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Putting on of discharge of duty as the form of realisation of interest in repayment of the existing legal bond

Debt relationship under the general rule connects only its parties - the creditor and the debtor, and, according to item 3 of item 308 GK the Russian Federation, not creating duties for the third parties.

However the obligation is not always executed directly by the parties which have concluded the contract, become by the basis of its occurrence, or the person, in connection with action by which (inactivity) there was a non-contractual obligation. Taking into consideration the general rule of indifference of the creditor in the person of the executor of the obligation [61], in some situations arises economic necessity of execution of the obligation of the debtor the third party. Researchers of the Roman private law notice, that else in Ancient Rome execution could be carried out the third party for the debtor, and without dependence from its legal bond with the debtor. [62] still F. SHershenevich wrote what to recognise for veritelem possibility to dismiss the execution offered from strangers, instead of from the debtor, would mean to admit the right without a cash of objective interest. [63] K.P.pobedonostsev approved, that the law gives all possible freedom in execution, execution can be made not only the person directly obliged, but also the third party when the person of the obliged person has no value in the contract. [64] it is valid, possibility to involve the third party to execution of another's obligation is a general rule, and

Inadmissibility of such attraction meaning by all means personal execution, - the exception of a rule also should be statutory, other legal act, conditions or an obligation being, including conditions and a being of the contract which have generated the obligation. [65] legal design according to which for the debtor executes a duty the third party, in a civil law science has received the name "putting on". In the literature of the Soviet period researchers specified such reasons,

Causing possibility of putting on of execution of the obligation on the third party, as branch from manufacture of sbytovo-supplying function, features of the technical and economic organisation of some kinds of industrial activity, and also a reason of economic expediency. [66] thus third party participation on the party of the debtor is caused by interest of directly third party, laying outside of the purpose of execution of the obligation existing between the creditor and the debtor. Interest of the third party in a considered case is expressed in repayment existing between the third party and the debtor of the legal bond.

Foreign legal systems suppose the execution of the obligation made by the third party. In the English right, under the general rule, the contract party cannot object to execution of the obligation by the third party except cases when such execution will break its interests [67], execution of a contract by the third party instead of the debtor (vicarious performance) thereby is supposed. The contract can be executed the third party in the event that it is directly supposed by the contract, or from contractual conditions or circumstance of a business turn follows, that to the creditor is indifferent, who will execute the obligation - the debtor or the third party. [68] According to article 7:106 Principles of the European contract right, except for a case when the contract provides personal execution, the creditor cannot refuse execution by the third party, if: () the third party operates with the consent of the debtor; Or () the third party has a legitimate interest in execution and the debtor does not carry out or it is obvious, that it will not execute during appropriate time.

[69]

In Russian empire possibility of execution of the obligation the third party has not been provided by the Code of laws of Russian empire [70]. The first mention of possibility to assign obligation execution on the third party appears in acts of RSFSR. So, the part of 1 article 171 of the Civil code of RSFSR supposed putting on of execution of the obligation in full or in part on the third party only under a condition if it is provided by the established rules 1964, and is equal if the third party is connected with one of the parties administrative subordination or transfer possibility is provided by the corresponding contract. [71 [72] bases of the civil legislation of the USSR article 62 point 1 have included 1991 certain restriction according to which execution of the obligation which have arisen from the contract, can be assigned in whole or in a part to the third party if it is provided by the legislation or the contract in a similar rule, and is equal

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If the third party is connected with one of the parties the corresponding contract.

Now rules of putting on of execution of the obligation on the third party are regulated by article 313 of the Civil code of the Russian Federation to which the Federal act from 08.03.2015 № 42-FZ «About modification of a part the first the Civil code of the Russian Federation» had been made essential changes. [73] the operating civil legislation widely uses model of participation of the third party in execution of the civil obligation on the party of the debtor - norms of article 313 GK the Russian Federation establishes possibility of putting on of execution on the third party practically any obligation. The presumption in favour of possibility of putting on of execution on the third party is fixed concerning the contractual obligation of transport expedition. So, according to the item of item 805 GK the Russian Federation if from the contract of transport expedition does not follow, that the forwarding agent should fulfil the duties personally, the forwarding agent has the right to involve in execution of the duties of other persons. Most a vivid example of possibility of putting on of execution is putting on of discharge of duties from the contract of purchase on the third party.

The opposite presumption - in favour of inadmissibility of transfer of execution to the third party - operates in the bailment for hire. According to item 895 GK the Russian Federation the keeper has the right to transfer load and by that execution of the obligation to the third party only in the presence of the consent of the depositor. The exception is supposed only in cases when following conditions are satisfied: the keeper in interests of the depositor is forced to arrive in a similar way owing to insuperable circumstances, and, thus, not having possibility to receive the consent of the last. To group of the contracts limiting the right of putting on of execution on the third party, the contract of the author's order as, proceeding from essence of this contract, the author as the person possessing skills demanded by the creditor can be the executor only concerns also.

In spite of the fact that norms of a positive law have apprehended model of participation of the third party in obligation execution on the party of the debtor, a putting on being on which basis participation of the third party in execution the obligation is supposed, is disregarded by the legislator. The civil legislation does not fix the putting on bases on the third party of execution of the obligation though, obviously, they should be in all cases of putting on. It is represented, that exists two situations in which putting on of execution of the obligation on the third party can be carried out. The first - in the presence of a debt on the third party party in the auxiliary obligation which will decrease or will cease the existence at execution of the assigned obligation existing between the debtor and the creditor. And the second - in the absence of a debt on the third party party before the debtor. In each of these situations the third party possesses certain interest, realising which, influences dynamics of the obligation.

Let's consider a situation in which the third party which is the debtor in the auxiliary obligation, takes up a duty to execute the obligation of the debtor in the basic obligation. Hence, within the limits of putting on of execution of the obligation on the third party interest of the last is expressed in repayment existing between the debtor and the legal bond third party - the termination of the auxiliary obligation as which parties act the debtor and the third party. In such auxiliary obligation the third party always is the debtor. As a result of achievement by the third party of the interest there will be a following:

- The termination of the auxiliary obligation existing between the debtor and the third party; or

- Reduction of the size of a duty of the third party in the auxiliary obligation.

