The loan agreement and differences with the credit
The Loan Contract , according to its civil definition, is one by which one of the parties gives the other something to use for a certain time and return it to them . Depending on the nature of the thing borrowed, it will be called Comodato (for non-fungible things) or properly Loan (for fungible things or money).
Both in the case of the Comodato (essentially free), and in the Loan (where you can agree on the collection of interest), there will always be an obligation to return the thing received or something of the same kind and quality, the latter in the case of the loans. (CC Article 1.740)
The above definition is a real notion that can be substituted by a consensual (contractual) notion: by which it is understood that the Borrower undertakes to receive a fungible thing from the Lender, in order to return another of the same kind and quality. This loan concept is valid for both civil and commercial loans.
For a loan to be commercial, the double circumstance is required :
(1) one of the contracting parties is a merchant and (2) that the things loaned are destined to acts of commerce (CCO Article 311).
The jurisprudence admits that bank loans have the nature of commercial loans.
Characteristics of the Loans:
- It can be real or consensual.
- The consensuality of the contract conditions that the loan implies obligations for the two parties involved.
- It is a translatory domain contract, this means that in the act of delivering the things given on loan,
this happens to be the one that receives them (borrower).
The lender acquires a right of credit.
For the purpose of its classification, the Commercial Code makes the distinction between :
(a) loans in cash, securities or in kind,
(b) free or expensive (whether or not interest has been agreed) and
(c) guaranteed or without special guarantee.
Essential content of the Contract
The main obligation of the LENDER is the delivery, in the agreed form and moment, of the fungible thing, to the fulfillment of this obligation the obligations of the BORROWER are linked.
The BORROWER has the Obligation of restitution of the fungible thing , to which the Credit Right that the LENDER will have is linked.
The aforementioned restitution obligation is understood as deferred compliance that will expire at the agreed time and otherwise 30 days from the date of the notarial request (for indeterminate loans).
The enforceability of compliance with the obligation will always start when the obligation expires. However, the parties may agree that, in certain circumstances, the expiration date (eg in the case of non-payment of interest).
The obligation to pay interest will be required as long as it has been agreed between the parties, although in the commercial sphere the normal is the existence of interests and as a general rule the legal interest of the money is used . Any benefit agreed to in favor of the creditor will be considered as an interest (Articles 314 and 315). Past-due and unpaid interest will not accrue interest, although the capitalization of liquid and unpaid interest can be agreed upon.
In the formalization of commercial loans is usually agreed the constitution of a certain guarantee, in favor of the Lender , to ensure compliance with the obligation and be covered for possible eventualities.
The loan will be civil or commercial depending on whether it fulfills the aforementioned characteristics and not on the basis of whether the guarantee granted is civil or commercial. However, the loan made with security of transferable securities admitted to trading on an official secondary market, made in Public Deed with the intervention of a notary, will always be considered commercial.
Difference of the loan and the policy
The policy contract that has been extrapolated from the financial and banking areas to the business sector, is essentially very similar to the commercial loan agreement, its fundamental differences lie in the following:
In the Loan, the Lender delivers a quantity of money directly and in a single moment to the Borrower, which constitutes the borrowed capital, existing the obligation of its reimbursement in a set period, either in full or by installments, to the fractionation assumption establishes the amounts to be paid.
In the Credit Policy, the Lender makes available to the Borrower a certain amount of money, amount on which the Borrower may dispose, in one or several takes, according to his needs . The Lender will make the deliveries in the measure that the Borrower requests, until reaching if necessary the total amount of the amount agreed as capital.
There is also the obligation to reimburse all amounts arranged, but you can agree to the return in one or several installments, provided that the maximum period established as expiration of the policy is not exceeded.
Both in the commercial loan and in the credit policy, interest is charged to the Borrower, with the basis of calculation, conditions of the accrual, liquidation and formalities agreed upon by the parties. The payment of interest will be subject to legally established withholdings.