The lack of a contract is a common problem in loans between people. Did it never occur to you that you are only lending to a friend you know well and has always paid you back? Some of you may have even had the experience of lending money to someone but they didn’t pay it back. You did not sign a loan agreement between you, so you have nothing to actually prove your claim to the money. We will advise you on what such a contract should definitely contain so that you do not lose your money.
Loan agreement or loan? Is there a difference? Basically, it is the same thing. The only difference is that the New Civil Code has introduced the term loan agreement instead of the old loan agreement. However, people continue to use the term “loan”. However, whether we are talking about a loan, a borrowing, a credit or a loan, these are contractual types where an item is given to someone else for use.
You don’t just have to enter into a contract to lend money, but you can also lend any movable item. In such a loan, you must return the item of the same type as the one you have been given to use. It does not matter whether its value has risen or fallen in the meantime. It is also a negotiable debt, which means that it is payable at the place of the debtor, unless otherwise agreed.
Instead of interest, there is the possibility of negotiating the performance of a reasonably larger quantity or of a thing of the same kind but of better quality.
The goods are always generic, i.e. e.g. building materials or gold. If the goods are individual items, such as a car or a painting, it will not be a loan but a lease or a loan agreement if it is free of charge. Thus, there is no contract for the loan of money unless it is specific rare coins or notes.
The form of the loan agreement is not prescribed by law.
Aloan agreement is always for a specific item where you subsequently ask for the same item back (your car, guitar or laptop). It can only be concluded verbally, but it is of course advisable to conclude it in writing in case the person to whom you have given the item does not want to honour his/her commitment.
You will then have no way of proving that you have actually lent the item or the money to them. This is even if we are talking about a loan between friends. So at least a simple contract is always useful.
Theloan agreement should then contain the following:
Loan agreement from a professional
If you are borrowing a valuable item or a large amount of money, a loan agreement should be a matter of course. Even among close friends. The contract will set fair terms and everything will be in black and white. We will be happy to advise you individually.
Draw up a contract by a lawyer
According to the Civil Code, when a fungible thing is given for use and then returned, it is a loan contract.
If a future contract is concluded for the lending of money, it is a so-called bearer debt. This means that the borrower is obliged to perform it in your place of residence and must likewise repay it in the local currency.
Provided, of course, that you do not agree otherwise. For example, if the borrower wants to repay the money in a currency other than the one he received, he must repay it in an amount equal to what he received from the lender. Unless you explicitly agree interest on the loan in the contract, the loan is interest-free. However, you can explicitly agree on the interest. The person who owes you money is obliged to return the money borrowed at the end of the agreed period and pay the extra interest as stated in your money lending agreement. However, ifinterest is notexpressly agreed, it is an interest-free loan agreement.
But be warned, if the debt is not paid properly and on time, you, as the person who lent the items or money, can claim interest on late payment. The amount of this interest is set by government decree and corresponds annually to the repo rate set by the Czech National Bank for the first day of the calendar half-year in which the default occurred, plus 8 percentage points.
In this context, the case law of the Constitutional Court implies that excessive interest is generally contrary to good morals and unenforceable, even if you have agreed on it in the contract, for example, for a prodelny. Such a limit is usually an interest rate of 0.5% per day.
Tip: What not to forget in a cooperation agreement between self-employed persons.
Acontract to lend money can also involve companies. A common situation is when a shareholder lends funds interest-free to his own company to bridge a temporarily difficult financial situation. The advantage is that this has no tax implications.
Again, we recommend that the contract for the loan of funds be in writing, although it can of course be concluded verbally, as in the case of a normal money transfer agreement, which can prevent unpaid invoices.
Of course, it is possible to conclude a loan agreement with interest. The interest will be a tax deductible expense on the part of the company if the purpose of the use of the funds is met and the conditions of the Income Tax Act and related regulations are complied with.
The loan agreement may also specify the time when the loan must be repaid. However, if you do not stipulate this in the contract, the notice period is 6 weeks. In addition, if you have entered into an interest-free loan agreement, the loan can be repaid without notice. There is also the option of repaying the loan in instalments, whichthe loan agreement and the repayment agreement will allow. If you have agreed this between you, you can cancel the contract and demand repayment of the debt with interest when the borrower defaults. In this case, we consider a default to be a situation where, for example, the borrower has been late in repaying more than two instalments or where one instalment has not been repaid for more than three months.
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Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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