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THE BILATERAL BINDING CHARACTER OF THE DEBT CONTRACT
Kamil M. Arslanov
Kazan Federal University, cand. of Law Sciences, docent, head of department of civil law of Kazan Federal University,
Kazan, (Russian Federation).
E-mail: kamil.arslanov@gmail.com ORCID: https://orcid.org/0000-0001-9703-0908
Artur I. Khabirov
Kazan Federal University, assistant of department of civil law of Kazan Federal University, Kazan, (Russian Federation).
E-mail: art.khabir@gmail.com ORCID: https://orcid.org/0000-0002-6491-9070
Recepción:
08/05/2020
Aceptación:
30/06/2020
Publicación:
24/08/2020
Citación sugerida:
Arslanov, K.M., y Khabirov, A.I. (2020). The bilateral binding character of the debt contract. 3C Empresa. Investigación
y pensamiento crítico, 9(3), 125-137. https://doi.org/10.17993/3cemp.2020.090343.125-137
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ABSTRACT
The aim of this paper is to investigate the bilateral responsibility character of the loan agreement.
At the heart of a research there is a method of the analysis of the existing Russian legislation and
law-enforcement practice and the existing European standards for legal unication. Results revealed
that the rights of the lessor can be subdivided on precontractual and contractual. The right to reliable
information about the borrower belongs to precontract laws of the lessor; right for coordination of
contractual conditions. Moreover, it is necessary to dierentiate the contract monetary and the contract
of a commodity (real) loan in connection with dierences in a set of the bilateral rights and duties of
the lessor and borrower. In conclusion, in the pre-revolutionary doctrine an opportunity to sign the loan
agreement on consensual model in this connection we consider that this legal design can be reproduced
in the existing civil legislation was proved.
KEYWORDS
Loan Agreement, Precontractual, Contractual conditions, Consensual model, Bilaterally Binding
Character, Rights of the borrower, Civil legislation.
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1. INTRODUCTION
The traditional opinion in science of civil law adheres to a position that “the contents of the loan
agreement, proceeding from its unilateral nature, make a duty of the borrower to return the loan sum
(Art. 810 of group of companies) and the right of the requirement of the lessor corresponding to it”
(Civil law: textbook in 3 t, 2017). Therefore, the borrower has no under the considered contract any
rights, and any duties, except an all-creditor duty to accept appropriate execution (Khabirov, 2014). So,
for example, Sukhanov pays attention to the so-called creditor duties of the lessor (item 2 of Art. 408
of group of companies) which are available in the majority of obligations and not turning this contract
into bilaterally binding. The lessor is obliged to issue to the borrower the voucher of a subject of a loan,
or to return the relevant debt document (for example, the receipt of the borrower), or to make record
about return of a debt on the returned debt document, or, at last, to note in the receipt impossibility of
return of the debt document issued by the borrower (in particular, because of his loss) (Russian civil law:
textbook, 2011). Mikhalev and Sofronov emphasize that in loan legal relationship there are no counter
duties, doing the reservation that on the lessor so-called creditor obligations for execution acceptance
(Art. 406, item 2 of Art. 408 of the Civil Code of the Russian Federation) lie (Civil law: textbook,
2017). Also, Sgibiyeva considers that the loan agreement is unilaterally binding (Civil law: the textbook,
2006). Vitryansky notes that the loan agreement is unilaterally the binding contract that “does not raise
doubts and admits all authors” (Braginsky, 2006). Thus, in science of civil law there was an opinion that
existence of the counter duties of the creditor in the loan agreement having the general character does
not inuence unilateral character of this contract. However there is also other position which already
found the reection in science of civil law and which is presented in the real work (Arslanov, 2016;
Corbin, 1918; Melo et al., 2018).
2. METHODS
At the heart of a research there is a method of the analysis of the existing Russian legislation and
law-enforcement practice and the existing European (world) standards for legal unication (Law, 2015).
