All about the validity and repayment periods of bills + nuances and pitfalls

Features of bills of exchange as securities

What is a bill of exchange? A bill of exchange is essentially the ancestor of all securities. Unlike a stock, which is an equity security, a promissory note is a purely debt document.

Basic requirements for recognition of a bill:

• Unconditional nature of obligations;
• Indisputability - that is, the impossibility of deferring payment or changing the terms of payment;
• Exclusively monetary form of obligations;
• Possibility of existence only in paper form in a formalized form.

In essence, a bill of exchange is simply another means of payment between individuals (companies).

The simplest classification can be considered the division of bills into simple and transferable:

• A promissory note is essentially a promissory note issued by the immediate debtor.
• A transfer is a document obliging the debtor of the drawer to pay a certain amount to the holder of the bill.

Both promissory notes and bills of exchange can be commodity - that is, issued to confirm the debt under an agreement for the acquisition of goods and materials, or financial - the subject of the transaction is the bill itself. This characteristic affects which account will be used to account for bills of exchange.

Ways to indicate the maturity of a bill

The payment deadline is one of the required details of the document. Accordingly, on the appointed date or specified period, the debt paper is transferred for payment for the goods or services supplied.

There are several ways to set a payment date.

Upon presentation

Payment must be made no later than one year from the date of issue, after which the receipt becomes invalid.

Within a specified time after presentation

The payment must be made after submitting the document within a certain period of time. The method is beneficial if it is necessary to extend the payment period to accumulate the required amount.

After a set time from compilation

In this case, the holder can receive money after a specified number of days from the date of drawing up the financial obligation, but not earlier.

On a specific day

The payment time is set for a specific date. This method is considered the most convenient, as it allows you to prepare for payment in advance.

Financial bills

Financial bills are issued by banks and credit institutions. Purchased bills of exchange are accounted for in account 58.2 “Debt securities”, issued - in accounts for settlements of loans and borrowings, respectively, accounts 66 - short-term, 67 - long-term.

Financial bills are purchased to make a profit by increasing their value or earning interest. Act as an object of purchase and sale in non-commodity transactions.

Purchase of a bill of exchange

purchased a third party bill of exchange for RUB 90,000. with a nominal value of 100,000 rubles.

Purchase of bill of exchange of a third party posting:

Issue of a bill

Lilia LLC issued its own promissory note based on a loan agreement in the amount of 200,000 rubles.

Issue of own bill accounting entries:

Participation of a bill of exchange in contractual legal relations.

1 Obligations within the framework of which the debtor issues (transfers) or accepts a bill of exchange as provision

Content

The properties inherent in a bill of exchange allow this document to participate in property turnover, performing a number of economic functions, acting in different roles.

When issuing a bill, the drawer, of course, pursues a certain economic result. After all, no subject of civil legal relations, acting reasonably and reasonably, will agree to accept an obligation just like that, without any reciprocal provision. However, due to the abstract nature of the bill of exchange obligation, this economic goal is hidden from the participants in bill of exchange legal relations, which in no case means the absence of such as the basis for the conclusion of this transaction.

Civil Code of the Russian Federation in paragraph 2 of Article 1 and in Article 421 Civil Code Article 421 declares that citizens and legal entities are free to establish their rights and obligations on the basis of an agreement and to determine any terms of the agreement that do not contradict the law. Thanks to this rule, as well as the fact that a bill embodies an abstract obligation, the legal validity of which does not matter under what contract it is transferred, we can say that in many transactions involving the transfer of certain goods or the payment of certain values, in cases provided for by agreement of the parties, a business instrument such as a bill of exchange can be used.

A bill of exchange embodies an abstract obligation, the legal validity of which does not matter under which agreement it is transferred

It is also important to note that from the point of view of bill of exchange legislation, there are no differences in the legal regulation of relations, regardless of what role and within the framework of which agreement the bill of exchange plays in economic turnover.

The traditional view of the economic functions performed by a bill of exchange identifies two main economic purposes for the participation of a bill of exchange in circulation: its role as a) a means of payment under a purchase and sale agreement (commodity bill) and b) a means of obtaining a loan (financial bill). N.G. Vavin, speaking on this issue, explains this dual role of the bill by the peculiarities of its legal nature as a security. As a debt obligation, a bill serves as an instrument of credit, and as a security that has already embodied the obligations of certain persons, it can be a means of payment and repayment of claims.

