Obligations from bank account and bank deposit agreements. Obligations from bank account and bank deposit agreements Other types of bank deposit agreements
54. Bank deposit agreement. Elements of a contract. Contributor's rights. Responsibility of the parties Elements:
Parties - a credit institution (banks and non-bank credit institutions) and a depositor (a citizen and a legal entity). Citizens acquire the right to independently make deposits to credit institutions and manage them from the age of 14. The subject is the only essential condition- amount of money. By transferring the amount of money to the deposit, the depositor transfers the ownership of it to the credit institution, and in return receives the obligation to claim under the contract.
The form- written. The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements provided for by law for such documents, banking rules established in accordance with it and business customs applied in banking practice. .
Failure to comply with the written form of the bank deposit agreement shall entail the invalidity of this agreement. Such an agreement is void.
Since the bank deposit agreement is unilateral, obligations under it lie only on one side - the credit institution, the depositor has only corresponding rights:- right claim a refund deposit upon the due date or condition established by the agreement (a citizen depositor can receive a deposit on first demand, the limitation period does not apply to this requirement)
Require after each quarter interest payments(the contract may also specify a different frequency of payments)
Responsibility: see question 53
53. Bank deposit agreement: responsibility of the parties. The ratio of the rules on the bank deposit agreement with the rules on the bank account agreement. Due to the fact that the rules on the bank account agreement (clause 3 of article 834 of the Civil Code) apply to the relationship between the bank and the depositor on the account to which the deposit was made, whenviolationsbank of its obligations tocontributoropening and maintaining a deposit account applicable rule on responsibilitybank for improper transactions on the account contained in Art. 856 GK. According to the specified norm in cases of untimely crediting of funds received by the client to the account or their unreasonable debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account the bank is obliged pay interest on this amount.(for the use of other people's money) in the manner and in the amount provided for by Art. 395 GK. Responsibility of a bank under a bank deposit agreementoccurs in the following cases:
a) for failure to fulfill the obligations stipulated by law or the contract to ensure the return of the deposit;
b) in case of loss of collateral or deterioration of its conditions;
c) for accepting a deposit from citizens by an unauthorized person or in violation of the legislation on deposits;
d) for non-return of the deposit or non-payment of interest on it or delay in these actions.
In all of the above cases, the depositor has the right to demand from his counterparty immediate refundcontribution. In the first and second cases The property liability of the bank consists in the obligation to pay the depositor penalty in the amount of the bank rate(in judicial practice, this is the refinancing rate of the Central Bank of the Russian Federation, calculated on the day the debt is repaid), as well as indemnify for damages notcovered with a penalty(Clause 4, Article 840 of the Civil Code of the Russian Federation). In the third case when a deposit is accepted from a citizen by a person not authorized to carry out banking activities (i.e., in the absence of a license to carry out banking operations), civil liability is stricter: the person accepting the deposit mustpay interest on the amount of the deposit in the amount of the raterefinancing, and in addition to reimburse the depositor-all the damages caused to the citizen. If the contributorlegal entity, then the deposit agreement isinvalid(clause 2 of article 835 of the Civil Code of the Russian Federation), and the bank mustreturn the amount of the deposit with interest accrued on it torefinancing rate(Article 1103, paragraph 2 of Article 1107 of the Civil Code
rf). And, finally, the most common case is the delay in the return of the deposit amount and (or) the payment of interest on it.
The ratio of the norms on the bank deposit agreement and the bank account agreement:
Bank account - form (technical regulations), bank deposit - content.
The bank deposit contract is unilaterally binding, the bank account contract is bilaterally binding.
Bank deposit agreement: a static deposit, a bank account agreement - in dynamics, you can use cash. Scheme from the lecture
An essential condition of the agreement is the subject, which is the bank's deposit services (type of deposit). The condition on the amount and procedure for paying interest is not essential.
Unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner specified in the agreement. In the absence of a clause in the agreement on the amount of interest, their amount is determined by the existing bank refinancing rate.
As a general rule, the bank is not entitled to unilaterally change the interest established by the agreement. Unless otherwise provided by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits.
If the bank reduces the interest rate, the new interest rate is applied after a month from the date of the relevant notification.
The amount of interest on a term deposit determined by the bank deposit agreement cannot be unilaterally reduced by the bank, unless otherwise provided by law. Under an agreement for such a bank deposit concluded by a bank with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or agreement (Article 838 of the Civil Code of the Russian Federation).
Interest on the amount of a bank deposit is accrued from the day following the day of its receipt by the bank until the day preceding its return to the depositor or its debiting from the depositor's account for other reasons.
Interest on the amount of the bank deposit is paid to the depositor at his request after each quarter separately from the amount of the deposit, and interest unclaimed during this period increases the amount of the deposit on which interest is accrued (Article 839 of the Civil Code of the Russian Federation).
The bank deposit agreement must be concluded in writing. Failure to comply with the written form of the bank deposit agreement shall entail the invalidity of this agreement. Such an agreement is void (Article 836 of the Civil Code of the Russian Federation).
The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book,
a savings or deposit certificate, or another document issued by the bank to the depositor that meets certain requirements.
A savings book certifies the conclusion of a bank deposit agreement with a citizen and the deposit of funds into his account on a deposit is certified.
The following types of savings books are distinguished: a nominal savings book, a bearer savings book, which is a security (Article 843 of the Civil Code of the Russian Federation).
A savings (deposit) certificate is a security that certifies the amount of the deposit made to the bank and the right of the depositor (certificate holder) to receive, after the expiration of the established period, the amount of the deposit and the interest stipulated in the certificate in the bank that issued the certificate, or in any branch of this bank.
