In recent years, with the vigorous development of market economy, people's living standards are improving day by day, and people's mutual loans are becoming more and more common, and the amount of loans is getting higher and higher, resulting in more and more disputes. In this kind of disputes, creditors often only provide one piece of evidence for the court, which is called "orphan evidence" in law, that is, there is no other evidence to support each other. Therefore, how to write IOUs for private lending needs to pay attention to some legal skills. This lawyer has been handling cases for many years and has encountered all kinds of IOUs. Now, how to correctly write the IOUs of private lending, and remind creditors:
First, IOUs should be written as "IOUs", not "IOUs".
IOUs and IOUs are both certificates of creditor's rights and debts, but they are quite different. An iou is a written loan certificate issued by the borrower to the lender, which proves that the two parties have established a loan contract relationship; Poor harvest is a settlement basis based on previous economic exchanges between the two sides. In fact, it is the settlement of the past economic exchanges between the two sides, which only represents the pure creditor-debtor relationship and does not represent the loan contract relationship. Therefore, when borrowing money, you should write "IOU" instead of "IOU", which can save the burden of proof to explain the reasons and uses of "owing" money in litigation.
Two, the interest rate agreed by both parties should be written in the loan.
In practice, many creditors misunderstand that private lending can't charge interest, so interest is only an oral agreement, and it is not written into the loan. In fact, the law stipulates that private borrowers can agree on interest within 4 times of the bank's loan interest rate for the same period. The legal basis is as follows: Article 6 of the Supreme People's Court's Opinions on People's Courts Handling Lending Cases stipulates that the interest rate of private lending may be appropriately higher than the bank's interest rate, but it shall not exceed four times the bank's lending rate for the same period, and the excess shall not be protected.
Article 2 1 1 of the Contract Law stipulates that the loan contract between natural persons is not stipulated or clearly stipulated, and the interest is deemed not to be paid. If the loan contract between natural persons stipulates the payment of interest, the loan interest rate shall not violate the relevant provisions of the state on restricting borrowing. If the interest rate is not written into the receipt, once the lender files a lawsuit, the borrower will not recognize the agreement between the two parties, and the lender's interest request will not be supported by the court.
Three. When borrowing money, the repayment period should be written into the receipt.
Loans within the limitation of action are protected by law, but in practice many lenders often don't know the concept of "limitation of action". There are different understandings about the limitation of action when there is no agreed repayment period for the loan. Some people advocate the application of two-year statute of limitations, while others advocate the application of twenty-year statute of limitations. Courts in different places have different understandings of this issue.
Therefore, from the perspective of safe recovery of creditor's rights, the repayment period should be written into the IOU when borrowing money. If the borrower fails to repay the loan within the time limit, the lender shall claim its rights (including bringing a lawsuit to the people's court or signing a reminder notice by the borrower) within 2 years after the loan expires.
Four. Write down the borrower's full name when borrowing money.
In practice, lenders and borrowers are often closely related and unrelated. When borrowing money, they write daily customary titles as IOUs, such as "Zhang Shu" and "Zhang Xiong"; Write the borrower as "A San" and "Si Mei" and so on. In case the borrower fails to repay the loan in time, the lender will often be rejected by the court because of unclear creditor's rights and debts.
Five, the loan should be clearly stated, there can be no ambiguity.
A typical case is that Zhang San borrowed 654.38+10,000 yuan from Li Si, and at the same time issued a debit note indicating that the loan was 654.38+10,000 yuan. A few months later, Zhang San returned Li 6.5438+10,000 yuan, so he tore up the original IOU and issued a new IOU for Li Si: "Zhang Sanyuan borrowed 6.5438+10,000 yuan from Li Si, and he still owes 654.38 yuan. The word "Huan" here can be understood as "yellow" as well as "sea" and "business". The resulting dispute is very unfavorable to the lender.
Legal effect of IOUs, IOUs and receipts
I. Legal meanings, proven facts and corresponding legal relationships of IOUs, IOUs and receipts.
IOUs, IOUs and receipts are common items in life and work. Although these three articles are only one word apart, their legal meanings are far from each other. An iou is a certificate issued by the debtor to the creditor indicating that it still owes something or a certain amount, which is generally used to prove the relationship between creditor's rights and debts; An iou is a certificate issued by a lender to a borrower or a borrower to lend something or a certain amount, which is generally used to prove the loan relationship; A receipt is a certificate issued by the receiver to the sender to show that something or a certain amount has been received, which is used to reflect or prove the fact of "receipt".
