If you are considering lending money to someone, experts recommend using legal tools to minimize the risk of not being paid.
As a result of the pandemic and the crisis that affects the country to this day, millions of Peruvians have found it necessary to apply for loans in order to survive.
According to the latest EY study on the outlook for the financial sector during COVID-19, 25% of Peruvians applied for bank loans due to the pandemic, with only 42% being approved.
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Given this situation and the economic emergencies, Peruvians began to opt for loans offered by individuals (people outside the financial system), the same ones that often end up being much riskier for those who settle as money lenders.
If you are evaluating the possibility of lending your money to a person in order to obtain a return on your capital, take into account the following recommendations to avoid inconveniences:
·Legally formalize the loan
It is essential to sign a mutual money contract. This not only allows traceability of the act between lender and borrower, but also allows other aspects related to the nature of a loan to be regulated. For example: (i) Compensatory and default interest, for the placement of capital over time; (ii) Payment schedule, in case the repayment of the loan is agreed in installments (iii) Events of default; (iv) The mechanism established for the resolution of conflicts that may arise between the parties; (v) Guarantees, among others.
“The loans are carried out with strangers and even with relatives. However, when it comes to the latter case, many lenders get carried away by emotions by having an affinity or a close relationship with the people to whom they lend money, when in reality the formality should not offend anyone, even less if they are well-known people”, says Herman Patow, Managing Partner and Founder of ASESORI.
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· What legal tools are the safest and most common to protect yourself?
Movable Guarantee: This modality guarantees the payment of the loan with the execution of certain personal property of the debtor in case he does not comply with the payment of the debt, such as the execution of laptops, printers, televisions, machinery and, in general, assets owned by the debtor. debtor.
It is important to register the movable guarantee in the movable registry of public registry contracts, the registration is not constitutive of the guarantee, but if it is not done, the creditor will not be able to oppose his right against third parties.
Joint surety: Legal figure that implies that a third party assumes the obligation to pay the loan in case the debtor does not do so. Basically, that another person, other than the debtor, guarantees that he will pay the amount owed in case the latter does not.
Here it is important to consider that the contract indicates that the bond is expressly joint and several and that the benefit of excussion is waived, something that will allow the lender to charge both the debtor and the guarantor indistinctly.
I will pay: Title value that contains the promise of payment in favor of a third party. It is used in loans due to its nature of executive title, that is, it can be executed faster than in court.
In addition, if certain requirements and characteristics are met, a blank promissory note may also be signed that must be completed by the creditor in the event that the events agreed upon for such purpose are generated, something that eases the creditor’s administrative burden.
Mortgage: The mortgage implies guaranteeing the payment of the loan with the execution of a real estate, something that is more common in operations that involve a company and a financial entity. Notwithstanding this and if the parties agree, it can occur between natural persons when the amount of money is significant.
It is important to consider that the mortgage does not limit the transfer of the property, but it guarantees that a third party in good faith does not acquire the mortgaged property and that, in addition, if this does happen, the creditor can give up all the terms involved in the loan.
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What else should be taken into account?
“It is important to keep in mind that any loan implies a certain risk. Although it is said that “paper can hold everything”, it may happen that you find yourself with an unscrupulous debtor, who disappears or has no assets to execute in your favor. If this is the case, it is likely that the loan will be difficult to repay or will become unprofitable due to the investment that you must make (of time and money) in collecting it. For this reason, whoever is evaluating lending money must seek legal advice, in addition to thoroughly investigating who is the person with whom they celebrate the loan contract”, indicates Herman Patow, Managing Partner and Founder of ASESORI.
Finally, if you have already made a loan -without taking into account the aforementioned legal recommendations- and you are forced to resort to the judicial process to ask the debtor to fulfill his obligation, you must initiate a civil process. , the same that could take between 5 to 6 years on average.
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