Participation of the third party in obligation execution can be reduced both to obligation execution in full, and to execution of a separate duty. In a civil law science there is a discussion concerning a parity of such categories as "duty" and "obligation", and also concerning possibility of part performance of the obligation. It is necessary to notice, that item 313 GK is not mentioned possibility of part performance of the obligation. However it is necessary to differentiate putting on of discharge of duty and putting on of execution of the obligation. So, execution of the obligation by the debtor as the juridical fact will inevitably lead to its termination as, according to item 408 GK the Russian Federation appropriate execution ceases the obligation. At the same time, discharge of duty as fulfilment of the actions caused by the obligation, not always involves the obligation termination. For example, at discharge of duty on delivery of one consignment of goods according to the delivery schedule, there is no obligation termination, and there is only certain change of the size of a duty of the debtor. The concept of the obligation and concept of a duty are not identical, are in various conceptual planes: they only are crossed, but do not absorb each other. [74] as researchers fairly mark, execution of the obligation and discharge of duty under the obligation correspond as whole and a part. [75] A.M.Erdelevsky wrote, that obligation execution represents discharge of duty and acceptance of execution by the debtor [76]. Thereby the scientist also differentiates execution of the obligation and discharge of duties under this obligation.

Accordingly, it is necessary to define, that the legislator understands as the term «putting on of execution of the obligation» - putting on of discharge of duty or putting on of execution of the obligation. Putting on of execution of the obligation Is represented, that, despite instructions in the law, discharge of duty means. For example, between the creditor and the debtor there was a liability according to which on the party of the debtor there is a debt at a rate of 1000 roubles. Being in obligations relations with the third party having before the debtor in the basic obligation a debt in 800 roubles, the debtor assigns execution of the duty to the third party. Thus, as the third party is obliged to liquidate a debt in this case only within a duty before the debtor, on the party of the last still there is a debt in the basic obligation. The similar situation can arise at putting on on the delivery third party only one consignment of goods instead of the debtor. Hence, there is a question on the partial termination of the obligation. According to the logic of the legislator, having paid a debt of the debtor under the basic obligation, the third party the actions partially ceases the obligation execution, repaying communication of the creditor and the debtor in a part therefore there is a new obligation, with the smaller size of a debt. However it not so as the obligation will not stop and on its place will not arise new, smaller on the size, and there will be only a change of the size of a duty within the limits of the existing obligation. Thereupon it is necessary to agree that there can not be «a partial termination of the obligation», and speech in that case goes about change of volume of a duty as the obligation termination is always connected with its full repayment. [77] thus, the legislator means putting on possibility on the third party of execution of a duty of the debtor in the basic obligation. That is the third party can execute the basic obligation partially, having reduced its size, simultaneously having ceased the auxiliary obligation existing between it and the debtor, or having reduced thus volume of the duty before the last. Certainly, under certain circumstances (at discharge of duty of the debtor in full) discharge of duty of the debtor by the third party will lead to the obligation termination in connection with its appropriate execution, and in this case is a question of such discharge of duty of the debtor by the third party which will entail the obligation termination by its execution.

Putting on of execution of the obligation by the debtor on the third party represents the juridical fact in which result the third party owing to such putting on is obliged to make execution of the obligation existing between the creditor and the debtor, not becoming thus its party. The third party, executing a debt for the debtor in the basic obligation, at execution of the assigned duty does not become the legal relation party, remaining for borders of its subject structure [78]. It is necessary to distinguish relations on putting on of execution of the obligation on the third party from actions of the helper. Between actions of the helper and the third party to which obligation execution is assigned, it is possible to spend border, first of all, on the person to whom execution is made. So, at putting on of execution the third party executes the obligation (its part) to directly creditor in the basic obligation. The helper executes the obligation not to the creditor in the basic obligation, and to the creditor who is the debtor in the basic obligation. In such cases of action of the debtor on third party attraction as some researchers mark, only create the actual precondition of execution of the obligation [79]. Thus the person of the third party at its such participation in obligation execution is indifferent for the creditor of the basic obligation and there is behind frameworks of relations a debtor-creditor.

Does not cause doubts, that putting on can represent the agreement between the debtor and the third party, according to which the third party (being the debtor in this concrete agreement) undertakes to execute the obligation existing between the debtor and the creditor. Really, the execution offered by the third party for the debtor at putting on of execution, assumes presence of the expressed will of the last. Researchers notice, that item 313 GK the Russian Federation allows to allocate such subjective bases of execution of the obligation with the third party, as: will of the debtor on execution of its obligation by the third party; will of the third party on execution of the obligation of the debtor; will of the creditor on acceptance of execution of the obligation of the debtor by the third party. [80]

There is a question on possibility of use of such agreement with application of a design of the third party beneficiary contract. The analysis of norms of a positive law leads to a conclusion that such design cannot be considered from the point of view of the contract concluded in favour of the third party, in interrelation of the item of item 313 and 430 GK the Russian Federation. At making contract in favour of the third party (the creditor in the given legal relation), the creditor would have a right to demand from the execution third party to own advantage, no less than the right to refuse execution reception under such contract. At putting on of execution of the obligation in which relation such putting on, on the third party is supposed, the creditor has no right to demand execution from the third party and, according to positions of item 1 of item 313 GK the Russian Federation, cannot refuse acceptance of appropriate execution. Moreover, the debtor and the third party can terminate at any moment the agreement on putting on of execution of the obligation, without dependence from will of the creditor, unlike the rules fixed by norm about third party beneficiary contracts. The form of the agreement on putting on should meet the general requirements about the form of transactions, and is not connected with the contract form between the debtor and the creditor. Putting on of execution of the liability can be carried out and by loan making contract between the third party and the debtor with instructions on transfer of money resources to the third party. Such condition of the real contract of a loan does not contradict the current legislation in this connection transfer of extra means to the account of the third party at the desire of the borrower or according to treaty provisions is appropriate transfer of object of a loan. [81] at the same time, in a considered situation the third party has the interest which distinct from repayment is of the existing legal bond between it and the debtor.

