Reading 10 min. Views 735 Published on 10/13/2018
The term "acceptance" is widely used in the financial sector. Ordinary people come across this term when applying for a loan. The mark "accepted" can lead a citizen to bewilderment. Below we will consider the question of what acceptance is, and also talk about the rules for using this concept in various fields.
In fact, acceptance (eng. Accept - agree, accept) is the consent of the recipient of the document to pay or be responsible for timely payment for this document
Acceptance: definition of the concept
The term in question is often used in the field of entrepreneurship. In the event that one of the parties to the contractual relationship agrees with the original terms of the contract, this means that the agreement has been accepted. It is important to note that the second participant does not make additions to the signed document. In simple terms, acceptance is a kind of agreement with the terms of the transaction.
According to experts, not only contracts, but also other types of documents are subject to acceptance.
As a rule, this tool is used in situations where the parties to the transaction cannot hold a personal meeting. In this situation, one of the parties sends a copy of the contract to the other. Upon agreement with the terms of the transaction, the company sends an acceptance confirming the conclusion of the transaction. It is important to note that the current laws provide a list of restrictions on the use of acceptances:
- The absence of a response from one or more participants in the contractual relationship cannot be considered as unconditional acceptance of the terms of the contract. The only exception is the situation in which the parties have previously signed an agreement with different terms.
- In the event that a party to the agreement, having received the contract, begins to fulfill the conditions without responding to the acceptance of the counterparty, the contract is assigned the status of an accepted contract.
- The party acting as the initiator of the acceptance receives a written notification with consent to the execution of the contract or the refusal of the partnership. In the event of the development of the first situation, the second party undertakes to fulfill all the conditions of the contract or pay a penalty.
It is important to note that the meaning of the term in question may vary depending on the scope of its use. The concept of "acceptance" can mean:
- Unconditional agreement with the terms of the contract.
- Agreement with payment terms.
- Repayment of financial obligations under a bill.
Fulfillment of contractual obligations for personal reasons of one of the participants in the transaction. Summarizing all of the above, we can conclude that acceptance is agreement with certain conditions. Also in the financial sector, the phrase “payment without acceptance” is often used. This term must be understood as the forced withdrawal of money from the account of a person who has a debt to the second party. It is important to note that this right is granted only to representatives of state institutions.
Features of the conclusion (conditions)
As we said above, the use of acceptance is advisable in cases where the participants in contractual legal relations cannot conduct personal negotiations in order to sign a contract. The party issuing the acceptance agrees to all the terms of the contract, depriving itself of the opportunity to make adjustments to the concluded agreement.
In addition, acceptance can be considered as conclusive actions within the framework of a public offer. Often, this term is considered as the use of the services of a participant in legal relations acting as an obligated party.
Acceptance is a procedure for considering the main conditions of a financial, payment or other document and making a decision on payment Varieties of acceptance
Acceptance is a standard procedure during which payment orders and other acts of a financial nature are considered. Upon completion of the consideration of documents, the participant in the transaction must make decisions on payment and maturity of financial obligations. Consent to the terms of the contract is confirmed by a personal seal, a signature marked "acceptance" or a digital signature.
Under current laws, the issuance of an acceptance implies full and unconditional agreement with the requirements of the second participant. This means that the party using this tool cannot fulfill only part of the points set out in the contract. The Civil Code contains complete information on the timing of the fulfillment of obligations, according to the issued acceptance.
bill of exchange
In order to agree to the payment of financial obligations on the basis of a bill, the party acting as a debtor must put his signature on this document. The need to confirm agreement with the payment of debt arises only when using bills of exchange. Here it is necessary to highlight the fact that the date of acceptance of the bill is the day on which the debtor put his signature on the document. In the case of a promissory note, there is no need to make a mark, since the countdown of the debt repayment period begins from the day the paper is received.
It is necessary to confirm agreement with the terms of the bill of exchange only in those cases when the party that issued this document indicated the clause on the issuance of acceptance. Payment on bills of exchange is carried out within a certain time period from the moment the document is presented.
