The Loan Agreement: to the question of controversial issues of form and subject

Abstract

Problem setting. Often at the conclusion and realization of the loan agreement
arise disputes about the form and the possibility of usage as a subject of the contract
the foreign currency.
Relevance of the research topic. The lack of unity in the theory and practice
of legal regulation of the form of the loan and its subject, requires further scientific
research of its individual provisions.
Recent research and publications analysis. The research of the legal
regulation of loan relationship explores by many scientists, including Bezklubiy I.A.,
Krivenda O.V., Lepeh S.M., Tupitskaya E.A. and others. But the question of form
and subject matter of the loan agreement nowadays remains without proper legal
assessment.
Paper objective. The research and analysis of the provisions of the current
legislation of Ukraine and judicial practice on the form of the loan agreement,
documented conclusions and its conditions, and the ability to use foreign currency as
the subject of the loan agreement.
Paper main body. The legal nature of the loan agreement was considered. The
agreement determines the transfer of the ownership of borrower money or other
things, with the generic characteristics under the obligation to return the same amount
of money (the loan amount), or the same amount of things of the same kind and
quality. It is real and one-sided agreement, it can be orally and in writing.
It was established that hand receipt or other document certifying the transfer of
creditor a sum of money or a certain number of things is important documentary
evidence of the transfer of the loan. The usage of hand receipt goes beyond the scope
of the loan agreement. It can be confirmed not only by the fact of transfering the
funds or property, but with the fact of performance of the obligation. For the storage
hand receipt can replace the contract.
The point of view of some authors, supported in some cases by judicial
practice, that hand receipt replaces a written loan agreement was disproved because it
is neither a loan agreement concluded in written form, no deal. The hand receipt is
only written confirmation of the loan agreement, its terms and conditions.
It is confirmed that the use of foreign currency in Ukraine is allowed in cases
established by law. It was argued that the transfer of foreign currency loan is not an
obligation and does not require an individual license of the National Bank of Ukraine.
Therefore, the transfer of foreign currency loan does not contradict Ukrainian
legislation. Execution of the Borrower's obligations under the loan agreement, the
subject of which is foreign currency carried out in local currency at the exchange rate
of the National Bank of Ukraine. Inflation rate determines the level of depreciation of
the purchasing power of the national currency of Ukraine - UAH. Therefore, the
subject of indexation is - hryvnia.
Conclusions of the research. Hand receipt is the only proof of the conclusion
of the loan agreement and its terms and conditions. It can not be invalidated.
Foreign currency can be transferred on loan. The return of the loan is made in
local currency at the official rate for the day of return. Foreign currency, which is the
subject of the loan agreement, is not the subject of the indexation.