Savings (deposit) certificates, like savings books, can be: bearer, registered (Article 844 of the Civil Code of the Russian Federation).
The bank deposit agreement is real, since it is considered concluded from the moment of depositing the amount of money, paid, unilateral.
The parties to the agreement are:
Bank - a credit institution that has the exclusive right to carry out in aggregate the following banking operations: attraction of funds from individuals and legal entities, placement of these funds on its own behalf and at its own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts individuals and legal entities. Deposits are accepted only by banks that have such a right in accordance with a license issued by the Bank of Russia, participate in the system of compulsory insurance of deposits of individuals in banks and are registered with an organization that performs the functions of compulsory insurance of deposits. The right to attract funds from individuals to deposits is granted to banks, from the date of state registration of which at least two years have passed8.
In order to prevent the implementation of banking operations by unauthorized organizations, Art. 835 of the Civil Code of the Russian Federation provides for adverse consequences for such organizations. In case of accepting a deposit from a citizen by a person who does not have the right to do so, the depositor may demand the immediate return of the deposit amount, as well as the payment of interest on it, and compensation in excess of the amount of interest for all losses caused to the depositor.
If such a person accepts funds of a legal entity under the terms of a bank deposit agreement, such an agreement is invalid.
Similar consequences apply in the following cases:
1) attracting funds from citizens and legal entities by selling them shares and other securities, the issue of which is recognized as illegal;
2) attracting funds from citizens in deposits against bills of exchange or other securities, excluding the receipt by their deposit holders on first demand and the exercise by the depositor of other rights.
Citizens of the Russian Federation, foreign citizens and stateless persons can act as contributors. A bank deposit agreement in which a citizen is a depositor is recognized as a public agreement. The Civil Code of the Russian Federation does not restrict the rights of legal entities to conclude bank deposit agreements along with individuals. Legal entities are not entitled to transfer funds in deposits (deposits) to other persons.
The second party to the bank deposit agreement is the depositor. The investor can be a citizen or a legal entity. Any citizen can be a depositor in a bank, regardless of the level of his legal capacity: fully capable, relatively capable, limited in legal capacity and completely legally incompetent (children under the age of 6), court decisions (recognized incompetent mentally ill and feeble-minded). Another thing is which of the citizens has the right to conclude a bank deposit agreement by their actions? Not all citizens have this right, but only:
Fully capable: adults, that is, those who have reached the age of 18; persons who entered into a registered marriage before reaching the age of 18, having received proper permission; emancipated, that is, minors who have reached the age of 16, working under an employment contract or engaged in entrepreneurial activities, recognized as fully capable by the decision of the guardianship and guardianship authority (with the consent of the parents, adoptive parents, guardian of the minor) or by the court (in the absence of such consent) (Article 27 Civil Code of the Russian Federation).
Relatively capable - minors aged 14 to 18 years. They have incomplete legal capacity, but they have the right to make deposits in credit institutions and dispose of them (clause 3 of article 26 of the Civil Code of the Russian Federation).
The court has the right to restrict the legal capacity of a citizen if he abuses alcohol or drugs and thereby puts his family in a difficult financial situation. Such a person has the right to independently make only small household transactions. To make other transactions (including the conclusion of a bank deposit agreement) a person with limited legal capacity has the right only with the consent of the trustee. Consequently, a bank deposit agreement can be concluded with a person with limited legal capacity only with the written consent of the trustee.
Partially capable people - minors aged 6 to 14 years (they are also called minors) - have very little legal capacity, which does not include the possibility of concluding a bank deposit agreement. Such children can become participants in bank deposit relations, but the agreement on their behalf can be concluded by their parents, adoptive parents, guardians.
Completely disabled people. These include children under the age of 6, as well as adults who, due to mental illness or dementia, cannot understand the meaning of their actions or control them and are therefore recognized by the court as incompetent. These people can also be subjects of bank deposit relations, but the contract on their behalf is concluded by their legal representatives: 1) in relation to children under the age of 6 - their parents, adoptive parents, guardian; 2) in relation to adults incapacitated - their guardians.
As for legal entities, all of them can enter into bank deposit agreements as depositors. At the same time, it does not matter what the legal form of the legal entity is and on what form of ownership it is based. However, if a legal entity has a special legal capacity, then it is necessary that the conclusion of a bank deposit agreement does not go beyond this legal capacity.
Unlike many other agreements, a bank deposit agreement is unilaterally binding. This means that as a result of its conclusion, obligations arise only on one side - on the side of the bank.
The bank deposit agreement is one of the service agreements. Therefore, in cases where the depositor is a person, this agreement is subject to the Law of the Russian Federation “On Protection of Consumer Rights”9.
Art. 841 of the Civil Code of the Russian Federation allows third parties to deposit funds to the depositor's account, provided that the necessary data on his deposit account are indicated. At the same time, it is assumed that the depositor has agreed to receive funds from such persons by providing them with the necessary data on the deposit account.
The bank's responsibilities include: returning the deposit amount to the depositor, paying interest due, maintaining bank secrecy, ensuring the return of the deposit, in accordance with Art. 840 of the Civil Code of the Russian Federation.
The return of citizens' deposits by the bank is ensured by the method carried out in accordance with the Federal Law of December 23, 2003 No. 177-FZ "On insurance of deposits of individuals in banks of the Russian Federation"10. Participation in the deposit insurance system is mandatory for all banks. Funds of individuals are subject to insurance, except for funds:
1) placed on bank accounts of individuals engaged in entrepreneurial activities without forming a legal entity, if these accounts are opened in connection with the specified activity;
2) placed by individuals in bearer bank deposits, including those certified by a savings certificate and (or) a bearer savings book;
3) transferred by individuals to banks for trust management;
4) placed on deposits in branches of banks of the Russian Federation located outside the territory of the Russian Federation.
