Dispose of finance in a bank deposit

Alena Pauličková

 

Abstract:

The paper deals with dispose of finance in a bank deposit within the legal regulations in force in the Slovak Republic. It is concerned a special features of a contract from which some specific determinations result for its owner within a relationship between a bank and the bank owner. Interests from the bank deposit are always higher because fixing the term enables the bank also time use of obtained finance mainly for granting credits. It is possible to agree the time deposit in the contract.

 

Key words: finance, bank deposit, contractual relationship, interest, time deposit, date of deposit

 

 

From a special nature of a bank deposit contract some time restrictions result from it for its owner as he left finance for its use in bank on a base of conditions agreed in the contract.

In terms of provision of S. 717 par. 1 of the Act No 513/1991 Coll. of Laws on Commercial Code (“Commercial Code”), if the owner disposes of finance before a term agreed in the contract, or if there is no term agreed in the contract, before expiry of a notice period, claim on interests extinct or it decreases in a way determined in the contract. If there is no operation of the notice period the notice is in operation after three months from a day when the owner of the account delivered bank the written notice. It is also possible to denunciate a part of the deposit. The effects of extinction or reduction of claim on interests are related only to a sum by which the notice period was not kept.

In a case that the bank deposit contract excludes a possibility to dispose of finance in a bank deposit before a due date a bank will not pay off finance sooner.

Issued from a fact that it is concerned a contractual relationship between a bank and the owner of the account it is definite that the owner of the account undertook that he will not dispose with finance in a bank account during a whole term of a contract duration. However, if establishing bank deposit contract does not say that the owner is not entitled to dispose of finance paid in the account, it means that the owner does not looses a possibility to dispose finance during a validity of the bank deposit account.  In such a way it comes to duty-breaking of the owner of the account from the contractual relationship. For such a case the parties to contract determine a sanction, or they agree a way how to determine the sanction. Following kinds of the sanctions are applied:

·        Expiry of the claim to an agreed interest,

·        Reduction of an income by a contractually agreed way,

·        Contractual fine.

 

The first two sanctions are characterised by a fact that the agreement about their determination comes by origin of the contractual relationship and the contractual fine is most often agreed during the bank deposit contractual relationship.

            By expiration of the claim of the deposit account owner on the agreed interest also the claim on aliquot interest revenue expires, so the revenue for a period of an origin of the contractual relationship until a moment of its infraction. The second applied principle of the sanction is a reduction of the interest by a contractually agreed way, which in a common practice applies a principle of “passing time”. Most often it is a principle of keeping or non-keeping the contractually agreed time. The contractual fine is a special modified consequence of breach of duties; the claim to make amends does not origin to the bank.

            It is possible to agree a time bank deposit in the contract for such periods:

·        Definite time,

·        Indefinite time with the agreed length of the notice period,

·        Indefinite time without any contractually agreed notice period (on a base of the legal notice period).

From the facts mentioned above it is possible to state that the bank deposit contract agreed by the parties to contract for the indefinite time period discharges after expiry of a period. In a case that the parties to contract did not use non mandatory legal regulation and they did not agreed contractually for this case a length of the notice period then the 3-months notice period is legally in force.

            There is a certain contradiction in par.1. A first sentence binds dissolution or reduction of the claim to interests as dispose of finance in the account before a period determined in the bank deposit contract with expiry of the notice period. On the other hand the second sentence says only about non-keeping the notice period. We affirm that it is necessary to relate to the case a limitation of expiry effects or reduction of a claim to the interests according to the second sentence when it was partially disposed of finance put in on a base of the awarded contract for a definite time period where a fix term of the deposit was agreed.

 

The interest and discharge of the contractual relationship

 

The aim of the contractual relationship from the bank deposit contract is a duty of the bank to pay the agreed interest to the owner of the account for his finance put there.  The bank can not exclude the duty to pay interests by concluding the contract even with an agreement of the second party to contract, because this duty is a significant part of the bank deposit contract ex lege, and according to a provision of S. 263 par. 2 of the Commercial Code it is prohibited for the parties to contract to divert the basic provisions for certain type-bound commercial contracts. The bank is obliged to pay he interest in a sum determined in the contract, or if it is not agreed then in a sum determined by the law or on the basis of the law; otherwise in a common sum taking to account a length of time deposit.

