Such as the essential requirements for the validity of loan contracts between private individuals and cases of registration termination for default and assignment
In this section we have included most of the questions asked by those who want to lend money privately, a subject who, for obvious reasons, wants to be sure of getting the sum back. But the questions to which we will answer are equally useful also to those who receive the sum because in the face of their duty to return it there are also their rights which are in fact lacking when the relationship between private people exists with a usurious and / or underworld financier.
So, what are the essential validity requirements of money loan contracts between individuals? Cases of registration for termination for breach and assignment etc. are applicable. ? The general question from which all the others derive is: can, legally speaking, a common citizen lend money to another private individual? The answer is positive and we have explained it in detail among the privately implemented loans to which we refer to find out more.
A contract and / or private writing?
Continuing, does validity imply any written form, i.e. a contract and / or private writing? Of course, although there is no difference between the latter two forms, the important thing is that, as required by our civil code, the deed bears the wording of the ” loan contract pursuant to art. 1813 of the Italian Civil Code “. This term is the most important of the validity requirements, failing which the act is affected by nullity, with all the consequences that derive from it.
Again, who should write contracts ? A notary, lawyer, public officer etc. Absolutely not! Contracts can be drawn up by the same parties who also have a minimum of experience. However, if the financing is large, it is advisable to have the document read to your trusted lawyer. Once perfected is registration mandatory? No! The registration of loan contracts does not serve to prove the loan itself (for this the paper document is enough), but to give a certain date to the contract from which the financier has greater protection against the debtor who wants, for example. implement acts to simulate and / or carry out direct sales to diminish its assets, a true guarantee for those who have financed. All this on a civil level. Different is the mandatory and non-mandatory registration (as the case may be) for tax purposes. For the latter we recommend an article on tax treatment and taxation in the loan agreement between private individuals
Which clauses can be inserted?
Any clause that is logically connected with loan contracts between private individuals can be inserted. Among these the clause of non-fulfillment of the contract can be inserted which provides for the resolution of the same upon the occurrence of a certain event eg. failure to pay a certain number of consecutive installments or during the entire repayment. Even the clauses relating to guarantees, i.e. the debtor can guarantee payment with his own movable or immovable property also by means of the mortgage registration on the asset itself. The guarantee of a third party may also be provided, which must ratify by acceptance, which in turn can guarantee the financing in whole or in part with its assets.
Still among the clauses can be included that of the assignment of the contract of both parties, i.e. both those who finance and the debtor can assign the credit / debt to others and, in the case of assignment of the debt, it is up to the lender whether or not to release the old one debtor. Even the forecast of the lack of interest is lawful while if the loan is interest-bearing, that is to say, it is advisable to make sure that these do not exceed the anti-usury rates envisaged for personal loans which can be viewed in our online usury calculation table.
Finally, what legal validity are the loan contracts between private individuals in the hypothesis of non-fulfillment carried out by both parties, even if the recurring case concerns the non-payment of the installments by the debtor. Like any type of agreement between the parties, the one carried out in financing between ordinary people also produces legal effects. In simple words, if the contract has all the “papers in order” it can be enforced by a Justice of Peace and / or Court.
That is, those who have defaulted are likely to be sued before a judge to answer for the breach they have generated. We repeat that in almost all cases, however, the breach concerns the interruption of the installment payment or of the strong delay if the return of the sum has been granted in a single solution. Regardless of which side the breach comes from, we remind you that the first step in bringing legal proceedings is to put a formal notice. For those interested we have prepared a downloadable contract on private loan or loan agreement between private individuals