It is known that in order to make a payment, in general, the bank requires the consent of the payer. Such confirmed consent to payment is called acceptance. There are exceptions to this rule when the bank, without waiting for acceptance, debits funds from the account. Let's consider cases when direct write-off may occur, as well as the mechanism for carrying out such operations.
Question: In what cases is a bank allowed to write off funds without acceptance from an account? View answer
Letter of the law
The conditions for debiting funds from the client’s account by the bank are regulated by Art. 854 of the Civil Code of the Russian Federation. There can be two cases:
- The client accepted the creditor's payment request as correct and payable. An instruction is given to the bank to write off the amount of the payment request from the account.
- Funds can be written off without an order from the account owner.
Question: What conditions should the client’s agreement with the bank contain on the direct debiting of funds from his account in favor of the counterparty? View answer
The article names three reasons for this write-off:
- court decision;
- a certain legislative norm;
- a condition specified in the agreement with the bank when opening a bank account.
On a note! In banking regulations you can find two terms: “direct write-off” and “undisputed write-off”. In essence, they are the same, but differ in the types of bank documents when executing a payment (payment request and collection order, respectively). The application of both documents is reflected in legislative norms, the number of which is quite large, and classification is difficult. In practice, the differences are important primarily for bank employees.
Having considered the provisions of Art. as a whole. 854 of the Civil Code of the Russian Federation, let's move on to a detailed analysis of three situations of writing off funds without acceptance.
Question: Is it legal for a bank to write off overdue debt without acceptance from the account of a borrower - an individual? View answer
Causes
The reasons are most often quite banal. These may include overdue debt on bank loans, unpaid alimony, fines, taxes, and so on. Naturally, people are different, some simply do not want or cannot pay such mandatory payments. To be fair, it should be noted that banks, courts and other interested parties first of all try to come to an agreement on good terms. And only then, when it becomes clearly clear that the debtor does not compromise and refuses to negotiate, more stringent measures follow.
Conditions for direct debiting of funds
The condition is stated in the bank account agreement
This condition stipulates that the client agrees in advance to the credit institution writing off money. If the recipient of the money is a bank, the transaction is executed by bank order (Regulation of the Central Bank of the Russian Federation No. 383-P dated 06/19/12, clause 9.3). Here we are talking about bank commissions and similar payments. A similar procedure can be included directly in the text of the agreement, an additional agreement to the agreement, or a separate agreement between three parties: the bank, the account owner and the account owner’s creditor. In other words, the agreement can stipulate the possibility of withdrawing money from the account in favor of certain counterparties. The payer is obliged to provide the bank in advance with information about the recipient who can expect to receive funds without acceptance; about goods, works, services that can be paid for.
Question: The client (LLC) sent two payment orders to the bank to transfer funds to an individual entrepreneur with the purpose of payment “Payment under the loan agreement.” In order to comply with the requirements of Federal Law dated August 7, 2001 N 115-FZ and within the framework of applying internal control rules, the bank sent a request to the client to provide information and documents relating to the payment transactions of the LLC. Bank in accordance with clause 11 of Art. 7 of Law N 115-FZ refused to execute the client’s orders to carry out transactions. The client sent an application to the bank to close the bank account and transfer the balance of funds to another bank. The bank closed the client's account, transferred the funds to another bank and wrote off the commission for closing the account without acceptance in accordance with the bank's tariffs, as it recognized this operation as doubtful. Are the bank's actions legal? View answer
Write-off is subject to legal norms
The law also provides many reasons for debiting funds without the prior consent of the account owner. For example, Federal Law No. 164 dated 10/29/98, in pursuance of the rights of the lessor, allows the write-off of funds without the consent of the lessee from the latter’s account if he is late in leasing payments more than twice in a row (Article 13). It is enough to send an order to write off funds to the bank, and the operation will be carried out.
Question: What conditions should an agreement between a creditor and a debtor-organization contain on the direct debiting of funds from the latter’s bank account according to the documents presented by the creditor? View answer
Tax Code of the Russian Federation Art. 46 allows for non-payment or incomplete payment of tax to apply a compulsory procedure to the taxpayer. Collection is applied to funds stored in bank accounts, with the exception of some special accounts. Banks execute such orders without conditions.
A court decision has been made
Here, the write-off of funds is justified, first of all, by Federal Law-229 dated 02/10/07 “On Enforcement Proceedings”. The types of executive documents are determined by Art. 12, in particular:
- writs of execution;
- court orders;
- agreements on the payment of alimony, notarized documents or copies thereof;
- documents of the labor commission for dispute resolution;
- judicial and other acts in cases of administrative offenses;
- decisions issued by the bailiff service, etc.
Here, too, there is an indisputable collection of funds, and the collection algorithm is determined not by the bank, but by the collector.
other information
The nuances of a bank account agreement and its additional conditions, as a rule, are agreed upon at the stage of acceptance of the document and rarely cause disputes. Another matter is the application of federal legislation and the execution of court decisions. For example, Art. 12 FZ-229 talks about acts of control bodies, which include the Federal Tax Service. Write-offs can be carried out on the basis of their executive documents.