In banking practice
Above, we have already said that the instrument in question is often used in banking practice. In this area, "acceptance" means the consent of the bank to issue funds as a loan.. Before giving permission for a loan, employees of a banking organization carefully study the client's credit history.
As an example of how this tool works, consider a small practical example. An entrepreneur who is a client of the bank wants to pay according to the agreement. The funds must be credited to the account of the counterparty within a certain period. However, the entrepreneur himself does not have enough financial resources. In this case, the entrepreneur may ask the bank to make a transfer in the name of the counterparty. Bank employees, after analyzing the credit history of their client, make a decision on this issue. Next, the bank waits for the moment when new funds arrive in the account of its depositor in order to deduct the amount spent.
It should be noted that in banking practice such terms as prior and subsequent consent are used. A credit institution that has received a payment order must receive confirmation from the payer. After obtaining consent, the funds intended for payment are frozen for three days. This period is allotted so that the payer can change his mind and refuse to transfer funds. In the absence of a withdrawal of funds after the expiration of the above period, the bank conducts the transaction.
The acceptance can be transferred to the sender of the document by means of an electronic signature, an inscription on the document or other means of communication. Offer
Acceptance with the terms of a public offer should be understood as confirmation of consent to the execution of a contract in accordance with the conditions fixed in the document. As a rule, a public offer consists of several large sections, including many different items. The second party to the transaction may need a long time period to study all the conditions proposed by the counterparty. It should be noted here that receiving a notification with notes on the meaning of some points and questions about the terms of the agreement cannot be considered as formal consent to the conclusion of the contract.
According to lawyers, it is unacceptable to conclude contracts upon receipt of notifications containing not only an acceptance, but also comments on various sections of a public offer. This nuance must be taken into account before starting to fulfill obligations under the contract, where there is no signature of the second participant. Before starting work, it is recommended to settle all legal subtleties and make appropriate adjustments to the contract.
Check
The term "accepted account" implies the consent of the second party with the requirements of the participant in the contractual legal relationship that drew up the payment order. This mark confirms agreement with both the amount of the invoice and the deadlines for the execution of the object of the contract. Receiving such a confirmation means a quick transfer of funds to the account of the sender of the goods or the organization providing the service. It should be noted here that the receipt of consent with the payment order cannot be regarded as the fact that payment will occur before the deadlines specified in the contract.
Acceptance of the invoice should be considered as a preliminary agreement on the amount and terms of payment. In the event that the participant who accepted the payment order disagrees with its content, he may demand that his counterparty make adjustments. Also, this participant has legal grounds for refusing to pay. In case of issuing an acceptance, this company undertakes to make payment within the time limits specified in the payment order.
Treaty
Entrepreneurs who apply in their practice various acts requiring acceptance must use certain accounting methods. After the conclusion of the contract, the participant in the transaction, acting as the seller, sends the goods or provides the service. After that, this party forms a payment order, which is sent by mail or handed over personally.
It takes five business days to issue an invoice. An acceptance confirming agreement with the total amount payable and the maturity of the debt is recorded in the payment order or sent as a separate notification. Receipt of such a document is an official confirmation that all clauses of the contract will be executed on time.
According to Russian legislation, acceptance is complete (it is impossible to accept part of the obligation) and unconditional (unconditional) Accepted letter of credit
The term "letter of credit" is used in relation to those contracts where, in addition to the main participants in the agreement, there is a third party. As a rule, the bank acts as an intermediary. The participant in the transaction, acting as the seller, is obliged to send the goods or perform work in accordance with all the requirements of the contract. The customer of the goods or services undertakes to transfer the payment in a timely manner. In such legal relations, the bank acts as a guarantor that monitors the fulfillment of the obligations of each of the participants in the transaction. Most often, such transactions are carried out at the conclusion of international contracts.
Acceptance is often used in the execution of contracts involving the participation of the bank. In most cases, an acceptance is used in conjunction with a bill of exchange. The use of letters of credit allows:
- Accept actions performed according to the bill of exchange that was issued by the second party to the transaction.
- The possibility of transferring a bill of exchange to a third-party banking organization.
Based on the foregoing, we can conclude that the acceptance of a bill of exchange under a letter of credit must be considered as confirmation of the acceptance of all the terms of the contract that was concluded with the help of this document. At the time of using the acceptance, all financial obligations are transferred to the third party to the legal relationship.