The main difference between commodity and financial bills can be found based on the lexical difference in the designation of these phenomena, formed in the doctrine. And this, in turn, leads to the dependence of the type of bill of exchange on those legal relations that served as the basis for the appearance of the bill of exchange in circulation.

Trade bills of exchange are issued (transferred) in payment for transferred goods, work performed or services rendered. However, the performance of this document as a means of settlement of obligations is associated with a number of features, which will be discussed below.

Acting in this function, a bill from an economic point of view is also a lending instrument. After all, by issuing it, the debtor in most cases pursues the goal of delaying the fulfillment of his monetary obligation under a business transaction.

Therefore, based on the norm enshrined in paragraph 1 of Article 823 of the Civil Code of the Russian Federation, Civil Code Article 823, we can say that in a number of cases, through the issuance of a bill of exchange, the parties formalize a commercial loan relationship. At the same time, it is important to emphasize that the relationship is a commercial loan, and not a loan or credit in its pure form. We can talk about the latter primarily in connection with the concept of a financial bill.

A financial bill is a security issued not in payment for goods received (work or. A financial bill is involved primarily in contracts in which funds are transferred as consideration for the bill. Thus, this type of bill serves the same economic purpose , as the conclusion of a loan agreement.

Such bills are issued by participants in economic transactions to attract borrowed funds. This possibility is provided for in Article 815 of the Civil Code of the Russian Federation (Civil Code Article 815). This rule indicates that the drawer in these relations is the borrower. However, it also seems acceptable to use in practice constructions in which the borrower is the recipient of the bill. Thus, V.A. Belov talks about the possibility of concluding a loan agreement, which would stipulate the possibility of its execution by the bank by issuing a promissory note to the client for the loan amount. In this case, the payment period for the bill must be limited to a period of time that is shorter than the loan repayment period under the agreement.

An important feature of a bill is that during its circulation and until maturity, it sometimes manages to repeatedly change its economic function, acting alternately both as a means of payment and as a means of lending. After all, this security has a number of properties that give confidence to the subjects of the relevant relationships in the reliability of this instrument. And this allows us to speak about the justification for giving such a variety of functions to the bill of exchange by the participants in the turnover.

2 LEGAL SIGNIFICANCE OF THE FACT OF ISSUANCE (TRANSFER) OF A TRADE BILL IN SETTLEMENT FOR AN OBLIGATION FROM THE MAIN TRANSACTION

When studying this issue, it seems most important to find out what is the connection between the main obligation and the bill of exchange that appears in this obligation, and what happens to the monetary obligation under the main transaction when the bill of exchange acts as a counter-provider on the part of the debtor.

Having summarized the points of view on this issue presented in the literature, we can come to the conclusion that the possible options for the impact of a bill on the main obligation are divided into two groups, within which a certain classification also takes place:

1. The establishment of a bill of exchange legal relationship terminates the monetary obligation under the main transaction. There are three different approaches to explaining this circumstance. Accordingly, a bill transaction represents:

a) proper execution;

b) replacement of execution (compensation);

c) novation of a monetary obligation into a bill of exchange.

2. The establishment of a bill of exchange legal relationship does not terminate the monetary obligation under the main transaction (the bill of exchange obligation exists along with the obligation of the debtor from the main transaction).

Let's take a closer look at the possible options.

Termination of a monetary obligation under the main transaction by its proper execution

This point of view is not very popular. Its supporters justify their position by the fact that a bill of exchange is capable of fulfilling the role of a payment document. Since the means of payment that can terminate a monetary obligation by proper execution, according to Article 140 of the Civil Code, Article 140, 317 of the Civil Code of the Russian Federation, Civil Code, Article 317 and the Law of the Russian Federation of December 10, 2003 No. 173-FZ “On Currency Regulation and Currency Control” are: money and payment documents in foreign currency6, it is concluded that only a bill in foreign currency can act as a payment document.

However, this point of view is not adequately confirmed at the legislative level. As some researchers rightly note, “from the point of view of civil law, a bill of exchange cannot be defined as... a payment document, since... it is not included in the list of such documents established by the Central Bank of the Russian Federation in the Regulations “On Non-Cash Payments in the Russian Federation”. Consequently, this security is not transferred as a payment document. Accordingly, not being a means of payment, the bill cannot properly fulfill the debtor’s monetary obligation under the main transaction.

