Fulfillment of obligations for non-cash payments. On the moment of fulfillment of a monetary obligation during non-cash payments. Monetary obligation: concept, procedure for execution

(edited) Federal Law dated July 26, 2017 N 212-FZ)

1. The payer’s bank, which has accepted a payment order for execution, in accordance with the payer’s order, is obliged to execute it in one of the following ways:

1) crediting funds to the recipient’s bank account opened with the same bank;

2) crediting funds to the bank account of the payee's bank opened with the payer's bank, or transmitting a payment order to the recipient's bank to write off funds from the bank account of the payer's bank opened with the payee's bank;

3) transfer of a payment order to an intermediary bank for the purpose of crediting funds to the bank account of the recipient’s bank;

4) other methods provided for by banking rules and agreement.

2. The bank is obliged to inform the payer about the execution of his payment order no later than the day following the day of execution of the payment order, unless a shorter period is established by the banking rules and agreement. The procedure for such information is determined by banking rules and agreement.

Comments on the article

In paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court Russian Federation dated April 19, 1999 No. 5 “On some issues in the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements”, a conclusion was made about the moment of fulfillment of the paying bank’s obligation to the paying client. It terminates from the moment the amount transferred by the payer’s bank is credited to the correspondent account of the recipient’s bank. At the same moment, the latter has an obligation to the recipient of funds to credit the transferred amount to his account. It is based on the bank account agreement.
To understand the position of the judicial authorities, it is important to take into account that the payee’s bank may have quite a lot of correspondent accounts in banks located around the world. It is hardly reasonable to believe that crediting the transferred amount to any of them should be considered proper execution of the payer’s instructions. Probably, we can talk about the correspondent account of the payee's bank, which is indicated in the payment order, taking into account the place of payment (Article 316 of the Civil Code), which can also follow from the payment order.

2. Settlements by payment orders are carried out by the payer, as a rule, for the purpose of proper fulfillment of his monetary obligation to the recipient of funds arising from the main agreement concluded between them.
Meanwhile, the current Russian legislation unambiguously determines the moment of fulfillment of a monetary obligation only in relation to the obligation to pay tax or make a mandatory payment to an extra-budgetary fund, as well as the obligation to repay the loan amount. In accordance with paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, this obligation is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to pay the corresponding tax if there is a sufficient cash balance in the taxpayer’s account, and when paying taxes in cash - from the moment the amount of money is deposited to pay the tax to the bank or cash desk of a local authority self-government or communication organization. The tax is not recognized as paid if the taxpayer withdraws or the bank returns to the taxpayer a payment order to transfer the tax amount to the budget (non-budgetary fund). Clause 3 art. 810 of the Civil Code provides that the loan amount is considered repaid at the time it is credited to the lender’s bank account, unless otherwise provided by the loan agreement.
The determination of the moment of fulfillment of a monetary obligation in other cases is carried out by arbitration practice based on the interpretation of the law. Previously, it was based on the fact that the payer’s monetary obligation to the recipient of funds should be considered fulfilled from the moment the funds are credited to the payee’s account, unless otherwise provided by the agreement. This conclusion was first made in the Review of the practice of considering disputes related to the execution, modification and termination of loan agreements, communicated by letter of the Supreme Arbitration Court of the Russian Federation dated January 26, 1994 No. OSCH-7/OP-48, in relation to the termination of the borrower’s obligation to return the loan provided credit to him. This approach was the basis for all decisions in cases regarding the fulfillment of monetary obligations. The practical application of this theoretical concept revealed its shortcomings. Let's say the payee's account is opened with a bank that has stopped making payments, but whose license has not yet been revoked. In this case, the money flowing to the payee will go to the correspondent account of the payee's bank, but will not be credited to the account of the payee himself. Due to the analyzed concept, the recipient of funds may believe that the payer, i.e. the debtor under the main obligation has not yet paid him and his monetary obligation has not ceased. In this case, the recipient of the funds may oblige the payer to transfer the funds again. But no matter how much the latter does this, the money will never reach the payee’s account until his bank restores solvency or the recipient of the funds changes the bank.
The indicated contradictions in the concept under consideration showed that it cannot be considered acceptable. That is why the approach to determining the moment of fulfillment of a monetary obligation when making payments by payment orders was changed by determining the moment when banks fulfill their obligation to the payer (see paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5). The obligation of banks is to make a payment in favor of the person specified by the payer. Therefore, the moment of fulfillment of this obligation is simultaneously the moment of making payment under the main contract (the moment of fulfillment of the monetary obligation).

3. A transaction involving a bank transfer can be considered as an agreement for execution to a third party (and not in favor of a third party). Therefore, the person indicated as the recipient of the funds does not acquire the right to demand the transferred amount from the banks participating in the transfer, except for his own - the recipient's bank. This right arises from the bank account agreement.

4. To carry out operations to transfer funds to the account specified in the client’s order, the payer’s bank has the right to involve other banks. From a legal point of view, such actions should be considered as entrusting the fulfillment of an obligation to a third party (Article 313 of the Civil Code). To carry out the payer’s instructions, both the Central Bank of the Russian Federation and other banks may be involved if there are appropriate correspondent relations with the payer’s bank.

5. When making paper payments, funds are credited to the payee's account on the basis of a copy of the payment order received by the payee's bank and an extract from his correspondent account confirming the receipt of cash coverage. In accordance with clause 2.18 of the Regulations of the Central Bank of the Russian Federation dated March 12, 1998 N 20-P “On the rules for the exchange of electronic documents between the Bank of Russia, credit institutions (branches) and other clients of the Bank of Russia when making payments through the settlement network of the Bank of Russia” the recipient bank payment agent credits funds received to his client on the basis of the following documents: 1) an extract from a personal account or an electronic reference and information document confirming the crediting of funds to an account with the Bank of Russia; 2) executed full-format EPD (reduced format EPD and settlement document for on paper, issued in accordance with the requirements of the Central Bank of the Russian Federation, or only an EPD of a shortened format, if this condition is provided for in the agreement between the bank and the client).

6. Crediting of funds to the payee's account must be carried out by his bank taking into account all the information contained in the payment document received by him, unless otherwise provided by the bank account agreement. Special rules are established by the legislation on electronic payments. The amount of the electronic transfer is credited to the correspondent account of the recipient's bank in the settlement network of the Bank of Russia programmatically only in accordance with the values ​​of the digital details of the payer and recipient (BIC credit organization, N of its correspondent account, etc.) regardless of the content of the text details of the electronic payment order (name of the payer/recipient, purpose of payment). Claims arising from incorrect crediting of funds to recipients' accounts due to a discrepancy between digital and text details must be regulated bypassing the divisions of the settlement network of the Central Bank of the Russian Federation (clause 1.6 of the Regulations of the Central Bank of the Russian Federation dated June 23, 1998 N 36-P "On interregional electronic payments carried out through the settlement network of the Bank of Russia"). Other rules may be established by law or the Exchange Agreement (clause 2.13 of the Regulations of the Central Bank of the Russian Federation dated March 12, 1998 N 20-P “On the rules for the exchange of electronic documents between the Bank of Russia, credit institutions (branches) and other clients of the Bank of Russia when making payments through settlement network of the Bank of Russia").

