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§ 1. Concept n ways of maintenance of execution of obligations

Any obligation in itself yet does not guarantee fulfilment by the debtor demanded action in favour of the creditor. Even at use by the creditor of measures of responsibility concerning the defaulter at the last it can not appear necessary for satisfaction of requirements of property.

For provisional remedy of valuable interests of the creditor, reception of guarantees of appropriate execution by it the debtor of the obligation uses special measures obespechitelnogo the character, provided by the legislation or the contract of the parties. Such measures are characterised by the property maintenance and aiming at prompting of the debtor to execution of the debt (and not just on its punishment as offender). They have additional (accessory) character in relation to the main obligation provided with them that is why can provide only valid, i.e. actually existing obligations (not stopped, for example, in connection with the expiration of limitation of actions). Hence, they represent provided by the legislation or the contract special measures of the property character stimulating appropriate execution of obligations by debtors by an establishment of additional guarantees of satisfaction of requirements (interests) of the creditor.

These special obespechitelnye measures are called as ways of maintenance of execution of obligations.

With introduction in action since January, 1st, 1995 of a part of the first GK the Russian Federation the spectrum of ways of maintenance of execution of obligations has extended and represents effective enough and various mechanism, allowing to achieve the sense of duty of the parties at realisation of their rights and duties.

GK the Russian Federation contains the list in chapter 23 from six such measures

(Ways). In 53 articles GK (with 329 on 381) the legal regime of their realisation is in details regulated. Besides, the legislator does not do this list exhaustive (closed), establishing, that the law or the contract can

To be provided and other ways (this position was absent in Bases of the civil legislation of 1991). As an example it is possible to result determinate sum deposition - the deposit similar with way of the security for cost in the Arbitration code of practice (agrarian and industrial complex item 77). To practice cases when the creditor for maintenance of execution of obligations receives a certain sum of money which addresses in the property of the creditor in case of infringement of obligations by the debtor from the debtor are known, but is not a part of the subsequent payments and comes back to the debtor after appropriate execution of obligations.

Execution of obligations can be provided with following measures: the penalty, pledge, deduction of property of the debtor, the guarantee, the bank guarantee, the deposit.

It is necessary to notice, that such ways as the penalty, pledge, the guarantee and the deposit, are traditional. As to two others - the bank guarantee and deduction here business is differently. Property deduction

The debtor way of maintenance of execution of obligations absolutely new to the domestic legislation. To the bank guarantee in the Soviet legislation there were certain metamorphoses in which result in section "Liability law" of Bases of the civil legislation of the Union of the USSR and republics of 1991 the guarantee as a way of maintenance of obligations has been identified with the guarantee (item 6 of item 68 of Bases).

Now, being

"Rehabilitated", the bank guarantee is independent way of maintenance of obligations.

It is necessary to notice, that obligation maintenance with any of the resulted ways also creates debt relationship between the creditor and the debtor (or other person who provides the obligation of the debtor). But this obligation of a special sort. Its specificity consists in additional (accessory) character in relation to the provided obligation (to the main thing,

To the core). This feature obespechitelnogo obligations,

There is its additional character in relation to the core, is shown in many moments which have found reflexion in GK and other legislation. In - the first, invalidity of the basic obligation involves invalidity of the obligation providing it and, on the contrary, invalidity of the agreement on maintenance of execution of the obligation does not influence the validity of the basic obligation (subitem 2 and 3 items 329 see). In - the second, obespechitelnoe the obligation follows destiny of the core at transition of the rights of the creditor to other person, for example, at a requirement concession under the basic obligation (item 384). Thirdly, the termination of the basic obligation, as a rule, attracts also the termination of its maintenance (item 352 see, 367 and some other).

However there are also exceptions of this rule. For example, the property which is in pledge, can become a subject of one more pledge in maintenance of other requirements (the subsequent pledge). The subsequent pledge is supposed, if it is not forbidden by pre-contracts about pledge (item 342). At the mortgage (real estate pledge) the concession by the creditor of the rights concerning the mortgage without a concession of the rights under the basic obligation (item 355) is supposed. Special position among ways of maintenance of obligations is occupied with the bank guarantee. The obligation of the guarantor provided here before benefitsiarom does not depend in relations between them on the basic obligation (item 370).

From the point of view of execution ways of maintenance of execution of obligations can be divided into two kinds. It is necessary to carry to the first kind ways at which realisation of execution of the additional obligation does not lead to execution of the basic obligation. It is the penalty and the deposit. It is necessary to carry to the second kind ways at which execution of the additional obligation leads to core execution. It is the bank guarantee, the guarantee, pledge, deduction.