Confidence in bills of exchange of different persons can be significantly different

In addition, if we recognize a bill of exchange as a payment document, there will be a need to recognize it, as A.V. Gabov suggests, “as a legal means of payment for goods, works or services”8. And this, in turn, means that the creditor is A.V. Gabov. will be obliged to accept the bill if the debtor similarly begins to fulfill his monetary obligation under the transaction. The latter provision does not seem entirely justified from an economic point of view. Confidence in bills of exchange of different persons may vary significantly.

In addition, recognizing that the amount of the monetary obligation will correspond to the amount for which the bill is issued, we may be faced with a situation in which the interests of the creditor, forced to accept the bill as proper fulfillment of the monetary obligation, will not be taken into account: the debtor, when issuing his bill, as a rule , pursues the goal of delaying the fulfillment of an obligation. In addition, he will be able to formalize relations under a monetary obligation in this way without transferring any asset to the creditor for the very provision of a deferment in the fulfillment of his obligation.

Therefore, in our opinion, the considered point of view does not have sufficient legislative grounds, and its practical implementation in practice may encounter a number of obstacles.

Termination of a monetary obligation by replacement of execution (compensation)

Article 409 of the Civil Code of the Russian Federation Civil Code Article 409 establishes that “by agreement of the parties, the obligation may be terminated by providing compensation in return for execution.”

Compensation, therefore, occurs when, in the absence of such a condition in the obligation, the creditor, in exchange for the action that the debtor is obliged to perform, takes another action9.

It should be noted that the condition according to which the possibility of the creditor accepting from the debtor a certain equivalent of a sum of money is allowed should not be agreed upon by the parties in advance when accepting the corresponding obligations. After all, otherwise we will not be talking about a replacement of performance, but about an alternative obligation.

Thus, the resolution of the Federal Antimonopoly Service of the North-West District dated 09.09.05 in case No. A42-6024/04-19 considers the following situation: a purchase and sale agreement was concluded, which stipulates that the obligation to pay can be fulfilled by transferring individually determined bills of exchange of a third party. The cassation court indicated that there was an alternative obligation. Therefore, the transfer of the bill will be the proper fulfillment of the obligation from the concluded agreement.

The most popular among researchers of the problem of the legal significance of the fact of granting compensation is the point of view according to which the replacement of performance releases the debtor from the obligation as if the debtor had performed the action that constitutes the content of the obligation.

At what point does the monetary obligation from the main transaction cease? Taking into account the nature of compensation as a basis for termination of an obligation, it seems that the latter must be considered terminated at the moment the creditor actually accepts a replacement performance. At the same time, in our opinion, only the issuance of a bill of exchange, and not the payment on it, should be recognized as compensation. The possibility of this assumption is confirmed by the proprietary nature of the bill as a security.

Substitution of performance releases the debtor from the obligation

The bill of exchange obligation to provide compensation as part of the main transaction, of course, continues to exist. However, it must lose all legal connection with the transaction underlying its issuance. After all, the debtor’s monetary obligation under this transaction has already ceased. Therefore, the bill debtor in this case is deprived of the opportunity to raise any objections arising from the main transaction. Such objections would be appropriate if we were talking about the fulfillment by this person of his monetary obligation under the transaction underlying the issuance of the bill.

How compatible is this provision with the legal nature of the bill, and in particular with the “relative abstraction” of the obligation it contains? The answer to this question must be considered from two possible positions, depending on who is the person obligated on the bill.

There is a circumstance that does not allow us to talk about the possibility of recognizing the issuance of a person’s own bill as compensation. This circumstance comes from theories about the moment of emergence of a bill as a security. And if we take the traditional position, which recognizes as this moment the issuance of it to the first purchaser, its release into circulation, then we will be forced to admit that, when paying for an obligation with the help of a bill, the debtor does not transfer any security to the creditor. Indeed, in this situation, the bill of exchange in its civil legal sense begins to exist only upon receipt by the counterparty of the main transaction. Therefore, in our opinion, in this case it is impossible to talk about compensation, since the latter involves the transfer of some equivalent provision, and in this case, as we have already said, when the debtor transfers the bill to its first holder, a security cannot appear as the mentioned provision .

If we are talking about the transfer of a third party’s bill of exchange, no new obligation to pay money arises between the counterparties in the business transaction underlying such transfer. According to the traditional view, the endorser has no obligation to pay the bill.