            The interests start to count from a day of put in finance to bank deposit account and they finish by a day which anticipates the day of withdraw or transfer of finance. According to S. 497 it is not possible to conclude the bank deposit contract as the interest-free one.

            Some authors are consistent in their opinions of the sum of interests from the bank deposit account – they think that they are higher than the common account contract interests. However, the bank deposit account interests are always higher because the time deposit enables bank also time-period use of finance gained mainly for providing credits.[1] On a base of practical experience we can not totally agree with the author most of all in a statement “they are always higher”.

            It is truth that the interests are mainly higher, but we do not agree that much more higher.  In a current bank practice there is not a big different of interest rates.[2] It is not rare in some cases that because of a movement of finance in financial markets the deposit accounts for longer time deposit have the interest rates in some cases lower as it is in a case of deposit accounts for shorter time deposit.

            The sum of the interest is different in a practice; it depends on a length of time deposit of finance. Nowadays there is no legal regulation which would determine a sum of the interest, it works on a base of contractual freedom and its high depends can be influenced by different matters of fact (mainly by a money-market). Only in a case that the parties to contract did not either agreed a concrete sum of the interest in the contract or also a way of its determination, the interest established by law or on a base of law (see the Central Bank provision) is applicable, on the other hand the interest in a common high is applicable. To take into account a fact that there has not been determined a high of the interest by any legal regulation or by the Central Bank, the principle of a common sum would be applicable.

            According to a provision of par. 2 of S. 718 of the Commercial Code the interests are payable after expiry of a period during which finance is bound in a deposit or after expiry of effectiveness of abrogation according to a provision of S. 717 of par. 1 of the Commercial Code. If the bank deposit account was not agreed for the definite time period or it was agreed for a time period longer than 1 year and the parties to contract did not agree in other way, the interests are payable no later than at the end of each calendar year.

            However, the provision mentioned above is only of a non mandatory character and it is fully on the parties to contract how they agree on a time period and a way of the interest paying off. Maturity of the interests is always by finishing the bank deposit contract, whether it finishes by expiration of the time period or by expiration of the notice period. In this place it is necessary to point out the provision of par. 2 of S. 718 of the Commercial Code. It is the truth that in a practice most often is used the interest pay off by the account maturity by its capitalisation, but it is not fully applicable. The parties to contract can also agree on other contractual way of pay off the interest e.g. by establishing the bank deposit account (interests in advance). Such types of the deposit bank account contractual relationships were concluded by the Slovak banks before implementation of the common EUR currency. On a base of the contract the interest can be paid off also in another currency as the bank deposit account was established.           

            If finance is put in for a time period longer than one year (and the parties to contract did not agree other way) the bank is obliged to pay off the interest after the calendar year by request of the owner.

 

References:

1.      Zákon č. 513/1991 Zb. Obchodný zákonník

2.      Ovečková, O. a kol.: Obchodný zákonník, komentár, druhé prepracované vydanie, IURA EDITION 2008

3.      Suchoža, J. a kol.:  Obchodný zákonník a súvisiace predpisy, komentár, Eurounion spol. s r.o. Bratislava 2007

 

Contact:

Doc. JUDr. Alena Pauličková, PhD.

School in Sladkovicovo

Janko Jesensky Faculty of Law

Richterova Str.

925 21 Sladkovicovo

Tel./fax: +421 33 5446536

e-mail: alena.paulickova@vssladovicovo.sk

 

 

 



[1] Ovečková, O. a kol.: Obchodný zákonník, komentár, druhé prepracované vydanie, IURA EDITION 2008,       s. 673

 

[2] Suchoža, J. a kol.:  Obchodný zákonník a súvisiace predpisy, komentár, Eurounion spol. s r.o. Bratislava 2007, s. 920