Though penalty and deposit application does not lead to execution of the basic obligation, but they are capable to strengthen influence on the debtor on purpose to force it properly to execute the obligation.

One of widespread ways of maintenance of execution

Obligations the penalty is. It has double value. First, it induces the debtor on pain of approach of adverse consequences properly to execute the obligations taken up. Secondly, is convenient means of simplified indemnification of losses of the creditor caused by default or inadequate execution by the debtor of the obligations. Its efficiency and wide application consists in it with a view of maintenance of treaty obligations. Convenience of the penalty consists that it is collected from the debtor for the fact of infringement of the obligation and consequently does not require the special proofs proving its size.

Rules GK the Russian Federation about the penalty behind some exception remain invariable. 4 articles (330-333) are devoted it.

In new GK, as well as in earlier operating Code of RSFSR of 1964 the same variants of a parity of the penalty and losses are provided. The unique difference consists that these rules about a parity of the penalty and losses are included now not in the head about maintenance of obligations, and in the head about a liability of infringement of obligations.

With introduction in action new GK the Russian Federation has become invalid article 79 GK RSFSR of 1964 which established the reduced 6-month's period of limitation under penalty recovery suits. The aggregate term of limitation of actions on penalty in three years is now established. Nevertheless it is necessary to mean, that the law the special periods of limitation reduced or longer in comparison with aggregate term can be established.

The penalty traditionally carried by ways of maintenance of execution of obligations, nevertheless to the right degree does not carry out the function as such way. This results from the fact that presence at the creditor of the right yet does not mean the penalty, that the debtor can (or will want) to pay really it, and the creditor can realise the right in practice. That is penalty from the defaulter is provided by nothing and not guaranteed to the creditor.

Nevertheless, skilful use of institute of the penalty allows to strengthen its purposeful, selective action for prevention of infringements of obligations, for example, under the credit contract.

In the second way of maintenance of execution of obligations, realisation

Which does not lead, as a rule, to execution of the basic obligation, the deposit is. The deposit under the contract stands out "in maintenance of its execution" (ч.1 item 380 GK the Russian Federation). In it its main appointment consists.

As the way of maintenance of execution of a contract has for an object the deposit first of all to prevent contract default.

The rules regulating consequences of default of the contract, provided with the deposit, remained invariable from the moment of action of the Civil code and have found the embodiment in operating today GK the Russian Federation (item 381 item 2). If the party which has given the deposit, a sum of money brought as the deposit is responsible for obligation default, remains at other party. If the party which has received the deposit is responsible for obligation default, it is obliged to pay to the party which has brought the deposit, the double sum of the deposit.

It is necessary to underline, however, that the named rules are applied only in a situation when the corresponding obligation is not executed by the parties in full, and do not extend on cases of inadequate execution of treaty obligations. However, if inadequate execution had such character, that under the law or treaty provisions it can is equal to default (see, for example, item Z item 723 GK the Russian Federation), the party responsible for this inadequate execution, depending on that, has given it the deposit or has received, loses it or should return doubly.

In practice it is necessary to face incorrect understanding of essence of the deposit. Frequently the party which has paid the deposit (or returned it in the double size), considers itself free from obligations, and the contract, in maintenance

Which the deposit has been paid, terminated. Absolutely unequivocally, that there is a mixture of concepts of the deposit and a compensation (сг.4О9 GK the Russian Federation). Deposit return to the double size (or its leaving at the received party) ceases the obligation. Thus it is necessary to remember and possible losses (penalty) which the affected party has the right to demand.

In this respect GK contains the position defining a parity of losses and a sum of money, brought as the deposit: if in the contract other is not provided, losses come under to compensation including the deposit sum (ч.2 item 281 item 2). It

Means, that if for contract default the party answers,

Given the deposit, it should pay damages in a part exceeding the sum of the deposit. In cases when for contract default the party which has received the deposit answers, other party in the obligation, given the deposit, can demand payment of the double sum of the deposit and, moreover, the indemnification in a part exceeding the unitary sum of the deposit.

In new GK the Russian Federation in comparison with GK RSFSR of 1964 contain also new positions in deposit area. First of all it is necessary to note considerable expansion of sphere of the treaty obligations which execution can be provided with the deposit. Earlier with this way only such treaty obligations in which at least one of the parties was the citizen (item 186 GK of 1964) could be provided. In this connection the deposit was usually applied at the conclusion by citizens of employment agreements of uninhabited premises in the houses belonging to citizens on the right of a personal property, turnkey contracts, etc. Now restrictions of the obligations provided with the deposit, depending on their subject structure are eliminated. The deposit can represent itself as a way of maintenance of treaty obligations, the parties in which are as well legal bodies, and individual businessmen.

