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CAN CASH BE THE SUBJECT OF COLLATERAL?

A. Lisov, Deputy Head of the Legal Department of Vnesheconombank.

The subject of any civil obligation is the commission of actions (or refusal to commit them) by the debtor in favor of the creditor, which entail the emergence, change or termination of the corresponding legal relationship. However, the obligation itself does not guarantee that the debtor will perform these actions in favor of the creditor. Of course, in the event of failure or improper performance by the debtor of his duties, the creditor has the right to resort to forced protection of his rights by contacting statement of claim to the judicial authorities. However, as the practice of arbitration courts and courts of general jurisdiction shows, the debtor does not always have necessary means and opportunities to properly fulfill their obligations. In order to additionally ensure the property interests of the creditor and guarantee the actual performance by the debtor of his obligations, special security measures provided for by law or contract are used. These include a penalty, pledge, retention of the debtor’s property, surety, bank guarantee, deposit (), assignment monetary claim ().

One of the most effective measures of this kind is bail. According to the pledge, it is a method of ensuring the fulfillment of an obligation, according to which the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of failure of the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property, preferentially before other creditors of the person who owns this property (the pledgor), for exemptions established by law.

The current civil legislation regulates in detail the institution of pledge. In addition, quite a large amount of judicial practice has been accumulated in the form of generalizations of the Supreme Arbitration Court of the Russian Federation and decisions of its Presidium on specific cases. At the same time, to date, certain issues of application of the current legislation on pledge do not have an unambiguous interpretation.

In accordance with the subject of the pledge, there can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, as well as claims inextricably linked with the personality of the creditor (in particular, claims for alimony, compensation for harm, caused to life or health, and other rights, the assignment of which to another person is prohibited by law).

Of particular theoretical and practical interest is the question of the possibility of collateral Money, which are the most liquid assets in the property of any person. According to Art. 128 Civil Code to objects civil rights include things including money and securities, other property, including property rights; works and services; information; results of intellectual activity, including exclusive rights to them (intellectual property); intangible benefits. Cash is not property withdrawn from circulation. On the contrary, they are absolutely negotiable objects of civil rights, since they can be exchanged for almost all types of property.

Consequently, the properties of the object of civil rights - money - allow us to draw a conclusion about the possibility of using them as a subject of pledge. Some legislative acts expressly provide for this possibility. Thus, the Rules for conducting competitions for the right to conclude trust management agreements for federally owned shares of joint-stock companies created in the process of privatization, approved by the Decree of the Government of the Russian Federation of August 7, 1997 (as amended on April 17, 1998), contain a provision that that the subject of collateral should be cash, real estate and securities that have high degree liquidity owned by the trustee by right of ownership (note to clause 2 and clause 20 of the Rules).

Regulations on the use of collateral customs authorities Russian Federation, approved by the Order of the State Customs Committee of the Russian Federation dated February 22, 1994, also provides that the subject of pledge can be goods, including currency, currency valuables, securities, as well as vehicles (clause 1.2 of the Regulations).

At the same time, the Supreme Arbitration Court of the Russian Federation has a negative attitude towards the issue of the possibility of pledging funds. Thus, the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 2, 1996 states the following: “According to Article 1 of the Law of the Russian Federation “On Pledge,” a pledge is a way of securing an obligation, in which the creditor (pledgee) acquires the right, in the event of a debtor’s failure to fulfill the obligation, to receive satisfaction at the expense of the pledged property. In this case, by virtue of Articles 28, 29 and 30 of the Law of the Russian Federation “On Pledge” and Art. public auction with the proceeds being used to pay off the debt. Thus one of essential features the pledge agreement is the possibility of realizing the subject of pledge. Cash, and especially without in cash, do not have this characteristic. Thus, based on the essence of collateral relations, funds cannot be the subject of collateral. Under these circumstances controversial treaties on the pledge do not comply with the requirements of the Law and are invalid by virtue of Art. 168 Civil Code Russian Federation" (Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. No. 10).