Compensation for deposits is paid to the depositor in the amount of 100 percent of the amount of deposits in the bank, but not more than 100,000 rubles. If the depositor has several deposits in one bank, the total amount of liabilities of which on these deposits to the depositor exceeds 100,000 rubles, compensation is paid for each of the deposits in proportion to their size. If an insured event occurs in relation to several banks in which the depositor has deposits, the amount of insurance compensation is calculated in respect of each bank separately11.
When implementing compulsory insurance, banks are obliged to: pay insurance premiums to the compulsory deposit insurance fund; provide depositors with information about their participation in the deposit insurance system, about the procedure and amounts for receiving compensation on deposits; place information about the deposit insurance system in the bank's premises accessible to depositors, where depositors are serviced; keep records of the bank's obligations to depositors, allowing the bank to form for any day a register of the bank's obligations to depositors in the form established by the Bank of Russia at the suggestion of the Agency.
If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as if the security is lost or its conditions worsen, the depositor has the right to demand from the bank the immediate return of the deposit amount, payment of interest on it in the amount of the bank refinancing rate and compensation for losses caused.
Under a bank deposit agreement of any kind, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor, with the exception of deposits made by legal entities on other return conditions provided for in the agreement. The condition of the agreement on the refusal of a citizen from the right to receive a deposit on first demand is void (clause 2 of article 837 of the Civil Code of the Russian Federation). The presentation by the depositor of a demand for early return of the deposit amount is a unilateral change of the terms of the agreement permitted by law at the initiative of the depositor. As a result, a fixed-term, target or conditional bank deposit agreement turns into a demand deposit agreement.
The negative property consequences of such a change in the contract shall be borne by the depositor. Under an early terminated or amended agreement, the same interest is accrued on the deposit amount as on the demand deposit amount, which is significantly lower than the interest on a term deposit, unless a different percentage for this case was specifically provided for in the agreement. At the same time, lower interest is charged in such cases for the entire period from the moment when the depositor's money was deposited in the bank until the moment it was issued. Even in the event that the depositor requires from the bank not the entire term deposit, but only a part of it, he is charged a lower interest on the entire amount of the deposit, established for demand deposits.
Unlike citizens, legal entities that have made a term deposit to the bank do not have the unconditional right to demand its early return. Such a right may be provided for by a bank deposit agreement upon its conclusion. If this is not the case, then early return of such a deposit is possible only with the consent of the bank. This rule applies only to cases where the investor is a commercial organization. If a non-commercial organization is a depositor of a term treasure, it is under no circumstances entitled to demand early return of the deposit amount12.
The bank deposit agreement is paid. Its compensatory nature is peculiar and manifests itself in the fact that the bank pays the depositor interest on the amount of the deposit in the amount determined by the bank deposit agreement. In the absence of a clause in the agreement on the amount of interest paid, the bank is obliged to pay interest in the amount of the refinancing rate of the Central Bank of the Russian Federation (clause 1, article 838 of the Civil Code of the Russian Federation). The Bank has the right to use its funds at its own discretion until the depositor submits a demand for the return of the deposit. Most often, the funds of depositors are used by the bank to carry out their lending operations. So the interest on the amount of the deposit, in essence, is a payment made by the bank for the use of other people's money.
Payment to the depositor of interest on the amount of the deposit is an indispensable obligation of the bank. If the agreement provides that the bank is not obliged to pay the specified interest, this means that such an agreement is not a bank deposit agreement. It can be regarded as an interest-free loan agreement, the conclusion of which is permitted by law.
In the Civil Code of the Russian Federation, this issue is resolved ambiguously, depending on the type of contribution. For demand deposits (the majority of such deposits, and the depositors are mostly citizens), the bank has the right to change the amount of interest paid on deposits, unless otherwise provided by the bank deposit agreement (part 1, clause 2, article 838 of the Civil Code of the Russian Federation). Usually such a change is a decrease in the specified percentage, although the bank has the right to increase the mentioned percentage. According to Part 2, Clause 2, Art. 838 of the Civil Code, in the event of a reduction by the bank of the amount of interest, the new amount of interest is applied to deposits made before the notice by the depositor of the reduction in interest, after a month from the date of the corresponding notice, unless otherwise provided by the agreement. For investors, this rule is very little consolation.
The depositor can be notified of the forthcoming reduction of interest on the deposit in various ways: by mail, fax, etc. The Savings Bank notifies its depositors of this by publishing an appropriate notice in the periodical press.
A bank deposit agreement may provide for a different procedure for the bank to exercise its right to reduce the amount of interest on demand deposits. The decision of the bank to increase the amount of interest on demand deposits comes into effect in the manner established by the bank itself. The bank is not obliged to notify depositors of such a decision13.
If a citizen depositor has made a fixed-term target or conditional deposit, the amount of interest established at the conclusion of the agreement cannot be changed by the bank unilaterally, unless otherwise provided by law. The Bank may not include its right to reduce interest on a term deposit in the terms and conditions of a bank deposit agreement when concluding it. If such a condition is included, it has no legal effect.
The provision of Art. 29 of the Law of the Russian Federation "On Banks and Banking", which gives the right to a credit institution to change, including downward, the amount of interest on deposits, if this is provided for by an agreement with a depositor, including a citizen. Since the norms of the Civil Code of the Russian Federation have greater legal force than the norms of the current legislation, in such cases the norms of Art. 838 of the Civil Code of the Russian Federation.
If an agreement on a term bank deposit is concluded with a legal entity, the amount of interest cannot be unilaterally changed, unless otherwise provided by law or the agreement (clause 3, article 838 of the Civil Code of the Russian Federation). Consequently, in such cases, the parties, when concluding a bank deposit agreement, have the right to provide for the right of the bank to unilaterally change the amount of interest accrued on the deposit.
