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Participation of the third party in execution of the obligation with a view of preservation The property sphere

The legislator supposes execution by the third party of a duty of the debtor before the creditor under own initiative. So, for example, the third party can execute for lack of putting on a duty of the debtor with a view of preservation of the property sphere, thus the creditor is obliged to accept such execution if it is ought.

One of cases of participation of the third party in execution of the obligation with a view of preservation of the property sphere is provided by subparagraph 2 of point 2 of article 313 GK the Russian Federation and represents a special case of participation of the third party in execution of the civil-law obligation. According to the specified norm if the debtor did not assign obligation execution to the third party, the creditor is obliged to accept the execution offered for the debtor by such third party in case such third party is endangered to lose the right to property of the debtor owing to the collecting reference on this property. As marks M. And. Braginsky, this norm solves a question on execution of the obligation by the third party from a position of protection of interests of the debtor. [138] foreign conventional law, in particular Principles of the European contract right, also gives to the third party the right to execute the obligation of the debtor if the third party has a legitimate interest in execution of the obligation and the debtor does not carry out or it is obvious, that it will not execute it during appropriate time (Article 7:106). [139]

In this case interest of the third party is shown in necessity to keep the property sphere, and its achievement is expressed in occurrence of the "new" legal bond - the "new" obligation in which the third party becomes the creditor. Realisation of interest of the third party in preservation of the property sphere is expressed in operation this third party on some property granting which corresponds with action of the debtor under the basic obligation. Acceptance of execution by the creditor will be lawful in the event that the third party has an interest in execution of the basic obligation, and third party actions lead to satisfaction of its interest only for the reason, that execution of the basic obligation acts as a condition of preservation of corresponding property rights of the third party.

It is necessary to note, what not all rights which exist concerning property of the debtor, can be lost in connection with the collecting reference on this property. So, S.V.Sarbasha's statement that as a result of the reference of the claim to property of the debtor the tenant is exposed to risk of loss of the right is represented disputable. [140] According to item 617 GK the Russian Federation, property right transition (economic conducting, an operational administration, lifelong inherited possession) on the leased property to other person is not the basis for change or rent contract cancellation. This position is fair and in case of the reference of the claim to property of the debtor, including at sale of such property by means of tendering. [141] thus, the tenant does not have danger to lose the right to property of the debtor in case of the reference on it collecting. Also the right of gratuitous using (loan), as the item is not lost 698 GK the Russian Federation the closed list of the bases of a preschedule termination of the contract of the loan in which such basis as the reference of the claim to property of the debtor or transition of the property right to property, hence, the right of gratuitous using remains without dependence from a way of transition of the property right to property is not included is established.

To the right to property which is the basis of satisfaction of the requirement of the creditor without putting on from the debtor, it is necessary to carry the right of the pawnbroker to the put in pawn property as, according to subitem 8 of item 1 of item 352 GK the Russian Federation, pledge stops in case of realisation of the put in pawn property with a view of satisfaction of requirements of the previous pawnbroker. However according to the item 342.1 GK the Russian Federation, the requirement provided with the subsequent pledge, does not come under to preschedule satisfaction if the collecting which have remained after the reference by the previous pawnbroker of the put in pawn property will be enough for satisfaction of the requirement of the subsequent pawnbroker. Thus, not each pawnbroker can lose the right to property of the debtor, but only the subsequent pawnbroker and only at danger to lose the right of pledge at its realisation by the previous pawnbroker. In this situation the third party can execute a duty of the debtor before the pawnbroker with a view of preservation of the liens on property of the debtor. Also it is necessary to notice, that, according to item item 4 346 GK the Russian Federation, in case of the reference the pawnbroker of collecting on the put in pawn property real rights, the right arising from the rent contract, other rights arising from transactions on granting of property in possession or in using which are given by the depositor to the third parties without the consent of the pawnbroker, stop from the moment of decree becoming res judicata about the collecting reference on the put in pawn property or if the requirement of the pawnbroker is satisfied without a reference to the court (extrajudicially), from the moment of occurrence of the property right to the put in pawn property at its purchaser provided that the purchaser will disagree with preservation of the specified rights [142]. Thus, the third party can execute a duty of the debtor in big enough number of cases, including if it leases the put in pawn property which has been transferred in rent without the consent of the pawnbroker.

In some cases the depositor in the obligation is not the debtor, and the third party, according to rules of item 335 GK the Russian Federation. To such situations rules about the guarantee, provided by articles 364 - 367 GK the Russian Federation are applied. Hence, in case of danger of loss of the property, the depositor - the third party has the right to make discharge of duty of the debtor to the creditor to avoid the collecting reference on the property, according to item 4 of item 348 GK the Russian Federation. Such actions it is impossible to consider third party property within the limits of a design fixed by the legislator in subitem 2 of item 2 of item 313 GK the Russian Federation as in this case under danger of loss the property of the debtor gets not, and. Thereupon it is obviously necessary to change the maintenance of subitem 2 of item 2 of the item

313 GK the Russian Federation by entering into it of position according to which the third party can execute a duty of the debtor and in case of danger of loss of the property.

