DOI: https://doi.org/10.32461/2226-3209.1.2018.178171

ON THE ISSUE OF THE CONSENSUAL CONSTRUCTION OF A LOAN AGREEMENT

Artur Khabirov

Abstract


Abstract. As it was repeatedly noted in the literature, Russian law is still at the stage of its formation. A large-scale change in the provisions of Russian legislation on the legal regulation of financial transactions should be considered as one of the proofs of the given thesis. In the paper, the author analyzes the amendments that came into force on June 1, 2018 in parts one and two of the Civil Code of the Russian Federation, according to which a loan agreement can now be concluded using a consensual model. The reforming of this provision should be recognized as a revolution in the legal regulation of loan legal relations. For millennia, the loan agreement was considered exclusively as a real agreement. Nevertheless, the author paid attention to the fact that even before the adoption of the above- mentioned amendments, a loan agreement could be considered consensual under certain conditions. In connection with the above, the author analyzed the provisions of the legislation, including foreign ones, as well as the points of view expressed in the scientific literature, and he has concluded that it would be useful to introduce a consensual loan into Russian legislation. But, even despite the recent editing of the provisions contained in Chapter 42 of the Civil Code of the Russian Federation, the author proposes to review a number of articles and to state them in a new edition.
Keywords: loan agreement, consensual loan, amendments to the Civil Code of the Russian Federation.


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References


Comparative Law. An Introduction to the Comparative Method of Legal Study and Research. By Gutteridge

H. C., K.C., LL.D. (Cambridge Studies in International and Comparative Law, Vol. I.) – London: Cambridge University

Press. The Cambridge Law Journal. – 1947. – 9(3). – P. 386-387.

Dale, William. Legislative Drafting: A New Approach: a Comparative Study of Methods in France, Germany, Sweden and the United Kingdom. – London: Butterworths, 1977. – 341 p.

Arslanov Kamil Maratovich, Khabirov Artur Ilfarovich. About the Weak Party of the Loan Contract //

Astra Salvensis, Review of History and Culture Supplement. – 2017. – P.323–330.

Siems, M., & Mac Síthigh, D. Mapping legal research. The Cambridge Law Journal. – 2012. – 71(3). –

P.651-676.

Davies, P. Rectification versus interpretation: the nature and scope of the equitable jurisdiction. – The

Cambridge Law Journal. – 2016. – 75(1). – P.62-85.

Demieva A.G., Arslanov K.M. Legislation on Business: the International Experience and the Prospects of

Development in Russia // The Turkish Online Journal of Design, Art and Communication (TOJDAC). – November. –

Special Edition. – P.2474–2479.

Arslanov Kamil, Khabirov Artur. About the bilateral character of the debt contract // National Academy of

Managerial Staff of Culture and Arts Herald. – 2017. – № 4. – P. 99–103.

Shershenevich G.F. Textbook of Russian civil law [Digital source]. - URL:

http://www.pacta.ru/sher_civil.php (access date: 30.06.2018).

Meyer D.I. Russian civil law [Digital source]: in 2 parts - Moscow: Statute, 2003. - 831 p.

Civil Code. Draft of the Highest Established Drafting Committee for the Preparation of the Civil Code /

edited by I.M. Tyutryumov. St. Petersburg, 1910.

Braginsky M.I., Vitryansky V.V. Agreementual Law. - Book 5, V.1: Loan, Bank Loan and Factoring

Agreements. Treaties aimed at creating collective formations. - M.: Statute, 2006. - 734 p.

Pavlodsky, E. A. Agreements of organizations and citizens with banks. - M.: Statute, 2000. - 266 p.

Romanets Yu. V. The system of agreements in the civil law of Russia. - 2nd edition, updated and revised -

M.: Norma: Infra-M, 2013. - 496 p.

Karapetov A.G., Saveliev A.I. Freedom of agreement and its limits. V. 2: The Limits of Freedom for

Determining the Terms of an Agreement in Foreign and Russian Law. - M.: Statute, 2012. - 453 p.

Principles of European Contract Law. P. I - II / Ed. by O. Lando and H. Beale. - The Hague: Kluwer Law

International, 2000. – 561 P.

The Principles of European Contract Law and Dutch Law. A Commentary / Ed. by D. Busch, E.H.

Hondius, H.J. van Kooten, H.N. Schelhaas, W.M. Schrama. Nijmegen, 2002. – 471 P.

Safin Z.F. The legal nature of contractual relations in the monetary and financial sphere with the

participation of business entities in the agro-industrial sector // Bulletin of St. Petersburg University of the Ministry of

Internal Affairs of Russia. - 2005. - № 3 (27). - p. 188 - 192.

Vitryansky V. V. Categories of “credit” and “credit legal relations” in civil law // Economy and law. -

- № 9. - P. 3–18.

Civil law: textbook: in 3 volumes / edited by A.P. Sergeyev. - M., Prospectus, 2017. - V. 2. - 880 p.