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Methods of legal modeling and forecasting allow dening need of introduction of amendments to the
existing Russian regulations, as well as needing of correction of jurisprudence (Dale, 1977). Thanks to
methods of modeling and forecasting can with enough degree of reliability be established a consequence
of introduction of such changes and adjustments, as well as it is revealed, how, nally, the Russian
law-enforcement practice will be brought closer to the available European (world) standards. The right
sociological method allows assessment of social problems from a legal position, from a position of
the legislator and the law enforcement ocial (Siems & Síthigh, 2012). The method of interpretation
supplements the comparative and legal analysis in a research, allowing understanding and comparing
the Russian and European (world) legal standards (Davies, 2016: Marandi et al., 2015).
3. RESULTS
First, both according to the loan agreement, in general, and under the contract of a consumer loan, in
particular, the borrower is given certain rights that allows to draw a conclusion on bilaterally binding
character of the loan agreement. The rights of the loan agreement parties can be classied on pre-
contractual and contractual; on the rights connected with emergence, execution and termination of the
contract of a loan; on the property and non-property rights. The system of information rights of the
borrower is separately allocated; classication of information rights of the borrower is developed and
proved.
Secondly, a set of competences of the parties under the contract of a monetary and commodity (ware)
loan diers. The volume of competences of the borrower under the contract of a consumer loan diers.
Under the contract of a ware loan the borrower has the same rights, as well as the buyer under the
contract of purchase and sale in the part relating to the characteristic of the transferred thing (goods)
(owing to the corresponding application of Art. 822 of the Civil Code of the Russian Federation).
Thirdly, it is necessary to dierentiate the mechanism of protection of the rights of the parties under the
contract of a monetary loan and under the contract of a ware (commodity) loan. In case of violation by
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the lessor under the contract of a commodity loan of the corresponding duties, the borrower can protect
the rights in not jurisdictional form. Measures of operational impact are applied: refusal of the contract;
refusal of acceptance of inadequate execution. Such way of protection as the termination or change of
legal relationship, award to discharge of duty in nature is used. Means of protection are the statement, a
claim. Under the contract of a monetary loan of the party carry out protection of the rights in law order
by means of such security measure as the statement of claim. Therefore, depending on subject of the
contract of a loan there are distinctions in shape, means and ways of protection.
The scientic results received during the conducted research allowed to formulate a number of suggestions
for improvement of the current legislation. New edition of item 1 of Art. 807 of the Civil Code of the
Russian Federation: “According to the loan agreement one party (the creditor, the creditor) transfers or
undertakes to transfer to the possession to other party (borrower) the money or other things determined
by patrimonial signs, and the borrower undertakes to return to the creditor (creditor) the same sum of
money (the loan sum) or equal quantity of other things of the same sort and quality received by it. The
loan agreement in which a creditor (creditor) is the citizen and which subject is money is considered
concluded after the date of transmission of money”. New edition of the oer 2 of item 6 of Art. 7 of
the Federal Law “About a Consumer Loan (Loan)” to state in the following edition: “The contract of a
consumer loan is considered the prisoner if between the parties of the contract consent according to all
individual terms of the contract specied in part 9 of article 5 of the present Federal law is reached”.
4. DISCUSSION
Meyer (2003) pointed to an opportunity to sign bilaterally binding loan agreement according to which it
will be possible to force the lessor to grant a subject of a loan. Karapetov (2012), Vishnevsky (2015), and
others also spoke an opportunity to sign the loan agreement on consensual model (Khabirov, 2017). The
similar position meets also in jurisprudence (for example: The resolution of Arbitration court of the East
Siberian Federal District of March 20, 2016 no. F02-833/16 in the matter of No. A33-6853/2015). It
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is obviously possible to draw a conclusion that is possible to assign an obligation for granting a subject
of a loan to the lessor.
By the current legislation the rights are distinguished: 1) the right of the borrower to return the sum of
an interest-free loan ahead of schedule and the corresponding duty of the lessor to accept this sum from
the borrower; 2) the right to challenge the loan agreement on lack of money of the contract and the duty
of the lessor corresponding to this right to accept objections of the borrower or to produce the evidence
of “money-part” of a loan (Arslanov, 2016); 3) the right to demand acceptance of appropriate execution;
4) the right to demand to issue it the voucher of execution completely or in the corresponding part, the
debt document, and at impossibility of return to point to it in the receipt issued to them.