Second, the difference between IOUs and IOUs
Many people can't accurately grasp when to write IOUs and when to write IOUs. In fact, it is not difficult to distinguish between the two. There are at least two differences between IOUs and IOUs:
First, there is generally a flow of funds or objects behind the IOUs, but there is no IOUs. When the IOU is typed, the lender "just", "is" or "will" deliver the goods or money to the borrower, which is fixed with the IOU in order to confirm the fact of this "flow"; Generally, IOUs are used to settle or prove the opposite state of property ownership and possession, that is, the owner's things are occupied and used by the possessor. This state already exists when IOU is typed, and the purpose of IOU is to confirm the existence of this state.
Secondly, IOUs generally have a loan term and interest. The starting point of the loan term and interest calculation of IOUs is generally the loan date. Although IOUs can also stipulate the repayment period and the legal consequences of overdue repayment, this date is usually a certain time point after IOUs are issued.
In practice, in many cases, IOUs are written as IOUs, or conversely, IOUs are written as IOUs, which leads to irrelevant articles. Therefore, it often brings unnecessary trouble to the confirmation of facts, the determination of legal relations and the realization of the interests of obligees.
Give a simple example. If A and B have a good relationship, B borrows 30,000 yuan from A for emergency, and B gives A an IOU without agreement, then two years later, if there is no interruption, suspension or extension of the statute of limitations, A will sue the court for repayment, which is easily recognized by the court as exceeding the statute of limitations and losing the right to win. The fundamental reason is that the creditor has the right to claim repayment from the debtor when the IOU is issued, and the limitation of action begins to calculate, while the general limitation of action is two years. If it is claimed after two years, it will of course lose its limitation. If Party B had given Party A an IOU and had not agreed on the loan term, according to Article 206 of the Contract Law, "The borrower shall return the loan within the agreed period. If the term of the loan is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 61 of this Law, the borrower may return it at any time; Lenders can urge borrowers to return within a reasonable period of time. " Lender A will claim repayment from Borrower B two years later, and the limitation of action will only start from the time when it claims. At this time, if A sues B, the court can certainly support it according to law. So although there is a word difference, there is a big difference, and the result is the opposite.
Three. Matters needing attention in issuing IOUs, IOUs and receipts
1, the content should be perfect. An iou shall specify the amount and currency of the debt, or the quantity of the goods, the basic natural attributes such as name, quality, specification or model, the reason for breach of contract, the date of return, the legal consequences of overdue payment, and the exact names of the creditor and debtor. Finally, the debtor should sign or sign and write down the date of issuance. In addition to the above matters, the IOU shall also specify the loan term, interest (or rent) and penalty interest (or liquidated damages) for overdue payment. In addition to the above related matters, the receipt should also indicate the legal consequences, such as "at this point, the debts of both parties are settled" and "at this point, the agency contract between both parties is terminated".
2. The language should be accurate. Avoid using vague terms, such as "approximate", "estimate", "possible", "almost" and "possible". The meaning should be clear and definite. I met many people who wrote IOUs like this: "A borrows 10,000 yuan from B", which is literally confusing. Does A borrow money from B or does B borrow money from A? In fact, it is not difficult to write clearly. For example, you can write "A borrows 10,000 yuan from B" or "A borrows 10,000 yuan from B" without ambiguity.
It is better to have two receipts, one for each party. As a quick and convenient confirmation method, the receipt is usually handwritten, and the issuer is specific, that is, written and signed by the debtor, the borrower and the donee, but in reality, there are also creditors, lenders and donors who write and then sign by the debtor, the borrower and the donee. In this case, if the borrower, the borrower and the payee don't have the same receipt, and the writer tampered with the only remaining receipt, such as adding the amount of the loan, how can the signatory defend? On the contrary, if there are two identical documents (in duplicate), cheating by both parties will not only be futile, but also hurt feelings.
4. The identity of the subject should be confirmed. If it is a company, check whether the company is cancelled, whether the company name is accurate (the company name is another company without one word, such as "Beijing Zhicheng Technology Company" and "Beijing Zhicheng Technology Company" are two different companies), whether the natural person is an adult (to judge whether he has full capacity for civil conduct), and whether the natural person name is consistent with the ID card (special attention: homonyms will also leave trouble). In addition, the basic identity information of the subject should also be left, such as the age, address and work unit of the natural person.