It seems, however, that the issue of the possibility of pledging funds is unlikely to have a clear solution. It depends on the properties of the object of civil rights - money. They can be classified on two grounds: the state - the issuer of funds (here it would be appropriate to highlight the rubles of the Russian Federation and, in contrast to them, the currencies of all other states, uniting them under the general name “foreign currency”); form of existence (banknotes in their cash form and so-called non-cash money).

First, about the pledge of cash in the currency of the Russian Federation. In accordance with Art. Art. 27, 29 of the Law of the Russian Federation of December 2, 1990 " " (as amended. Federal Law dated April 26, 1995) and paragraph 1 of Art. 140 of the Civil Code, the official monetary unit (currency) of the Russian Federation is the ruble, which is the only legal means of payment on the territory of Russia. Cash issuance is carried out Central Bank Russian Federation in the form of banknotes (bank notes) and coins. It is obvious that cash in cash refers to things (movable property) in accordance with Art. Art. 128, GK. Based on this, according to the rules of Art. Civil Code cash in cash can be considered as a potential collateral item.

But logic dictates that the sale of the collateral in the form of Russian rubles in their cash form will be only a simple replacement of one banknote with another of the same nominal value. Meanwhile, the sale of the pledge is mandatory, since, as a rule, the pledgee does not have the right to retain it. Moreover, the agreement according to which, in the event of failure by the debtor to fulfill the obligation, the pledged item becomes the property of the pledgee, is invalid (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 22, 1996). Apparently, in such situations, a surety (guarantee) would be a more appropriate type of security for an obligation, if the pledgor is a third party and not the debtor.

At the same time, as A. Makovskaya rightly points out, “this conclusion is not entirely correct in relation to some special cases when cash banknotes can be sold and, therefore, can be used as a subject of pledge” (Makovskaya A.A. Pledge of Money and securities. M., 2000. P. 9). In this case we are talking about commemorative banknotes and other banknotes that have historical, cultural or other value, as a result of which their value differs significantly from the nominal value.

In accordance with the Instruction of the Central Bank of the Russian Federation dated December 27, 1995 “On the procedure for issuing commemorative coins into circulation in the Russian Federation” (as amended by the letter of the Central Bank of the Russian Federation dated March 12, 1996 and the instructions of the Central Bank of the Russian Federation dated December 19, 1997) to the concept “commemorative coins” include anniversary, commemorative, investment and other coins of special mintage, which are the currency of the Russian Federation, in the production of which expensive materials are used (in particular, precious metals), complex minting technologies and artistic design methods are used, giving commemorative coins specific properties and allowing them to circulate both as a means of payment at a nominal value, and as collectibles, investments, hoardings at a value other than the nominal value.

Pledge of such coins and banknotes makes sense, since their sale (in case of non-fulfillment or improper fulfillment of the main obligation) will be carried out according to the rules common to the institution of pledge.

Pledge of cash in foreign currency is completely legal, not only in relation to commemorative banknotes and other banknotes that have historical, cultural or other value, but also banknotes and coins that are a common means of payment in foreign countries and in the Russian Federation in cases established by law. The subject of pledge in the form of cash in foreign currency can be sold for rubles in the manner prescribed by the legislation on pledge.

The Central Bank of the Russian Federation also adheres to this position. So, in information message dated August 10, 2000 “Generalization of the practice of applying regulations of the Bank of Russia on issues of currency regulation” it is written that in accordance with paragraph 1 of Art. Civil Code, the subject of pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation. Article 128 of the Civil Code establishes that the objects of civil rights include, in particular, money. According to paragraph 1 of Art. 129 of the Civil Code, objects of civil rights can be freely alienated or transferred from one person to another in the order of universal succession or in another way, if they are not withdrawn from civil circulation or are not limited in circulation. Clause 9 section. 1 Basic provisions on regulation foreign exchange transactions on the territory of the USSR, approved by a letter of the State Bank of the USSR dated May 24, 1991, establishes that authorized banks have the right to provide loans to customers secured by currency values, which, in accordance with the Law of the Russian Federation “On Currency Regulation and Currency Control,” includes foreign currency. If the debtor refuses to fulfill the requirements for the return of received loans, currency values ​​are sold through authorized banks in the domestic foreign exchange market and the ruble proceeds from their sale cover the claims of creditors. However, the letter does not contain a mandatory condition according to which these loans must be provided in foreign currency. Thus, a pledge of cash foreign currency is possible when a bank provides loans to resident individuals authorized by the bank both in foreign currency and in rubles (see: Bulletin of the Bank of Russia. 2000. N 44).