GK supplements legal regulation of the deposit by the positions defining destiny of a sum of money, brought as the deposit when there are doubts in, whether is the paid sum the deposit (in

Particulars, owing to rule non-observance about the simple written form of the agreement on the deposit). In this case the brought sum of money admits in the advance payment if other (item Z item 380 GK) is not proved.

Operating GK the new rule according to which the deposit should be returned if the basic obligation is ceased before its execution under the agreement of parties, or owing to impossibility of execution on the circumstances which are not dependent on the parties (item 1 of item 381 GK) also is entered. Absence of fault of the parties and the termination of the basic obligation do senseless existence obespechitelnyh obligations in general and the deposit in particular. Leaving of the deposit at the party which have received it, would lead to its superficial enrichment.

The measures, capable to lead the debtor to core execution

Obligations and without participation of the debtor are the guarantee, pledge, deduction, the bank guarantee.

GK the Russian Federation basically keeps former rules about the guarantee. But they are stated in more details, than in the legislation operating till now. Besides, in GK the Russian Federation is available a number of short stories of basic character which allow to eliminate the basic barriers interfering last years wide application of this way of maintenance of execution of obligations.

Under earlier operating Civil code of RSFSR 1964г. There was the norm saying, that with the guarantee only valid requirement can be provided. Hence, it was supposed, that between

The basic obligation following from credit or any other contract exists the creditor and the debtor till the moment of making contract of the guarantee already. Only in this case guarantee making contract was lawful.

New GK supposes possibility of making contract of the guarantee for maintenance of the obligation which will arise in the future. This innovation has practical value as in some cases the creditor agrees to conclude the basic bargain only under already existing maintenance. So, for example, one of conditions of the credit contract, as a rule, is the condition about a way of maintenance of return of the credit.

In turn, owing to that the guarantee contract is dependent on the basic contract, the guarantor at the making contract, called to provide the obligation which has not arisen yet, is assured that if the basic transaction will not take place also the guarantee contract will be void. The principle operates: the guarantee contract follows destiny of the basic contract.

The short stories formulated in GK the Russian Federation, allow to eliminate earlier existing difficulties with attraction of the guarantor to responsibility in case of default by the debtor of the obligation which were caused by following circumstances.

First, the rule according to which the guarantor bore before the creditor only the subsidiary liability operated. It could be involved to

Responsibility only at insufficiency of means at the debtor

(Item 6 of item 68 of Bases of 1991) see. However, this rule has been formulated in the form of the provisional rule, and owing to it in the guarantee contract could be provided and joint and several liability of the guarantor before the creditor. However, considering, that the initiative in making contract always proceeded from the guarantor, inclusion in the contract of a condition on its joint liability before the creditor was improbable. Action of the given rule meant, that the creditor in case of default by the debtor of the obligation, at first should make the demands to the debtor, achieve the collecting reference on its property (and it was possible only in judicial to a lock), and only after that the creditor acquired the right to make remained unsatisfied demands to the guarantor. However even at observance of all named conditions he has come across other obstacle which frequently became insuperable.

Secondly, the guarantee was considered ceased if during three-monthly term the creditor did not show the claim to the guarantor (see item 208 GK of 1964). This term was estimated from the date of approach of the time of performance of the obligation by the debtor. And it was presekatelnym, doing not come under to restoration. Thus, the creditor was offered to make within three months demands to the debtor, to take to court the collecting reference on its property, and then to make the demands to the guarantor. In practice to reach such result it was impossible.

Now the situation has cardinally changed. Noted barriers on a way of the creditor to attraction of the guarantor to responsibility are eliminated now Interests of the creditor now protected more thoroughly. First of all it would be desirable to notice, that in GK the principle of a joint liability of the guarantor (item 363 item 1), lost in Bases of 1991 is restored. Concerning the term given to the creditor for a presentation of the requirement to the guarantor, the question dares in GK as follows. The guarantee stops after the guarantee of term specified in the contract and if it is not provided by the contract, the guarantee stops, if the creditor does not show the claim to the guarantor within a year from the date of approach of the time of performance of the obligation provided with the guarantee. So, in the Decision of Presidium YOU the Russian Federation from December, 26th 1996г.

No.3193/96 It is underlined, that bank claims about collecting with

The borrower and the guarantor of solidary outstanding credit and percent for using by it are satisfied at the expense of the borrower as claims to the guarantor have been shown with the admission of action of the contract of the guarantee. [48]

Such variant is possible also: when the time of performance of the basic obligation is not specified and cannot be established or certain by the claiming moment, the guarantee stops, if the creditor does not show the claim to the guarantor within two years from the date of guarantee making contract (item 367 item 4).