Valid Deadlines
Accept - what does it mean? As we said above, this mark indicates the acceptance of all obligations, according to the scope of the contract. However, there are situations in which it is almost impossible to specify specific deadlines for the fulfillment of obligations. As a rule, each entrepreneur independently sets the deadlines necessary for a comprehensive study of the documents received.
Also, experts recommend taking into account the specifics of commercial legal relations. In the absence of specific deadlines for making a decision, the entrepreneur needs to contact the counterparty in order to agree on the length of the time period allotted for making the final decision. It is important to note that an acceptance received after this period can be considered as an agreement to the terms of the contract.
What does "prior acceptance" mean?
As we noted earlier, concepts such as “preliminary” and “subsequent” confirmation are used in the banking sector. Prior consent means that the payer gives the bank permission to transfer funds to its counterparty. It should be noted here that the absence of a refusal within three days makes the payment accepted. It should also highlight the fact that the day on which the settlement document was received by the bank is not taken into account. The transaction itself is carried out within the next day after the expiration of the period allotted for the cancellation of the operation. If the bank received the payment order on Monday, then the transaction itself will be carried out only on Friday.
"Subsequent confirmations" allows the bank to pay payments at the time they are received. In this case, the payer is also given the right to write a refusal to pay within the above period.
A selection of the most important documents on request Acceptance given in advance(legal acts, forms, articles, expert advice and much more).
Forms of documents: Pre-given acceptance
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Arbitrage practice: Pre-given acceptance
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As the court pointed out, the condition on the so-called "pre-acceptance" is included by the bank in the general provisions of the rules offered to consumers, which the client will not be able to influence when signing, therefore, this condition cannot be regarded as "pre-existing acceptance", such a condition is not contains the amount of acceptance and the order of its determination, and therefore, it cannot be regarded as "a pre-given acceptance". The conditions are set out by the bank in such a way that the client does not have the right to choose whether to allow the debiting of funds or establish the procedure for additional approval, execution of an order for debiting the consumer's funds. From the foregoing, it follows that in this wording, the condition restricts the client's right to freely independently dispose of the funds in the bank account, which is a violation of Art. 16 of the Law of the Russian Federation "On Protection of Consumer Rights". Thus, the court refused to satisfy the society's demand to invalidate the order of the Office of Rospotrebnadzor.
Articles, comments, answers to questions: Pre-given acceptance
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Clause 2.9.1 of Bank of Russia Regulation No. 383-P dated June 19, 2012 "On the Rules for Transferring Funds" establishes that the payer's acceptance given in advance may be given in an agreement between the payer's bank and the payer and (or) in the form of a separate message or a document, including an application for a pre-given acceptance, drawn up by the payer in electronic form or on paper, indicating the amount of acceptance or the procedure for determining it.
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The agreement may provide for the payment of rent in a lump sum advance payment for the entire lease period or periodic payments, such as monthly. In the latter case, it is desirable to indicate that the rent is periodically debited from the client's account, either on the basis of a standing order given by the client (an order for the periodic transfer of a certain amount on pre-agreed dates), or on the basis of an agreement on a pre-determined acceptance.
Regulations: Pre-given acceptance
3. The payer's acceptance may be given before the receipt of the payee's demand (the payer's acceptance in advance) or after it is received by the payer's money transfer operator. The payer's acceptance may be given in an agreement between the money transfer operator serving the payer and the payer, or in the form of a separate document or message.
2.9.1. The payer's advance acceptance may be given in an agreement between the payer's bank and the payer and (or) in the form of a separate message or document, including an application for a pre-given acceptance drawn up by the payer in electronic form or on paper, indicating the amount of the acceptance or procedure its definition, information about the recipient of funds who has the right to present instructions to the payer's bank account, about the payer's obligation and the main contract, including in cases provided for by federal law, indicating the possibility (impossibility) of partial execution of the order, as well as other information. In advance, this acceptance must be given before the presentation of the order of the recipient of funds. In advance, this acceptance may be given in relation to one or more bank accounts of the payer, one or more recipients of funds, one or more instructions of the recipient of funds.