Interest on the amount of a bank deposit is accrued from the day following the day of its receipt by the bank until the day preceding its return to the depositor or its debiting from the depositor's account on other grounds permitted by law. The terms and procedure for paying interest on a deposit (on what dates, monthly, quarterly, semi-annually, annually, with or without capitalization) may be established by a bank deposit agreement. If this issue is not resolved in the agreement, interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter separately from the amount, and interest not claimed within this period increases the amount of the deposit on which interest is accrued. When the deposit is returned, all interest accrued up to this point is paid (Article 839 of the Civil Code of the Russian Federation).
In the event that the demand for the return of the deposit is submitted before the end of the period for which interest is accrued, the latter are accrued based on the actual time of using the client's funds and are paid simultaneously with the principal amount of the deposit.
Depositing funds to a bank under a bank deposit agreement involves a significant risk for the depositor, in particular, the risk of not receiving the deposit amount back, as millions of Russian depositors who have entrusted their money to unreliable banks have learned from bitter experience. In order to prevent such consequences, the Civil Code of the Russian Federation regulates the provision of the return of deposits by banks (Article 840 of the Civil Code of the Russian Federation).
Banks are obliged to ensure the return of citizens' deposits through compulsory insurance, and in cases provided for by law - in other ways.
Measures to ensure the return of deposits by banks depend on who is the depositor of the bank. If the depositor is a citizen, the return of the deposit is ensured:
Compulsory insurance of deposits at the expense of the Federal Fund for Compulsory Deposit Insurance, which is provided for in Art. 38 of the Law of the Russian Federation "On banks and banking activities";
Subsidiary responsibility of the Russian Federation, its subjects and municipalities. This rule is not of a general nature and applies only to deposits made to a bank, in the authorized capital of which more than 50% of the shares or stakes are owned by the Russian Federation, constituent entities of the Russian Federation or the corresponding municipalities;
Voluntary deposit insurance in accordance with Art. 39 of the Law "On Banks and Banking Activity";
Through the use of measures traditional for Russian civil law to ensure the fulfillment of obligations (forfeit, pledge, surety, etc.)14.
Claims by citizen depositors for the subsidiary liability of the Russian Federation, its constituent entities and municipalities are possible provided that they (the depositors) have already submitted claims for the return of their deposits directly to the banks that received their deposits, but the property of the banks turned out to be insufficient to satisfy these requirements (Art. 399 of the Civil Code of the Russian Federation).
If the depositor of the bank is a legal entity, the methods of ensuring the return are established by agreement of the parties when concluding a deposit agreement. In this case, such methods of securing obligations as a penalty, pledge, surety, bank guarantee are used. The deposit and retention due to their nature cannot be used for this purpose.
In order to strengthen the protection of the interests of depositors, the law (clause 3 of article 840 of the Civil Code of the Russian Federation) obliged banks, when concluding bank deposit agreements, to provide depositors with information on the security of the return of the deposit. The bank determines how this information is communicated to customers. Often this is done by posting appropriate announcements in the bank's operating room.
If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as if the security is lost or its conditions worsen, the depositor has the right to demand from the bank the immediate return of the deposit amount, payment of interest on it in the amount determined by the agreement or the refinancing rate for the entire period of actual use of the depositor's funds, as well as compensation for losses incurred.
Usually, a bank deposit is made in the name of the person who makes it. In other words, the citizen or legal entity that has entered into a deposit agreement with the bank becomes a depositor. But the law (Article 842 of the Civil Code of the Russian Federation) allows making a deposit to a bank in the name of another person who is not participating in the conclusion of an agreement with the bank. In some cases, the need for such a deposit of funds is determined by the type of deposit. Such, for example, is a pension contribution. In the Civil Code of the Russian Federation, Art. 841, according to which, unless otherwise provided by the bank deposit agreement, funds received by the bank in the name of the depositor from third parties are credited to the deposit account, indicating the necessary data on his deposit account. Unless otherwise provided by the bank deposit agreement, a third party acquires the rights of a depositor from the moment he presents the bank with the first claim based on these rights, or expresses to the bank in another way the intention to exercise such rights.
An indication of the name of the citizen or the name of the legal entity in whose favor the deposit is made is an essential condition of such a bank deposit agreement.
After analyzing the content and responsibility of the parties under the bank deposit agreement, we note that the main obligations of the bank are the return of the deposit amount and the payment of interest on it. In addition, when concluding a bank deposit agreement, he must provide the depositor with information on the security of the return of the deposit (clause 3 of article 840 of the Civil Code). The methods of bringing this information to the attention of customers are determined by the bank. An equally important duty of the bank is the payment of interest on the deposit. The next duty of the bank is to maintain banking secrecy. The main right of the bank is the ability to own, use and dispose in its own interest the sums of money transferred to the deposit. A depositor on a term or conditional deposit does not have the right to require the bank to make cashless payments from the deposit, since this requirement contradicts the essence of a term (conditional) deposit. The depositor has the right at any time to demand the return of the amount of the deposit made on any terms. The next right of the depositor is the opportunity to unilaterally, by default, extend the term of the term of the term or conditional bank deposit agreement.
Identification of the features of the responsibility of banks under a bank deposit agreement is carried out on the basis of an analysis of the general rules on civil liability in conjunction with special rules that directly regulate the responsibility of banks.
First, banks are subject to the general principles of liability for non-fulfillment of civil obligations. Consequently, the bank, as a business entity, is in all cases liable for the relevant offenses, regardless of its fault.