In practice execution of the assigned duties can be carried out in various forms. At execution of the assigned duty the third party, for example, can specify in corresponding documents (waybills, certificates of acceptance and others), that execution is made for the debtor, at all not specifying on the basis of what there was such putting on. According to the rules established by article 313 GK the Russian Federation, the creditor is obliged to accept the execution offered for the debtor by the third party if obligation execution is assigned by the debtor to the specified third party. Such legislative design in a part «the creditor is obliged to accept the execution offered for the debtor by the third party» allows to talk not only about presence of a duty of the creditor to accept execution, but also about presence at the debtor of the right to assign obligation execution to the third party.

Considering the case connected with dispute on possibility of transfer by the third party of the deposit on the prisoner between the creditor and the debtor to the contract, YOU the Russian Federation in the Decision of Presidium from 28.10.2010 № 7945/10 has specified, that the debtor has the right to execute the obligation which is not demanding personal execution, is independent or, not enquiring the consent of the creditor to transfer execution to the third party. Further the court has noticed, that to the right of the debtor to assign execution on the third party korrespondiruet a duty of the creditor to accept corresponding execution [82]. It is impossible to agree With this statement. Obshchepriznanno, that to each right korrespondiruet the legal obligation. [83] however the right and the legal obligation korrespondirujut each other only in the event that they constitute the maintenance of one legal relation. Thereupon it would be incorrect to talk about legal relation existence on execution of the putting on existing separately from the basic legal relation in which as the creditor the debtor acts possessing the right of putting on of the obligation to the third party, and the debtor - the creditor under the basic obligation, bearing korrespondirujushchuju to the right of the debtor a duty on the acceptance of execution, offered by the third party. If to consider «the right of the debtor to assign execution on the third party» within the limits of independent legal relation in such legal relation the third party is obliged to accept putting on, i.e., is actually obliged to assign to itself a duty on discharge of duty of the debtor. If to consider execution putting on as the obligation as its object active actions on execution putting on act. At the same time, as from the point of view of legal definition of object of the obligation as active actions on thing transfer, service rendering, work performance, or acts of omission [84], actions on «execution putting on» do not fall under this definition and cannot be its object. The above-stated allows to come to conclusion that legal relations on execution putting on on the third party cannot exist.

As it is marked in the literature, legal obligations are connected with rights, lawful interests in many respects lean, refer to rights, exist with them practically in one plane. [85] however the right to putting on of execution and a duty to accept execution exist in different planes of legal relations and reflect a being of the legal phenomena different in the nature. The right to execution putting on to the third party represents the possibility entering into a legal status of the debtor practically in any civil-law obligation and cannot be the right.

The duty of acceptance of appropriate execution by the creditor is the obligation which is a part of the creditor civil-law status, and non-observance of this duty forms delay on the party of the creditor. According to item 406 GK the Russian Federation, 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. In spite of the fact that the specified norm does not mention a duty the creditor to accept the execution offered by the third party, the duty on acceptance of the appropriate execution offered for the debtor is a part of a legal status of the creditor,

As, according to item 1 of item 313 GK the Russian Federation, the creditor is obliged to accept the execution offered for the debtor by the third party if obligation execution is assigned by the debtor to the specified third party. Fixed in item 3 of item 313 GK the Russian Federation position that «the creditor is not obliged to accept execution» represents not that other, as fastening to the creditor of the right to application of measures of operative influence (one of kinds of operative sanctions), connected with refusal to make certain actions in interests of the faulty counterpart, so-called «measures otkaznogo character». [86] It is possible to conclude, that item 3. The item 313 GK the Russian Federation fixes the right of the creditor to application of measures of operative influence in the form of refusal of acceptance of inadequate execution as in the event that from the law, other legal acts, conditions of the obligation or its being the duty of the debtor follows to execute the obligation personally, any other person cannot be considered as the person ought for execution that will entail inadequate obligation executions which acceptance the creditor can refuse. Thus, we can come to conclusion that categories «the right for execution putting on», from the point of view of elements of the maintenance of legal relation, does not exist as to it does not resist, not korrespondiruet, any legal obligation. Thereupon the Decision of Presidium YOU the Russian Federation № 7945/10 on business № А40-66444/09-3-599 is represented from 28.10.2010

Inappropriate to a being of considered legal relations.

Execution putting on to external signs is similar to delegation, however they are necessary for differentiating. Specificity of a design of putting on of execution of the obligation on the third party consists that such person does not enter the contractual obligation as its party and does not become the party of the contract [87]. At putting on of execution of the obligation, there is no delegation and, accordingly, unlike delegation, putting on does not demand the consent from the creditor, and from the last, according to item 1 of item 313 G the Russian Federation exists a duty to accept such execution. Execution putting on is supposed without the consent of the creditor owing to that the agreement on putting on does not mention the rights of the creditor as relations on putting on are independent of the basic contract and the obligation, and exist only between the debtor and the third person. Delegation without the consent of the creditor is void. [88] Besides, delegation is not connected with discharge of duties of the debtor while at execution putting on there is a repayment of duties of the debtor by the third party.

The fact of putting on to bring to the notice the creditor in writing with identification of the third party which will make execution is represented preferable. However, in activity of participants of the civil circulation, data on putting on of execution of the obligation on the third party not always happen are informed to the creditor properly. Thereupon there is a question - whether the duty lays on the creditor to make sure, whether took a place putting on of execution of the obligation on the third party? Under the general rule, proceeding from fixed in item 1 GK the Russian Federation conscientiousness presumptions, the creditor is not obliged to check, whether has been assigned to the third party of execution of the obligation if he does not know or should not know about the circumstances interfering such putting on, or he did not know and should not know about absence of putting on.