However, it is impossible not to note the opinion held by G.F. Shershenevich. He argued that in the bill of exchange everyone is equally the main debtor due to the fact that each obligation is independent in nature. All the inscriptions, considered

G.F. Shershenevich, are liable only in the case of a notarized refusal of payment on the part of the payer, not because they are secondary debtors, but because their obligation is conditional and is made dependent on the actions of the payer.

But still, most researchers enter into a correspondence dispute with G.F. Shershenevich. As counterarguments, the provisions are used that although the signers bear a certain responsibility under the bill, they are still conditional debtors, unlike the payer, who bears an unconditional obligation. For the fulfillment of an obligation, the holder of the bill must first contact the payer than the signers. Besides,

the fulfillment of the obligation by the payer completely terminates the latter, while a payment made by one of the signers terminates the bill of exchange obligation only insofar as the obligation of this subject and subsequent signers is concerned.

Transfer of a bill of exchange to a third party can be considered as a substitute for execution

Therefore, despite the fact that, as a general rule, the endorser who transferred the bill to the endorsee becomes responsible to the latter not only for the validity of the transferred right of claim, but also for its feasibility, it cannot be said that a new obligation is established between these entities to pay the sum of money, since such an obligation arises from the endorsee in relation to the payer. We can only talk about

that a recourse legal relationship arises between them. And this, as V.A. Belov notes, means that by the act of endorsement the endorser assumes “not the obligation to pay on the bill, but the obligation to be responsible for its non-payment by the direct debtor.”

Therefore, a bill of exchange of a third party, transferred as a replacement for execution by a person who bears a monetary obligation under a certain business transaction, terminates the latter and does not create a new obligation between the counterparties under the main transaction. The debtor is thus released from the monetary obligation as if he had performed the action that constitutes the content of this obligation. Consequently, the transfer of a bill of exchange to a third party, in our opinion, can be considered as a substitute for execution.

A similar situation arises in the relationship between the drawer and the drawee, in the case when the latter accepts a bill of exchange issued to him in exchange for the fulfillment of a monetary obligation. After all, the bill of exchange obligation of the acceptor in this case arises not in relation to the creditor in the main transaction, but in relation to the remittor, who is not a party to this transaction. Consequently, upon completion of these actions, the debtor’s monetary obligation under the main transaction is terminated, and no new obligation is established for him in relation to the creditor. Thus, we can also qualify these legal relations as a replacement for execution.

This position can be found in paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 33 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated December 4, 2000, which states that in the case when “the debtor’s obligation to pay a sum of money ... is terminated by the issuance (transfer) or acceptance of a bill ... if the party that issued (transferred) the bill does not bear responsibility for it ... the monetary obligation under the contract should be considered terminated on the basis of Article 409 of the Civil Code of the Russian Federation Civil Code Article 409 (compensation).”

Termination of a monetary obligation by novation

The Civil Code of the Russian Federation in paragraph 1 of Article 414 Civil Code Article 414 states that an obligation can be terminated “by an agreement of the parties to replace the original obligation that existed between them with another obligation between the same persons, providing for a different subject or method of fulfillment.”

In relation to legal relations related to the circulation of, first of all, commodity bills, we can talk about the occurrence of a similar situation when the original obligation is terminated by establishing a new bill of exchange obligation between the same parties. Thus, the monetary obligation under the main transaction is terminated, and a new monetary obligation arises, but under a bill of exchange.

According to paragraph 1 of Article 414 of the Civil Code of the Russian Federation, the original obligation terminates upon reaching an agreement on a new one. While when replacing execution, as we have already said, it terminates at the moment the creditor actually accepts the compensation. Novation, therefore, releases the debtor from the old obligation only when he assumes a new one. This means that, unlike replacement of execution, novation does not terminate the legal connection of the parties within the framework of the main transaction.

Thus, the debtor’s monetary obligation under the main transaction ceases to exist from the moment the bill obligation arises, formalized by the issuance of the bill. Consequently, the legal fact of a legal termination nature will be precisely the fact of issuing the bill. Although from an economic point of view, as N.A. Krutitsky correctly notes, in our opinion, “innovation does not pay off the debt... but only modifies the form in which it is expressed. The old debt continues to exist in the form of a new obligation."

The qualification of certain legal relations as a novation, as in the case of compensation, is somewhat dependent on who is the obligated person under the bill transferred (issued) to terminate the monetary obligation.