Good afternoon!
Acceptance is a unilateral act (even if it is spelled out in the text
agreement) and does not require the borrower/client of the bank to reach an agreement on the possibility of revoking or changing it with the bank.
You can do the following in this case:
Write an application to Sberbank in which you indicate the cancellation of a pre-given acceptance (on your copy of the application, be sure to mark the bank on acceptance of the application);
Close the "salary" account and open it in another bank. According to Art. 136 of the Labor Code, the employee has the right to replace the credit institution to which the salary should be transferred, informing the employer in writing about the change in the details for the transfer of wages no later than five working days before the day of payment of wages.
But you need to take into account that Sberbank has the right to go to court with a claim for debt collection, after which it will receive a writ of execution and, on the basis of a writ of execution, will debit funds from your account.
On this issue, there is a corresponding letter from the Bank of Russia, which indicates the possibility of withdrawing an acceptance given in advance for debiting funds.
Letter from the Bank of Russia
dated November 30, 2015 N 31-2-12 / 12743
Order
implementation of non-cash payments in the form of transfer of funds by
the demand of the recipient of funds (direct debit), in which
write-off of funds from the bank account of the payer from
his consent (acceptance of the payer) by order of the recipient of funds,
established by Article 6 of the Federal Law "On the National Payment System" (hereinafter - the Law).
AT
in accordance with this article, the right of the recipient of funds to present
requirements for the bank account of the payer should be provided
an agreement between the transfer operator serving the payer
funds and the payer. At the same time, Article 6 of the Law
it is stipulated that the payer must give consent (acceptance) in the contract
between the money transfer operator servicing the payer and
by the payer or in the form of a separate document or message before
receipt of the request of the recipient of funds or after its receipt
to the payer's money transfer operator (paragraphs 2 - 3).
In addition, paragraph 11 of Article 6 of the Law provides for the possibility of the payer's refusal to accept.
In accordance with the specified requirements of paragraph 2.9
Regulations of the Bank of Russia dated June 19, 2012 N 383-P "On the rules
transfer of funds” (hereinafter referred to as the “Regulation”) is established
obligation of the payer's bank upon receipt of the beneficiary's order
funds requiring the payer's acceptance, to control the availability
in advance of the given acceptance of the payer in accordance with sub-clause 2.9.1 of the said clause, or in the absence of the advance acceptance of the payer, receive the acceptance of the payer in accordance with sub-clause 2.9.2 of the said clause.
In view of the foregoing, we consider it lawful to establish by subparagraph 2.9.1 of paragraph 2.9
Provisions of the norm providing for the right of the payer to change the conditions
of his acceptance or revoke an acceptance given in advance in the manner
established by the agreement, regardless of the form of submission of consent
(acceptance).
Question: According to paragraphs. 2.9.1 clause 2.9 of the Regulations of the Bank of Russia dated 19.06.2012 N 383-P "On the rules for the transfer of funds" (hereinafter - Regulation N 383-P), the payer's acceptance given in advance can be given in the agreement between the payer's bank and the payer and ( or) in the form of a separate message or document, including an application for a pre-given acceptance, drawn up by the payer in electronic form or on paper, indicating the amount of acceptance or the procedure for determining it, information about the recipient of funds who has the right to present instructions to the payer's bank account , on the obligation of the payer and the main contract, including in cases provided for by federal law, indicating the possibility (impossibility) of partial execution of the order, as well as other information.
In this regard, banks have a question about the possibility of revocation by the client of a pre-given acceptance, which is given in the agreement between the payer's bank and the payer or in other agreements, the conclusion of which is widespread in practice (for example, in tripartite agreements concluded between the bank, its client ( payer) and the payer's creditor).
We believe that Regulation N 383-P establishes the need for the bank to obtain the consent of the client (payer) to debit funds from his account at the request of third parties (hereinafter referred to as the consent of the payer) and the acceptable methods for issuing the consent of the payer (by appropriately indicating consent in the contract / by issuing consent in the form of a separate message / by issuing consent in the form of a document on paper or in electronic form).
