"Russian Tax Courier", 2007, N 10

Last year we talked about the grounds and procedure for recognizing expenses for voluntary property insurance<1>. The editors have received many questions about the specifics of tax accounting for property insurance costs in various situations. Today we will talk about taxation of expenses for insuring the collateral.

<1>See article “Taxation of expenses for voluntary property insurance” // RNA, 2006, No. 17. - Note. ed.

Pledge is one of the ways to secure civil obligations. In practice, most often, collateral secures the borrower's obligation to repay the funds lent and to pay interest.

By virtue of the pledge, the creditor (pledgee) has the right, in the event of failure by the debtor to fulfill the obligation, to receive satisfaction from the value of the pledged property. Moreover, in this right he has an advantage over other creditors of the person who owns the property (the mortgagor). Of course, unless otherwise provided by law.

If the insured property is lost or damaged for reasons for which the pledgee is not responsible, he also has a preferential right to receive satisfaction from the insurance compensation for loss or damage to the pledged property. And it doesn’t matter for whose benefit the property was insured. This is what it says in paragraph 1 of Art. 334 Civil Code of the Russian Federation.

The pledgor has the right to act either as the debtor himself under the main obligation secured by the pledge, or as a third party.

The subject of the pledge is any property of the organization, with the exception of property withdrawn from circulation. This is stated in paragraph 1 of Art. 336 Civil Code of the Russian Federation. The mortgagor must have the right of ownership of this property or the right of economic management.

Please note: according to the Civil Code, the subject of pledge can also be property rights (claims). For the purposes of applying tax legislation, they are not included in the concept of property (clause 2 of article 38 of the Tax Code of the Russian Federation). Even if the pledged claim is insured, the costs of such insurance are not subject to Art. 263 Tax Code of the Russian Federation. Indeed, in accordance with it, for example, fixed assets, transport and other property are subject to insurance.

Insurance of pledged property

In accordance with paragraph 1 of Art. 343 of the Civil Code of the Russian Federation, pledged property must be insured, unless otherwise provided by law or contract. The property is insured by the party to the collateral agreement in which it is located. Let us recall that, as a general rule, the collateral remains with the pledgor. The basis is clause 1 of Art. 338 of the Civil Code. But in the pledge agreement it is possible to establish a condition that the pledged property is transferred to the pledgee. True, such a condition does not apply to the collateral subject to a mortgage, as well as to pledged goods in circulation - they are never transferred to the mortgagor. Regardless of who insures the collateral, insurance is always carried out at the expense of the pledgor.

The pledged property is insured against the risks of its loss and damage. This property can be insured for full or partial value. The latter option is practiced when the full value of the pledged property exceeds the amount of the claim secured by the pledge. Insurance is provided for an amount not less than the amount of the claim. In this situation, both the mortgagor and the mortgagee have the right to additional insurance of the property, including from another insurer. The total insured amount under all insurance contracts should not exceed the insured value of the property (Clause 1, Article 950 of the Civil Code of the Russian Federation).

Recognition of property insurance costs in tax accounting

Any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income. Expenses taken into account when forming the tax base for corporate income tax must be economically justified and documented. This requirement is contained in paragraph 1 of Art. 252 of the Tax Code of the Russian Federation. This also applies to insurance costs.

The procedure for tax accounting of expenses for property insurance is established in Art. 263 Tax Code of the Russian Federation. Thus, the costs of voluntary property insurance (which includes insurance of the collateral) include insurance premiums for those types of insurance that are listed in paragraph 1 of this article. This list is open because it provides for voluntary insurance of any other property used by the taxpayer in activities aimed at generating income.

Note. Who is the beneficiary

When determining the validity of the costs of insuring the collateral, it matters who is indicated as the beneficiary in the insurance contract for this property. After all, it is this person who receives insurance compensation when an insured event occurs.

As stated in paragraph 1 of Art. 930 of the Civil Code of the Russian Federation, property can be insured under an insurance contract in favor of a person (the policyholder or beneficiary) who has an interest in preserving this property based on law, another legal act or contract.

At first glance, the mortgagor and the mortgagee have an equal interest in preserving the pledged property. After all, the pledgor is the owner of this property (or owns it with the right of economic management), and the pledgee has the right to receive satisfaction from the insurance compensation for loss or damage to the pledged property.

However, when determining the interest in preserving the pledged property, the main question is who is responsible for the safety of the pledged property and bears losses in connection with its loss (damage).

In Art. 344 of the Civil Code of the Russian Federation establishes that the risk of accidental loss or accidental damage to the pledged property is borne by the pledgor. Of course, unless otherwise provided by the pledge agreement. The pledgee is responsible for the complete or partial loss or damage to the collateral that was transferred to him (unless he proves that he can be exempted from liability in accordance with Article 401 of the Civil Code of the Russian Federation). That is, he must compensate the mortgagor for losses caused by loss or damage to property.

In the event of loss or damage to the subject of pledge, the pledgee has the right to satisfy his claims at the expense of insurance compensation only upon the occurrence of the circumstances specified in paragraph 1 of Art. 348 Civil Code of the Russian Federation.

Consequently, when the subject of the pledge remains with the pledgor, he must be the beneficiary under the insurance contract for this property (Letter of the Ministry of Finance of Russia dated June 4, 2003 N 04-02-05/5/11). If the pledged property is transferred to the pledgee, both the pledgor (he incurs losses due to the loss and damage of the property) and the pledgee (he must compensate for the specified losses of the pledgor) can be named as a beneficiary in the agreement. But the latter is possible if such a condition is expressly stated in the pledge agreement. The fact is that, as a general rule, the pledgee insures the collateral in the interests of the pledgor. Basis - art. 50 of the Law of the Russian Federation of May 29, 1992 N 2872-1 “On Pledge”.

So, we can distinguish three main conditions for recognizing for tax purposes the costs of insuring the collateral:

• economic justification of insurance costs;
• documentary evidence of these expenses;
• actual use of the insured property when carrying out activities aimed at generating income.

Note! If the mortgagor is a third party

As we have already noted, the pledgor can be a third party, that is, a person not participating in the agreement, the obligation under which is secured by the pledge. Then the insurance of the collateral is carried out at the expense of this third party. Of course, the third party must justify its economic interest in assuming the obligations of the mortgagor. In other words, prove that this activity is aimed at generating income. Only then can his expenses for insuring the collateral be considered economically justified. In particular, an appropriate agreement must be concluded between the pledgor - a third party and the organization whose obligations are secured by the pledge. It must provide for the remuneration of the third party for his services as mortgagor.

Economic justification for the costs of insuring the pledged property from the mortgagor

The Civil Code clearly states that the collateral is insured at the expense of the pledgor. In this case, it does not matter who acts as the insured (concludes an insurance contract with the insurance organization) - the mortgagor or the mortgagee. Consequently, the costs of insuring the pledged property can only be considered economically justified by the mortgagor.

The option when the mortgagor himself acts as the insured does not raise any questions. Let's consider another option - when the policyholder is the pledge holder (remember, this is possible when the pledged property is transferred to him). How is the obligation of insurance at the expense of the mortgagor ensured in this situation?

Based on the provisions of paragraph 1 of Art. 939 and paragraph 1 of Art. 954 of the Civil Code of the Russian Federation, the obligation to pay the insurance premium (insurance contributions) may be assigned by the insurance contract not to the policyholder, but to the beneficiary. Thus, if, by virtue of the provisions of Art. 343 of the Civil Code of the Russian Federation, the insured of the pledged property is the pledgee; the pledgor’s expenses for insuring this property are considered justified, provided that he pays insurance premiums as a beneficiary under the insurance contract.

Let us assume that the mortgagor is not named as a beneficiary in the property insurance agreement, but under the terms of the collateral agreement he reimburses the mortgagee (the policyholder) for his expenses for paying insurance premiums. In such a situation, please note that in accordance with paragraph 6 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for income tax, expenses in the form of contributions for voluntary insurance are not taken into account, except for the contributions specified in Art. Art. 255, 263 and 291 of the Code.

Regardless of who acts as the insured of the pledged property (the mortgagor or the pledgee), the obligation to insure arises from the pledge agreement. A pledge ensures a certain obligation of the pledgor. Therefore, when deciding whether the costs of insuring the collateral are justified, it is necessary to take into account what kind of obligation is secured by this collateral. For example, we are talking about the collateral provided for in the loan agreement. Then it is important for what purpose the loan was taken. If they are related to the business activities of the mortgagor organization, then we can draw a conclusion about the economic justification of the costs associated with obtaining such a loan. We are talking about the costs of insuring the collateral, which secures the obligation to repay the loan and pay interest.<2>.