7. In accordance with paragraph 3 of the comment. Article the client has the right to demand from the bank information (notification) about the execution of the order (report). The procedure for execution and the list of data contained in such a notice must be provided for by law, the banking rules established in accordance with it, or an agreement of the parties.
Transaction reports can be provided in the form of account statements for each transaction or periodically for a group of transactions performed. Rules of conduct accounting in credit institutions located on the territory of the Russian Federation, approved. By Order of the Central Bank of the Russian Federation dated June 18, 1997 N 02-263, it was established that the procedure and frequency of issuing account statements should be determined in the card of sample signatures and seal impressions. Typically, client account statements are issued not after each transaction, but once every 3, 5, 10, etc. days.

When fulfilling a monetary obligation great importance has the debtor comply with the procedure for its execution. Moreover, if we are talking about execution by bank transfer, it is important to correctly determine the moment when the obligation is considered fulfilled. Read about the risks and nuances of fulfilling monetary obligations by bank transfer in this article.

In a monetary obligation, it is important for the creditor to receive the funds due to him on time and in full, and for the debtor to fulfill it and be freed from the debt burden. In non-cash payments, the debtor gives an order to the bank servicing him to transfer a certain amount of money to the creditor's account. The amount specified in the payment order is debited from the debtor's account and from the correspondent account of his bank and transferred to the correspondent account of the bank that services the creditor, where it is subsequently credited to the creditor's account. If the accounts of the creditor and debtor are in the same bank, then the bank's correspondent account is not used, and the bank simply debits the corresponding amount of money from the account of one client and credits it to the account of the other.

At normal conditions civil turnover, when the banks participating in the settlements are reliable and do not experience problems with solvency, the debtor most likely will not have any problems, because sooner or later the money will reach the creditor, even if the bank violates the payment deadline. However, what to do in a situation where the bank of the debtor or creditor turned out to be bankrupt, and the money was never credited to the creditor’s account?

How do the rules for fulfilling a monetary obligation work?

According to the new version of Art. 316 of the Civil Code (as amended by Federal Law No. 42-FZ of March 8, 2015 “On Amendments to Part One of the Civil Code of the Russian Federation”), if the place of fulfillment of the obligation is not determined by law, other legal acts or agreement, is not evident from customs or substance obligations, execution of a monetary obligation to pay non-cash funds must be made at the location of the bank (its branch, division) servicing the creditor. As for the moment of fulfillment of the obligation, then general rule the obligation is considered fulfilled from the moment funds are received into the creditor’s current account (see, for example, the decision of the Nineteenth Arbitration Court of Appeal dated November 28, 2012 in case No. A35-7047/2012). The norm contained in paragraph. 6 hours 1 tbsp. 316 of the Civil Code of the Russian Federation is dispositive, therefore the parties have the right to change the terms of fulfillment of the monetary obligation in the contract at their discretion (paragraph 2, paragraph 4, article 421 of the Civil Code of the Russian Federation). For example, they may provide that a monetary obligation is considered fulfilled from the moment funds are written off from the debtor’s account or even from the moment he submits a payment order to his servicing bank to write off money.

The bank's license was revoked: which party bears the risks?

The distribution of the risk of bankruptcy of the bank involved in the settlement chain between the parties to the transaction depends on the moment at which the monetary obligation is considered fulfilled. If the money has not been received into the creditor’s account, and the condition that the monetary obligation is considered fulfilled from a different moment is not in the agreement, then in the event of bankruptcy of the creditor’s bank, until the money is credited to the creditor’s account from the bank’s correspondent account, the debt is not considered repaid. The debtor still must pay the debt to the creditor and at the same time acquires a right of claim against the bank as part of the bankruptcy case. For example, in one case, the ministry entered into a government contract with a company. After some time, the parties entered into an additional agreement, which made changes to the payment details of the contractor. Without paying attention to the change in payment details, the ministry erroneously transferred half of the contract amount as an advance payment according to the details specified in the original version of the contract. Later, the ministry nevertheless fulfilled its obligations to pay in full. At the same time, the bank to which the ministry mistakenly sent money had its license revoked, and the company executing the government contract was included in the register of bank creditors with demands for the very amount that the ministry mistakenly transferred. As a result, the ministry filed a lawsuit against the company for unjust enrichment. The dispute reached the Presidium of the Supreme Arbitration Court of the Russian Federation, which indicated that the risks associated with the insolvency (bankruptcy) of a bank should not be placed on the party to the contract that has a current account in such a bank. These risks were transferred to the ministry, since, having transferred the money to the wrong account, it fulfilled the obligation improperly: not in accordance with the amended terms of the government contract, which were agreed upon by the parties, but in accordance with the previous version of the contract. However, a fair distribution of risks between the parties to the contract should not lead to unjust enrichment of one party at the expense of the other. As a result, the Presidium of the Supreme Arbitration Court of the Russian Federation sent the case for a new consideration to the court of first instance, noting that during a new consideration of the case, the court should invite the ministry to clarify the claims - to demand the transfer of the rights of a bankruptcy creditor in a bank bankruptcy case (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 30. 2013 No. 1142/13).

If the bank, after receiving funds into its correspondent account before the date of revocation of its license to carry out banking operations, credited them to the creditor’s account, then the right of claim against the bank passes to the creditor, and the debtor is no longer obliged to it. By virtue of clause 5, part 9, art. 20 of Federal Law No. 395-1 dated December 2, 1990 “On Banks and Banking Activities”, from the moment the credit organization’s license to carry out banking operations is revoked, the acceptance and making of payments through the credit organization’s correspondent accounts to the accounts of the credit organization’s clients (individuals and legal entities) ceases. Credit institutions return payments received after the day of revocation of the license to carry out banking operations in favor of clients of the credit institution to the accounts of the payers in the sending banks.

If the deadline for fulfilling a monetary obligation is missed due to the fault of the bank, which untimely fulfilled the debtor’s order to transfer money to the creditor, the debtor will be able to present the penalty collected from him by the creditor for violating the payment deadline to the bank as his losses caused as a result of the bank’s violation of the bank account agreement, and also demand recovery penalty interest (Articles 15, 393, 395 and 856 of the Civil Code of the Russian Federation). To do this, he should involve the bank in the case of collecting a penalty from it for late payment and achieve the maximum possible reduction in the penalty presented to him by the creditor (Article 333 of the Civil Code of the Russian Federation), so that when deciding in the future the issue of collecting losses from the bank, it will be obvious that the debtor has taken all reasonable measures within his power to reduce his losses.

The risks associated with transferring money using out-of-date details are borne by the debtor himself, unless he proves that he used the information he had and the creditor did not provide him with other information. Now this rule is enshrined directly in the Civil Code of the Russian Federation: if, after the occurrence of an obligation, the place of its fulfillment has changed, in particular, the place of residence of the debtor or creditor has changed, the party on whom such a change depended is obliged to compensate the other party for additional costs, and also assumes additional risks related to a change in the place of fulfillment of the obligation (clause 2 of Article 316 of the Civil Code of the Russian Federation). Therefore, the creditor should immediately notify the debtor of any changes in payment details. Changing payment details can be done in various ways: by concluding an additional agreement, sending a notification, including by e-mail, if such a procedure is provided for in the contract (see, for example, the resolution of the Federal Antimonopoly Service of the Central District dated April 12, 2012 in case No. A08-497/2010-21).

