Debt collection in foreign currency: judicial practice

Debt collection in foreign currency

If the debt under the terms of the contract is expressed in foreign currency, what amount must be indicated in the claim and the enforcement decision? Do I need to convert the amount into rubles? At what rate? How will the court decision on collection be formulated?

There are two options here:

• the debt is denominated in a foreign currency, but is payable in the equivalent amount in rubles
• the debt is denominated in a foreign currency and must also be paid in a foreign currency

Based on which of these conditions was specified in the agreement, the court will establish the procedure for collecting debt in foreign currency. However, according to the most common judicial practice, in controversial cases, debt collection will be carried out in the national currency of the Russian Federation - the Russian ruble, since the ruble is the main means of payment on the territory of the Russian Federation. An example can be found in Resolution No. 9772/01 of August 6, 2002 of the Presidium of the Supreme Arbitration Court of the Russian Federation.

The formation of a court decision is also complicated by the fact that for the use of other people's money. funds, according to Article 395 of the Civil Code of the Russian Federation, interest must be collected. The amount of interest must be accrued on the amount expressed in foreign currency, therefore, it is impossible to apply the standard Central Bank rate for loans in rubles in this case (or rather, it is possible, but this would be a mistake). It is necessary to use rates for short-term foreign loans. currency.

Arbitrage practice

How to indicate the amount being recovered (foreign currency) in the statement of claim and how to determine the price of the claim for the purposes of calculating the state duty?

If the contract is expressed and is subject to payment in foreign currency, then the claim must be indicated in the same way. There is no need to convert into rubles at the exchange rate on the day the claim was filed, because the law in most cases allows payments, and therefore recovery, in foreign currency. currency.

When expressing the amount of debt in an equivalent ruble amount, it is also indicated in the claim in rubles. If the contract specified a special exchange rate or the procedure for determining it, these points must also be indicated in the claim. If possible, it is better to immediately convert the amount into rubles under the stated conditions and indicate it in the claim.

All this will help the court quickly navigate and make a decision on collection.

The price of the claim for the purposes of calculating the state duty, according to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 No. 70 “On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation” when collecting a foreign debt. currency and converted into rubles, is determined on the day the claim is filed in court. Further changes in the exchange rate will no longer affect the amount of state duty.

Free legal advice:

When making a decision to collect a debt in an equivalent ruble amount, it must be indicated in what specific foreign currency the ruble amount is pegged, which organization sets the rate for conversion into rubles, and at what rate the conversion amount will be determined. As a rule, this moment is considered to be the date the invoice is issued for collection.

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7 COMMENTS

So how much should I pay the state duty if the debt is in dollars and the duty is in rubles?

Recalculate the cost of the claim in rubles at the Central Bank exchange rate on the day the claim was filed and pay.

I lent money in foreign currency against a receipt. currency. By court decision, the debt is collected in rubles at the exchange rate on the day the decision was made. Now the euro exchange rate has increased significantly, and the amount of debt has also increased accordingly. What should we do now?

There's nothing you can do

Free legal advice:

Because the change in the exchange rate is not the fault of the debtor, therefore the court will not be able to attribute this as your losses.

Debt collection in foreign currency - judicial practice

Tell me, I decided to collect the debt in court against a receipt, an individual himself. person, also gave a loan to an individual, the loan was issued in US dollars, there was no connection to payment in rubles.

Essentially the text of the receipt is as follows: “I borrowed X from XX US dollars, I undertake to repay by January 1, 2015”

Free legal advice:

Answers from lawyers (13)

Good afternoon. If the return rate has not been determined, then link it to the current rate, referring to the provisions of Art. 317 Civil Code of the Russian Federation

Free legal advice:

2. A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.). In e

In that case, the amount payable in rubles is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or agreement of the parties.

In rubles. The calculation is carried out at a key rate of 8.25% per annum. in rubles but at the dollar to ruble exchange rate on the day of the actual return.

How to formulate the pleading part in a statement of claim?

Free legal advice:

1) Collect the amount of the principal debt in the amount of thousands of rubles (approximately - in the descriptive part of the claim, indicate the procedure for calculating the amount x 78 rubles at the exchange rate as of January 26.)

2) To collect interest for the use of other people’s funds in the period from 01/01/2015 to the day of actual execution of the decision in the amount

Client clarification

It’s clear with the amount of the principal debt, i.e. US dollars x at today’s exchange rate 77.79 = this is the amount of the principal debt, but how to calculate the interest on 395? and how to write in the petition part? I demand an amount in rubles or foreign currency.

Have a question for a lawyer?

Free legal advice:

1. Monetary obligations must be expressed in rubles (Article 140).

2. B a monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the corresponding currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or agreement of the parties.

3. The use of foreign currency, as well as payment documents in foreign currency when making payments on the territory of the Russian Federation for obligations, is permitted in cases, in the manner and on the conditions determined by law or in the manner established by it.

Thus, it is better, of course, for the receipt to sound like an amount equivalent to $5,000, for example. In your situation, you will need to transfer the amount from dollars to rubles - at the time of payment - then calculate from rubles the amount for using someone else's money. funds according to civil code - 395 art. and then indicate this in the claim. And you will demand an amount in rubles - based on the amount - there will be a state duty.

Court at the location of the defendant

Free legal advice:

Petrov Mikhail Igorevich

return the amount of debt. write the debt in rubles

This is the amount of the principal debt, but how to calculate the interest on 395?

this amount +% at 395 - right now this is the average bank interest and you need to know the dates of overdue in order to fully calculate everything.

Hello Gennady, currency transactions between residents are prohibited (Article 9 of the Federal Law of December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control”), monetary obligations must be expressed in rubles. However, when we talk about contracts in foreign currency used by residents on the territory of the Russian Federation, we mean that payment in them is still provided in rubles in an equivalent amount. This is regulated in accordance with Art. 317 of the Civil Code of the Russian Federation. Write a claim referring to this article.

Free legal advice:

Sincerely, Harutyun

Hello. In accordance with Art. 317 Civil Code of the Russian Federation

Article 317. Currency of monetary obligations

There is an explanation from the Supreme Arbitration Court of the Russian Federation regarding when the payment day arrives

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N 70

Free legal advice:

“On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation”

3. In accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, a monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.) .

If a contract expresses a monetary obligation in a foreign currency without indicating its payment in rubles, the court should consider such a contractual condition as provided for in paragraph 2 of Article 317 of the Civil Code of the Russian Federation, unless, when interpreting the contract in accordance with the rules of Article 431 of the Civil Code of the Russian Federation, will come to a different conclusion.

If the contract stipulates that a monetary obligation is expressed and paid in foreign currency, but due to the rules of currency legislation, this obligation cannot be fulfilled in foreign currency, then such a contractual condition should also be considered by the court as provided for in paragraph 2 of Article 317 of the Civil Code of the Russian Federation, unless interpretation of the contract in accordance with the rules of Article 431 of the Civil Code of the Russian Federation, the court will not come to a different conclusion.

11. When the court satisfies demands for the recovery of sums of money, which, in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, are payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units, the operative part of the judicial act must contain:

Free legal advice:

an indication of payment of the collected amounts in rubles and the amount of amounts in foreign currency (conventional monetary units) with the exact name of this currency (unit);

the interest rate and (or) the amount of the penalty accrued on this amount; the date from which they are accrued, and the day on which they should be accrued;

the exact name of the body (legal entity) that sets the rate on the basis of which foreign currency (conventional monetary units) should be converted into rubles;

an indication of the moment at which the rate for converting foreign currency (conventional monetary units) into rubles should be determined.

12. When determining the rate and date of recalculation, the court indicates the rate and date established by law or agreement of the parties.

Free legal advice:

In this case, the court should keep in mind that the parties have the right in the agreement to establish their own rate of conversion of foreign currency (conventional monetary units) into rubles or establish a procedure for determining such a rate.

13. If by law or agreement of the parties the rate and date of conversion are not established, the court, in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, indicates that the conversion is carried out at the official rate on the date of the actual payment.

You also need to know that relations regarding the payment of state duties are regulated by Chapter 25.3 of the Tax Code of the Russian Federation. State duty rates are also set in rubles.

The amount of debt is calculated in dollars and it is better to ask for a decision to be made in dollars with

payment in rubles at the Central Bank exchange rate at the time of repayment of the debt, but interest in

Free legal advice:

rubles are calculated from the amount of the principal debt in dollars at the exchange rate at the time

calculation of interest. If memory serves, a certificate of the course is also provided to the court.

On the day of filing a claim or on the day of a court decision, you can choose the average rate of the Central Bank of the Russian Federation at the place of residence or location of the creditor.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of 10/08/1998

(ed. dated 12/04/2000)

Free legal advice:

“On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”

When collecting the amount of a debt in court and in the absence of an agreement on the amount of interest in the contract, the court has the right to determine which discount rate of bank interest should be applied: on the day the claim was filed or on the day the court decision was made.

In this case, when choosing the appropriate discount rate of bank interest, it is necessary, in particular, to take into account how long the monetary obligation was not fulfilled, whether the size of the discount rate changed during this period, and whether there were long periods when the discount rate remained unchanged.

If during the time of non-fulfillment of a monetary obligation the discount rate of bank interest has changed, it is advisable to give preference to the discount rate of bank interest (on the day the claim was filed or on the day the court made a decision) that is closest in value to the discount rates that existed during the entire period of late payment.

In cases where interest was accrued before 06/01/2015 and continues to accrue after it, the amount of interest is determined in the following order:

Free legal advice:

Until June 1, 2015 - based on the discount rate of bank interest on the day of fulfillment of the monetary obligation or part thereof (clause 1 of Article 395 of the Civil Code of the Russian Federation as amended);

From June 1, 2015 - based on the average bank interest rate on deposits of individuals (clause 1 of Article 395 of the Civil Code of the Russian Federation as amended).

But in your case, you should take into account that the text of the receipt did not specify interest under the agreement, then you should take into account the following:

15. When considering disputes related to the execution of loan agreements, as well as the fulfillment by the borrower of obligations to repay a bank loan, it should be taken into account that the interest paid by the borrower on the loan amount in the amount and in the manner determined by paragraph 1 of Article 809 of the Code is payment for use of funds and are subject to payment by the debtor according to the rules on the principal monetary debt.

In accordance with paragraph 1 of Article 811 of the Code, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the manner and amount provided for in paragraph 1 of Article 395 of the Code, from the day when it should have been repaid until the day its return to the lender regardless of the payment of interest provided for in paragraph 1 of Article 809 of the Code.

Free legal advice:

In cases where the loan agreement or credit agreement establishes an increase in the amount of interest due to late payment of the debt, the amount of the rate by which the fee for using the loan is increased should be considered a different amount of interest established by the agreement in accordance with paragraph 1 of Article 395 of the Code .

The interest provided for in paragraph 1 of Article 811 of the Civil Code of the Russian Federation is a measure of civil liability. The specified interest collected in connection with the delay in repaying the loan amount is accrued on this amount without taking into account the interest accrued on the day of repayment for the use of borrowed funds, unless there is a direct clause in the rules binding on the parties or in the agreement on a different procedure for calculating interest.

Interest on the amount of untimely paid interest for the use of borrowed funds, when they are due before the repayment of the principal amount of the loan, is not accrued on the basis of paragraph 1 of Article 811 of the Code, unless otherwise expressly provided by law or agreement.

If there are conditions in the contract for the accrual of increased interest in case of delay in repaying the debt, as well as penalties for the same violation (with the exception of penalties), the creditor has the right to make a demand for the application of one of the measures of liability, without proving the fact and amount of losses incurred by him in case of failure to fulfill a monetary obligation .

If you need assistance in drawing up or filing a claim, please contact us.

Free legal advice:

Good afternoon, Gennady.

Colleagues correctly indicated that the amount of the claim is indicated in rubles.

To calculate interest, you can use the interest calculator under Art. 395.

Here's an example of this:

Separately, I would like to note that, according to clause 3 of Article 14 of the Federal Law “On Currency Regulation and Currency Control,” settlements when carrying out currency transactions are made by resident individuals through bank accounts in authorized banks.

Free legal advice:

If you lent funds not through a bank account, then this is a violation and entails liability under Art. 15.25 Code of Administrative Offenses of the Russian Federation.

Code of Administrative Offenses of the Russian Federation, Article 15.25. Violation of the currency legislation of the Russian Federation and acts of currency regulation authorities

1. Carrying out illegal currency transactions, that is, currency transactions prohibited by the currency legislation of the Russian Federation or carried out in violation of the currency legislation of the Russian Federation, including purchase and sale of foreign currency and checks (including traveler's checks), the nominal value of which is indicated in foreign currency, bypassing authorized banks, or carrying out currency transactions, settlements for which are made, bypassing accounts in authorized banks or accounts (deposits) in banks located outside the territory of the Russian Federation, in cases not provided for by the currency legislation of the Russian Federation, or carrying out foreign exchange transactions, settlements for which are made from funds credited to accounts (deposits) in banks located outside territory of the Russian Federation, in cases not provided for by the currency legislation of the Russian Federation, - entails the imposition of an administrative fine on citizens, officials and legal entities in the amount of three-quarters to one of the amount of the illegal currency transaction.

The court may make a private ruling on this matter and send it to the relevant authorities:

Article 226 of the Code of Civil Procedure of the Russian Federation. Private court rulings

Free legal advice:

1. When identifying cases of violation of the law, the court has the right to issue a private ruling and send it to the relevant organizations or relevant officials, who are obliged to report within a month about the measures they have taken.

The amount of the claim is expressed in rubles at the exchange rate of the Central Bank of the Russian Federation on the day of filing the application

Also in rubles

How to formulate the pleading part in a statement of claim?

I ask you to recover from the defendant in favor of the plaintiff such and such an amount of the main claim and such and such an amount of interest

Here is my personal solution for a similar debt in dollars

In the name of the Russian Federation

Preobrazhensky District Court of Moscow, composed of presiding judge Kochetygov Yu.V., with the participation of lawyer Nikolaev A.N., with secretary Garpichenko Ya.E., having considered in open court civil case No. 2-322/11 on the claim of Shumilov D .N. to Lebedeva L.V. on collection of debt and interest under the loan agreement, legal costs,

Plaintiff Shumilov D.N. filed a lawsuit against the defendant Lebedeva L.V. on the collection of debt and interest under the loan agreement, motivating their claims by the fact that 04/01/2009. a loan agreement was concluded between the parties, according to which the plaintiff agreed to loan the defendant money in US dollars, and the defendant agreed to return the money with interest in the amount of US dollars per month. The plaintiff also points out that from the moment the agreement was concluded until January 2010, the defendant fulfilled its obligations in good faith, but since January 2010, the defendant has refused to repay the debt and the interest established under the agreement. A claim for the return of funds was sent to the defendant, but the defendant refused to receive it.

According to the claims specified in accordance with Article 39 of the Code of Civil Procedure of the Russian Federation, the plaintiff requests to recover from the defendant the amount of the principal debt in the amount of rubles and interest for the use of funds for the period from 01.01.2010 to 02.24.2010 in the amount of rubles (for 13 months) according to what was presented by the plaintiff calculation (ld. 78-79), the plaintiff also asks to recover from the defendant the costs of the representative in the amount of rubles.

The plaintiff and his representative by proxy Goryunov E.I. appeared at the court hearing and supported the claims in full.

The defendant and his representative by power of attorney and warrant, lawyer Nikolaev A.N. They appeared at the court hearing and did not admit the claims, explaining that the defendant did not receive the money according to the receipt from the plaintiff, in fact, the goods were received in the amount of US dollars.

The court, having heard the persons participating in the case, read out the testimony of witnesses Bodrova N.A., Bagiryani M.M., Patrushev A.M., Fedulova E.A., interrogated at the court hearing on November 17, 2010, and witness Deeva A. S., questioned at the court hearing on December 15, 2010, having studied the written materials of this civil case, finds the claims justified and subject to satisfaction on the following grounds.

By virtue of Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him same kind and quality. The loan agreement is considered concluded from the moment the money or other things are transferred. Foreign currency and currency values ​​may be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules of Articles 140, 141 and 317 of this Code.

In accordance with Art. 808 of the Civil Code of the Russian Federation, a loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law, and in the case where the lender is a legal entity - regardless of the amount. In confirmation of the loan agreement and its terms, a receipt from the borrower or another document certifying the transfer by the lender of a certain amount of money or a certain number of things to him may be presented.

By virtue of Art. 162 of the Civil Code of the Russian Federation, failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence. In cases expressly specified in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.

In accordance with Article 810, Part 1 of the Civil Code of the Russian Federation, the borrower is obliged to return the received loan amount to the lender within the time frame and in the manner prescribed by the loan agreement. In cases where the repayment period is not established by the agreement or is determined by the moment of demand, the loan amount must be repaid by the borrower within thirty days from the date the lender submits a request for this, unless otherwise provided by the agreement.

The court found that on April 1, 2009. The plaintiff transferred funds to the defendant in the amount of US dollars as a loan, which is confirmed by a receipt (case file 7, 82). As follows from this receipt, the defendant took the specified amount of money from the plaintiff and undertakes to pay the plaintiff monthly interest in the amount of $1,000 for using the loan.

The fact that the defendant wrote the receipt was not disputed during the trial.

The court considers that a loan agreement was concluded between the parties, since from the text of the receipt it is possible to determine the parties and the subject of the agreement, and they also make it possible to determine that the funds were lent to the defendant at interest.

Despite the fact that the repayment period is not indicated in the receipt, the loan amount in accordance with Article 810 Part 1 of the Civil Code of the Russian Federation must be repaid by the borrower within thirty days from the date the lender submits a request for this.

As can be seen from the case materials, on March 23, 2010, the plaintiff sent a claim to the defendant in which he asked to return the amount of the debt with interest due in connection with the improper fulfillment of the obligations assumed by the defendant (case file 8), but to date the defendant has not owed the plaintiff returned.

In accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis of its claims and objections.

Having assessed the evidence presented in the case in its entirety, the court comes to the conclusion that the defendant’s arguments that in fact goods worth US dollars were received, and not cash, were not confirmed during the trial.

In addition, as follows from the plaintiff’s explanations and was not disputed by the defendant, the defendant, after writing the receipt, paid interest on the loan agreement monthly, until January 2010, did not dispute the receipt, did not make any claims to the plaintiff, which, together with other evidence in the case, allows the court to conclude that the defendant borrowed money from the plaintiff.

The testimony of witnesses questioned during the consideration of the case does not refute the court's conclusions. In addition, none of the witnesses were present when the receipt was written and the funds were transferred and, accordingly, cannot reliably know the terms of the loan.

Thus, the court found that the money was actually received by the defendant from the plaintiff and the grounds for recognizing the loan agreement as not concluded due to its lack of money in accordance with Art. 812 of the Civil Code of the Russian Federation is not available.

The fact that the defendant filed a statement with the Department of Internal Affairs of the Sokolniki district of Moscow regarding fraud on the part of D.N. Shumilov. and currently the verification materials at his request are under additional verification, cannot serve as a basis for refusing the plaintiff’s claim, since, according to Art. 49 of the Constitution, a citizen’s guilt in committing a crime can only be established by a court verdict that has entered into legal force, and as stated above, the material is currently under additional verification, i.e. no criminal case has been initiated against Shumilov and his guilt has not been established by the court verdict. In addition, the defendant does not challenge the transaction under Article 179 of the Civil Code of the Russian Federation.

At the same time, the court considers it possible to explain to the defendant that he is not deprived of the right, in the event of a court verdict, to apply to the court to cancel the decision due to newly discovered circumstances.

According to Art. 307, 309, 310 of the Civil Code of the Russian Federation, the defendant was obliged to fulfill its obligations within the prescribed period. Unilateral refusal to fulfill obligations and unilateral changes in the terms of the contract are not permissible.

According to Art. 809, 810 and 330 of the Civil Code of the Russian Federation, the borrower is obliged to return the loan amount received to the lender, pay interest, and in case of delay in execution, pay a penalty established by law or contract.

Based on Art. 810 of the Civil Code of the Russian Federation, the borrower is obliged to return the loan amount received to the lender on time and in the manner prescribed by the loan agreement. Unless otherwise provided by the loan agreement, the loan amount is considered repaid at the moment it is transferred to the lender or the corresponding funds are credited to his bank account.

Based on the foregoing, having assessed the evidence collected in the case in its entirety, the court believes that since at the time the case was considered by the court, the defendant Lebedeva L.V. did not voluntarily fulfill the terms of the loan agreement, from her in favor of the plaintiff Shumilov L.N. The amount of debt under the loan agreement is subject to collection in the amount of US dollars, which in ruble equivalent is rubles. according to the following calculation: US dollars (principal debt) X 30.88 rubles. (rate of the Central Bank of the Russian Federation for one US dollar as of June 21, 2010), as well as interest under the contract for the period from January 2010 to February 2011 in the amount of US dollars, which in ruble equivalent is rubles according to the following calculation: 1000 US dollars (the established contract amount percent) X 30.88 rub. (rate of the Central Bank of the Russian Federation for one US dollar as of June 21, 2010) X 13 months (debt period).

In accordance with Part 1 of Art. 100 of the Code of Civil Procedure of the Russian Federation, the party in whose favor the court decision was made, at its written request, the court awards, on the other hand, the costs of paying for the services of a representative within reasonable limits. In accordance with the contract for the provision of legal services dated 03/23/2010 and the act of acceptance of the transfer of funds dated 03/23/2010 presented to the court, the plaintiff in payment for the representative’s services related to the consideration of this dispute amounted to rubles. (case sheet 17-18).

The court, taking into account the circumstances of the case, its complexity, the actually spent time of the plaintiff’s representative, considers it possible to satisfy the plaintiff’s request to recover the costs of paying for the representative’s services, taking into account the requirements of reasonableness, in the amount of rubles.