<2>On the issue of the economic justification of the borrower's expenses for insuring the collateral secured by the loan, see Letter of the Ministry of Finance of Russia dated March 2, 2006 N 03-03-04/4/42.

Economic justification for the costs of insuring the pledged property from the pledgee

When the insured of the pledged property is the pledgee, the payment of insurance premiums by him at his own expense is not an economically justified expense. This means that the mortgagee cannot reduce the tax base for income tax by the amount of such contributions.

Let us assume that the collateral is insured at the expense of the pledgor in a partial cost that is equal to the amount of the obligation secured by the collateral. The pledged item is in the possession of the pledgee. He is responsible for the safety of this property and, in the event of its loss or damage, additionally insures the pledged item for the amount of the difference between its actual full value and the value for which it is insured at the expense of the pledgor. Will the mortgagee's expenses for such additional insurance be considered justified? The Russian Ministry of Finance believes not. This position was expressed by him in Letter dated 09.10.2003 N 04-02-05/5/17.

Please note that the transfer of the pledged property to the pledgee does not automatically entail the pledgee's right to use this property. In accordance with paragraph 3 of Art. 346 of the Civil Code, such a right must be expressly stated in the pledge agreement. If this is not established by the agreement, then one of the mandatory conditions for recognizing insurance expenses is not met, namely the actual use of this property in activities aimed at generating income.

Use of insured property

We found out that only the mortgagor can take into account the costs of insurance of the pledged property for the purpose of calculating income tax. One of the indispensable conditions for recognizing these expenses in tax accounting is the use by the mortgagor of the specified property to conduct activities aimed at generating income (Article 263 of the Tax Code of the Russian Federation).

Of course, this condition is met if the pledged property, according to the pledge agreement, remains with the pledgor<3>. Let us recall that on the basis of clause 3 of Art. 338 of the Civil Code of the Russian Federation, the subject of pledge, transferred by the pledgor for a period of time to the possession or use of a third party, is considered to be left with the pledgor. In other words, the pledgor can not only use the collateral for the production of goods (works, services), but also rent it out. But this requires the consent of the mortgagee (clause 2 of Article 346 of the Civil Code of the Russian Federation).

<3>Except for the case when, according to paragraph 2 of Art. 338 of the Civil Code of the Russian Federation, the subject of the pledge was left with the pledgor under lock and key and the seal of the pledgee. With such a pledge, the pledgor does not have the opportunity to use this property.

Example 1. Alpha LLC received a loan from Standard Bank. The loan is needed by the organization for settlements with suppliers of materials and payment of wages to employees. Under the loan agreement, Alpha LLC's obligations to repay the loan and pay interest are secured by the pledge of property owned by the company under the right of ownership. Such property is office space. Under the pledge agreement, the property remains with the pledgor (Alfa LLC), who must insure it in the amount of his obligations under the loan agreement. Alpha LLC rents out the specified premises (with the consent of the bank).

The company entered into an agreement to insure office premises against the risks of loss and damage. In the contract, the organization acts as both the policyholder and the beneficiary. The costs of paying insurance premiums under the insurance contract reduce the tax base for the income tax of Alpha LLC.

The fact that the pledged property is accounted for, for example, as a fixed asset or inventory, does not always mean its actual use in activities aimed at generating income.

Example 2. Let's use the conditions of example 1. Let's assume that Alpha LLC temporarily does not use office space for its needs, which acts as a collateral under an agreement with Standard Bank, and does not rent it out. In this case, Alpha LLC cannot take into account the costs of insuring this premises for tax accounting purposes.

The procedure for recognizing the costs of insuring the collateral

The procedure for accounting for the purposes of profit taxation of expenses for insurance of pledged property is the same as in any other cases of voluntary property insurance. That is, these expenses are included in other expenses in the amount of actual expenses (clause 3 of Article 263 of the Tax Code of the Russian Federation). The moment of recognition of expenses is established in clause 6 of Art. 272 of the Tax Code of the Russian Federation. It depends on how the terms of payment of the insurance premium (insurance premiums) are formulated in the insurance contract. If the contract provides for a one-time payment of the insurance premium, and the validity period of the contract is more than one reporting period, then the following procedure applies. The amount of the insurance premium is included in other expenses evenly throughout the term of the contract in proportion to the number of calendar days of the contract in the reporting period.

If, under the contract, insurance premiums are transferred in two or more payments, then these amounts are included in the taxpayer’s expenses as they are transferred to the insurance organization.

Documentary evidence of the costs of insuring the collateral

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, documented expenses mean expenses supported by documents:

• issued in accordance with the legislation of the Russian Federation;
• executed in accordance with business customs applied in the foreign country in whose territory the expenses were incurred;
• indirectly confirming the expenses incurred.

When confirming the costs of insuring the collateral, the taxpayer must provide:

• pledge agreement. If we are talking about a pledge of movable property to secure obligations under an agreement, which must be notarized, then the pledge agreement is also subject to notarization. An agreement on the pledge of real estate (mortgage) must be registered in the manner established for state registration of transactions with real estate. If these requirements are not met, the pledge agreement is declared invalid (Clause 4, Article 339 of the Civil Code of the Russian Federation);
• an agreement, the fulfillment of obligations under which is secured by collateral. It may stipulate the conditions for the pledge without drawing up an independent pledge agreement (Clause 4 of Article 10 of the Law of the Russian Federation of May 29, 1992 N 2872-1). Such an agreement must be made in the form established for a pledge agreement;
• mortgaged property insurance contract. An insurance contract can be concluded not only by drawing up one document in accordance with clause 2 of Art. 434 Civil Code of the Russian Federation. Such an agreement is also considered concluded upon delivery by the insurer to the policyholder on the basis of his written or oral application of the insurance policy (certificate, certificate, receipt) signed by the insurer (clause 2 of Article 940 of the Civil Code of the Russian Federation);
• documents confirming payment of insurance premiums.

M.V.Romanova

State Advisor

civil service of the Russian Federation

2nd class

Administration Department

income tax

Often, when transferring loan funds to a borrower, the creditor bank, wanting to reduce its financial risks, makes the loan collateral as a condition of lending. As a rule, the collateral is both various production equipment, buildings and structures, which are usually called fixed assets or long-term assets, and working capital - a stock of goods or materials in a warehouse. This property can be either the property of the borrower or the property of third parties - mortgagors. In this case, in addition to the loan agreement, a collateral agreement is concluded, where the mortgagor is either the borrower himself or a third party.

When lending to individuals, the collateral can be real estate, vehicles, securities, jewelry and other valuables belonging to the borrower.

In most cases, the collateral is subject to insurance. The exceptions are land plots, securities pledged as collateral, precious metals, financial investments in other organizations, as well as real estate and other property for which the owner has not yet taken possession. In this case, the creditor bank requires the conclusion of an insurance agreement with one of the companies determined by the credit institution. Documents confirming the availability of insurance are presented to the bank before the loan agreement is concluded.

How is insurance of the collateral obtained?

Typically, pledged property is insured for all major risk groups - theft, loss, destruction, damage, and so on. Insurance conditions are determined by the internal rules of the insurance company. Since each company has its own insurance conditions, as well as the payment procedure for insured events, the bank also determines for itself the list of those insurers with which it prefers to work. It is from this list that the borrower should choose an insurance company. A policy issued by a company not included in this list will not be a basis for the bank to recognize the insurance as completed.

The bank most often requires you to take out an insurance policy for the entire loan period. If the term of the loan agreement is longer than the validity of the policy (and this is usually one year), then the insurance is subject to renewal under the same conditions in full.

In the event of an insured event, the amount of the insurance payment must cover the entire debt to the bank on the loan. The bank will definitely set this condition. This means that the collateral (and at the same time insurance) value of the property cannot be less than the loan amount.

How is insurance paid?

In the event of an insured event, the insurer pays the amount to the creditor bank. If the insurance payment was sufficient to cover the principal amount of the loan, as well as interest on it, then the remainder of the payment is sent to the borrower. For these purposes, a tripartite agreement is concluded between the borrower, the insurance company and the creditor bank that in the event of an insured event under the mortgaged property insurance policy, the creditor bank becomes the beneficiary. And the bank will require you to sign such an agreement even before the conclusion of the loan agreement.

