Bank account agreement with the condition of crediting this account. Opening and closing of personal accounts of the client Subject of the agreement

A credit institution, attracting temporarily free funds into deposits, accumulates significant attracted capital. In order to place funds, one of the most important passive banking operations- opening and maintaining a bank account.

Bank account – a form of mediation of funds accepted by the bank for deposits.

According to the bank account agreement the bank undertakes accept and credit funds received to the account opened by the client (account holder), execute the client's instructions on transferring and issuing the appropriate amounts from the account and performing other operations on the account.

Bank can use funds available on the account, guaranteeing the right of the client to freely dispose of these funds. The Bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on its right to dispose in cash at your discretion.

The bank account agreement is concluded in simple writing(Clause 1, Article 161 of the Civil Code of the Russian Federation). As a rule, the bank and the client conclude single treaty bank deposit and bank account. Legislation on banks and banking activity allows the possibility of concluding a bank account agreement by offers(submission of an application and other documents for opening a bank account) and acceptance(permissive inscription of the head of the bank).

The bank account agreement is consensual, bilaterally binding, reimbursable. As a general rule, a bank account agreement is termless, although the parties, when concluding it, have the right to stipulate the validity period of this agreement.

The parties to the agreement are:

- bankhow credit organisation, the right to maintain bank accounts of which is recorded in the license for banking operations;

- client, which is a legal entity, an individual entrepreneur, an individual.

When opening a bank account, the client provides a package of documents necessary for the credit institution to carry out operations on the account. Reason for opening an account serves as a statement signed by the client - an individual, or the head and chief accountant of the client - legal entity.

Legal entities and individual entrepreneurs provide a credit institution with:

Certificate of state registration;

An extract from the unified state register of legal entities or the unified state register of individual entrepreneurs;

Notarized copies of constituent documents;

Certificate of registration with the tax authority;

Card with samples of signatures and seal imprints;

Documents (protocols general meetings, decisions of the founder, orders on appointment), confirming the authority of persons authorized to manage the funds on the account (as a rule, the general director and chief accountant of the legal entity).

The documents collected by the account holder constitute basis of banking client, which is maintained by a credit institution. Separately, in specialized file cabinets, cards containing samples of signatures and seal impressions are stored.

By concluding a bank account agreement, the credit institution and the client assume a number of rights and obligations that make up the content of the agreement. The account holder, as in the bank deposit agreement, is an economically weak party, therefore, when concluding the agreement, the main responsibilities are assigned to the credit institution. The client is obliged to comply with the procedure for opening and maintaining a bank account provided for by the current legislation, the requirements of the law, banking rules regarding the procedure for conducting non-cash payments and processing settlement documents; as well as to ensure timely payment for bank services for transactions with funds on the account (in cases stipulated by the agreement). The client is not limited either in choosing the form of non-cash payments that best suits his interests; nor in the number of bank accounts (settlement, deposit and others) opened in any currency.

The bank has the right to provide credit to the client's bank account (Article 853 of the Civil Code of the Russian Federation).

The Bank undertakes to accept the client's funds to his bank account; open and maintain client accounts (crediting the client's bank account with money received for him and debiting funds from the account on the basis of the client's order); timely and correctly perform settlement and cash operations on behalf of the client, while observing the law, the contract, banking rules and customs of business turnover requirements on the procedure and timing of payments. It should be noted that in the course of such operations, the funds are credited and debited by the bank no later than the business day following the day the relevant payment document is received by the bank. When carrying out settlement and cash transactions, the credit institution undertakes to keep banking secrecy about the account and operations on the client's account in accordance with paragraph 1 of Art. 857 part 2 of the Civil Code of the Russian Federation, Art. 26 of the Federal Law "On banks and banking activities".

Refuse a client the bank is not entitled to open a bank account, except in cases where the reason for the refusal is the inability to accept the client's funds or the refusal is allowed by the current regulatory legal acts.

One of the essential conditions of the bank account agreement is the payment of interest to the client for using the bank with the funds in the account. As a general rule, the amount of interest is credited to the account within the terms stipulated by the agreement.

