The concept and principles of the fulfillment of contractual obligations. Contracts are concluded in order to be enforced. Only the execution of the contract is able to satisfy those economic needs that prompted the parties to enter into contractual relations.

Execution of the contract(contractual obligation) is the commission by the debtor (or another person on behalf of the debtor) in favor of the creditor of those actions that constitute the subject of the obligation (transfer of a thing into ownership or use, performance of work, provision of services, etc.). It must be borne in mind that in mutual (bilaterally binding) agreements, each of the parties acts in relation to its counterparty both as a debtor and as a creditor. Therefore, the execution of such contracts consists in the performance of appropriate actions by both parties (counter grant).

The main principles of the law of obligations include:

• - the principle of inadmissibility of unilateral refusal to fulfill obligations;
• - the principle of due diligence (i.e. in accordance with the terms of the obligation and the requirements of the law);
• - the principle of actual performance (the obligation must be performed in kind, i.e. the debtor is obliged to perform exactly the action that constitutes the subject of the obligation, and this action should not be replaced by monetary compensation)

Methods for ensuring the fulfillment of contractual obligations. Securing obligations is a traditional institution of civil law. Such methods of securing the fulfillment of obligations, such as a deposit, forfeit, surety and pledge, were already known to Roman law. The need to use them was explained by the fact that the creditor has a significant interest in being confident in the performance of obligations, and in securing compensation for possible losses, and in prompting the debtor to timely fulfill the obligations under the pain of unfavorable consequences for the debtor in in case of their non-fulfillment or improper fulfillment.

In accordance with Russian law, an obligation can be secured in one of the following ways: penalty, surety, deposit, pledge, bank guarantee and retention of the debtor's property.

The parties can also use other methods of securing obligations that do not contradict the peremptory norms of civil law, for example, depositing a certain amount of money in a third party's deposit.

1. Penalty(fine, penalties) - a sum of money, determined by law or by an agreement, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in fulfillment.

The penalty performs two functions: on the one hand, it is a way to ensure the fulfillment of obligations, on the other, it is a form of civil liability.

It is a convenient means of simplified compensation for the creditor's losses caused by non-performance or improper performance by the debtor of his obligations. The procedure for calculating the amount of money constituting a penalty may be different: in the form of interest from the amount of the contract or its unfulfilled part; in multiples of the amount of the unfulfilled or improperly fulfilled obligation; as a lump sum.

2. Collateral.The essence of the pledge lies in the fact that the creditor under the obligation secured by the pledge (the pledgee) has the right, if the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property, mainly to other creditors of the person who owns this property (the pledger), with the exceptions established by law(clause 1 of article 334 of the Civil Code).

A pledge is one of the most preferred ways to secure obligations.

Firstly, the property pledge agreement ensures the availability and safety of this property at the moment when the debtor will have to settle accounts with the creditor.

Secondly, the pledge of the debtor's property provides the pledgee creditor with the opportunity to satisfy his claims at the expense of the pledged item, mainly to other creditors.

Thirdly, the real danger of losing property in kind (and the subject of the pledge is, as a rule, especially valuable, the so-called quickly liquid property) is a good incentive for the debtor to fulfill his obligations properly.

As a rule, the debtor under the obligation secured by the pledge acts as the pledger of the property, but a third party can also be the pledger. In any case, the thing to be pledged must belong to him by right of ownership.

In certain cases, participation in these relations is allowed not of the owner of the thing, but of the subjects of the right of economic management (state and municipal unitary enterprises). But since the transfer of property as a pledge means the disposal of this property, then unitary enterprises can become a pledger only with the consent of the owner. Failure to comply with this requirement entails the recognition of the pledge agreement as a void transaction.

As for the pledgee, then in this capacity can act as a creditor for any civil obligation.

The pledge is secured, first of all, the requirements based on the relationship on the loan, although it can be used to secure any other obligations that do not contradict the law.

Any property can serve as the subject of a pledge (Article 336 of the Civil Code). At the same time, the composition of property (in the civil law sense) includes not only things, i.e. property in kind, but also property rights (Article 128 of the Civil Code). However, not every right can be alienated or transferred to another person in another form. In particular, it is not allowed to transfer to another person the rights that are inextricably linked with the personality of the creditor, for example, claims for alimony and compensation for harm to life or health (clause 1 of article 336 of the Civil Code). In cases where other property rights are the subject of pledge, only the person who owns the pledged right can be their pledger.

As a general rule, a necessary feature of the subject of pledge should be recognized as its “marketability”: only that which the law does not prohibit selling is accepted as a pledge. It is not allowed to use as a subject of pledge, firstly, things that have been withdrawn from circulation, secondly, claims that are inextricably linked with the personality of creditors, and thirdly, certain types of property, the pledge of which is directly prohibited by law.

The subject of a pledge can be money and securities, but such a pledge should imply the transfer of money as a deposit to the pledgee, a third party or a notary.

Property pledge relations must be formalized by an agreement. To the rank the essential conditions of the pledge agreement include: the subject of the pledge and its assessment, the nature, amount and time of performance of the main obligation secured by the pledge, an indication of who holds the pledged property(clause 1 of article 339 of the Civil Code).

The condition of the agreement on the subject of pledge must contain information that allows identifying the pledged property. Judicial practice proceeds from the fact that in the absence of such information in the pledge agreement, the essential condition of the agreement on its subject matter is inconsistent, and the pledge agreement itself is not concluded.

General requirement for form of pledge agreement is that it must be concluded in writing. However, the mortgage agreement is always subject to notarization. In the same qualified form (notarization), agreements on the pledge of movable property or rights to property must be concluded, which serve as security for obligations under the agreement that require notarization. However, the requirements for the execution of a mortgage agreement are also subject to state registration, like any other transaction with real estate (Article 131 of the Civil Code). Failure to comply with the notarial form of the pledge agreement, or the rules on state registration of the pledge agreement, shall entail its invalidity.

3. Suretything is the surety undertakes to the creditor of another person to be responsible for the performance by the latter of his obligations in whole or in part(Article 361 of the Civil Code). Thus, the surety increases the creditor's likelihood of fulfilling the obligation, since in the event of its violation by the debtor, the creditor can present his claims to the surety.

A surety is a contract for which a mandatory written form is established (Article 362 of the Civil Code). The content of the obligation arising from the surety agreement is that the surety undertakes, if the debtor violates the main obligation secured by the surety, to be liable to the creditor along with the debtor for the main obligation. In this case, the amount of the guarantor's monetary obligation to the creditor is determined, as a general rule, by the amount of the debtor's liability for the corresponding violation of the main obligation. A different amount of the guarantor's monetary obligation may be determined by the surety agreement. In this case, they say that the surety has assumed the obligation to bear not full, but partial responsibility for the debtor.

If there is no corresponding condition in the contract, the surety will be liable to the creditor in the same amount as the debtor, i.e. in addition to the amount of the debt, he will have to pay the interest due to the creditor, reimburse the legal costs of collecting the debt and other losses caused by the default or improper performance by the debtor of his obligations (clause 2 of article 363 of the Civil Code).

As for the procedure for the fulfillment of an obligation arising from a surety agreement, the current Civil Code proceeds from the fact that this obligation, in relation to the debtor's liability to the creditor for non-performance or improper performance of the main obligation, is joint and several (Clause 1 of Article 363 of the Civil Code).

The joint and several nature of the guarantor's obligation means that the creditor has the right to present his claims both to the debtor under the main obligation and to the guarantor; both jointly and separately; both in full and in part of the debt (clause 1 of article 323 of the Civil Code). The final form of the claim, the solution of such procedural issues as the composition of the defendants and the subject of the claim against each of them, depends only on the creditor.

The surety agreement may determine the period for which it is given.

As a legal relationship, a surety agreement is an obligation that is generally unilateral: on the creditor's side - the right to claim against the surety to be liable for the debtor who has not fulfilled the obligation, on the guarantor's side - to bear such an obligation.

The guarantor who has fulfilled his obligation, i.e. who incurred liability for the debtor who violated the obligation shall be vested with the right to reclaim the debtor. In this case, the rights of the creditor under the main obligation, as well as the rights of the creditor as the pledgee (including in relation to a third party acting as the pledger) are transferred to the surety. The scope of the creditor's rights, which are transferred to the surety, is determined by the size of the claims satisfied by the latter.