In the case when a bill of exchange of a third party is transferred, as we have already said, between the counterparties in the business transaction underlying such transfer, no new obligation to pay money arises. Therefore, there is no replacement of the old obligation with a new one. Therefore, in this case we cannot say that innovation takes place.

If what was said earlier is true, then it seems not entirely correct to talk about innovation in a situation where, in exchange for the fulfillment of a monetary obligation, the debtor transfers a third party’s bill of exchange (resolution of the FAS SZO dated 01.21.05 in case No. A56-4077/04/z5; resolution of the FAS SZO dated 01.11 .2000 in case No. A56-13864/00).

From such a position, the point of view of Y. Kamfer and M. Boykova, who equate the transfer by the debtor of a third party’s bill of exchange to the novation procedure, seems not entirely correct. Indeed, in paragraph 1 of Article 414 of the Civil Code of the Russian Federation, Article 414 enshrines the imperative norm that novation can take place only if a new obligation arises between the same persons, and in this case, the subject composition of the bill of exchange obligation is not identical to that of the main transaction.

Considering the case when a bill of exchange is issued by a person obligated under it, we come to the conclusion that a new obligation is established between the debtor and the creditor in the main transaction, terminating the original obligation to pay the sum of money. Such dynamics of legal relations allow us to talk about the possibility of applying the construction of debt novation to them. This is also confirmed by judicial practice, for example, resolutions of the Federal Antimonopoly Service of the North-West District dated 05.23.05 No. A56-42505/04, dated 02.29.2000 No. A56-23269/99

A similar position is expressed in paragraph 35 of the above-mentioned Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated December 4, 2000, which states that a monetary obligation under an agreement, in the case where the debtor terminates it by issuing (transferring) or accepting a bill of exchange, should be considered terminated on the basis of Article 414 of the Civil Code of the Russian Federation (novation), if this party assumes responsibility for it.

However, the wording given by the highest judicial authorities in the mentioned Resolution does not seem to be entirely correct. Indeed, in practice, it is quite possible that the person who bears the monetary obligation under the main transaction will assume responsibility for the bill of exchange to repay this obligation, but the holder of the bill will not be the creditor of the main transaction, but some third party.

Civil legislation... does not contain a prohibition to consider the issuance of a bill of exchange as a novation of a monetary obligation arising from the main business transaction

A similar legal relationship arises in the already mentioned case of the drawee’s acceptance of a bill of exchange issued to him in exchange for the fulfillment of a monetary obligation. In this situation, despite the fact that the debtor in the main transaction is responsible for this security, the bill of exchange legal relationship is established between entities that are not identical to those who participated in the transaction underlying the issuance of the bill. Consequently, in this case it is impossible to talk about debt novation.

The possibility of applying the rules on novation to the legal relations in question involving a bill of exchange using the norms of the current legislation is explained by N. A. Krutitsky. He, in our opinion, quite rightly notes that Article 818 of the Civil Code of the Russian Federation Civil Code Article 818 allows for the possibility of replacing a debt arising from a sale or purchase or other basis with a loan obligation in compliance with the novation requirements. And Article 815 of the Civil Code of the Russian Federation (Civil Code Article 815) contains an indication of the possibility of applying the norms of the Civil Code of the Russian Federation on loans to bill of exchange legal relations. Based on the foregoing, it is logical to conclude that civil legislation not only does not contain a prohibition to consider the issuance of a bill of exchange as a novation of a monetary obligation arising from the main business transaction, but, on the contrary, speaks of the admissibility of the existence of this kind of relationship.

What are the legal consequences of qualifying the legal relationship in question as a novation? Since in this situation two obligations appear, albeit at different times, it is first necessary to find out what connection exists between them and what influence these obligations have on each other.

Among researchers of this problem, the most frequent in this regard are disputes regarding how the fact that the invalidity of a previous obligation relates to the abstract nature of a bill of exchange obligation also entails the invalidity of a new obligation.

The authors, who do not recognize the possibility of using the institution of innovation in this kind of relationship, proceed from the fact that such a dependence of the bill of exchange obligation on the transaction underlying the issuance of this security contradicts the essence of this obligation as an abstract obligation. Objections to this argument boil down mainly to the fact that the rule on the invalidity of a new obligation in the event of the invalidity of the original one, if the new obligation is abstract, does not apply subject to the good faith of subsequent bill holders. The exception is when it comes to relations between direct participants in the main transaction. Such a solution to the problem seems quite acceptable from the point of view of the theory of bill of exchange law and the properties of the bill itself.