In that case when a subject of a loan is not money, but other things determined by patrimonial signs
there is a question of responsibility of the lessor for quality of the transferred things (Arslanov, 2016). We
nd it possible to draw a conclusion that rules of article 822 Civil Code of the Russian Federation about
quantity, about the range, about completeness, about quality, about a container and (or) about packing
of the provided things are subject to application and to the loan agreement of things. It is necessary
to agree with Romanets (2013) who points to a possibility of application to separate types of the loan
agreement and other norms from the section of hl. 30 Civil Code of the Russian Federation: Art. 455,
Art. 456, Art. 457 which do not contradict the nature of the consensual contract of the commodity
credit. With Art. 459 of group of companies about transition of risk of casual death of goods, as well
as the Art of Art. 460 - 462 groups of companies could add regulation of the relations of the real loan
agreement of things (Romanets, 2013).
The wide range of the rights is provided to the borrower according to the Federal Laws “About a
Consumer Loan (Loan)” which can be classied by several bases. Let’s join classication of Fedulina
(2015) according to which division of the rights of the borrower under the contract of a consumer
loan (loan) on their character on property (the right for indemnication, caused to the borrower by
inadequate performance of obligations under the contract is possible; the right for compensation of the
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size of the paid percent and other payments under the contract of a consumer loan at return of goods
of inadequate quality, etc.) and non-property (the right for information, the right for the free choice of
the services rendered within the credit (loan) agreement (for example, insurance), etc.).
By analogy with the rights of the consumer granted in the contract of retail purchase and sale, the
consumer work it is possible to select precontract and contract laws of the borrower. First, the right for
information concerns to the rst group of the rights. In literature the importance of those provisions of
the legislation which regulate the precontractual relations, namely informing the borrower on terms for
crediting is noted (Shvachko, 2012). Often the precipitate conclusion of loan agreements and the credit
(including consumer) on enslaving conditions for borrowers is caused by absence in the last full and
clear information on terms of the contract and consequences of their violation (a speech of the Russian
President V. V. Putin at a meeting of Presidium of the State Council concerning “About National System
of Consumer Protection” (Novgorod, 2017)).
The second group of the rights of the borrower relates to execution and termination of the contract
of a loan. In particular, treat group of the rights connected with performance of the contract of a
consumer loan: the right to use the loan sum as on the denite purposes established in the contract, and
at discretion if in the loan agreement the denite purpose is not specied; the right of the borrower to
forbid the creditor a concession of the rights (requirements) to the third parties; right for stability of
contractual conditions.
Also it is necessary to refer the right of the borrower for observance of conditions of interaction with
the creditor to group of the rights connected with execution of the loan agreement (Fedulina, 2015).
Respect for this right became very urgent that is connected, rst of all with unfair, and, sometimes,
and illegal behavior of the persons who are engaged in return of debt as the primary activity (so-called
“collectors”). The long time in jurisprudence and the doctrine did not exist unities of opinions on a
possibility of a concession of the rights (requirements) for the contract of the credit (Lupu & Whether,
2011; Khabirov, 2013). Now the given disputes are deprived of the bases since in the law “About a
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Consumer Loan (Loan)” of Art. 12 directly allows such concession (see also Art. 4 of the Federal Law
“About protection of the rights and legitimate interests of natural persons at implementation of activities
for return of arrears and about introduction of amendments to the Federal law “About Micronancial
Activity and the Micronancial Organizations”).
The borrower within group of the rights connected with performance of the contract has rights for free
execution of the liability under the contract of a consumer loan. This right is exercised by obligatory
providing free repayment of a debt to the borrower of at least one way (item 19 of Art. 5 of the Federal
Law “About a Consumer Loan (Loan)”). Moreover, when opening of the bank account of operation on it
provided by the contract must be carried out free of charge (item 17 of Art. 4 of the Federal Law “About
a Consumer Loan (Loan)”. This competence is designed to protect borrowers from the hidden payments
and the commissions (see also subitem 5 of item 5 of Art. 6 of the Federal Law “About a Consumer
Loan (Loan)”).