Secondly, in banking practice, it is customary to conclude bank deposit agreements containing a condition on limiting the bank's liability in certain cases, primarily related to the client's improper performance of its obligations under the agreement. However, some banks include a clause on the limitation of liability, regardless of the performance of the client's obligations.
Thirdly, at present there is a gradual expansion of the sphere of innocent liability, which in the banking sector can lead to crisis situations.
Fourthly, the issue of guiltless liability is quite closely related to other categories of civil law. The latter include force majeure, chance and risk, which, under certain conditions, can act as criteria for the distribution of losses between the parties to the violated obligation.
Chance and force majeure are independent grounds for releasing a person from liability. At the same time, force majeure can be considered as an unconditional basis for exemption from liability, and a case can serve as a basis for exemption from liability only when it is provided for by applicable law.
Non-return of the deposit, its illegal deduction or non-payment of interest.
Property liability under a bank deposit agreement. Termination of the contract
Liability under a bank deposit agreement arises in the following cases:
Failure to fulfill the obligations stipulated by law or the contract to ensure the return of the deposit;
Loss of security for the return of the deposit or deterioration of its conditions;
Acceptance of a deposit from citizens by an unauthorized person or in violation of the legislation on deposits;
Non-return of the deposit, its illegal deduction or non-payment of interest.
In all these cases, the depositor has the right to demand from his counterparty the immediate return of the deposit amount. In the first and second cases, the responsibility consists in paying the depositor a penalty in the form of a bank interest (refinancing rate) calculated on the day the debt is repaid, as well as indemnification. In the third case, liability is stricter: this is the rate of bank interest on the day the debt is repaid, and in addition to it, all losses caused to the depositor - a citizen (in excess of the amount of the penalty) are recovered. In the fourth case, the bank is obliged to pay to the depositor the interest stipulated by the bank deposit agreement for the entire time the deposit is kept and, in addition, a penalty in the amount of the refinancing rate.
If the depositor is an individual, then he has the right to demand early return of the deposit at any time, regardless of the type of deposit and its term. In this case, the bank is obliged to return the deposit within 5 days from the date of presentation by the depositor of the corresponding demand. Moreover, even if the depositor's waiver of the right to early withdrawal of the deposit is fixed in the agreement, these conditions will be void. As noted in Art. 186 BK, if a term or conditional bank deposit (deposit) is returned to the depositor at his request before the expiration of the deposit (deposit) return period or before the occurrence of the event specified in the agreement, interest on the deposit (deposit) is paid in the amount and in the manner established by the bank deposit agreement (deposit). Usually, a term (conditional) bank deposit agreement includes a condition that in the event of an early demand for a deposit, interest on it is recalculated at the rate established for a demand deposit.
Sometimes the interest rate is recalculated in such cases differentially, for example, with a deposit term of 12 months and a rate of 16% per annum, the agreement indicates that if it is terminated early by the depositor before the expiration of 6 months from the date of making the deposit, interest is paid at the rate established for demand deposits, upon termination after 6 months, but before the expiration of 12 months from the date of deposit - at a rate of 10% per annum. We believe that in this case, the depositor does not need to be additionally notified about the change in the interest rate, since he was already notified about this at the conclusion of the contract.
If upon the expiration of the term of the bank deposit (the occurrence of the condition stipulated by the agreement), the depositor has not withdrawn his deposit, such a term (conditional) deposit is transformed into a demand deposit, unless otherwise provided by the relevant agreement.
The right of a legal entity engaged in entrepreneurial activity to early return of the deposit may be provided for by the agreement. Otherwise, early return is allowed only with the consent of the bank. A non-profit organization cannot demand early return of the deposit either on the basis of an agreement or on the basis of the law due to its absence.
The legislation is silent about the possibility of early termination of the bank deposit agreement at the initiative of the bank. However, we believe that if the relevant conditions are contained in a bank deposit agreement, including a fixed-term deposit, it can be terminated ahead of schedule at the initiative of the bank. At the same time, we believe that at the initiative of the bank, the contract can be terminated ahead of schedule only on grounds related to the risk of the bank not fulfilling its obligations under the contract in the future.
The termination of the bank deposit agreement is carried out according to the general rules of the Civil Code as a result of proper execution (return of the deposit), as well as early termination of the agreement.
Quite often, a bank deposit agreement is terminated by the depositor ahead of schedule. In this case, questions arise about the amount of interest on the deposit.
If the depositor is an individual, then he has the right to demand early return of the deposit at any time, regardless of the type of deposit and its term. In this case, the bank is obliged to return the deposit within 5 days from the date of presentation by the depositor of the corresponding demand. Moreover, even if the depositor's waiver of the right to early withdrawal of the deposit is fixed in the agreement, these conditions will be void.
If the bank refuses to return the deposit amount upon request, the depositor has the right to apply to the court to terminate the bank deposit agreement and to recover its amount together with the interest and penalties due.
So, the bank is responsible for:
1) Illegal disclosure of bank secrecy of the depositor.
2) Non-safety of funds in the deposit account.
3) Incorrect accrual and payment of interest on the deposit in accordance with the Price List.
4) For non-calculation, as well as incorrect calculation of interest on the deposit, the Bank pays the depositor a fine in the amount of 0.1 of the base amount established on the day the fine is paid.
5) The Bank is not responsible for the occurrence of conflict situations outside the scope of its control, as well as for failure to comply with the conditions.
Based on the foregoing, we have come to the following conclusions:
Responsibility under a bank deposit agreement arises in the following cases: failure to fulfill the obligations stipulated by law or the agreement to ensure the return of the deposit; loss of security for the return of the deposit or deterioration of its conditions; acceptance of a deposit from citizens by an unauthorized person or in violation of the legislation on deposits; non-return of the deposit, its illegal deduction or non-payment of interest.
