СТАНОВЛЕННЯ ТА РОЗВИТОК ПРАВОВОГО РЕГУЛЮВАННЯ БАНКІВСЬКОЇ ДІЯЛЬНОСТІ В АВСТРІЙСЬКІЙ МОНАРХІЇ (ДРУГА ПОЛОВИНА ХVІІІ – СЕРЕДИНА ХІХ СТОЛІТЬ)
Authors: Borys Iryna ,   Львівський національний університет імені Івана Франка
Published: July 2024

The article analyzes the formation and development of legal regulation of banking activity in the Austrian monarchy (second half of the 18th – mid-19th centuries). It is noted that Austrian banking law in the second half of the 18th century was based on the concession system (in the current sense of this word, according to Ukrainian legislation, «public-private partnership»). The concession system provided for the allocation of certain privileges and monopolies to financial institutions. Under this system, the government granted a limited license to carry out banking activities in exchange for financial support from the state. This practice was not something special, because it is known that in Europe at that time even individual monarchs borrowed money from private individuals, often foreigners. The concession was granted for a limited period, usually 10 years, and could be extended after its expiration. Obtaining a concession from the government gave the bank the right to keep customers' money, issue loans and carry out other banking operations. In exchange for the concession, the bank undertook to provide loans to the state, the size of which was determined by the government, as well as to keep financial reserves in accordance with the established rules. The concession system formally ensured state control over banking activities and contributed to attracting financial resources to the state budget. However, the concession system also had its drawbacks, in particular, limiting competition and inefficient use of banks' resources. Therefore, in the following years, a number of reforms aimed at improving the efficiency of the banking system were carried out in Austria. It is established that the formation of the legal foundations of banking in Austria at the beginning of the 19th century took place in the context of the codification of the country's disparate legislation in general. In 1811, one of the most important monuments of modern European law, which is still valid today, was created – the Austrian Civil Code. Provisions on interest on capital are included in Chapter 21 of the Code entitled «On Loan Agreements» (§§ 983–1001). It is worth paying attention to the fact that the Austrian Civil Code of 1811 does not have a pandect structure, and therefore it lacks the general part of the obligation law, which includes the regulation of interest. A loan agreement involving interest (Zinsenvertrag) was governed by Article 984 of the Code. Regulation of «interest» («commission») was placed by the legislator in §§ 993–1000. Article 991 provided that in the case of a «debt card» loan, «the debtor is only obliged either to return everything... or to compensate the creditor for the damage he can prove.» Therefore, the possibility of charging interest on such loans was completely excluded; it was a provision of juris cogentis, the violation of which led to non-fulfillment of the obligation. Article 993 stated that if interest was stipulated in the loan agreement (regardless of whether the object of the loan was money or consumables – «insignificant objects», verbrauchbare Sachen), «such an agreement is valid only for that time». The sanction for exceeding the provision on maximum interest was recognition of the invalidity of the legal transaction. This provision was expanded by Article 996, according to which provisions imposing «other ancillary obligations» on the debtor or reserving «other ancillary benefits» for the benefit of the creditor or third parties are also void if their value exceeds the maximum percentage. Keywords: legal regulation, banking activity, banking system, Galicia, Austrian monarchy.