This folk lending method is the traditional folk lending method. The lender transfers the cash to the borrower, and the borrower gives the borrower an iou. For this kind of lending method, the borrower and the borrower form a one-way lending relationship, that is, the lender gives the borrower cash and the borrower gives the borrower an iou. Once the legal acts of both parties are completed and approved by both parties, a one-way relationship of legal rights and obligations will be formed between loans, that is, the lender has the right but not the obligation to recover the amount of IOUs, and the borrower has the obligation to bear and return the amount (principal and interest) of IOUs without rights. This kind of loan is stipulated in the contract law of our country as a loan contract between natural persons. This kind of contract is unilateral and practical. The legal relationship of this kind of private lending is relatively simple and easy to handle.
(two) all cash is not transferred to private lending.
This kind of non-governmental lending means that the borrower and the lender agree that the lender will lend money by itself or borrow money from other parties to conduct one or more affairs in the name of the borrower, and the borrower will issue an iou to the lender to recognize the lender's contribution or borrow money from other parties. This kind of loan actually exists and is prone to disputes. With disputes, it is more complicated and difficult to hear the referee after filing a lawsuit.
This kind of lending method is fundamentally different from the traditional lending method, mainly in the following aspects:
1, no cash transfer.
That is to say, the lender did not give the borrower the cash, but the borrower still gave the borrower an IOU, and the borrower gave the lender an IOU, but did not receive the cash from the lender, and the cash was still in the lender's hands.
2. Formed a two-way equal loan relationship.
In the all-cash transfer lending method, all cash is transferred from the lender to the borrower, forming a one-way lending relationship, that is, the borrower borrows money from the lender. However, in the lending method of not transferring all cash, because the cash is not transferred to the borrower, a two-way equal lending relationship is formed, that is, on the one hand, the borrower borrows money from the lender, on the other hand, the lender borrows money from the borrower, that is to say, the borrower actually provides the lender with the same amount of cash as the IOU. Judging from the movement of lending funds, for traditional private lending, cash is only transferred once, that is, only from the lender to the borrower, and the lender forms a lending relationship. Modern folk lending does not transfer cash, which means that the borrower gives the borrower cash, and after the borrower gives the borrower an iou, the cash is transferred to the lender twice and then returned to the borrower. Although there is no actual transfer movement, cash has gone through two fictional movements once and for all, that is, from lender to borrower, and then from borrower or returned to lender. The real movement form is that the borrower only gave the lender an IOU, and the money has not been received by the lender, which is consistent with the results of the two cash transfer movements. For example, Party A and Party B agree that Party A will pay for something or borrow100,000 yuan from other parties, and Party B will issue a loan of100,000 yuan to Party A for approval. At this time, no matter whether the money is lent by Party A or borrowed from other parties, the real loan relationship between Party A and Party B is that Party B owes Party A100000 yuan, but doesn't get a penny from Party A, and Party A enjoys the100000 yuan borne by Party B according to the IOUs. And Party A still holds100000 yuan in cash, which means that Party B provided Party A with100000 yuan in cash in the form of IOUs, and Party A actually owed Party B100000 yuan, thus forming a two-way reciprocal loan relationship, that is, Party A is the lender, Party B is the borrower, and Party B owes Party A100000 yuan, and at the same time, Party A also owes Party A. If this two-way equal lending relationship is not recognized, it will be difficult to find a balance between borrowers and borrowers in the lending relationship of issuing loans and not transferring cash.
3. Creditors and debits are creditors and debtors.
Because it is a two-way equal lending relationship, both borrowers and borrowers are creditors and debtors. Folk lending in the traditional sense is a one-way lending relationship. The borrower is only a debtor, but not a creditor, and the lender is only a creditor and not a debtor.
4. Lenders and borrowers enjoy creditor's rights and bear debts with each other.
In this two-way equal lending relationship, both borrowers and borrowers enjoy creditor's rights and have mutual debt obligations, which is a two-way equal creditor's rights and debt relationship. The debt of one party is the creditor's right of the other party, and the debt of one party is the debt of the other party. In the traditional private lending relationship, it is only a one-way creditor-debtor relationship.
5. This modern private lending contract is a two-way contract and an agreed contract.
China's contract law stipulates that private lending contracts are unilateral contracts and practical contracts. This is not in line with the modern private lending contract in which cash is not transferred. In fact, modern non-governmental lending contracts without cash transfer, that is, non-governmental lending contracts with IOUs as vouchers and without cash transfer, have broken through the traditional category of non-governmental lending contracts and have the characteristics of two-way contracts and promise contracts.
They are two-way loan contracts because they are two-way loan relationships with equal amounts. Lenders and borrowers share creditor's rights and bear debts, and are creditors and debtors. If we deny its duality, then we can't truly reflect the actual two-way equal creditor-debtor relationship.
It is said that it is a promise contract, because as long as both parties agree that the lender will issue IOUs to the borrower, the two parties have already formed and existed, and they should earnestly fulfill their respective obligations and enjoy their respective rights. Because this lending relationship is the expression of the true meaning of both parties, and does not violate the mandatory provisions of law and social morality, the actual creditor-debtor relationship has indeed formed between the two parties, which should be supported and effectively protected by law. Only in this way can we give full play to the role of modern private lending in promoting the market economy and provide more convenience for the people. If this modern private lending relationship is limited to a practical contract, it will deny its rationality and effectiveness and will not give legal support and protection. Then, it is not conducive to the effective development of this practical and increasing private lending activities, and it will also make the resulting disputes more difficult to deal with.