However, lending between companies and individuals is allowed. In the Reply on How to Confirm the Effectiveness of Lending between Citizens and Enterprises, the Supreme People's Court confirmed that "Lending between citizens and non-financial enterprises (hereinafter referred to as enterprises) belongs to private lending. As long as the meaning of both parties is true, it can be considered valid. " Therefore, this paper focuses on how to conclude and sign a loan contract when borrowing between companies and individuals.
Necessary clauses of loan contract
The simplest loan contract must also have the following terms: 1, lender, borrower; 2. The loan amount; 3. Borrow time. In some occasions where no formal loan contract is signed, IOUs can also constitute a loan relationship. Simple IOUs are generally written by the borrower as "RMB * * today" and signed and dated by the borrower, so simple IOUs will have the necessary terms of the loan contract.
However, to borrow money between companies and individuals, we should not only be satisfied with a debit note, but also pay attention to more terms and avoid risks.
1. Interest?
First of all, if you want to charge interest on the loan, you should specify the interest rate standard in the contract. The interest rate standard shall not exceed 4 times the interest rate of similar loans of banks, and shall not be protected by some courts. Secondly, interest cannot be incorporated into the principal to calculate compound interest, nor can it be deducted from the principal in advance when borrowing. If there is no interest rate standard in the contract, the lender and the borrower will generally bear interest according to the bank's similar loan interest rate. (However, if it is not clear whether interest is charged on the loan between individuals, it shall be treated as interest-free loan. )
? Second, payment and delivery?
Loans generally take the form of direct cash payment or bank payment, which needs to be specified in the contract. It is suggested to save the payment voucher in the form of bank payment. Small loans (less than100000 yuan) can be delivered directly in cash, but the borrower should be required to issue a receipt, or the contract should indicate that the receipt has been confirmed through signing, and no receipt is issued. In some loan cases, although the lender provided a loan contract, the borrower denied receiving the loan, and both parties did not issue a receipt at the time of delivery, which would lead to the risk that the loan could not be recovered. Similarly, in other loan cases, the lender provided the remittance voucher, but did not sign the loan contract, so the borrower claimed that the money was a gift rather than a loan, and the lender could not provide other evidence to prove that it was a loan, and finally failed to recover the loan smoothly.
Third, the repayment period?
Some loan contracts stipulate the repayment period, while others do not. If the loan with the specified repayment period cannot be recovered at maturity, it shall file a lawsuit or send a letter to remind it within two years from the date of maturity, otherwise the court will no longer protect it after the limitation of action expires.
If the repayment period is not agreed, the lender may demand repayment at any time. However, if it cannot be recovered after the notice of when to repay is issued, it should also file a lawsuit or send a letter again within two years to avoid exceeding the limitation of action.
Fourth, guarantee?
Lenders should try their best to require borrowers to provide guarantees in loan contracts, especially when individuals lend to companies. In order to avoid the trap of shell companies, shareholders should be required to provide guarantees in their personal capacity. When making a guarantee, it is suggested that the guarantor should bear joint and several liability for the debt, that is, when the borrower fails to repay, the lender can directly ask the guarantor to repay, avoiding the agreement as a general guarantee, that is, only when the borrower fails to repay, the guarantor will bear the guarantee responsibility. Under the general guarantee condition, the lender must sue the borrower first, and only when the borrower has no property to repay can the guarantor be required to bear the responsibility. It should be noted that when the loan expires, the borrower fails to repay, and the lender and the borrower reach an agreement on the repayment period or interest rate again without the consent of the guarantor, and the guarantor will no longer bear the guarantee responsibility. Sometimes, the borrower may also provide real estate, vehicles, shares, products, etc. As a guarantee for the loan. At this time, it should be noted that real estate and shares need to be registered to take effect, and the lender must actually possess movable property such as vehicles and products, otherwise it will not be able to play the role of guarantee. In the terms of the contract providing mortgage for loans, if both parties agree that the loan cannot be repaid at maturity, such terms are invalid, because the law thinks that the terms are contrary to the purpose of establishing mortgage, and it is easy to transfer the goods with higher value to the borrower at a lower price, resulting in unbalanced value transfer and damaging the interests of the borrower.
? V. Competent courts
If we don't pay attention to this problem in the loan contract, according to the principle of the jurisdiction of the court in the place where the contract is performed or the defendant's domicile, it may happen that the lender goes to the borrower's domicile to go to court all the way, which is very time-consuming and laborious. Therefore, at the end of the loan contract, a court with jurisdiction that is convenient for the lender must be agreed.