Právní problematika úvěrové smlouvy

The article deals with one type of a contract which is extensively used by practicing businessmen – the credit contract. This contract represents a specific category which essentially differs from the contract of loan similar as it may appear. Unlike the loan contract, the credit contract is not conceived as a real contract but as a consensual contract. For its conclusion, a mutual agreement of the contracting parties about the terms of the contract suffices under section 269 (1) of the Commercial Code and, at the same time, the money may not have exchanged hands. As it follows from the fundamental provision of section 497 of the Commercial Code, the terms of the credit contract involve an obligation of one party (the creditor) to provide another party (the debtor), at his request, with monetary resources up to a specific amount and an obligation of the other party to pay back the provided monetary resources with interest. This delienation makes it obvious that it is not possible to make an interest-free credit contract. Such a contract would be the contract of loan by its nature and it would set up a relationship regulated by the provisions of the Civil Code (ss. 657 and 658). In contracting a credit, the so-called credit conditions set down by the banks are of considerable importance. They are commercial terms by their nature under section 273 of the Commercial Code. Since they are usually not general commercial terms their provisions become part of the respective contract on condition that they are reffered to by the contract or they are attached to the draft of the contract or they are known to the contracting parties. In a contract which has already taken effect, they can be altered only upon the consent of the other party to the contract. This consent may, however, be included in the contract beforehand while it is drawn up. There are sometimes doubts whether the contracting party who undertakes to provide the credit can only be a bank or whether this could be another person as well. With regard to the wording of the Act on Banks as well as section 497 of the Commercial Code, we can conclude that providing credits is not exclusively a matter of banks. However, a person other than a bank could carry out this activity only as a business activity in the sense of s. 2 (1) of the Commercial Code and do so on the basis of the appropriate licence. Under these circumstances a person could also agree to a fee payable to him if he takes upon himself the obligation to make the credit available for another person, i.e. agree a payment for the mere concluding of the credit contract. This fee should be distinguished from the interest payable for making the monetary resources available, i.e. for the credit itself. It is a specificity of the credit contract that it stipulates the right to have the credit provided but not the duty to require it. Such a duty would have to be expressly agreed upon by the contracting parties. This is connected with the regulation of the obligation to pay interests on the credit. This obligation is established upon providing the credit. The law does not expressly state the period of time for which this duty to pay the interests lasts. Nevertheless we can assume that it lasts until the credit has actually been paid back. It is not, however, impossible for the contracting parties to negotiate a different period of time lasting e.g. until the day by which the credit should have been paid back according to the contract regardless of the fact that it actually has been paid earlier or later than that. It is necessary to distinguish between the interest on the credit and interest on the amount in default, the latter being subject to the debtor’s obligation to pay if he failed to repay the credit provided to him in time. In practice, this interest is often designated by banks as penalty interest. It is possible that the debtor is subject to the obligation to pay the interest on the credit and the interest on the amount in default (penalty interest) at the same time. It can be negotiated in the contract that the debtor will pay the credit interest only by the time he should have repaid the credit and after that he will only pay the penalty interests involving both the interest on the credit and the interests on the amount in default. A rather controversial issues include the question of whether it is possible to cancel the credit contract. In section 582, the Civil Code admits the possibility of cancelling a contract agreed for an indefinite period of time, whose subject matter is an obligation to perform continuous or recurring activity. This is not the nature of the credit contract. Consequently, its cancellation is out of question. The Commercial Code, however, regulates, in its section 500, the credit cancellation in relation to the entitlement to have the credit made available. This indicates that the cancellation provision can only apply to the credit not yet made available with the relation of obligation established by the credit contract remaining otherwise unaffected. Cancellation is ruled out if the whole of the credit has been drawn. The article also looks at the question of withdrawing from a credit contract with special regard to the relation between the general possibility to withdraw from a contract (s. 344 and the following of the Commercial Code) and the specific reasons set by law for withdrawing from a credit contract (ss. 505, 506, and 507 of the Commercial Code). In this context, the article examines how the creditor’s withdrawal from the credit contract affects the enforcement of the debtor’s obligation to repay the credit. After critically considering diverse opinions the author gives reasons for his conclusion that the withdrawal from the credit contract does not amount to the extinction of a secured claim, nor to the extinction of a lien or a guarantee through which the claim is secured.