Form, content and registration: how to make an loan in writing

Private writing for loans does not in itself have legal value but serves to protect itself against financial contracts stipulated between private individuals and against checks carried out by the tax authorities on all sums of money received. Usually, private writing is therefore a document that protects loans between private individuals, very often in the case of a non-interest bearing loan between family members and relatives. Let’s try to understand, however, how secure private writing can be for loans and mortgages.

When private writing is safe for loans

When private writing is safe for loans

A private writing is a sort of contract that is signed between two parties (two private) and is allowed only if it is not continuous, but occasional. It is safe for loans because, first of all, authenticated, a financial agreement, also guaranteed by the Inland Revenue, constitutes proof of legal value, and secondly because it dictates the conditions for the return of the amount by the debtor.

Legally, private writing is defined as a “loan agreement” according to ex.art. 1813 of the civil code and to be valid and safe it must report the data of those who carry out the loan (creditor and debtor), the reason for the loan, the methods for returning the amount, any interest on the sum (but they may also not be contemplated), the deadlines, any penalties in case of failure or delayed repayment of the debt.

Lastly, the signatures of the loan contractors with a certain date must not be missing. In these cases it is very useful, to take shelter from the dispute, to proceed with the authenticated signature. An authenticated signature in a private writing is nothing more than the attestation by a notary (but also by another figure who acts as a public official) that there has actually been a signature of a writing in his presence, once ascertained the identity of the person who signed the signature.

As far as mortgages are concerned, the costs of the notary are reduced

As far as mortgages are concerned, the costs of the notary are reduced

The loan agreement can also take the form of private writing, and occurs when it is signed simultaneously by the parties (not in front of a notary). This type of mortgage is opposed to the public deed (which we remember is mandatory in some particular cases such as the activation of a mortgage), and in this case the signature of the parties can also take place separately, because there is authentication before a notary (which is public official). Obviously in an unauthenticated private agreement of a mortgage the expenses due to the notary are reduced.

Online you can find numerous models of private writing contracts. What should never be forgotten, however, in this situation, is the inclusion of the wording “Ex art. 1813 et seq. of the civil code “, precisely to highlight that the type of contract dealt with is the mortgage, which in this case will be legal and safe.

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