notorious offer credit for
According h. 1, Art.435 CC RF offer addressed to one or more specific persons a bid that is sufficiently definite and indicates the intention of the person who made the proposal, consider themselves contracted with addressee, who will accept the offer.
offer must contain all the essential terms of the contract.
Offer relates to the right of her face after receiving it addressee.
According h. 1, Art.438 of the Civil Code acceptance accepted answer the person to whom the offer is addressed, of acceptance.In accordance with Part. 3 tbsp.438 of the Civil Code a person who has received an offer within the period established for its acceptance to implement the action set forth in it terms of the contract (services, works and payment of the corresponding amount, etc.) is considered acceptance, unless otherwise provided by law,other legal acts or indicated in the offer.
Thus, the law provides for a simplified procedure for the conclusion of contracts - by acceptance of offers.
This procedure is applicable in the field of banking.
As practice shows, Banks often use this form at the conclusion of credit agreements.And this form is in most cases used in issuing and servicing credit cards.
Are there issues of contracts by the acceptance of tenders in lending?What are the necessary conditions to be followed for the recognition of a contract concluded?What
Bank violates the rights of man and citizen?What is the conflict in the determination of this matter?
For credit card bank customer (borrower) takes the bank statement for his bank card.This statement, the form, the application form (in different banks, this document is a different name) regarded as an offer.
Indeed, this statement can be regarded as an offer.
In accordance with Part. 1 tbsp.435 CC RF offer must contain all the essential terms of the contract.Material terms of the loan agreement contained in Art.30 of the Federal Law "On Banks and Banking Activity".
Referring to this document (the statement of the borrower), we can see that the document contains both the loan amount and term of the loan and the interest rate on loans and the nature of the relationship, and even includes data on both the lender and the borrower.Contained in the offer also the responsibility of the parties in the event of default.
thus established and legally proved that the application form or any other document filed by the borrower to the bank for a loan can be considered as an offer in terms of hours. 1 tbsp.435 of the Civil Code.
What is contained in the offer the borrower infringing his human and civil rights?Why banks used this form of credit at the conclusion of a contract for the maintenance of a credit card.
To deal with this issue you need to address and analyze the offer the borrower.
consider the offer of the borrower in Company Bank "Russian Standard".
The offer stated that the borrower recognizes his statement as an offer and asks the Bank to conclude with it a mixed agreement, elements of which are:
1. Open his bank current account;
2. Issue addressed to him a bank card;
3. And not ambiguous claims credits for an open bank account in the order of Art.850 of the Civil Code.
consider these proposals in more detail.
1. Opening of bank current accounts.
In accordance with Art.845 of the Civil Code of the bank account agreement the bank agrees to accept and credit the account opened by the client (account holder), the funds to carry out the client's order to transfer and issuance of respective amounts from the accounts and conduct other transactions on the account.
In accordance with Part. 2 tbsp.846 of the Civil Code bank is obliged to conclude a contract with a client bank account, made a proposal to open an account in the authorized bank for the opening of accounts of this type of conditions corresponding to the requirements specified by law and established in accordance with banking rules.
Thus, the legislator gives us the notion that if the borrower receives an offer to the Bank of the agreement with the bank account, then the Bank is obliged to conclude a contract with a client bank account, he turned to him with such a proposal.Thus, it is clear that in this case the question is not about the general conditions to sign the contract in the sense of Articles435, h. 3438 of the Civil Code, and deals with the obligatory conclusion of the contract
Mandatory order to sign the contract by submitting an offer regulates Art.445 of the Civil Code.
According h. 1, Art.445 of the Civil Code in cases where, in accordance with the Civil Code or other laws for the party which seeks the offer (the draft contract), the conclusion of the contract is obligatory, that party shall give the other party notice of acceptance or refusal of acceptance or of the acceptance of the offeron other conditions (protocol of disagreements to draft contract) within thirty days from the date of receipt of the offer.
This is one of the special cases in the law.A special case in this case is governed by the rule of law (Art. 445 of the Civil Code), so that the general rule of law (Art. 3 of Art. 438 of the Civil Code) shall apply to the extent in which they do not conflict with the private standards.
Thus, it turns out that within 30 calendar days of the Bank is obliged to send notice of acceptance to the customer in writing, indicating the bank account number of the client (in case the Bank accepted the offer of the client-borrower).
However, banks in spite of this rule of civil law does not inform the customer about the account number, on their acceptance, and acceptance is considered committing the actions specified in the offer, namely the action of opening a bank account.In addition, the cards themselves come to customers by mail simple letters and 3-6 months at least.
2. Issue to the borrower's bank card.
This paragraph at all - it is very well vulnerable for the following reasons.
Referring again - still to JSC Bank "Russian Standard".This Bank has Terms of Service and bank cards.Here, the naked eye can see that even in the title of the document, as well as to talk about it and offer the borrower is the name of a bank card.
And what kind of this card?After all, credit cards come in several forms - receivables, credit, payroll, discount, etc.In addition, resulting from the content of the offer in the company bank "Russian Standard" bank asks the borrower to conclude with it a mixed agreement on the map.Agreement on the map - with no explanation of what kind this card.Already in the title of the treaty, the name of the General Conditions of the bank card is a violation of the law, because of the content of the documents is impossible to determine the nature of the legal relationship with the Bank.
The offer stated that the borrower agree completely read and agrees to comply with general conditions of tariff plans.However, the data contradict the meaning slovochetaniya h. 1, Art.435 of the Civil Code, as the offer must contain the essential terms of the contract, not the essential terms of the contract must be attached to the offer.In addition, the offer is not specified - what exactly Terms of bankcards familiar borrower from some of what they put in and the period of validity of these General Terms and Conditions.Analysis of the practice shows that when the Bank istrebuesh these documents (the General Conditions, Tariff) is, in most cases, that these general conditions, the tariff plan is not worth the customer's signature.
