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Definition of an appropriate place of execution of the basic obligation as the form of expression of interest of the creditor

Obligation execution is fulfilment of that action which is necessary for satisfaction of the incorporeal right of the creditor. [270] under the general rule, the debtor executes the obligation to directly creditor.

At the same time, in some cases the duty is executed by the debtor to the third party, the last not always gets incorporeal rights in relation to the debtor by the rules provided by positions of item 430 GK the Russian Federation. In that case speech is led about execution readdressing (or about the contract with execution to the third party). Execution readdressing is expressed that the creditor agrees with the debtor to make execution not to the creditor, and the third party. [271] as specified K.N.Annenkov, the Roman Law supposed execution representation under the obligation not only personally veritelju, but also to its representative, for example the authorised person. The [272] Interest of the creditor directed on reception of property benefit by the third party at making contract in its advantage, at execution readdressing is directed on a designation of an appropriate place of execution, and also on instructions of the appropriate person it is necessary for them to make this execution and which is authorised on its acceptance.

Each obligation assumes its execution not only during the appropriate moment, the appropriate person and way, but also in an appropriate place. The category of a place of execution of the obligation is based on obshchefilosofskom concept of space. [273] definition of a place of execution of the obligation was defined on - a miscellaneous at various stages of development of a society and the right. Since times of Ancient Rome the place of execution of the obligation was defined by the nature of the obligation or its subject. [274] under the general rule, proceeding from the obligation nature, an appropriate place of execution admitted the residence veritelja (creditor), however in some cases the residence of the debtor could be an appropriate place; a place of execution of the obligation directed on transfer of things patrimonial, under the Roman Law, the residence of the debtor, and on transfer of things movable specific - a residence of the creditor was considered. [275] General provisions on a place of execution of the obligation agree to the English right are developed by system of precedents both separate acts, and definition of a place of execution of the obligation also depends by nature contracts and others circumstance. For example, according to the Law on sale of the goods of 1979, a place of discharge of duty on goods transfer is the location of the seller, i.e., the duty is assigned to the buyer to take away the goods, rather than on the seller a duty it to send. [276] duty on payment of payments should be executed on a residence or findings of the creditor. [277]

The order of definition of a place of execution of the obligation throughout domestic history repeatedly varied. According to the project of the Civil code of Russian empire in the event that the parties have not established a place of execution of the obligation the contract, the obligation comes under to execution in a residence of the debtor during making contract, and on a monetary debt payment should be made in a residence veritelja (creditor).

[278] GK RSFSR has fixed 1922, that if the execution place is not defined by the law or the contract and does not appear from an obligation being, execution should be made: under obligations which subject is cession of rights on structures or the ground areas, - in the structure or site location; under the transactions entering into a circle of activity of the enterprise of the debtor, - in the enterprise location; under liabilities - in a residence of the creditor at the moment of obligation occurrence; But if the creditor by the moment of execution of the obligation has changed a residence and has in due time informed on that the debtor, last is obliged to make execution on a new residence of the creditor, with reference into the account of the creditor of all expenses connected with change of a place of execution; under other obligations - in a residence of the debtor at the moment of obligation occurrence. [279]

GK RSFSR has established new rules of definition of a place of execution of the obligation according to which if the execution place is not defined by the law, the contract or the planning act 1964 and does not appear from an obligation being, execution should be made: under the obligation to transfer a structure - in the structure location; 2) under the liability (except liabilities state, co-operative and public organisations) - in a residence of the creditor at the moment of obligation occurrence and if the creditor by the moment of execution of the obligation has changed a residence and has informed on it the debtor, in a new residence of the creditor, with reference into the account of the creditor of all expenses connected with change of a place of execution; 3) under other obligations - in a residence of the debtor and if the debtor is the legal body - in a place of its finding. Now rules of definition of a place of execution of the obligation are fixed by the Civil code of the Russian Federation - it can be executed on the location of the debtor, the creditor, on the location or property storages, on the location of the serving creditor of bank, in a place of delivery of property to the first carrier.

Obligation execution not on the location of the creditor roots leaves in days of Ancient Rome. There for the first time there were transactions of type Romae stipulatur Carthagine dari (D. 13. 4. 2. 6), i.e. the contract is concluded in Rome so that execution has followed in Carthago. As [280] place of execution of the obligation is called that place where the actions constituting the maintenance of the obligation should be made, thus the debtor supposes delay if will not make execution in this place. [281] M.I.Braginsky notices, that definition of a place of execution of the obligation matters for the decision of a question on where the debtor is obliged to make execution. [282] also place definition matters, as the creditor can demand execution in this place, not in other the friend. Now in practice the place of execution of the obligation is defined by means of instructions of the concrete address of the addressee, by instructions of exact geographical co-ordinates with a binding to systems of navigation GPS, GLONASS, and also their analogues.