There is one more important nuance. The bank's fulfillment of obligations to credit funds received to the client's account and transfer them from the account, as well as the client's disposal of the funds in his account, credited by the bank, including when he fulfills his own obligations to the client, can only be carried out if the bank's correspondent account has the necessary funds (Definition of the Constitutional Court of the Russian Federation dated July 25, 2001 No. 138-O). In the absence of funds in the correspondent account, the bank is unable to actually fulfill clients’ orders due to insolvency; non-cash money as account entries loses its purpose as a means of payment. The situation is particularly specific when settlement transactions are carried out between clients of the same bank, since in this case its correspondent account is not used at all. Thus, when a transaction is carried out between clients of one bank to issue a loan under a loan agreement signed between them in conditions of the actual insolvency of the bank and the absence of funds in its correspondent account, the loan agreement is not considered concluded, since no actual transfer of funds occurs. At the same time, as a result of the bank transaction of debiting money from the lender's account and crediting it to the borrower's account, the correspondent account of the bank itself is not used, therefore, in this case, it is considered that the lender has ceded to the borrower the right to claim funds as part of the bank bankruptcy case. However, given that in a bank bankruptcy case there is only an abstract possibility of full satisfaction of the claims of third-priority creditors at the expense of the property of the debtor (bank), it cannot be argued that the borrower will be able to obtain full satisfaction of his claims and thereby reimburse the lender the entire amount of the actual assignment requirements. In this regard, the lender has the right in the future to demand from the borrower not to return the loan issued, but to collect payment for the assigned right of claim, taking into account its real market value(Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 3, 2014 No. 2953/14).

In order to avoid conflicts and controversial situations, participants in civil transactions, when agreeing on the terms of concluded contracts, can be advised to specifically stipulate the place of fulfillment of monetary obligations, indicating the moment when they are considered fulfilled.

The fate of tax payments transferred through a credit institution declared bankrupt

In addition to private disputes with their partners, participants in civil transactions may also have problems with revenues from tax payments to the budget.

In practice, it happens that banks serving taxpayers are declared bankrupt, and a lawsuit is opened against them. bankruptcy proceedings. In this regard, the corresponding amount of tax does not go to the budget. However, the taxpayer fulfilled his obligations in a timely manner, instructing the bank to make the payment. Is it possible in such a situation to consider that he has a debt?

According to paragraph 2 of Art. 45 of the Tax Code of the Russian Federation, the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to pay the corresponding tax if there is a sufficient cash balance in the taxpayer’s account. District arbitration courts proceed from the fact that the transfer by taxpayers of payment orders to their servicing banks for the transfer of tax amounts to the budget if there is a sufficient amount of money in their accounts is the proper fulfillment of the obligation to pay tax (resolution of the Federal Antimonopoly Service of the East Siberian District dated 02/03/2011 in case No. A78-2527/2010, Far Eastern District dated 10/08/2009 No. Ф03-5145/2009). According to the position set forth in the resolution of the Constitutional Court of the Russian Federation dated October 12, 1998 No. 24-P, the taxpayer’s obligation to pay taxes is considered fulfilled at the moment when the seizure of part of his property, intended for payment to the budget as a tax, actually occurred. Such a withdrawal occurs when the bank debits the appropriate funds from the taxpayer’s current account to pay the tax, which indicates payment of the tax. At the same time, the taxpayer is not responsible for the actions of credit institutions participating in the multi-stage process of paying and transferring taxes to the budget. At the same time, it is important to take into account that the taxpayer must be conscientious, and the rule that the tax is considered paid from the moment the order for its payment is given to the bank works only if the taxpayer does not have information about the application of restrictions in relation to the bank serving him in terms of making payments ( Resolution of the Federal Antimonopoly Service of the West Siberian District dated May 26, 2010 in case No. A45-17836/2009). The presence of information about the insolvency of the bank, the lack of assets of the latter may indicate the bad faith of the taxpayer and that the payer did not fulfill his obligation to transfer the tax (resolution of the Federal Antimonopoly Service of the West Siberian District dated February 10, 2010 in case No. A75-3067/2009 ). In this case, the burden of proving the circumstances that served as the basis for the conclusion that the taxpayer is in bad faith rests with the tax authority (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 22, 2011 No. KA-A41/9282-11 in case No. A41-23066/09).

It is important to keep in mind that if the taxpayer has appropriate evidence indicating that all necessary conditions to be recognized as bona fide, the obligation to pay the corresponding tax is considered fulfilled regardless of the actual entry of the payment into the budget system of the Russian Federation (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated August 10, 2010 No. F03-5429/2010). Non-receipt of tax amounts to the budget due to the lack of funds in the bank's correspondent account does not affect the recognition of the obligation to pay tax payments as fulfilled, since it does not relate to the list of cases specified in paragraph 4 of Art. 45 of the Tax Code of the Russian Federation. The mere fact of the absence of funds in the bank’s correspondent account at the time of presentation of payment orders and debiting of tax amounts from the taxpayer’s account does not indicate bad faith of the taxpayer, since the legislation of the Russian Federation does not provide for the obligation of clients of credit organizations to check the availability of funds in the correspondent accounts of these organizations when opening accounts or transferring payment orders to them (resolution of the Federal Antimonopoly Service of the Moscow District dated August 22, 2011 No. KA-A41/9282-11 in case No. A41-23066/09). The absence of dishonest actions on the part of the taxpayer when using an account in a bankrupt bank will also be evidenced by his regular use of this account for settlements with counterparties and for paying taxes, which he can confirm with tax returns for the corresponding tax periods(resolution of the Moscow District Court of 02/09/2015 in case No. A40-61342/14).

Unscrupulous actions by a taxpayer may be evidenced by the fact that large sums are transferred to pay future tax payments in a situation where their amount is unknown and the tax payment deadlines have not yet arrived. In such a situation, the court compares the amounts of payments with the amount tax obligations indicated in tax returns, and if it is obvious that the taxpayer tried to use the funds deposited in the bankrupt bank to at least pay taxes, shifting the risk of bank bankruptcy to the budget, the court refuses to satisfy the request to recognize tax obligations as fulfilled (resolution of the Federal Antimonopoly Service of the Moscow District dated August 14, 2013 in case No. A41-50602/12). Transferred funds in a situation where the tax payment deadline has not yet arrived, in the absence of evidence that the taxpayer has always previously paid taxes in advance of the due date, indicate, in the opinion of the courts, his bad faith and desire to eliminate the risk of bankruptcy of the servicing bank ( Resolution of the Federal Antimonopoly Service of the Moscow District dated September 8, 2011 in case No. A41-27370/09).

The exception is the case when the payment of taxes upon the due date was divided by the taxpayer into two tranches, with the second part falling during the period when the bank’s license to carry out banking operations was revoked and it became insolvent. Since the total amount of tax payable to the budget in such a situation can be confirmed by the data of the tax return, the taxpayer has a chance to achieve recognition of the tax obligation as fulfilled, provided that there is a sufficient cash balance in his account (resolution of the Moscow District Court of January 25, 2013 in case No. A40-37852/12-99-194).

Thus, the taxpayer’s obligation to pay the amount of tax to the budget is considered fulfilled from the moment of presentation to the bank of an order to transfer funds from the taxpayer’s bank account to the budget system of the Russian Federation to the appropriate account of the Federal Treasury if there is a sufficient cash balance on it on the day of payment (clause 3 Article 45 of the Tax Code of the Russian Federation) provided that the taxpayer is not aware of information about the application of restrictions in relation to the bank serving him in terms of making payments. The fact that a taxpayer has information about the insolvency of the bank serving him indicates his bad faith and the absence of a real intention to fulfill his tax obligation.

