The commercial loan, complete guide

The commercial loan, complete guide

Préstamo mercantil 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

What is the mercantile loan

What is the mercantile loan

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.

Legal nature of the commercial loan

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

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:

  1. One of the loan parties must be a merchant. For this purpose, a merchant is considered to be all the commercial companies and all the natural persons who, being able to trade, habitually dedicate themselves to it.
  2. Loaned things must be used in acts of commerce.

Taxation and taxation of commercial loans

Taxation and taxation of commercial loans

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.

Characteristics of the mercantile loan

According to the dominant doctrine, the commercial loan enjoys the following characteristic notes:

  • Transfer of ownership: the lender undertakes to deliver the property of the thing or money, and the borrower can dispose of the thing loaned by committing to its return in kind or its equivalent in money.
  • Main: it does not depend on another contract for its existence and validity, it has purposes and a life of its own.
  • Unilateral: it only produces obligations in one of the parties, the borrower; although if it is agreed between the parties it can also be considered bilateral.
  • Real contract: the effects of the loan do not arise until the delivery of the property is made.
  • Free by nature and onerous by exception: it is free because the borrower is not obliged to pay any consideration if it is not expressly agreed, although in commercial practice, the professional nature of the lenders derives to include the onerousness in the contracts.
  • Commutative: from the moment that the parties conclude the contract they know the charges and the liens that are determined in it.
  • Personnel: the relationship is established in consideration of the client’s personal circumstances.
  • Successive or instantaneous tract: the return of the borrowed thing, can be done in a single act or in several.

Classes of commercial loans

Classes of commercial loans

Four types of loans are distinguished according to different variables:

According to the nature of the thing borrowed

Three types can be differentiated in turn.

  1. The loan that has as its object money: the borrower receives and undertakes to refund a certain amount of money.
  2. The loan that has as its object specific securities or securities: the borrower must later return those securities for identical or equivalent ones.
  3. The loan for fungible items: the borrower must return the fungible item (merchandise, raw materials, etc.) in the same amount and kind unless it is impossible due to the expiration of the fungible item, in which case the refund will be made. cash value.

According to the duration of the commercial loan

According to the duration of the commercial loan

  1. Loan for a specific time: the one stipulated in the contract.
  2. Indefinite loan: 30 days from when a formal notification is made.

According to whether the borrower has to pay interest or not for the commercial loan

According to whether the borrower has to pay interest or not for the commercial loan

  1. Free loan: no interest is paid, it does not usually exist in practice.
  2. Loan onerous: interest is paid, is the most common.

According to whether the loan is guaranteed or not

  1. Loans without special guarantee.
  2. Secured loans (mortgages, personal guarantees, etc.): credit institutions usually require collateral. At this point, we would include loans with collateral securities, where the fulfillment of the obligations is guaranteed by a pledge on securities admitted to trading on the stock exchange or another official secondary market.

The content of the commercial loan contract

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.

Merchant loan elements

Within the elements of the contract we find two types that in turn are subdivided into several more:

Personal items

  • Lender: individual or legal entity that delivers the fungible thing or pays the money.
  • Borrower: individual or legal entity that receives the requested thing or amount.

Real elements

  • Goods subject of the contract: they are the fungible goods or monetary amount on which the relationship of the contract is established.
  • Agreed term marks the duration of the loan and the exact date of its expiration.
  • Interests: if the loan is onerous, it is the sum that the borrower agrees to pay to the lender. They are legal if they are paid in the agreed form, and late or procedural if paid after the deadline.

Obligations of the parties involved in commercial loans

There are two types of obligations in relation to the two parties involved in commercial loans:

Obligations of the lender

Obligations of the lender

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.

Obligations of the borrower

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:

  1. If the loan is cash, the borrower must return an amount equal to the amount received according to the legal value of the currency at the time of the return. The legal value of a currency is not the same as the market value, so if there are variations between the two the lender may suffer losses or gains. If the loan has been agreed in foreign currency, the amount must be returned in that currency. If this is not possible, it must be returned in euros at the exchange rate on the due date.
  2. If the loan is securities or securities, the debtor must return the same class and conditions. If these have been extinguished, the parties may have agreed to pay the value of the same in cash. In the event that nothing has been agreed upon, the borrower must deliver other equivalent values.
  3. If the loan is in kind, they are usually merchandise, the borrower must deliver another of the same kind and quantity. If it had been extinguished, it would have to deliver its equivalence in money or stipulated in a pact between the parties.

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:

  • When the interest is significantly higher than the normal of the money and disproportionate in relation to the specific case.
  • When the conditions are injurious to the right of the borrower and all the benefits have an impact on the lender.
  • When it is considered that the amount delivered to the borrower as a loan is higher than the real one.

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:

  • If the loan in monetary, the moratorium interest will be that stipulated in the contract or, failing that, the one stipulated in the Law of General Budgets of the State.
  • If the loan is of securities or securities, the interest rate will coincide with the profitability that they produce, or in their absence, with the legal interest.
  • If the loan is in kind, the interest rate will be a percentage of the value of the fungible thing. If that merchandise is extinguished, the experts will determine the amount of the late interest.

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.

Formalization of commercial loans

Formalization of commercial loans

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:

Policy intervened before a notary public (notary)

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.

Public deed granted before a notary

For certain types of loans, the legislation requires this specific form of formalization.

Merchant loan contract

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:

  • The identification of the parties and the ability to represent individuals with authorization to act on behalf of legal persons.
  • The legal capacity to contract the parties.
  • The object of the contract, where the specification must be indicated that something is lent for the subsequent return of something else of the same kind and quality. It is also necessary to indicate the characteristics and essential to identify the good or fungible object of the contract.
  • Date of granting the contract, from which the loan relationship begins.
  • Signature of the contracting parties.

Example of a commercial loan contract

Example of a commercial loan contract

Here is an example of a commercial loan contract with its normal content.

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