The most expensive is insurance of cars and other vehicles. This is due to the fact that the risk of death, loss, damage, in a word, the occurrence of an insured event, is higher than that of other collateral. Lowest insurance prices for real estate properties. After all, you must admit that these objects cannot be stolen and are difficult to damage.

At first glance, by insuring the collateral at the request of the bank, you incur additional costs, thereby increasing the cost of the loan. But this event will save you from troubles if loss or damage to the pledged property does occur. Then not only will the loss from the loss of property fall on you, but you will also be left with an obligation to the bank, which will need to be paid according to the agreed schedule. In the case of collateral insurance, the insurance company solves this problem for you.

Rasskazova Natalia Yuryevna, head of the department of civil law at St. Petersburg State University, candidate of legal sciences, associate professor.

The author of the article rightfully criticizes the position of the Ministry of Finance of Russia, the Central Bank of the Russian Federation, and insurance supervisory authorities, according to which the pledgee has no interest in insuring the collateral in his favor. Noting the significant legal shortcomings of practical solutions based on the application of departmental clarifications, the author makes several interesting proposals for resolving the conflict.

Formulation of the problem

Pledge as a way to ensure the fulfillment of obligations is attractive due to its reality in the everyday understanding of the word. The collateral is real for the creditor, first of all, because it is embodied in a thing that can be seen, inspected, evaluated, saved in case of failure of the debtor<1>. But this materialization of the right of pledge is also associated with a specific risk for the creditor, who is the pledgee, - the risk of loss or damage to the pledged item. This risk is traditionally eliminated by insuring the collateral.

<1>Preferring a pledge over other security precisely for its materiality, the participants in the turnover, not at all interested in scientific discussions, involuntarily speak out for recognition of the right of pledge as a real one.

Since if the debtor fails, the creditor-mortgagee<2>in any case, he claims not for the thing, but for its value, his interest will be protected equally, regardless of the source from which the debt is repaid: as a result of the sale of the collateral at auction or from amounts paid by the insurer. This fairly obvious conclusion is confirmed by the rules of paragraph 1 of Art. 334 Civil Code of the Russian Federation:

<2>The problem of insuring the collateral arises primarily in connection with the activities of banking organizations, therefore banks will be considered in the article as pledge holders. However, mutatis mutandis the conclusions drawn apply to any mortgagee.

"1. By virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of failure by the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially before other creditors of the person who owns this property (the pledgor), with exceptions established by law.

The pledgee has the right to receive, on the same basis, satisfaction from the insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage occurred for reasons for which the pledgee is responsible."

Despite the fairly clear wording of the law, in practice it is widely believed that the mortgagee does not have the right to insurance compensation.

This approach is based on the following reasoning. By virtue of paragraph 1 of Art. 930 of the Civil Code of the Russian Federation, the policyholder or beneficiary under a property insurance contract can only be a person who has an interest in preserving this property based on law, another legal act or contract. By virtue of paragraph 1 of Art. 929 of the Civil Code of the Russian Federation, the insurer must compensate losses in the insured property or losses in connection with other property interests of the policyholder or beneficiary. The destruction of property causes losses not to the pledgee, but to the pledgor as the owner, therefore both the bearer of interest and the person entitled to receive insurance compensation in the event of the destruction of the pledged item is the owner of the property - the pledgor. The pledgee has no interest in preserving the collateral. That’s right, “forgetting” about the rules of Art. 334 of the Civil Code of the Russian Federation, interpreted the law by the Ministry of Finance of Russia<3>and territorial insurance supervisory authorities, who saw a violation of insurance legislation when concluding insurance contracts in favor of mortgage banks, i.e. persons who, in the opinion of supervisory authorities, do not have an insurable interest. At one time, the Bank of Russia also demonstrated its commitment to this logic. Prohibiting the consideration of a pledge as security of the second category if the pledged item is not insured in favor of the pledgee bank<4>, the Central Bank of the Russian Federation, in fact, recognized that the quality of collateral changes significantly depending on the inclusion of the specified condition in the contract. As we see, the provisions of Art. 334 of the Civil Code of the Russian Federation was also not taken into account when formulating such a ban.

<3>Letter of the Ministry of Finance of Russia dated July 4, 2003 N 04-02-05/5/11.
<4>Clause 6.3.1 of the Regulations of the Central Bank of the Russian Federation dated March 26, 2004 N 254-P “On the procedure for the formation by credit institutions of reserves for possible losses on loans, on loan and equivalent debt.” Now this wording has been excluded from Regulation No. 254-P (see instruction of the Central Bank of the Russian Federation dated December 12, 2006 No. 1759-U).

Unfortunately, in Russia people traditionally trust the opinions of officials more than the law. Therefore, practice respectfully listened to the departmental interpretation of the Civil Code of the Russian Federation and, with its usual ingenuity, proposed several solutions to the problem. These decisions either do not provide the mortgagee with the expected protection of his interests, or are simply contrary to the law. Their ineffectiveness is explained primarily by the fact that they are designed to resolve an insoluble contradiction: to protect the interest of the pledgee in preserving the subject of the pledge and at the same time adapt to the opinion of officials who “cancelled” this interest.

Criticism of solutions proposed in practice

1. A very common recommendation is to include in the pledge agreement a condition that the risk of accidental loss or damage to the pledged item is borne by the bank as the pledgee.<5>. It is believed that as a result of such an agreement, the bank will acquire an insurable interest, the status of a beneficiary in the insurance contract and the right to receive insurance compensation. The legality of such a condition would seem to follow from paragraph 1 of Art. 344 of the Civil Code of the Russian Federation: “The mortgagor bears the risk of accidental loss or accidental damage to the pledged property, unless otherwise provided by the pledge agreement".

<5>Burkova A. Insurance of pledged property in favor of the creditor // Law and Economics. 2006. N 10. P. 46. See also: Fogelson Yu. Insurance interest in property insurance // Economy and Law. 1998. N 9. P. 106.

To evaluate a proposal from a legal point of view, it is necessary to answer a number of questions.

Firstly, what does it mean to “bear the risk of accidental loss (damage) to property”? The destruction (damage) of a thing objectively entails losses, regardless of the reasons that caused this event. The only problem is who will bear the losses. The legislator establishes different rules for two fundamentally different situations. If the death or damage of a thing is caused by the actions of a person who is responsible for it, then the losses will fall on the specified person (Articles 393, 1064 of the Civil Code of the Russian Federation). If a thing is lost (damaged) and there is no one to hold responsible for it, the rules on localization (decomposition, assignment) of risk apply. Assigning risk is an alternative to assigning liability. Thus, “to bear the risk of accidental loss (damage) of property” means to bear the negative property consequences of loss (damage) of property in a situation where there is no person responsible for the occurrence of these consequences.

Secondly, what is this risk? First of all, the loss of value of the thing itself. Therefore, to indicate a person who “bears the risk of loss (damage) to property” means, as a general rule, to indicate the person in whose property sphere real damage is generated in the amount of lost value.

Thirdly, who can bear the risk of accidental loss (damage) of a thing in its classical expression, i.e. in the form of loss of value of a lost (damaged) item? As a general rule, this person is the owner (Article 211 of the Civil Code of the Russian Federation), since it is he who benefits from the possession of the thing. At the same time, the law traditionally allows for numerous exceptions to this rule. In such cases, the direct loss from the destruction of a thing is localized not in the sphere of the owner, but in another person. But not just anyone. According to the authoritative opinion of Marcel Planiol, the question of the distribution of risk between the owner and the non-owner is associated with the presence between them of two mutual obligations arising from one contract. In case the fulfillment of one of the obligations becomes impossible due to a reason for which the parties to the contract are not responsible, the legislator establishes rules on the distribution of risks<6>. A classic example: if the purchase and sale agreement stipulates that the risk of destruction of the thing passes to the buyer from the moment the contract is concluded, and the thing accidentally dies before it is transferred to the buyer, he, since he bears the risk, must still pay the agreed price to the seller.

<6>Planiol M. French civil law course. Part one. Petrokov, 1911. P. 495.

