated, the balance of funds, at the request of the beneficiary, is issued to him or transferred to his other bank account.
4. Upon termination of the nominal account agreement, the balance of funds shall be transferred to another nominal account of the owner or issued to the beneficiary, or, unless otherwise provided by law or the nominal account agreement or follows from the nature of the relationship, at the direction of the beneficiary, transferred to another account.”;
g) after Article 8606 add the following paragraph:
"§ 3. Escrow account";
h) Articles 8607 - 86010 shall be amended as follows:
“Article 8607. Escrow account agreement
1. Under an escrow account agreement, a bank (escrow agent) opens a special escrow account for recording and blocking funds received by it from the account holder (depositor) in order to transfer them to another person (beneficiary) if the grounds provided for by the escrow account agreement arise. The rights to the funds in the escrow account belong to the depositor until the date when the grounds for the transfer of funds to the beneficiary arise, and after the specified date - to the beneficiary. The disposal of funds on the escrow account is carried out in the manner prescribed by this paragraph.
Federal Laws No. 379-FZ and No. 367-FZ of December 21, 2013 amended parts one and two of the Civil Code, according to which Ch. 45 "Bank account" is supplemented by art. Art. 860.1 - 860.10, and the paragraph "Pledge" ch. 23 is set out in its entirety in new edition. Thanks to this, three new types of accounts appeared in banks from July 1, 2014: escrow accounts, nominal accounts - as a type of bank account obligations - and pledge accounts.
Let's consider them in order.
Nominal account
The norms on the nominal account are contained in Art. Art. 860.1 - 860.6 of the Civil Code.
A nominal account is needed to make transactions with funds, the rights to which belong to another person or other persons - the beneficiary (beneficiaries). The nominal account agreement can be concluded both with and without the participation of the beneficiary. The rights to funds received on a nominal account, including as a result of their deposit by the account holder, belong to the beneficiary.
The contract must specify the beneficiary or the procedure for obtaining information about him from the account holder. In addition, the contract must determine the basis for the participation of the beneficiary.
It is possible to account for funds on the nominal account of several beneficiaries. In this case, the account is divided into special sections. But by law or by agreement, the obligation to account for the funds of beneficiaries may be assigned to the account holder.
The agreement may provide for the obligation of the bank to control the use of funds by the account holder in the interests of the beneficiary within the limits and in the manner prescribed by law or the agreement.
Suspension of operations on a nominal account, arrest or write-off of funds on a nominal account for the obligations of the account holder is not allowed. The exception is the obligations under Art. Art. 850 and 851 of the Civil Code, that is, in cases of crediting an account by a bank and collecting funds from the account for expenses on transactions on the account, unless otherwise provided by the agreement.
For tax relations, the question of the possibility of collecting a debt from the owner of a nominal account and the beneficiary is important.
The new rules allow the debiting of funds from a nominal account in cases provided for by law or a nominal account agreement. By the way, about the law. By virtue of paragraph 1 of Art. eleven tax code the norms of this Code take precedence over the norms of non-tax laws. Since the Civil Code is not a special tax law, the contradiction will be resolved in favor of the Tax Code, which gives the inspectorate the right to collect debts on taxes and fees from the owner of a bank account (clause 1, article 46 of the Tax Code of the Russian Federation). Therefore, the bank has no reason to refuse to execute the recovery order. Since the sums of money belong to the beneficiary, he remains unprotected.
The reverse side of the coin is that these same reasons prevent the recovery of the amounts of the beneficiary-taxpayer, since the Tax Code allows collection only from the taxpayer.
There is a contradiction between the Civil and Tax Codes: the norm of the Civil Code under consideration allows the arrest or debiting of funds from the account for the obligations of the beneficiary by a court decision.
In general, the inclusion of provisions on the nominal account agreement consolidates the commercial practice of financial, trading and other transactions, when money is credited to the bank accounts of persons who do not own it, in favor of the beneficiary (for example, an arbitration manager, an organizer of an auction, a broker, an agent, a nominal holder of securities). papers, notary, commission agent, attorney, etc.).
Escrow account
Sometimes transactions are not concluded or are executed by several contracts due to distrust of the partner. For example, when settling under mixed contracts, selling real estate objects, enterprises, etc. Often used in these cases safe deposit box. But now the parties can resort to issuing an escrow account.
For reference. Escrow (from the English. Escrow) in Anglo-Saxon law means the deposit of a sum of money from a third party in the name of another person so that it is issued to him only after a certain condition is met. Simply put, it is an escrow or security deposit.