In addition to the rights of claims arising from the main obligation and the pledge that secures it, the surety who has fulfilled his obligation also receives independent rights of claim, in the form of payment of interest on the amount paid to the creditor, as well as compensation for losses incurred in connection with the liability for the debtor due to violation the last of the main obligation (clause 1 of article 365 of the Civil Code).

4. Bank guarantee is that a bank, another credit institution or an insurance organization (guarantor) give, at the request of another person (principal), a written obligation to pay the principal's creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor a sum of money upon submission by the beneficiary of a written demand for its payment(Article 368 of the Civil Code).

Here, only banks, other credit institutions or insurance organizations can act as a guarantor. The person who turns to the guarantor with a request to issue a bank guarantee (the principal) is the debtor in the main obligation, the fulfillment of which is secured by the bank guarantee. Finally, the person empowered to make claims against the guarantor (beneficiary) is the creditor in the main obligation.

A bank guarantee is a written unilateral obligation under which the guarantor undertakes to pay a certain amount of money to the beneficiary-creditor under the obligation secured by the bank guarantee.

The beneficiary's right in relation to the guarantor can be exercised by submitting a written demand, which must comply with the conditions stipulated by the bank guarantee itself. Such can be recognized as a claim or any other submission of a claim in writing, which would comply with the terms of the issued warranty. The claim (demand) must indicate what constitutes the violation by the principal of the main obligation, in support of which the bank guarantee was issued. The claim of the beneficiary must be presented to the guarantor before the expiration of the period specified in the guarantee (Art. 374 of the Civil Code).

Further, the relationship between the guarantor and the principal is characterized by the fact that a bank guarantee must be issued on a reimbursable basis, i.e. for the issuance of a bank guarantee, the principal pays the guarantor remuneration (clause 2 of article 369 of the Civil Code). The amount of such remuneration and the procedure for its payment are established by the parties.

As a general rule, a bank guarantee is irrevocable, and the beneficiary's rights under a bank guarantee are non-transferable, since the claim belonging to the beneficiary against the guarantor cannot be transferred to another person (Articles 371, 372). Both of these rules are dispositive. Therefore, a different rule may be provided for by the guarantee.

One of the main distinguishing features of a bank guarantee, distinguishing it from the circle of all other methods of securing the fulfillment of obligations, is the independence of the bank guarantee from the main obligation. The Civil Code specifically emphasizes that the obligation of the guarantor to the beneficiary provided for by the bank guarantee does not depend in the relationship between them on the basic obligation for the performance of which it was issued, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code).

The grounds for termination of a bank guarantee may be: payment to the beneficiary of the amount for which the guarantee was issued; the end of the period specified in the guarantee for which it was issued; the beneficiary's waiver of his rights under the guarantee and its return to the guarantor; the waiver of the beneficiary from his rights under the guarantee by a written application for the release of the guarantor from his obligations; compensation (Art. 409); offset of a counter homogeneous claim (Art. 410); the coincidence of the debtor and the creditor in one person (Article 413); novation of the obligation (Art. 414 of the Civil Code) and others.

The only exception is such a ground for termination of the obligation as the impossibility of performance (Art. 416), which is not applicable to any monetary obligation, including a bank guarantee.

The guarantor who has paid the appropriate amount to the beneficiary is entitled to recourse to the principal.

5. Retention.Retention creature consists in the fact that the creditor, who has the thing to be transferred to the debtor or to the person indicated by him, is granted the right, in the event of the debtor's failure to fulfill the obligation to pay for this thing or reimburse the creditor for the costs associated with this thing and other losses, to retain it until those until the corresponding obligation is fulfilled by the debtor(Article 359 of the Civil Code).

The peculiarity of such security for the fulfillment of an obligation as withholding is that the obligee is entitled to withhold the debtor's thing until the latter fulfills his obligation directly, i.e. in order to exercise this right, the obligee does not require that the possibility of retaining the debtor's thing was provided for by the contract. Any creditor under any contractual obligation has the right of retention (for example, a keeper awaiting payment for services related to the storage of a thing, a carrier who does not deliver the goods to the recipient until full payment for the performed transportation, etc.), except only in cases where the contract otherwise provided (clause 3 of article 359 of the Civil Code).

If, despite the measures taken by the creditor to retain the thing, the debtor nevertheless does not fulfill his obligation, then the creditor has the right to foreclose on the thing he is holding (Article 360 ​​of the Civil Code) in the manner prescribed for the pledge relationship.

Based on the analysis of current legislation movable property, excluding money, may be the subject of retention.

By its legal nature, the right of lien is significantly different from the right of pledge. First, the basis for the emergence of the right of pledge is, as a rule, an agreement and, as an exception, a direct indication in the law. The basis for the emergence of the right of retention is recognized as the presence of the debtor's property with the creditor. Secondly, retention does not have such an inalienable sign of a pledge as the right of succession, on the contrary, the disposal of property from the actual possession of the creditor terminates the right of retention, therefore the subject of the right of retention, unlike the pledgee with the mortgage, is not entitled to claim the subject of retention from third parties. Thirdly, the essential terms of the pledge agreement are the subject of the pledge and its valuation, while the retention of property is a unilateral transaction.

6. Deposit.A deposit is an amount issued by one of the contracting parties against payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution(Clause 1 of Article 380 of the Civil Code).

The specific features of the deposit are as follows.

Firstly, a deposit can only secure obligations arising from contracts, therefore, it cannot be used to secure tort obligations, obligations arising from unjust enrichment, and some others.

Secondly, the deposit, being a way of securing a contractual obligation, simultaneously serves as proof of the conclusion of a contract. This means that if the parties do not dispute the fact of issuing (receiving) the deposit, and also if it is disputed, but this fact is confirmed by evidence, the contract is considered concluded.

Thirdly, only the fulfillment of monetary obligations can be secured by a deposit.

An agreement on a deposit, regardless of its amount, must be concluded in writing. The deposit can act as a way of securing contractual obligations, the parties to which are both citizens and legal entities and individual entrepreneurs.

The legal regulation of the deposit is supplemented by provisions that determine the fate of the amount of money paid as a deposit in two specific cases, namely: when there are doubts as to whether the amount paid is a deposit (in particular, due to non-compliance with the rule on a simple written form of an agreement on the deposit), in this case, the deposited amount of money is recognized in advance, unless proven otherwise (clause 3 of article 380); when an obligation secured by a deposit is terminated on the grounds established by law, prior to the commencement of its execution, in this case, the amount paid must be returned to the party that made the deposit (clause 1 of article 381 of the Civil Code).

The deposit is primarily intended to prevent non-performance of the contract. This purpose is served by the rules on the consequences of failure to fulfill an obligation secured by a deposit. If the party that provided the deposit is responsible for the failure to fulfill the obligation, the amount of money paid as a deposit remains with the other party. If the party that received the deposit is responsible for the failure to fulfill the obligation, it is obliged to pay the party that made the deposit double the amount of the deposit (clause 2 of Art. 381). These rules apply only when the obligation has not been fulfilled by the parties in full, and do not apply to cases of improper performance of contractual obligations.

Failure to fulfill the obligation, of course, entails compensation for losses. If the party that provided the deposit is responsible for the non-performance of the contract, it must compensate for losses in the part exceeding the amount of the deposit. In cases where the party that received the deposit is liable for the non-performance of the contract, the other party in the obligation who provided the deposit may demand the payment of a double amount of the deposit and, in addition, compensation for damages in excess of the one-time amount of the deposit.

Sanctions for breach of contract. Non-fulfillment or improper fulfillment of a contractual obligation leads to a violation of the subjective rights of the creditor and entails the application of legal sanctions to the debtor, which are understood as measures of state coercion applied to a person who has violated the prescription of a legal norm.

Civil sanctions, depending on the basis for their application, can be contractual and non-contractual.

Contractual sanctions are applied for violation of a contract (contractual obligation), i.e. for its non-performance or improper performance, and non-contractual - for violation of the absolute rights enshrined in the law.

Civil liability has a number of characteristic features that distinguish it from liability measures in other branches of law, and above all public law. These signs (features) are that she:

• - always has a property character (affects not the person himself, but his property sphere);
• - is a restorative measure (aimed at restoring the property status of the creditor, and not at punishing the offender);
• - always applied in favor of the creditor and not the state;
• - applies only at the initiative and discretion of the creditor;
• - can be implemented by the offender voluntarily, without the use of state coercion;
• - as a rule, it can be provided by the parties themselves in the contract or changed by the contract in comparison with how it is defined in the dispositive norms of the law.

Forms of civil liability. The forms of civil liability are:

• - compensation for losses;
• - collection of a forfeit;
• - collection of interest for the use of other people's funds;
• - compensation for moral damage.
• 1. Compensation for damages. Losses are understood as real damage (i.e. expenses that the creditor has made or will have to make to restore the violated right, the value of the lost property or the value by which the value of the damaged property has decreased) and lost profits (i.e. lost income that the victim would have received under the normal conditions of civil turnover, if his right had not been violated).

Compensation for damages is a universal measure of civil liability and is applied for any offense, regardless of whether it is provided in a particular case by law or contract.

2. Penalty. In the legislation, fines and penalties are used as types of forfeit. If in relation to fines it is difficult to distinguish any special features, then the specific signs of a penalty in the form of a penalty are obvious. They consist in the fact that a penalty is established in case of delay in the performance of an obligation, i.e. it is intended to ensure only timely submission of the performance of the obligation; the default interest is usually determined as a percentage in relation to the amount of the obligation not fulfilled within the specified period; the default interest is a continuing forfeit, which is collected for each subsequent period of delay in the unfulfilled obligation.

Depending on whether the penalty is established by law or by agreement, a distinction is made between contractual and legal penalty.

Negotiable the penalty is established by agreement of the parties. Its size, calculation procedure, conditions of use, etc. determined solely at their discretion. An agreement on a forfeit must be made in writing, regardless of the form of the main obligation, which may arise from an oral transaction. Failure to comply with the written form entails the invalidity of the agreement on forfeit.

Legal the penalty shall be applied regardless of whether the obligation to pay it is stipulated by the agreement of the parties (Article 332 of the Civil Code). True, the fate and scope of a legal penalty largely depend on the legal norm in which it is contained. If a penalty is provided for by a peremptory norm, it is subject to unconditional application. In cases where the provision on a penalty is contained in a dispositive norm, it is applied only insofar as the parties by their agreement have not provided for a different amount of the penalty.

The amount of the legal penalty can be changed by agreement of the parties only upwards, if it is not prohibited by law (clause 2 of article 332).

Penalties differ in their ratio to losses caused by the same breach of contract for which the penalty was established. The general rule is offset penalty(losses are collected only in the part that has not been covered by the forfeit). However, a law or an agreement, as an exception to this rule, may provide for cases when only a penalty is collected, but not losses ( exceptional penalty), when losses are recovered in full in excess of the forfeit ( penalty or cumulative forfeit), as well as when, at the option of the creditor, either losses or a penalty ( alternative penalty).

3. Collecting interest for the use of someone else's money is a specific form of responsibility used for non-fulfillment or improper fulfillment of monetary obligations (Article 395 of the Civil Code of the Russian Federation).

The amount of interest for the use of other people's funds is determined at the unified discount rate of the Central Bank of the Russian Federation (refinancing rate). Interest is calculated on the amount of funds payable to the creditor for the entire period of their unlawful use until the date of actual payment.

4. Compensation for non-pecuniary damage is aimed at compensating the physical or mental suffering of the victim caused by the violation of his non-property (or property, if specified in the law) rights (Articles 151, 1099-1101 of the Civil Code of the Russian Federation).

Moral damage is compensated in cash. The amount of compensation is determined by the court, taking into account the degree of guilt of the offender, the degree of physical and mental suffering of the victim, and his individual characteristics.

Depending on the nature of the offense, subject composition and other circumstances provided for by law or contract, liability in obligations may be different.

First of all, one should distinguish contractual and non-contractual liability.

Contractual liability arises when a party violates its obligations under the contract (delivery, purchase and sale, contract, etc.) and is determined by agreement of the parties. Non-contractual liability is determined only by law.

Depending on the number of entities participating in the obligated party, liability may be:

1) equity;

2) solidary;

3) subsidiary.

Shared responsibility- this is the main type in obligations. Its essence lies in the fact that each of the debtors is liable to a certain extent established by law or contract. So, the rules of shared responsibility are established for limited liability companies. Shared liability can also be established by an agreement. If neither the law nor the contract has determined the share of responsibility, then all participants on the obligated party are liable in equal shares.

Joint responsibility... Its essence lies in the fact that each of the joint and several debtors can be responsible for all the others, and the rest for one debtor. Joint and several liability is established either by law or by agreement. Thus, the surety is always jointly and severally liable with the debtor. In these cases, the creditor has the right to sue either the debtor, or the surety, or both at the same time.

Subsidiary liability- this is an additional liability of a third party to the creditor in the event of non-fulfillment or improper fulfillment by the debtor of his obligation. Additional liability is established by agreement of the parties. Its essence is that a third party takes an obligation to the creditor to compensate him for the harm if the debtor does not have property sufficient to cover the debt. It is on this basis that subsidiary liability differs from joint liability. The parties can agree on additional liability to the creditor, for example, when transferring a debt.

Possible two ways to make amends:

a) in kind;

b) by reimbursing the incurred losses (real damage, lost profits).

Compensation for harm in kind may consist in restoring a thing, providing a thing of the same kind and quality. However, this method is not always possible due to the loss of the thing or if the creditor requires monetary compensation, since the thing itself has lost interest for him. This can be observed in case of delay in delivery or loss of things by the carrier. In such cases, damages are reimbursed.

2.18 Civil contract

Agreement - it is an agreement of two or more persons aimed at establishing, changing or terminating civil rights and obligations. In civil law, contracts are one of the most important grounds for the emergence of obligations.

The classification of civil law contracts is carried out according to the characteristics common to all transactions, and the characteristics characteristic only of contracts.

1 By the way contracts are divided:

- n a k o n se n s u a l n e – to conclude an agreement, an agreement of the parties on essential conditions (purchase and sale, in a row) is sufficient;

Real – in addition to the agreement of the parties, it is also necessary to transfer the subject of the contract (loan, storage).

2 Depending on the distribution of rights and responsibilities:

One side – one side has only rights, the other has only obligations (loan);

D u s t about n e – each party has both rights and obligations (purchase and sale, lease);

Many – all participants have rights and obligations towards each other (simple partnership agreement).

3 In accordance with the inherent nature of the transfer of goods contracts are subdivided:

On the back – when a party receives payment or other counter-provision for the performance of its obligations;

Free of charge – one party undertakes to provide something to the other party without receiving payment or other counter-provision from it.

4 Depending on the addressing of interest under the contract:

In a p o l z u s to r about n s about o g about in o r y;

In use (insurance).

5 Depending on the nature of the legal consequences:

Final (main) - contracts that directly generate the rights and obligations of the parties;

Preliminary agreements create only the obligation to conclude in the future an agreement on the transfer of property, performance of work or the provision of services (main agreement) on the conditions stipulated by the preliminary agreement.

6 By its legal significance:

The main – have independent meaning;

P r and d and d e – complement the main ones and follow their fate (pledge agreement).

7 On the grounds of imprisonment:

Free – are at the discretion of the parties themselves;

ABOUT – their conclusion is mandatory for one or both parties to the contract (public contract). Public an agreement concluded by a commercial organization that establishes its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who turns to it (rental, household contract, etc.) is recognized.

8 By the way the conditions are defined:

Agreements with v and m about with g and about and n and and about in and m and and m and m i;

Acceptance agreements – conditions are determined by one of the parties in forms or other standard forms and are accepted by the other party only by acceding to the proposed agreement as a whole.

The contract is considered concluded if the parties in the form required by law have reached an agreement on all the essential terms of the contract.

Essential;

Regular;

Random.

Are recognized as significant conditions:

About the subject;

Named as significant in the law;

About which an agreement must be reached at the request of one of the parties.

Normal conditions are provided for by the relevant regulatory enactments and automatically come into force at the time of the conclusion of the contract.