The termination of the bank deposit agreement is carried out according to the general rules of the Civil Code as a result of proper execution (return of the deposit), as well as early termination of the agreement.
The bank deposit agreement may be terminated ahead of schedule at the initiative of an individual. Legal entities may demand early termination of the agreement only if it is provided for by the agreement or the consent of the bank is obtained.
The legislation does not regulate the possibility of early termination of the bank deposit agreement at the initiative of the bank.
Responsibility for fulfilling one's obligations is a useful clause in any contract. And of course, it must be carried by both parties. But the relationship between the bank and the depositor has its own specifics: as a rule, the depositor fulfills his obligations at the very beginning (when he makes a deposit), and then only the bank's obligations remain - to pay on time.
The Civil Code contains a special provision on ensuring the return of deposits (Article 840 of the Civil Code of the Russian Federation). To ensure the return and compensation of losses, the Federal Compulsory Deposit Insurance Fund is being created, the participants of which are the Bank of Russia and commercial banks. Banks have the right to create voluntary deposit insurance funds (Articles 38, 39 of the Federal Law "On Banks and Banking Activities"). For deposits of citizens in banks in which the Russian Federation, its constituent entities, as well as municipalities own more than 50% of the authorized capital (for example, Sberbank of the Russian Federation) or stakes, these entities bear subsidiary liability for the requirements of the depositor to the bank. Methods for ensuring the fulfillment of the bank's obligations on deposits of legal entities are determined by an agreement between them. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit (clause 3 of article 840 of the Civil Code of the Russian Federation). [Regulatory legal acts /2]
Liability under a bank deposit agreement arises in the following cases:
- - non-fulfillment of obligations stipulated by law or contract to ensure the return of the deposit;
- - loss of security for the return of the deposit or deterioration of its conditions;
- - acceptance of a deposit from citizens by an unauthorized person or in violation of the legislation on deposits;
- - non-return of the deposit, its illegal deduction or non-payment of interest.
In all these cases, the depositor has the right to demand from his counterparty the immediate return of the deposit amount. In the first and second cases, the responsibility consists in paying the depositor a penalty in the form of a bank interest (refinancing rate) calculated on the day the debt is repaid, as well as indemnification (clause 4, article 840 of the Civil Code of the Russian Federation). repayment of the debt, and in addition to it, all losses caused to the investor-citizen are recovered (in excess of the amount of the penalty). In the fourth case, the bank is obliged to pay to the depositor the interest stipulated by the bank deposit agreement for the entire time the deposit is kept and, in addition, a penalty in the amount of the refinancing rate.
The main issue that interests the depositor when making a deposit is whether the obligation to return the deposit will be duly fulfilled. Does the legislation always define the criteria for assessing the proper performance by the bank of its obligations with sufficient precision? Let's consider this question on the example of the bank fulfilling the obligation to return the deposit at the first request of the depositor.
This obligation of the bank is provided for in Art. 837 of the Civil Code of the Russian Federation. What is the meaning of the legislator in the expression "on demand"? The correct answer to this question is very important. First of all, it is responsibility for the delay in the fulfillment of a monetary obligation; the bank may also be obliged to pay compensation to the citizen-depositor for moral damage caused by improper performance of the obligation to return the deposit.
The right to return the deposit on first demand is not identical to the right to return the deposit immediately after the presentation of the demand. In cases where the legislator provides for the obligation of the debtor to fulfill the obligation immediately, he expresses this accordingly. So, for example, the executing bank is obliged to return the unused amount of the letter of credit immediately, simultaneously with the closing of the letter of credit (clause 2, article 873 of the Civil Code of the Russian Federation); the bailor is obliged to immediately pick up the thing after the expiration of the storage period (Article 899 of the Civil Code of the Russian Federation); the policyholder is obliged to notify the insurer immediately after the occurrence of the insured event (Article 961 of the Civil Code of the Russian Federation).
But in Art. 837 of the Civil Code of the Russian Federation does not establish that the bank is obliged to return the deposit immediately or immediately at the first request of the depositor. It seems that the condition for the return of the deposit on first demand does not imply the term for the fulfillment of the obligation, but the procedure for the depositor to exercise his unconditional right to return the deposit amount lent to the bank. The depositor is not obliged to warn the bank about the intention to withdraw the deposit; the demand for the return of the deposit is presented once, after which the bank immediately becomes obliged to return the amount of the deposit.
The general rule on the fulfillment of an obligation, the period of which is determined by the moment of demand, is established in paragraph 2 of Art. 314 of the Civil Code of the Russian Federation: the debtor is obliged to fulfill the obligation within seven days from the date of the presentation by the creditor of the demand for its fulfillment. This general rule applies if the obligation to perform at another time does not arise from legislation, business customs or the nature of the obligation. In principle, the essence of the demand deposit agreement assumes that the deposit must be received without delay, as soon as the depositor needs to receive it. [Regulatory legal acts/ 4]
Article 810 of the Civil Code of the Russian Federation establishes that in cases where the term for repaying the loan amount is not established by the agreement or is determined by the moment of demand, this amount must be returned by the borrower within thirty days from the date the lender makes a request for this, unless otherwise provided by the agreement. But this rule clearly cannot be applied to a bank deposit agreement precisely because of its special nature, the presence in this agreement of a qualified borrower - a bank, which, unlike an ordinary borrower, must always be in a state of readiness to fulfill a monetary obligation. Of course, such readiness also has reasonable limits. Apparently, the most reasonable answer to the question posed - in what period the first requirement of the depositor must be fulfilled - allows us to give the cumulative application of paragraph 3 of Art. 834 and Art. 849 of the Civil Code of the Russian Federation. In paragraph 3 of Art. 834 of the Civil Code of the Russian Federation establishes a rule according to which the rules on the bank account agreement apply to the relations of the bank and the depositor on the account to which the deposit is made, unless otherwise provided by the rules on the bank deposit agreement or follows from the essence of this agreement. As shown above, the norms on the demand bank deposit agreement do not determine the term for its return. [Regulatory legal acts/ 4]
Task
Smirnova placed a deposit in the amount of 10 thousand rubles in a branch of Sberbank. for a period of 1 year at the rate of 12% per annum. At the end of the term, the contribution was not received. When the depositor applied to the bank for money after 2 years, she was given 10 thousand rubles. and 1,400 rubles. percent. Smirnova did not agree with this and demanded that she be credited with 12% for two years, which, according to her calculations, would amount to 2,400 rubles, and when the bank refused the surcharge, she filed a lawsuit.
