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The question of the legal responsibility for accomplishing monetary obligation through the bank in which the provisional administration is exercised
On February 23 2012, the Parliament of Ukraine approved the Law of Ukraine “On Households Deposit Guarantee System” (hereinafter – the Law). Since the adoption of the law four years have passed, and during this period 68 banks of different levels were considered insolvent.
It is completely clear, that both physical and legal persons are not able to trace the solvency of the bank through which they carry out calculations. Thereby, in practice there are a lot of situations when a person or entity conducts payment to counterparty’s bank account without even being notified that this bank has been declared bankrupt and the provisional administration is now heading the bank.
In this context, a very important question is a question of the status of the obligations in the event of payment to the account of the bank which is operated by the provisional administration. However, it is essential to answer a few more questions:
1. First of all – is it possible to consider such type of accomplishment as an appropriate one?;
2. Secondly – who bears legal responsibility if the answer for the first question is ‘no’?;
3. And the last but not the least – what should the parties do with the money already paid?.
It should be noted that the issues of the conclusion and execution of the commercial contracts are governed by the Economic Code of Ukraine (hereinafter – Economic code), as well as (according to para 7 of article 155 and para 1 of article 193 of the Economic Code) the Civil Code of Ukraine (hereinafter – Civil Code).
According to para 2 of article 1087 of the Civil Code the transactions between entities should be conducted in a non-cash form. However, it is still allowed to conduct transaction in a cash form, if is it not forbidden by any law. According to articles 33 and 40 of the Law of Ukraine “On the National Bank of Ukraine”, the National bank of Ukraine (hereinafter referred to as NBU) is entitled to regulate cash and non-cash circulation and accounting in Ukraine. Thereby, it is important to pay attention to the NBU’s regulation from June 6, 2013, № 210, which prescribes that the maximum amount of the cash payments between enterprises within a single day may not exceed ten thousands UAH. Taking into account, the today’s exchange rate it is undisputable that such amount is a very meagre for the transaction between legal entities. Therefore, de facto, the absolute majority of the transactions between entities are taking into non-cache form.
According to the provisions of article 193 of the Economic Code and article 526 of the Civil Code, an obligation should be performed appropriately. The concept of the appropriate performing is a fully evaluative one, but as minimum, an obligation should be performed in accordance with the spirit of the agreement, fully, in a prescribed time and by the appropriate party in the appropriate place. In the case of the transaction of the funds to a bank account, which is operated by the provisional administration we should primarily pay attention to the criteria of the appropriate place of performance.
Under article 197 of the Economic Code, economic obligations should be performed at the place specified by law, commercial contract, or a place which is defined by the meaning of the commitment. Para 3 of article 1088 of the Civil Code prescribes that a non-cache transactions should be made through banks or other financial institutions in which the associated accounts are opened. According to para 2 of article 197 of the Economic Code the creditor’s location – is the place of performing monetary obligations. Therefore, in the case of performing monetary obligations in a non-cache form, the location of the creditor’s bank is a place of accomplishment.
Thereby, in order to answer the first question (“is it possible to consider such type of accomplishment as an appropriate one”) it is necessary to examine two possible ways of the particular situation. The first one – the creditor has notified the debtor about changing its bank account before the moment of accomplishment. And the second one – the creditor has failed to notify the debtor about changing its bank account. Let’s explore both these ways more specifically.
In accordance to the first one the creditor has notified the debtor about changing his bank account, thus the debtor’s obligations should be performed at the new place. Consequently, in the particular situation the money should be sent to the new bank account. Otherwise, the obligation could not be regarded as one which is performed appropriately. The same approach has been already accepted by the Economic Court of the Volyn region (hereinafter – the Court) in the case № 903/1179/15. The essence of this case lies in the fact that the respondent has sent money to the applicant’s account, which has been opened into the Public Joint Stock Company “Bank “Kievan Rus”. At that time this bank has been already officially declared unsound. The Court did not take into account the respondent’s objections and obliged him to repay the money to the new applicant’s account and also to pay 3% per annum for using applicant’s money and inflation losses. Moreover, the Court did not pay an attention to the fact that the applicant, in fact, had received his money and the respondent would pay twice.
Under the second way, when the creditor has failed to inform the debtor it is necessary to mention, that there is no any law which obliges the debtor to check the status of the creditor’s bank. Therefore, it is clear that the creditor could not be responsible for transferring money into ‘wrong’ account, except the case he was obliged to check the status of the creditor’s bank by the agreement. Consequently, in the particular situation such type of performance should be considered appropriate.
However, in any case of the two listed above one party always has reverses. In the first case the debtor actually pays twice for its obligations under the contract and also pays all the penalties prescribed by the agreement, 3% and inflation losses. On the one hand, the debtor experiences reverses because of its own negligence, but on the other hand it is clear that such punishment does not comply with the principles of justice and proportionality. From my point of view, in the case when a court obliges the debtor to transfer money again, the debtor should use the rights prescribed in articles 1212-1214 of the Civil Code and bring a lawsuit against the creditor, with demands to return wrongly acquired assets and 3% per annum. In this case, the debtor still bears some responsibility and losses due to his negligence but the amount of such losses is reasonable.