In the opposite case, if the bill of exchange obligation is invalid, we can say that the novation did not take place due to the invalidity of the nominating obligation. Accordingly, the debtor's monetary obligation under the main transaction must be recognized as preserved.

Another important problem in relation to this institution is the problem associated with the fact that the issuance of a bill of exchange in such cases can both constitute an innovation and create a new obligation, independent of the main transaction, between the same persons. Thus, according to the rule that came from Roman law, the solution to this issue will depend on what were the “intentions of the parties (animus novandi - intention to make an innovation). The presence of such animus must be judged by an open statement; if there was no such statement, the new obligation was added to the previous one, and did not replace it.”

In the case where the bill of exchange legal relationship exists parallel to the relations of the parties to the main transaction and is not in relationship with them, in our opinion, the goals for which the participants in the transaction performed such actions are not achieved. By issuing a bill of exchange in settlement of an obligation and indicating in it a payment term later than that which appears in the obligation from the main transaction, the debtor primarily pursues the goal of formalizing a commercial credit relationship in relation to the transaction underlying the issuance of the security.

By converting the previous obligation into a bill of exchange, the parties will be able to achieve these goals. However, to implement innovation, as already noted, it is necessary that these subjects express their will. Otherwise, the resulting obligation should be considered as existing without any legal connection with the obligation from the main transaction.

The establishment of a bill of exchange legal relationship does not terminate the monetary obligation under the main transaction

Proponents of this approach believe that by issuing a bill of exchange to the creditor, the debtor assumes a new obligation, which exists along with the obligation under the main transaction and is interdependent with it.

The main legal consequence of this interpretation of the legal relationship that develops as a result of the issuance of a bill of exchange as part of the main transaction, supporters of this approach call the right granted to the creditor at his own discretion to demand the fulfillment by the debtor of a monetary obligation either under the bill of exchange or under the main transaction. Moreover, since the debtor, by issuing the bill, pursued the goal of delaying the fulfillment of his obligation, it seems that the creditor does not have the right to present a claim under the main transaction before the moment of payment on the bill.

Such a structure is created in order to ensure that the debtor fulfills his obligation under the transaction underlying the issuance of the bill.

As follows from this approach, the debt under the main transaction will not be repaid at the time the bill is issued. The obligation to make payment in this case will cease, as researchers who take this position believe, either at the moment of direct repayment of the obligation arising from the contract, or at the moment of payment of the bill, or at the moment of alienation of this security by the bill holder. Moreover, in the latter case, it is necessary that the nature of the alienation of the bill of exchange guarantees that this bill of exchange will not be returned to the creditor under the main transaction by way of recourse. This, in turn, is achieved by transferring it by assignment or with the clause “without recourse to the alienator.”

In the case when we are talking about the termination of an obligation from the main transaction by paying a bill of exchange, it seems that the bill of exchange obligation to the creditor can be repaid not only by the debtor, but also by his followers, to whom the creditor has the right to apply by way of recourse, since the latter, according to paragraph 47 The provisions are joint and several debtors. The fulfillment by one of them of a joint and several obligation, in accordance with paragraph 1 of Article 325 of the Civil Code of the Russian Federation, Civil Code Article 325, exempts the remaining debtors from fulfillment to this creditor.

If the debtor directly repays the obligation from the main transaction, then, in order to avoid unjust enrichment due to the fact that the creditor can receive what is due to him twice under the business transaction, the creditor is obliged to return to the debtor the bill received from him.

As a result, the relations arising in connection with the parallel existence of the obligation from the main transaction and the bill of exchange have a certain similarity with the institution of fiducia, which existed in Roman law. Its essence was “the formal transfer of ownership of a thing as security ... an obligation, with the condition that the fiduciary will transfer the thing back ... after his loan has been satisfied.” Therefore, in the case of participation in the circulation of a bill of exchange that ensures the debtor fulfills his obligation under a certain transaction, we can talk about the emergence of fiduciary relations between the entities participating in these transactions.

An example of such legal relations is illustrated by the following situation: an agreement between the Ministry of Railways of the Russian Federation and the JSC establishes that the JSC, in order to ensure the fulfillment of its monetary obligation, issues a promissory note to the Ministry of Railways of Russia. If the OJSC fulfills its monetary obligation, the ministry must return the bill. A similar case is also described in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 24, 2002 No. 12331/01.