Furthermore, in accordance with Art. 98 part 1 of the Civil Code of the Russian Federation, 333.19. 333.20 of the Tax Code of the Russian Federation, the state duty paid by the plaintiff in the amount of 400 rubles is subject to recovery from the defendant in favor of the plaintiff. cop., and the entire defendant in favor of the plaintiff is subject to recovery of a sum of money in the amount of rubles. 00 kop. (RUB +RUB +15000 RUB +400 RUB)

Also, from the defendant to the state, in accordance with Article 103 Part 1 of the Code of Civil Procedure of the Russian Federation, a state duty in the amount of rubles is subject to recovery. 20 rub.

Based on the above, guided by Art. Art. Code of Civil Procedure of the Russian Federation, the court

The claim is partially satisfied.

Collect from Lebedeva L.V. in favor of Shumilov D.N. a sum of money in the amount of rubles. 00 kop.

Collect from Lebedeva L.V. to state income a state duty in the amount of rubles. 20 kopecks

The decision can be appealed to the Moscow City Court within 10 days from the date of the decision in final form through the district court.

The reasoned decision was made on March 21, 2011.

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Case No. 2-943/11 collection of debt under a loan agreement, interest for the use of other people's funds (in foreign currency).

SOLUTION

In the name of the Russian Federation

Central District Court of Khabarovsk, consisting of:

With the secretary of the court session

When participating in the meeting:

Representative acting under power of attorney No. dated DD.MM.YYYY

having considered a civil case based on a claim by Full Name 1 to Full Name 2 for the collection of debt under a loan agreement, interest for the use of other people’s funds,

FULL NAME1 filed a claim against the defendant to collect the debt under the loan agreement, interest for the use of other people's funds, motivating his demands by the fact that DD.MM.YYYY lent the defendant a sum of money under the loan agreement in the amount of US dollars, which is equivalent at the time of filing the claim applications to the court, 00 rub., for a period until July 19, 2007. The defendant did not return the funds within the established time frame. He asked to recover from the defendant the debt under the loan agreement in the total amount of 00 rubles, interest for the use of other people's funds in the amount of 03 rubles, and the cost of paying the state duty.

During the consideration of the case, the plaintiff repeatedly clarified and changed the claims. In the final version, he asks the court to recover from the defendant the amount of the principal debt under the loan agreement in the amount of 8 rubles. (at the rate of the Central Bank of the Russian Federation on DD.MM.YYYY 25.4936 rubles), interest on the loan for the period from DD.MM.YYYY to DD.MM.YYYY in the amount of 48 rubles. (at the rate of the Central Bank of the Russian Federation on DD.MM.YYYY - 31.0761 rubles), legal costs in the amount of 46,250.00 rubles.

At the court hearing, the representative of the plaintiff, FULL NAME4, acting on the basis of a power of attorney, supported the claims in full, giving explanations similar to those stated above, indicating that the funds have not yet been returned to the plaintiff in full. Funds under the contract for the provision of legal services dated DD.MM.YYYY in the amount of RUB 30,000.00. Full name 5 was entered, there are no documents confirming that these funds belong to the plaintiff.

The plaintiff FULL NAME1, the defendant FULL NAME2 did not appear at the court hearing, the date and time were notified properly, in advance, on purpose, about which there is a receipt and notification in the case materials, including publicly notified by posting information on the court’s website. There is an application from the plaintiff to consider the case in his absence. The court does not have information about the valid reasons for their failure to appear at the court hearing and believes it is possible, by virtue of Article 167 of the Civil Procedure Code of the Russian Federation, to consider the case in their absence.

As follows from the explanations given by the defendant FULL NAME2 during the trial, he did not recognize the claims in full, indicating that the funds were returned in full. He (FULL NAME2) has no evidence of the return of funds to the plaintiff. He gave a receipt, FULL NAME1, and he returned the funds according to the receipt. The receipt was not returned to him; the original receipt remained with FULL NAME1. The funds were returned in different amounts.

After listening to the plaintiff's representative, studying the case materials, and comparing all the evidence presented together, the court comes to the following conclusions.

According to Article 56 of the Civil Procedure Code of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law. The parties cannot submit additional documents other than those attached to the statement of claim. The parties were asked to discuss the circumstances to be proven in the case. There were no statements or petitions from the parties about difficulties in presenting evidence or providing assistance in collecting it. The court believes that since there are no other documents other than the documents presented, to take as a basis when considering the claim the explanations and documents available in the case.

By virtue of the requirements of Article 1 of the Civil Code of the Russian Federation, citizens acquire and exercise their civil rights of their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.

In accordance with paragraph 1 of paragraph 1 of Article 8 of the Civil Code of the Russian Federation, civil rights and obligations arise from contracts and other transactions provided for by law, as well as from contracts and other transactions, although not provided for by law, but not contrary to it .

In accordance with paragraph 8 of part 1 of Article 8 of the Civil Code of the Russian Federation, civil rights and obligations arise from the grounds provided for by law and other legal acts, as well as from the actions of citizens and legal entities, which, although not provided for by law or such acts, are due to general The principles and meaning of civil legislation give rise to civil rights and obligations.

In accordance with this, civil rights and obligations arise, including as a result of other actions of citizens and legal entities.

Paragraphs 1, 3 of Article 154 of the Civil Code of the Russian Federation indicate that transactions can be bilateral or multilateral (agreements) and unilateral. To conclude a contract, it is necessary to express the agreed will of the two parties (bilateral transaction).

According to Part 1 of Article 160 of the Civil Code of the Russian Federation, a transaction must be concluded in writing by drawing up a document expressing its contents and signed by the person or persons making the transaction, or persons duly authorized by them.

According to Part 1 of Article 420 of the Civil Code of the Russian Federation, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.

According to clauses 1, 2 of Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement. Compulsion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by this Code, the law or a voluntarily accepted obligation. The parties may enter into an agreement, either provided for or not provided for by law or other legal acts.

The terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation).

From an analysis of the above legal norms, the court comes to the conclusion that the principle of freedom of contract means that citizens and legal entities independently decide with whom and what kind of contracts to enter into, and freely agree on their terms.

In accordance with Article 432 of the Civil Code of the Russian Federation, an agreement is considered concluded from the moment the parties agree on the essential terms in writing.

Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

According to Article 434 of the Civil Code of the Russian Federation, an agreement can be concluded in any form provided for transactions, if the law does not establish a specific form for agreements of this type. If the parties agreed to conclude an agreement in a certain form, it is considered concluded after giving it the agreed form, even if the law did not require such a form for contracts of this type. An agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents via postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from a party to the agreement (clause 2 of Art. .434 of the Civil Code of the Russian Federation).

As can be seen from the case materials, FULL NAME2 DD.MM.YYYY received from FULL NAME1 a sum of money in the amount of US dollars for a period of up to DD.MM.YYYY. In confirmation of the fulfillment of the terms of the loan, the plaintiff presented an original receipt (case file 16).

Due to the defendant’s failure to fulfill his obligations to repay the loan amount within the period established by the agreement, the plaintiff filed a lawsuit.

The court qualifies the relationship between the parties as civil law, regulated by the norms of civil law.

In accordance with Articles 807, 810 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or equal the number of other things he received of the same kind and quality. The loan agreement is considered concluded from the moment the money or other things are transferred.

In accordance with the requirements of Article 808 of the Civil Code of the Russian Federation, a loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law.

Paragraph 2 of Article 808 of the Civil Code of the Russian Federation provides that in confirmation of the loan agreement and its terms, a receipt from the borrower or another document certifying that the lender has transferred to him a certain amount of money or a certain number of things can be presented.

Article 431 of the Civil Code of the Russian Federation establishes that when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. If such interpretation does not allow the content of the contract to be determined, the actual common will of the parties must be ascertained, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence preceding the contract, the practice established in the mutual relations of the parties, business customs, and subsequent behavior of the parties.

Consequently, taking into account the provisions of Articles 807, 808 of the Civil Code of the Russian Federation, as well as Article 431 of the Civil Code of the Russian Federation, which regulates the rules for interpreting the terms of the agreement, the receipt presented by the plaintiff indicates the existence of a loan agreement between the parties. However, the law does not indicate that the receipt must contain the signature of the lender himself. In order for the receipt to be accepted as confirmation of the conclusion of the loan agreement, the borrower’s signature on it is sufficient.

The loan agreement is a real contract and is considered concluded at the moment of transfer of money (clause 1 of Article 807 of the Civil Code of the Russian Federation).

Current civil legislation does not prohibit the borrower, after concluding a loan agreement, from taking actions indicating his recognition of the debt, including issuing a receipt containing the volume of his obligations under this agreement as of a certain date (Article 203 of the Civil Code of the Russian Federation).

According to Article 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements.

The fact that the plaintiff transferred the amount recovered to the defendant as a loan is confirmed by the receipt available in the case from DD.MM.YYYY, containing the signature of the defendant FULL NAME2 The case materials contain the original receipt from DD.MM.YYYY

There is no evidence in the case that the defendant returned the borrowed funds to the plaintiff and FULL NAME2 was not presented.

In addition, during the court hearing, the defendant and his representative testified that they do not dispute the fact of receipt of funds according to the receipt, but dispute the fact of non-repayment of funds, due to the fact that the obligations under the loan agreement were fulfilled, the amounts of money were returned Full Name1

According to Part 2 of Article 12 of the Civil Procedure Code of the Russian Federation, the court, while maintaining independence, objectivity and impartiality, manages the process, explains to the persons participating in the case their rights and obligations, warns about the consequences of performing or not performing procedural actions, provides assistance to persons participating in in fact, assistance in the implementation of their rights, creates conditions for a comprehensive and complete examination of evidence, establishment of factual circumstances and correct application of the law in the consideration and resolution of civil cases.

The authenticity of the signature FULL NAME2 in the receipt from DD.MM.YYYY, as well as the authenticity of the receipt by the defendant FULL NAME6 and his representative are not disputed.

According to Article 67 of the Civil Procedure Code of the Russian Federation, the court evaluates evidence according to its internal conviction, based on a comprehensive, complete, objective and direct examination of the evidence available in the case. No evidence has predetermined value for the court. The court evaluates the relevance, admissibility, reliability of each evidence separately, as well as the sufficiency and interconnection of the evidence in its entirety.

At the same time, Article 60 of the Civil Procedure Code of the Russian Federation provides that the circumstances of the case, which in accordance with the law must be confirmed by certain means of proof, cannot be confirmed by any other evidence. Therefore, the court has the right to take into account any means of proof provided for by civil procedural legislation when resolving the issue of the authenticity of the signature FULL NAME2 in the receipt dated DD.MM.YYYY

In accordance with Article 71 of the Civil Procedure Code of the Russian Federation, written evidence is containing information about circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic record, including including those received by fax, electronic or other communication, or in any other way that allows the authenticity of the document to be established. Written evidence includes court verdicts and decisions, other court decisions, protocols of procedural actions, minutes of court hearings, annexes to protocols of procedural actions (schemes, maps, plans, drawings).