The higher degrees of jurisdiction recognise that the law does not allocate the diligent creditor, powers (competences) on check of, whether took a place putting on by the debtor of execution of the obligation on the third party.

So, the Supreme Arbitration Court in the decision on concrete business has specified, that according to point 1 of article 313 GK the Russian Federation the law does not allocate the diligent creditor who does not have material interest in research developed between third party and the debtor of relations, in an establishment of the motives which have induced the debtor to entrust execution of the obligation to other person, powers on check of, whether putting on by the debtor of execution of the obligation on the third party really took place. [89] thus cannot be recognised inadequate execution to the diligent creditor who has accepted execution offered by the third party if the creditor did not know and could not know about absence of the fact of putting on of execution of the obligation on given execution the third party. It proves to be true the developed judiciary practice, thus courts notice, that in this case execution the rights and legitimate interests of the debtor should not be broken. [90] However such position obviously mismatches neither to the law, nor market economy realities. YOU the Russian Federation has fairly specified, that the execution made by the third party, interests of the debtor should not be broken. To avoid infringement of interests of the debtor, the diligent creditor has the right to make sure that at the acceptance of execution, offered the third party, will not break the rights of the debtor. Besides, the diligent creditor is obliged to accept execution, according to item 1 of item 313 GK the Russian Federation only in the event that such execution has been assigned to the third party by the debtor. Thereupon it is necessary to define limits of conscientiousness of the creditor, having delimited them from negligence. The creditor has a duty to make sure available a legal ground of execution of the obligation the third party for the debtor, to be convinced that the obligation is executed by the appropriate person [91]. Otherwise there can be a situation at which execution for the debtor has been made by mistake, however the third party, proceeding from sense of decisions YOU the Russian Federation, cannot obtain on demand unjust enrichment at the creditor. In case of execution of this duty, the creditor it is necessary to consider diligent. At lawful, diligent, acceptance of execution by the creditor, to it positions of norms GK the Russian Federation about unjust enrichment, even in case of the subsequent ascertaining of absence between the debtor and the third party of the agreement on putting on of execution of the obligation as in this case, the creditor operating honesty, does not have an unjust enrichment cannot be applied. At the same time, the third party has an incorporeal right of return of unjust enrichment from the debtor in the basic obligation as last without statutory, other legal acts or the transaction of the bases has saved up property at the expense of the third party and thereof, it had a duty to return unjust enrichment.

Thus, interest of the third party in repayment of the existing legal bond between it and the debtor in the basic obligation is reached at realisation of the actions directed on discharge of duty of the debtor in the basic obligation, at putting on on the third party of execution of the obligation.

Special interest from the point of view of obligation execution is represented by limits of putting on of execution of the obligation on the third party. As already it was marked above, according to item 3 of item 313 GK the Russian Federation, the creditor is not obliged to accept the execution offered for the debtor by the third party if from the law, other legal acts, conditions of the obligation or its being the duty of the debtor follows to execute the obligation personally. Thus, the legislator supposes putting on of the obligation by the debtor on the third party at preservation of a duty of the creditor to accept such appropriate execution only when from the law, other legal acts, conditions of the obligation or its being the duty does not follow to execute the obligation personally. It is necessary to notice, that the legislator does not limit a circle of the obligations which execution can be assigned to the third party, however, it is impossible to approve, that it is possible to assign execution of absolutely any obligation to the third party. It is represented, such putting on can be carried out including concerning non-contractual obligations, for example, obligations arising from unjust enrichment or property torts as to the creditor it is indifferent who exactly will make execution of the arisen promissory note [92]. However it is impossible to assign the discharge of duty, arisen of restitutsionnogo legal relations as a subject of this legal relation are actions on return of the irreplaceable specific thing which are in possession with one of the parties of the void transaction (the possession restitution). [93] However in case of occurrence of legal relations of the compensatory restitution, execution arisen the liability or parts it is long it is possible to assign to the third party.

From the contract or an obligation being the duty of the debtor personally can follow to execute the obligation, and impossible putting on of execution of the obligation on the third party without the consent of the creditor, and in case of putting on of such obligation without the consent of the creditor in that case is represented, the last does not have duty to accept the execution offered by the third party let even it and will be ought on an execution subject. To obligations, the impossibility of which putting on of execution is connected with their nature, it is necessary to carry such obligations as the obligations arising from the contract of rendering of some services, for example, tutorial, as this obligation can be carried to obligations of strictly personal character; also it is possible to carry the obligation arising from the contract of the author's order as the person of the debtor has essential value for the creditor to such obligations. The Russian Federation about storage under the general rule is provided by positions GK a duty to execute the obligation personally, therefore, under the general rule to transfer to storage to the third party a thing including to assign execution, the keeper has not the right. [94] contractual obligation, the prisoner by results of the auctions if such contract can be concluded only by tendering, should be executed by directly debtor if other is not statutory.

Thus, execution putting on is supposed only concerning those obligations, execute which any personable person can. Accordingly, it is impossible to assign execution of the obligation of strictly personal character to the third party. As an example the contract on performance of research works can serve. According to item 1 of item 770 GK the executor is obliged to make all works personally. Accordingly attraction to third party execution is admissible only with the consent of the customer. [95] also not each subject of law possesses creative talent. Thereupon it is necessary to agree with V.S.Tolstoy's opinion on impossibility to assign on the third party discharge of duty to write a work of art. [96] If the creditor has the right to demand personal execution of the obligation by the debtor, the execution made by the third party without the consent or approval, cannot admit ought as appropriate execution of the obligation should be made including the appropriate executor. At the same time, there are no obstacles in acceptance of execution of the obligation which the debtor as the creditor has only the right to refuse acceptance of such execution should execute personally, on it does not lay duties to refuse in any case the acceptance of execution made by the third party for the debtor for lack of the bases of putting on of execution.