Is the claim eligible?
Smirnova's claim is not subject to satisfaction. Article 834, paragraph one says that under a bank deposit agreement, one party (bank), which has accepted the amount of money (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and conditions in the manner prescribed by the contract. The bank deposit agreement (and the agreement must be in writing - Art. 836) was concluded for only one year. Smirnova was supposed to receive 1200 rubles from the creditor in a year. If the creditor - Sberbank unlawfully withheld funds and did not pay interest in the manner and in the amount stipulated by the agreement after a year (Article 866), then he would be liable for failure to fulfill the monetary obligation (Article 395). And in this case, the bank's obligations were fulfilled, the contract ended, and Smirnova had to take her 10,000 thousand and twelve percent per annum - 1,200 rubles. The conditions presented by Smirnova are not provided for by the contract, which means they are void.
68. Rights and obligations of the parties under the bank deposit agreement.
Deposit management. Ways to ensure the return of deposits.
Obligations of the bank under the bank deposit (deposit) agreement:
a) issue to the depositor, in accordance with the concluded agreement, a registered savings book or a savings book to bearer;
b) carry out the issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons only upon presentation of a savings book;
c) issue a new savings book to the depositor at the request of the latter in case of loss of the personalized savings book or if it has been rendered unusable for presentation;
d) return the deposit amount to the depositor and pay interest on it on the terms and in the manner prescribed by the agreement;
e) issue the deposit amount or part of it at the first request of the depositor;
f) pay interest to the depositor on the amount of the deposit in the amount determined by the agreement, and in the absence of a clause in the agreement on the amount of interest paid, pay interest in the amount determined in accordance with the Civil Code of the Russian Federation;
g) ensure the return of deposits of citizens by: compulsory insurance of deposits of citizens at the expense of the Federal Fund for Compulsory Deposit Insurance; introduction of subsidiary liability of the Russian Federation, constituent entities of the Russian Federation and municipalities for the debts of banks - in cases established by law; voluntary deposit insurance; use of traditional methods of enforcement of obligations in civil law;
h) credit to the deposit account funds received by the bank in the name of the depositor from third parties, indicating the necessary data on his deposit account;
i) pay the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate establish a different amount of interest, in case of its early presentation to the bank for payment.
Bank rights under a bank deposit agreement(deposit): attract funds in deposits in accordance with a permit (license) issued in the manner prescribed by law; change the amount of interest paid on demand deposits.
The Bank is not entitled to unilaterally reduce the amount of interest on the deposit specified in the bank deposit agreement.
Contributor powers are expressed in the right to demand the immediate return of the deposit amount (as well as the payment of interest on it, provided for in Article 395 of the Civil Code), in the following cases:
a) in case of non-fulfillment or improper fulfillment of the obligation to ensure the return of the deposit;
b) in case of deterioration of the conditions of support;
c) when accepting a deposit from citizens by an unauthorized person or in violation of the legislation on deposits. In this case, the depositor has an additional right to demand compensation in excess of the amount of interest on all losses caused to him;
d) in case of non-return of the deposit, its illegal deduction or non-payment of interest.
Ensuring the return of the deposit
1. The return of deposits of citizens by the bank shall be ensured by compulsory insurance of deposits carried out in accordance with the law, and in cases provided for by law and by other means.
2. Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement.
3. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit.
4. If the bank fails to fulfill the obligations stipulated by law or the bank deposit agreement to ensure the return of the deposit, as well as if the security is lost or its conditions worsen, the depositor has the right to demand from the bank the immediate return of the deposit amount, payment of interest on it in the amount determined in accordance with paragraph 1 of Article 809 of this Code, and compensation for damages.
Grounds and extent of the bank's liability for violation of obligations
under a bank deposit agreement.
The responsibility of the bank for improper performance of operations on the account occurs in cases: untimely transfer to the account of funds received by the client; unreasonable debiting of funds by the bank from the client's account; failure to comply with the client's instructions to transfer funds from the account or to issue them from the account.
In all these cases, the bank is obliged to pay interest on the amount of funds in the manner and in the amount provided for in Art. 395 of the Civil Code (Article 856 of the Civil Code).
Violation by a bank of a bank deposit agreement (each of the obligations that make up its content) entails the application of the general provisions of the law of obligations on the liability of the debtor for violation of a civil obligation: in accordance with paragraph 1 of Art. 393 of the Civil Code, the debtor is obliged to compensate the creditor for losses caused by non-performance or improper performance of the obligation.
In addition, ch. 44 of the Civil Code contains several special rules on liability under a bank deposit agreement.
Due to the fact that the rules on the bank account agreement (clause 3 of article 834 of the Civil Code) apply to relations between the bank and the depositor on the account to which the deposit is made, in the event that the bank violates its obligation to the depositor to open and maintain a deposit account, the norm on the responsibility of the bank for improper performance of operations on the account, contained in Art. 856 GK. According to this rule, in cases of untimely crediting of funds received by the client to the account or their unreasonable debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account, the bank is obliged to pay interest on this amount in the manner and in the amount provided for in Art. 395 GK.
