The notorious loan offer
According to Part 1 of Art. 435 of the Civil Code of the Russian Federation, an offer is recognized as an offer addressed to one or several specific persons, which is quite certain and expresses the intention of the person who made the offer to consider himself having concluded an agreement with the addressee who will accept the offer.
The offer must contain all the essential conditions of the contract.
An offer links the person who sent it from the moment it is received by the addressee.
According to Part 1 of Art. 438 of the Civil Code of the Russian Federation, acceptance is the response of the person to whom the offer is addressed, on its acceptance. In accordance with Part 3 of Art. 438 of the Civil Code of the Russian Federation, the fulfillment by the person who received the offer, within the time period established for its acceptance, of actions to fulfill the conditions of the agreement specified therein (provision of services, performance of work, payment of the corresponding amount, etc.) is considered an acceptance, unless otherwise provided by law, other legal acts or not specified in the offer.
Thus, the law provides for a more simplified procedure for concluding contracts - by accepting offers.
This procedure is also applicable in the field of banking services.
As practice shows, banks very often use this form when concluding loan agreements. Moreover, this form is in most cases used when issuing and servicing credit cards.
Are there any problems in concluding contracts by accepting offers in the field of lending? What necessary conditions must be observed when a contract is concluded?
How does the Bank infringe on human and citizen rights? What is the conflict of law when considering this issue?
To receive a credit card, a bank client (borrower) submits an application to the bank for a bank card. This application, application form, application form (this document has a different name in different banks) is regarded as an offer.
Indeed, this statement can be regarded as an offer.
In accordance with Part 1 of Art. 435 of the Civil Code of the Russian Federation, the offer must contain all the essential conditions of the contract. The essential terms of the loan agreement are contained in Art. 30 Federal Law "On Banks and Banking".
If you turn to this document (statement of the borrower), you can see that the document contains both the loan amount, the loan term, the interest rate on loans, and the nature of the relationship, and even contains data from both the lender and the borrower. The offer also contains the responsibility of the parties in case of default.
Thus, it has been established and legally proved that the application, application form or other document submitted by the borrower to the Bank for the provision of a loan can be regarded as an offer in the sense of Part 1 of Art. 435 of the Civil Code of the Russian Federation.
What is contained in the offer of the borrower that infringes on his human rights and citizen? Why do banks use this particular form when concluding credit agreements for servicing a bank card.
To deal with this issue, you need to contact and analyze the offer of the borrower.
Consider the borrower's offer at ZAO Russian Standard Bank.
The offer states that the borrower recognizes its application as an offer and asks the Bank to conclude a mixed agreement with him, the elements of which are:
1. Open him a bank current account.
2. Issue a bank card in his name.
3. And does not ambiguously declare to credit the account opened by the Bank in accordance with Art. 850 of the Civil Code of the Russian Federation.
Consider these proposals in more detail.
1. Opening bank current accounts.
In accordance with Art. 845 of the Civil Code of the Russian Federation under a bank account agreement, the bank is obliged to accept and credit funds received to the account opened to the client (account holder), to fulfill the client's orders to transfer and issue the corresponding amounts from the account and to conduct other operations on the account.
In accordance with Part 2 of Art. 846 of the Civil Code of the Russian Federation, the Bank is obliged to conclude a bank account agreement with a client who has applied to open an account on the conditions announced by the bank to open accounts of this type, which meet the requirements stipulated by law and banking rules established in accordance with it.
Thus, the legislator gives us the idea that if an offer is received from the borrower to the Bank to conclude a bank account agreement with him, then the Bank is obliged to conclude a bank account agreement with the client who has applied to him with such an offer. Thus, it becomes clear that in this case we are not talking about the general conditions for concluding a contract in the sense of Art. 435, part 3 438 of the Civil Code of the Russian Federation, and we are talking about the mandatory procedure for concluding an agreement
The mandatory procedure for concluding an agreement by submitting an offer is regulated by Art. 445 of the Civil Code of the Russian Federation.
According to Part 1 of Art. 445 of the Civil Code of the Russian Federation in cases where, in accordance with the Civil Code or other laws, it is obligatory for the party to whom the offer is sent (draft contract), this party must send the other party a notification of acceptance, or of refusal of acceptance, or of acceptance of the offer on other conditions (protocol of disagreements to the draft agreement) within thirty days from the date of receipt of the offer.