Analyzing the situation, the court raises the question - but with some conditions and the tariff plan was briefed on the borrower?The offer did not mention it on the very conditions there is no signature of the borrower.But the courts for fear of likely cancellation of their decisions in higher courts ignore this requirement of the law, and give to the offer of the client (borrower) validity.
However, as can be seen from the above, or General Conditions or tariff plan is not signed by the client, these documents do not indicate the date of their adoption, whom they adopted.And according to the laws of jurisprudence such a document can not be considered evidence, since it does not contain the basic requirements that are imposed by law for such evidence.
3. credits for opening a bank account in the order of Art.851 of the Civil Code
In accordance with Art.850 of the Civil Code in cases where, in accordance with the contract of bank account, the bank makes payments from the account, despite the lack of money (crediting the account), the bank is considered to provide the customer with a loan for the corresponding amount from the date of such payment.
Here you the answer to all questions.Issuing credit cards and concluding with the borrower Treaty on the Card, the Bank uses very different position than the position of the credit agreement.
In fact, the loan agreement no.There is a contract of the bank account and crediting the account.
naked eye is immediately evident that the main element of such a mixed Agreement on the map is the Bank Account Agreement.
So, within the meaning of the law to become clear, and it is clear that the borrower makes no difference when the Bank accepted the offer and made the acceptance, ieactions that are specified in the offer.Borrower does not matter when the account is opened when transfer money to his account.Borrower main written notice in accordance with Article 445 of the Civil Code.
However, the Bank does not send a notification.What, then, should be done?
Unfortunately, on this issue there is a lot of discussion, there are different points of view.The law does not provide any responsibility for the fact that the Bank has missed the deadline for written notice of the borrower's account number.IeBanks, without notice to the customer in due statutory period, no responsibility, and the courts side with the banks, but as can be seen from the analysis of these rules - such an agreement does not correspond to the order of the conclusion of contracts and can not be recognized as a prisoner in writing.
It says only newsletter RF from 05.05.1997, the number 14, "Overview of the practice of dispute resolution relating to the conclusion, modification and termination of contracts."According to the information letter, the Federal Antimonopoly Service of the Russian Federation said that, if a notice of acceptance (the account number in this case) was not received in time - of the offer becomes null and void and no such contract shall be deemed concluded.
This view implies the regulations of civil law and business traditions.
However newsletter SAC can not be attributed to the rule of law is not a law, and the rule of law, ie,the law - do not regulate this matter.
This is the main conflict of law in the matter.
however, dealt with the question of what the loan agreement, but there is crediting bank accounts.
Banks holds the following positions in the courts.They argue that the card came to you in the mail, and you call the bank, activated it, they took the money, the money used.How to give money, so once there are any - that imaginary circumstances.Banks take the position that before activating the card, even after activation of the card, but before withdrawing cash from an ATM - no interest is not charged.
However, this objection Banks in contravention of articles of the Civil Code.
consider in more detail.
As already mentioned, in the bank account agreement the bank agrees to accept and credit the account opened by the client (account holder), the funds to carry out the client's order to transfer and issuance of respective amounts from the accounts and conduct other transactions on the account.
Thus, when the Bank transfers its funds to the card of the client (his bank account) is considered that the funds provided.And under such circumstances the activation card - become meaningless at all.The Bank accepted the offer of the client, open a bank account with a card tied to a bank account open a bank card, transferred to a bank card (eg bank account) cash (ie lent a bank account).Under the offer, the article 438 hours. 3 of the Civil Code, which refers to the Bank - the Treaty on the map has already been signed, and thus are already operating all of its points (interest rate, fines, penalties).Why in such circumstances need a card activation, and what it provides?These questions do not have answers yet.
However, what happens next, after all the actions that the Bank had, according to the offer of the borrower.And then the bank card arrives in the mail by regular mail.
What happens?
According to the current legislation of Russia is assumed that all citizens know the law.Not knowing the law is no excuse.So, we assume that everyone knows the law.Then, logically, the following occurs.The borrower receives a bank card with bukletik - how to use this card (instructions for use).The card does not say that it is a credit.In bukletik indicated in any use of ATMs, for how long it was issued, what to do if an ATM "healed" card, how to get a pin - code, etc.Words of the loan at all.
means that the borrower knows that he made an offer to the conclusion of the map, but a written notification of the account number he did not receive.Therefore, the borrower reasonably believes that the offer revoked a contract is concluded.And this card in the mail the borrower essentially regards as the Bank offer him a contract-free loan.
Why?Because the offer must contain all the essential terms of the contract.In bukletik - maintenance instructions - or of the interest rate or term of the loan or the monthly payment does not say a word.Therefore - even an interest-free loan.
Besides, bank card came in the mail after 3-6 months of payment by the borrower to take a consumer loan (Equipment loan).And the borrower received a card in the mail, since that fulfills its obligations in good faith considers this card as the card is a reliable customer.In such circumstances, and assume the loan without interest.
Again - again, call the bank on the phone and activate this card (ie committed acceptance).Therefore, the borrower must repay the principal and the contract is considered fulfilled.
Thus, the initial offer of the borrower does not have anything to send by mail the bank card.
This is a mistake for the maintenance of the properties and quality of services provided by the Bank.
In conclusion I want to say.
worth considering also the fact that now the bankers are no longer send cards by mail.If such cards would violate the rights of consumers - would the bankers to abandon a good profit in the business?The answer to these questions, I think you articulate yourself.
