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Decision of RF HAC and SC No.13/14
Cl.16 decision of RF Highest Arbitration Court and Supreme Court № 13/14 of 8 October 1998 adjustment requires.
17.07.2012 | Zakon.Ru | Alexander Latyev's blog
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The notice in Alexander Latyev's blog, INTELLECT-S, Zakon.Ru
Cl.16 decision of RF Highest Arbitration Court and Supreme Court № 13/14 of 8 October 1998 "Practice in the application of provisions of RF Civil Code on compensatory interest for the use of another's monetary asserts" stipulates, that in case of early termination of client agreement at the request of lender the interests are charged from debtor till the day, when the loan sum according to contract shall be returned. Alexander Latyev, head of practices, candidate of legal sciences, wrote this in his blog.
Thereby the supreme courts gave the answer what is understood under "interest due" in art.811,813,814 of Civil Court - interest for the period of real use of money or the interest for the whole primary covered by credit agreement period. Courts said that the last.
On the one hand, seeing that the reasons for the pre-term repayment of loan, are connected with breach from debtor, it is logical to recover the sanctions from him. Lender also can demand the compensation of losses, which he sustained .
On the other hand, civil liability is of compensatory nature, that's why it should aim to repair damages for the victim, but not to make him rich.
Interest until the expiration of credit contract period could be considered as losses of a lender only when he doesn't use money of debtor anywhere else. It is clear that money as the most liquid asset, will be used by a lender as soon as they will return to him. Also this statement is right when the debtor is the professional creditor - bank or other credit organization. As a result in case of pre-term repayment of loan and interests for the whole period, which is primary covered by credit agreement , the creditor will receive even more than he wanted to receive during the conclusion the contract. So the creditors will desire the violation from the debtor.
In addition to these economic thoughts about the unfairness of provision of cl. 16, at least in the sphere of consumer crediting in a broad sense, there is the one argument, namely, that in 2011 were made the changes in cl. 2 of Art. 810 of Civil Code RF and they allowed to the debtor to repay a loan in advance. In case of such early repayment the interest, of course, are paid too, but here only for that period during which the debtor was using the credit.
In these conditions depending on absolutely selectable circumstance - whether the debtor manages to repay a loan in advance himself or the lender demands early termination, the interests will be for the account of real time of using the credit or for the whole period determined in the agreement.
In view of the foregoing, cl.16 requires adjustment: it is necessary to specify that interests are collected for the real time of using the loan, instead of the whole time determined in the agreement. It is clear that the lender has the right to demand the compensation of losses, caused, for example, by reduction on the loans which have occurred since the execution of the contract and till the pre-term repayment of loan.
On the other hand, it is necessary to understand that the need of pre-term repayment of loan creates to begin with considerable problems for the debtor.
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