Today we present this guide on commercial loans, where you will find what exactly is a commercial loan, its nature, taxation and taxation, its characteristics, types of commercial loans that exist, the loan contract, its parts and much more. We start
The commercial loan contract is one in which a person called a lender transfers the ownership of a sum of money or other fungible things to another person called a borrower, in exchange for the return of something of the same kind and quality or its equivalent in money.
The Civil Code regulates the commercial loan in its article 1740 as a real contract so that the contract does not start until the good has been delivered to the borrower. However, the dispositive character of this legal norm that indicates the real nature of the loan is pointed out, this means that the parties can advance the beginning of the contract at the time of the agreement between them even though the asset has not yet been delivered to the borrower. In that case, the parties would be modifying the nature of the contract, which would be considered a consensual or personal loan https://green-touch.org/personal-loans-for-bad-credit/.
For a loan to be considered commercial and non-civil, it must meet two circumstances in accordance with article 311 of the Commercial Code and the following:
It is necessary to differentiate if the loan is granted by an individual or by a company in the exercise of its economic activity.
If the person lending the money is a private individual, the constitution of the loan is an operation subject to the Transfer Tax. If, on the other hand, the loan is granted by a company in the exercise of its activity, the operation will be subject to the Value Added Tax (VAT).
However, the Law on Capital Transfer Tax and the VAT Law include that loans made by individuals and companies in the exercise of their activity, respectively, are exempt from taxation.
In the case of loans secured by real rights such as the mortgage, they will always be exempt from the VAT and, also, from the Transfer Tax in the event that the loan is granted simultaneously with the creation of a guarantee. If the guarantee is not simultaneous to the loan, it will be subject to and not exempt from the Capital Transfer Tax that is applied to individuals.
Likewise, when the guarantees are registered in a public registry, such as the mortgage in the registry of the property, it must be taxed by ITP in the form of Documented Legal Acts.
According to the dominant doctrine, the commercial loan enjoys the following characteristic notes:
Four types of loans are distinguished according to different variables:
Three types can be differentiated in turn.
Within the content of the contract of commercial loans are indicated the elements of the contract as well as the obligations of the parties involved in them.
Within the elements of the contract we find two types that in turn are subdivided into several more:
There are two types of obligations in relation to the two parties involved in commercial loans:
The lender is obliged to deliver the good to the borrower in the manner, time and place indicated, as well as to refer to the amount of the loan.
If the loan is money, the form is not problematic. On the contrary, you do have to stipulate in the contract if you deliver the loan in national or foreign currency. In the case of securities, the form of transfer thereof will be stipulated (account entry, endorsement of a bill of exchange, etc.). You can also agree that the delivery is made once or in several.
From the moment of delivery, it is when the obligations of the borrower begin to be demandable.
Obligation of restitution
The borrower or the person receiving the loan has the obligation to return at the end of the contract, a thing of the same kind and quality to the borrowed. This obligation to return is deferred, with the term determined in the contract.
If the contract does not specify any term, the lender must demand a notarial payment to the borrower, providing it 30 days (or 6 months if agreed between the parties) from such requirement to comply. If agreed between the parties, the lender may also dispose of the balance of the borrower’s current account at any time.
Another aspect that may differ is the repayment of the loan, the borrower may repay the loan early, saving the interest payment if it is stipulated in the contract. It can also be stipulated that the lender can terminate the contract in advance if the borrower has not paid the amounts owed or if it is declared insolvent.
Depending on the nature of the thing borrowed, the amount of the refund obligation may vary:
The obligation to pay interest
The borrower only has to pay interest if it has been agreed in writing, although there are practically no free commercial loans at present. According to article 315.2 of our Commercial Code, “any benefit agreed to in favor of the creditor will be considered an interest”, so it is not necessary to mention the word “interest” in the contract so that it exists in a commercial loan, but it is sufficient If the borrower agrees, he must return more than the amount received.
Although the interests are framed within the scope of the free will of the parties, the law establishes the following limits to avoid usurious loans:
In the event that the payment is total, if the borrower does not pay the interest due at the end of the loan, the lender can accept the payment waiving the right to charge interest. The payments made by the borrower destined to settle his debt, are first directed to cover the interests and then the capital unless another destination of the payment has been expressed.
If the borrower has not paid his debt on the day of maturity, he becomes delinquent and has the obligation to pay default interest. This interest may be different depending on the purpose of the loan:
In the event that the borrower does not pay interest, the loan will accrue default interest through the anatocism pact, which means that the lenders can capitalize the liquid and unpaid interest, generating in turn new interest. In order for the anatocism pact to be valid, it must be expressly stated in the contract.
Commercial loans are formalized in writing in a contract that the lender provides to the borrower and that will depend on the type of loan that is going to be subscribed.
When presenting these loans with a level of risk, their formalization is usually required through one of the following instruments:
The contract is granted before a notary, mainly because it gives it executive force and makes it possible for the lender to claim the debt judicially in the event of a default by the borrower.
In some small business loans, the lender formalizes the loan in a private document without the notary intervening.
For certain types of loans, the legislation requires this specific form of formalization.
Each commercial loan contract is governed by the provisions agreed in each case by the contracting parties, although there is always a minimum content of mandatory compliance.
The parties may or may not anticipate the expiration date, interest, default interest, the possibility of repaying the loan, etc. In the event that any of these circumstances are not foreseen, the law determines them in a subsidiary manner. For example, if the term of the contract has not been determined, the loan will expire 30 days after the lender has notarized the payment to the borrower; if the interest rate has not been specified, the contract is subject to the legal rate of the money; if default interests have not been specified, it is understood that they do not exist; and if the contract does not mention amortization, it is understood that it can not be applied.
However, the following aspects are essential to determine the validity of the contract:
Here is an example of a commercial loan contract with its normal content.
In MytripleA you can get a business loan for your business where private investors will lend you their money. Apply for your loan today and benefit from its advantages.