Let us return to the problem of the relationship between the mortgagor and the mortgagee. How to interpret the condition of the pledge agreement that the pledgee bank assumes the risk of accidental destruction of the pledged item? If we follow the general logic described above, the specified condition should mean the following: the bank agrees that losses from the accidental destruction of the collateral are localized in its, the bank’s, property sphere and will not affect the property sphere of the owner of the collateral, i.e. pledgor. From here we have to draw an absurd conclusion: in the event of accidental destruction of the pledged item, the bank, as the bearer of risk, must compensate the owner for losses in the amount of the value of the pledged item. It’s good if you can use the amount of insurance compensation for this. But the condition of accepting the risk is a condition of the collateral agreement, and it will not depend on the presence and terms of the insurance agreement. Therefore, the mortgage bank will have to “bear the risk” even in the absence of insurance compensation for one reason or another. As we see, with the traditional approach to the concept of the risk of accidental loss (damage) of a thing, the condition offered to pledgees as a guarantee of their interests leads to the exact opposite result.

The conclusion drawn fully applies to the situation in which the collateral is pledged. But since in this case the pledgee is responsible for the safety of the pledged item (clause 2 of Article 344 of the Civil Code of the Russian Federation), he can insure his liability based on the pledge agreement.

This makes us think about another question. If the pledgee's acceptance of the classic risk of accidental death or accidental damage to the pledged property is so unreasonable, what did the legislator have in mind when formulating the norm of paragraph 1 of Art. 344 of the Civil Code of the Russian Federation as dispositive? What can the parties to a pledge agreement agree on? Most likely, we should be talking about a waiver of the guarantees that the law provides to the pledgee in the event of the destruction of the pledged item, in particular the right to early collect the amount of the secured debt in the event of loss of security (Articles 351, 813 of the Civil Code of the Russian Federation). But regardless of whether such a refusal can be interpreted as an acceptance of risk by the mortgagee (this conclusion in itself requires additional justification), it is obvious: the refusal of guarantees does not in any way strengthen the position of the mortgagee bank. The result in this case is exactly the opposite of what was expected.

1. Popular in practice is the proposal to conclude a tripartite agreement (with the participation of the bank, the mortgagor and the insurer), which includes the conditions that the insurer transfers the amount of insurance compensation to the mortgagor’s account in the mortgagee bank, and the latter is given the right to write off this amount from the mortgagor’s account without acceptance .

In an effort to agree on the terms of several obligations, their parties often resort to concluding so-called multilateral treaties. The practice of concluding such agreements gives rise to serious reproaches: it increases the risks of participants in legal relations, and often contradicts the law. To understand this problem, it is necessary to refer to some provisions of the general part of civil law.

The term “agreement” has several meanings: an agreement refers to both a legal fact (“a loan agreement has been concluded”), the obligation generated by it (“the agreement is executed”), and a document that sets out the contents of the agreement (“the agreement is drawn up on a form”). In Art. 154 of the Civil Code of the Russian Federation, which mentions a multilateral agreement, we are talking about a transaction, i.e. about a legal fact. A deal can be multilateral. The obligation generated by the transaction can only be bilateral, as follows from its definition (Article 307 of the Civil Code of the Russian Federation). What feature distinguishes a multilateral transaction from a bilateral one? It is not the number of parties at all, since an agreement that is multilateral in nature can be concluded between two parties. A distinctive feature of a multilateral transaction is the direction of the will of the parties. Unlike bilateral transactions, in which the wills of the parties have different, opposing directions, the will of the parties to a multilateral transaction has a common direction. For example, a simple partnership agreement is a multilateral transaction, since all its participants act to achieve the same goal. A purchase and sale agreement is a bilateral transaction, since the parties have opposite goals (one is to buy, the other is to sell). But if the obligations generated by a transaction are always bilateral, what is the point of distinguishing multilateral transactions? The fact is that the bilateral (!) obligations they generate bind the parties to the agreement in a special way.

In a bilateral agreement, each of the two parties pursues its own goal, the interests of the parties are mutual, the rights and obligations of the parties are distributed according to the principle of exchange (“I promise you an action for your influence”)<7>, and therefore one party can both demand from the other the fulfillment of its obligations in its favor (for example, the buyer can demand that things be transferred to him), and receive something under the contract at the expense of the other party (for example, the seller receives money from the buyer).

<7>Baron Yu. System of Roman civil law. St. Petersburg, 2005. P. 541.

In a multilateral agreement, the parties have a common goal, the interests of the parties are unidirectional, the rights and obligations of the parties are distributed according to the principle “each to all”, “all to each”, and therefore no party can demand performance in its own favor, but only in favor of all participants (in a simple partnership agreement, a partner who is obliged, for example, to carry out construction, cannot demand from the partner who is obliged to supply materials, supplies in his favor; he must act on behalf of the partners), the participant can receive something under the agreement not at the expense of another participant, but only through common activities<8>.

<8>See, for example: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08.08.2000 N 7274/99; Resolution of the Federal Antimonopoly Service of the North-Western District dated September 10, 2004 N A26-3712/03-15.

Obviously, the agreement between the mortgage bank, the pledgor and the insurer is not multilateral. But perhaps the conclusion of a multilateral agreement produces an effect for which theoretical calculations should be neglected? If so, then the specifics of such an agreement should be manifested in the content of the obligations binding the mortgagee, the borrower and the insurer.

Let us assume that, by virtue of a tripartite agreement, the mortgagee bank receives a request from the insurer to transfer the amount of insurance compensation to the mortgagee's account opened with it. But if the insurer is obliged to pay insurance compensation, this obligation can arise only from the insurance contract and only in relation to the creditor under this contract. Hence the conclusion: the bank becomes a party to the obligation of the insurance contract. In what capacity? As an insured or beneficiary, there is no third option. The entire structure ultimately appears as an insurance contract concluded in favor of a third party. But it was precisely to circumvent this situation that it was invented.

Let's say that by participating in a tripartite agreement, the bank receives the right to demand from the pledgor that he instruct the insurance company to transfer the amount of insurance compensation to the bank's account. But if the mortgagor remains a party to the insurance contract in which the bank does not participate, how can the bank influence the right of the mortgagor-insurant to indicate to the debtor - the insurance company, where to transfer the amount of insurance compensation? Do the obligations from the said tripartite agreement bind the parties to another agreement - an insurance agreement? No, they don’t (Article 308 of the Civil Code of the Russian Federation). As we see, in this case, the conclusion of a tripartite agreement does not give the desired result.

Perhaps a tripartite agreement gives rise to an obligation with a plurality of persons on the side of the debtor, represented by the pledgor and the insurer? If this is so, then the agreement becomes an ordinary bilateral one: on one side the creditor is the bank, on the other there is the debtor, represented by two persons. What is the content of the obligation from this agreement? We are talking about the right of the mortgage bank to demand the transfer of the amount of insurance compensation to a certain account. But this requirement is unenforceable in relation to the mortgagor, since the transfer is carried out not by him, but by the insurer. The content of the obligation between the bank, on the one hand, and the pledgor and insurer, on the other, can be interpreted in another way: the pledgor and the insurer promise the bank not to change the agreed terms of payment without its consent. But the promise to the pledgor bank has legal significance only within the framework of a multilateral agreement with it and does not affect the validity of agreements within the framework of the insurance obligation between the pledgor and the insurer.

As we can see, the design of a tripartite agreement in our case does not lead to the expected effect.

Firstly, and this is the main thing, the parties to the contract do not have a common goal, and therefore it is impossible to “squeeze” their counter rights and obligations into a common obligation for all. The construction of a multilateral treaty in the absence of a common goal for all its participants does not lead to the emergence of a qualitatively new obligation. Is this why it is difficult to name such agreements: their subject is unclear.

Secondly, mixing obligations of different natures in one document increases the risk of inconsistency of the rights and obligations acquired by the participants in the obligations. Here's a good example. One of the multilateral agreements contained conditions on the obligations of the participants to the bank: the insurance company had to transfer insurance compensation to a certain bank account, and the borrower was obliged to provide information about his financial condition. The borrower fulfilled this condition, traditional for contracts with banks, and informed the bank. The insurance company refused to pay, citing a violation of the terms of the contract. The insurance company proceeded from the fact that since the contract was concluded with its participation, the mortgagor must fulfill all obligations in its favor.

In a situation where the interests of several persons are actually connected, the search for legal means that allow these interests to be harmonized legally is justified. In this case, however, it is necessary to proceed from the fundamental provisions of Art. 308 of the Civil Code of the Russian Federation: an obligation binds only its parties - the creditor and the debtor, the content of whose rights and obligations are determined by the nature of the obligation.