Written evidence shall be provided in the original or in the form of a duly certified copy.

Original documents are presented when the circumstances of the case, according to laws or other regulatory legal acts, are subject to confirmation only by such documents, when the case cannot be resolved without original documents, or when copies of a document are presented that differ in their content.

Indeed, the original receipt dated DD.MM.YYYY, presented to the court as evidence of the transfer of funds in the amount of US dollars, meets the form requirements provided for by the Civil Code of the Russian Federation.

Consequently, the court comes to the conclusion that, due to the requirements of Articles 56,60,71 of the Civil Procedure Code of the Russian Federation, the original receipt from DD.MM.YYYY confirms the circumstances of the defendant’s failure to fulfill its obligations under the specified agreement and is assessed by the court as an unconditional basis for satisfying the stated requirement .

In accordance with Article 810 of the Civil Code of the Russian Federation, the borrower is obliged to return the received loan amount to the lender on time and in the manner prescribed by the loan agreement.

According to Article 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill obligations is not allowed.

The court found that FULL NAME1 approached the defendant with demands for repayment of the debt, but was refused.

Taking into account the specified norms of legislation and on the basis of the evidence presented in the case materials, the court believes that the plaintiff properly fulfilled his duties by transferring FULL NAME2 funds in the amount of US dollars, which is confirmed by a receipt dated DD.MM.YYYY This receipt meets the requirements specified in paragraph 2 of the article 808 of the Civil Code of the Russian Federation. The defendant did not provide evidence to the contrary.

Evidence of repayment of the loan amount, FULL NAME6, in the manner and within the terms established by the agreement, FULL NAME1 was not presented. At the court hearing it was reliably established that the amount of debt in the amount of US dollars has not yet been returned to the plaintiff.

Since the defendant has not provided the court with sufficient and admissible evidence that they have returned the amount of money according to the receipt dated DD.MM.YYYY, the plaintiff’s demands for collection of the amount of debt in this part are justified and subject to satisfaction.

Thus, the court considers it necessary to recover from the defendant on the receipt in the amount of DD.MM.YYYYUS dollars.

In accordance with Article 807 of the Civil Code of the Russian Federation, foreign currency and currency values ​​can be the subject of a loan on the territory of the Russian Federation.

In accordance with Article 317 of the Civil Code of the Russian Federation, a monetary obligation must be expressed in rubles. A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units. In this case, the amount payable in rubles is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties.

For foreign currencies and conventional monetary units quoted by the Bank of Russia, the official rate means the rate of these currencies (units) to the ruble, established by the Bank of Russia on the basis of Article 52 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)”.

The receipt in question dated DD.MM.YYYY does not contain such a condition.

In paragraph 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated DD.MM.YYYY N 70 “On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation” the following explanation is given. If the rate and date of conversion are not established by law or agreement of the parties, the court, in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, indicates that the conversion is carried out at the official rate on the date of actual payment.

When resolving the issue of in what currency the sums of money to be collected should be indicated in a judicial act, arbitration courts, on the basis of Articles 140 and 317 of the Civil Code of the Russian Federation, must determine the currency in which the monetary obligation is expressed (currency of the debt), and the currency in which it the monetary obligation must be paid (payment currency).

In accordance with clauses 11, 13 of the above information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N70, if the court satisfies demands for the collection of sums of money, which, in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, are payable in rubles in the amount equivalent to a certain amount in foreign currency or in conventional monetary units, the operative part of the judicial act must contain: an indication of the payment of the collected amounts in rubles and the amount of amounts in foreign currency (conventional monetary units) with the exact name of this currency (unit); the interest rate and (or) the amount of the penalty accrued on this amount; the date from which they are accrued, and the day on which they should be accrued; the exact name of the body (legal entity) that sets the rate on the basis of which foreign currency (conventional monetary units) should be converted into rubles; an indication of the moment at which the rate for converting foreign currency (conventional monetary units) into rubles should be determined.

When making a decision, the court is guided by clauses 11, 13 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N 70 “On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation”, since clarifications of the Supreme Arbitration Court of the Russian Federation on the application and interpretation of the norms of substantive and procedural legislation of the Russian Federation are subject to application by courts of general jurisdiction when resolving cases, since arbitration courts, along with courts of general jurisdiction, are part of the unified judicial system of the Russian Federation, and clarifications of the Supreme Arbitration Court of the Russian Federation on issues of interpretation and application of substantive and procedural norms rights in judicial practice cannot be different from the interpretation of the Law that the RF Supreme Court would give on this issue, since it would violate the principle of uniformity in the application of procedural law by courts when resolving disputes.

Taking into account the above clarifications, FULL NAME2 should be charged with a receipt from DD.MM.YYYY the amount of debt in rubles equivalent to 58,000.00 US dollars at the rate of the Central Bank of the Russian Federation on the date of actual payment.

The plaintiff's demands for the recovery of interest for the use of other people's funds must be partially satisfied.

In accordance with paragraph 1 of Article 811 of the Civil Code of the Russian Federation, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the manner and amount provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation from the day on which it must be repaid, until the day of return to the lender, regardless of the payment of interest provided for in paragraph 1 of Article 809 of the Civil Code of the Russian Federation, that is, interest for using the loan.

The interest provided for in paragraph 1 of Article 811 of the Civil Code of the Russian Federation is a measure of civil liability. The specified interest collected in connection with the delay in repaying the loan amount is accrued on this amount without taking into account the interest accrued on the day of repayment for the use of borrowed funds, unless there is a direct clause in the rules binding on the parties or in the agreement on a different procedure for calculating interest.

Thus, in relation to controversial legal relations, the creditor has the right to charge interest in the amount and in the manner provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation on the amount of the principal debt and this rule does not apply to the amount of interest for using the loan.

In accordance with Article 395, paragraph 1 of the Civil Code of the Russian Federation, for the use of other people's funds due to their unlawful withholding, evasion of their return, or other delay in their payment, interest on the amount of these funds is subject to payment. The amount of interest is determined by the bank interest rate existing at the location of the creditor on the day of fulfillment of the monetary obligation or its corresponding part.

When collecting a debt in court, the court may satisfy the creditor's claim based on the discount rate of bank interest on the day the claim was filed or on the day the decision was made. These rules apply unless a different interest rate is established by law or agreement.

According to paragraph 3 of Article 395 of the Civil Code of the Russian Federation, interest for the use of other people's funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for calculating interest by law, other legal acts or agreement.

The provisions of this norm are clarified by the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N13/14. According to paragraph 2 of this resolution, interest is accrued until the moment of actual fulfillment of the monetary obligation, determined on the basis of the conditions on the procedure for payments, the form of calculations and the provisions of Article 316 of the Civil Code of the Russian Federation on the place of fulfillment of the monetary obligation, unless otherwise established by law or agreement of the parties.

Provided by Art. 395 of the Civil Code of the Russian Federation, interest is subject to recovery only if there is a full corpus delicti enshrined in this article. First, there must be a wrongful failure to fulfill a monetary obligation. Secondly, it is required that the debtor use someone else's money as a result of their unlawful retention.

Failure to fulfill obligations under a loan agreement is sufficient grounds for collecting interest for the use of someone else's money.

Paragraph 9 of the information letter dated 04.11.02 N70 clarified that legal or contractual interest on the amount of a monetary obligation, expressed in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation, is accrued on an amount in foreign currency, expressed in this currency and collected in rubles according to the rules paragraph 2 of the said article of the Code. Similar rules are applied by the court when calculating and collecting a penalty for a monetary obligation expressed in accordance with paragraph 2 of Article 317 of the Civil Code of the Russian Federation.

From the calculation of interest presented by the plaintiff, it follows that the plaintiff demands to collect interest for the use of other people's funds according to the receipt dated June 29, 2007. for the period from July 16, 2007 to 01/27/2011 based on the refinancing rate of 13.5% in the amount of 48 rubles, which is equivalent to US dollars.

The calculation of the number of days for the disputed period of time was made by the plaintiff correctly. According to paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 N 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds” (as amended) (hereinafter - Resolution dated 08.10.1998 No. 13/14), when calculating the annual interest payable at the refinancing rate of the Central Bank of the Russian Federation, the number of days in a year (month) is taken equal to 360 and 30 days, respectively, unless otherwise established by agreement of the parties, binding on the parties rules, as well as business customs.

According to paragraph 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002. N70, in cases where interest is accrued on the amount of a monetary obligation expressed in accordance with clause 2 of Article 317 of the Code for the use of other people’s funds (Article 395 of the Civil Code of the Russian Federation) or other interest in the amount of the bank interest rate, such rate is determined in the manner prescribed by paragraph 52 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996. “On some issues related to the application of part one of the Civil Code of the Russian Federation.” As one of the possible official sources of information on average bank interest rates on short-term foreign currency loans provided at the location of the creditor, courts should consider the “Bulletin of the Bank of Russia”, which publishes average Russian rates on short-term loans.

If there are no such publications, the amount of interest to be collected must be determined on the basis of a certificate presented by the plaintiff as evidence from one of the leading banks at the location of the creditor, confirming the rate applied by him on short-term foreign currency loans (clause 52 of the Resolution of July 1, 1996 N6/ 8).

If the recalculation is made on the date of actual payment, then interest must be accrued in the manner and amount established for monetary debt denominated in foreign currency (clause 52 of the Resolution of July 1, 1996 N6/8).

The amount of interest accrued in this manner in monetary units (currency) of the debt must be converted into rubles on the conversion date provided for by the obligation (as a general rule - on the date of actual payment).

Having checked the size of the plaintiff's claims for interest, including the period for which interest was accrued, the court believes that the calculation was made incorrectly. The court, by virtue of the requirements of Article 196 of the Civil Procedure Code of the Russian Federation, cannot go beyond the stated claims, and the plaintiff does not claim a different period of interest.

As follows from the presented materials, according to publications of the “Bulletin of the Bank of Russia” as of March 14, 2011, the average interest rate on short-term loans in US dollars in January 2011. amounted to 12.4%.

Thus, the total amount of interest for the use of other people's funds according to the receipt dated June 29, 2007. payable for the period from July 16, 2007. to 01/27/2011 is $25,811.29 ($58,000.00 x 12.4%/360 x 1292 days). Meanwhile, the court, due to the requirements of Article 196, Part 3 of the Civil Procedure Code of the Russian Federation, cannot go beyond the stated requirements and considers it necessary to recover interest from the defendant for the period from July 16, 2007. to 01/27/2011 in rubles, equivalent to US dollars at the official exchange rate of the Bank of Russia on the date of actual payment.

In accordance with paragraph 1 of Article 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is an amount of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular in the case of delay in fulfillment. According to part one of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty, which is also provided for in paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 N 6/ 8.

The right of the court provided for by this norm to reduce the penalty presented for collection in the event of its obvious disproportion to the consequences of the violation of the obligation is a mechanism for implementing the principle laid down in civil law to ensure the restoration of violated rights by establishing a balance between the measure of responsibility applied to the violator and the amount of damage caused as a result of his violation obligations.