According to the bank account agreement, the following can be accrued:

- accrued interest on passive operations of the bank (on operations related to raising funds) - interest due to be paid to the bank's clients on the funds attracted from them and recorded on the account for recording the bank's obligations to pay interest;

- interest paid on passive operations of the bank - interest credited to the accounts of the bank's customers (settlement, current), paid in the prescribed manner in cash from the bank's cash desk, debited from the correspondent account of the borrowing bank, credited to the correspondent accounts of the creditor bank;

- arrears of the bank to pay interest(overdue debt of the bank) - interest accrued by the borrower's bank on attracted funds in favor of legal entities, including banks, but not paid upon the due date established by the relevant agreement or upon the occurrence of obligations stipulated by the agreement.

Interest can be calculated in one of four ways in accordance with the terms of the agreement: using simple or compound interest formulas; using a fixed or floating interest rate. If the agreement does not specify the method of accruing interest, then accrual is carried out according to the simple interest formula using a fixed interest rate. When calculating interest, the value of the interest rate (as a percentage per annum) and the actual number of calendar days for which funds are attracted are taken into account. Accounting for operations to allocate the amounts of accrued interest is carried out by the "cash" method (the borrowing bank assigns accrued interest on funds raised to the implementation of the relevant accounting entries on the date of their payment) by the method or by the "accrual" method (all interest accrued in the current month is not later than the last business day of the current month are charged to the bank's expenses).

When closing bank accounts of bank customers, interest on attracted funds is accrued until the date of actual closing or transfer of the account, inclusive; the balance of the bank account in this case is the sum of the balance of funds available on the account and the interest credited to the account upon its closure.

Credit organisation is responsible in case of untimely or incomplete crediting (debiting) to the client's account not only of the received funds, but also of accrued interest.

Closing of a bank account is carried out upon termination of the bank account agreement. According to the owner account it must be closed by a credit institution at any time. At the initiative of the bank bank account agreement can be terminated in judicial order in the following cases:

· if the amount of funds kept on the client's account turns out to be lower than the minimum amount stipulated by banking rules or the agreement, and will not be restored within a month from the date of the bank's warning about it;

· or in the absence of transactions on this account during the calendar year, unless otherwise provided by the terms of the agreement.

When closing a bank account, the balance of funds on the account is returned to the client or transferred to another account in the same or another credit institution at the direction of the client. The transfer of funds must be made no later than seven working days upon receipt of a relevant written application from the client; unpaid settlement documents that are in the card file of settlement documents not paid on time (card file No. 2) are returned to the claimants; the client is paid interest accrued on the day the account is closed.

Bank account agreement - this is an agreement by virtue of which the bank undertakes to accept and credit funds incoming to the account opened by the client (account holder), follow the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account (Article 845 of the Civil Code of the Russian Federation) .

The Bank may use the funds available on the account, guaranteeing the client's right to freely dispose of these funds.

The Bank is not entitled:

• • determine and control the directions of use of the client's funds and
  • establish other restrictions not provided for by law or the bank account agreement on his right to dispose of funds at his own discretion.

These rules also apply to other credit institutions when they conclude and execute a bank account agreement in accordance with the issued permit (license).

The essence and meaning of the bank account agreement

Bank account agreement - the central agreement in the organization and formalization of property relations legal entities and individual entrepreneurs. Bank account agreements concluded by citizens are not so widespread. The agreement in question is a common means of non-cash payments made from the account of one person to the account of another, as well as receiving cash from the account. The bank account contains funds that are, in essence, not homogeneous things, but obligatory rights of claim against the bank. In this respect, a bank account agreement differs, for example, from a storage agreement.

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The bank manages the funds received on the client's current account in the interests of the client and at his will. At the same time, the bank has the right, as in the bank deposit agreement, to use the client's funds in its own activities, paying, as a general rule, interest and guaranteeing the client's right to freely dispose of these funds.

The bank is obliged to conclude a bank account agreement with a client who has applied with a proposal to open an account on the conditions announced by the bank for opening accounts of this type that meet the requirements provided for by law and the banking rules established in accordance with it, which indicates publicity of this agreement. Banking rules also determine the documents, the provision of which is necessary for opening a bank account.

Restriction of the client's rights to dispose of the funds on the account is not allowed, with the exception of

1. 1. seizure of funds in the account, or
   2. suspension of operations on the account in cases provided for by law.

In addition to the provisions of the Civil Code, relations related to bank account are regulated by the Law "On Banks and Banking". It should also take into account the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 N 5 "On some issues of the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements" (VVAS RF. 1999. N 7).