This is one of the special cases in law. In this case, a special case is regulated by the rules of law (Article 445 of the Civil Code of the Russian Federation), therefore, general rules of law (part 3 of Article 438 of the Civil Code of the Russian Federation) are applied to the extent that they do not contradict particular rules.
Thus, it turns out that within 30 calendar days the Bank is obliged to send the client a notification of acceptance in writing, indicating the bank account number of the client (in case the Bank has accepted the offer of the client-borrower).
However, contrary to this rule of civil law, banks do not notify the client about the account number, about their acceptance, but consider acceptance of the actions specified in the offer, namely, actions to open a bank account, as acceptance. In addition, the cards themselves come to customers by mail in simple letters and after 3-6 months, at least.
2. Issue a bank card in the name of the borrower.
This item is generally very well vulnerable for the following reasons.
Let us again turn to Russian Standard Bank CJSC. This Bank has the Conditions for the provision and maintenance of bank cards. Here, with a naked eye, it can be seen that even in the title of the document, as well as on this and in the offer of the borrower, is the name of the bank card.
What's the look of this card? After all, there are several types of bank cards - accounts receivable, credit, salary, discount, etc. In addition, following the contents of the offer at Russian Standard Bank CJSC, the borrower asks the Bank to conclude a mixed card agreement with him. Card agreement - without explaining what kind of card this is. Already in the name of the Agreement, in the name of the General Terms and Conditions for the provision of bank cards, there is a violation of the law, since the nature of legal relations with the Bank cannot be determined from the content of the documents.
The offer indicates that the borrower fully agrees, is familiar with and agrees to comply with the General Conditions, the Tariff Plan. However, these phrases contradict the meaning of Part 1 of Art. 435 of the Civil Code of the Russian Federation, since the offer must contain the essential terms of the contract, and not the essential terms of the contract should be attached to the offer. In addition, the offer does not indicate exactly which Terms and conditions for the provision of bank cards the borrower is familiarized with, from what date, by whom they entered into force and the validity period of these General Terms. An analysis of the practice shows that when you request these documents from the Bank (General conditions, Tariff plan), it turns out, in most cases, that under these General conditions, the Tariff plans are not worth the client's signature.
Analyzing this situation, the court raises the question - what conditions and tariff plan did the borrower know about? The offer does not speak about this, on the Conditions themselves there is no signature of the borrower. But the courts, fearing, most likely, the cancellation of their decisions in the higher courts, ignore this requirement of the law and give legal force to the offer of the client (borrower).
However, as can be judged from the foregoing, neither the General Conditions nor the Tariff Plan are signed by the client, these documents do not bear the date of their adoption, by whom they were accepted. And according to the laws of jurisprudence, such a document cannot be recognized as evidence, since it does not contain the elementary requirements that are set forth by law for such evidence.
3. To credit an open bank account in accordance with Art. 851 of the Civil Code
In accordance with Art. 850 of the Civil Code of the Russian Federation in cases where, in accordance with the bank account agreement, the bank makes payments from the account, despite the lack of funds (lending to the account), the bank is considered to have provided the client with a loan for the corresponding amount from the date of such payment.
Here is the answer to all the questions posed. By issuing a credit card and concluding a “Card Agreement” with the borrower, the Bank applies completely different provisions than the provisions of the loan agreement.
In fact, there is no loan agreement. There is a bank account agreement and credit for this account.
With the naked eye, one can immediately see that the main element of such a mixed Card Agreement is the Bank Account Agreement.
Therefore, within the meaning of the law, it becomes clear and clear that it does not matter to the borrower when the Bank accepted the offer and made the acceptance, that is, the actions indicated in the offer. It makes no difference to the borrower when an account is opened, when funds are transferred to his account. The main written notification to the borrower in accordance with Article 445 of the Civil Code of the Russian Federation.
However, the Bank does not send a notification. What then should happen?