Pledge of cash foreign currency is permitted subject to certain conditions. Firstly, the collateral must be individualized, without which the collateral agreement is considered unconcluded (this condition, however, is mandatory for all types of collateral). Secondly, when concluding a pledge agreement, it should be taken into account that the circulation of cash foreign currency on the territory of the Russian Federation is currently allowed in extremely limited cases and, in fact, only when one of the parties is an individual.

Thus, we can conclude that in certain cases, the pledge of cash does not contradict the current legislation of the Russian Federation and the clarifications of the Supreme Arbitration Court of the Russian Federation and is therefore completely acceptable in civil circulation.

An interesting and complex problem in the law of liens is the question of the possibility of funds. This problem was first resolved by the Supreme Arbitration Court of the Russian Federation in a resolution on specific case, the essence of which was as follows. Between commercial bank and CJSC were concluded loan agreements. To ensure the repayment of the loan, agreements on funds were concluded. The Supreme Arbitration Court of the Russian Federation recognized these agreements void for the following reason.

Refund of advance customs payments and cash deposit

- when exporting goods - from the moment of delivery customs declaration or taking actions directly aimed at exporting goods from the customs territory of the Russian Federation.

In accordance with Federal Law dated 04/09/2009 N 58-FZ “On Amendments to Budget Code of the Russian Federation and certain legislative acts of the Russian Federation" (hereinafter referred to as Law No. 58-FZ), advance payments must be paid to the account Federal Treasury and only in Russian currency.

Return of cash deposit

A way to ensure the payment of customs duties is a pledge, which provides for the deposit of funds into the cash desk or into the account of the customs authority. How to make a refund?

The return is carried out on the basis of an application from the pledgor and by decision of the customs authority into whose account the relevant funds were received. The pledgor's application can be filed within three years after the deposit has been posted.

Cash deposit

This is a method of ensuring the fulfillment of an obligation, in which the creditor (pledgee) acquires the right, in the event of failure by the debtor to fulfill the obligation, to receive satisfaction at the expense of the pledged property (Article 1 of the Law of the Russian Federation of May 29, 1992 No. 2872-1 “On Pledge”).

Bail in effect direct instructions law is classified as a means of ensuring the fulfillment of obligations and is accessory, additional legal relationship in relation to the main one.

Cash pledge agreement

In most cases, the lender's consent is likely only when a collateral agreement is drawn up with him to provide guarantees. The subject of the pledge, in accordance with Article 336 of the Civil Code of the Russian Federation, can be determined independently by the parties, but often money is used as a pledge.

It should be noted that, in accordance with the content of Article 130 of the Civil Code of the Russian Federation, securities and money are movable property, which makes it possible to use them.

Ensuring the payment of customs duties by depositing funds into the cash register or into the account of the customs authority in the federal treasury (cash deposit)

Depositing funds to the cash desk or to the account of the customs authority in the Federal Treasury (deposit) - next way ensuring payment of customs duties. This method Ensuring the payment of customs duties is devoted to Art. 345 Labor Code of the Russian Federation. Depositing funds to the cash desk or to the account of the customs authority as security for the payment of customs duties (monetary) is made in the currency of the Russian Federation or in a foreign currency, the rate of which is quoted by the Central Bank of the Russian Federation.

We provide a sample of the product against a cash deposit.

Sometimes businesses wholesale trade provide customers with samples of their products on deposit with subsequent return. In this case, there arises whole line questions.

What accounting entries and are such transactions documented? Do I need to pay VAT on deposits received? Do I need to punch a check when making a deposit at the cashier?

For legal registration issuance of goods for subsequent return, it can be recommended to conclude an agreement free use(loans).

Article 149. Return (offset) of cash deposit

1. The return of the money or its offset against advance payments is carried out subject to the fulfillment or termination of the obligation secured by the pledge, if an application for the return (offset) of the money is submitted by the person who made the pledge (his legal successor) to the customs authority within three years from the date following the day of fulfillment or termination of the obligation. Return (offset) of the collateral is also carried out if the obligations secured cash collateral, did not arise, while specified period filing an application for a refund (offset) of money is calculated from the day the customs authority issues a customs receipt.

Customs cash deposit

To ensure timely and complete payment of customs duties during certain customs procedures, the Customs Code of the Customs Union and the customs legislation of Russia provides for monetary payment as one of the measures. The essence of such security is to deposit funds into the accounts of the Federal Treasury.

Both individuals and legal entities.

Question: To ensure the fulfillment of obligations under the main agreement, the organization invited the bank to enter into a pledge agreement for the funds in its bank account. Is such a pledge legal at present and are there any plans to change the legislation on this issue?

Answer: Currently, pledge of funds is not allowed (except for cases expressly provided for by current legislation). However, if the Civil Code of the Russian Federation is adopted (as amended by draft federal law N 47538-6, adopted State Duma RF Federal Assembly in the first reading on April 27, 2012) such a pledge will be possible within the framework of a pledge of rights under a contract bank account.

Rationale: A pledge is a method of ensuring the fulfillment of an obligation, in which the creditor (pledgee) acquires the right to receive satisfaction from the pledged property in the event of the debtor’s failure to fulfill his obligation (Article 1 of the Law of the Russian Federation of May 29, 1992 N 2872-1 “On Pledge”). The subject of the pledge can be things, securities, other property and property rights. Claims of a personal nature, as well as other claims the pledge of which is prohibited by law (clause 2 of Article 4 of RF Law No. 2872-1) cannot be the subject of a pledge. Thus, the legislator did not directly establish a ban on the transfer of funds as collateral.

The position on the inadmissibility of such collateral is supported arbitration practice, which has developed a uniform interpretation and application arbitration courts current legislation regulating collateral relations. Thus, in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 2, 1996 N 7965/95, it is noted that funds cannot be the subject of pledge based on the essence of the pledge relationship. Accordingly, the disputed pledge agreements are invalid by virtue of Art. 168 Civil Code of the Russian Federation.

Paragraph 3 of the Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge (approved by Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26), contains a provision that the subject of pledge cannot be defined as money located in a bank account.

The court came to this conclusion, taking into account the requirements of Art. Art. 334 and 349 of the Civil Code of the Russian Federation, according to which, by virtue of a pledge, the creditor of the obligation secured by the pledge (pledgee) has the right, in the event of failure by the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property. Satisfaction of requirements is carried out by selling the pledged property at public auction with the proceeds being used to repay the debt.

One of the essential features of a property pledge agreement is the possibility of selling the pledged item. Coming from nature non-cash money they cannot be pledged according to the rules governing the pledge of things; accordingly, pledge of funds in the client’s bank account is not allowed.

A similar position could be seen in other decisions of arbitration courts (FAS Resolutions Ural district dated May 20, 2009 N F09-7427/08-S6, FAS Moscow District dated July 18, 2003 N KG-A40/4624-03, etc.).

At the same time, the legislation provides for more and more deviations from the position developed by arbitration courts. In particular, part 4 of Art. 29 of the Federal Law of July 21, 2005 N 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for government and municipal needs” provides for a pledge of funds (including in the form of a contribution (deposit)) as one of the ways to ensure the execution of a state or municipal contract.

Article 145 of the Federal Law of November 27, 2010 N 311-FZ “On Customs Regulation in the Russian Federation” provides for the possibility of ensuring payment customs duties and taxes by cash collateral (previously, the institution of cash collateral was regulated by Article 345 of the Customs Code of the Russian Federation). In case of failure to fulfill the obligation secured by such a pledge, the amounts of customs duties, penalties, and interest payable are subject to collection by the customs authorities from the amounts of the cash pledge transferred to the account of the Federal Treasury.

Part 3 Art. 27 of the Federal Law of December 2, 1990 N 395-1 “On Banks and banking”(taking into account the amendments made by Federal Laws of June 27, 2011 N 161-FZ “On National payment system” and dated June 27, 2011 N 162-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On the National Payment System”) provides that, on the basis executive documents in accordance with the legislation of the Russian Federation, collection may be made on funds and other valuables of individuals and legal entities held in accounts and deposits or stored in a credit institution.

Taking into account that the pledge of funds can be one of the most popular and reliable ways to ensure the fulfillment of obligations, the Development Concept civil legislation of the Russian Federation (approved by the Decision of the Council under the President of the Russian Federation on the codification and improvement of civil legislation dated October 7, 2009) provided for the possibility of using such a mechanism for increasing the credit quality of securitized debt and reducing investor risks as a pledge of rights under a bank account (deposit) agreement.

The practical implementation of this idea is reflected in the provisions of the Civil Code of the Russian Federation (as amended by draft federal law N 47538-6, adopted by the State Duma of the Federal Assembly of the Russian Federation in the first reading on April 27, 2012). In particular, this bill proposes detailed regulation of the pledge of rights under a bank account agreement, the pledge holder of which may be, among other things, the bank that has concluded such a pledge account agreement with the client (pledgor).

The subject of the pledge may be rights under a bank account agreement, provided that the bank opens a pledge account for the client.

If the bank receives written notice mortgagee about non-performance or improper execution a debtor of an obligation secured by a pledge, the bank does not have the right to execute orders of the pledgor, as a result of which the amount of funds in the pledge account will become less than an amount equivalent to the amount of the secured obligation specified in the pledge agreement. When foreclosure on pledged rights under a bank account agreement in court or in out of court the pledgee's claims are satisfied by debiting the bank, on the basis of the pledgee's order, of funds from the pledgor's pledge account and issuing them to the pledgee or crediting them to the account specified by the latter.

Thus, the currently dominant dogma, supported by arbitration practice, is the inadmissibility of pledging funds held in a client’s bank account. At the same time, in established by law(about enforcement proceedings, about the national payment system, customs legislation and other) cases, the possibility of using such a pledge and the procedure for its implementation are regulated specifically. If the Civil Code of the Russian Federation is adopted (as amended by draft federal law N 47538-6), one of the main ways to ensure the fulfillment of obligations may be a pledge of rights under a bank account agreement.

An interesting and complex problem of collateral law is the question of the possibility of pledging funds. This problem was first resolved by the Supreme Arbitration Court of the Russian Federation in a ruling on a specific case, the essence of which was as follows. Loan agreements were concluded between the commercial bank and the closed joint-stock company. To ensure the repayment of the loan, agreements were concluded to pledge funds. The Supreme Arbitration Court of the Russian Federation declared these agreements invalid for the following reason. Pledge is a way of securing an obligation in which the creditor (pledgee) acquires the right, in the event of failure of the debtor to fulfill the obligation, to receive satisfaction from the pledged property. In this case, satisfaction of the requirements is carried out by selling the pledged property at public auction with the proceeds being used to repay the debt. Thus, one of the essential features of a pledge agreement is the possibility of selling the collateral. Cash, and especially in non-cash form, does not have this characteristic. Thus, based on the essence of collateral relations, funds cannot be the subject of collateral (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07/02/1996 N7965/95).
In a later review on the pledge, the court did not abandon the previously expressed opinion that the conclusion of a pledge agreement for funds is impossible, since the money cannot be sold at public auction, which is mandatory for the subject of the pledge. However, the court somewhat softened the rigor of its previous position and indicated that they cannot be pledged according to the rules on the pledge of things (see information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N26 “Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation Federation on Pledge”, clause 3).
However, district practice on the issue under study is not so clear.
There is an array cassation decisions, in which the position of the Supreme Arbitration Court of the Russian Federation is fully supported by the district courts. For example, these are some of the cases considered by the FAS DO (see resolution dated November 12, 2004 NF03-A73/04-1/3221) and the FAS MO (see resolutions dated February 11, 1999 NКГ-А40/45-99, dated July 18, 2003 NKG-A40/4624-03). The conclusions made by the courts in these cases are as follows: funds cannot be the subject of collateral. However, the practice of the Federal Antimonopoly Service of Moscow Region on the issue of pledging funds is unstable. Let's give a few examples.
In one of the cases, the district court, which discussed legal nature agreement for the pledge of funds, spoke as follows. Considering cassation appeal on the decision appellate court, by which the cash pledge agreement was declared invalid, the district court canceled the judicial acts on the case and sent the case for a new trial. The district court found that, while recognizing the impossibility of making bail in cash, the appellate court did not analyze the provisions contained in Articles 128, 130, 140 of the Civil Code, in the light of the consistency of such a conclusion current legislation, including Article 336 of the Civil Code (see resolution of the Federal Antimonopoly Service of the Moscow Region dated September 15, 2000 NКГ-А40/4122-00).
In another similar case, the FAS Moscow Region (see resolution dated September 15, 2000 NКГ-А40/4120-00) suggested lower court discuss the issue that a cash pledge agreement by its nature represents a method of security, not statutory(Article 329 of the Civil Code).
It seems that it is the last thesis (“pledge” of money – another way of securing) that is the most acceptable both theoretically and practical point vision. The “collateral” of funds fits well with the known Anglo-Saxon law and international trading practices the concept of “liquidated damages”, the amount of which is previously deposited with the obligee of the obligation. Reasons in principle to deny such agreements legal force, in our opinion, absolutely not.
364. What is the scope of the claim secured by the pledge?
In accordance with Article 337 of the Civil Code, unless otherwise provided by the contract, the pledge secures the claim in the amount it has at the time of satisfaction, in particular interest, penalties, compensation for losses caused by delay in performance, as well as compensation necessary expenses the pledgee for the maintenance of the pledged property and the costs of collection.
A very interesting question is what percentage the legislator had in mind in the specified norm. In a recent case considered by the Supreme Arbitration Court of the Russian Federation in the supervisory order, the following conclusion was made: within the meaning of Article 337 of the Civil Code, the requirement to pay interest for the use of someone else’s money in accordance with Article 395 of the Civil Code is not a claim secured by a pledge (see the resolution of the Presidium of the Supreme Arbitration Court RF dated July 25, 2006 N4020/06). This approach contradicts the prevailing judicial practice a completely correct view of the interest established by Article 395 of the Civil Code as a legal penalty (see a comment to the practice of applying Article 330 of the Civil Code o legal penalty) and therefore seems incorrect.
Courts sometimes allow misinterpretation of the provisions regarding the composition of the claims secured by the pledge and the contractual valuation of the subject of the pledge. For example, in one of the cases the arbitration court recognized that the requirements for insolvent debtor secured by a pledge are subject to inclusion in the queue of secured creditors only to the extent that corresponds to the valuation of the property transferred as pledge. The remaining part of the claim is subject to inclusion in the queue of other creditors. Court of Cassation the determination of the inferior was canceled and decided to include the requirement secured creditor to the bail queue in full. At the same time, the court explained that the court’s conclusion that the amount of fulfillment of the obligation secured by the pledge is determined through given by the parties assessment of the pledged property contradicts the above norms of civil legislation on pledge. The terms of the pledge agreement on the assessment of the subject of pledge and the amount of the obligation secured by the pledge are independent and do not depend on each other (see resolution of the Federal Antimonopoly Service of the Russian Federation dated December 5, 2003 NА79-5042/2002-SK1-4366).

IN banking practice and, in particular, in interbank lending, the so-called financial collateral agreement has become widespread.

The essence of this agreement is that the funds in the bank account become security for the fulfillment of the obligations of the owner of such an account or a third party (debtors), and in the event of failure to fulfill such an obligation, the creditor has the right to write off these funds from the account without acceptance to repay this obligation. In this case, funds can be in the account both on the basis of a bank account agreement and an agreement bank deposit(deposit). Often the creditor is the bank itself where the account is opened.

This contractual structure corresponds to the structure of the pledge agreement, where the direct debiting of funds from the account represents an extrajudicial foreclosure of the collateral.

Despite the apparent simplicity of such contractual design, when using a financial collateral agreement in practice, obstacles arise. Thus, the explanation contained in paragraph 3 is still in effect. Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26 “Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge.” According to this clarification, the collateral cannot be defined as “money held in a bank account.”

Until now, arbitration courts believe that funds held in a bank account cannot be the subject of collateral. This follows, for example, from the decisions of the Federal Antimonopoly Service of the Moscow District dated March 7, 2013 in case No. A40-37272/12-47-341, dated October 24, 2012 in case No. A40-80329/11-24-418, dated 2 April 2008 in case No. A40-59657/06-82-385 and dated July 18, 2003 No. KG-A40/4624-03. Such judicial practice The Bank of Russia is also guided by the fact that in its letter dated August 17, 2011 No. 18-1-2/9/1064, at the request of the Association of Russian Banks, it directly indicated the prohibition of using non-cash funds as collateral. Therefore, we can come to the conclusion that the financial collateral agreement is an invalid (void) transaction.

However, there are reasons to doubt the correctness of this conclusion at the present time. Firstly, in paragraph 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 14, 2009 N 128 “Review of the practice of consideration by arbitration courts of disputes related to challenging transactions on the grounds provided for by the Federal Law “On Insolvency (Bankruptcy)”” it is explained that the owner of a bank account is a creditor of the bank in relation to the funds in the account; in relation to these funds, the account owner has the right of claim against the bank. In connection with this, the funds in the account (non-cash funds) are not things, but rights of claim (property). rights) of the account owner to the bank. Property rights are an independent object of civil rights (Article 128 of the Civil Code of the Russian Federation). "On Pledge" (hereinafter referred to as the Pledge Law), property rights can be an independent subject collateral Property rights have economic value and can be realized on public auction(Article 89 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”). That's why legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in paragraph 3 of Information Letter No. 26, does not in itself prevent the pledge of funds in the account, precisely as property rights account owner.

Secondly, the conclusion about the inadmissibility of pledging funds held in a bank account was made by the Presidium of the Supreme Arbitration Court of the Russian Federation on the basis that they cannot be the subject of a purchase and sale agreement and therefore cannot be sold at public auction if foreclosure is applied to them . It seems that this conclusion was made by the Presidium of the Supreme Arbitration Court of the Russian Federation due to the fact that the legislation of the Russian Federation in force at that time (1998) did not provide for the possibility of transferring the subject of pledge into the ownership of the pledgee.

Meanwhile, currently in sub. 1 clause 3 art. 28.1 of the Law on Pledge provides that in an agreement on the pledge of movable property, which provides for an extrajudicial procedure for foreclosure on the pledged movable property and whose parties are legal entities and (or) individual entrepreneurs, to secure obligations related to entrepreneurial activity, the parties may provide for the pledgee to retain the subject of the pledge for himself. Write-off by a creditor without acceptance on the basis of a financial collateral agreement of funds in a bank account is a case when foreclosure on the collateral is carried out extrajudicially by leaving the collateral for the pledgee.

As a result, the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in paragraph 3 of Information Letter No. 26, is based on the expired legislation of the Russian Federation on pledge and is therefore not relevant. Thus, the possibility of concluding a financial collateral agreement should in principle be allowed.

At the same time, it is necessary to take into account that without normative support special regime collateral account, the financial collateral agreement is quite risky for the pledge holder. Thus, a financial collateral agreement may prohibit the pledgor from disposing of funds in a bank account without the consent of the pledgee.

Meanwhile, according to Art. 858 of the Civil Code of the Russian Federation, restriction of the client’s rights to dispose of funds on the account is not allowed, with the exception of the seizure of funds on the account or suspension of operations on the account in cases provided for by law.

Therefore, despite established by contract financial collateral prohibits the disposal of funds in a bank account; the account owner will be able to dispose of such funds and the bank will not be able to prevent this. Moreover, the owner of the bank account has absolute right terminate the bank account (deposit) agreement at any time and demand the release of the balance of funds in the account. This is stated in paragraph 1 of Art. 859 of the Civil Code of the Russian Federation.

The mortgagee, which is the bank in which the bank account is opened, is in a more secure position. By virtue of Art. 858 of the Civil Code of the Russian Federation, the bank will not be able to prevent the account owner from managing the funds in the account. In this case, the bank’s request for direct debit of funds from the account will be fulfilled in general procedure, provided for in paragraph 1 of Art. 855 of the Civil Code of the Russian Federation - in calendar order, that is, after the execution of the pledgor’s order to write off funds from the account.

Vladislav Ganzhala, partner law office"Line of Law"