By its legal nature bank account agreement:

• • consensual (generates civil rights and obligations from the moment the parties reach an agreement; the subsequent transfer of a thing or the commission of other actions is already carried out for the purpose of their execution);
  • reimbursable (counter provision in the form of a fee);
  • bilateral (generates obligations for both parties).

Subjects of the bank account agreement

The requirements for the subject composition of the bank account agreement are similar to the requirements for the parties to the bank deposit agreement. The subjects of the bank account agreement include:

1. 1. a bank to which such a right has been granted on the basis of a permit (license) issued in accordance with the procedure established in accordance with the law, as well as
   2. other credit organizations accepting, in accordance with the law, contributions (deposits) from individuals and legal entities;
   3. clients (any legal entities and citizens).

Bank account agreement form

The form of the bank account agreement is subject to the general rules for processing transactions (usually written).

An essential condition of the bank account agreement is its subject matter:

• • actions of the bank to credit (accept) funds to the client's account and perform various types of banking operations at the request of the latter: transfer of funds to another account, settlement and cash services etc.

The bank is obliged to perform for the client all the operations provided for accounts of this type by law, banking rules established in accordance with it and business customs applied in banking practice. The Bank guarantees the secrecy of the bank account and bank deposit, transactions on the account and information about the client.

Depending on the volume of banking operations provided to the client, bank accounts are divided into the following types:

1. 1. settlement,
   2. current and
   3. special (budgetary, loan, etc.).

Obligations of a bank under a bank account agreement

1. • conclude a bank account agreement with a client who has applied with an offer to open an account on the conditions announced by the bank for opening accounts of this type (publicity of the agreement);
   • accept and credit funds received to the account opened by the client (account holder);
   • fulfill the client's instructions to transfer and issue the relevant amounts from the account and conduct other operations on the account no later than the day following the day the bank receives the relevant payment document, unless a shorter period is provided for by the bank account agreement.

An order to the bank to write off funds is given in writing(for example, by means of a payment order), which makes it possible to identify the person entitled to such an order. Recently, a certificate of the right to dispose of the sums of money on the account has become widespread. by electronic means payment and other documents using analogues of a handwritten signature, codes, passwords (for example, the Internet Banking system).

Without the client's order, debiting funds on the account is allowed

1. 1. by court order, and
   2. in cases established by law or stipulated by the agreement between the bank and the client.

Obligations of the client under the bank account agreement

• • to certify the rights of persons who, on behalf of the client, make orders to transfer and issue funds from the account by submitting to the bank the documents provided for by law, the banking rules established in accordance with it and the bank account agreement.

For writing off funds on the account without the client's order, see letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 1, 1996 N 8

On the procedure for the recovery by the creditor of the amounts recognized by the debtor, when the claim procedure is provided for by the contract, see letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 25, 1996 N 6

Write-off of funds from the client's account is carried out in the order of receipt of the latter's orders. However, in case of insufficient funds, the Civil Code of the Russian Federation establishes a strict sequence (order) of write-offs (Article 855). The order of write-offs is built taking into account the social significance of payments and the benefits of compensation for harm to health and remuneration of citizens.

Grounds for termination of the bank account agreement (Article 859 of the Civil Code of the Russian Federation):

1. 1. client statement made at any time;
   2. a court decision on the bank's claim in cases where the amount of funds held on the client's account turns out to be lower than the amount provided for by banking rules or the agreement (if such an amount is not restored within the time period established by law from the date of the bank's warning about it);
   3. a court decision on the bank's claim in the event that there are no transactions on the client's account within the time period established by law, unless otherwise provided by the agreement.

If within 2 years there are no funds on the client’s account and operations on this account, the bank, having warned the client in writing and not having received funds to his account within two months, has the right to refuse to execute the bank account agreement, unless otherwise provided by the agreement .

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Conclusion of a bank account agreement

According to general rules on the form of transactions, the bank account agreement must be concluded in a simple written form. A bank account agreement cannot exist verbally.