The law does not establish the list nedenezhnyh which execution can be assigned to the third party the debtor. Taking into consideration the general principle of freedom of the contract, execution bolshej is admissible to assign parts of the obligations which are not monetary, on the third party under condition of observance of a principle of appropriate execution. First of all it concerns the obligations connected with realisation of enterprise activity. So, execution putting on on the third party of the contractual obligation of purchase and sale, delivery, transportation, transport expedition etc. However as it was already marked is admissible, execution not all nedenezhnyh can be assigned to the third party. For example, according to the item 535 GK the Russian Federation, under the contract of contracting the manufacturer of agricultural production undertakes to tell grown up agricultural production (made) by it to the buyer that allows to agree with the statement that that production which is made or grown up directly by the manufacturer of agricultural production in its own economy can be realised only. [97] thereupon it is represented impossible to assign execution of the contractual obligation of contracting for the third party.

Putting on of the negative obligation as the obligations which subject is abstention of the debtor from fulfilment of concrete actions, [98] it is represented impossible in view of the special nature of the given obligations.

It is impossible to present a situation in which the debtor would assign a duty to the third party to refrain from those actions from which he is obliged to refrain. Besides, an argument in favour of such impossibility is strictly personal character of such obligations.

Execution putting on on the third party of any contractual obligation of monetary character [99] as money is special object of the civil rights is obviously possible: they concern patrimonial things, possess maximum oborotosposobnostju, is absolute zamenimy, carry out function of a universal remedy of payment in this connection are obligatory to reception under their denomination in all territory of the Russian Federation. This circumstance was marked still by K.P.pobedonostsev, noticing, that when business goes about money, about quantities, execution can be made the third party. [100] Being a thing patrimonial, delimoj, mobile, money can replace any other object of property rights. [101] besides, for the creditor, as a rule, has no value the person who has executed the liability.

Specified above property are characteristic first of all for the liability which object are cash money resources (a lawful instrument of payment) as the certain absolute of money expressing to the full their essence from the point of view of the classical economic theory. Whether however the specified properties for a lawful instrument of payment of the foreign states are characteristic? There is a natural question, whether the creditor to accept execution of the liability made by the third party both in connection with putting on, and under own initiative, not in debt currency is obliged. The general rule concerning possibility of use of a foreign currency for liability execution is fixed in the item 317 GK the Russian Federation according to which liabilities should be expressed in roubles, and foreign currency use, and also payment documents in a foreign currency at realisation of calculations in territory of the Russian Federation under obligations is supposed in cases, is perfectly in order and on the conditions defined by the law or in an order established by it. Interpretation of this norm leads to two conclusions: in - the first, under the general rule the liability is the obligation which currency is the rouble as a lawful instrument of payment in the form of cash or non-cash money resources; secondly, about legislative restriction of possibility of use for execution of the liability of a foreign currency. Hence, the third party can only suggest to make to the creditor execution in a foreign currency, thus last is not obliged it to accept. Moreover, the creditor has the right to accept such execution only in the event that requirements of the currency legislation thus will not be broken.

Questions arise and at execution of the liability by the third party with use of electronic money resources. Electronic money resources on sense which gives them the Federal act from June, 27th, 2001 № 161-FZ «About national payment system», represent money resources which are preliminary given by one person (the person who has given money resources) to other person, considering the information on the size of the given money resources without opening of the bank account (party liable), for execution of liabilities of the person who have given money resources, before the third parties and in which relation the person who has given money resources, has the right to transfer orders exclusively with use of electronic instruments of payment [102]. From the given definition of electronic money resources follows, that they represent not independent object of the civil rights, and only the mechanism of transfer of money resources from one person to another without opening and use of bank accounts. [103] however, whether probably use of the given mechanism for liability execution, for example, in case the debtor has admitted delay of its execution, at an unconditional duty of the creditor to accept such execution? It is represented, that is not present, as, first, appropriate execution which the creditor is obliged to accept, means by itself transfer of that object and that way with which the parties have agreed. Secondly, at the creditor can not be technical possibility to accept the execution offered by the third party. For example, absence of an electronic purse at the creditor will entail absence of a duty to accept distinct from provided by the contract on a way execution - by use of the mechanism of transfer of electronic money resources. The same concerns and repayment of a monetary debt by the third party expressed initially in cash, at absence at the creditor of possibility for use of calculations by non-cash money resources - so, it is impossible to force the creditor to accept execution of the monetary debt expressed in a cash lawful instrument of payment, by their transfer into its account in case of that absence. Thus in itself absence of the account will not entail delay on the party of the creditor.

Thus, the unconditional duty to accept execution of the third party in case of execution putting on, and also by rules pp 2. Item 2 of item 313 GK the Russian Federation arises at the creditor only in case of execution by the liability third party in strict conformity with the appropriate way established by treaty provisions or the law, regulating an order of granting of money resources, and in case of absence of such conditions - at execution of the liability with use of cash, in particular, a cash lawful instrument of payment.

Putting on of execution of the civil-law obligation which has arisen owing to property tort as to the party of this tort liability it is indifferent who exactly will indemnify this loss is quite admissible. Besides, in spite of the fact that such obligations as alimentnye and obligations owing to injury of a life and to health, are connected with the person of the debtor, have strictly personal character [104], and mean their execution by directly debtor, putting on of discharge of duty on repayment of the debt which has arisen from such obligation, on the third person is quite admissible. Also the third party can extinguish debts of the debtor under the executive document, including as execution of the assigned obligation. [105]