Let us note that in the absence of a common goal of the parties to the agreement, it cannot be considered as a mixed agreement (Article 421 of the Civil Code of the Russian Federation). A mixed contract may include elements of contracts concluded only between the same parties. Thus, it is possible to conclude a mixed agreement, including elements of a loan and a pledge agreement, since the parties to both are the same persons. But a mixed contract of collateral and insurance cannot exist, since the parties to the first are the bank and the borrower, and the parties to the second are the borrower and the insurer. Upon closer examination, such an agreement breaks down into ordinary reciprocal obligations between two parties: the borrower to the bank, the insurer to the beneficiary under the insurance contract, etc.

Concluding the criticism of “multilateral” treaties, one cannot help but ask the question: why does practice so insistently turn to them? It seems that the rationale behind such frequent attempts to create multilateral agreements lies in the desire to harmonize the terms of disparate agreements and the actions of their participants. While worthy of attention in itself, this goal can be achieved by carefully elaborating the content of contracts and including in them conditions that have exclusively informative (and not obligatory) significance.

1. Another proposal, which, according to practitioners, can protect the interests of the pledgee in a situation where his insurable interest in the safety of the pledged item is “taken away” is a proposal to insure risks other than the destruction of the pledged item. Since other lending risks certainly exist, the proposal deserves support. However, it is necessary to use insurance against other risks together, but not instead of insurance against the risk of loss (damage) of the collateral. Other risks of the mortgage bank traditionally include the risk of deferment of repayment of the borrower's debt, including when foreclosure on the collateral; the risk of loss of solvency by the borrower, the risk of death of the borrower-citizen. In addition, if real estate is pledged as collateral, insurers have recently often offered title insurance to the borrower's property as collateral.

Suggestions for solving the problem

1. Is it possible, in accordance with Art. 930 of the Civil Code of the Russian Federation to recognize the bank as a beneficiary under an insurance contract for the collateral? The answer to the question would seem to follow from paragraph 1 of Art. 930 of the Civil Code of the Russian Federation: the beneficiary under a property insurance contract may be a person who has an interest in preserving this property (insurable interest). However, the insurance legislation does not contain a definition of the concept of “insurable interest” or a list of persons recognized as bearers of this interest. Therefore, whether the policyholder has an insurable interest is determined in each specific case.

Of course, such an interest is recognized by the owner of the property (Article 209 of the Civil Code of the Russian Federation). However, any right, and not just the right of ownership, is exercised by an authorized person in his own interest (clause 2 of article 1 of the Civil Code of the Russian Federation). Can a non-owner be considered as a bearer of insurable interest?

Practice gives a positive answer to this question, recognizing that an interested party can be not only the owner, but also an entity whose exercise of rights depends on the safety of the insured item. In one of the cases, the Supreme Arbitration Court of the Russian Federation indicated that the policyholder, who received a car for use under a loan agreement, is interested in keeping the car for himself. Such an interest consists of the benefit that the borrower has from preventing losses that he incurs if he is unable to use the insured property. Therefore, the borrower has the right, by virtue of Art. 930 of the Civil Code of the Russian Federation to insure the car received under the contract in case of its theft in his favor and, upon the occurrence of an insured event, receive insurance compensation within the limits of the losses that he, as a tenant, incurred due to the inability to use the car<9>.

<9>Paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 28, 2003 N 75 “Review of the practice of considering disputes related to the execution of insurance contracts.”

It is appropriate to remember that in Art. 373 of the Civil Code of the RSFSR of 1922 contained a list of possible subjects of insurable interest: “A property insurance contract can be concluded by any person interested in the integrity of the property, such as: its owner, a person who has a property right to this property or the right of a tenant, or under a contract responsible for deterioration or destruction of property." The absence of such a list in the current legislation is explained by legal and technical reasons, and not by any means by a change in the nature of property insurance.

When deciding whether a particular person has an insurable interest, it is important to distinguish between insurable interest and interest that has no legal significance. According to the fair remark of V.I. Serebrovsky, insurance interests are the owners of legal, not actual interest, i.e. are in a state of “known” in relation to the insured property legal binding", which means that insurable interest is always based on the legal relationship<10>. The nature and content of this legal relationship has a direct impact on the recognition of a particular person's insurable interest. In particular, the presence and nature of the insurable interest of the mortgagee bank are determined by the mortgage legal relationship.

<10>Serebrovsky V.I. Essays on Soviet insurance law // Selected works. M., 1997. P. 376.

Let us turn directly to the figure of the mortgagee. He has the right of pledge based on the pledge agreement in relation to the object, the risk of destruction of which is subject to insurance. The destruction of the collateral significantly increases the risk of the pledgee not receiving what is due to him from the debtor under the secured obligation, i.e. increases the risk of loss of his, the creditor-mortgagor's, property. Hence, it is logical to recognize that the pledgee has an independent, based on the right of pledge, legal interest in preserving the subject of pledge. This, in turn, means that the pledgee, in accordance with Art. 930 of the Civil Code of the Russian Federation can be a beneficiary under an insurance contract. To confirm this conclusion, we refer to the authority of G.F. Shershenevich, who unconditionally recognized the pledgee as a person interested in preserving the subject of pledge<11>. It is also interesting to turn to the practice of the Governing Senate (decision of 1867 N 322<12>), recognizing the existence of an insurable interest in the mortgage bank.

<11>Shershenevich G.F. Textbook of commercial law. M., 1994. P. 223.
<12>Insurance law. 1998. N 2. S. 60 - 61.

Against the proposed interpretation of Art. 930 of the Civil Code of the Russian Federation, in practice and in the literature, a number of arguments are expressed, among which the following is common: there is no insurable interest where there is no use<13>. This conclusion is based on a restrictive interpretation of Art. 930 of the Civil Code of the Russian Federation (the benefits from owning property are only the benefits from using it). Such an interpretation, in turn, leads to a restriction of the rights of participants in the turnover, and any restriction must be justified. Why does the interest of a person whose right restricts the owner from using property deserve protection, but the interest of a person whose right restricts the owner from exercising other powers (in the case of a pledge, the disposal of the subject of the pledge) does not? The answer to this question remains unclear.

<13>Fogelson Yu.B. Commentary on insurance legislation. M., 2002. P. 115.

Another argument of those who deny that the pledgor bank has an insurable interest is the argument that if the pledged item is destroyed, the bank does not lose anything, since it retains the right of claim under the main obligation, while the pledgor loses his property<14>. This argument does not stand up to criticism, since it ignores the obvious fact that the bank’s financial position is deteriorating due to a sharp increase in the risk of loan default. A clear confirmation of this is the requirement for the bank, designed to compensate for this deterioration, in the event of loss (damage) of the collateral, to increase contributions to reserves to cover possible losses<15>. Another argument is based on a formal interpretation of the rule of Art. 929 of the Civil Code of the Russian Federation. This article refers to losses in insured property or losses in connection with other property interests the policyholder, which are subject to compensation. Indeed, the destruction of the collateral primarily worsens the property position of the pledgor. However, through the mechanism of collateral relations, this event can lead to losses in the property of the pledge holder.

<14>Ezhova A.Yu. Property interest in the insurance contract for the collateral // Legal and legal work in insurance. 2006. N 2. P. 15.
<15>See Bank of Russia Instruction No. 62a dated June 30, 1997 “On the procedure for creating and using a reserve for possible loan losses.”

So, recognition of the bank as a beneficiary under the contract of insurance of the collateral is in accordance with the provisions of Art. 930 Civil Code of the Russian Federation.

1. Let's move on to consider the next question. What rights are granted to the bank by virtue of clause 1 of Art. 334 Civil Code of the Russian Federation? To answer, it is necessary to interpret the expression "get satisfaction due to insurance compensation". The wording clearly indicates that the amount in question must be received by the mortgagee directly from the insurer. Once credited to the account of any other person, such as the insured, it will become impersonal in that account and cease to exist as an "insurance proceeds". From the account of someone other than the insurer , a person may be transferred to the mortgagee not an insurance indemnity, but cash in an amount equal to the insurance indemnity.For the amount to be an insurance indemnity, it must be transferred by the insurer.

Thus, since the mortgagee has the right to satisfaction from the insurance compensation, he has the right to demand payment of the corresponding amount from the insurance company. The correctness of the conclusion drawn is also confirmed by the teleological interpretation of Art. 334 Civil Code of the Russian Federation. The right to satisfaction from insurance compensation is granted to the pledgee for the same purpose as the right of pledge - in order to give him an advantage over other creditors of the pledgor not only in the presence, but also in the event of loss of security. Achieving this goal is possible only in one case - if the mortgagee is given the right to demand payment of insurance compensation directly from the insurer. If we assume that the pledge holder has the right to demand the policyholder to transfer the amount of insurance compensation received from the insurer, we will have to state that the pledge holder loses the priority right, and the rule in paragraph. 2 p. 1 art. 334 of the Civil Code of the Russian Federation accordingly loses its meaning.