As a whole, speaking about legal regulation of the relations following from the contract of the guarantee, it is necessary to notice that fact, that the legislator has gone on a way of granting to the possibility parties the agreement to change the instruction of the norms containing in GK the Russian Federation. It, in particular, concerns and the norm establishing volume of a vicarious liability. Accurate definition of this volume in the normative act text is made for the first time. Article 363 GK says the Russian Federation that the guarantor answers before the creditor in the same volume, as the debtor.

So, if other is not provided by the guarantee contract, the guarantor besides the basic debt is obliged to return to the creditor percent, to compensate a legal cost under the debt collection and other losses of the creditor caused by default or inadequate execution of obligations of the debtor. In new GK there is no express indication on possibility of collecting from the debtor of the penalty as provided earlier operating legislation. Meanwhile possibility of collecting from the debtor of the penalty, instead of losses, as a rule, is more preferable to the creditor as process of proving of presence and the size of losses usually admitted difficult and not always real business. Probably this problem will receive the permission by judicial interpretation.

As it was already marked, the guarantor is responsible for execution by the debtor of the obligation completely or in a part. In practice the partial vicarious liability consists that it can reserve in the contract text the obligation on return only the basic debt without the penalty or the losses which have arisen because of default by the debtor of the basic obligation.

Has considered, that the specified circumstances terminate

Guarantee contracts. [49] other cases of the termination of the guarantee can arise in connection with delegation under the basic obligation (the debt is translated on other person and the creditor has given on this consent). The guarantor in a similar situation to be responsible for the new debtor is not obliged, if he on it has disagreed. And it is logical. After all at signing of the contract the guarantor incurred obligations on execution of the basic contract by the concrete debtor, a financial condition and which possibilities were for certain known to the guarantor.

And, at last, there can be a situation when from the debtor appropriate execution of the obligation was offered to the creditor, however the creditor for any reasons has refused to accept the offered execution. In this case the guarantee also stops.

As means of maintenance of the obligation the guarantee costs undoubtedly above, than the deposit or the penalty. Here one more person is involved in property responsibility, as a rule, by a principle of its solvency Economic appeal of the given kind of maintenance of execution of the obligation consists that to property from which the creditor can receive satisfaction, the property belonging to the guarantor joins. For this reason the creditor should be assured that the guarantor possesses sufficient property for satisfaction of its requirements.

One of the measures to lead the debtor to execution of the basic obligation and without its participation pledge is capable. Until recently the legislation on pledge has been developed obviously insufficiently, contained many blanks and out-of-date norms. In practice of the obligation of the enterprises, as a rule, were provided only with pledge of the goods in a turn and processing. Citizens have the right were to pawn subjects of house consumption belonging to them and a private use. The pledge role has increased in market economy conditions. On May, 29th, 1992 "the Law of the Russian Federation has been passed About pledge" which has essentially expanded sphere of application of pledge, has admitted possibility to put in pawn the enterprise, buildings, constructions both other property and property rights.

Other variant when in the contract in advance it is provided is possible also

Restriction of volume of a vicarious liability by the concrete sum, without dependence from the real sum of debts which can arise at the debtor before the creditor in case of default or inadequate execution of the obligation.

At execution by the guarantor of obligations of the debtor under the basic contract to it pass the rights of the creditor under this contract in that volume in which the guarantor has satisfied requirements of the creditor. Thus the creditor is obliged to hand over it the documents certificating the requirement to the debtor, and to transfer the rights providing this requirement.

The establishment of a joint liability of the guarantor and definition of real terms for a presentation to it the creditor of the requirements have substantially raised risk of the guarantor. Suppression of unreasonable approach for it undesirable consequences is provided by norms about protection of legitimate interests of the guarantor (item 1 of item 367 GK the Russian Federation). Speech it is passed about cases when the guarantee stops in interests of the guarantor. Such situations can arise, when after making contract of the guarantee without the consent of the guarantor there is a change of the basic obligation which attracts increase in the sum of the obligation of the guarantor. As a rule, execution of the basic obligation is provided not only the guarantee, but also the penalty (percent) which the guarantor is obliged to pay in case of default by the debtor of the basic obligation. At prolongation of action of the basic obligation at the expense of period increase for which percent for using another's money resources are charged, and also in case of increase of the rate of interest the sum of the basic obligation essentially increases, the guarantor in this case bears responsibility only if he agrees to extend the guarantee contract on new conditions. Otherwise the guarantee stops. So, in Decisions of Presidium YOU the Russian Federation from December, 11th 1996г. No. 1832/96, from June, 9th, 1998 No. 1225/98 it is underlined, that the creditor has not informed the guarantor on prolongation of the credit contract and has not received its consent to prolongation of the contract of the guarantee to the new conditions connected with increase of a vicarious liability. Presidium YOU the Russian Federation fairly

New GK the Russian Federation has essentially developed pledge legal regulation, having devoted to it about 30 articles

The big future and huge judiciary practice is necessary to this way of maintenance of obligations. After all the market are investments. Investments is a credit. The credit is a maintenance, and maintenance is a pledge.

Pledge is one of the most preferable ways of maintenance of obligations. The satisfaction of requirements of the creditor provided with pledge, does not depend on a financial position of the debtor with which its possibility to pay the penalty is connected, and successful activity of the guarantor that provides performance of obligations by it before the creditor of the debtor.

The code names and regulates three special kinds of pledge: pledge of real estate (mortgage), pledge of the goods in a turn and pledge of things in a pawnshop.

For the mortgage (its concept differs from available in the law on pledge) in the Code a number of special rules (item 333 item 1, item 2 item - 4 сг.339, item 2 item * 5 items 340, item 1 of item 349, etc.) is established. Other rules of the given chapter, that is general rules about pledge, are applied to the mortgage as they do not contradict these special provisions and those rules which are established in the law on the mortgage.

Among the big number containing in this chapter new or in a new fashion formulated, specified norms about pledge is a little such which make the important changes to regulation of mortgaging relations.

First of all it is the rules containing in items 3, 4 and 5 items 340. In them difficult enough question on a parity of pledge of the ground area is solved with destiny go with pledge jahodjashchihsja on it of structures, buildings and constructions. And these rules in a considerable part imperative.

The rule first imperative and not providing exceptions containing in item Z, says, that building or construction pledge is supposed only with simultaneous pledge (mortgage) under the same contract of the ground area on which this building or a construction is, or the part of this site functionally providing pawned object, or the right of rent of this site belonging to the depositor or its corresponding part.

Apparently, the law excludes possibility of pledge of a building or a construction which are "groundless". At the conclusion of similar contracts, obviously, they should admit void. A.L.Makovsky adheres to such point of view also. [50] However, being based in practice, (the Decision of Plenums No.6/8 from July, 1st, 1996 "About some questions of application of a part of the first GK the Russian Federations") have established the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, that when the depositor is not the proprietor or the tenant of the ground area on whom the building (construction) constituting a subject of the mortgage is located, it has the right to put in pawn only a building (construction). And such contract is valid.

On other the Code concerns cases when the ground area on which there is a building or a construction (item 340 item 4) is pawned. Here the pledge right does not extend on buildings being on the put in pawn earth or constructions if in the contract other condition is not established. But if the parties of other have not established anything and have agreed about the contract of such ground area, nothing having told about destiny of buildings or constructions, which on it is, at the reference by the pawnbroker (bank, the creditor) collectings on the ground area for operation of this building or a construction the corresponding part of the ground area which is necessary for its normal functioning should be left free from collecting. The area under a building at least should be left and any pass to it should be left at least. Therefore at pledge of the ground areas on which something is already constructed, built, it is necessary to be cautious. The pawnbroker can receive much less, on what he counts, because to the proprietor of a building or a construction the certain part of this earth should be left.

The third rule containing in item 5 of item 340 GK the Russian Federation, concerns mortgagings

The ground area on which there is a building or a construction, not

Belonging to the proprietor of this site. In this case at

The collecting reference on the ground area the pawnbroker becomes to the place of the proprietor - the depositor. To it pass all rights and duties in relation to the proprietor of a building. If the building is constructed on a hire basis a site, and the ground area has been put in pawn and on it collecting is turned, the pawnbroker becomes the lessor instead of the predecessor in title.

The following group of rules concerns questions of the reference of collecting on the put in pawn property and its realisations (item 349 and 350 PS the Russian Federation). Before acceptance PS the Russian Federation a question on, whether the pawnbroker can receive something from the put in pawn property, dared judicially or an executive inscription of the notary.

The code solves these questions a little differently, and differently for pledge of real estate and for personal estate pledge. For pledge of real estate it keeps the legal process. The court, having established the fact of default of the basic obligation, authorises for realisation of a subject of pledge and satisfaction of requirements of the creditor from its cost.

Under general rule PS the Russian Federation excludes possibility of the reference of collecting on the real estate on an executive inscription of the notary. This rule is established by the legislator not casually. Many, mortgaging relations occurring in sphere hardly keeps within frameworks of normal market economy. Collecting by creditor banks addressed on an executive inscription of the notary on property without which the whole branches could not function. Besides, as depositors of the real estate the citizens having in the property expensive apartments, the ground areas today act. In these conditions real estate pledge began to develop in maintenance of the so-called consumer credit. Today take the credit under the real estate on treatment, on formation etc. there Will come the moment when it will be necessary to eject these people from their unique apartment or to select at the farmer its earth. To do it without court, without the judicial review, it would be extremely dangerous. Therefore the extrajudicial procedure of the reference of collecting on the put in pawn property is not supposed by the Code.