Unfortunately, there are a lot of discussions on this issue, there are various points of view. The law does not stipulate any liability for the fact that the Bank missed the deadline for a written notification of the borrower about the account number. That is, the Banks, without notifying the client within the legal time period, do not bear any responsibility, and the courts side with the Banks, although, as can be seen from the analysis of these norms, such an agreement does not comply with the procedure for concluding agreements and cannot be recognized as concluded in writing.
This is evidenced only by the information letter of the Supreme Arbitration Court of the Russian Federation dated 05.05.1997 No. 14 "Overview of the practice of resolving disputes related to the conclusion, amendment and termination of contracts." According to this newsletter, the Federal Antimonopoly Service of the Russian Federation informs that if the notice of acceptance (account number in our case) was not received on time, the validity of the offer becomes invalid and such an agreement is not considered concluded.
This point of view is supposed to comply with civil law and business customs.
However, the information letter of the Supreme Arbitration Court of the Russian Federation cannot be attributed to the rule of law, this is not a law, but the rule of law, i.e. the law does not regulate this issue.
This is the main conflict of law in this issue.
However, we dealt with the issue that there is no loan agreement, but there is a bank account lending.
Banks occupy the next position in the courts. They claim that a card came to you by mail, and you called the Bank, activated it, withdrew money, used the money. And how to give money, so immediately there are some fictitious circumstances. Banks take the position that until the card is activated, even after the card is activated, but until the cash is withdrawn from the ATM, no interest is charged.
However, this objection of the Banks contradicts the articles of the Civil Code of the Russian Federation.
Let's consider in more detail.
As already mentioned, under the bank account agreement, the bank is obliged to accept and credit funds received to the account opened to the client (account holder), to fulfill the client’s orders to transfer and issue the corresponding amounts from the account and to conduct other operations on the account.
Thus, when the Bank transfers its funds to the customer’s card (its bank account), it is considered that the funds have been provided. Moreover, under such circumstances, activation of the card - it becomes completely pointless. The bank accepted the client’s offer, opened a bank account, connected the open bank account to a bank card using a card, transferred money to a bank card (i.e. bank account) (i.e. credited a bank account). According to the offer, article 438 part 3 of the Civil Code of the Russian Federation to which the Bank refers - the Card Agreement has already been concluded, which means that all of its items are already in effect (interest rate, fines, penalties, forfeit). Why, in such circumstances, do I need to activate the card, and what is it for? There are no answers to these questions yet.
However, what happens next, after all the actions taken by the Bank, according to the offer of the borrower? And then a bank card comes in the mail in a simple letter.
What is going on?
According to the current legislation of Russia, it is assumed that all citizens know the law. Ignorance of the law is not an excuse. So, suppose everyone knows the law. Then, according to the logic of things, the following happens. The borrower receives a bank card with a booklet - how to use this card (instructions for use). It is not written on the card that it is credit. The booklet indicates which ATMs to use, for how long it was issued, what to do if the ATM “jammed” the card, how to get a PIN code, etc. There are no words about the loan at all.
This means that the borrower knows that he made an offer to conclude a Card Agreement, but he did not receive a written notice of the account number. Consequently, the borrower reasonably believes that the offer has been canceled, the contract has not been concluded. And the borrower perceives this card by mail as an offer of the Bank to him on the conclusion of an interest-free loan agreement.
Why? Because the offer must contain all the essential conditions of the contract. The booklet - service instructions - does not say a word about the interest rate, the term of the loan, or the monthly payment. Therefore, an interest-free loan.
In addition, bank cards came by mail after 3-6 months of payment by the borrower of a consumer loan (equipment on credit). And the borrower, having received the card by mail, since he conscientiously fulfills his obligations, regards this card as a card of a reliable client. Under such circumstances, a loan without interest is also acceptable.
Again, by calling the Bank by phone and activating this card (i.e., made an acceptance). Consequently, the borrower needs to return the amount of the principal debt and the contract is considered fulfilled.
Thus, the initial offer of the borrower has no relation to the bank card sent by mail.
This is a misconception regarding the properties and quality of services provided by banks.
In conclusion, I want to say.
It is worth thinking about the fact that currently bankers have stopped sending cards by mail. If such cards did not violate the rights of consumers, would bankers refuse good profits in their business? The answer to these questions, I think, you will formulate yourself.