Moreover, it is very important thing to note, that the creditor, de jure has a legitimate right to demand disbursement from the bank, even if it has been declared insolvent. Under paragraph 1 of part 5 of article 36 of the Law the demands of depositors and other creditors of the bank should not be fulfilled when the provisional administration is exercised. However, part 6 of the same article sets out a number of exceptions.
First of all, the ban does not apply to the repayment of depositor’s deposits if their contracts have expired, and depositor’s bank account contracts. In this context it is important to understand that under the meaning of the Law only the physical person is regarded as a depositor. Consequently, if the creditor is a physical person with a status of entrepreneur he or she is entitled to claim a bank to pay out his/her funds. However, it should be understood that such payment will be made only within the amount guaranteed by the Deposit guarantee fund. According to the regulation of the Administrative Board of the Deposit guarantee fund from August 21, 2012 № 27, the amount of such payment may not exceed two hundred thousand UAH.
Secondly, the fifth part of article 36 of the Law does not apply to the accomplishment of the operations with payment remittance of individuals and entities received on their accounts after the day of the beginning of the procedure of withdrawal of the bank from the market. According to article 34 of the Law the Deposit guarantee fund begins the procedure of withdrawal of the bank from the market not later than on the next day after the receiving the decision of the NBU in which it recognizes the particular bank’s insolvency. Therefore a legal person can, as well, claim a bank to pay out its funds which were received on their accounts at any time after the day of recognition bank’s insolvency. The existence of such right only proves the injustice of brining a lawsuit against the debtor to repay its monetary obligations. However, it is clear that despite the legitimacy to claim a bank to pay out funds, the problem may be in its actual impossibility due to the lack of bank’s funds. In this case, the creditor does not actually receive his funds and the only one reasonable solution may be to make a claim against the debtor.
In the context of the situation with saving money in both accounts the issue of taxation of these funds is completely unclear, as well as, the issue of recognition such funds as acquired without any legal basis. Therefore, saving such money could create some extra-problems not only to the debtor but also to the creditor.
As you can see, in both cases, of transferring money to a bank account in which the provisional administration is operating, two parties have unnecessary difficulties in obtaining funds belonging to them. Therefore, in my opinion, the Ukrainian legislation on banks and banking, as well as, the provisions of commercial and civil law should be supplemented with a clear procedure which will avoid any manipulation for the creditor, save both parties money and business relations between contractors.
This mechanism can be realized in the one of several ways. For example, legislation may impose an obligation on the economic agents to close their bank accounts in those banks in which the procedure of withdrawal from the market has started. Also, it is possible to require the bank to block remittances and warn the initiator’s bank about its status. In my opinion, the second method, is more acceptable, as it does not create unnecessary obligations for economic entities and allow the initiator to reconcile billing information with the recipient one more time. It is also possible to create a mechanism of refunding similar to that which applies to incorrectly credited funds and require the creditor to initiate a refund, and the bank to make the return. However, in the case with a mala fide bank, this approach will solve nothing as the financial penalties are obviously not the most effective way to influence the insolvent bank.
As down to this moment, there is no good mechanism fixed in law, from my point of view, the best way is to use the principle of the freedom of contract and to oblige the contract parties by the agreement to ensure the solvency of the bank before transferring money. However, it is also necessary to create a mechanism to release parties from the legal responsibility for delay the execution of its obligations, if the poor condition of the bank has been established.
Consequently, the existence of the problem is obvious. Despite the fact that there are few ways to receive the money payed through insolvent bank, they are really complicated, and in every case both parties will have extra-problems with receiving their money and will poison their business relations. Therefore, there is a need to regulate this situation in the legislation level and to find a compromise between the parties.
1. Law of Ukraine “On Households Deposit Guarantee System”, available at http://zakon4.rada.gov.ua/laws/show/4452-17.
2. Economic Code of Ukraine, available at http://zakon3.rada.gov.ua/laws/show/436-15.
3. Civil Code of Ukraine, available at http://zakon3.rada.gov.ua/laws/show/435-15.
4. Law of Ukraine “On the National Bank of Ukraine”, available at http://zakon4.rada.gov.ua/laws/show/679-14.
5. Regulation of the NBU “On establishing threshold cash transactions” № 210, from June 6, 2013, available at http://zakon4.rada.gov.ua/laws/show/z1109-13.
6. Decision of the Economic Court of the Volyn region in the case № 903/1179/15, from December 16, 2015, available at https://cases.legal/uk/act-uk1-54466597.html.
7. Regulation of the Administrative Board of the Deposit guarantee fund “On increasing the reimbursement on deposits” № 27 from August 21, 2012, available at http://zakon4.rada.gov.ua/laws/show/z1452-12.