The inspectorate issued a collection order: is this document an executive document, or is it classified as a payment document? In other words, is the bank obliged to fulfill it without having a tax authority’s resolution, guided only by a collection order? Careful consideration of Art. 47 of the Tax Code of the Russian Federation leads to the conclusion that the order in this case is a settlement document. For direct withdrawal of funds, a decision from the head of the Federal Tax Service is required.
Let us note that legal disputes regarding the constitutionality of the rules allowing money to be written off from the debtor’s account without the consent of the debtor, guided by the will of the control authorities, still arise today; after all Art. 35 of the Constitution of the Russian Federation (Part 3) says that the seizure of property is, in principle, allowed only by court decision. Norms Art. 854 of the Civil Code of the Russian Federation and the provisions of various Federal Laws adopted in their development allow many cases of debiting funds from an account without a court decision and without the consent of its owner.
Forms of expression of acceptance
Now it is difficult to imagine that the person concluding an agreement will go out into the middle of the square and solemnly inform those around him of his intention. Over the centuries, the forms of expression of acceptance have changed. Nowadays, acceptance is consent, expressed in writing or in another way. Let's look at how to correctly accept an offer:
- Written acceptance. This is the name given to sending a written notification of acceptance to the opposite party or directly signing the agreement as a document. You were provided with an agreement form - you signed it. It's simple. By the way, the written form implies not only the execution of a single contract form. Written acceptance is considered received if a scan of the document is transmitted via email, fax, telex, or other modern communication channels.
- Public form of acceptance. A new method that allows you to confirm your consent to an offer made to an unlimited number of people. Examples of a public offer are goods in a store, contracts posted on websites, vending machines. When purchasing in an online store, you will accept (agree with the public offer) when you check the special box on the site. This way you confirm your agreement with the terms of sale and the properties of the selected product.
- Actual actions of the person for whom the offer is intended. In some cases, you can express your consent to the terms of the contract at the time of performing certain actions. If you bought a ticket to travel on a bus, you have agreed to the terms and conditions for the carriage of passengers. We filled out the guest card at the hotel - in fact, we accepted the rules of living in it.
- Conclusive actions of a person. This is the behavior of a party that shows its desire to enter into an agreement. An excellent example of such actions is paying a received invoice. Regardless of the conclusion of a paper contract, the person who paid the invoice agrees that the goods or services specified in the invoice will be provided to him.
Sometimes a dispute arises about how to speak correctly - to accept or to accept. The meaning of the word “accept” is similar and means the same thing as “accept”. The common verb is to accept.
What cannot be called acceptance
Acceptance is always acceptance of the offer in full and without reservations or reciprocal actions. Lack of action on the part of the party to whom the offer is directed cannot be considered acceptance. You did not receive a response, which means your offer was not accepted.
Let's imagine that you are entering into a contract for the installation of plastic windows. The surveyor determined the parameters of the future window, calculated its cost and left you with a contract to sign. So, until you sign the contract and hand it over to the company’s employees, they will not begin manufacturing and installing the ordered products. And all because you did not give your acceptance to their offer (agreement) (you did not sign or hand over the document).
Sometimes the party who received the offer is not satisfied with something and wants to change the terms of the contract. Such actions are considered a refusal of acceptance and a new offer. Let's say that in the previous example you did not sign the contract, but came to the office and chose a new profile and fittings for the windows. This will also be regarded as a refusal to accept.
Bankers' acceptances
The main purpose of bank acceptance is to guarantee the reality of the transaction and compliance with all its conditions. The parties can conduct transactions with bank acceptance while being not only in different cities, but also in different countries. The bank guarantees financial security.
Most often, bills of exchange are used in such transactions. A promissory note is an obligation of a debtor to pay an agreed sum of money within an agreed upon time. The bank accepts the bill - that is, it confirms that the payer has money that will actually be paid after some time.
When paying with bills of exchange, there are several types of acceptance:
- guarantor - a bank or a third party undertakes the obligation to execute the bill payment;
- intermediary - a third party is ready to take responsibility based on the terms of the contract;
- unconditional - the party accepting the bill fully and without reservation agrees with all the terms of the transaction;
- conditional - the parties establish the conditions under which the bill will be accepted; if the conditions are not met, the contract is canceled;
- local – when the fee is paid in a strictly defined place;
- limited - the party that accepts the bill is ready to accept it, but minor changes in the terms are required (for example, changing the timing of payment of the bill).
Acceptance of a bill gives confidence that all terms of the transaction will be met and speeds up the transaction.
Requirements for acceptance
In business document flow, special rules and requirements for acceptance are established:
- Acceptance of the offer must repeat its terms; changing the clauses of the contract is unacceptable;
- You cannot violate the deadline set for acceptance. In cases where no time period is specified, a reasonable period of time is considered acceptable. In business, a period of one month is considered reasonable. Usually this time is enough to think and send consent to acceptance or refusal to partners;
- If a written offer is received, the acceptance must also be formalized in the form of a response letter or agreement;
- Revocation of acceptance is possible. However, the offeror must receive notice of the revocation before or at the same time as the acceptance. For example, you are in St. Petersburg, and your partners are in Kazan. Having received the contract from them, you accepted it and sent it by courier service. Mail delivery time is 3 days. For some reason, the next day you change your mind. Send your revocation of acceptance by email or telegram. Thus, the offeror will receive a refusal to accept before the signed contract itself.