The third party having the certain rights to property of the debtor, owing to rules of the Civil code that the debtor answers before creditors all property as marks S.V.Sarbash, actually always is in a condition of danger of loss of this right as a result of the reference of the claim to property of the debtor. [143] also the depositor-third party is exposed to danger of infringement of property sphere. However, moment definition from which obligation execution for the debtor is possible, is represented inconvenient. It is necessary to agree with O.G.Lomidze that the third party is not endangered if the time of performance of a duty of the debtor before the creditor has not come yet. [144] however even at delay in performance, it is represented, danger has not come yet, as the reference of the claim to property of the debtor or the third party - procedure kept away enough from the delay in performance admitted by the debtor. Thereupon it is impossible to agree with opinion, that the moment of approach of danger of forfeiture on property of the debtor comes from the moment of the beginning of fulfilment of actions by the police officer-executor on arrest and levy of execution, the rights on which belong to the third party. [145] in this case danger has not so simply come, danger became a reality, the property is arrested and ready to realisation, i.e. is practically lost for the third party. It is represented, that the most correct definition of the moment of approach of danger of forfeiture on property the third party is the moment of giving of the claim the creditor as a result of which satisfaction there can be a reference the claim to property of the debtor.

Besides the moment from which it is considered possible obligation execution for the debtor without putting on, there is a question on actions of the creditor in a case when execution suggests the third party to keep the property sphere on motive. In particular, the problem consists in legislative and theoretical uncertainty, whether it is necessary for the diligent creditor to demand from the third party of a presentation of the proof of presence of legal relations concerning property between the debtor and the third party. It is represented, that such requirement will be proved owing to that for execution for the debtor of the obligation without putting on and at presence at the creditor of a duty to accept such execution presence of a concrete situation (is necessary for danger to lose the right to property of the debtor owing to the collecting reference on this property) which can arise only in the presence of corresponding relations between the debtor and the third party.

Thus, the diligent creditor has the right to demand acknowledgement of presence of legal claims of the third party on property of the debtor, and also probability of their infringement. As such documents can serve, including, and data on the person of the depositor-third party. Thus in case the third party will appear the inadequate executor, the creditor has the right to refuse acceptance of such inadequate execution.

The legislator has left opened a question, whether the consent of the debtor is necessary at execution of the obligation by the third party in case of risk to lose the right to property of the debtor. As in this case it is a question of protection of interests of the third party, the will of the debtor cannot have the jural significance. At execution by the third party of a duty of the debtor, the consent of the last is not required, as the third party makes actions in interests not the debtor, and in own, expressed in necessity to keep the rights to property of the debtor or to keep own property sphere.

Hence, for execution of the obligation by the third party for the debtor according to rules of subitem 2 of item 2 st 313 GK the Russian Federation presence of set of following conditions is necessary:

- Legal bond presence between the debtor and the third party;

The-third party should possess the right concerning property of the debtor or its property sphere depends on actions of the debtor. This circumstance causes presence of interest at the third party in obligation execution between the creditor and the debtor.

- Presence of a relationship of cause and effect between the reference of the claim to property of the debtor and danger of forfeiture on this property. The position of authors according to which the third party is obliged to prove presence in the contract with the debtor of conditions according to whom property transition to the creditor attracts the adverse title termination on property Is represented disputable. [146] how it was already marked, according to item 1 of item 352 GK the Russian Federation, pledge stops in case of realisation of the put in pawn property with a view of satisfaction of requirements of the previous pawnbroker, without dependence from instructions on this circumstance in the contract between the depositor and the pawnbroker.

Discharge of duty by the third party, according to item 5. Item 313 GK the Russian Federation, is the basis of transition of the rights of the creditor on the basis of the law to the third party. However, as already it was marked earlier, at fulfilment of the actions named in subitem 2 of item 2 of item 313 GK, the basic obligation stops, or the cumulative duty of the debtor before the creditor decreases, and arises new debt reguljativnoe the obligation between the third party which has executed a duty of the debtor, and the debtor, concerning that volume of a property duty which was executed by the third party before the creditor. That is, if the third party fulfils duties of the debtor completely the basic obligation stops and there is a new obligation with the third party acting as the creditor; If the third party fulfils only a part of a duty of the debtor the basic obligation remains in force, the cumulative duty of the debtor before the creditor only decreases, and there is a new obligation between the third party as the creditor and the debtor, the volume of a duty of the debtor in which corresponds to volume executed by the third party. Thus change of persons in the obligation does not occur in case of execution according to subitem 2 of item 2 of item 313 GK the Russian Federation, as item 348 GK the Russian Federation. Hence, there is no change of persons in the obligation, in connection with its termination in this connection there is a new obligation between the third party and the debtor.

Thus, the third party, making actions on certain property granting which corresponds with action of the debtor under the basic obligation, thereby realises interest in preservation of the property sphere.

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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

More on topic Participation of the third party in execution of the obligation with a view of preservation The property sphere:

  1. Chapter 2. Participation of the third party in the obligation on the party of the debtor
  2. Chapter 3. Participation of the third party in the obligation on the party of the creditor
  3. Models of participation of the third party in execution of the civil-law Obligations
  4. 1. Obespechitelnyj payment as a way of maintenance of execution of the future obligation and the obligation arising from the preliminary contract
  5. 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
  6. the Third party beneficiary contract as the form of granting of property benefit to the third party
  7. Participation of the party of charge and the protection party at appointment and expert testimony in court manufacture in criminal trial
  8. 3. The Incorporeal right of the creditor in the obligation in favour of the third party.
  9. 4. A design of the obligation in favour of the third party and qualification of new kinds of treaty obligations.
  10. 4. A place of execution of the obligation
  11. Definition of an appropriate place of execution of the basic obligation as the form of expression of interest of the creditor
  12. 5. Ways of execution of the contractual obligation
  13. 1. Concept of execution of the obligation
  14. 5. Ways of execution of the contractual obligation