It is possible to allocate also the criteria defining possibility or impossibility of putting on of execution of the obligation on this or that subject as the third party. Besides obvious impossibility of putting on on the incapacitated full age person it is impossible to assign execution to the obligation third party for which execution licence presence is necessary, in the absence of that at the third party. Impossibility of putting on of execution of the obligation on the incapacitated person it is connected by that owing to the mental derangement, such person cannot be the full participant of civil-law relations as from his name in all transactions the trustee acts. Besides, it is impossible to assign obligation execution to the person who is not a member of the self-adjustable organisation in case membership it is recognised by the law by obligatory for realisation of such activity. At putting on of execution of the obligation the condition about legal independence of the third party is important. So, obviously, there will be no relations of putting on of execution of the obligation on the third party in the event that the legal body will charge to the branch to execute the obligation as according to item 55 GK the Russian Federation, representations and branches are not legal bodies, and operate on behalf of the legal person who have created them on the basis of the positions approved by it. As marked E.A.Flejshits, each branch is the finished, capable enterprise to quite independent functioning, which, however, "independent", but not a "sovereign" part of the whole. [106] thus, putting on of execution of the obligation on branch is represented impossible owing to that it is represented itself(himself) a part of the legal person. The branch can execute the obligation on the basis of instructions of the legal person who have created it, operating thus is direct as the legal person, not being the third party in relation to the contract.

Directly character of the contract concluded by the parties is connected with subject structure of legal relation also. So, it is obvious, that it is impossible to assign to the third party a duty on payment of the state contract as the customer under the state contract is the subject, authorised to accept budgetary obligations according to the budgetary legislation of the Russian Federation on behalf of the Russian Federation, the subject of the Russian Federation or municipal union [107]. Physical persons are not subjects of account obligations as, according to the Budgetary code account obligations bear exclusively the Russian Federation, the subject of the Russian Federation and municipal unions [108].

Thus, it is possible to allocate following limits of putting on of execution of the obligation for the third party: the limits defined by a being of the obligation; limits, statutory; subject limits. Execution putting on is supposed only concerning those obligations, execute which any personable person can - liabilities and the majority concern such obligations nedenezhnyh.

As the third party is not the contract party, till the moment of appropriate execution of the obligation the third party the creditor has available all spectrum of the legal means necessary for reception of appropriate execution from the debtor. It is represented, that till the moment of execution by the obligation third party all requirements of the creditor should be turned directly to the debtor as to the party of the contract and the obligation party, irrespective of putting on presence about which existence the creditor can and not know. Thereupon regulation in item 6 of item 313 GK the Russian Federation responsibility of the third party for inadequate execution nedenezhnogo the debtor is remarkable. According to "norm-misunderstanding" [109] items 6 of item 313 GK the Russian Federation, the third party bears responsibility before the creditor for lacks of already made execution of the obligation which are not monetary, hence, till the moment of appropriate execution of the obligation,

Responsibility for third party acts or omissions is born by the debtor. Such position is fixed in order to avoid evasion by the debtor from appropriate execution of the obligation as, for example, the debtor can assign execution to the third party which declares subsequently itself the bankrupt. According to this point, the third party, not being the obligation party between the creditor and the debtor, bears provided by the contract or the law responsibility for execution lacks nedenezhnogo. However the fixed rules disperse from the developed doctrine and practice according to which between the third party to which execution is assigned, and the obligation does not arise the creditor, therefore a party liable there is a debtor. [110] it is proved, considering, that the obligation liability of infringement under the general rule is born by the parties, and execution of the obligation by the third party is not change of persons in the obligation. Hence, responsibility for inadequate execution including the third party, obligations it should be assigned to one of the obligation parties, admitted its infringement, in this case - on the debtor. So, the Supreme Arbitration Court on the basis of positions of item 516 GK the Russian Federation and United Nations Conventions «About contracts of the international purchase and sale» recognised as wrongful arguments about absence of a duty of the buyer to pay the goods if it has notified the supplier on putting on of execution of the obligation on goods payment on the third parties [111], and the Supreme Court of the Russian Federation has enacted, that according to item 313 GK the Russian Federation for quality of the regenerative repair made by servicing deport (third party) in a direction of the insurer within the limits of insurance indemnity under the contract of voluntary insurance of property, responsibility are born by the insurer. [112]

The special provisions regulating similar legal relations, also make responsible for lacks of the execution made by the third party the debtor. So, under the contract building podrjada the general contractor, according to item 706 GK the Russian Federation, bears responsibility for consequences of default or inadequate execution of obligations by the subcontractor which is the third party in relation to the prisoner between the general contractor and the creditor to the contract before the customer, and also bears responsibility before the subcontractor for actions of the customer. [113] similar rules are established by the legislator concerning the contract of transport expedition according to which putting on of execution of the obligation on the third party does not relieve from the forwarding agent of responsibility before the client for execution of a contract. Such rules completely corresponds to the law and a debt relationship being, including item positions 308 GK the Russian Federation according to which the obligation does not create duties for the persons who are not participating in it as the parties (for the third parties). According to the English right, the debtor also bears responsibility before the creditor for inadequate execution of the obligation made by the third party. For example, in business v. Reavell's Garage, respondents have transferred to the third party to repair the car of the claimant. The third party work has been made by inadequate image, however the court has enacted, that responsibility before the creditor is born by the debtor. [114] according to § 278 GGU, the debtor is responsible for fault of the legal representative, and also persons with which it involves in obligation execution, in the same volume, as for the fault. [115]

Norms of the domestic legislation (item 403 GK the Russian Federation) also make responsible the debtor for default or inadequate execution of the obligation by the third parties to which execution if by the law it is not established has been assigned, that responsibility bears the third party being the direct executor. However now the tendency to comprehensive putting on of responsibility on the third party, as, at first sight, position of point 6 of article 313 extremely widely is observed.

