Babaskin A. On the issue of determining the subjection of the parties to the obligation to provide a commercial loan under the civil law of Ukraine
Unlike a loan agreement, Article 1057 of the Civil Code of Ukraine, as well as other articles of the said Code, regulating commercial loans in certain civil contracts, as a rule, do not contain special requirements regarding the subject structure of such agreements. Since, according to most civilians, commercial loans are not a separate contract, but are only a condition for a paid civil contract, the subjective composition of the parties to such an agreement is determined by the norms of the Central Committee of Ukraine, which regulate the relevant civil agreement. Thus, the civil law of Ukraine does not contain special requirements to the subject structure of certain types of civil contracts with the terms of commercial credit. Among the scientists there is a solid perception that only legal entities or individuals - entrepreneurs can act as subjects of commercial lending. This is due, in particular, to the fact that in itself the notion of commercial credit contains the word “commercial”, which in turn comes from the notion of commerce (from Latin commercium - trade), “merchant” (from the French - commercant), “commercial activity « Given this, it can be assumed that the term commercial in its direction tends to entrepreneurial activity.
Since at present commercial credit can be extended to a wide range of civil obligations that can formally correspond to the features enshrined in Article 1057 of the Civil Code of Ukraine, which may complicate the application of these norms in practice, according to the author, the scope of the term “commercial credit” should be distinguished more clearly. To this end, it is proposed to amend Article 1057 of the Civil Code of Ukraine by establishing in it that it is a question of agreements, agreements between business entities.
When considering the subject of the obligation of commercial credit, the author also denies the possibility of assigning such types of commercial credit as a prepayment or subscription to financial services, according to which the subject restrictions on the provision of financial services can not be applied to these relations. The author also denies the possibility of assigning to a commercial loan commitments that arise between a business entity and a consumer arising from the sale and purchase contracts, which are concluded on the terms of installment payment with payment of interest.
Key words: credit, commercial loan, obligations, entrepreneur, interest.