Possibility of readdressing of execution into place other, than the location of the creditor, directly is not provided by the civil legislation, but the Russian Federation according to which if other is not provided by the agreement of the parties follows from interpretation of item 312 GK and does not follow from customs or an obligation being, the debtor has the right to demand proofs of at execution of the obligation that execution is accepted by the creditor or authorised by it on it the person, and bears risk of consequences of a non-presentation of such requirement. The analysis of this norm allows to come to conclusion that for the creditor execution can be accepted the third party authorised on it, thus execution will be considered executed to the appropriate person and in an appropriate place. In this case the creditor ceases to be the appropriate person to whom execution should be made, and there are no bases to approve, that execution can be made both to the creditor, and the third party. [283] On the same basis it is possible to approve, that there is no also a solidarity of requirements of the creditor and the third party to the debtor. The authorised third party at execution readdressing essentially differs from the authorised person in the third party beneficiary contract. It it is connected with character of competence - at readdressing of execution the third party has only the narrowest competence to acceptance of execution from the debtor, but there is no competence to demand such execution which is present at the third party from the moment of intention expression to take advantage of the right under the contract concluded in its advantage.

As the basis of readdressing of execution to the third party the agreement of the parties, instead of the unilateral contract as approves a number researchers acts. [284] fulfilment by the creditor of the unilateral contract directed on realisation of readdressing of execution, contradicts an interdiction for unilateral change of conditions of the obligation, provided by item 310 GK the Russian Federation. The agreement on execution readdressing can be as is included in the contract at a stage of its conclusion, and included in it later. In this case, the additional agreement should correspond under the form to the requirements shown by item 452 GK the Russian Federation. [285]

It is necessary to notice, that the civil legislation does not outline a circle of persons, authorised on acceptance of execution, and also does not contain legal definition of such persons. The person authorised on acceptance of execution can be, both the capable full age physical person, and the legal body of any organisation-legal form.

At execution readdressing the authorised third party operates independently, on its own behalf and is not the representative of the creditor on sense of positions of item 312 GK the Russian Federation. [286] however, now, the third party can operate and on the basis of the power fixed in the power of attorney or in other document. [287] thus, it is possible to draw a conclusion that the third party, having the right to accept appropriate execution from the debtor, now is as the authorised person operating on its own behalf, or authorised on it the creditor operating on behalf of the creditor on acceptance of appropriate execution from the debtor the person. Thereupon it is necessary to spend differentiation between actually readdressing of execution and execution to the representative of the creditor. It is possible to consider as execution readdressing such execution to the third party at which the last operates directly on its own behalf, not being the representative of the creditor as at execution of the obligation to the representative, it is possible to approve, that the debtor has executed the obligation to directly creditor, instead of the third party [288].

It is necessary to distinguish readdressing of execution from change of persons in the obligation. As a result of change of persons the creditor loses the incorporeal right, transferring to its third party which becomes to the place of the creditor in the obligation. Accordingly, at readdressing of execution the third party does not get the incorporeal right from the debtor of execution of the obligation, does not become the creditor in the obligation, and at change of persons in the obligation, the third party, having replaced the creditor, is allocated with all spectrum of the rights and duties under this obligation.

Difference of readdressing of execution from the third party beneficiary contract consists first of all that the third party is not allocated with the incorporeal right of execution from the debtor [289], it only possesses the right to accept execution at the appropriate person. Thus, it is a question of transfer to the third party of only narrow circle of competences (the truncated competence), in particular competence to actions on cargo acceptance, and also on requirement presentations in connection with inadequate quality of the goods. Thereupon the authorised (authorised) person does not have legal obligation of payment of the goods as readdressing is not change of persons in the obligation, not forming delegation. That circumstance, that the creditor can charge to pay to the third party to the goods, does not mean occurrence of a duty of the third party on payment before the debtor as the third party has a duty before the creditor on realisation of payment to the third party.

As it was already marked, interest of the creditor at making contract with execution readdressing is directed on instructions to the debtor of an appropriate place of execution. Besides the rules of definition of a place of execution provided by the civil legislation, the creditor and the debtor can the agreement to change this place, having specified, for example, the location of the third party, authorised to accept execution, thereby establishing a new place of execution, giving to the creditor the right to demand execution in this place, and establishing a duty of the creditor to execute the obligation in this place.

To readdress execution practically any obligation, except such for which acceptance it is not required figures of the creditor as a whole is possible, and also those obligations, character and which workmanship depend on personal features of the creditor. [290] at execution readdressing, despite the fact that what the debtor makes execution to the third party, the last does not possess the incorporeal right, and represents only the index of an appropriate place of execution. Thus from the point of view of dynamics of the obligation, execution is made directly to the creditor, instead of the specified authorised person, but on the location of the specified third party which interest lays in this case outside of the prisoner between the creditor and the debtor of the contract. Thus, at obligation execution to the certain third party the creditor and the debtor keep positions, thus the maintenance of contractual legal relationship and its subject structure remain invariable. [291]

The debtor has the right to demand the certificate of powers or competences from the third party on acceptance execution. In a case when the creditor upravomachivaet or gives power to the third party on acceptance of execution by instructions of it in the contract or in other form, the third party does not have necessity separately to prove presence at it this competence (power). However, if power has been certificated by other document, the debtor has the right to demand its presentation the third party and the right to refuse to make execution at absence of properly issued acknowledgement of power. Power also can follow from conditions, for example, at acceptance of the goods by the storekeeper of the organisation on a commodity waybill. In case the competence to goods acceptance has been given the third party, it is represented, it is enough to third party to confirm the person only. Also as proofs various debt documents which the third party should transfer to the debtor can serve. [292]

There is a natural question on responsibility for the delay which has arisen on the party of the third party. Acceptance execution is a duty of the creditor, therefore the creditor is considered delayed if he has refused to accept the appropriate execution offered by the debtor or has not made actions, statutory, other legal acts or the contract or following of customs or from an obligation being before which fulfilment the debtor could not execute the obligation (item 406 GK the Russian Federation). The legislator has extended this rule and to cases when acceptance of execution has been assigned to the third party without requirement according a right, i.e. at execution readdressing as the legislator does not provide possibility to make accountable directly third party which has admitted delay of acceptance of execution. Such state of affairs is represented proved as the third party is not the contract party in this connection cannot bear contractual responsibility. However subsequently the creditor can demand from the third party to pay the damages caused by its actions/inactivity. Hence, duties are not assigned to the third party within the limits of the concluded contract between the creditor and the debtor on acceptance of execution, therefore the creditor will bear responsibility for the delay admitted by the third party, as for own.

To contracts at which conclusion the creditor realises interest in definition of a place of execution of the obligation, the contract of financial rent concerns also. The legal nature of financial rent is debatable in the scientific literature. There is a set of theories of the legal nature of leasing relations. The basic approaches to definition of the nature of leasing at the moment are: leasing represents the rent contract with specific lines [293]; independent type of contracts sui generis [294]; the mixed contract combining elements of the credit and the commission [295]; two independent contracts - financial rent and the contract of purchase in favour of the third party. [296] there is kompozitarnaja a treatment of the nature of leasing [297], and also the approach according to which leasing is considered as a version vozmezdnoj service or the credit contract [298].

Not stopping in detail on each of the resulted positions, we will consider possibility oposredovanija leasing relations fulfilment of two independent contracts, one of which is the third party beneficiary contract. The contract of purchase of object of leasing consists between lizingodatelem and the seller, lizingopoluchatel does not participate at making contract, thus the object of leasing is transferred directly lizingopoluchatelju. [299] However, the contract of purchase of object of leasing it is impossible to recognise as the third party beneficiary contract, despite obvious interest of the creditor in granting of benefit to the third party. Under the contract of financial rent (the leasing contract) the lessor undertakes to get in the property the property specified by the tenant at the seller defined by it and to give to the tenant this property for a payment in time possession and using. In relations with the seller the tenant and the lessor act as solidary creditors that means possibility of any of creditors to make the demand to the debtor in full. [300] however, item 4. Item 430 GK means the Russian Federation, that the creditor can take advantage of the right only in the event that the third party has refused it, that will not be adjusted with positions of the civil legislation on solidarity of requirements. Besides, in the contractual obligation the party in the contract while the third party that is not [301] can be the creditor only. From the point of view of solidarity of the lessor and the tenant as creditors in relation to the seller of object of leasing fairly and that thus the tenant has the rights and performs the duties provided by the Civil code for the buyer, except a duty to pay the got property as though it was the party of the contract of purchase and sale of the specified property. It distribution of the rights and duties of the contract of purchase of object of leasing differs from distribution of duties under the third party beneficiary contract. Unsuccessful inclusion by the legislator of positions about the responsibility, brought items 670 GK the Russian Federation referring to the contract of purchase is represented. Certain mixture of rent contracts and purchase and sale thereupon sees, that complicates legal qualification of leasing relations even more.