According to paragraph 1 of Art. 846 of the Civil Code, when concluding a bank account agreement, a bank account is opened for a client or a person indicated by him on the terms agreed by the parties. The procedure for opening a bank account is determined by banking rules. According to clause 2.1 of the Instruction of the State Bank of the USSR dated October 30, 1986 N 28 "On settlement, current and budget accounts in institutions of the State Bank of the USSR", in order to formalize the opening of settlement, current and budget accounts, an application for opening an account of a specially established form is submitted to the bank, which is signed the head and chief accountant of the account holder, and other documents (document of state registration, copies of constituent documents, a card of a specially established form with samples of signatures and seals, etc.). The account is opened by a permission inscription on its opening on the application of the client, affixed by the executive body of the bank (director, president, etc.).

The legal meaning of the client's application for opening an account and the authorization letter for opening it differ depending on the method of concluding a bank account agreement. In the event that the parties sign a single document, the client's application for opening an account and the authorization inscription on its opening should be considered as actions of its participants in fulfilling mutual obligations arising from an already concluded agreement.

If a bank account agreement is concluded by exchanging documents, then such an application with the relevant documents attached is an offer, i.e. a proposal to conclude a bank account agreement, and a permissive inscription on opening an account, affixed by the executive body of the bank, represents consent to the proposal to conclude an agreement (acceptance).

Such a situation is currently extremely rare (practically only when opening some foreign currency accounts). According to the practice established in the banking system, the bank and the client conclude a bank account agreement by drawing up a single document signed by both parties. The rights and obligations of the parties under the bank account agreement arise regardless of whether the client has deposited funds into an open account. Another provision may be determined by law (deposit accounts in accordance with Article 834 of the Civil Code) or by agreement of the parties.

In accordance with paragraph 2 of Art. 846 of the Civil Code, the bank is obliged to conclude a bank account agreement with a client who has applied with an offer to open an account on the conditions announced by the bank for opening accounts of this type, which meet the requirements provided for by law and the banking rules established in accordance with it.

He is not entitled to refuse to open an account, the performance of relevant transactions for which is provided for by law, the bank's constituent documents and the permission (license) issued to it, except in cases where such a refusal is caused by the bank's inability to accept for banking services or is allowed by law or other legal acts . In case of unreasonable evasion of the bank from concluding a bank account agreement, the client has the right to present him with the requirements provided for in paragraph 4 of Art. 445 GK.

Imposing on the bank the obligation to conclude a bank account agreement with the client, as well as granting the latter the right to present the bank with the requirements provided for in paragraph 4 of Art. 445 of the Civil Code, allowed in theory to formulate a conclusion about the publicity of the bank account agreement. However, this agreement cannot be recognized as public, since the bank cannot provide the same conditions of service to all customers due to differences in legal regime accounts.

It also seems that it should not establish exactly the same conditions within each type of account, since clients hold different amounts of money in the account. In addition, the volume of operations performed by the bank in the interests of the account holder also differs. All this indicates that the bank should have the right to a differentiated approach to the issues of crediting an account, paying its expenses for performing operations on the account, setting interest for using the bank's funds on the account, etc.

In this regard, the rules established by Art. 426 GK. A similar position is taken by judicial and arbitration practice. According to paragraph 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 N 5 "On some issues of the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements", when concluding this agreement, a client opens a bank account on the terms agreed parties.

Only in the case when the bank, on the basis of the current legislation, as well as banking rules, has developed and announced a bank account agreement of a certain type, containing the same conditions for all applicants (the price of bank services, the amount of interest paid by the bank for the use of funds in the client’s account, etc.), a bank in accordance with par. 1 p. 2 art. 846 of the Civil Code is obliged to conclude such an agreement with any client who has made an offer to open an account on the specified conditions. The bank's refusal to conclude such a bank account agreement is allowed only in the cases established by par. 2 p. 2 art. 846 GK.

In practice, a bank account agreement is drawn up, as a rule, in two ways: by drawing up and signing an agreement in the form of a single document; without such a document. The absence of a bank account agreement in the form of a single document signed by the parties does not mean the absence of a contractual relationship. The submission by the client of an application for opening an account is an offer, and the permissive inscription of the head of the bank is an acceptance. Such an order can be given both in the form of a separate document and on the client's application for opening an account. In paragraph 1 of Art. 846 of the Civil Code of the Russian Federation states that an account can be opened not only for a client, but also for a person indicated by him. This means that it is permissible to conclude a bank account agreement both in favor of the client and in favor of a third party (Article 430 of the Civil Code). Paragraph 2 of this article contains a rule on the obligation of the bank to conclude a bank account agreement at the request of the client, except for the cases provided for by law or banking rules established in accordance with it.