According to the legal position of the Constitutional Court of the Russian Federation, set out in the ruling of December 21, 2000 N 263-O, the court is obliged to establish a balance between the measure of responsibility applied to the violator and the assessment of the actual (and not possible) amount of damage caused as a result of a specific offense.

In accordance with paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 N 17 “Review of the application by arbitration courts of Article 333 of the Civil Code of the Russian Federation,” the basis for the application of Article 333 of the Civil Code of the Russian Federation can only be the obvious disproportion of the penalty to the consequences of violation of obligations. The criteria for establishing disproportionality in each specific case may be: an excessively high percentage of penalties; a significant excess of the amount of the penalty of the amount of possible losses caused by violation of obligations, the duration of non-fulfillment of the obligation and other circumstances. At the same time, the court evaluates the possibility of reducing the penalty, taking into account the specific circumstances of the case (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 No. 17).

Until now, the defendant owes debt under the loan agreement dated June 29, 2007. was not returned in full, despite the plaintiff’s repeated demands for the return of the amount of money.

Reducing the amount of the penalty and determining its specific amount is a right, and not an obligation of the court, possible only if it is proven that the fine to be paid is clearly disproportionate to the consequences of the violation of the obligation. Current legislation, based on the principle of freedom of contract, does not link the determination of the amount of the penalty with the refinancing rate established by the Central Bank of the Russian Federation for the period of violation of the obligation.

The opportunity given to the court to reduce the amount of the penalty if it is excessive compared to the consequences of violation of obligations is one of the legal methods provided for in the law, which are aimed against abuse of the right to freely determine the amount of the penalty, i.e. essentially to implement the requirements of Article 17 (Part 3) of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms should not violate the rights and freedoms of other persons. That is why Article 333 of the Civil Code of the Russian Federation essentially provides for the court’s obligation to establish a balance between the measure of responsibility applied to the violator and the assessment of the actual (and not possible) amount of damage caused as a result of a specific offense.

Based on the foregoing, the court considers it necessary to reduce the amount of interest for the use of other people's funds (penalty) according to the receipt dated June 29, 2007. up to US dollars, since its accrual by the plaintiff in the amount of 25,811.29 US dollars does not correspond to the compensatory nature of civil liability measures due to the obvious disproportion to the consequences of violation of the obligation.

By virtue of Article 88 of the Civil Procedure Code of the Russian Federation, court costs consist of state fees and costs associated with the consideration of the case. Legal costs are not included in the price of the claim. According to Article 91 of the Civil Procedure Code of the Russian Federation, the price of a claim is determined for claims for the recovery of funds, based on the amount of money recovered.

In accordance with Article 98 of the Civil Procedure Code of the Russian Federation, if the claim is partially satisfied, legal costs are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court.

According to Article 94 of the Civil Procedure Code of the Russian Federation, the costs associated with the consideration of the case include the costs of paying for the services of representatives, travel and accommodation costs of the parties and third parties incurred by them in connection with their appearance in court, and other necessary expenses recognized by the court.

In accordance with Part 1 of Article 100 of the Civil Procedure Code of the Russian Federation, the party in whose favor the court decision was made, upon its written request, the court awards the other party the costs of paying for the services of a representative within reasonable limits.

This rule is based on the principle of shared reimbursement of legal costs.

The costs of paying for the services of lawyers and other persons providing legal assistance (representatives) are considered legal costs.

However, collection of legal costs is permitted provided that the party has incurred costs, the recipient of which is the person providing legal services

The obligation of the court to recover the costs of paying for the services of a representative, incurred by the person in whose favor the judicial act was adopted, from another person participating in the case, within reasonable limits, is one of the legal methods provided for by law, aimed against the unreasonable overestimation of the amount of payment for the services of a representative and thereby - to implement the requirements of Article 17 (Part 3) of the Constitution of the Russian Federation.

A person demanding reimbursement of expenses for the services of a representative proves their amount and the fact of payment, the other party has the right to prove their excessiveness (clause 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 5, 2007 N 121 “Review of judicial practice on issues related to distribution between the parties of legal expenses for the services of lawyers and other persons acting as representatives of the arbitration courts”).

Thus, evidence confirming the reasonableness of the costs of paying for the services of a representative must be presented by the party demanding reimbursement of these costs (Article 56 of the Civil Procedure Code of the Russian Federation).

Since the plaintiff’s claims are subject to partial satisfaction, the court considers it necessary to recover from the defendant the costs incurred by the plaintiff to pay for the representative’s services, because these expenses were documented by the plaintiff by the documents presented to the court and available in the case, namely an agreement for the provision of legal services b/n from DD.MM.YYYY, concluded between FULL NAME4 and FULL NAME1, an estimate from DD.MM.YYYY in the amount of 15000.00 rub., from DD.MM.YYYY in the amount of 15,000.00 rub., with an estimate from DD.MM.YYYY in the amount of 15,000.00 rub. (vol. 1 pp), receipt dated DD.MM.YYYY for transfer in the amount of 15,000.00 rubles. (case file 174), however not in the declared amount, since the declared amount of legal expenses exceeds the reasonable limits of expenses for legal services of a representative,

The court in accordance with the provisions of Art. 2, 11, 56, 67 of the Civil Procedure Code of the Russian Federation, the entire volume of evidence presented by the parties both to confirm and refute the reasonableness of all expenses incurred by the plaintiff to pay for the services of a representative was considered, and taking into account their assessment, in particular, the legal position of the defendant and plaintiff , the volume, complexity of the work performed by the representative (preparation of the evidence base), the duration of the consideration of the present case, the nature and category of the dispute, as well as the economic justification of the expenses incurred, the prevailing cost of paying lawyers in the region, the time that a qualified specialist could spend on preparing materials; consistent (stage-by-stage) implementation by the defendant of the right to judicial protection, taking into account the requirements of reasonableness, the court comes to the need to reduce the costs of paying for the services of a representative, determining their amount in the amount of 5,000 rubles.

The plaintiff’s demand for reimbursement of expenses on transfer receipts from DD.MM.YYYY, from DD.MM.YYYY (ld.) cannot be satisfied, since, as follows from the submitted transfer applications, payment for legal services under the contract from DD.MM .YYYY made FULL NAME5 From the testimony of the plaintiff's representative it follows that he does not have evidence confirming that FULL NAME1 incurred these expenses, payment was made by FULL NAME5, no documents were drawn up between FULL NAME5 and FULL NAME1, FULL NAME1.V.V. expenses incurred by FULL NAME5 have not been reimbursed to date.

The court also found that FULL NAME1 paid 900.00 rubles for issuing a power of attorney, according to receipt No. (case file 180). The specified amount is subject to recovery from the defendant FULL NAME7 in favor of the plaintiff.

The plaintiff's demands for the recovery of 100 rubles. according to the receipt from DD.MM.YYYY are not subject to satisfaction, since, as follows from the presented materials, the costs of issuing the certificate were incurred by the representative of the plaintiff FULL NAME4 (case file 188). Evidence recognized by the court as sufficient and admissible to substantiate that the costs were incurred by the plaintiff's representative was not presented. Moreover, as established by the court, expenses in the amount of 100 rubles. incurred by the representative of the plaintiff FULL NAME4 to date the plaintiff has not been reimbursed to him.

Requests for recovery of costs for issuing a certificate in the amount of RUB 250.00. subject to recovery from the defendant in favor of the plaintiff, since these expenses are documented by the receipt available in the case (case file 186).

The total cost is RUB 6,150.00. (900.00 rub. + 5000.00 rub. + 250.00 rub.)

In accordance with Federal Law No. 127-FZ “On amendments to parts one and two of the Tax Code of the Russian Federation and some other legislative acts of the Russian Federation, ..., with DD.MM.YYYY, the procedure for calculating state duty is regulated by the norms of the Tax Code of the Russian Federation.

The amount of the state duty to be collected upon filing the initial claim for FULL NAME1 was 17,968.25 rubles.

Taking into account that FULL NAME1 was paid a state duty in the amount of 19959.49 rubles, if his claims of a property nature in the amount of US dollars are partially satisfied, a state duty in the amount of 17933.55 rubles should be collected from the defendant in favor of the plaintiff. based on claims of a property nature, in proportion to the size of the satisfied claims, payment of which is confirmed by the receipt available in the case.

Based on the above, and guided by Art. Art. of the Civil Procedure Code of the Russian Federation,

The claims of FULL NAME1 to FULL NAME2 for the collection of debt under the loan agreement, interest for the use of other people's funds shall be partially satisfied.

Collect from FULL NAME2 in favor of FULL NAME1 the amount of debt under the loan agreement from DD.MM.YYYY the amount in rubles equivalent to US dollars, including 58,000.00 US dollars of the principal debt, interest for the use of other people's funds for the period from DD.MM.YYYY to DD.MM.YYYY 10,000.00 US dollars, at the official exchange rate of the Bank of Russia on the date of actual payment, to reimburse legal costs rubles. 00 kopecks, state duty rub. 55 kopecks

Definition of the Investigative Committee in civil cases of the Supreme Court of the Urals
dated April 18, 2012 in case No. 33-1158

The Judicial Collegium for Civil Cases of the Supreme Court of the Ural Republic, consisting of:

presiding judge: Bulatova O.B.

judges: Shalagina L.A., Pitirimova G.F.

under the secretary: Rogaleva N.V.

considered in open court in the city of Izhevsk, Udmurt Republic, on April 18, 2012, a civil case on the claim of the SPA against the ZRN for the collection of debt under the loan agreement, interest for the use of other people's funds, legal expenses, on the appeal of the ZRN against the decision of the Malopurginsky District Court of the Udmurt Republic dated January 20, 2012, which decided:

“The claim of SPA against ZRN for the collection of debt under the loan agreement, interest for the use of other people’s money, will be satisfied.

To collect from ZRN in favor of SPA the principal debt under the loan agreement in the amount of 14,600 US dollars in rubles, at the exchange rate of the Central Bank of the Russian Federation on the day of fulfillment of the payment obligation.

To collect from ZRN in favor of SPA interest for the use of other people's funds for the period from DD.MM.YYYY to DD.MM.YYYY in the amount of 8036 rubles. 23 kopecks

To recover from the ZRN in favor of the SPA the costs of paying the state duty in the amount of 7,564 rubles."

Having heard the report of Judge Bulatova O.B., the explanations of the representative of ZRN - ZRR, acting on the basis of a power of attorney from DD.MM.YYYY, who supported the arguments of the complaint, asking for the court decision to be canceled, the representative of SPA - BAV, acting on the basis of a power of attorney from DD.MM.YYYY , who objected to the arguments of the complaint, asking the court’s decision to be left unchanged, the judicial panel found:

SPA filed a lawsuit against ZRN to collect the debt under the loan agreement, interest for the use of other people's funds, and the cost of paying state duties. The claims are motivated by the following circumstances. DD.MM.YYYY a loan agreement was concluded between him and the defendant, according to which he loaned ZRN a sum of money in the amount of 14,600 US dollars. The defendant drew up a receipt to confirm the conclusion of the contract. The return period is not specified in the receipt. DD.MM.YYYY a demand was sent to the defendant for payment of the debt amount with an offer to repay existing debt obligations within 30 days. Due to the fact that the obligations have not been fulfilled, the plaintiff asks to recover from the defendant the amount of debt under the loan agreement in the amount of 428,364 rubles, the amount of interest for the use of other people's funds in the amount of 8,036.23 rubles, as well as the cost of paying state duty.