The payer's consent is a unilateral act (even if it is incorporated into the text of the agreement) and does not require the payer to reach an agreement with other persons, including the payer's bank or creditor.
Some courts even emphasize that the acceptance given in advance has precisely the nature of the client’s order about how much, to whom and from which account (s) is to be transferred (Resolution of the Eighteenth Arbitration Court of Appeal dated 03.12.2013 N 18AP-11540 / 2013).
Thus, the inclusion of conditions on a pre-given acceptance in the text of two / trilateral (other multilateral) agreements does not mean that the payer cannot change the conditions on a pre-given acceptance unilaterally by sending a corresponding message or document to the bank in the form established by the current regulatory legal acts.
Is it possible for a client to revoke a previously given acceptance, the condition for which is provided for by agreement of the parties?
Answer:
CENTRAL BANK OF THE RUSSIAN FEDERATION
LETTER
dated November 30, 2015 N 31-2-12 / 12743
The Legal Department has considered the letter of the Association of Russian Banks regarding the possibility, on the basis of an agreement, of restricting the right to dispose of funds on a bank account by revoking a previously given acceptance, and reports the following.
The procedure for making cashless payments in the form of a transfer of funds at the request of the recipient of funds (direct debit), which provides for the debiting of funds from the payer's bank account with his consent (acceptance of the payer) by order of the recipient of funds, is established by Article 6 of the Federal Law "On the National Payment System (hereinafter - the Law).
In accordance with this article, the right of the recipient of funds to make claims against the payer's bank account must be provided for by the agreement between the money transfer operator servicing the payer and the payer. At the same time, Article 6 of the Law provides that the payer must give consent (acceptance) in the contract between the money transfer operator serving the payer and the payer, either in the form of a separate document or message before the receipt of the recipient's request or after it is received by the money transfer operator serving the payer (points 2 - 3).
In addition, paragraph 11 of Article 6 of the Law provides for the possibility of the payer's refusal to accept.
In accordance with the above requirements, Clause 2.9 of Regulations of the Bank of Russia No. 383-P dated June 19, 2012 "On the rules for transferring funds" (hereinafter referred to as the "Regulation") establishes the obligation of the payer's bank upon receipt of an order from the recipient of funds requiring the payer's acceptance to control the availability of of this acceptance of the payer in accordance with sub-clause 2.9.1 of the said clause or, in the absence of a previously given acceptance of the payer, receive the acceptance of the payer in accordance with sub-clause 2.9.2 of the said clause.
In view of the foregoing, we believe it is lawful to establish by sub-clause 2.9.1 of clause 2.9 of the Regulations a rule providing for the payer's right to change the conditions of his acceptance or revoke a previously given acceptance in the manner prescribed by the contract, regardless of the form of consent (acceptance).
Posted: 01/17/2018
Can banks debit money from a client's account without his consent? (without acceptance)
Acceptance means that the payer recognizes the creditor's payment request as correct and payable and instructs the bank to write off the amount of the payment request from his account. As a general rule, the bank has the right to debit funds from the account of its client only if there is his consent - acceptance.
However, at present, the problem of determining the mechanism for the legality of direct debiting of funds has become most acute.
However, there is an exception to this rule, which allows the bank to debit money from the account of its client without his consent, that is, without acceptance.
Write-off of funds on the account without the client's order is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client (clause 2 of article 854 of the Civil Code of the Russian Federation).
It should be noted that it is beneficial for the bank to establish the right to direct debiting of money for the prompt receipt of money due to it in repayment of the client's debts, given that the money coming to the client's account is actually under the direct control of the bank, which has full information about them.
In general, the non-acceptance procedure can be included in the bank account agreement, in an additional agreement to it, or in a separate agreement between the bank and the client and the creditor of the latter. Agreeing with the client on an unacceptable procedure for debiting money from his account gives the bank the right not to request the client's consent, since it is already considered received. Money is written off on the basis of a bank order drawn up by the bank (clause 9.3 of the Regulation of the Central Bank of the Russian Federation dated 19.06.2012 No. 383-P "On the rules for the transfer of funds" (hereinafter - Regulation No. 383-P)).