The peculiarity of this kind of relationship, which is important for us, is that, as P. Yu. Drobyshev notes, “in accordance with the theory of the implementation of fiduciary relations, their establishment presupposes the direct expression of the will of the counterparties.”

In our opinion, the question of how legal relations related to the security function of a bill of exchange are established between the parties to a business transaction requires an answer. Two options seem possible - depending on whether such legal relations are established as a general rule, that is, in the absence of an agreement between the parties that these relations should be considered as a novation of debt (compensation), or whether such legal relations can arise only if there is direct agreement between the parties, that is, they are an exception to the general rule.

Let us assume that in order to establish parallel existing monetary obligations under the main transaction and a bill of exchange obligation, there is no need to reach an additional agreement. In this case, there may be some discrepancy between the goals of the participants in the turnover who create similar legal connections from the actual legal relations that arise. Unless these entities stipulate otherwise, the right of claim in relation to the monetary obligation from the main transaction will arise with the creditor at the moment that the parties initially agreed upon, when concluding the relevant business transaction. Consequently, as a general rule, the payment period for the obligation from the main transaction will occur earlier than for the bill of exchange, despite the fact that in relations involving a security bill, as we have already said, the right of claim under the first obligation should arise no earlier than that established subsequently. Otherwise, the economic goal for which the debtor entered into such relations will not be achieved.

ia, is the purpose of obtaining a loan.

If the parties stipulate that the creditor does not have the right to make a claim under the main transaction before the moment of payment on the bill, then they will thereby reach an agreement that the obligation underlying the issuance of the bill with the issuance of the latter does not terminate, but continues exist alongside the original obligation. Thus, in our opinion, the parties will agree to give the bill the function of ensuring the debtor fulfills his obligation.

••• The defendant gave the plaintiff promissory notes of a third party in order to terminate his obligation to pay a monetary debt to the latter. The plaintiff insisted that he received the bills not as compensation, but to ensure the fulfillment of the obligations assumed by the defendant to pay off the debt.

The court came to the conclusion that these bills are a substitute for performance (compensation) under the contract. This conclusion is justified by the fact that the plaintiff did not provide evidence that there is an agreement between him and the defendant according to which the transfer of these bills of exchange is considered as a method of security (Resolution of the Federal Antimonopoly Service of the North-West District dated 05.02.02 No. A05-8175/00-320/23).

conclusions

Since we are talking about the possibility in this case of establishing fiduciary relations between the drawer and the holder of the bill, it is necessary, as we have already noted, that these subjects express their will to establish such relations.

Based on the above, in our opinion, it is preferable to consider the issuance of a security bill as an exception to the general rule, the establishment of which requires the appropriate expression of the will of the parties.

Unless otherwise agreed, the transfer of a third party's bill of exchange for payment of an obligation from the main transaction terminates the corresponding obligation by replacing the performance. If the debtor issues his bill so that the corresponding obligation is terminated by the establishment of a new obligation between the same persons (novation) or continues to exist along with the obligation of the debtor from the main transaction, ensuring its execution, it is necessary that the parties reach an appropriate agreement on this.

A. Gurkov, lawyer

Legal documents

• (Civil Code Article 421)
• (Civil Code Article 823)
• (Civil Code Article 815)
• (Civil Code Article 140)
• (Civil Code Article 317)
• (Civil Code Article 409)
• (Civil Code Article 409)
• (Civil Code Article 414)
• (Civil Code Article 414)
• (Civil Code Article 818)
• (Civil Code Article 815)
• (Civil Code Article 325)

Commodity bills

Accounting with the drawer

For the drawer, the issued commodity bill will be a debt obligation. To account for trade bills issued, a separate subaccount 60 of the “Settlements with suppliers and contractors” account is used; let’s conditionally define its code 60.3 “Bills issued”.

Orion LLC, to pay the debt to the supplier, issued a promissory note worth 118,000 rubles, incl. VAT 18,000 rubles, with a certain payment period.

Accounting at Orion LLC for bills of exchange issued for settlements with transaction suppliers:

Accounting with the bill holder

For settlement of received trade bills, subaccount 62.3 “Bills received” is opened.

The Sirius accountant generates transactions and reflects the received bill in his accounting as follows: