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Occurrence of property benefit at the debtor at the expense of savings on To its party of that it should execute in favour of the creditor

In some cases the third party can release the debtor from a property duty before the creditor if owing to any circumstances in its interests occurrence of property benefit at the debtor at the expense of savings on its party of that it execute in favour of the creditor.

Achievement of interest of the third party in the given situation is carried out at the expense of fulfilment of action by it - clearings of a property duty of the debtor before the creditor by means of execution of its duty. The unique legal form in which interest of the third party on clearing of the debtor of a property duty can be realised, the gift contract is.

According to item 572 GK under the gift contract one party (donator) gratuitously transfers the Russian Federation or undertakes to transfer to other party (donee) a thing in the property or a property right (requirement) to itself or to the third party, or releases or undertakes to release it from a property duty before itself or before the third party. A classifying sign of the gift contract is its gratuitousness owing to express indication of item 572 GK the Russian Federation. In the presence of any counter granting: counter transfer of a thing or the right or the subsequent occurrence of the counter obligation between the third party and the debtor in whom the first will be the creditor, the contract does not admit donation. In this case the transaction is feigned, and consequences of invalidity of such transaction further are applied.

The property duty of the debtor before the third party or the creditor is expressed in necessity of counter granting to the thing third party (including money) under the contractual obligation or money resources under the non-contractual obligation. [131] that is the property duty of the debtor before the third party can constitute the maintenance both contractual, and non-contractual obligations. The property duty of the debtor from which the donator wishes to release it, should not have personal character, otherwise the creditor is not obliged to accept such execution. As the legislator talks exclusively about a property duty, it is impossible to release the debtor from a non-property duty by fulfilment of the transaction of donation [132].

Clearing of the debtor by means of execution by the third party of a duty of the debtor under the non-contractual obligation, for example, in the obligation arising from unjust enrichment or from property tort is obviously possible. Also it is possible to admit odarivanie the debtor by repayment of its property duty on payment of money resources under the non-contractual tort liability of a life or health, and also under maintenance obligations. Owing to specificity of maintenance obligations and obligations on compensation of harm to health, from their execution, under the general rule, it is impossible to "release" the debtor, it is possible to present only the debtor, having paid the sum of the collected debt. At the same time, in the event that the agreement of the parties had been established single payment, for example, the alimony, the third party can extinguish alimentnoe the obligation in full. However concerning tort liabilities of a life and to health the law supposes single payment no more than for three years forward, that is exposed to criticism from scientists.

[133] it is necessary to notice, that the law connects odarivanie with full clearing of the debtor of a property duty in which result there will be an obligation termination. At the same time, it is represented, the donator has the right to execute a part of the obligation of the debtor, for example, having extinguished a part of a debt to the creditor. Thus, it is a question of a real design of the gift contract as in case of the promise of clearing of a property duty, the third party does not influence in any way dynamics of the existing obligation between the creditor and the debtor.

The basic sign of the gift contract is the increase in property of the donee at the expense of third party actions [134], and as a subject of such contract the actions of the donator made on purpose to release from a property duty of the donee before its creditor, on obligation execution between the creditor and the donee serve. At clearing of the donee of a property duty occurs by execution accepted by the donee before the creditor of obligations directly third party - the donator. The right of the donator by means of fulfilment of the actions directed on clearing of the donee from a property duty, represents an inaliennable part of the legal personality of the donator. [135]

It is necessary to distinguish the mentioned design from delegation as at clearing of a property duty before the creditor, carried out in the form of the donation real contract, there is a termination of the concrete obligation existing between the creditor and the donee. While translating the execution debt, and as consequence, the terminations, obligations does not occur, as speech in this case goes only about change of persons in the obligation, in particular, about replacement of the person by the party of the debtor.

Because the form of clearing of the person from a property duty before the creditor is the gift contract, to it the restrictions provided by the civil legislation concerning donation are applied. So, according to item 575 GK the Russian Federation, is forbidden donation on behalf of juvenile and the citizens recognised as incapacitated, their legal representatives; to workers of the educational organisations, the medical organisations, the organisations rendering social services, and the similar organisations, including the organisations for children-orphans and children who have remained without care of parents, the citizens who are in them on treatment, the maintenance or education, spouses and relatives of these citizens; To the persons displacing the state posts of the Russian Federation, the state posts of subjects of the Russian Federation, municipal posts, the civil servant, the municipal employees, serving Bank of Russia in connection with their official position or in connection with execution of official duties by them; in relations between the commercial organisations. Thereupon physical persons, or the noncommercial organisations can be subjects of clearing of a property duty. However the law does not establish an interdiction for donation between the commercial and noncommercial organisations, therefore is possible, with certain restrictions, to include in the list of subjects which can carry out clearing of a property duty and the commercial organisations.

To the gift contract form are applied item 572 GK the Russian Federation corrected. Hence, donation can be made including orally [136], by discharge of duty of the donee to directly its creditor. At clearing of the property duty constituting the maintenance of the non-contractual obligation, it is represented, observance of the simple written form of the contract in any case is necessary.

It is necessary to notice, that the investigated design of the gift contract comes within the purview of article 313 GK the Russian Federation in spite of the fact that, at first sight, obligation execution is not assigned to the donator, and such granting of execution does not fall under the conditions provided by item 2 of item 313 GK the Russian Federation. However, considering donation as bilaterial, instead of the unilateral contract, [137] it is possible priiti to a conclusion, that the conclusion of such contract will form the basis of putting on of execution of the obligation on the third party.

Summing up, it is necessary to conclude, that participation of the third party in execution existing between the creditor and the debtor of the obligation at interest realisation in granting imushchestvennoi benefits to the last can be shown exclusively in clearing of the endowed debtor from imushchestvennoi a duty (debt) to the creditor, instead of in the promise of that. Hence, realisation of interest of the third party will always lead to satisfaction of interest of the debtor in the basic obligation. To the diligent creditor, as a rule, it is indifferent, who will execute a duty of the debtor, thereupon at it is not present the basis to refuse the acceptance of execution offered for the debtor by the third party, in this case the donator.

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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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