At the same time for pawnbrokers there is in this strict order one outlet. Without court it is possible to turn collecting on the put in pawn real estate on

To the agreement of the depositor with the pawnbroker, to the prisoner

After there was a basis for the collecting reference.

It means what to enter into such agreement it is possible not when for the depositor, money is necessary to the borrower and he is ready to agree on everything, everything and when it could not pay off the debt any more. Only at this stage of the party can agree about that in court not to go.

The depositor thus will avoid burden of additional expenses - percent, court costs, expenses on realisation and t.d

Other approach to personal estate pledge. The rule stated in item 2 of item 349 GK the Russian Federation says, that requirements of the pawnbroker are satisfied at the expense of the put in pawn personal estate under the decree if other is not provided by the agreement of the depositor with the pawnbroker. It means, that from the very beginning the contract on pledge can join a condition that collecting about pledge will address extrajudicially - the pawnbroker or by the reference to the notary and reception of a notarial inscription.

The order of the reference of collecting on a personal estate transferred to the pawnbroker, is defined by treaty provisions about pledge if the law does not define other order. For example, item 5 of item 358 GK establishes, that the pawnshop at credit returning has the right when due hereunder on the basis of an executive inscription of the notary after preferential monthly term to sell property on market places.

To the same group of norms new rules on which the reference of collecting without court on any property irrespective of is not supposed at all, movable it or immovable belong. First, all cases when the property could not be pawned without the consent or the permission of other person or body fall under this rule. All state and municipal property here gets. The second case when the property has considerable cultural, art or a historical value for a society. The third case - when the depositor is absent and to establish a place of its finding it is impossible.

There are among norms about realisation of a subject of pledge new rules that occurs when property with auctions to sell it is not possible. When he does not manage to be sold at the first auctions to the pawnbroker and the depositor the right is granted

To agree about that the pawnbroker himself will get it

The property, that, in essence, is considered as the contract of purchase including in a purchase price of the sum due to the pawnbroker. But if they have not agreed, the repeated auctions are appointed. If again the property is not on sale, the pawnbroker can reserve property under the price which is no more than for 10 percent below the starting price with which the repeated auctions began. From 90 percent of this starting price it should pay off a debt due to it, and the rest if remains, to return to the depositor. If the pawnbroker does not take advantage of the right to reserve a subject of pledge for this sum within a month after the repeated auctions pledge in general stops.

In article 354 new norms which till now in our right was not contain. These are the rules, concerning a consequence of compulsory withdrawal of the put in pawn property from the property of the depositor, the termination of its rights to the put in pawn property. Here two cases when its property right stops with indemnification of cost or replacement of this property are provided. The property can be withdrawn, first, for the state or public needs, for example as requisition, and, secondly, as a result of nationalisation. In these cases the depositor receives from the state indemnification either in nature, or in money. The pawnbroker or gets the right of pledge to that property which was received by the depositor instead of withdrawn at it, or has the right of primary satisfaction of the requirements from that monetary indemnification which was received by the depositor.

On other the question in cases when the property is withdrawn from the depositor is solved because it at it has appeared wrongfully, or in the form of punishment. The chance when the depositor actually is not the proprietor of the put in pawn property and then this property at it is withdrawn, vindicated. It is impossible to exclude and cases when the put in pawn property of the depositor will be confiscated in the form of punishment. In such situation pledge stops. Thus the pawnbroker appears in full loss. It receives nothing in exchange that, on what he could count. The only thing, that remains to it, - to demand preschedule execution of the obligation provided with pledge.

Substantially in the way of maintenance of execution new to us

The obligations to lead the obligation ispolnennoju without participation of the debtor, deduction is capable. Only two articles 359 and 360 are devoted it in GK.

Deduction existed and earlier. So, according to the transport legislation, carriers cargo before payment provoznoj has the right not to give out to the addressee a payment and other payments which are due on given transportation. In norms about the contract of factorage there is something similar: if the commission agent has the money intended for the committent it can keep them before performance by the committent of the duties.

Now in GK there were general provisions. And the essence of the specified way consists that to the creditor who has a thing which is coming under to transfer to the debtor or the person specified to it, is accorded a right, in case of default by the debtor in time obligations on payment of this veshi or to compensation to the creditor of the costs connected with this thing and other losses, to keep it at itself until the corresponding obligation will not be executed by the debtor. This way of maintenance can be effective not only for transportation, but also for storage, for podrjada. These are those dogovory when the creditor can have on lawful basises a property of the debtor.