The SPA did not appear at the court hearing, was duly notified of the time and place of the consideration of the case, the court considered the case in the absence of the plaintiff.

The representative of SPA-BAV supported the requirements and explained that the receipt is a loan agreement, since it contains all the conditions established by law. A literal interpretation of the wording contained in the receipt: “I borrow from SPA in the amount of $6,600 plus $8,000” indicates the existence of a relationship between the lender and the borrower. The defendant does not deny the fact that he personally issued a receipt for receiving money from the plaintiff. In addition, he does not deny the fact that on the back of the receipt there are calculations for his receipt of funds from the SPA that took place before the date of drawing up the receipt. The defendant’s arguments that he received the money on the receipt for the purchase of a dental chair for the benefit of the spa do not correspond to the factual circumstances. At the time of drawing up the receipt, the plaintiff was working at the First Republican Clinical Hospital as an orthopedic dentist and was dismissed DD.MM.YYYY The license to engage in medical activities was issued DD.MM.YYYY, the rental agreement for premises for the dental center was concluded DD.MM.YYYY Consequently , at the time of registration of the receipt, the plaintiff did not have a need for dental equipment. The plaintiff’s reference to the fact that the loan agreement is non-cash, since the funds were received by him before writing the receipt, is unfounded and contradicts the explanations of the defendant himself.

The defendant ZRN did not admit the claim at the court hearing, citing the fact that he received money from SPA, but received it in rubles, and not in dollars. The plaintiff asked for help in purchasing dental equipment and gave money, but this was not documented. Under threats, I wrote the receipt in my own hand under dictation from the SPA in the car. I didn’t realize that he was borrowing money. The calculation provided by SPA is incorrect, since at the time of drawing up the receipt, transactions in dollar terms were prohibited. Believes that this receipt is not a loan agreement, but a commission agreement. Consequently, the time limit for filing a lawsuit has expired.

Representative of ZRN - ZRR R.R. He supported the arguments of his principal, and additionally explained that the transaction was void, since the agreement was non-monetary. The text of the receipt “I undertake to compensate for the purchase of dental equipment that was not purchased through my fault” is nothing more than an indication of the obligation assumed to purchase the equipment. Considering that the deadline for the return of funds is not indicated in the receipt, the plaintiff’s will is aimed at purchasing dental equipment, the defendant’s will is aimed at providing assistance in purchasing equipment, the probable delicacy of the legal relationship, therefore, this receipt was issued as confirmation of the receipt of funds by the commission agent from the principal. The defendant supplied the plaintiff with dental equipment and supplies on numerous occasions. This receipt was issued by ZRN as confirmation of receipt of funds for the purchase of a dental chair for the benefit of the SPA. The funds were returned. In addition, at the time of writing, the receipts were valid " Basic provisions on the regulation of foreign exchange transactions on the territory of the USSR"from DD.MM.YYYY, on the basis of which transactions with currency values ​​between residents, as well as residents and non-residents, bypassing authorized banks were prohibited. The condition on the subject of the loan agreement does not determine the quality of the borrowed items, since the $ symbol indicated in the receipt is in the Russian Federation is not fixed anywhere and has many meanings. In addition, the defendant kept his own expense book, in which he noted the funds borrowed from the SPA and the return of money. According to this book, the plaintiff during March-April 1999 received from ZRN 91892.70 rub., which contains the signature of the plaintiff. He believes that the calculation by the plaintiff was made incorrectly, since at the time of writing the receipt, the exchange rate of the American dollar against the Russian ruble was equal to 15.88.

The court made the above decision.

In the appeal, ZRN asks the court to cancel the court's decision, citing its illegality and groundlessness, and believes that the court incorrectly qualified the relationship between the plaintiff and the defendant. The court did not take into account that the receipt is confirmation of the purchase and sale agreement, delivery, commission and other agreement for the transfer of a certain type of goods. The court did not take into account that since the receipt lacks essential terms, the disputed agreement is not concluded, and the funds issued by ZRN constitute unjust enrichment. The court did not apply the statute of limitations.

In its objections to the appeal, the SPA expresses disagreement with the arguments contained therein.

Having checked the case materials, discussed the arguments of the complaint and objections to the complaint, the judicial panel finds no reason to cancel the court decision on the following grounds.

As follows from the case materials and correctly established by the court, an oral loan agreement was concluded between the disputing parties, under the terms of which ZRN borrowed from SPA a sum of money in the amount of $14,600.

In confirmation of the conclusion of the agreement and its terms, a handwritten receipt from the borrower ZRN dated DD.MM.YYYY is presented with the following content: “I, ZRN (passport data) borrow from the group SPA the amount of $6600 + $8000. I undertake to compensate for the purchase dental equipment not purchased on time due to my fault."

SPA DD.MM.YYYY sent ZRN a demand for payment of the amount of debt under the loan agreement from DD.MM.YYYY, the specified shipment was received by the addressee DD.MM.YYYY

Failure to comply with the requirement to repay the debt amount was the reason for filing this lawsuit in court.

According to paragraph 1 of Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality. The loan agreement is considered concluded from the moment the money or other things are transferred.

In accordance with Art. 808 of the Civil Code of the Russian Federation, a loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law.

In confirmation of the loan agreement and its terms, a receipt from the borrower or another document certifying the transfer by the lender of a certain amount of money or a certain number of things to him may be presented.

In accordance with Art. 810 of the Civil Code of the Russian Federation, the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.

In accordance with Art. 309 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements.

According to Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill obligations and unilateral changes in its conditions are not allowed, except in cases provided for by law.

Resolving the dispute that arose between the parties and satisfying the requirements of the SPA, the court of first instance, based on the assessment according to the rules of Article 67 of the Code of Civil Procedure of the Russian Federation of the evidence presented in the case, came to the conclusion that there were grounds for collecting the loan amount from ZRR, since from the evidence presented it follows that the disputed loan agreement concluded between the parties, funds were transferred by the plaintiff to the defendant in pursuance of the loan agreement.

According to paragraph 1 of article 812 Civil Code of the Russian Federation, the borrower has the right to challenge the loan agreement on the basis of its lack of funds, proving that money or other things were not actually received by him from the lender or were received in a smaller quantity than specified in the agreement.

By virtue of paragraph 2 of this rule of law, if a loan agreement must be concluded in writing (Article 808), challenging it due to lack of money through testimony is not allowed, except in cases where the agreement was concluded under the influence of deception, violence, threat, malicious agreement representative of the borrower with the lender or a combination of difficult circumstances.

Paragraph 3 of this legal norm establishes that if, in the process of challenging the loan agreement by the borrower due to his lack of money, it is established that money or other things were not actually received from the lender, the loan agreement is considered not concluded.

Thus, a loan agreement, which must be concluded in accordance with paragraph 1 of Article 808 of the Civil Code of the Russian Federation in writing, can be challenged by the borrower due to lack of money using any evidence permitted by law.

At the same time, the loan cannot be challenged on the basis of lack of money through testimony. An exception to this rule is established only for cases where the loan agreement was concluded under the influence of deception, violence, threats, malicious agreement between the borrower’s representative and the lender, or a combination of difficult circumstances.

The disputed loan agreement had to be concluded in writing, the fact of transfer (receipt) of funds is confirmed by a receipt Z.R.R.

By presenting to the court the above document, which is a direct confirmation of the loan, the SPA, in the opinion of the panel, proved the fact of concluding an agreement, that is, transferring the loan amount under certain conditions.

The receipt of the above content, containing the essential terms of the loan agreement and confirming the fact of receipt of funds by the ZRR in debt, is necessary and sufficient evidence of the conclusion of the loan agreement.

In such circumstances, the ZRR, by virtue of the provisions of Article 812 of the Civil Code of the Russian Federation, can only object to this by challenging the concluded agreement due to its lack of funds, proving with written evidence that it has not actually received the money.

As can be seen from the case materials, the court did not establish such circumstances; ZRR did not dispute the very fact of receiving funds.

In resolving the stated claims, the court correctly determined the legal relations of the parties as arising from the obligation under the loan agreement, and was reasonably guided by the provisions of Chapter 42 of the Civil Code of the Russian Federation, which regulates these legal relations, and therefore reasonably ordered the defendant to fulfill the loan obligations.

At the same time, the court lawfully determined the amount of debt to be collected in favor of the plaintiff in the amount of 14,600 US dollars in rubles at the exchange rate of the Central Bank of the Russian Federation on the day of actual payment.

In accordance with paragraph 1 of article 317 Civil Code of the Russian Federation, a monetary obligation must be expressed in rubles.

At the same time, paragraph 2 of Article 140 and paragraph 3 of Article 317 of the Civil Code of the Russian Federation allow the use of foreign currency on the territory of the Russian Federation in cases, in the manner and under the conditions determined by law, or in the manner prescribed by law. Therefore, in the case where the use of foreign currency as a means of payment for a monetary obligation is allowed on the territory of the Russian Federation, the latter can be expressed in foreign currency.

A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties (clause 2 of Article 317 of the Civil Code of the Russian Federation).

According to the legal position of the Supreme Arbitration Court of the Russian Federation, expressed in Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N 70 “On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation”, in the case where in the contract a monetary obligation is expressed in foreign currency without indicating its payment in rubles, the court should consider such a contractual condition as provided for in paragraph 2 of Art. 317 of the Civil Code of the Russian Federation, unless when interpreting the contract in accordance with the rules of Art. 431 of the Civil Code of the Russian Federation, the court will not come to a different conclusion.

If the contract stipulates that a monetary obligation is expressed and paid in foreign currency, but due to the rules of currency legislation, this obligation cannot be fulfilled in foreign currency, then such a contractual condition should also be considered by the court as stipulated paragraph 2 of article 317 The Civil Code of the Russian Federation, unless, when interpreting the contract in accordance with the rules of Article 431 of the Civil Code of the Russian Federation, the court comes to a different conclusion.

The court's recognition as invalid of the terms of an agreement in which the monetary obligation is expressed in foreign currency does not entail invalidation of the agreement if it can be assumed that the agreement would have been concluded without this condition (Article 180 of the Civil Code of the Russian Federation).

The fact of transfer of foreign currency under a loan agreement does not in itself indicate the nullity of the transaction concluded by the parties.

In addition, violation of the provisions of legislative acts on currency regulation and currency control entails other liability in accordance with the provisions of the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation.