For your information

On September 21, the Collegium for Economic Disputes of the RF Armed Forces will decide whether the buyer fulfilled the obligation to pay if he transferred funds on the same day when the seller closed the bank account without notifying the buyer in advance (Ruling of the RF Armed Forces dated July 30, 2015 in the case No. 306-ES15-5083).

Zorkoltsev R.D., lawyer.

IN practical activities Suppliers (contractors, performers), when concluding civil contracts for the supply of goods (performance of work, provision of services), which provide for settlements by simple bank transfer (payment orders), often face the following problem. Some buyers (customers) put forward a requirement to include in the contract a condition that the moment of fulfillment of the monetary obligation to pay for goods (work, services) must be one of the following points:

1. acceptance for execution by the payer's bank of a properly executed payment order for the transfer of funds to the recipient;
2. debiting funds from the payer’s bank (current) account;
3. debiting funds from the correspondent account of the payer’s bank;
4. receipt of funds to the correspondent account of the recipient's bank.

The legality of the payer’s inclusion in the contract of a condition regarding one of the four specified moments of fulfillment of its monetary obligation to pay raises doubts and a number of questions.

Risks of the payer and payee

The payer's motive for including such conditions is the following - he cannot and does not want to be responsible for the actions of the recipient's bank in the event that this bank does not fulfill its obligation to credit funds from its correspondent account to the account of the client (recipient). The payer faces risks when he properly prepares and sends a payment order to his bank, the funds will be debited from his bank account, but will not reach the recipient: at the same time, having lost the funds, he risks not receiving the recipient's counter-execution.

The recipient's risks if he agrees with one of the payer's specified conditions are as follows.

Firstly, he (as well as the payer himself) will not know the moment (date) of debiting funds from the correspondent account of the payer’s bank or the moment (date) of receipt of funds in the correspondent account of the recipient’s bank (depending on which of these moments should, in the opinion of the payer, be considered the moment of payment). According to Art. 849 of the Civil Code of the Russian Federation, under a bank account agreement, the bank has an obligation to the client to promptly write off (transfer) funds from the bank account and credit them to the bank account, but there is no obligation to notify the client about the debiting of funds from its correspondent account or the receipt of funds to its correspondent account check.

At the same time, this point is important for both parties, since under the terms of the contract providing for advance payment or advance payment, from this moment the calculation of the delivery period, performance of work, and provision of services can begin.

As for the moment (date) of the payer’s bank accepting for execution a properly executed payment order to transfer funds to the recipient or the moment (date) of debiting funds from the payer’s bank account, their determination does not cause difficulties: they are confirmed by the payer’s payment order with the bank’s mark acceptance of the order for execution and a note from the bank on the date of debiting funds from the payer’s bank account, as well as a statement of his account.

Determining the moment of receipt of funds in the recipient’s bank account does not cause difficulties for the parties to the agreement: it is confirmed by an extract from the recipient’s bank account.

For the recipient who is a supplier, contractor or performer, taking into account Art. 849 of the Civil Code of the Russian Federation and Art. 80 of the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” the delivery time for goods (performance of work, provision of services) may be reduced. He must fulfill his obligations within the period established by the contract, which, in connection with the terms of the payer, will begin to be calculated not from the moment funds are received in the recipient’s bank account, but from the moment the bank accepts the payer’s order for execution, or debits funds from the payer’s bank account, or debiting funds from the correspondent account of the payer's bank, or receiving funds to the correspondent account of the recipient's bank. In other words, from a time other than the date the funds arrive in the recipient's bank account. In cases where the contract provides for an advance or preliminary payment for goods (work, services), the supplier (contractor, performer) cannot begin to fulfill its obligations, since it cannot actually use the funds for the purchase of goods (production of work), including the purchase of materials , or to provide services.

In accordance with Art. 849 of the Civil Code of the Russian Federation, the bank is obliged to credit funds received to the client’s account no later than the day following the day the bank receives the corresponding payment document, unless a shorter period is provided for in the bank account agreement. At the same time, according to Part 3 of Art. 80 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)" the total period for making payments by non-cash payments should not exceed two business days if the specified payment is made within the territory of a subject of the Russian Federation, and five business days if the specified payment is made within territory of the Russian Federation<1>.

A document confirming the date of crediting funds to the recipient's account is a bank account statement. The recipient will not be able to find out from this statement the date of crediting of funds to the correspondent account of his bank, since such a date is not contained in the specified statement. The payer himself cannot do this either, since from his payment order with bank marks he can only find out the date the funds were debited from his bank account.

According to clause 1.8 of Part II of the Regulations of the Central Bank of October 3, 2002 No. 2-P “On Non-Cash Payments in the Russian Federation” (hereinafter referred to as the Regulations on Non-Cash Payments, the Regulations), transactions involving the debiting of funds from the correspondent account of a credit institution or crediting to this account is confirmed by an extract from the correspondent account in the prescribed form. Depending on the method of exchange of settlement documents adopted in the division of the Bank of Russia settlement network, it can be on paper or in the form of an electronic service information document, which the credit institution receives within the time frame and in the manner established by the account agreement or the agreement defining the procedure for the exchange of electronic documents using information security tools. Consequently, documents not provided for by law, containing information about the date of receipt of funds to the correspondent account of the recipient's bank (for example, a certificate from the recipient's bank issued to the recipient, if one is provided to him at all), in accordance with Art. 68 Arbitration Procedure Code of the Russian Federation and Art. 60 of the Code of Civil Procedure of the Russian Federation will not be admissible evidence.

It follows from this that only the executing bank can receive a statement from the correspondent account of the corresponding bank within the framework of interbank settlement relations. The recipient bank can issue a statement on its correspondent account only to another executing bank participating in the settlement chain, but not to the payer or the recipient. The payer only has the right to demand such information from his bank, thus initiating the process of obtaining information about the debiting of funds from the correspondent account of his bank or their receipt to the correspondent account of the recipient's bank.

The question remains open about the procedure for the relationship between the parties to the agreement in the case where the recipient does not have information about the receipt of funds in his bank account for a certain period beyond the period established for completing a bank transfer transaction. If the payer has made a payment, and there is no information about the receipt of funds in the recipient’s bank account, then the question remains unclear for the parties about the further procedure for the fulfillment of obligations by the recipient of obligations to supply goods (perform work, provide services): whether he must fulfill his obligations if the funds didn't arrive in his bank account?

What will Russian legislation say?

In the legal literature, authors often avoid resolving the question of what is considered the moment of fulfillment of the payer’s monetary obligation to the recipient, answering only questions related to the moment of fulfillment of the payer’s bank’s obligation to the payer to transfer funds within the framework of non-cash payments by payment orders.

So, in particular, V.A. Belov only confirms the position of the Plenum of the Supreme Arbitration Court of the Russian Federation, set out in Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5 “On some issues of the practice of considering disputes related to the conclusion, execution and termination of bank account agreements”,<2>about the moment of receipt of funds to the correspondent account of the recipient bank as the moment of execution of the payment order of the payer bank to its client<3>. Paragraph 3 of the Resolution states that, in accordance with Art. 865 of the Civil Code of the Russian Federation, the payer’s bank is obliged to transfer the corresponding amount to the recipient’s bank, which, from the moment funds are credited to its correspondent account and receives documents that are the basis for crediting funds to the recipient’s account, has an obligation based on a bank account agreement with the recipient of funds to credit the amount at the expense of the latter (clause 1 of Article 845 of the Civil Code of the Russian Federation). Therefore, when resolving disputes, it should be taken into account that the payer’s bank’s obligation to the client under a payment order is considered fulfilled at the time the corresponding amount of money is properly credited to the recipient’s bank account, unless otherwise provided by the agreement between the client’s bank account and the payer’s bank.