Conditions that are not provided for by law and the absence of which does not matter for the recognition of the contract as concluded are considered random. The terms of the contract are determined at the discretion of the parties, taking into account the norms of the current legislation.

Form of contract obeys the general rules on the form of transactions, a variety of which is the contract, as well as special rules on the form of the contract.

For many contracts, the law determines the obligatory form of their execution - simple written or notarial (donation agreement). In writing, an agreement can be concluded in one of the following ways: by drawing up one document signed by the parties, by exchanging documents by post, telegraph, electronic or other communication.

There is a general order conclusion of a contract, which is characterized by two stages:

Offer ( offer);

Acceptance of this proposal ( acceptance).

Offer should have the following features:

Be sufficiently specific and express the offeror's intention to conclude a contract;

Be addressed to one or more specific individuals.

Public offer - an offer containing all the essential conditions of the contract, from which the will of the person making the offer is seen to conclude an agreement on the conditions specified in the offer with anyone who responds.

The offer binds the offeror from the moment of its receipt to the addressee.

Under acceptance means the consent of the person to accept the offer addressed to him. The acceptance must be complete and unconditional. The performance by the person who received the offer, within the time period established for its acceptance, of actions to fulfill the terms of the contract specified in it (shipment of goods, payment of money, etc.) is considered acceptance, unless otherwise provided by law or specified in the offer. The acceptor is bound by his consent from the moment of receipt of the acceptance by the offeror.

Separate rules regulate the conclusion of the contract without fail and at the auction. As a general rule, the contract can be changed or terminated only by agreement of the parties. In cases stipulated by legislation or by agreement of the parties, it is possible to unilaterally change the terms of the agreement or to terminate it.

The contract can be changed or terminated at the request of one of the parties by the court:

In case of a significant violation of the contract by the other party;

In case of a significant change in the circumstances from which the parties proceeded when concluding the contract;

In other cases stipulated by the Civil Code and other acts of legislation or agreement.

Essential a violation of the contract by one of the parties is recognized, entailing for the other party such damage, as a result of which it is largely deprived of what it had the right to count on when concluding the contract.

The change in circumstances is considered significant, if they have changed so much that if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different conditions (part two, clause 1 of article 421 of the Civil Code). If the parties fail to reach an agreement on bringing the agreement in line with significantly changed circumstances or on its termination, the agreement may be amended or terminated at the request of the interested party in court, provided that there are simultaneously conditions determined by the legislation (subparagraphs 1 - 4, paragraph 2 of Art. 421 GK).

1. Grounds and conditions of liability for violation of obligations

1.1. The concept and meaning of liability for breach of obligations

Responsibility for violation of obligations is recognized as a property sanction provided by law, applied to the debtor who has violated the obligation.

There are two forms of liability for violation of an obligation, otherwise called property sanctions: firstly, compensation for damages caused and, secondly, payment of a penalty 1. The first is the main one; it can always be used, if there is no other indication in the law or contract. Unlike compensation for losses, the recovery of a forfeit is possible only when it is expressly provided for by law or contract.

The debtor is considered to be in breach of the obligation if he did not fulfill it or performed it improperly. Non-performance takes place in cases when the action provided for by the obligation was not performed at all (if the subject of performance is refraining from action, non-performance means that such an action was committed by the debtor), and improper performance - when the debtor performed the action, but did so in relation to the wrong person, at the wrong time, in the wrong way, etc. So, a design institute, which, in violation of the obligation binding it with the customer, did not draw up a project, is recognized as having failed to fulfill the obligation; and if the project was completed by him, but was offered for delivery after the deadline, with defects or not in full, then improper performance is evident.

Responsibility in civil relations performs two main functions: stimulating and compensatory.

Before the violation of the obligation, the responsibility is intended to stimulate the debtor to perform (if you fulfill, you will pay). After the obligation has been violated, the amounts received by the creditor in the form of compensation for losses and (or) forfeit can be used by him to cover those negative social consequences that have arisen due to the violation of the obligation. At the same time, liability serves as a signal of certain shortcomings in the debtor's activities. And this may ultimately matter for his potential creditors, deciding whether to enter into a contractual relationship with him (whether, for example, an entrepreneur who has paid significant amounts to his creditors in the form of a forfeit or compensation for losses, will be able to return a loan that trying to get from the bank).

1.2. Terms of liability for breach of obligations

The debtor's liability for breach of obligations arises in the form of a general rule, provided that the following conditions are simultaneously present: first, the creditor incurs a loss; second, the unlawfulness of the debtor's actions; third - the causal relationship between illegal actions and incurred losses; the fourth is the debtor's fault. A law or an agreement may provide for cases of liability, regardless of the presence of fault. In addition, in cases where liability takes the form of payment of a forfeit, and not compensation for losses, it is sufficient to establish only two conditions out of these four - the unlawfulness of behavior and the culpability of the debtor. This means that the occurrence of such liability is not associated with the presence or absence of losses from the creditor.

The concept of losses, common to all cases of civil liability, is disclosed in Art. 15 of the Civil Code, to which there is a direct reference in Art. 393 of the Civil Code, securing the obligation of the debtor to compensate for losses.

The traditional concept of losses, which has developed since the time of Roman law, includes real ("positive" damage and lost profits. Accordingly, securing the principle of full compensation for losses incurred, Article 15 of the Civil Code indicates these components. Real damage is recognized as loss or damage to property, belonging to a person whose rights have been violated, as well as expenses that the person has not only made, but will have to make to restore the violated right.The last rule is a novelty of the Civil Code.

Lost profits in accordance with Art. 15 of the Civil Code includes lost income that a person would have received if his right had not been violated. It is emphasized that the usual conditions of civil circulation should be taken as the initial one.

Another novel contained in Art. 15 of the Civil Code, as applied this time to lost profits, is that if the person who violated the right received income for the specified reason (the supplier, having not delivered the equipment to the buyer, sold it to a third-party organization at a price many times higher than that specified in the contract) , then subject to compensation to the victim (in this case - the buyer), along with other losses, the lost profit cannot be less than the income received by those who violated his right. The legislator thus seeks to exclude the possibility of "making money" on violation of the obligation.

Civil circulation is designed for the activity of its participants. The noted circumstance is taken into account in a number of norms of the Civil Code. One of them also applies to compensation for losses caused by the debtor to the creditor. So, the Code (clause 4 of Art. 393), highlights, in particular, the need to take into account the measures taken by the creditor to obtain it, as well as the preparations made by him for this purpose, when determining the lost profit subject to compensation. However, the noted demand for activity, addressed to the victim, is not exhausted. This can be confirmed by the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation on one of the cases considered. By overturning the decision of a lower court. The Presidium drew attention to the fact that “in the case there are no documents confirming the write-off of funds by a foreign supplier. The court has not examined the calculation of losses. It is not clear what measures were taken by the CJSC (the plaintiff, to reduce the amount of losses "1.

The “reality” of the losses subject to compensation is expressed when establishing the initial value for calculating the losses. It's about the price. A general indication in this regard, which equally applies to the price of goods, works or services, boils down to the following: the basis should be based on the price that existed in the place where the obligation should have been performed, on the day of the debtor's voluntary satisfaction of the creditor's claim, and if the specified claim of the creditor was not voluntarily satisfied, - on the day when the claim for damages was filed in court. The court is given the opportunity to take into account the price that existed on the day the decision was made. The above rules relating to the accounting of the price when calculating losses, apply, however, only if the law, other legal acts or the contract does not contain otherwise in this regard 1. The need to include these norms is ultimately caused by inflationary processes. As O.N. Sadikov, in direct connection with the operation of the principle of full compensation for losses "in the event of high inflation, the old legal principle of nominalism of monetary obligations does not withstand the pressure of more significant social factors, the principles of justice" 2.

The need for indexation, generated by inflation, found expression, in part, in the use of a conventional unit in the form of a “minimum wage” for assessing individual obligations and determining the scope of responsibility, along with money. In this regard, Art. 318 of the Civil Code stipulates that "the amount paid under a monetary obligation directly to the maintenance of a citizen: in compensation for harm caused to life or health, under a life maintenance contract and in other cases - with an increase in the minimum wage established by law, it increases proportionally." A similar indication is contained in paragraph 2 of Art. 1091 of the Civil Code: "When the minimum wage is raised in accordance with the law, the amount of compensation for lost earnings (income), other payments awarded in connection with damage to the health or death of the victim, increase in proportion to the increase in the minimum wage established by law (Article 318)."