From the above it follows that, by virtue of Art. 334 of the Civil Code of the Russian Federation, in the event of loss or damage to the pledged item, the person obligated to pay the appropriate amount to the pledge holder bank is the insurance company. What is the content of the right of claim of the mortgagee bank against the insurer? The answer to this question will allow us to understand the causes of problems that have arisen in practice. The fact is that the mortgagee banks, as they say, had a hand in both the appearance of the indicated letter from the Ministry of Finance and the formation of the described practice of Rosstrakhnadzor. When an insured event occurred, banks often demanded that insurers pay the insurance indemnity in full, regardless of how much of the secured debt remained outstanding at that time. Ignoring the fact that the right to receive satisfaction from the insurance compensation is granted to the mortgagee only in connection with his interest in securing the main obligation, banks, referring to the provisions of Art. 334 of the Civil Code of the Russian Federation, in fact, they tried to enrich themselves through insurance compensation.

So, is it possible to say that the bank has the right to demand that the insurer pay insurance compensation?

Yes and no. Yes, since the insurer can be obligated to pay only under an insurance contract, which means that the payment will have the nature of insurance compensation (Article 929 of the Civil Code of the Russian Federation). No, since the mortgagee does not have the right to receive insurance compensation under the usual conditions for property insurance contracts. Comparison of paragraphs 1 and 2 of paragraph 1 of Art. 334 of the Civil Code of the Russian Federation shows that the pledgee can receive payment from the insurer on the same basis as receiving satisfaction from the value of the pledged property. This means that payment of insurance compensation to the mortgagee may take place:

• if there are conditions for foreclosure on the collateral (Article 348 of the Civil Code of the Russian Federation);
• in an amount equal to the claim secured by the pledge (Article 337 of the Civil Code of the Russian Federation);
• preferentially before the claims of other creditors, but in compliance with the priority established to satisfy the claims of the mortgagee.

The above allows us to agree with the opinion of V.I. Serebrovsky: the mortgagee has the right “not to the insurance compensation, but only the right to priority satisfaction from the insurance compensation”<16>. This means, in particular, that the pledgor has the right to receive the amount remaining after payment of the corresponding part of the insurance compensation to the pledgee.

<16>Serebrovsky V.I. Decree. Op. P. 381.

So, upon the occurrence of an insured event, the mortgagee bank has the right to receive satisfaction directly from the insurance company, but to receive it in the amount and subject to the conditions established for obtaining satisfaction at the expense of the value of the collateral. The conclusion reached reconciles conflicting approaches to the problem: the bank has an insurable interest in the integrity of the collateral, but this interest is determined not by the value of the collateral, but by the volume of the collateral claim. This conclusion complies with the norms of insurance and collateral law and makes it possible to protect the interests of the mortgagee while preventing his unjust enrichment.

1. Is it significant for the bank by whom, in whose favor and for what reason the insurance agreement for the collateral was concluded?

Let us assume that the bank participates in the contract as an insured or is indicated in the contract as a beneficiary. Does this mean that the principle provided for in paragraph. 2 p. 1 art. 334 Civil Code of the Russian Federation? The answer to the question must, of course, be positive. Moreover, regardless of whether the agreement makes reference to the fact that the bank has the right to compensation only as a mortgagee. The fact that the bank is participating in the insurance contract in order to eliminate credit risk is known to both the insurer (otherwise how will he be convinced that the bank has an insurable interest?) and the policyholder. Before us is one of those cases when the motive for the transaction is known to all participants and is essential for the transaction, due to which it should be given legal significance. This means that the bank has the right to receive payment in the amount necessary to achieve the goal - repayment of the borrower's debt through insurance payment. In other words, in the amount corresponding to the bank's insurable interest at the time of payment.

The insurance contract is invalid to the extent that it allows payments to the bank in an amount exceeding its claim under the obligation secured by the pledge.

Let us assume that there is no mention of the bank at all in the insurance contract. In what capacity will he submit a claim for insurance payment? Can we assume that in the case under consideration, by virtue of the law (Article 387 of the Civil Code of the Russian Federation), the creditor in the insurance obligation is replaced and the bank takes the place of the policyholder? Hardly. With this approach, the mortgagor who has withdrawn from the obligation could not receive the remainder of the amount of insurance compensation if the pledgee's claim turns out to be less than the amount payable under the insurance contract. And this is clearly unfair. The assumption made does not correspond to either the letter of the law or its meaning.

Taking into account the rule of paragraph 1 of Art. 334 of the Civil Code of the Russian Federation, the bank in all cases should be considered as a beneficiary under the insurance contract. This will make it possible, on the one hand, to justify the bank’s independent right of claim against the insurer and to ensure the implementation of its rights, for the protection of which the rule in paragraph. 2 p. 1 art. 334 of the Civil Code of the Russian Federation, and on the other hand, to protect the interest of the owner of the collateral in the event of an insured event.

As for the possibility of imposing obligations on the mortgagee bank under the insurance contract (Article 939 of the Civil Code of the Russian Federation), due to the specifics of the relationship, including the presence of another beneficiary (the owner-mortgagor, who has the right to receive insurance compensation in an amount exceeding the payment , received by the bank), the issue must be resolved in each case separately.

When analyzing the problem, it is necessary to mention the imperative rule of Art. 956 of the Civil Code of the Russian Federation: the policyholder has the right to replace the beneficiary. However, this rule does not affect the position of the bank, since its right to receive insurance compensation is based on its right of pledge, which does not depend on the subject composition of the insurance contract (Clause 1, Article 334 of the Civil Code of the Russian Federation).

Thus, the question of by whom, in whose favor and for what reason the contract of insurance of the collateral was concluded does not have a significant impact on the rights of the pledgee bank. Although the bank’s participation in the contract as an insured or beneficiary certainly facilitates the bank’s interaction with the insurer and, accordingly, reduces the risk of delaying the receipt of insurance payment.

In passing, we note that the participation of the bank in the agreement as an insured is disadvantageous to the pledgor - the owner of the pledged item. After all, the bank in any case will receive payments in the amount of its insurable interest, and not in the amount of the value of the lost item. The mortgagor, not being a party to the insurance contract, will not be able to receive from the insurer the balance of the insured amount, if any.

1. Due to what legal facts does the bank have the right to receive satisfaction from the insurance compensation?

Since, when insuring property, the insurer’s obligations arise only from the insurance contract, the insurance payment is always associated with the occurrence of a circumstance provided for by the contract, namely an insured event.

The creditor under a property insurance contract can only be a person who has an insurable interest. The bank's insurable interest is based on the right of pledge (and not on the obligatory legal relationship from the pledge agreement). Therefore, the right of claim against the insurer cannot arise before the bank has a right to pledge the insured item. As a general rule, the moment the right of pledge arises coincides with the moment the pledge agreement is concluded (Article 341 of the Civil Code of the Russian Federation). Exceptions to the general rule are established for a mortgage (341 of the Civil Code of the Russian Federation), pledge of goods in circulation (Article 357 of the Civil Code of the Russian Federation), some cases of mortgage (Article 11 of the Federal Law of July 16, 1998 N 102-FZ "On mortgage (mortgage of real estate)" ) and in relation to the collateral that the pledgor will acquire in the future (clause 6 of Article 340 of the Civil Code of the Russian Federation). If an insured event under an insurance agreement for the collateral occurred before the bank acquired the right of pledge, the insurance payment may be received by another person who is the insured or beneficiary under the agreement.

Let us emphasize once again that the basis of the bank’s insurable interest lies precisely in the right of pledge, and not in the fact of ownership of the subject of pledge. Therefore, the question of who owns the insured property does not matter when deciding whether the bank has an insurable interest.