However, the above norm, like the rest of the rules on a bank account agreement, can be applied to relations under a bank deposit agreement, unless otherwise provided by special rules on a bank deposit agreement or follows from the essence of the said agreement. Due to the fact that in accordance with the special rules on a bank deposit agreement (clause 3 of article 834 of the Civil Code), legal entities - depositors are prohibited from transferring funds in deposits (deposits) to other persons, provided for in Art. 856 of the Civil Code, liability for such a violation as the bank's failure to comply with the client's instructions to transfer funds from the account cannot be applied under a bank deposit agreement in which the depositor is a legal entity. For the same reason (the absence of a basis for liability due to the impossibility for the depositor to instruct the bank to transfer funds from the account), the said liability cannot be applied to relations under a bank deposit agreement drawn up by issuing a savings (deposit) certificate to the depositor, certifying only the right of the depositor to receive after the expiration of the established period the amount of the deposit and the interest stipulated in the certificate (clause 1 of article 844 of the Civil Code).
However, in the cases described above, Art. 856 of the Civil Code, liability is subject to application accordingly: under a bank deposit agreement, under which the depositor is a legal entity, for untimely crediting to the deposit account of funds received by the bank in the name of the depositor from third parties, and for untimely issuance of the deposit amount (late transfer of funds to the settlement account of the depositor - a legal entity) upon expiration of the term or upon the occurrence of the conditions stipulated by the agreement; under a bank deposit agreement certified by a savings (deposit) certificate - for the untimely issuance of the deposit amount (and if the certificate holder is a legal entity - for its untimely transfer to the depositor's current account), bearing in mind, among other things, the right of the holder of the savings (deposit) certificate on its early presentation for payment by the bank.
If the bank fails to fulfill the obligation stipulated by law or the contract to ensure the return of the deposit, as well as in the event of loss of security or deterioration of its conditions, the depositor has the right to demand from the bank an immediate return of the deposit amount, payment of interest on it in the amount determined in accordance with paragraph 1 of Art. 809 of the Civil Code, and compensation for damages (clause 4 of article 840 of the Civil Code).
It seems that these judgments are not entirely accurate. Interest to be paid by the bank in the case provided for in paragraph 4 of Art. 840 of the Civil Code, represent the bank interest rate (refinancing rate) that exists on the day the borrower pays the amount of debt (clause 1 of article 809 of the Civil Code), which exceeds the amount of interest on the amount of deposits under the bank deposit agreement and, therefore, cannot be "established interest for the entire period of using the bank's funds of the depositor" (as E.A. Pavlodsky believes) due to the fact that this role is played by the interest provided for by the bank deposit agreement. However, the interest payable by the bank in the event of failure to provide security for the return of the deposit, its loss and deterioration of the conditions of the security provided, cannot also be qualified as a penalty (as D.A. Medvedev believes), since during the period of the bank deposit agreement (before the depositor claims return of the deposit) interest paid by the bank on the amount of the deposit (in the amount stipulated by the agreement) is a payment for the use of funds contributed by the depositor, and cannot in any way be recognized as a measure of responsibility.
Apparently, the interest payable by the bank in accordance with paragraph 4 of Art. 840 of the Civil Code (in the amount of the refinancing rate), should be differentiated into two parts: the first part is interest in the amount stipulated by the bank deposit agreement, which is a payment for the use of funds deposited in the bank by the depositor; the second part of the indicated interest (the difference between the refinancing rate and the amount of interest stipulated by the bank deposit agreement) is an additional obligation of the bank imposed on it in connection with non-fulfillment or improper fulfillment of the obligation under the bank deposit agreement, and should be qualified as a measure of responsibility. The specified measure of liability by legal nature should be recognized as a penalty (and not a special measure of liability in the form of interest under Article 395 of the Civil Code), since it is subject to application for a violation not related to the delay in the execution of a monetary debt obligation.
The bank finds itself in the position of a debtor who has overdue a monetary debt obligation if it fails to fulfill its main obligation to issue (return) the amount of the deposit at the request of the depositor. In this case, the bank is liable for non-fulfillment of the monetary obligation in the form of recovery provided for in Art. 395 CC interest on the amount of the deposit for the misuse of other people's money. The specified interest is collected from the bank in the amount determined by the bank interest rate (refinancing rate) existing on the day the obligation is fulfilled (if the bank fulfills it voluntarily) or on the day the depositor applies to the court. The bank deposit agreement may provide for a different amount of interest payable by the bank in the event of a delay in the issuance (return) of the deposit amount (as a liability measure).
As a general rule, interest for the use of other people's money, provided for in Art. 395 of the Civil Code, are subject to accrual only for the amount of these funds (in our case, for the amount of the deposit). In this case, the amount of the deposit must be determined taking into account the rules on the capitalization of interest accrued on the deposit, but not paid to the depositor. This refers to the norm contained in paragraph 2 of Art. 839 of the Civil Code, according to which, unless otherwise provided by the bank deposit agreement, interest on the amount of the bank deposit is paid at the end of each quarter separately from the amount of the deposit, and interest not claimed within this period increases the amount of the deposit on which interest is accrued. This norm received an official judicial interpretation in 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 N 13/14 dated October 8, 1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money"<*>(clause 15.1): the courts are recommended to proceed from the fact that in the event of an increase in the deposit by the amount of unclaimed interest, the interest charged for the delay in returning the deposit, provided for in clause 1 of Art. 395 of the Civil Code, are charged on the entire amount of the deposit increased (to be increased) by the amount of unclaimed interest.
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