The opinion is also expressed that the debtor (payer) under the main monetary obligation cannot bear the risk associated with the creditor’s choice of the bank serving the latter. Therefore, “such a monetary obligation should be considered fulfilled from the moment the funds are credited to the correspondent account of the bank serving the creditor (recipient of the funds). Accordingly, the liability of the bank that accepted the payment order from the payer should be limited to the moment the funds arrive at the bank’s correspondent account, serving the recipient of funds"<4>.

However, this approach does not solve the problem. It is important to note that one of the conditions proposed by the payer regarding the moment of fulfillment of a monetary obligation is possible only within the framework of the performance of a public obligation. In particular, the taxpayer’s obligations to pay tax in accordance with Part 2 of Art. 45 Tax Code RF, when the money received cannot and should not be spent from the budget immediately and it is practically impossible to obtain evidence of receipt of funds into the budget. According to this norm, the obligation to pay tax when using a non-cash form of payment is considered fulfilled by the taxpayer from the moment of presentation to the bank of an order to pay the corresponding tax if there is a sufficient cash balance in the taxpayer’s account.

In civil legal relations, when incoming funds are used within economic activity subject of civil legal relations and without them it is impossible to implement it entrepreneurial activity, such a condition, as well as all other conditions proposed by the payer regarding the moment of fulfillment of a monetary obligation when paying by simple bank transfer, is unacceptable. Norms Russian legislation regulating these relations exclude the possibility of applying these conditions.

It follows from Article 316 of the Civil Code of the Russian Federation: if for a monetary obligation the place of performance is not determined by law, other legal acts or agreement, or is not evident from business customs or the essence of the obligation, performance must be made at the place of residence of the creditor at the time the obligation arises, and if the creditor is legal entity - at its location at the time the obligation arises.

According to paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, the fulfillment of an obligation may be assigned by the debtor to a third party. In this case, the creditor is obliged to accept the performance offered for the debtor by a third party.

In the obligation to pay for goods (works, services) using bank accounts, the payer assigns the fulfillment of the obligation to a third party - the payer's bank. Due to the obligations to carry out non-cash payments through divisions of the Bank of Russia, the payer’s bank then assigns the fulfillment of the obligation to the cash settlement center (RCC) of the Bank of Russia, and so on - until the funds are transferred to the recipient’s bank for crediting to the latter’s account.

According to Art. 403 of the Civil Code of the Russian Federation, the debtor is responsible for non-fulfillment or improper fulfillment of an obligation by third parties who were entrusted with execution, unless the law establishes that the responsibility is borne by a third party who is the direct executor.

In accordance with paragraph 1 of Art. 866 of the Civil Code of the Russian Federation, in the event of non-execution or improper execution of a client’s order, the bank is liable on the grounds and in the amounts provided for in Chapter. 25 Civil Code of the Russian Federation. In addition, according to clause 2 of the same article, in cases where non-execution or improper execution of an order occurred in connection with a violation of the rules for performing settlement transactions by the bank hired to execute the payer’s order, the liability provided for in clause 1 of Art. 866, may be imposed by the court on this bank.

Consequently, in the event of failure of any bank participating in the settlement chain to fulfill its obligations to transfer funds, liability on the guilty bank can only be imposed in court. Before the court assigns it to a specific bank, according to Art. 403 of the Civil Code of the Russian Federation, the debtor (payer) will be considered responsible to the creditor in a monetary obligation. Thus, based on Art. Art. 403, 866 of the Civil Code of the Russian Federation, the payer is responsible for the actions of all executing banks, and it does not matter which of the banks participating in the execution did not fulfill or improperly fulfilled the obligations to transfer funds.

At the same time, without involving all banks in the case, including the executor’s bank, it is not possible to objectively establish the moment of receipt of funds in the correspondent account of the recipient’s bank; It is also not possible to establish the moment of debiting funds from the correspondent account of the corresponding executing bank participating in the settlement chain, if the receipt of such information in a pre-trial manner is not initiated by the payer through its bank. It turns out that without the participation of banks it is impossible to establish the moment from which the deadline for fulfilling the recipient’s obligation under a supply agreement (contract, provision of services) will be calculated.

Any bank that has violated banking rules can be guilty in a settlement relationship: the payer's bank, the executing bank (RCC Central Bank), the recipient's bank. Even if all banks executed the payer’s payment order for the transfer of funds, but the recipient’s bank did not, the execution of the agreement concluded between the parties (payer and recipient) may be suspended. If the funds do not arrive from the payer to the recipient’s bank account in which the counter-obligation is fulfilled, he, on the basis of Art. 328 of the Civil Code of the Russian Federation has the right to suspend the fulfillment of its obligation or refuse to fulfill this obligation.

According to clause 1.11 of Part II of the Regulations on Non-Cash Payments, payments made through accounts of credit institutions opened with the Bank of Russia are considered final from the moment funds are credited to the recipient's account in a division of the Bank of Russia settlement network.

Here the problem of double interpretation of this norm arises.

In accordance with paragraph. 2 clause 1.4 part I of the Regulations within the framework of non-cash payment forms, payers and recipients of funds (collectors), as well as banks and correspondent banks serving them, are considered as participants in settlements. At the same time, according to clause 1.5 of Part I of the Regulations, banks do not interfere in the contractual relations of clients, and mutual claims regarding settlements between the payer and the recipient of funds, except those arising through the fault of the banks, are resolved in the manner prescribed by law without the participation of banks.

Within the meaning of these norms, the term “recipient” is not identical to the term “bank”; Recipients of funds and the banks servicing them are different participants in the settlements. However, clause 1.11 of Part II of the Regulations, on the one hand, speaks of the “recipient’s” account, but on the other hand, of the “division of the settlement network of the Bank of Russia,” which are, in particular, the cash settlement centers of the Bank of Russia. The “recipient” account, which, according to clauses 1.4, 1.5 of the Regulations, means the recipient of the payment - supplier, contractor, performer, i.e. a person other than a bank is not located in a “division of the Bank of Russia settlement network”, but in its own bank.

What is this - an error in legal technology or a lack of logic in the norms of a regulatory legal act? It seems that the term “finality of payment” from clause 1.11 of Part II of the Regulations is identical in this case to the term “execution of payment”.

As stated above, in accordance with paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999, No. 5, when resolving disputes, it should be taken into account that the obligation of the payer bank to the client under a payment order is considered fulfilled at the moment of proper crediting of the corresponding amount of money to the bank account the recipient, unless otherwise provided by the agreement between the client’s bank account and the payer’s bank.

Correlating this provision with the norm of clause 1.11 of Part II of the Regulations on Non-Cash Payments, it is difficult to imagine what “other” could be provided for in the bank account agreement of the payer and his bank.