The maintenance of norms of the current legislation pushes to a conclusion, at execution putting on nedenezhnogo the debtor on the third party, the direct responsibility is assigned to the last before the creditor who is representing itself as the party under the contract. We will underline, that positions of item 6 of item 313 are generated imperatively and do not suppose deviations from them. Unlike a situation arising during existence of the previous edition of item 313 GK the Russian Federation in which at the creditor actually existed two persons whom it can make the demands arising in connection with inadequate execution of a contract (the debtor and the third party), according to operating edition of article 313, the creditor can show the requirements only nenadlezhashche executed nedenezhnoe to the third party. However, as the creditor is not responsible for a third party choice, does not accept participation in a choice the debtor of the person to which last will assign the obligation execution, all risks are born by the debtor under the basic obligation, including risk of inadequate execution by the third party of a duty of the debtor. Contractual responsibility of the third party is excluded for the reason, that it is not the obligation party (the contract party). So, according to item 1 of item 393 GK the Russian Federation the debtor is obliged to pay to the creditor the damages caused by default or inadequate execution of the obligation. Hence, the responsible person before the creditor for the inadequate execution made by the third party to which execution has been assigned, the debtor can be exclusive. As the third party is not the contract party between the debtor and the creditor, responsibility of the third party is connected with the fact of compensation by the debtor of losses which were incurred by the creditor in connection with inadequate execution by the third party of the duty assigned to it. After compensation by the debtor of the losses connected with inadequate discharge of duty by the third party, the debtor can make the demand about compensation of the suffered expenses to the third party. As a result, it is possible to come to conclusion, that if the debtor has assigned execution to the third party, it should be responsible for actions of the last as for own by rules of item 403 GK the Russian Federation. Thus position of given article that the law responsibility of the third party which has executed the assigned obligation can be provided, is not the reference to item 6 of item 313 GK [116].

Now the given blank is partially eliminated by judiciary practice. So, the Supreme Court of the Russian Federation has enacted, that, proceeding from the interconnected positions of point 6 of article 313 and article 403 GK the Russian Federation in a case when execution has been assigned by the debtor to the third party, for default or inadequate execution of the obligation by this third party before the creditor the debtor if other is not statutory answers. [117] Supreme Court of the Russian Federation has left without consideration a question on distribution of positions of item 6 of item 313 GK the Russian Federation on cases when the third party has executed a duty of the debtor for lack of execution putting on. It is represented, that responsibility the third party which under the initiative has executed nedenezhnoe for the debtor, with a view of protection of interests as in that case should bear the creditor, and the debtor. Thus, norms of point 6 of the item 313 GK the Russian Federations extend only on cases when the third party has executed nedenezhnoe the debtor under the initiative for lack of putting on [118].

Proceeding from stated, the Russian Federation it is necessary to recognise a design of operating edition of item 6 of item 313 GK doubtful, and, hence, unliable to application as contradicting liability law substantive provisions. Thereupon it is necessary to state point 6 of article 313 GK the Russian Federation in the following edition: «For inadequate execution by the third party of a duty of the debtor who is not monetary, the debtor bears responsibility before the creditor in case it had been assigned execution to the third party».

Norms of the legislation provide the adverse title to execute the obligation of the debtor by entering of a debt into the deposit of the notary. Taking into consideration the legal nature of entering of a debt in the deposit of the notary, it is a question only of liability execution as, according to item 327 GK the Russian Federation, the debtor can place exclusively money and securities in the deposit, and the notary is obliged to accept them. Thus according to item 87 of Fundamentals of legislation about a notariate, acceptance in the deposit of sums of money and securities is made by the notary in a place of execution of the obligation. [119]

Inconsistent fastening of possibility of execution of the assigned obligation by carrying out of offset with observance of rules of 410 articles GK the Russian Federation is represented. Argumentativeness of this position consists that, according to article 410 GK the Russian Federation, offset is spent under the statement of one of the parties. The third party as already it has been specified above, is not the party in the obligation between the creditor and the debtor. It is possible to assume, that the legislator has entered this rule as an exception of the general rule of article 410 GK the Russian Federation. The same objection can be put forward and concerning possibility entering by the execution third party into the deposit of the notary as in the deposit of the notary brings execution the party obligations (debtor). Thus judiciary practice of the Russian Federation does not allow the debtor to take advantage of the offset right to the third party. So, YOU the Russian Federation has fairly noticed, that the debtor has not the right to declare offset of the counter homogeneous requirement to the person to whom owing to point 1 of article 313 GK the Russian Federation execution of the obligation in favour of the debtor as last has no counterclaim to such person is assigned. [120]

The creditor is obliged to accept appropriate execution from the debtor, and also to make with a view of assistance to execution other actions. It bears the same duty concerning the third party to which execution is assigned. The duty of acceptance of execution arises only in the event that execution was ought - i.e. such which has been carried out in an appropriate place, properly, to the appropriate person and the appropriate person. [121] otherwise, duties to accept executions on the party of the creditor does not arise. Thus, it is possible to come to conclusion that execution by the obligation third party at putting on represents one of ways of appropriate execution of the obligation [122].

Interest is represented by the further relations between the third party which has fulfilled assigned duties, and the debtor in the basic obligation. Position of item 5 of item 313 GK the Russian Federation, providing transition of the rights of the creditor in the basic obligation to the third party which has executed the obligation for the debtor, by rules of item 387 GK about transition of the rights of the creditor to other person Is represented insolvent. Actually, the legislator this norm change of persons in the obligation on the basis of the law is meant. Possibly, this rule is established by the legislator on purpose to protect the rights and legitimate interests of the third party which can execute the obligation of the debtor as on the basis of putting on, as a rule, representing the agreement between the third party and the debtor, and under own initiative. It is thus strictly regulated, that in case of transition to the third party of the rights in a part, they cannot be used it to the detriment of the creditor, in particular such rights have no advantages at their satisfaction at the expense of the providing obligation or at insufficiency at the debtor of means for satisfaction of the requirement in full. It is caused by cases of abusings at transition of the rights of the creditor to the third party at execution of the obligation of the poor debtor by the last. According to item 5 of item 313 GK the Russian Federations can arise situations, including, and plurality of persons on the party of the creditor as the third party which has partially executed a duty of the debtor, becomes the full creditor in the basic obligation. However such legislative guideline is represented to inappropriate bases of a liability law, and also a being of the design of the third party. According to researchers, at execution by the obligation third party, it will not stop, as it occurs according to norms of item 1 of item 313 and 408 GK the Russian Federation, and there will be a transition of the rights of the creditor to the third party owing to the law to preservation of this obligation though it and represents defined «legal anomaly» [123] as, under the general rule, the obligation stops execution [124].