Having fixed in the form of a general principle the need for full compensation for losses, Art. 15 of the Civil Code allows the inclusion in a law or a contract of an indication of compensation for damages in a smaller amount against the amount provided for in the article itself. In the development of the reduced norm of paragraph 1 of Art. 400 of the Civil Code emphasizes, first of all, the possibility of establishing what is called "limited liability", which means the limitation of the right to full compensation for losses.

Exceptions of this kind from the principle of full compensation for damages, existing in laws, as well as in contracts, take different forms.

First, the parties may be deprived of the right to claim damages altogether. This happens in cases where an exceptional penalty has been established for violation of obligations.

Secondly, the parties are given the right to claim damages, but only in the form of real damage. Relevant norms in this regard are contained, for example, in Art. 691-694 Civil Code (various types of liability of the parties under the loan agreement - gratuitous use), Art. 547 of the Civil Code (responsibility of the energy supplying organization for non-fulfillment or improper fulfillment of the energy supply agreement), clause 3 of Art. 448 of the Civil Code (responsibility of the organizer of open tenders, who refused to conduct them in violation of the time period provided for in the notice of tendering), Art. 573 of the Civil Code (responsibility of the donee who has entered into a written donation agreement for refusing to accept the gift), Art. 984 of the Civil Code (responsibility of an interested person to those who acted in his interests without an order), etc.

Thirdly, other restrictions of various kinds specified in the law (agreement) are possible. So, Art. 796 (clauses 2 and 3) of the Civil Code provides for the limitation of the carrier's liability in case of unsafe transportation: in case of loss or shortage of cargo (baggage) - the cost of the lost or missing cargo (baggage); in case of damage (spoilage) of cargo (baggage) - by the amount by which its value has decreased, and if it is impossible to restore the damaged cargo (baggage) - by its value; in case of loss of cargo (baggage) handed over for carriage with the declaration of its value - the declared value. In addition, the carrier must, in all these cases, return to the sender (recipient) the carriage charge collected for the carriage of lost, missing, damaged or damaged cargo (baggage), if this fee is not included in the cost of the cargo.

Limitations on the amount of liability established by law may apply to certain types of obligations or have in mind obligations associated with a certain type of activity 1. Among other things, the nature of the respective obligations also plays a role, first of all, whether they are reimbursable or non-reimbursable.

The parties in the form of a general rule are given the opportunity to limit their liability by an agreement reached between them. However, such an agreement in the cases specified in the law, in particular, when it comes to an agreement in which the creditor is a citizen acting as a consumer, may turn out to be null and void 2. Such a consequence occurs in the presence of one of two conditions: either the amount of liability for this type of obligation or for this violation is determined by the Law, or the agreement was concluded before the occurrence of circumstances that entail liability for non-performance or violation of the obligation 1. The latter is intended to prevent the debtor from weakening the incentives for real and proper performance.

There is still a third ground for excluding the possibility for the parties to agree on the limitation of their liability. This is a direct prohibition contained in the law (CC) for individual situations. For example, in the case when a third party, on the grounds that arose before the conclusion of the contract, withdraws from the buyer the last acquired thing (for example, the owner of the thing sold by the seller appears), the seller is obliged to compensate the buyer for the losses incurred by him. Establishing an appropriate rule, clause 2 of Art. 461 of the Civil Code at the same time provided for the invalidity of the agreement of the parties, by which the seller is released, in whole or in part, from liability when third parties reclaim the purchased goods from the buyer.

The most general meaning is included in paragraph 4 of Art. 401 of the Civil Code, an indication that an agreement concluded in advance on the elimination or limitation of liability for willful violation of an obligation is null and void. The above norm is necessary, because otherwise, as already mentioned above, the debtor, if his liability is limited in this way, could have incentives to evade the fulfillment of the obligation.

Article 393 of the Civil Code imposes on the debtor the obligation to compensate for "losses caused by ...", i.e. those that are causally related to the breach of obligation. For the debtor to be liable, it is necessary that the failure to perform or improper performance of the obligation is the cause, and the occurrence of the creditor's losses is its direct, natural result.

Sometimes there is a complex relationship between a breach of an obligation and a creditor's loss, which includes two or more intermediate links.

Another situation is possible, when the same phenomenon is causally related to the circumstances related to the actions of both parties to the obligation: not only the debtor, but also the creditor. In all such cases, the court faces a difficult task: to select from the relevant circumstances precisely those that were decisive for the creditor's losses.

One of the basic principles of the law of obligations is that a person who has not fulfilled an obligation or who has performed it improperly is liable in the presence of fault, unless other grounds for liability are provided for by a law, other legal act or contract. The debtor's fault is manifested in his attitude to the very fact of non-performance or improper performance of the obligation and to those negative consequences that, for this reason, may arise from the creditor.

Guilt in civil law, as in criminal law, appears in the form of intent or negligence. The one who is consciously aware of the illegal nature of his actions, foresaw their possible result and wished for it, or at least consciously allowed it, acts deliberately. To recognize actions as careless, it is necessary that a person foresees them, but frivolously hopes to prevent, or did not foresee the possibility of such consequences, although he should and could have foreseen them 1.

To free oneself from responsibility for the admitted failure to perform or improper performance of the obligation, the debtor must prove the absence of his fault. The extent of the blamelessness of the debtor's behavior in the most general form is indicated in the law. By virtue of paragraph 1 of Art. 401 the absence of a person's guilt means that "with the degree of care and discretion that was required of him by the nature of the obligation and the terms of circulation, he took all measures to properly fulfill the obligation."

A law or an agreement may provide for cases in which the occurrence of liability for a violation of an obligation requires not just guilt, but certainly guilt in the form of intent. So, Art. 948 of the Civil Code provides that the insurer can challenge the value of the insured property specified in the contract only if at the time of the conclusion of the contract it was deliberately misled by the insured about it (the direct calculation of the latter is to receive a higher insurance indemnity upon the occurrence of an insured event).

In civil law, it is customary to distinguish in individual cases not only the form, but also the degree of guilt. It is about distinguishing between gross and simple negligence 2.

To determine simple negligence, less stringent requirements are used than for gross negligence (that is, in cases where for the debtor's liability to occur, it is necessary to establish the presence of certainly gross negligence). An example is the responsibility of a person who has found someone else's thing to the owner for its loss or damage: by virtue of paragraph 4 of Art. 227 of the Civil Code, such responsibility occurs only in case of intent or gross negligence of the person who found the thing.

The general rule (clause 1 of article 401) establishes a rule by virtue of which a person who has not fulfilled obligations or has performed it improperly is liable in the presence of intent or negligence, unless other grounds for liability are stipulated by law or agreement.

In civil law, in contrast to criminal law, there is a presumption of guilt: a debtor who has violated an obligation is presumed guilty. Such an assumption (presumption of guilt) facilitates the position of the creditor in the dispute, since the one who violated the obligation, the debtor, is obliged to prove the absence of his guilt 1.

The general rule on the need to establish the guilt of the debtor to be held liable does not always apply. First of all, you can refer to the provisions contained in the Civil Code itself. The main one is the one that provides for the specified exception for violations of the obligation committed by the debtor in the course of his entrepreneurial activity. In such cases, the debtors are liable for non-fulfillment or improper fulfillment of their obligation, regardless of whether the violations in question were committed through their fault or innocence. Accordingly, from Art. 401 of the Civil Code it follows that a person who has not fulfilled an obligation in the implementation of entrepreneurial activity, in order to exempt himself from liability, must prove that proper performance was impossible for him due to force majeure. Explaining the meaning of the specified rule. The Presidium of the Supreme Arbitration Court of the Russian Federation, in a resolution on one of the cases it considered, drew attention to the fact that “a business entity carries out this activity with a certain degree of risk and bears responsibility even in the absence of his fault” 2.