The legislation contains rules providing for the obligation of the bank to refuse the client to conclude an agreement in certain cases. Under the bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account holder), to fulfill the clients' orders to transfer and issue the appropriate amounts from the account and to carry out other operations on the account. The Bank can use the funds available on the account, guaranteeing the right of the client to freely dispose of these funds.

Registration of the bank account agreement is carried out by drawing up and signing the agreement in the form of a single document. The instruction of the Central Bank of the Russian Federation is defined. That in order to open a settlement, current or budgetary account, the following documents should be submitted to the bank: an application for opening an account, a copy of the decision to establish an organization or a memorandum of association, a card of sample signatures and a seal imprint. In addition, documents are submitted to the bank: on registration with the tax authority, on registration as a payer of insurance premiums for compulsory health insurance.

If an entrepreneur carries out his activities without forming a legal entity, settlement and other accounts are opened in his name. The account can also be opened in favor of a third party. The right to manage the account of a legal or individual may be submitted under a power of attorney.

The account owner and his creditor have the right to include in the contract a condition that gives the right to write off the amounts due to him without acceptance. In this case, the payer is obliged to inform the bank in writing about this condition and about his consent to such a write-off.

The contract for settlement and cash services provides for the responsibility of both parties for failure to fulfill their obligations. For example, the bank is liable for untimely or incorrect debiting of funds from the client's account or crediting by the bank of amounts due to the client.

The Client is responsible for the authenticity of the documents submitted for opening an account and conducting operations on it; for late submission of the cash forecast for the forthcoming quarter; for violation of the terms of payment for services provided by the bank; for non-receipt of cash reserved by the bank for him on the day specified in the application, etc.

The contract fixes the amount of fines for each of the listed violations, both on one side and on the other. The agreement provides for the procedure for resolving disputes, its duration and special or additional conditions.

Under the bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account holder), to fulfill the clients' orders to transfer and issue the appropriate amounts from the account and to carry out other operations on the account.

The Bank can use the funds available on the account, guaranteeing the right of the client to freely dispose of these funds. money bank account

Registration of the bank account agreement is carried out by drawing up and signing the agreement in the form of a single document.

The instruction of the Central Bank of the Russian Federation is defined. That in order to open a settlement, current or budgetary account, the following documents should be submitted to the bank: an application for opening an account, a copy of the decision to establish an organization or a memorandum of association, a card of sample signatures and a seal imprint. In addition, documents are submitted to the bank: on registration with the tax authority, on registration as a payer of insurance premiums for compulsory health insurance.

If an entrepreneur carries out his activities without forming a legal entity, settlement and other accounts are opened in his name.

The account can also be opened in favor of a third party.

The right to manage the account of a legal or natural person may be granted on the basis of a power of attorney.

The account owner and his creditor have the right to include in the contract a condition that gives the right to write off the amounts due to him without acceptance. In this case, the payer is obliged to inform the bank in writing about this condition and about his consent to such a write-off.

Settlement and cash services - the main type of banking services. This is indicated by the fact that the contract for banking services is often referred to as the contract for settlement and cash services. Thus, within the framework of settlement and cash services, a credit institution can provide the following types of services:

• - keeping records of funds on the account of a legal entity;
• - crediting funds received from counterparties or other persons by bank transfer;
• - execution of instructions of the organization for the transfer of funds to third parties;
• - Receiving and issuing cash.

As part of the tax expenses of the costs of settlement and cash services, it is necessary that the terms of the contract determine the types of services that the bank will provide, the amount of remuneration due, as well as the timing and procedure for its payment.

As a rule, the bank writes off the payment for settlement and cash services without acceptance, on the last business day of the month. An exception is the remuneration for cash transactions - it is charged immediately after the transaction.

Remuneration for settlement - cash services:

• - commissions for acceptance and recalculation of cash;
• - commissions for the issuance of cash;
• - fees for refusing to receive previously ordered cash;
• - commissions for crediting funds to accounts;
• - commissions for transferring funds from accounts;
• - commissions for transfers without opening accounts (including transfers using various payment systems);
• - fees for transfers using the Bank-Client system;
• - fees for cancellation of payments;
• - commissions on letter of credit operations (except for commissions for guaranteeing payment under a letter of credit);