Let’s imagine that the payer’s bank in the bank account agreement with the payer has stipulated that the payer’s bank’s obligation to the client under a payment order is considered fulfilled at the moment the funds are debited from the payer’s account. Will this be legal? Based on clause 1.11 of Part II of the Regulations - no. Otherwise it would contradict the meaning of Art. Art. 403, 856 and 866 of the Civil Code of the Russian Federation and the rules for making non-cash payments.

At the same time, how can the payer’s monetary obligation to the recipient be considered fulfilled at the moment of debiting funds from the payer’s account, if this moment occurs before the moment of crediting the funds to the recipient’s account in a division of the Bank of Russia settlement network - the moment that is the end (fulfillment) of the obligation for non-cash payments in compliance with the Regulations on non-cash payments?

Under such circumstances, the time of fulfillment of the payer’s monetary obligation to the recipient cannot be considered all other moments that occurred earlier, in particular the moment the payer’s bank accepted the payer’s payment order for execution and the moment the funds were written off from the correspondent account of the payer’s bank. If it were otherwise, based on this approach, the recipient would probably be forced to independently “search” for the payer’s funds, which were “lost” after they were written off from the payer’s account, if for some reason they did not arrive at the recipient’s bank account or would go to the correspondent account of his bank.

He cannot do this, since he has no legal basis for this: he can present his claims only to his bank, and not to other banks participating in the settlement chain. Since the payer as a counterparty under the contract is responsible for the improper fulfillment of a monetary obligation, the recipient can also make a claim against him related to the lack of payment.

The recipient’s bank should also not “look” for the payer’s funds; it should only take the prompt measures provided for in paragraph 6 of Appendix 28 to the Regulations on Non-Cash Payments in the Russian Federation to obtain supporting documents and ensure that funds are credited as intended when the funds arrive at its correspondent account . It is quite natural that in payment orders prepared by payers there are often errors, including sometimes intentional ones. According to clause 7 of this appendix, the decision on the possibility of crediting received funds to customer accounts is made by the recipient's bank based on the confirmations received. Responsibility for the completed settlement transaction rests with the recipient's bank. If there are inaccuracies in the payment order regarding the name of the recipient or details, the amounts received to the correspondent account of the recipient's bank, if the details are not specified within five working days and the account owner is not identified, are returned to the payer's bank (see clause 8 of Appendix 28 to the Regulations on Non-Cash Payments). calculations).

When the court has sufficient information about the failure of the recipient bank to fulfill its obligations to credit funds, liability will be imposed by the court on this bank, and the recipient, on the basis of Art. 856 of the Civil Code of the Russian Federation will present claims against its bank for violation of the bank account agreement. In this case, the recipient, on the basis of Art. 328 of the Civil Code of the Russian Federation has the right to suspend the fulfillment of its counter-obligation under the contract. Moreover, if the funds never arrive in his bank account, he has the right to terminate the contract in accordance with Art. 451 of the Civil Code of the Russian Federation due to a significant change in circumstances (economic impossibility of its implementation).

Based on the foregoing, the question regarding the moment of fulfillment of the payer’s monetary obligation to the recipient arises only when funds are received in the correspondent account of the recipient’s bank. As for the rest of the specified moments of fulfillment of a monetary obligation, there is a clear discrepancy between them and the meaning of the rules of law in force in the Russian Federation, including the Regulations on non-cash payments.

International bank transfers

It is necessary to examine these relationships through the prism of international banking rules and customs.

At the level of unified banking customs, there is the Legal Guide of the United Nations Commission on International Trade Law (UNCITRAL) on electronic funds transfer (hereinafter referred to as the Guide; prepared by the Secretariat of the Commission, New York, 1987)<5>. In terms of its provisions regarding the determination of the end of a credit transfer (bank transfer), there are different approaches in different legal systems. Thus, in a number of legal systems, the moment of completion of the credit transfer can be both the moment of crediting the recipient’s bank account, when “subsequent crediting of the recipient’s account will not have consequences regarding the finality of the transfer of funds” (see paragraph 8 of Chapter IV of the Guidelines), and the moment crediting funds to the recipient's account, in which the recipient's bank does not make a specific decision to accept the transfer. Moreover, as is believed in many legal systems, it is after the moment the funds are credited to the recipient’s account that the transfer of funds becomes final and the recipient has the unconditional right to take these funds (see paragraphs 12, 15 of Chapter IV of the Guide).

At the level of UNCITRAL legal texts, there is the Model Law on International Credit Transfers, adopted in 1992<6>.

According to paragraph 1 of Art. 19 of the Model Law, a credit transfer carried out within the framework of international payments is completed by the acceptance of the payment order by the beneficiary's bank in the interests of the beneficiary. Upon completion of the credit transfer, the beneficiary's bank becomes the beneficiary's debtor in the amount of the payment order accepted by it. Completion of a credit transfer has no other impact on the relationship between the beneficiary and the beneficiary's bank.

At the same time, the commentary to the draft model law on international credit transfers notes: “If a payment order is addressed to the correct account, but the beneficiary’s bank does not credit that account or credits the wrong account, the transferor’s obligation to the beneficiary is considered fulfilled, and if the beneficiary suffers a loss in as a result of the incorrect credit accrual, he must seek redress from his bank in accordance with the law applicable to the relationship between account holders and banks."<7>.

Meanwhile, in the footnote to Art. 19 of the Model Law notes that “the commission proposes to States the following text, which they may wish to accept: “If a credit transfer was intended for the purpose of fulfilling an obligation of the transferor to the beneficiary, which can be satisfied by a credit transfer to an account specified by the transferor, then the obligation is satisfied at the moment when the beneficiary's bank accepts the payment order, and to the extent that it would have been executed by payment of the same amount in cash."

In a note prepared by the Commission secretariat for the Model Law in May-June 1994<8>, it is noted that at the moment the payment order is accepted by the beneficiary’s bank, in the interests of the beneficiary, the banking system fulfills its obligations to the transferor; measures in connection with the subsequent failure of the beneficiary's bank to take appropriate actions, if such a situation arises, must be taken by the beneficiary; these issues are not covered by the Model Law and are left to be decided by virtue of the law governing relations related to account management on other grounds (see paragraph 48 of the note).

With regard to the fulfillment of a monetary obligation arising from a contract, paragraph 51 of the note states that since credit transfers can be carried out in order to fulfill the obligations of the transferor to the beneficiary, then, “in the opinion of representatives of many countries in UNCITRAL, the Model Law should provide that completion of a credit transfer discharges the obligation to the extent that such an obligation would have been satisfied by payment of the same amount in cash.Other countries have argued that such a rule should not have been included in the Model Law<9>either because a rule for the performance of an obligation, whether contractual or otherwise, should be included in the banking law, or because the proposed rule is not correct. The final decision taken by UNCITRAL was to include such a rule in a footnote to Art. 19 for states that “may wish to accept” it.”

Thus, in particular, when considering the draft model law, the delegation of France, in its communication to the secretariat, proposed a different formulation regarding the moment of completion of the transfer: “Unless the sender and the beneficiary agree otherwise, the transfer is completed at the moment when the beneficiary’s bank makes funds available to the beneficiary or notifies him that this bank has funds intended for him at its disposal..."<10>.

Note that, although this note is not an official commentary on the Model Law, from its text one can discern the logic of the drafters of the Model Law and the logic of country representatives<11>who do not agree with the determination of the moment of fulfillment of the obligation to transfer funds, as defined in Art. 19 of the Model Law.