Since the mortgagee can receive payment from the insurer on the same basis as satisfaction from the value of the pledged property (clause 1 of Article 334 of the Civil Code of the Russian Federation), the exercise of the right of claim against the insurer is possible only after the insurance company has presented evidence that the bank would have the right to pay recovery of the collateral, be it safe and sound. The right to foreclose on the collateral arises from the pledgee if the debtor violates the obligation under the main agreement (Article 348 of the Civil Code of the Russian Federation). It is important that the destruction (damage) of the collateral itself does not change the obligation of the loan agreement. However, this circumstance gives the bank the right to demand its early execution (Article 813, 352 of the Civil Code of the Russian Federation). In case of early collection of a debt, the borrower's obligation must be fulfilled according to the rules on obligations, the duration of which is determined by the moment of demand. By virtue of paragraph 1 of Art. 810 of the Civil Code of the Russian Federation, the borrower is obliged to return the subject of the loan within 30 days upon receipt of the lender’s request, unless a different period is established by the loan agreement. If the borrower does not repay the debt amount within the prescribed period, his obligation is considered violated, which allows the mortgagee bank to foreclose on the collateral.

The bank's right to receive satisfaction from the insurance compensation can be confirmed in the usual manner - by submitting documents indicating the delay in repaying the debt (statements of the debtor's loan account, etc.). To exclude a dispute about the right to receive insurance compensation, a bona fide insurer must notify the pledgor of the received claim.

To exclude a dispute, you can use a method similar to that provided for in paragraph 1 of Art. 349 of the Civil Code of the Russian Federation: a notarized agreement between the pledgor and the pledgee on the existence of conditions for foreclosure on the subject of pledge and on the recognition of the right to insurance compensation. If there are objections from the mortgagor, the dispute over the right to receive insurance compensation must be considered in court.

So, the right of the mortgagee bank to receive satisfaction arises upon the occurrence of an insured event and the presence of conditions for foreclosure on the subject of pledge.

Let's look at an example. The residential premises pledged to the bank as security for the loan obligation are insured in favor of the bank. Six months before the loan repayment period expired, the premises were destroyed. The bank makes a demand to the borrower for early collection of the debt amount, and after the expiration of 30 days or another period specified in the agreement, sends the insurance company (1) documents confirming the fact that the loan is due to be repaid, (2) an extract from the borrower’s loan account confirming the amount of debt. Having received evidence of the pledgor's consent that the bank's claim is justified, the insurance company pays part of the insurance compensation (equal to the pledge claim) to the bank, and the remaining part to the pledgor as the owner of the lost item.

Let's look at another example that reflects a typical situation. The loan was issued to purchase a car, the car was pledged to the bank and insured in favor of the bank. As a result of the accident, the collateral was damaged. According to the terms of the contract, upon the occurrence of an insured event, the insurance payment is made in favor of the beneficiary. But since the beneficiary's insurable interest is based on the right of pledge, foreclosure on the pledged property is necessary to receive payment. It is clear that if the damage is insignificant, the bank will not demand early fulfillment of the main obligation, and therefore will not be able to demand an insurance payment. However, it is in his (and the borrower's) best interest for the payment to be made and used to repair the vehicle. Since the owner, as the person who has the most complete right to the property belonging to him, always has a legal interest in its preservation<17>, he, as the policyholder, can file a claim for insurance payment. In this case, the beneficiary must confirm that he does not intend to exercise his right from the insurance contract (clause 4 of article 430 of the Civil Code of the Russian Federation).

<17>See paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 28, 2003 N 75 “Review of the practice of considering disputes related to the execution of insurance contracts.”

1. It is obvious that the effectiveness of insurance of the collateral largely depends on the coordination of the terms of the credit, insurance and collateral agreements.

For example, the composition of the documents submitted to the insurer upon the occurrence of an insured event depends on the procedure for foreclosure on the collateral provided for in the pledge agreement. The terms of the insurance agreement on payments in the event of loss (damage) of the collateral must be consistent with the terms of the loan agreement on the bank’s right to early collection of the loan. The terms of the insurance payment must also be agreed upon with the terms of the pledge agreement regarding the replacement of the subject of pledge (Article 345 of the Civil Code of the Russian Federation). Since the insurer needs information regarding the terms of the loan agreement and the collateral agreement, these agreements should not exclude the right of the relevant party to transmit information to the insurer. The transfer of such information is especially important when changes are made to contracts.

To eliminate disputes regarding the amount and procedure for making insurance payments, the insurance contract must describe the bank's insurable interest. By the way, the article mentioned above. 373 of the Civil Code of the RSFSR of 1922 ordered the policyholder to “precisely indicate the nature of his interest and the interest of the beneficiary.” Perhaps this rule deserves to be included in Art. 930 Civil Code of the Russian Federation.

The issue of the fate of credit and insurance agreements and collateral in the event of the destruction of the collateral requires special attention. If the pledge agreement provides for the right of the pledgor to replace the subject of pledge and the pledgor exercises his right, then the pledge agreement continues to be valid and does not require re-conclusion. The same applies to the loan agreement. The insurance contract is terminated by execution. A new insurance contract must be concluded for the new collateral. If the pledgor does not exercise the right to replace the lost item or this right is not provided for in the pledge agreement, the pledge agreement is terminated and the bank receives the right to collect the loan early. The insurance contract is terminated by execution, depending on the specific circumstances, in favor of the bank or the mortgagor.

conclusions

1. Recognition of the pledge holder as a beneficiary under an insurance contract for the subject of pledge complies with the provisions of Art. Art. 929 and 930 of the Civil Code of the Russian Federation.
2. The question of by whom, in whose favor and for what reason the contract of insurance of the collateral was concluded does not have a significant impact on the rights of the pledgee.
3. The pledgee's right to receive satisfaction from insurance compensation under an insurance contract against the risk of loss or damage to the pledged item arises subject to the occurrence of an insured event and the existence of conditions for foreclosure on the pledged item.
4. In the event of destruction (damage) of the pledged item, the pledgee has the right to receive satisfaction from insurance compensation in an amount not exceeding the volume of the pledge claim.
5. The pledgee should not assume the risk of destruction of the pledged item, since accepting such a risk either contradicts the nature of the obligations from the pledge agreement or is unfavorable to the pledgee.
6. The practice of concluding multilateral agreements with the participation of the mortgage bank, pledgor and insurer raises serious reproaches: it increases the risks of participants in legal relations, and often contradicts the law.

The main task of credit institutions is to build a competent credit risk management system in order to minimize the possibility of non-repayment of funds by borrowers. Insurance of collateral is one of the ways to minimize losses for the bank. Who should enter into an insurance contract for collateral property? Can a bank make collateral insurance mandatory? What risks are collateral insured against? We will answer these questions in this article.

What is it and what is it for?

There are 3 types of loan collateral: without any collateral, with a guarantee from third parties and with the provision of collateral. In the latter case, the borrower guarantees the bank that in the event of failure to fulfill obligations (cessation of loan payments), predetermined material assets, which are the subject of collateral, will become the property of the bank. Such material assets can be real estate, land plots, cars, etc.

In most cases, the collateral remains in the possession of the borrower until he violates the terms of the loan agreement. As a result, there is a risk that during operation the collateral will lose its value (the car gets into an accident, there is a fire in the apartment, etc.). To protect itself, the bank may insist on insuring the collateral. On the one hand, paragraph 2 of Article 16 of the Law “On Protection of Consumer Rights” prohibits organizations from conditioning the purchase of some goods on the need to purchase others. This means that the borrower can refuse insurance, but he will continue to qualify for the loan. On the other hand, the bank can inflate the interest rate on the loan, making it not so attractive.

The only case when a bank can legally oblige a borrower to insure collateral is when providing a mortgage loan. According to Article 31 of the Federal Pledge “On Mortgages,” the features of insurance of the collateral (in this case, real estate) are determined by the loan agreement, and if the bank has indicated such a need, the borrower will be obliged to do so.

Insurance of collateral is beneficial primarily for the credit institution. This way, it guarantees that if the debtor fails to fulfill his obligations, the funds under the loan agreement will still be returned to the account. Moreover, insurance of collateral is carried out at the expense of the borrower. The bank does not incur any additional losses. For the borrower, insurance of collateral is beneficial in the sense that if circumstances arise that prevent payments on the loan and simultaneous destruction (damage) of the collateral, the loan will not become an unbearable burden, but will be repaid at the expense of the insurance company. Most borrowers would prefer not to insure the collateral, considering such insurance to be an unnecessary waste of funds, but here a lot depends on the bank itself.

Object of insurance and possible risks

In this case, the insurance object is the collateral provided to the bank as collateral for a loan. Insurance companies may refuse to insure a certain type of material asset. Thus, insurance for the following items will almost certainly be denied:

• Securities (bonds, bills);
• Precious and semi-precious metals, as well as products made from these metals;
• Shares of any enterprise;
• Property that is in faulty or disrepair;
• Property that, for certain reasons, cannot be used for its intended purpose;
• Property located in a region with a high probability of natural disasters.

