Analysis of the decision of the Supreme Court of Ukraine in case No. 524/4946/16-ts dated 08.07.2019, is answering the question of what should be recorded in the IOU so that the debt repayment is not in question. Professional legal advice – to everyone who borrows and lends!
Debt situation initially
The citizen applied to the court with a claim to collect the debt according IOU – almost half a million hryvnias. he lent a friend for 1 month, but he did not return it.
The court of first instance (appeal instance also) dismissed the claim, citing the decision by the absence of an obligation to return the funds in the receipt.
The plaintiff appealed against the refusal of the courts to the Supreme Court of Ukraine, referring to the fact of improper examination of the IOU and to the fact that the defendant did not apply for an examination in order to identify the signature.
In addition, the plaintiff asked the Supreme Court of Ukraine not to take into account the fact that the debtor was registered at the drug dispensary, since, in his opinion, this does not relieve the latter from the obligation to repay the debt.
The Ukrainian Supreme Court examined the case materials. The fact of writing a IOU stating that the defendant received money from the plaintiff for a month was established, but the cassation appeal was refused, since …
“The legal analysis of the IOU showed that it was impossible to establish from its content whether the defendant received money from the plaintiff precisely on loan, since it does not spell out the obligation to repay the loan. The Supreme Court of Ukraine also took into account the words of the defendant that he did not receive any money in fact, but wrote a receipt to settle the issue of alienating his apartment in favor of the plaintiff.”
The decisions of the courts remained in force!
The Supreme Court of Ukraine gave to debtors and creditors valuable advice on how to properly draw up a IOU so that debt collection on it would not be a problem.
- In general, under a loan agreement, the lender transfers money to the borrower, which the latter undertakes to return.
- The agreement acquires the status “concluded” at the time of transfer of money (Article 1046 of the Civil Code of Ukraine).
- The IOU confirms the fact of the conclusion of the transaction, certifying the transfer of money (Art. 1047 GKU).
- It follows from this that the written form of the contract confirms not only the fact of its conclusion, but also the fact of transfer of money.
- Transaction – an action aimed at acquiring, changing or terminating civil rights / obligations, can be one-, two- or multilateral (Article 202 of the Civil Code).
- Written transaction – a transaction documented and signed by the parties or one of them (parts 1 and 2 of article 207 of the Civil Code).
- The loan agreement is a unilateral transaction, since under it the lender acquires only rights, and the borrower only obligations.
- A IOU, in essence, is a document provided by the debtor to the creditor under the loan agreement, fixing the fact of its conclusion, the conditions and the fact of receiving funds on loan.
- The obligation to return the loan under any debt document within the time frame and in the manner prescribed in this document is established by law (part 1 of article 1049 of the Civil Code of Ukraine).
The courts, based on the presence of the above grounds, establish the existence of legal relations between the parties to the dispute under the loan agreement, determining the validity and “authenticity” of the document – the evidentiary basis for the existence of an agreement.