In the Civil Code, along with the above, there are a number of special, different norms, the action of which also applies to debtor-entrepreneurs. These exceptional norms stipulate that the liability of the debtor in the cases indicated in them is still not increased, but ordinary, i.e. based on the principle of guilt. The specified exception - the liability of the debtor-entrepreneur occurs only in the presence of fault - is established in the Civil Code, for example, for the liability of a producer of agricultural products for non-fulfillment or improper fulfillment by him of an obligation under a contract of contract (Article 538); performer - to the customer for violation of the contract for the performance of research, development and technological work (Art. 777); carrier - for failure to preserve cargo or baggage accepted for carriage (Article 796); the energy supplying organization for a break in the supply of energy to the subscriber, with the fact that the indicated, more limited liability (only for the fault of the organization) occurs if such an interruption in the supply of energy followed as a result of the consumption regime implemented on the basis of law or other legal acts energy 1.

Another, this time a general exception to the principle of responsibility for one's own guilt, is, in relation to all debtors in general, their "responsibility for the actions of a third party." As noted earlier, the debtor, under certain conditions, has the right to entrust the performance of his obligation, in whole or in a certain part, to a third party. This legal structure is widely used, for example, in the carriage of goods, in which several transport organizations are involved. The one that has entered into a contract of carriage with the sender of the cargo assumes responsibility to the sender or the recipient for the loss or damage to the cargo, regardless of whether she herself or any other organization that took part in its transportation is guilty of unsafe transportation.

The creditor, in case of non-fulfillment or improper fulfillment of the obligation, according to the general rule, may apply with a claim for payment of a penalty or compensation for losses only to the debtor, including when the fulfillment is entrusted to a third party. As an exception, the law provides the creditor in certain cases with the opportunity to address his claim directly to a third party, whose actions entailed a breach of the obligation.

One can point to another similar construction of direct responsibility, but already arising by virtue of the law. This refers to the "responsibility of the producer", which is devoted to Art. 1095 CC. It provides for the imposition of the obligation to compensate for harm caused to the life, health or property of a citizen or the property of a legal entity as a result of constructive, prescription or other defects in the goods (work, service), as well as due to inaccurate or insufficient information about the product (work, service), directly to the seller or the manufacturer of the goods or to the person who performed the work or provided the service (to the performer). The responsibility in question arises regardless not only of the guilt of these persons, but also, as provided in the Code, of whether the victim was in a contractual relationship with them or not.

Along with the principle laid down in the above Art. 403 of the Civil Code, - "responsibility for other people's actions" ("actions of a third party"), Code 1 emphasizes the "responsibility of the debtor for his employees." This latter is based on a different beginning: the actions of the employee should be regarded as the actions of the debtor himself. For this reason, the debtor is liable for the employee's actions as for his own actions. As a general rule, an "employee" in this case means, first of all, the one who, being with the debtor (citizen or legal entity) in an employment relationship, performs the appropriate actions within the framework of the specified relationship.

2. KINDS OF LIABILITY FOR BREACH OF OBLIGATIONS

2.1. Main types of responsibility

In cases where two or more citizens and / or legal entities act on the side of the debtor who has not fulfilled or improperly fulfilled the obligation, one of three possible models is applied: shared, joint and several liability or subsidiary liability.

Of the three indicated types of liability - shared, joint and several liability - the first is presumed. This means "that the liability of the co-debtors is shared, unless otherwise specified in the law or in the obligation (agreement), ie. joint and several liability.

Shared liability is recognized to the creditor of each of the debtors within the limits of their share established by law or agreement. An example is the responsibility of the parties in a simple partnership agreement: in such a partnership, if it is not related to the implementation of entrepreneurial activity, according to its general contractual obligations, each participant is liable with all his property, but only in proportion to the value of his contribution to the common cause 1.

If the debtors are jointly and severally liable, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt. Moreover, if the creditor does not receive full satisfaction from one of the joint and several debtors, he has the right to demand what he did not manage to receive from the other joint and several debtors, and all joint and several debtors retain their obligation to the creditor until the entire obligation is fulfilled 2. Thus, if the shared responsibility is based on the principle “every man for himself”, then the joint responsibility, which to the greatest extent guarantees the interests of the creditor, is based on the principle “one for all and all for one”. Joint and several liability is established, for example, paragraph 2 of Art. 98.

The specified type of liability arises in cases when it is provided for by the contract or established by law (it is specially highlighted in clause 1 of article 322 of the Civil Code, the application of joint and several liability when the subject of the obligation is indivisible). This is the general rule, but a significant exception has been made from it: if we are talking about an obligation that is related to entrepreneurial activity, then the opposite presumption comes into force - in such an obligation the co-debtors are considered joint and several, unless otherwise provided by law, other legal acts or conditions liabilities 1.

Joint and several liability is provided for in several dozen articles of the Civil Code. Some of these articles relate to the legal regime common to legal entities, for their individual types. So, for example, the guarantee of the rights of the creditor of a legal entity during its division or separation is the joint liability of the newly emerged legal entities for the debts of the reorganized 2. Another example is the joint and several liability of the founders for the obligations of a joint-stock company that arose before its registration 3. The same joint and several liability is, in particular, liability to creditors, which, under certain conditions, are borne by the seller and the buyer, respectively (clause 3 of Art.559 and Art.562 of the Civil Code) or the lessee and the lessor - when the enterprise is leased (Art.657 of the Civil Code) ...

For the most part, the provisions on joint liability in the Civil Code and in other laws are of an imperative nature. At the same time, some of these rules are dispositive or even optional. So, the surety and the debtor are jointly and severally liable to the creditor, if the law or the contract does not provide for subsidiary liability (clause 1 of article 363). At the same time, the person who transferred the immovable property encumbered with the rent into the ownership of another bears precisely joint and several liability with the latter only in cases where such liability is provided for by the Code, law or contract (clause 2 of article 586).

Subsidiary (additional) liability consists in the fact that the creditor, along with the main debtor, has one more, while, in contrast to what occurs with joint and several liability, a spare one. This makes it possible to consider the establishment of subsidiary liability by law as a certain guarantee for the creditor, in the same way as it takes place in joint liability 1.

The subsidiary Civil Code recognizes the liability of participants for the debts of a full partnership (clause 1 of Art. 75) or "a company with additional liability (clause 1 of Art. 95), members of a production cooperative for its debts (clause 2 of Art. 107), the main company for debts of a subsidiary - in the event of the bankruptcy of the latter, which arose through the fault of the main company (Article 105), the Russian Federation for the debts of the state enterprise (Part 5 of Article 115), the owners of the property of the institution for its debts (Article 120), etc. In some cases

The Code establishes a combination of joint and several liability with subsidiary liability. Thus, the participants in a full partnership bear subsidiary liability for its debts jointly and severally.

Prior to the adoption of the current Civil Code, the norms on subsidiary liability linked the occurrence of such additional liability with the impossibility of satisfying the claim declared by the creditor at the expense of the main debtor due to the latter's lack of funds or their insufficiency. Article 399 of the Civil Code now establishes a different rule, according to which the creditor must first send a notification to the main debtor (while the resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court of July 1, 1996 No. 6/8 stipulates that the said notification must be in writing 2). And only after the main debtor refuses to satisfy the claim so declared or within a reasonable period of time there is no response from him, the creditor has the right to apply with his claim to the subsidiary debtor. However, as an exception (such cases should be directly indicated in the law), the condition for the occurrence of subsidiary (additional) liability may be the lack of property of the main debtor (see clause 3 of article 56 of the Civil Code, clause 5 of article 115 of the Civil Code, etc.) ...

Noteworthy are two more norms related to subsidiary liability (clauses 2 and 3 of article 399 of the Civil Code). Firstly, in the case when the main debtor, at the same time, has a counter claim against the creditor, the latter must first set off his claim or use the right of an indisputable claim against the main debtor before presenting claims against the subsidiary debtor. Secondly, the subsidiary debtor is obliged in all cases to warn the main debtor about this before the creditor's claim is satisfied, and if a claim is brought against the subsidiary debtor, he must involve the main debtor in the case. The subsidiary debtor, who has not fulfilled this duty, thereby assumes a certain risk: when he subsequently submits a recourse claim against the main debtor, the latter has the right to raise the same objections against the subsidiary debtor that he had against the creditor 1. The latter rule is directly related to the “spare” and thus non-independent nature of the responsibility referred to in Art. 399 GK. It means that the basis for its occurrence is the presence of the conditions necessary for the main responsibility.

