Naturally, first of all the loan must be legally formalized. It is best to do it through a notary. Verbal agreements mean little in legal terms. An ordinary contract also offers no special guarantees: it is easy to invalidate it. But any notarial act has greater evidentiary power.
Legal trends: Acquaintances, friends and even family members resort to a notarial loan agreement. For example, a man lent a friend 3 million rubles so that he could pay the mortgage before the divorce and could easily share an apartment with his ex-wife.
We must not forget: the interest on a debt is considered a material benefit and taxes must be paid on it. And an interest-free loan should be arranged.
Another story is that a woman lent several million rubles to her son-in-law to develop her business. She did not charge him interest, but imposed penalties in case of non-payment.
As notaries explain, the interest conditions must be clearly stated in the contract. The rate may increase if the borrower does not meet his obligations on time.
“It is important to remember that the interest received is considered a material benefit and income tax must be paid on this amount,” emphasizes the FNP. “If the parties have agreed on an interest-free loan, this must be recorded because in certain cases. “In these cases, there is nothing in the loan contract about it. It does not say that interest should be charged at the Central Bank rate.”
It is not advisable to indicate percentages that are too high and usurious, the notaries emphasize. If the transaction is initially enslaving, the notary will not certify it. If citizens have signed a simple written agreement setting an interest rate significantly higher than the market rate and too burdensome for the debtor, the court can, by its decision, reduce it.
“It is also necessary to stipulate in the contract the method and procedure for repaying the principal and interest, in part or in full,” the notary continues. “A schedule can be set. It is worth paying special attention to the notary’s liability. If the borrower does not return the money within the agreed time frame, fines, penalties and sanctions will be prescribed.”
If the person who lent the money decides to forgive the debt to the borrower, they can do so through a deed of gift. The debt can also be settled with a property transfer agreement as compensation.
There is also a legal innovation: obligations arising from a loan agreement can be replaced by obligations arising from another agreement. In short, to settle the debt. For example, instead of paying off the debt, the borrower must make repairs to the lender, dig a garden or something else. So, when the debtor has no money, but has golden hands, the parties can come to an agreement.
Some people think that a loan agreement is an excessive measure and that a receipt is sufficient. Others, on the contrary, believe that the receipt is an extra piece of paper and that all issues are covered by the loan agreement. In fact, you need both.
The agreement specifies the amount, term, method of debt repayment and other essential conditions, but in itself, as a rule, does not confirm that the money was actually transferred to the borrower. Until this happens, the agreement is essentially ineffective. The fact of receiving money, especially if it is in cash, is confirmed by a receipt. At the same time, a receipt alone is also not enough, since it often does not indicate under what conditions the money is lent.
One of the reasons for a loan agreement is lack of funds, for example, to purchase a car, equipment or real estate. Then buyers can, so to speak, borrow from the seller. A real life incident: the seller and the buyer of an apartment went to a notary. The second was about a million rubles short of full payment. They did not want to draw up a sales contract with payment in installments so that there would be no liens on the apartment. Therefore, we transfer the debt resulting from the transaction to the format of a loan agreement. The law allows it.
In practice, notaries certify loan agreements between some companies and their employees, when they lend them money without interest for the purchase of a home. There are also simpler reasons. For example, people came to the notary who wanted to sign a loan agreement to buy an expensive purebred dog. Not everyone knows that if a person borrows money for a specific purpose, be it real estate or a pet, a condition can be written into the contract requiring him to confirm that the funds were spent specifically on this.
“Most often people lend money to each other, but the subject of the loan contract can be materials, raw materials, securities, various things defined by generic characteristics. The latter is something that can be easily replaced with a homogeneous product, cereals, gold of a certain quality and so on,” experts say.
There are categories of citizens who cannot conclude a loan agreement. For example, the bankrupt and the incompetent. The notary must check these nuances, experts emphasize.
Dossier “RG”
The correct algorithm is as follows: certify the loan agreement, transfer the money and take a receipt for its receipt. A notary can attest to the authenticity of the borrower’s signature on the receipt. It is better to transfer money in non-cash form so that the movement of funds is visible. And take the bank statement as an additional argument. It is better to do it right away, because if the loan is granted for a long period, the bank may not keep the primary documents when it needs them.
A common but incorrect practice is to give money first and then draw up the documents. Sometimes a creditor goes to a notary and asks to certify a receipt from a debtor who has already stopped paying the debt. This, of course, cannot be done.