It is necessary to refer the right of the borrower for early return of the sum of a consumer loan within 14
days to group of the rights connected with termination of the contract of a consumer loan (30 days when
receiving a loan on denite purposes). In literature it is pointed out the importance of xing of these
competences of the borrower (Rybakova, 2012). Thus, the borrower as under the contract of a monetary
loan, especially under the contract of a consumer loan, and under the contract of a commodity (ware)
loan, it is allocated with the big list of the rights that allows to draw a conclusion on bilaterally binding
character of the loan agreement.
The lessor (creditor) according to the loan agreement, a consumer loan also has certain groups of the
rights which can be classied by several bases. So, by analogy with the above-stated classication of the
rights of the borrower on property and non-property it is possible to mark out the property and non-
property rights of the lessor. The right to percent for use of a loan, the right to the due percent in case
of the compelled early cancellation of the contract because of the violation allowed by the borrower
belongs to property rights of the lessor; the right to demand return of the sum of a loan. It is necessary
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to refer the right to information on the borrower, the right for the free choice of the contractor under the
contract to the non-property rights of the lessor.
The rights of the lessor can be subdivided on precontractual and contractual. The right to reliable
information about the borrower belongs to precontract laws of the lessor; right for coordination of
contractual conditions. According to item 3 of Art. 7 of the Federal Law “About a Consumer Loan
(Loan)” the creditor considers the application and other documents of the borrower. Within the
precontractual relations the lessor (creditor) has the right to refuse delivery of a consumer loan.
5. SUMMARY
The loan agreement has bilaterally binding character. Under the contract of a monetary loan the
borrower has 1) the right ahead of schedule to return the sum of an interest-free loan, as well as the sum
of the loan granted under percent to the borrower citizen for the personal, family, house or other use
which is not connected with business activity; 2) the right to challenge the loan agreement on its lack of
money; 3) the right to demand acceptance of appropriate execution; 4) the right to demand to issue it
the voucher of execution completely or in the corresponding part or to return the debt document, and
at impossibility of return to point to it in the receipt issued to them; 5) the right for free execution of the
liability under the contract of a consumer loan; 6) the right to forbid a concession the creditor to the
third parties of the rights (requirements) for the contract of a consumer loan; 7) right for refusal of the
conclusion of additional contracts; 8) the right for refusal of receiving the additional services connected
with the contract of a consumer loan; 9) the right for the free choice of contractors concerning additional
services. Under the contract of a ware loan the borrower has rights connected with granting things to it
in the coordinated quantity, the range, completeness, quality, a container and (or) packing. The lessor has
the following rights: 1) to demand return of the sum of a loan; 2) payments of the due percent for use of
a loan; 3) to exercise control of target use of the loan issued on denite purposes; 4) to receive the due
percent in case of the compelled early cancellation of the contract because of the violation allowed by
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the borrower; 5) to concede to the third parties of the right (requirement) for the contract of a consumer
loan; 6) to refuse delivery of a consumer loan.
Under the contract of a monetary loan and under the contract of a ware (commodity) loan of the party
have the diering set of the rights which are subject to protection dierent forms, means and in the ways.
If subject of the contract of a loan is the thing, the borrower has the rights granted to the buyer under
the contract of purchase and sale concerning quantity, the range, completeness, quality, a container and
(or) packing of the provided things
6. CONCLUSIONS
The rights of the loan agreement parties can be classied on precontractual and contractual; on the
rights connected with emergence, execution and termination of the contract of a loan; on the property
and non-property rights. Separately it is necessary to mark out the information rights of the borrower.
It is concluded that it’s conceivable to decide that rules of article 822 Civil Code of the Russian
Federation about amount, about the range, about culmination, about quality, about a holder as well as
about pressing of the gave things are dependent upon application and to the advance understanding of
things.
Modern regulation of the loan agreement is based on standards of the Russian pre-revolutionary
legislation and the pre-revolutionary doctrine that allows using the legal designs developed during the
pre-revolutionary period by science and practice. In particular, in the pre-revolutionary doctrine an
opportunity to sign the loan agreement on consensual model in this connection we consider that this
legal design can be reproduced in the existing civil legislation was proved.
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7. ACKNOWLEDGEMENTS
The work is performed according to the Russian Government Program of Competitive Growth of
Kazan Federal University.
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