Deduction actually is one of ways of self-defence of the civil rights. Feature of deduction consists that the creditor is allocated by the right to keep, a thing of the debtor before execution of last its obligation is direct, that is for realisation of this right it is not required to the creditor, that possibility of deduction of a thing of the debtor the condition excluding application of the named way of maintenance of execution of the obligation (item Z item 359 has been provided by the contract. Norms about deduction have optional character as to the parties is accorded to provide a right in the contract).

In a role of the creditor having the right to keep a thing of the debtor, there can be a keeper under the bailment for hire, expecting payment of the services connected with storage of a thing, a carrier under the contract of carriage, not giving out cargo to the addressee before full calculation for the executed transportation, the contractor who is not transferring to the customer a thing created by it before payment of performed work, etc.

For enterprise relations of possibility to use deduction extend. If under the general rule it is possible to keep a thing to receive the payments connected with this thing, and there should be a communication between this thing and requirements which are put forward by the creditor, in a rule, concerning enterprise relations, this communication is strongly weakened. In the second paragraph of item 1 of item 359 it is told, that with thing deduction the requirements which have been not connected with payment of a thing or compensation of costs on it and other losses, but arisen from this the obligation provided that its parties are businessmen can be provided also.

On this question one jurists who are making comments on norms GK the Russian Federation, consider, that for businessmen in volume of requirements join not only

Real damage and due payments under the contract, but also the loss of profit, and also other requirements from the obligation. [51 [52] others consider, that businessmen have the right to provide with deduction the requirements which have arisen from any obligation, and not just connected with payment of a kept thing or compensation of the losses connected with it. [53] It is represented, that there corresponds to sense of the law opinion AL.Makovskogo which considers, that a thing of the debtor which at the creditor has appeared, and the requirement shown by the creditor more close, payments which the creditor demands should be connected the same obligation between the parties, and, can bp directly with this thing not связаны.49

If despite alien the creditor of a measure on thing deduction, the debtor nevertheless does not execute the obligation, the creditor has the right to turn collecting on a thing kept in the nanometer (item 360). Thus thing cost, volume and a reference order on it collectings on request of the creditor is defined according to the rules established for satisfaction of requirements of the pawnbroker at the expense of put in pawn property (item 349-350). Unfortunately it only otsylochnaja norm. As such situations with deduction of property of the debtor usually arise spontaneously

The bank guarantee settled by item 368 - 379 GK the Russian Federation,

- The independent obligation of bank-guarantor independent of the credit contract provided with it. According to item 370 GK the Russian Federation the obligation of the guarantor provided by the bank guarantee before benefitsiarom does not depend in relations between them on that basic obligation in which maintenance of execution it is given out even if in a guarantee the reference to this obligation contains. This feature of the bank guarantee is expressed that reduction of the obligation of the borrower does not involve reduction about "ema responsibility of the guarantor.

Secondly, according to item 361 GK the Russian Federation under the guarantee contract poyoruchitel is obliged before the creditor of other person to be responsible for execution of last its obligation completely or in a part. Thus,

The guarantee - the contract, that is the two-way deal. For its conclusion will of two parties - the guarantor and the creditor of the primary debtor is required. On the contrary, the bank guarantee - the unilateral contract, for its fulfilment is required will only one party - the guarantor. Therefore containing in the letter YOU the Russian Federation from January, 26th, 1994 №ОЩ-7/ОП-48 a conclusion that the letter of guarantee - only the offer, has lost the value.

Thirdly, any person possessing civil capacity can be the guarantor under the guarantee contract. According to item 368 GK the Russian Federation the guarantor can be only bank, other credit institution or insurance

The organisation.

Fourthly, according to item 363 GK the Russian Federation the guarantor and the primary debtor answer before the creditor solidary if the law or the guarantee contract do not provide the subsidiary liability of the guarantor.

That is in case of the guarantee it is a question of a vicarious liability. Paying the requirement of the guarantor about payment of a sum of money under the bank guarantee, the guarantor does not bear responsibility, it simply carries out the basic duty. The size of this duty is limited to sum payment on which the guarantee (item 1 of item 377 GK) is given out. And only in the event that the guarantor without

Sufficient the basis will refuse to pay the guarantee sum on demand benefitsiara, it can be made accountable, which size not

And by treaty provisions more often in advance are not settled, the creditor,

Which keeps a thing, should estimate itself all time efficiency of that it does, as though to weigh on scales: "Today still it is favourable to me to keep, and tomorrow, maybe, it is already unprofitable, because my own expenses because of it there is appear several times more costs of this thing". Therefore in time it here is important to take care of thing sale, and, unfortunately, on GK to make uneasy. Deduction by the creditor of property of the debtor can appear in the effective way of maintenance of those obligations on which conditions the property of the debtor appears temporarily in possession of the creditor (storage, transportation, the commission, successively, etc.).