2.2. Circumstances precluding liability of the debtor

In all cases when the debtor's liability is based on guilt, he is exempted from it if it is proven that the obligation was violated by accident, i.e. due to circumstances that cannot be blamed on him (we are talking about, with the degree of care and discretion that was required by the nature of the obligation and the conditions of turnover, he took all measures for the proper performance of the obligation) in cases where an increased responsibility is established (regardless of guilt), the law usually provides that the debtor is exempted from such liability if he can prove that the impossibility of performance was created by force majeure. Force majeure is an extraordinary and unavoidable event under the given conditions ”1. Most often, natural phenomena are regarded as such (lightning strike, flood, strong storm, etc.), when for this reason the supplier, for example, could not ship the goods to the buyer in time in the amount specified in the contract, strikes, war directly the consequences they cause. The above legal definition of force majeure in relation to the liability of the debtor in the obligation coincides with that contained in Art. 202 Civil Code; it deals with force majeure and a circumstance with the action of which the suspension of the course of the limitation period is connected.

Art itself. 401 of the Civil Code includes an indication that at least three circumstances directly named in it, creating the impossibility of proper performance of the obligation by the debtor-entrepreneur, can under no circumstances be considered as force majeure. These three include 2: violation of the obligation to the debtor by its counterparties (the machine-building plant allowed underdelivery due to the fact that its own suppliers - a coal mine or a metallurgical plant did not fulfill the contract concluded with it), the lack of goods on the market for the execution of the contract, and lack of funds from the debtor (for example, the buyer does not have them to purchase the equipment he needs to manufacture the products to be delivered). It follows from this that all these circumstances cannot serve as a basis for releasing the debtor, even when the entrepreneur plays this role, from liability for non-performance or improper performance of the obligation. In one of the cases he considered, the Presidium of the Supreme Arbitration Court of the Russian Federation, bearing in mind that the hotel is responsible for the safety of the things it has accepted for storage, regardless of fault, in its resolution admitted that “theft is not a force majeure circumstance” 1.

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of April 19, 1999 No. 5 "On some issues of the practice of considering disputes related to the conclusion, execution and termination of bank account agreements" 2 highlighted the case of application of the rules on the liability of a debtor-entrepreneur for the actions of his counterparties. We are talking about a situation that arises when the bank fails to fulfill its obligations to fulfill orders, customers, for the reason that the necessary services were not provided by the communication service, which, in turn, is in a contractual relationship with the bank.

The debtor can be released from liability (in whole or in part) if the obligee is guilty of the violation of the obligation. An example is Art. 963 of the Civil Code, which provides for the need to release the insurer from the obligation to pay insurance compensation (in case of property insurance) or the sum insured (in case of personal insurance), if it turns out that the insured event occurred due to the intent of the insured, and in case of property insurance, also in case of his gross negligence.

The guilt of the creditor may also be a sufficient basis for relieving the debtor-entrepreneur from liability. So, for example, a company providing the corresponding services, on behalf of the client, entered into an agreement on his behalf, under which a residential building was purchased. As it turned out later, the house was in disrepair. The firm is not obliged to bear responsibility to the client for the losses incurred in this regard, if it proves that it warned the client in a timely manner that the house was being purchased without checking its quality, which he did not pay attention to, insisting on the prompt registration of the contract.

Both parties may be guilty of failure to perform or improper performance of an obligation: both the creditor and the debtor. Then the court, without relieving the debtor from liability, only reduces its size 1. Depending on how important the deliberate or careless actions of the creditor were for the violation of the obligation, the court may reduce the amount of the debtor's liability by half, by one third, etc. At the same time, what is contained in Art. 404 of the Civil Code, an indication of the need to reduce the liability of the debtor "accordingly". When assessing the scope of the rule on reducing the liability of the debtor due to the violation of the obligation through the fault of both parties, it must be borne in mind that this rule applies regardless of whether the liability of the debtor is based on the principle of fault or is increased (up to the action of force majeure).

One of the circumstances causing a decrease in the liability of the debtor is highlighted in paragraph 1 of Art. 404 GK especially. This is a case when the creditor, intentionally or through negligence, contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them (for example, the depositor did not use the opportunities available to him to promptly take out the goods stored in the warehouse, although was warned of the anticipated flood).

Sometimes the law contains a special list of circumstances in the presence of which the debtor is released from liability for violation of an obligation. It is most widely used in transport charters and codes. For example, in the TRA (Articles 108 and 109), nine circumstances are indicated in which a transport organization is exempted from liability for loss, shortage, damage (spoilage) of cargo. Each of these circumstances, as indicated in the relevant articles, is distinguished by the fact that the railway could not prevent them, the elimination of these circumstances did not depend on it. The above formulation of the corresponding provision, as already noted, is intended to confirm that the principle of guilt lies at the heart of the responsibility of the railway for the integrity and safety of transported goods.

2.3. Delay in execution

Both the debtor and the creditor can find themselves in the position of a delayed party.

The debtor is deemed to have delayed the performance if he did not perform the action provided for by the obligation within the prescribed period. The debtor's delay entails a number of consequences unfavorable for him 1:

- he is obliged to reimburse the creditor for losses caused by delay;

- his liability for violation of the obligation increases against the usual, since he is then responsible not only for his guilty actions, but also for the consequences of the impossibility of performance accidentally occurring during the delay (for example, the goods to be delivered to the buyer burned down in the supplier's warehouse, albeit as a result of a fire as a result of a lightning strike, but already at a time when the supplier was in delay);

- if, due to the debtor's delay, the performance proposed by him has already lost interest for the creditor (for example, in violation of the agreement concluded with the Philharmonic, the artists came on tour, instead of December 30, the day after the New Year holidays), the latter has the right to refuse to accept the performance and demand compensation for losses ...

The creditor's delay occurs in cases when he refused to accept the proper performance proposed by the debtor or did not perform actions that are provided for by law, other legal act or agreement, or follow from the customs of business or the essence of the obligation. But all this is only on the condition that, prior to the performance of these actions by the creditor, the debtor could not fulfill the obligation 2.

For example, a buyer, to whom the supplier has delivered the products stipulated by the contract by car, evades its acceptance, citing the lack of free warehouse space. The customer did not provide the contractor with the initial data, without which the technical project could not be drawn up. The customer did not give the contractor the equipment for the installation work.

In Code 1, cases are specially highlighted in which the delay occurs due to the refusal of the creditor to issue a receipt (in full or in the relevant part) of execution, or to return the debt document issued at the time by the debtor, or to note in the receipt that it is impossible to return it. In all such cases, the debtor acquires the right, in turn, to delay the performance. Thus, he is relieved of any liability for the delay thus arising, since the actions of the creditor that caused it are also considered the delay made by the creditor.

In the event of a delay in the creditor, as already noted, he is obliged to compensate the debtor for the losses caused by this. The relationship is subject to the prince of responsibility not only for his own actions, but also for the actions of third parties. In view of this circumstance, Art. 4 of the Civil Code provides for the need to release the obligee from the obligation to compensate the debtor if he manages to prove that the delay occurred due to circumstances for which only the obligee himself, but also third parties, who, by virtue of the law of other legal acts or his instructions, were entrusted with the acceptance of the executed, don't have to answer.

Finally, it should be specially mentioned that whenever the reason for the admitted delay in performance by the debtor was the delay of the creditor, the debtor is not recognized as being in delay with all the ensuing consequences. One of such consequences of the creditor's delay is that the monetary obligation must be free from the need to pay interest throughout the entire period of time during which the creditor's delay lasted.

The special consequences of the creditor's delay have also been established in relation to certain types of obligations. For example, the force of Art. 901 of the Civil Code, the custodian, as already noted, in the form of a general rule, is responsible for the safety of accepted things in the presence of guilt, and the custodian is an entrepreneur and regardless of guilt. However, if the depositor-creditor in the storage obligation misses the deadline specified in the contract for receiving his things back, the custodian-entrepreneur will be liable for their loss, shortage or damage only if there is intent or gross negligence in his actions. In the same way, if the customer delays in accepting the result of work under the work contract, the risk of accidental death or accidental damage to the result that lies with the contractor is transferred to the customers 1.