In this situation, the court of first instance reasonably considered that the actual relations between the parties under the loan agreement indicate its actual execution (the plaintiff transferred the funds to the defendant, and the defendant did not provide evidence to the contrary) and confirm the achievement of those legal consequences to which the will of the parties was directed when concluding a loan agreement, in connection with which the court’s conclusion about the plaintiff’s right to collect the amount of debt under the loan agreement in rubles, equivalent to 14,600 US dollars at the exchange rate of the Central Bank of the Russian Federation on the date of payment, does not contradict the terms of the loan agreement concluded between the parties and the provisions of the current civil legislation.

Taking into account the fact of the transfer of funds and the defendant’s improper fulfillment of its obligations under the loan agreement, the court legally satisfied the plaintiff’s demands to collect from the defendant interest for the use of other people’s funds in accordance with Articles 811, 395 of the Civil Code of the Russian Federation.

Regarding the calculation of the amount of interest collected for the use of other people's funds, no objections were received from the defendant either in the court of first instance or at the appeal stage.

The controversial issue on which disagreements arose between the parties was the question of whether the funds were received as borrowed money or on other grounds.

The reason for such disagreements was the content of the borrower's receipt, which contained information both about the receipt of money as a loan and about other obligations of the borrower.

In accordance with Art. 431 of the Civil Code of the Russian Federation, when interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract term, if it is unclear, is established by comparison with other terms and the meaning of the contract as a whole.

If the rules contained in part one of this article do not allow determining the content of the contract, the actual common will of the parties must be clarified, taking into account the purpose of the contract. In this case, all relevant circumstances are taken into account, including negotiations and correspondence preceding the contract, the practice established in the mutual relations of the parties, business customs, and subsequent behavior of the parties.

Based on the literal interpretation of the receipt, as the court of first instance reasonably considered, it can be concluded that a loan agreement was concluded between the parties, since the words “borrow” mean nothing more than the receipt of funds on loan, and that the defendant had the obligation indicated in the receipt, return the funds to the plaintiff.

The circumstances relevant to the case were established by the court fully and correctly, all the arguments of the defendant given in the objections to the claim were given an appropriate legal assessment by the court of first instance in the decision, the substantive law was applied correctly, any violations of procedural law that would lead or could have led to an incorrect resolution of the case, which was also not allowed by the court.

The arguments of the appeal, proposing a different assessment of the circumstances of the case, are rejected by the panel for the reasons stated above, as well as in view of the following.

The fact that funds were transferred in rubles and not in dollars is refuted by the text of the receipt itself, as well as by the calculations that are given on the back of the receipt, where the total amount is expressed as $6,600.

The complainant’s argument that the funds were transferred to ZRR not under a loan agreement, but for the purchase of dental equipment, is rejected by the board as unfounded.

This argument is based on the fact that, according to the defendant, ZRR wrote a receipt indicating that he agreed to purchase dental equipment.

At the same time, the text of the receipt does not contain these words; on the contrary, ZRR indicated in the receipt that it undertakes to compensate for the purchase of dental equipment that was not purchased on time due to its fault.

Considering that the receipt was written by ZRR himself and nothing prevented him from indicating that if funds were taken to purchase any goods, that it was for these purposes that he was taking the money, ZRR indicated that he was borrowing money.

An indication in the receipt of any other obligations of the ZRR that it has assumed in addition to the borrowed ones does not exclude the presence of borrowed obligations as such, since a literal interpretation of the contents of the receipt leads to the conclusion that the ZRR has debt obligations.

The ZRR's arguments about the absence of debt obligations were checked by the court of first instance and were not confirmed.

The receipt dated September 26, 1998 does not indicate a different nature of the parties’ legal relations.

From the text of the receipt it follows that the money was received as a loan; in this regard, the arguments of the complaint that in fact there were legal relations under a purchase and sale agreement, delivery, commission and other agreement for the transfer of a certain type of goods cannot be taken into account, and not a loan agreement.

The board absolutely agrees with the complainant that from the text of the disputed receipt it is impossible to determine the essential terms of the contract of sale, delivery and other agreement for the transfer of goods, since it does not agree on the essential conditions characteristic of these contracts, and appeals to him (the complainant ) Please note that the subject of the dispute under consideration was the legal relationship under the loan agreement.

Since the panel agrees with the conclusion of the trial court about the existence of legal relations between the parties arising from the loan agreement, the arguments of the complaint about the non-conclusion of some other agreements, unjust enrichment and the passage of the statute of limitations on claims under these unconcluded agreements are rejected due to their groundlessness.

Assessing the defendant’s arguments that the funds he received from the SPA were returned to the plaintiff, as evidenced by the entries in the defendant’s expense book, one should agree with the court’s conclusion that this evidence does not meet the criteria of relevance, since from these entries it is not possible to establish their attitude to the disputed treaty.

Proper fulfillment of the obligation on the part of the defendant by the court at the time of consideration of the dispute was not established, while the obligation to prove these circumstances in accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation lay with the defendant.

The court's decision is legal and justified.

There are no grounds for its cancellation or change provided for in Article 330 of the Code of Civil Procedure of the Russian Federation.

Based on the above, guided by art. 328 of the Civil Procedure Code of the Russian Federation, the judicial panel determined:

the decision of the Malopurginsky District Court of the Udmurt Republic dated January 20, 2012 was left unchanged and the appeal was not satisfied.

Sample claim for debt collection in foreign currency

Leninsky District Court of the city of Barnaul, Altai Territory

Plaintiff: Ivanov Vladimir Nikolaevich
Barnaul, st. Anton Petrov, 77-77

Representative: Kruglov Alexander Sergeevich,

89132675631

Defendant: Petrov Anton Ivanovich
Barnaul, Popova st., 77-77

Claim price:

State duty:

STATEMENT OF CLAIM

On September 05, 2013, three loan agreements were concluded between Vladimir Nikolaevich Ivanov (hereinafter referred to as the plaintiff, lender) and Anton Ivanovich Petrov (hereinafter referred to as the defendant, borrower).

According to the terms of the cash loan agreement dated 09/05/2013. the lender transferred funds to the borrower in the amount of 11,237,850 rubles, and the borrower assumed an obligation to return funds in the amount of 255,000 Euros by September 30, 2013. To date, the obligations under this agreement have not been fulfilled.

According to the cash loan agreement dated February 25, 2014. the lender transferred funds to the borrower in the amount of 3,460,000 rubles, and the borrower assumed an obligation to return funds in the amount of 123,087.87 US dollars by 04/25/2014. To date, the obligations under this agreement have not been fulfilled.

According to the cash loan agreement dated 06/02/2014. the lender transferred funds to the borrower in the amount of 1200 Euros, and the borrower assumed an obligation to return funds in the amount of 1200 Euros by June 30, 2014. To date, the obligations under this agreement have not been fulfilled.

The plaintiff repeatedly appealed to the defendant with a demand to repay the overdue debt. A demand for repayment of the debt was also sent to the defendant, as evidenced by the postal receipt.

In this regard, the plaintiff was forced to go to court with this claim.

In accordance with Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him same kind and quality. The loan agreement is considered concluded from the moment the money or other things are transferred.

In accordance with Art. 810 of the Civil Code of the Russian Federation, the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.

In accordance with Art. 811 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Article 395 of this Code, from the day on which it was supposed to be repaid , until the day of its return to the lender, regardless of the payment of interest provided for in paragraph 1 of Article 809 of this Code.

In accordance with Art. 395 of the Civil Code of the Russian Federation for the use of someone else’s funds due to their unlawful retention, evasion of their return, other delay in their payment or unjustified receipt or savings at the expense of another person, interest on the amount of these funds is subject to payment.

Foreign currency and currency values ​​may be the subject of a loan agreement on the territory of the Russian Federation in compliance with the rules established by Art. 140, 141, 317 Civil Code of the Russian Federation.

Article 140 of the Civil Code of the Russian Federation directly provides that the ruble is legal tender, obligatory for acceptance at face value throughout the Russian Federation. The cases, procedure and conditions for the use of foreign currency on the territory of the Russian Federation are determined by law or in the manner established by it.

In accordance with Art. 317 of the Civil Code of the Russian Federation also provides that monetary obligations must be expressed in rubles. A monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.). In this case, the amount payable in rubles is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties.

According to Article 309, Article 310 of the Civil Code of the Russian Federation, obligations must be fulfilled in accordance with the terms of the agreement.

Calculation of debt, interest

1. According to the terms of the cash loan agreement dated 09/05/2013. the borrower was obliged to repay the amount of 255,000 Euros by September 30, 2013.
The period of delay is from September 30, 2013. until January 18, 2016 914 days.
Euro exchange rate as of September 30, 2013. 43.95 rub. – established by the Central Bank of the Russian Federation.
Amount of overdue debt: 255000*43.95=11207250

CALCULATION TABLE

2. According to the cash loan agreement dated 02/25/2014, the borrower assumed the obligation to repay funds in the amount of 123,087.87 US dollars by 04/25/2014.
The period of delay is from 04/25/2014. until March 31, 2016 707 days.
US dollar exchange rate as of April 25, 2014. RUB 35.60 – established by the Central Bank of the Russian Federation.
Amount of overdue debt: 123087.87*35.60 = 4381928.17
Calculation of interest for the use of other people's funds under Art. 395 Civil Code of the Russian Federation
CALCULATION TABLE

3. According to the cash loan agreement dated 06/02/2014, the borrower assumed the obligation to repay funds in the amount of 1200 Euros by 06/30/2014.

The period of delay is from 06/30/2014. until March 31, 2016 640 days.

The Euro exchange rate as of June 30, 2014, 47.54 rubles, was established by the Central Bank of the Russian Federation.

Amount of overdue debt: 1200*47.54=57048

Calculation of interest for the use of other people's funds under Art. 395 Civil Code of the Russian Federation
CALCULATION TABLE

On the basis of the above,

I ASK THE COURT:

1. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov the debt under the cash loan agreement dated 09/05/2013. in the amount of 255,000 Euro. Collection should be made in rubles at the exchange rate of the Central Bank of the Russian Federation on the day the decision was made.

2. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov the debt under the cash loan agreement dated February 25, 2014. in the amount of US$123,087.87. Collection should be made in rubles at the exchange rate of the Central Bank of the Russian Federation on the day the decision was made.

3. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov the debt under the cash loan agreement dated 06/05/2014. in the amount of 1200 Euro. Collection should be made in rubles at the exchange rate of the Central Bank of the Russian Federation on the day the decision was made.

4. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov interest under the cash loan agreement dated 09/05/2013. for the period from September 30, 2013 until March 31, 2016 in the amount of 2,428,508.34 rubles.

5. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov interest under the cash loan agreement dated February 25, 2014. for the period from April 25, 2014 until March 31, 2016 in the amount of 741,655.95 rubles.

6. To collect from Anton Ivanovich Petrov in favor of Vladimir Nikolaevich Ivanov interest under the cash loan agreement dated 06/05/2014. from 06/30/2014 until March 31, 2016 in the amount of 8,779.63 rubles.

Kruglov A.S.

The problem of overdue debts has become particularly acute recently. If the pre-trial debt settlement procedure does not produce results, creditors are forced to resort to litigation.