However, netraditsionnost this kind of maintenance of obligations and dependence of its legitimacy on correct definition by the person, its applying, many circumstances (right presence, harmony to infringement, protection limits), can lead to numerous disputes and abusings of businessmen.

GK for the first time has entered concept "bank guarantee" as independent institute. The name it is conditional, because as the guarantor on such guarantee can act not only bank, but also other credit institution, and the insurance organisation.

Earlier the guarantee as a way of maintenance of execution of obligations has been provided in Bases of the civil legislation, but, as a matter of fact, was equated to the guarantee.

The modern legislation allows to distinguish the contract of the guarantee from the bank guarantee.

First, the guarantee provided by item 361-367 GK the Russian Federation, is the obligation accessory in relation to the basic obligation with which it provides. Therefore its action stops, if the basic obligation has stopped in connection with settling debt or on other circumstances specified in the law (an innovation, offset, acceptilation). Reduction of the sum of the basic obligation involves reduction of volume of a vicarious liability. If the basic obligation for any reasons appears void, guarantee making contract also will not generate any legal effects.

It is limited to the sum on which the guarantee if in a guarantee not is given out

Other is provided (item 2 of item 377 GK).

Fifthly, article 372 GK provides the Russian Federation, that belonging benefitsiaru under the bank guarantee the incorporeal right to the guarantor cannot be transferred other person if in a guarantee other is not provided. The promisee of the guarantee has the right to transfer the incorporeal right to the guarantor to the third party on the basis of the contract of cession without any restrictions.

Sixthly, the guarantee stops with transfer into other person of a debt under the obligation provided with the guarantee if the guarantor has not given to the creditor of the consent to be responsible for the new debtor (item 367 GK). As the bank guarantee is the obligation independent from provided, delegation of the principal under the credit contract on other person does not involve the bank guarantee termination.

The bank guarantee has essentially differs and from other traditional ways of maintenance of execution of obligations. It provides this obligation independent of the contract, which execution. At invalidity of the basic obligation the bank guarantee unlike the guarantee, pledge, other ways of maintenance of execution of obligations is valid, and the guarantor can be made accountable before the creditor.

Dependence of the accessory obligation on the core is shown also that with the expiry of the term of limitation of actions under the main requirement expires the period of limitation under additional requirements, for example on залоіу, to the guarantee (item 207 GK the Russian Federation).

Independence of the bank guarantee of the basic obligation is shown and that the expiry of the term of limitation of actions under the obligation provided with the bank guarantee, does not attract the expiry of the term of action of the obligation following from the bank guarantee. Noted characteristic lines of the bank guarantee do by its most reliable maintenance of execution of obligations. In it its appeal to creditors that can serve as the reason of wide application of the bank guarantee with a view of maintenance of execution of obligations.

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A source: Dorenkova Julia Mihajlovna. Execution of a contractual obligation in the civil law of Russia. Thesis for a candidate of law degree.

More on topic § 1. Concept n ways of maintenance of execution of obligations:

  1. 3.1. Ways of maintenance of execution of obligations the private partner as measures of protection of the rights of the public partner
  2. 2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS
  3. § 3. Participation of the third parties in maintenance of execution of obligations.
  4. § 4. A parity obespechitelnogo payment and not named ways of maintenance of obligations
  5. 2.2. A parity of the penalty and other ways of maintenance of OBLIGATIONS
  6. § 3. Obespechitelnyj payment as a way of maintenance of execution of other obligations
  7. measures of maintenance of execution of tax obligations
  8. §2. Principles of profitability of execution and assistance of the parties at execution of obligations
  9. Chapter 1. TEORETIKO-METHODOLOGICAL BASES of the DOCTRINE ABOUT OBESPECHITELNOM PAYMENT AS the WAY of MAINTENANCE of EXECUTION of OBLIGATIONS
  10. § 2. Norms international «the soft right»: signs, forms of realisation and ways of maintenance of execution
  11. Chapter 6. A role of additional ways of financial maintenance of the account obligations arising at subjects of public authority at realisation of delegated powers
  12. §1.1. The maintenance of concept of account obligations of subjects of the Russian Federation
  13. Chapter 3. PRINCIPLES of EXECUTION of OBLIGATIONS
  14. CHAPTER 1. CONCEPT OF TITLE MAINTENANCE OF CIVIL-LAW OBLIGATIONS
  15. § 2. Principles of execution of obligations