2.4. Responsibility for non-fulfillment of a monetary obligation

Article 395 of the Civil Code, which is called "Responsibility for non-fulfillment of a monetary obligation", provides for the payment of the use of other people's funds of certain interest on the corresponding amount. In this case, we mean various options for such use, including the illegal withholding of other people's funds, evasion of their return, other delay in their payment, or unjustified receipt or saving of funds at the expense of another. Thus, the set of situations covered by Art. 395 GK, very broad. For example, any person who had to pay for the goods transferred to him, the work performed or the services rendered to him, and did not fulfill these obligations, may find himself in a home position. An indispensable sign of a monetary obligation is, of course, its subject - money. Therefore, the Presidium of the Supreme Arbitration Court of the Russian Federation considered the decision of the lower court incorrect, which applied Art. 395 of the Civil Code in relation to the buyer who did not pay for the goods delivered to him on time. In the decision, the Presidium drew attention to the fact that in the contract called the sale and purchase, the supplied goods (herbicides) were to be paid for with wheat at the prices prevailing at the time of its transfer. The Presidium emphasized that the reciprocal obligation in relation to the transfer of herbicides was not actually monetary 1. In another case, the application of Art. 395 of the Civil Code to the obligation, which provided for payments;) for goods with securities. This obligation, in the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, also cannot be considered monetary 2.

At the same time, the resolution of the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation och October 8, 1998 No. 13/14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds" indicates that "the consequences provided for by Article 395 of the Code do not apply to obligations in which the currency (money) plays the role of a commodity (currency exchange transactions) "3.

In connection with the application of Art. 395 of the Civil Code, a number of questions arise. The first of them is the amount and procedure for collecting interest. In the Code itself, we are talking about the need to pay interest in the amount determined by the discount rate of the bank interest existing at the place of residence of the lender (for a legal entity - at the place of its location). However, at least until now, such a differentiated (regional) rate does not exist. Its place was taken by the Central Bank of the Russian Federation, a single discount rate for the entire country, on credit resources that it provides to commercial banks. This discount rate is called the “refinancing rate” 4. Due to the fact that the Central Bank of the Russian Federation is forced to change it quite often (taking into account the economic situation in the country), the need arose to determine which refinancing rate (on which date) should be guided. The Civil Code gives various solutions, depending primarily on whether the debtor pays the corresponding interest voluntarily or by a court decision. In the first case, it is envisaged to apply the rate on the day of the fulfillment of the entire monetary obligation or its corresponding part - the one in relation to which the rate is determined. In the second, when it comes to debt collection in court at the request of the creditor, the refinancing rate is set by the court on the day the claim is filed or on the day the decision is made. This rule applies unless a different interest rate is provided for by law or agreement. As for the period of time during which interest is collected, then, unless a different, shorter period for calculating interest is provided by law, other legal act or agreement, the collection of interest is calculated on the day of payment of the principal amount of funds to the creditor. At the same time, as indicated in the resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court dated July 1, 1996, No. 6/8, it is allowed to charge “interest on interest”, but only in cases stipulated by law 1. Thus, if the court is considering a case on delay in payment of work performed, then if the amount of the overdue amount is 100 million rubles, the refinancing rate is 50% and the duration of the delay is 2 years, an amount of 200 million rubles should be collected according to the general rule.

The above provisions on calculating the amount of interest due are applied when using someone else's money under an obligation expressed in rubles. It is a different matter if the main monetary obligation is expressed in foreign currency, and there is no official discount rate of the bank interest on foreign currency loans at the location of the creditor on the day of the fulfillment of the monetary obligation. For such cases, the resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court dated July 1, 1996 No. 6/8 provides for the need to determine the amount of interest based on publications in official sources of information on the average rates of bank interest on short-term foreign currency loans provided by banks at the location of the lender. If these publications are absent, one should be guided by a certificate from one of the leading banks at the location of the lender, which confirms the rate applied by such a bank for short-term foreign currency loans. This procedure applies regardless of whether the location of the creditor is the territory of the Russian Federation or another country 1.

In connection with the application of Art. 395 of the Civil Code, it became necessary to determine also the ratio of the interest provided for by it with the penalty, which is established in case of delay in payment for goods, works, services, as well as with compensation for losses. The answer to this question depends on the legal nature of the interest referred to in Art. 395 Civil Code.

In the literature, different points of view have been expressed on the legal nature of interest for the use of other people's money. V.V. Vitryansky brought their authors into four groups 1. The first includes those who consider "interest for the use of other people's funds" as compensation or remuneration (payment) for the service rendered (use of capital), the second - those who recognize them as a penalty for violation of the obligation, the third - who consider them a form of compensation for losses in connection with non-fulfillment by the debtor of the monetary obligation. Finally, the fourth group of authors recognizes their civil liability, which constitutes a separate category of atypical (special) measures of property liability. Unlike all these views, V.V. Vitryansky comes to the conclusion that “interest per annum for non-performance (delay in performance) of monetary obligations is an independent, along with compensation for losses and payment of a penalty, a form of civil liability. Moreover, the peculiarities of interest per annum, distinguishing them into an independent form of civil liability, should be sought not so much in the specifics of their calculation, proof and application, as is the case with losses and forfeit, but in the specific subject of the monetary obligation itself. "

This last position is shared by judicial practice. So, in the absence of a direct answer to the question posed - about the nature of interest in Art. 395 of the Civil Code, resolution of the Plenums of the RF Armed Forces and the RF Supreme Arbitration Court of October 8, 1998 No. 13/14 included an indication that “the interest provided for in paragraph 1 of Article 395 of the Code, by its nature, differs from the interest payable for the use of funds, provided under a loan agreement (Art. 809 of the Code), a loan agreement (Art. 819 of the Code) or as a commercial loan (Art. 823 of the Code). Therefore, when resolving disputes on the collection of interest per annum, the court must determine whether the plaintiff requires payment of interest for the use of monetary funds provided as a loan or commercial loan, or the essence of the claim is the application of liability for non-fulfillment or delay in the fulfillment of a monetary obligation (Article 395 of the Code) " 1 .

Considering the penalty and increased interest as different measures of responsibility, the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 No. 13/14 excludes at the same time the possibility of their combination, recognizing for the creditor only the right to choose one of them 2.

The implementation of this line by the higher courts can be illustrated in a number of cases they considered. So, in one of them, the arbitration court, having established that the customer was late in payment for the work performed, satisfied the contractor's claims for the simultaneous collection in the form of sanctions for late payment, firstly, contractual forfeit and, secondly, the interest indicated here. 395 Civil Code. Canceling this decision, the Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution indicated the following: “Based on the general rules for the application of measures of liability for non-fulfillment or improper fulfillment of an obligation, two measures of civil liability for the same offense cannot be applied if the law or contract does not prescribe provided otherwise "3.

In another case, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized the increased interest not just as a liability, but as a penalty.

With the recognition of the indicated interest as a type of liability, it is also connected that the rules governing the creditor's claim for the recovery of interest are applicable to the grounds for the debtor's liability for violation of the obligation. For this reason, for example. The Presidium of the Supreme Arbitration Court of the Russian Federation overturned the decision of the lower arbitration court, which collected interest under Art. 395 of the Civil Code in connection with the institution's debt to pay for the goods supplied.

He referred to the fact that the action of paragraph 1 of Art. 401 of the Civil Code, according to which “a necessary basis for liability for non-performance or improper performance of an obligation is the presence of the fault of the person who committed the violation in the form of intent or negligence” 1.

As for other possible consequences of a breach of an obligation - this means the collection of interest and compensation for losses, a negative answer to the question of their possible cumulation is contained in the Code itself. It provides that the creditor retains in such cases the right to demand compensation from the debtor for losses, but only with the offset of the amount of interest, and therefore only in the amount that is the difference between these two values.

BIBLIOGRAPHY

Constitution of the Russian Federation: Adopted by a popular referendum on December 12. 1993


Civil Code of the Russian Federation. Part 1 of November 30, 1994 // SZ RF. 1994. No. 32. Art. 3301.


Civil Code of the Russian Federation. Part 2 of January 26, 1996 // SZ RF. 1996. No. 5. Art. 410.
Ioffe O.S. Responsibility under Soviet civil law. L., 1955.