Credit organizations offer borrowers to insure collateral property with insurance companies accredited by them. This way, the bank will be confident in the reliability of the insurance policy and that it will include the most complete list of insured events, upon the occurrence of which the insurer will be obliged to pay compensation to the bank. The standard list of insured events includes:

• Fire;
• Explosion;
• Fraudulent actions by third parties (theft of property);
• Man-made accidents;
• Natural disasters.

If the collateral is damaged as a result of any of these events, the insurance company will have to pay the insurance claim. Depending on the insurer, the given list of insured events may be reduced or supplemented by other situations. It is more profitable for the bank to accredit those insurance companies that provide the maximum possible list of insured events.

Features of concluding an agreement and making payments

A collateral insurance agreement can be tripartite, when the insurance company, the borrower and the credit institution are involved in its preparation, or bilateral, when the insurance company and the borrower are involved in its preparation. In most cases, the bank is indicated as the beneficiary. That is, upon the occurrence of an insured event, the insurer will pay compensation immediately to the bank. If it turns out that the amount of compensation is greater than the amount owed on the loan, the bank will return the overpaid funds to the borrower and close the loan. If the amount of insurance compensation is not enough to cover the entire debt, it remains with the borrower and he makes payments as usual until the loan is repaid.

The validity period of the insurance agreement must be equal to the validity period of the loan agreement. If the loan is provided for 10, 20 or more years, the insurer may oblige the borrower to periodically renew the insurance for a separate insurance premium. Extension of the collateral insurance agreement is especially important for mortgage lending, when the loan is provided for a long period of time.

Conclusion

For a credit institution, insurance of collateral is beneficial from all sides: the bank does not pay for concluding an insurance agreement, but according to its terms, it becomes a beneficiary when an insured event occurs. For the borrower, insurance of the collateral is not so profitable, but in this case much depends on the bank, which can force the client to insure the collateral.

• client's age. The policy will be cheaper for people who are 25-35 years old;
• the price of the property - the more expensive it is, the more the insurer needs to pay;
• with personal insurance, they may be asked to undergo a medical examination, based on the results of which the cost of the policy will be determined. The fewer health problems a person has, the fewer bad habits he has, the greater the discount he will be given;
• The larger the loan amount, the larger the insurance amount will be assigned for payment.

Mortgage insurance: required or not? An insurance contract for collateral property is required. The rest - formally no; in fact, the bank indirectly (through deterioration of lending conditions or even refusal to conclude a mortgage agreement) forces clients to agree to this requirement.

Is mortgage insurance required: which of all types?

• creditors, investors from violations of contractual obligations assumed by the borrower
• from an endless increase in interest rates, minimizes the danger of the procedure
• clients from signing a contract with unfavorable conditions
• insurance coverage serves as collateral in case of default
• against losses, shares risks evenly between the lender and the insurer

A month later, having satisfied their requests for the reliability of the insurer, the financiers, having given the go-ahead, begin calculations to determine the insured amount. Each bank uses its own individual lists of insured events and items from the exclusive list are not always included here in the form of the occurrence of a title moment.

Home insurance for a mortgage: cost, is it necessary, documents

Let us explain in more detail what condo title insurance is. This type of insurance is needed when there is a possibility that you will not be able to have ownership of the purchased apartment. But these are rare cases. Typically, if the apartment or house has just been built and has not yet had an owner, title insurance is completely unnecessary.

After completing all the documents, you can safely receive the keys to your apartment, which you are taking out on credit. Thus, it is also beneficial for the client. He is calm, knowing that in any unforeseen situations the insurance company will bear all the costs that the bank needs to reimburse.

Mortgage insurance at Sberbank in 2019: what you can refuse

In 2019, tariffs are offered in the range from 0.12% to 0.25%. This year, the conditions have not changed and it is easy to calculate that with a mortgage in the amount of 3 million rubles, the cost of the policy can range from 360 to 750 thousand rubles for the entire loan term. As you settle with the bank and the amount of the principal debt decreases, the annual cost of insurance will also decrease.

• Borrower’s passport (original and copy provided);
• application on insurance company letterhead;
• a questionnaire with the borrower’s personal data and characteristics of the mortgage loan;
• certificate of ownership of the purchased property;
• report on the assessment of the collateral;
• copy of the technical passport.

Voluntary and mandatory mortgage insurance

If the type of protection is included in the list of mandatory ones in the selected bank, the contract must be drawn up for the full term or renewed annually. Since the condition is included in the list of requirements under the mortgage agreement, the borrower has no right to violate it. Neglect of obligations entails retaliatory measures from the credit institution, usually all of them are specified in the agreement.

Often one of the conditions for receiving funds when drawing up a mortgage agreement is the purchase of an insurance policy. Moreover, not all risks are included in the mandatory list - the client can insure life and health only at his own request. Let's look at what insurance is, why it is needed, and what its different types cover.

Is mortgage insurance required?

First, you need to carefully read the contract to understand whether insurance is a requirement. If it is a prerequisite, then the rate may be increased by a certain percentage if this insurance is not paid. Because if this is stated in the agreement, then these are your contractual terms with the bank, which you agreed to by signing the document. In this case, it is illegal to appeal to the fact that the bank is raising the interest rate. Most likely, in this situation, even in court you will not prove “your truth.” As a result, you will either have to renew your insurance or pay an additional percentage. Such a requirement is partly justified, since it is a guarantee that nothing will happen to the collateral.

The second point includes life and health insurance of the borrower. So, the borrower cannot refuse the first insurance. According to Article 31 “On Mortgage”, the client is obliged to insure “the mortgaged property in full value and at his own expense against all possible risks.” In other words, you do not have the right to refuse this insurance.

Why do you need mortgage collateral insurance?

According to Art. 31 of the Federal Law “On Mortgage (Pledge of Real Estate)”, property insurance of the collateral subject to a mortgage is mandatory. With its help, the risks of complete or partial destruction of property as a result of adverse external influences are covered: fire, flooding, natural disasters, etc. In the case of a mortgage, insurance of the collateral also reduces the risk of non-repayment of the loan due to the loss by the mortgagor of the property that served as material security for the loan.

Pledge is a way to secure a debt obligation. In a pledge, the creditor is also called the pledgee, and the debtor is also called the pledgor. If the debtor fails to fulfill his obligations under the loan agreement, the rights to the pledged property are transferred to the pledgee. He can dispose of this property at his own discretion in order to pay off the debt.

What is mortgage insurance - a complete overview of the concept and tips on where to insure a mortgage on favorable terms 5 simple steps of mortgage insurance

At a minimum, the manager will give you a lecture on the importance of comprehensive insurance; in the worst case scenario, your mortgage rate will be increased. Banks cannot directly refuse to issue a loan due to refusal to insure their ability to work and life. But it is in the client’s interests to give in to employee requests if there is a direct danger of an increase in the commission.

There was a fire in the apartment, which damaged the structural elements of the home. Losses are compensated not by the owner of the apartment, and not by the bank with which the housing is pledged, but by the insurer. True, evidence must be presented that the fire was not the result of deliberate actions of the borrower or other interested parties.

Mortgage insurance: features and requirements

A mortgage insurance contract can be concluded directly with a banking institution or an insurance company. You will have to choose companies accredited by the bank. As a standard, when purchasing insurance for an apartment in order to obtain a mortgage, you are required to insure your home against various insurance events. These include situations:

Such insurance is considered protection against credit risks. It is implemented through insurance of the purchased property, title or life and health of the home buyer. In this case, the lender is always the beneficiary, but only the borrower is the payer.

Everything about life and health insurance for a mortgage: cost, procedure for concluding an agreement and other nuances

• Insurance contract, insurance policy.
• Passport.
• Application on the form of the insurance company.
• Documents confirming what happened. They may be a death certificate of the borrower, a police report, an accident report from the enterprise, etc.
• Certificate about the current amount of debt. Taken from a bank.

1. To begin with, heirs should carefully study the details of the insurance policy.
2. After determining all the nuances and making sure that the death was covered by the insured event, it is necessary to send a notification about the incident to the insurance company. The notice deadline is also specified in the contract, and it should not be violated, otherwise it will be almost impossible to obtain mortgage payments from the insurer.
3. Next, the bank will initiate an investigation into this case.
4. Then you need to collect and provide the bank with the necessary documents.
5. Next, the insurer will come into play, but under no circumstances should you stop making payments on the mortgage. This must be done until the insurance company transfers its funds.