Договір позики: спірні питання форми та предмета
The Loan Agreement: to the question of controversial issues of form and subject

Summary/Abstract: Problem setting. Often at the conclusion and realization of the loan agreementarise disputes about the form and the possibility of usage as a subject of the contractthe foreign currency.Relevance of the research topic. The lack of unity in the theory and practiceof legal regulation of the form of the loan and its subject, requires further scientificresearch of its individual provisions.Recent research and publications analysis. The research of the legalregulation 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 formand subject matter of the loan agreement nowadays remains without proper legalassessment.Paper objective. The research and analysis of the provisions of the currentlegislation of Ukraine and judicial practice on the form of the loan agreement,documented conclusions and its conditions, and the ability to use foreign currency asthe subject of the loan agreement.Paper main body. The legal nature of the loan agreement was considered. Theagreement determines the transfer of the ownership of borrower money or otherthings, with the generic characteristics under the obligation to return the same amountof money (the loan amount), or the same amount of things of the same kind andquality. 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 ofcreditor a sum of money or a certain number of things is important documentaryevidence of the transfer of the loan. The usage of hand receipt goes beyond the scopeof the loan agreement. It can be confirmed not only by the fact of transfering thefunds or property, but with the fact of performance of the obligation. For the storagehand receipt can replace the contract.The point of view of some authors, supported in some cases by judicialpractice, that hand receipt replaces a written loan agreement was disproved because itis neither a loan agreement concluded in written form, no deal. The hand receipt isonly written confirmation of the loan agreement, its terms and conditions.It is confirmed that the use of foreign currency in Ukraine is allowed in casesestablished by law. It was argued that the transfer of foreign currency loan is not anobligation and does not require an individual license of the National Bank of Ukraine.Therefore, the transfer of foreign currency loan does not contradict Ukrainianlegislation. Execution of the Borrower's obligations under the loan agreement, thesubject of which is foreign currency carried out in local currency at the exchange rateof the National Bank of Ukraine. Inflation rate determines the level of depreciation ofthe purchasing power of the national currency of Ukraine - UAH. Therefore, thesubject of indexation is - hryvnia.Conclusions of the research. Hand receipt is the only proof of the conclusionof 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 inlocal currency at the official rate for the day of return. Foreign currency, which is thesubject of the loan agreement, is not the subject of the indexation.

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