Overdue debts can arise during the conduct of business activities of a company (entrepreneur) or an individual. In addition, debt may arise for taxes, fees, and to the employees of the company (entrepreneur).

In any conflict situation, the company is interested in the outcome: whether the problem was resolved in its favor, whether the claim was satisfied. However, this is only the final result, and what it will be depends on the literacy of the debt collection process. Such work should be entrusted to professionals, otherwise the result of the claim work may not meet expectations.

Thus, the arbitration authority will refuse to consider a claim if its originator has not taken into account the pre-trial procedure for debt collection. Inaccuracy of wording, violation of the sequence of actions, absence of mandatory components - each of these points can cause the application to be rejected.

Compliance with pre-trial procedure is mandatory in cases where debt collection is involved.

DEBT COLLECTION

Let us briefly consider the main stages of debt collection.

Civil legal disputes regarding the collection of funds under claims arising from contracts, other transactions, due to unjust enrichment, may be referred to arbitration court after the parties take measures for pre-trial settlement after 30 calendar days from the date of filing the claim (demand), if other deadlines and (or) procedures are not established by law or agreement. Thus, before filing a claim with the arbitration court, the company must contact the counterparty with a pre-trial claim.

Stage 1. Submitting claims in writing.

The claim is sent by registered mail and return receipt or delivered against signature in two copies, one of which remains with the company.

Stage 2. If the pre-trial claim is not satisfied within 30 calendar days, unless another period is established by the contract, the company has the right to file a claim with the arbitration court.

Stage 3. Preparation of a statement of claim.

Cases within the jurisdiction of arbitration courts are considered in the first instance by arbitration courts of republics, territories, regions, federal cities, autonomous regions, and autonomous districts. The claim is brought to the arbitration court of the constituent entity of the Russian Federation at the location or place of residence of the defendant. In this case, jurisdiction can be changed by agreement of the parties, in particular by agreement, before the arbitration court accepts the application for its proceedings.

Before filing a claim, a state fee is paid, the amount of which directly depends on the size of the claim (Article 333.19 of the Tax Code of the Russian Federation). The original receipt for payment of the state fee is attached to the statement of claim.

Depending on the amount of the claim, the statement of claim for debt collection is submitted to the magistrate (debt collection up to 50 thousand rubles) or to the district court at the debtor’s place of residence.

Stage 4. Court hearing and delivery of a court decision.

After the legal battles are completed, the court makes a decision on the debt collection case.

The court decision comes into force after the expiration of the period for appeal, if it has not been appealed (Article 209 of the Code of Civil Procedure of the Russian Federation). If one of the parties files an appeal, the court decision comes into force only after its consideration. And the deadline for filing an appeal is 1 month after the court makes a decision in final form (clause 2 of Article 321 of the Code of Civil Procedure of the Russian Federation).

Stage 5. Enforcement of a court decision. Unfortunately, victory in court does not guarantee quick collection of debt from the debtor.

In practice, often the longest stage is the enforcement of a court decision. The creditor, having received the writ of execution, presents it to the debtor. This can be done in different ways.

DEBT COLLECTION UNDER THE AGREEMENT

The courts hear business disputes regarding debt collection with regulatory authorities and business partners.

Common corporate disputes include collection of debt under a lease agreement, under a supply agreement, under a leasing agreement, under a loan agreement, interest for the use of other people's funds.

For example, in case of non-payment for the delivered goods, the supplier sues the buyer (if the pre-trial procedure did not bring any results).

In this case, the supplier may demand not only payment for the goods, but also payment of interest under Article 317.1 of the Civil Code of the Russian Federation. In addition, the debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation (clauses 1, 2 of Article 393 of the Civil Code of the Russian Federation). Losses are determined in accordance with the rules provided for in Article 15 of the Civil Code of the Russian Federation.

• Encyclopedia of judicial practice. The procedure for foreclosure on the debtor’s funds when calculating debt in foreign currency (Article 72 of the Law “On Enforcement Proceedings”)
• 1. The law allows the collection and transfer of funds to the recoverer in the foreign currency established by the relevant act and does not relieve the bailiff from the duties of executing such a decision
• 2. In the determination to seize the debtor’s funds in the amount determined at the foreign currency exchange rate, the amount of funds is indicated in this foreign currency
• 3. When seizing funds, the amount of which is indicated in foreign currency, the bank applies the official exchange rate established by the Central Bank of the Russian Federation, valid on the day of termination of debit transactions
• 4. In the event of a change in the exchange rate, the bank recalculates the debtor’s seized funds if their amount was indicated in foreign currency
• 5. If the debt is calculated in a foreign currency, it is permissible to deduct from pension savings in the same amount for subsequent transfer of funds to the collectors, taking into account the exchange rate to the ruble
• 6. The actions of the bailiff are legal if the amount collected by him in foreign currency was calculated at the exchange rate of the Central Bank of the Russian Federation at the time of payment of the debt
• 7. If in the verdict of a court of a foreign state the monetary obligation of the convicted person is expressed in foreign currency, then when recognizing the verdict, the Russian court indicates it in the same currency

Encyclopedia of Judicial Practice
The procedure for foreclosure on the debtor's funds when calculating debt in foreign currency
(Article 72 of the Law “On Enforcement Proceedings”)

1. The law allows the collection and transfer of funds to the recoverer in the foreign currency established by the relevant act and does not relieve the bailiff from the duties of executing such a decision

The procedure for taking actions to collect funds from the debtor when calculating a debt in foreign currency is regulated in detail in Article 72 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”.

The possibility of collecting funds in foreign currency is also based on the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards dated June 10, 1958.

Consequently, the Bailiff Service had no insurmountable obstacles to transferring funds to the company in ruble equivalent.

According to the calculations of the claimant, made in accordance with the requirements of Art. 72 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, the credit debt of joint and several debtors in foreign currency has not been repaid in full and amounts to __ Euro.

At the same time, by the decisions of the bailiff of the Tver ROSP of the Federal Bailiff Service of Russia in Moscow dated December 10, 2012, enforcement proceedings against the debtors were completed with the actual execution of the writ of execution.

Satisfying the stated demands for declaring illegal and canceling decisions to terminate enforcement proceedings, the court proceeded from the fact that the bailiff was obliged to instruct the bank to purchase foreign currency with funds received from the defendants in rubles and transfer foreign currency to the account of the claimant, the legislation does not excludes the possibility of collecting and transferring funds to the recoverer in the foreign currency established by the relevant act and does not relieve officials of the Federal Bailiff Service from the duties of actually implementing such a decision.

Part 2 Art. 317 of the Civil Code of the Russian Federation, a monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.) In this case, the subject When paying in rubles, the amount is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties.

clause 2 art. 317 and part 2 of Art. 807 of the Civil Code of the Russian Federation, the court reasonably collected the debt in Japanese yen

When executing a writ of execution issued on the basis of such a determination by terminating debit transactions on the client’s (debtor’s) bank account in another currency (in particular, rubles), the bank applies the official rate of the relevant foreign currency established by the Central Bank of the Russian Federation, valid on the day of termination of debit transactions .

4. In the event of a change in the exchange rate, the bank recalculates the debtor’s seized funds if their amount was indicated in foreign currency

In the determination to seize the debtor's funds in an amount determined at the foreign currency exchange rate, the amount of funds to be seized is indicated in this foreign currency.

When executing a writ of execution issued on the basis of such a determination by terminating debit transactions on the client’s (debtor’s) bank account in another currency (in particular, rubles), the bank applies the official rate of the relevant foreign currency established by the Central Bank of the Russian Federation, valid on the day of termination of debit transactions . If this foreign currency exchange rate changes, the bank, before executing the writ of execution or canceling the interim measure, recalculates the amount of the client’s funds that have been seized.

5. If the debt is calculated in a foreign currency, it is permissible to deduct from pension savings in the same amount for subsequent transfer of funds to the collectors, taking into account the exchange rate to the ruble

The court of first instance also correctly noted that deductions from pension proceeds are legally collected in the same amount, since only after deduction can the specified amount be distributed within the framework of consolidated enforcement proceedings to claimants, taking into account the exchange rate of the Ukrainian hryvnia to the Russian ruble.

6. The actions of the bailiff are legal if the amount collected by him in foreign currency was calculated at the exchange rate of the Central Bank of the Russian Federation at the time of payment of the debt

In the complaint, the applicant claims that the bailiff overestimated the amount collected by ___ US dollars. These arguments of the complaint were the subject of consideration by the court of first instance and were rightfully refuted.

The panel of judges agrees with these conclusions of the court of first instance that the amount collected was calculated by the bailiff at the US dollar exchange rate established by the Central Bank of the Russian Federation at the time of payment of the debt. Debt of I.R. was repaid, therefore there is no reason to believe that the bailiff committed violations of the law.

The arguments of the complaint about the incorrectness of the court's presentation of the operative part of the decision are also unconvincing. In accordance with the rules of Part 2 of Art. 317 of the Civil Code of the Russian Federation, a monetary obligation may stipulate that it is payable in rubles in an amount equivalent to a certain amount in foreign currency or in conventional monetary units (ecus, “special drawing rights”, etc.) In this case, the subject When paying in rubles, the amount is determined at the official exchange rate of the relevant currency or conventional monetary units on the day of payment, unless a different rate or another date for its determination is established by law or by agreement of the parties.

Having come to the correct conclusion about the need to collect in favor of the plaintiff the amount of debt under the loan agreement, taking into account the provisions of the above paragraph 2 of Art. 317 and part 2 of Art. 807 of the Civil Code of the Russian Federation, the court reasonably collected the debt in Japanese yen.

Explain to the courts that if the verdict of a court of a foreign state provides for a monetary obligation of the convicted person, expressed in the currency of a particular state, then, based on the provisions of Part 2 of Article 472 of the Code of Criminal Procedure of the Russian Federation, Article 72

When making a decision regarding M., the court did not take into account the explanation of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 14, 2012 No. 11 “On the practice of courts considering issues related to the extradition of persons for criminal prosecution or execution of a sentence” that if in the court verdict foreign state provides for a monetary obligation of the convicted person, expressed in the currency of a particular state, then, based on the provisions of Part 2 of Article 472 of the Code of Criminal Procedure of the Russian Federation, Article 72 of the Federal Law [dated October 2, 2007 N 229-FZ] " On enforcement proceedings", when recognizing a sentence of a court of a foreign state, the court of the Russian Federation must indicate the monetary obligation of the convicted person in the same currency.

Thus, by a court verdict, money in the currency of the Republic of Latvia - 37 lats 50 centimes - was recovered from a defense lawyer convicted for his work, in favor of the state, but the court, when considering a petition for execution of the sentence, decided to recover from M. the costs of paying for the services of a defense lawyer in favor of the Republic of Latvia in in the currency of the Russian Federation - in the amount of 2175 rubles.

When considering the material on appeal, the judicial panel corrected this error, indicating the need to recover the above expenses in the currency specified in the verdict, i.e. 37 lats 50 centimes.

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