The third party, according to the norms of the legislation regulating the relations of leasing, has the right to make to directly seller of object of leasing of the demands to quality and completeness, to duty times of performance to transfer the goods and other requirements established by the legislation of the Russian Federation and the contract of purchase between the seller and lizingodatelem. As under the contract of purchase one party (seller) undertakes to transfer to the possession a thing (goods) of other party (buyer) and under the contract of purchase of object of leasing the property right to leasing property arises at lizingodatelja, instead of at lizingopoluchatelja that proves to be true the positions regulating the contract of financial rent. Execution of the contract of purchase in favour of the third party means transfer of object of the contract of purchase to the third party to the property, instead of to possession, as the purpose of the contract of purchase as the contract directed on assignation in the property, consists in conveyance of property from the buyer to the seller. Hence, the right to demand direct execution of a contract to own advantage, in particular, transfers of object of leasing to the property, the third party does not possess. All aforesaid does not allow to consider the contract of purchase of object of leasing as the third party beneficiary contract.

Use in leasing relations of a design of the third party beneficiary contract probably only in the event that to consider a duty of transfer of leasing property is direct lizingopoluchatelju within the limits of the third debt relationship, besides relations of financial rent between lizingodatelem and lizingopoluchatelem both purchase and sale between lizingodatelem and the seller - the relations arising from the contract of carriage of cargo. In execution of a contract of financial rent lizingodatel concludes with the seller of leasing property the classical contract of purchase, and the contract of carriage in favour of the third party simultaneously consists, having the right to demand execution of this contract to own advantage. Only in that case leasing legal relation can be considered as set of the legal relations, one of which has arisen in connection with making contract in favour of the third party. However such complication of relations is represented incorrect. Thereupon relations of financial rent should be considered as set of the obligations relations arising from the contract of financial rent and the contract of purchase of object of leasing property, concluded with a condition about execution to the third party.

Summing up, it is necessary to conclude, that discharge of duty by the creditor to the third party is not always realised with use of a design of the third party beneficiary contract, and can be realised also by instructions to the debtor on a certain place of execution of the obligation or on the appropriate person authorised on acceptance of execution by execution readdressing. Such way of inclusion of the third party in dynamics of the basic obligation is characterised by that realisation of interest of the creditor (depending on its maintenance) can result as in property benefit of the creditor, and property benefit of the third party.

Proceeding from the above-stated, it is possible to draw following basic conclusions.

With the assistance of the third party on the party of the creditor, interest of the last can be expressed in granting of property benefit to the third party and is reached by making contract in favour of the third party. At realisation of interest of the creditor in granting of property benefit to the third party qualifying value for definition of that role which is taken away to the third party, gets interest of the creditor, interest of the third party is not considered. Making the actions directed on realisation sekundarnogo of the right, the third party which is that only at the moment of making contract, gets the incorporeal right of execution of a contract from the moment of intention expression to take advantage of this right. To classify dogovory in favour of the third party it is possible depending on replacement by the third party of the creditor after intention expression to take advantage of the right under the contract on dogovory in favour of the third party at which realisation there is no replacement by the third party of the creditor, and on dogovory in favour of the third party at which realisation there is a replacement by the third party of the creditor. In group of third party beneficiary contracts at which realisation there is no replacement of the creditor, it is possible to allocate two subspecies depending on possibility to take advantage of the creditor with the right which the third party has refused. Contractual designs of the first subspecies do not suppose possibility of the creditor to take advantage of the right at refusal of it of the third party. The second subspecies of the third party beneficiary contract suppose possibility of the creditor to take advantage of the right which the third party has refused.

Interest of the creditor can be shown and in definition of an appropriate place of execution of the basic obligation when at execution of the basic obligation the creditor specifies a place of its execution distinct from a residence (location) of the creditor. Such appropriate place execution is adhered to the concrete addressee - to the location or a third party residence. Difference of the third party beneficiary contract and execution readdressing are, first, absence at the third party of the incorporeal right of execution to own advantage, and, secondly, various interest at the creditor as at the third party beneficiary contract the creditor realises interest in granting of benefit to the third party, and at definition of a place of appropriate execution property benefit can arise directly at the creditor.

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A source: Churilov Alexey Jurevich. PARTICIPATION of the THIRD PARTIES In EXECUTION of the CIVIL-LAW OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Tomsk - 2017. 2017

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