But in this case, it should be noted that consumers are the economically weaker side of the bank account agreement and, in this regard, enjoy increased protection from the state. Any restrictions on the rights of consumers can be interpreted as infringing on their rights and as a result being invalid on the basis of Art. 16 of the Law of 07.02.1992 N 2300-1 "On the Protection of Consumer Rights", since their situation cannot be worsened in comparison with the way it is determined by the current legislation of the Russian Federation.
So, for example, the inclusion in a loan agreement of a condition on a pre-given acceptance for debiting funds from the borrower's accounts, without specifying specific accounts from which such debiting can be carried out by the bank, is a condition that infringes on the rights of the consumer. In a loan agreement with a borrower-consumer, the bank is not entitled to provide for a condition on a pre-given acceptance for debiting any amounts of money (principal debt, interest, forfeit, losses, etc.) from any accounts of the borrower opened with this bank, since the law does not provide for such a possibility . Claims for the recovery of forfeit and damages are generally uncontroversial, their satisfaction may be denied in whole or in part, therefore, in principle, the non-acceptance procedure cannot be extended to them. In addition to invalidating the provision of the agreement on the direct debiting of money from consumer accounts and depriving it of legal force, the bank may also be held administratively liable for the fact of its inclusion in the agreement under Part 2 of Art. 14.8 of the RF Code of Administrative Offenses.
Thus, a non-acceptance procedure in relations with consumers can be established by a bank with a clear indication of the accounts from which the debit will be made. The Bank is not entitled to write off without acceptance from any accounts of its borrowers - consumers the funds due to it, since it is not entitled to dispose of them without its consent, prior acceptance is possible only in relation to strictly defined bank accounts, which are directly indicated in the conditions of direct debit, brought to the attention of the borrower and accepted by him by signing the relevant documents (agreement, supplementary agreement, application for joining the general conditions of banking services). The wording “withdrawal from any bank accounts of the borrower, including those that will be opened to him in the future” does not comply with the law and the criteria for a pre-given acceptance.
This is due to the fact that the client's order, as the basis for debiting funds, must be specific and contain his clear will on the need to transfer a certain amount to a specific recipient. This acceptance in advance has the character of the client's order in the case when it is clearly clear how much, to whom and from which account (s) is to be transferred, since this right is the right of the client and can be exercised by him at his own will and in his own interest.
In addition, the bank is also not entitled to write off funds without acceptance from the client's account for the debts of his spouse (the company he created), if the client did not give any guarantees in favor of the bank and there is no evidence that the specified debt can be attributed to the general obligations of the spouses in accordance with the Family Code of the Russian Federation. However, the bank has the right to provide for this condition in the client's bank account agreement, which will give it the right to write off funds from the client's accounts without acceptance (Article 421 of the Civil Code of the Russian Federation).
There are cases when, in accordance with the law, a bank must debit funds from its client's account in an unacceptable (indisputable) manner without obtaining appropriate consent:
- on the basis of a writ of execution or a decision of a bailiff - executor without submission to a bank or other credit organization by a recoverer or bailiff - executor of settlement documents (clause 2, article 70 "On Enforcement Proceedings");
- at the request of the tax authorities (clause 1, article 46 of the Tax Code of the Russian Federation);
- collection of customs payments and fees (Article 153 Federal Law No. 311-FZ dated November 27, 2010"On customs regulation in the Russian Federation");
- writing off money from the account of the lessee at the request of the lessor in case of delay in lease payments under the leasing agreement (clause 1, article 13 Federal Law No. 164-FZ dated October 29, 1998“On Financial Lease (Leasing)” (hereinafter referred to as the Law on Leasing));
- collection of arrears on insurance premiums, as well as penalties and fines (Article 19 Federal Law of July 24, 2009 No. 212-FZ“On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund”), etc.
The most common case of direct debiting of money from a client's account is debiting on the basis of a writ of execution or other writ of execution, which is mandatory for the bank (court order, notarized agreements on the payment of alimony or their notarized copies, certificates issued by labor dispute commissions, and other documents specified in paragraph 1 of Article 12 Federal Law No. 229-FZ dated 02.10.2007"On Enforcement Proceedings").