It keeps records of valuables, documents or funds until the occurrence of certain circumstances, such as the fulfillment of obligations. The transfer of investments from the escrow account occurs after the fulfillment of obligations by both parties, which guarantees the execution of the transaction and minimizes the risks of non-fulfillment of mutual obligations. This is a way to simultaneously carry out settlements and ensure the agreed obligations.
In foreign law, this is a three-way transaction between an escrow agent, a seller and a buyer. One party transfers (deposits) property (money, documents, other valuables) to a licensed escrow agent until the moment when the other party fulfills its obligations.
Escrow agent - an independent person who does not have his own interest in the transaction, an attorney for each party who opens an account. He monitors the overall progress of the sale and monitors the implementation of all contractual conditions. Banks, specialized firms act as agents, law firms and other escrow agents. At the same time, the risk of loss of reputation and the application of sanctions (fines, license revocation, etc.) guarantees the reliability and efficiency of the agent's activities. If the terms of the contract are violated, the property from the account is returned to the owner.
Convenient and cost-effective, the escrow account is used very widely abroad: in trade transactions instead of a letter of credit, in real estate transactions, payments on court decisions, wholesale of business assets, payment of taxes and debts.
Example. One party transfers the exclusive right to the program to the other party without the program code.
When using an escrow account, this code is deposited.
Russian legislation, of course, provides for measures that guarantee the fulfillment of obligations.
This is a penalty, a pledge, bank guarantee, letter of credit, etc. But now the Civil Code also suggests using an escrow account.
The relations of the parties in connection with the opening, maintenance and closing of an escrow account are subject to general provisions on a bank account, unless otherwise provided by the Civil Code or follows from the essence of the relationship between the parties. Special rules for conducting escrow are established by the norms of Art. Art. 860.7 - 860.10 of the Civil Code.
The bank (escrow agent) opens a special escrow account for accounting and blocking funds. The account holder (depositor) deposits money into the account to transfer it later to another person (beneficiary) in the event of the grounds provided for by the agreement between the bank, the depositor and the beneficiary. As a general rule, an escrow agent's fee cannot be deducted from funds held in an escrow account. But the parties can change it at their discretion.
No funds other than the deposited amount may be credited to the escrow account. Without the emergence of contractual grounds, neither the depositor nor the beneficiary has the right to dispose of the money in the account. However, these conditions can be changed by agreement.
When the grounds appear stipulated by the agreement conditional deposit of funds, the bank is obliged to issue the deposited amount to the beneficiary or transfer it to the account indicated by him.
The law provides for the right of the depositor and the beneficiary to require the bank to provide information constituting bank secrecy.
The bank closes the escrow account upon the expiration of the agreement or its termination for other reasons. But it should be borne in mind that the rule that the bank account agreement is terminated at the request of the client at any time does not apply in this case.
Escrow in the Civil Code is very similar to a letter of credit, where one party opens an account, and the bank, at its direction, pays funds to the other party (Article 867 of the Civil Code of the Russian Federation). In Anglo-American law, escrow is used outside of banking practice, which determines the difference from a letter of credit. In Russia, unlike the West, escrow is used only for funds, and banks are agents. Therefore, the Civil Code does not provide for guarantees of the integrity of the escrow agent (bank).
Escrow is designed to grow business. Innovations are the first and very significant step in the formation of a civilized escrow service in Russia. They can increase the degree of confidence in the Russian civil turnover and, possibly, withdraw some transactions with Russian assets from foreign jurisdictions.
Security account
The collateral account is not singled out as a separate bank account in the Civil Code. But it is defined in the chapter devoted to securing the fulfillment of obligations and, in particular, to pledge (subparagraph 1 of paragraph 3 of part one of the Civil Code of the Russian Federation). The rules on the pledge of rights under a bank account agreement also apply to bank deposit(Clause 8, Article 358.9 of the Civil Code of the Russian Federation).
Article 358.6 of the Civil Code makes it possible to conclude an agreement on the pledge of rights. In accordance with the law or such agreement, the money received by the pledgor's debtor in respect of the performance of the obligation, the right or claim under which is pledged, shall be credited to the pledge account. The owner of the account is the pledger.
A pledge arises from the moment the bank is notified of the pledge of rights and a copy of the pledge agreement is provided to it. If the pledge holder is a bank that has concluded a pledge account agreement with the client (pledger), the pledge arises from the moment the agreement on pledge of rights on the bank account is concluded (Article 358.11 of the Civil Code of the Russian Federation).
In order to amend or terminate the pledged bank account agreement, the parties must obtain the consent of the pledgee (Article 358.13 of the Civil Code of the Russian Federation).