Taking into account all of the above, in our opinion, within the framework of the legal system of the Russian Federation for intranational settlements, the moment of fulfillment of the monetary obligation to pay arising from the agreement cannot be considered the moment of receipt of funds to the correspondent account of the recipient's bank. Russian legal reality, business customs, and arbitrage practice.

Because the general principle of the Model Law is not to affect the relationship between the beneficiary and the beneficiary's bank<12>, within the meaning of the Model Law, the completion of a credit transfer has no other effect on their relationship other than the fact that the beneficiary's bank becomes the beneficiary's debtor in the amount of the payment order accepted by it. Consequently, it does not affect the relationship between the payer and the recipient under a civil contract concluded between them, since the scope of relations between them, as well as between the beneficiary and his bank, remains outside the scope of the Model Law and should be regulated by the applicable law of the state .

In our opinion, for the Russian legal system, the receipt of funds in the correspondent account of the recipient’s bank means only the moment of fulfillment of the obligation for a bank transfer within the framework of settlement legal relations, but does not mean the moment of fulfillment of the payer’s monetary obligation to the recipient. Otherwise, it would mean that the recipient, having not received funds in his bank account, must begin fulfilling his counter-obligation, which directly contradicts Art. Art. 328, 451 of the Civil Code of the Russian Federation, and its legitimate interests.

Arbitrage practice

The judicial practice of the Supreme Arbitration Court of the Russian Federation and the federal arbitration courts of the districts follows the same path in determining the moment of fulfillment of a monetary obligation, considering it the moment of receipt of funds in the recipient’s bank account.

Thus, the Resolution of the Federal Arbitration Court of the Moscow District dated April 30, 2004 in case No. KG-A40/3316-04 states that the moment of fulfillment of a monetary obligation is the date of crediting the funds to the creditor’s account, and not debiting from the debtor’s account (Art. 316 of the Civil Code of the Russian Federation), and the place of fulfillment of a monetary obligation when making payments by payment orders is the creditor’s bank<13>.

Other judicial acts only confirm the position that the place of execution of a monetary obligation when making payments by payment orders is the creditor's bank, and the moment of execution is the receipt of funds in the creditor's bank<14>.

This approach is also followed by the Supreme Arbitration Court of the Russian Federation. According to paragraph 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation”<15>When deciding the moment of fulfillment of the obligation to return the corresponding amounts to the taxpayer by transferring them by bank transfer to the account specified by the recipient, the courts must be guided by the general rules, according to which the payer is recognized as having fulfilled his obligation from the moment the corresponding amount is received in the bank indicated by the recipient of the funds.

In this sense, the point of view of L. Somov (with reference to the same paragraph 23 of the said Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation) seems incorrect that arbitration courts, when resolving disputes about determining the moment of fulfillment of a monetary obligation, proceed from the fact that the moment of execution of the monetary obligation the moment of receipt of funds into the correspondent account of the recipient bank is recognized<16>.

As for the moment of execution of the payment order within the framework of the bank account agreement, some court decisions only confirm the general position of the Supreme Arbitration Court of the Russian Federation, specified in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5 “On some issues in the practice of considering disputes related to the conclusion, execution and termination of bank account agreements", which in accordance with Art. 865 of the Civil Code of the Russian Federation, the payer’s payment order is considered executed at the moment the funds arrive in the recipient’s bank account<17>.

Meanwhile, within the meaning of clause 1.11 part II of the Regulations on non-cash payments for settlements carried out through divisions of the Bank of Russia, the moment when the payment is considered final is the moment the funds arrive in the recipient’s account located in the division of the Bank of Russia. If in this case the recipient is understood to be the recipient's bank (and not the recipient himself - the bank's client), then it should be noted that the correspondent account of the recipient's bank is located in a division of the Bank of Russia, and the recipient's account is in the recipient's bank.

Since the place of fulfillment of the payer’s monetary obligation is the recipient’s bank, and not a division of the Bank of Russia (after all, a division of the Bank of Russia settlement network is not the bank of the creditor - recipient), therefore, at such a moment of fulfillment of the monetary obligation (receipt of funds to the correspondent account of the recipient’s bank) with it the place of its execution will not coincide. Such a discrepancy between the place and moment of fulfillment of the monetary obligation does not allow us to consider the correspondent account of the recipient’s bank, located in a division of the Bank of Russia, as the place of fulfillment of the payer’s monetary obligation to the recipient.

In accordance with Art. 408 of the Civil Code of the Russian Federation, proper performance terminates the obligation. The creditor, accepting the performance, is obliged, at the request of the debtor, to issue him a receipt for receipt of the performance in full or in the relevant part.

When fulfilling a payer's monetary obligation by transferring funds by bank transfer, the document confirming fulfillment will only be an extract from the recipient's bank account, and it does not allow determining the moment of receipt of funds to the correspondent account of the recipient's bank.

Thus, if the funds do not reach the recipient (to his bank account), one of the conditions for proper execution (execution to the proper person - see Article 312 of the Civil Code of the Russian Federation) will not be met. Under such circumstances, the receipt of funds in the correspondent account of the recipient’s bank cannot be considered the moment of fulfillment of the payer’s monetary obligation under the agreement.

Returning to the payer’s motive that he cannot be held responsible for the actions of the recipient’s bank in the event that this bank does not fulfill its obligation to credit funds from its correspondent account to the bank account of the client (recipient), then in such circumstances, it seems, The moment of receipt of funds into the correspondent account of the recipient's bank can be considered the moment upon which the payer is released from liability to the recipient for late payment, and the payer's bank is considered to have fulfilled its obligations to the payer. But this moment cannot be considered the moment of fulfillment of the payer’s monetary obligation to pay for goods (works, services) under the contract, since one of the elements in the chain of fulfillment of the monetary obligation to pay - crediting funds from the recipient’s bank account to the recipient’s account - has not been completed.

Along the way, we will say that the subjects of civil legal relations, which in the case under consideration are the payer and the recipient, cannot and should not in any way interfere with “their agreements” (read - contracts) in the area of ​​bank settlements<18>, which has its own prudential regulation, and in these contracts they themselves “set” the moment of fulfillment of monetary obligations. In our opinion, this should be done by the legislator. No matter how much it may seem to such entities on the part of the payers that they are defending “the position of their company,” the provisions of the agreement that contradict the imperative norms of banking law (Article 422 of the Civil Code of the Russian Federation) are declared invalid by virtue of Art. Art. 168, 180 Civil Code of the Russian Federation.

An expansive interpretation of the dispositive norm of Art. 316 of the Civil Code of the Russian Federation, “unless otherwise provided by the contract”, in relation to settlements by payment orders is unacceptable, because in addition, the fact that the moment of payment is considered the moment of receipt of funds into the recipient’s account is easily confirmed by business customs: most counterparties-entrepreneurs, even if they determine in the contract the moment of fulfillment of the monetary obligation, then it recognizes as such the moment of receipt of funds to the recipient’s bank (settlement) account.

The parties to the contract can be recommended to provide in the contract any mechanism that their legal imagination suggests to them, a mechanism for monitoring the fulfillment of obligations related to payment. Of course, even in this case, the recipient’s right to suspend the fulfillment of a counter-obligation if the funds do not arrive in his bank account does not disappear.