However the obligation, duties in which are completely executed for the debtor by the third party, stops as the obligation executed by the debtor. It is obvious, that with execution (termination) of a duty, stops and korrespondirujushchee the incorporeal right to the debtor. Disappearance of one of obligation elements, in this case maintenances, in connection with its execution repays this obligation. Hence, fulfilment by the third party of actions, both as item 1 of item 313 GK the Russian Federation, and as item item 2 313 GK the Russian Federation, directed on discharge of duty of the debtor before the creditor in full, ceases a subjective duty and repays the legal bond (ceases the obligation) between the creditor and the debtor, and as at the termination of the obligation it ceases to exist, that leads to otpadeniju originally established obligation as concrete kind of obligations communications [125], means, it is impossible to talk about change of the person on the party of the creditor because the initial obligation has disappeared, having stopped [126]. If to admit reliability of a design of item 5 of item 313 GK the Russian Federation, means, it is necessary to say and volume, that, at appropriate execution by the third party of the obligation of the debtor, continues to exist not only the obligation ceased by execution, but also the contract. In other words, the third party, replacing the person on the party of the creditor in the obligation, replaces also the person as the contract party.

Hardly such mechanism of change of subject structure corresponds to the nature of the civil-law contract.

Besides, in favour of unauthenticity of such position the situation of execution of the obligation as the third party owing to the prisoner between it and the debtor the loan for consumption can serve one of arguments. At part performance if to follow positions of article 313 GK the Russian Federation, the debtor has an extra obligation to the third party, and also to the third party pass the rights and duties of the creditor in the obligation already existing between the debtor and the creditor, thereby generating plurality of persons on the party of the creditor along with doubling of a debt of the debtor. At full execution of the obligation by the third party, according to the logic of item 313 item 5, such third party replaces the creditor in the obligation, thus the debtor still has debt in the basic obligation, and also there is a debt from the extra obligation. Such state of affairs is represented mismatching the legal validity. The foreign doctrine and practice also follows these by. So, according to Principles of the European contract right, execution by the third party releases the debtor from obligations (Article 7:106). [127] This position testifies that the initial obligation is repaid, or its cumulative size changes, and the further relations between the third party and the debtor develop within the limits of the new promissory note.

Taking into consideration the aforesaid, it is possible to come to conclusion about lozhnosti positions of item 5 of item 313 GK the Russian Federation as with reference to the general bases of execution of the obligation the third party as putting on, and to the cases provided by item 2 of item 313 GK the Russian Federation: positions of item 5 of item 313 GK are inapplicable and concerning third party participation on the party of the debtor when the third party has other valuable interests which are distinct from repayment of the debt to the debtor in the basic obligation. The position of the Supreme Court of the Russian Federation on this question, stated in the Decision of Plenum of the Supreme Court of the Russian Federation from 22.11.2016 № 54 «About some questions of application of general provisions of the Civil code of the Russian Federation on obligations and their execution» is interesting. In item 21 it is specified, that if obligation execution has been assigned by the debtor to the third party consequences of such execution in relations between the third party and the debtor are regulated by the agreement between them. According to point 5 of article 313 GK the Russian Federations in the absence of such agreement to the third party which has executed the obligation of the debtor, pass the rights of the creditor according to article 387 GK the Russian Federation. [128] discrepancy of this position is expressed, first, that item 5 of item 313 GK the Russian Federation, being obviously the mandatory provision, excludes possibility of regulation of destiny of the obligation the agreement of the parties; and, in - the second, to discrepancy to positions of a liability law of norm of item 5 of item 313 GK the Russian Federation about transition of the rights and duties under the obligation executed properly to the third party. It is possible to conclude, that at discharge of duties by the third party for the debtor, the obligation core stops, or its cumulative size decreases, thus there is no change of persons in the obligation. The fact of the termination of the basic obligation acts as a legal ground of occurrence of the new obligation in which the third party is transformed to the creditor, and the debtor of the basic obligation [129] becomes the debtor. Such obligation will have the contractual nature as, actually, arises in connection with execution by the third party of the agreement on execution putting on. In a case if the third party fulfils duties of the debtor on purpose to cease the obligation existing between them such obligation will be extinguished. However in case of execution of the obligation as item 2 of item 313 GK the Russian Federation, the newly arising obligation can have and kondiktsionnyj character. Moreover, discrepancy to market realities of the given norm is shown that, at change of persons in the obligation, the maintenance of this obligation remains invariable that can lead to deterioration of position of the diligent third party [130].

Thus, interest of the third party in repayment of the existing legal bond between it and the debtor in the basic obligation is reached at realisation of the actions directed on discharge of duty of the debtor in the basic obligation, at putting on on the third party of execution of the obligation. Putting on can represent the agreement between the debtor and the third party, according to which the third party (being the debtor in this concrete agreement) undertakes to execute the obligation existing between the debtor and the creditor. Thus such agreement cannot be considered as the contract concluded in favour of the third party. At putting on of execution the third party fulfils duties of the debtor in the basic obligation, remaining thus behind frameworks of its subject structure. Discharge of duty of the debtor does not attract transition of the rights of the creditor to the third party, as a result of such execution or there is a new civil-law promissory note between the third party and the debtor, or the auxiliary obligation between the third party and the debtor stops. In case of execution by the third party of a duty of the debtor owing to putting on, for inadequate execution nedenezhnogo, the debtor on rules of item 403 GK the Russian Federation, norms of point 6 of item 313 GK the Russian Federation according to which for inadequate execution nedenezhnogo the third party answers answers, extend only on cases when the third party has executed nedenezhnoe the debtor under the initiative for lack of putting on.

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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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