At the written request of the pledgee, the bank provides him necessary information. For example, about the balance of funds on the security account, about transactions and claims made, about prohibitions and restrictions imposed on the account. The banking rules establish the procedure and terms for providing information. In the unsettled part, a tripartite agreement is drawn up on this between the bank, the mortgagor and the pledgee (clause 2 of article 358.2 of the Civil Code of the Russian Federation).
On a note. Banks provide information on nominal, pledge and escrow accounts to third parties in the cases and in the manner prescribed by the Civil Code (Article 26 of the Law "On Banks and Banking Activities").
The pledgor is granted the right to freely dispose of the funds in the pledge account (clause 1, article 358.12 of the Civil Code of the Russian Federation). If the agreement is concluded for a fixed amount of money, then without the written consent of the pledgee, the pledgor does not have the right to demand a reduction in this amount in any way (for example, by debiting), and the bank does not have the right to execute such orders (clause 3 of article 358.12 of the Civil Code of the Russian Federation).
But the debtor may not perform or improperly perform his obligations secured by the pledge. The pledgee must notify the bank in writing about this. And the bank in this case is not entitled to execute such orders of the mortgagor, as a result of which the amount of funds in the pledge account will become lower than the amount equivalent to the amount of the secured obligation specified in the pledge agreement (clause 4 of article 358.12 of the Civil Code of the Russian Federation).
In accordance with Art. 358.14 of the Civil Code, when levying execution on pledged rights under a bank account agreement (Article 349 of the Civil Code of the Russian Federation), the pledgee's claims are satisfied by debiting the bank, on the basis of the pledgee's order, of funds from the pledgor's pledge account and issuing them to the pledgee or crediting them to the account specified by the pledgee. The rules on the sale of pledged property (Art. 350 - 350.2 of the Civil Code of the Russian Federation) do not apply in these cases.
Note! Rules on the write-off of funds provided for by the provisions of Ch. 45 of the Civil Code on a bank account, do not apply to funds held in a pledge account.
The mode of the pledge account can be used both for encumbrance of the funds contained on it, and for crediting to it the amounts due to the pledgor under contracts of pledge of other property (insurance compensation for loss or damage to the pledged property; income from the use of the pledged property; amounts of money subject to payment to the pledgor on account of the fulfillment of the obligation, the right (claim) under which is pledged).
Simultaneously with the entry into force of Law N 367-FZ, the Law of May 29, 1992 N 2872-1 "On Pledge" became invalid.
Instruction of the Bank of Russia
On July 1, 2014, the new Instruction of the Bank of Russia dated May 30, 2014 N 153-I "On the opening and closing of bank accounts, deposits (deposits), deposit accounts" (hereinafter referred to as the Instruction) also came into force.
The instruction introduced significant changes regarding the new types of accounts discussed above. It prescribes the order and specifics of their opening and closing. So, when opening a nominal account, an escrow account and a pledge account, the bank must have information about the beneficiary and the pledgee, as well as the grounds for the participation of the beneficiary.
When closing a nominal account, the bank transfers the balance of funds to another nominal account or another account of the client, or issues them in cash.
The Instructions also introduced changes regarding the signature sample card. In particular, when opening an escrow account, such a card can be omitted. Even in cases where neither the beneficiary nor the depositor of the escrow account has the right to dispose of the funds from the account. A card is not required if there is a condition in the agreement that transactions on the account are carried out on the basis of the beneficiary's order, and the necessary banking operation orders are signed by the bank.
The instruction contains references to the Law N 115-FZ "On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism".
When concluding a bank account agreement, a credit institution is obliged to take reasonable and accessible measures to identify the beneficial owners.
The new Instruction regarding the introduction of new types of special accounts fully reflects the realities of civil law.
Separately about banks
According to paragraph 1 of Art. 86 of the Tax Code, the bank is obliged to inform about the opening or closing of an account, about changing the details of the account of an organization or an individual entrepreneur.
From August 6, 2014, banks must also report the opening or closing of an account individual who is not an individual entrepreneur.
The bank also bears these obligations in relation to the nominal account and the escrow account.
The nominal account is opened by the owner of the account, the escrow account is opened by the agent. The account holder and the escrow agent are not taxpayers. Therefore, neither these persons nor the beneficiary are obliged to inform the tax and other authorities.
In accordance with Art. 856 of the Civil Code, banks are liable for improper performance of operations on a bank account. Therefore, according to the considered agreements, the bank should be responsible not only for non-fulfillment, but also for untimely fulfillment of the client's orders on the account.