The Civil Code of the Russian Federation does not directly indicate at what point a monetary obligation is considered fulfilled. In accordance with clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Court of the Russian Federation dated October 8, 1998 N 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds,” the moment of fulfillment of a monetary obligation is determined based on the provisions of Art. 316 of the Civil Code of the Russian Federation on the place of its execution.

According to para. 5 tbsp. 316 of the Civil Code of the Russian Federation, execution must be carried out at the place of residence of the creditor (or location if the creditor is a legal entity). Consequently, the moment of fulfillment of the customer’s obligation to pay for the work in cash will be the moment of depositing funds into the contractor’s cash desk. The same point can be established in the contract.

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An example of a condition statement:

“The customer’s obligation to pay is considered fulfilled at the moment the funds are deposited into the contractor’s cash desk.”

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For non-cash payments, the place of fulfillment of the obligation is the location of the bank where the creditor's account is opened. Thus, the moment the customer fulfills the obligation to pay for the work will be considered the moment the funds are credited to the contractor’s bank account.

However, there is another position regarding the moment of fulfillment of monetary obligations when paying by bank transfer. By virtue of Art. Art. 863, 865, 845 of the Civil Code of the Russian Federation and clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 N 5 “On some issues of the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements”, the payer bank’s obligation to the client on a payment order is considered fulfilled from the moment of proper crediting of funds to the correspondent account of the recipient’s bank. Consequently, the payer’s obligation can be considered fulfilled from this moment.

Considering the ambiguity of the courts’ positions regarding the moment of fulfillment of the obligation to pay for non-cash payments, the parties should fix this point in the contract. Due to the principle of freedom of contract (clause 4 of Article 421 of the Civil Code of the Russian Federation), the moment of payment can be defined as:

a) the moment of crediting funds to the contractor’s bank account.

This condition is beneficial to the contractor, since until the funds arrive in his account, the work performed will be considered unpaid. Consequently, the contractor has the right to collect the debt from the customer, even if the money has already been debited from the customer’s current account, but has not been credited to the contractor’s account due to the fault of the bank servicing it.

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An example of a condition statement:

“The customer’s obligation to pay is considered fulfilled at the moment the funds are credited to the contractor’s bank account.”

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When determining the moment of payment for work performed in this way, in order to protect the customer from the dishonesty of the contractor’s bank, it is recommended that the contract provide for:

• the contractor’s obligation to assist the customer in protecting his rights (to present claims and demands to the bank in case of improper performance of the bank account agreement);
• fine for failure of the contractor to fulfill this obligation;

b) the moment of crediting funds to the correspondent account of the contractor’s bank or the customer depositing funds into the contractor’s cash desk;

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An example of a condition statement:

“The customer’s obligation to pay is considered fulfilled at the moment the funds are credited to the correspondent account of the contractor’s bank.”

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When determining the moment of fulfillment of the obligation by crediting funds to the correspondent account of the contractor's bank, the parties should take into account that the customer's obligation to pay for services will not be considered properly fulfilled if the documents that are the basis for crediting funds to the contractor's current account are not submitted to the contractor's bank.

c) the moment of debiting funds from the customer’s current account or correspondent account of the customer’s bank.

This condition protects the interests of the customer in case of dishonesty of the bank of one of the parties, but entails negative consequences for the contractor, who may not receive money for the work performed due to the fault of the customer’s bank.

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Examples of condition wording:

“The customer’s obligation to pay is considered fulfilled at the moment the funds are written off from the correspondent account of the customer’s bank.”

“The customer’s obligation to pay is considered fulfilled at the moment the funds are written off from the customer’s current account.”

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With this definition of the moment of payment for work performed (i.e., when the work is considered paid even before funds arrive in the contractor’s bank account), it is recommended that the contract provide for:

• the obligation of the customer to assist the contractor in protecting his rights (to present claims and demands to the bank in case of improper performance of the bank account agreement by him);
• fine for failure of the customer to fulfill this obligation.

The parties are not recommended to set as the moment of payment for work the moment the customer’s bank accepts for execution a payment order to transfer funds to the contractor, since such a condition may be recognized by the court as contrary to the Civil Code of the Russian Federation with respect to the proper fulfillment of obligations.

The license of the contractor's bank or the customer's bank may be revoked, and therefore the money for the work performed may not be credited to the contractor's bank account or he may not be able to use it. In this case, the parties (especially the customer) will need to take certain measures to prevent delays in fulfilling their obligations.

If the time of payment is not specified in the contract

In the case of payment for services by bank transfer, the moment of payment, depending on the position of the court, may be recognized as:

• the moment of crediting funds to the correspondent account of the contractor’s bank, that is, the same moment at which, within the meaning of Art. Art. 863, 865, 845 of the Civil Code of the Russian Federation and clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 N 5 “On some issues of the practice of resolving disputes related to the conclusion, execution and termination of bank account agreements”, the payer’s bank is considered to have executed the client’s order to transfer funds ;
• the moment the funds are credited to the contractor's bank account.

The procedure for determining the moment of fulfillment of obligations by payers and credit institutions during non-cash payments for civil obligations is not clearly regulated by law. Therefore, this issue is resolved through law enforcement practice.
General principle determining the moment of fulfillment of a civil obligation in non-cash payments is determined through the interpretation of Article 316 of the Civil Code of the Russian Federation, according to which the place of fulfillment of a monetary obligation is the location of the creditor - legal entity. Judicial and arbitration practice recognizes the location of a creditor - a legal entity as the location of its bank account.
Taking this into account, as a general rule, when repaying a monetary obligation of a civil nature by transferring funds by bank transfer, the creditor - recipient retains the right of claim against the debtor - payer (and when paying by check - also against avalists and endorsers) until these funds are credited to his account.
In this case, this rule applies unless otherwise determined by law, other legal acts or agreement, or is clear from business customs or the essence of the obligation. Therefore, the parties to the agreement may stipulate another moment for the fulfillment of the main obligation (for example, the moment of debiting funds from the payer’s account or from the correspondent account of the payer’s credit organization). However, this will mean that the risk of payment from this moment until the funds are credited to the correspondent account of the credit institution of the recipient of the funds rests entirely with the recipient of the funds. At the same time, filing a direct claim for this period against the payer’s credit organization on his part is impossible due to the absence of contractual relations between them.
Credit institutions servicing the accounts of the debtor - the payer and the creditor - the recipient of funds also have corresponding obligations of a monetary nature related to the transfer and crediting of funds to their accounts, or obligations related to the transfer of settlement documents.
The payer's credit organization is considered to have fulfilled its obligations to it from the moment the funds are credited to the correspondent account of the credit organization of the recipient of the funds and the documents that are the basis for crediting the funds to the recipient's account are transferred to it. From this moment on, the credit institution of the recipient of the funds has obligations to credit the funds to his account.
Bill obligations should be considered separately. If settlements under a bill of exchange obligation are made in a non-cash manner, the debtor on the bill of exchange is not considered to be in arrears if he has carried out the necessary actions related to the transfer of funds to the creditor at the place of payment and within the established period. In this case, the agreement of the parties may provide for other rules defining the procedure for fulfilling the bill of exchange obligation in non-cash form.

More on the topic § 2. Determining the moment of fulfillment of obligations in settlements of civil obligations:

1. Collateral as a way to ensure the fulfillment of obligations in the primary housing mortgage lending market.
2. § 1. The importance of bank accounts for making payments.
3. § 2. Determination of the moment of fulfillment of obligations in settlements under civil obligations.