The penalty for improper performance of obligations by the bank should be charged regardless of the payment of interest for the bank's use of the client's funds (Article 852 of the Civil Code of the Russian Federation).
In addition, the bank will be liable even if it has not established that the instructions were issued by an unauthorized person. In this case, the scope of his liability may vary depending on the fault of the bank and the client's compliance with the principles of due diligence and diligence.
If you did not find the information you need on this page, try using the site search:
Three years ago, in 2014, the Government amended the Civil Code of the Russian Federation. The changes affected the possibility of opening a bank account together with close relatives or guardians. Since that time, such a concept as a “nominal account for crediting social benefits” began to operate. All interested persons can open it. Below we will try to figure out what it is, how it functions and what it is for.
A nominal bank account is called, which is drawn up by the trustee for crediting the funds of the ward and their further disposal. A feature of this type of account is that the agreement for its opening may not be signed by the person whose funds are credited to it. If an account is opened for several wards at once, the bank undertakes to take into account the interests of all parties.
What is a nominal account for crediting social benefits? This question interests many.
It can be opened by a guardian or parent to credit various social benefits, as well as benefits and alimony to persons under the age of majority or in a state of incapacity.
In addition, a nominal account can be issued as a guarantee of the fulfillment of obligations specified in the agreement, contract, in order to comply with the terms of the loan, etc.
Registration and subsequent use of nominal accounts, as well as the activities of banking organizations associated with them, is regulated at the state level. 
Nominal accounts are used not only for the transfer of social benefits, representing convenient way managing the finances of the person under guardianship. There are other types of such accounts, such as escrow, letter of credit and pledge account.
Escrow is a nominal account that provides for the blocking of funds available on it for further transfer under an agreement between the beneficiary, the depositor and the banking organization.
Escrow features include:
A letter of credit involves the transfer of funds to the recipient only after confirmation of the fulfillment of all the conditions of the contract. The money is transferred to the account by the payer, after which the bank sends them to the beneficiary when the latter has fulfilled all the prescribed obligations. Letters of credit are a good alternative to transferring funds through a safe deposit box.
A collateral account is opened to deposit money that is collateral. The debtor transfers funds to the account.
The effect of the pledge begins from the moment when the bank approved the opening of the account. Amendments to the contract are made only with the permission of the pledgor. The Bank assumes obligations to fulfill the client's orders. You can lend to several beneficiaries at the same time. How to check the nominal account for crediting social benefits in Sberbank, we will describe below.
Opening nominal accounts has been practiced for quite a long time. They began to be used when the development of cashless payments began and banking systems in electronic format. Deposits were first used in Germany almost 30 years ago. This secured transactions between the payer and the beneficiary. 
Nominal accounts are now often used as deposit accounts, which made it optimal tender guarantee. They are actively used in notarial and legal fields in order to guarantee the fulfillment of obligations under contracts between customers.
Nominal account for crediting social benefits - what is it? This is a fairly common question.
Settlements with counterparties using escrow, letter of credit or collateral deposit are the surest way not to lose money, avoid fraud and dishonesty. The trend in Europe is the use of escrow as a means for everyday needs. This allows you to increase the safety of shopping in stores.
As for the guardians, then opening a nominal account seems to be a good idea. Previously, the money received by the ward came to the account of the guardian, who, in turn, could withdraw only a fixed amount every month without the permission of the guardianship and guardianship authorities. Obtaining such a permit is quite difficult and time consuming.
The government decided to facilitate the fulfillment of duties by guardians and introduced nominal accounts, which would allow the accumulation of funds received. The law provides for the possibility of withdrawing money from a nominal account for crediting social payments in unlimited amounts, subject to reporting on the funds spent. Thus, it is possible to increase the social protection of the wards
and make the field of guardianship itself more attractive. 
With the introduction of nominal accounts, it was possible to open them only in banking credit organizations that belonged to the state. Sberbank occupied a special place among these banks as the main one in the Russian Federation. Since then, the opening rules have changed. It was decided that it was possible to open a nominal account for crediting social payments (we explained why it is needed) in any bank, only the maximum amount of savings was limited.
The deposits of the population are under the protection of the state. The insurance fund in case of bank failure ensures the return of funds to depositors. The refund amount should not exceed 1.4 million rubles. If the deposit amount was more, only the established limit is compensated. For this reason, the maximum possible amount of funds in a nominal account is also equal to this value. Funds in excess of this amount must be sent to the account of another banking organization. This guarantees a full refund to the ward in case the bank declares itself bankrupt.
