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§ 3. Presence of internal relations between joint debtors (recourse) as a sign of joint liabilities

Unsuccessful attempts to find criterion for reference of obligations to solidary in relations between the creditor and debtors (external relations) have pushed researchers searching for it in relations between joint debtors (internal relations).

In view of presence of obvious arguments against criteria of the general basis and the identical maintenance in the German literature they have soon been replaced by criterion of "a purpose generality» (Zweckgemeinschafi).

Originally the purpose generality was offered to be defined through the subjective relation of debtors: each debtor knows about others and about that effect which makes its granting on the obligation of others. This knowledge creates a subjective generality of the purpose and together with it the present solidary debt. In case of an artificial solidary debt, on the contrary, debtors happen with each other only, besides will and in absence of any communication [160].

But this criterion has not been accepted.

First, the offer the first § 421 GGU in which definition of a solidary debt contains, does not name as its signs subjective «a purpose generality». Necessity of knowledge about each other contains only in § 427 GGU, describing only one of situations of solidarity [161]. According to this paragraph prezjumiruetsja the solidary

Responsibility of the persons in common obliged through the contract to a dividend to granting.

Secondly, the same position, as against its predecessors was the basic argument against this criterion: GGU directly orders solidarity in cases when debtors can each other and not know. For example, in case of joint liabilities of the trespassers who have harmed to the dress with each other, the law (§ 840 GGU) recognises the present solidary debt at which debtors happen only, besides will and in absence of any communication.

Possibility of absence of a generality between joint debtors proves to be true existence of norms about recourse. The generality between joint debtors assumes presence of any internal relation (the relation between joint owners, contractual obligations of the special partnership, the commission etc.). However the law and order specially gives to the executed joint debtor claim for exoneration if other relations between joint liabilities are absent. Presence of relations between joint debtors (recourse obligations) in the majority of codes is presented as a consequence of execution of one of joint liabilities, instead of as the precondition of their occurrence [162].

Then «a purpose generality» began to understand objectively. When debtors are obliged to satisfaction of the same objective interest of the creditor, there is a solidary debt [163].

This definition suffers a vicious circle illness: the solidary debt exists when there is a purpose generality, and it exists when each of debtors owes to the creditor full granting, but only once that is when there is a solidary debt [164].

In parallel in the doctrine the sign "odnoporjadkovosti" (Gleichstufigkeit) joint liabilities developed. In particular, K.Larents [165 [166] adhered to it. In its opinion, to a solidary debt obligations of several debtors if in case of execution by one of them to it owing to the law passes the requirement of the creditor to the remained debtors or it owing to the law do not concern or on the basis of the contract can demand from the creditor of transfer of its rights (cases cessio legis).

Such solidary debt is called as "broken" (gestorte Gesamtschuld) ™.

As substantiation of this approach position that execution by the debtor to which passes the requirement of the creditor, does not release other debtor from execution serves and does not cease its obligation. Hence, the parcel of the offer of the first paragraph of the first § 422 «Effect of execution» GGU according to which «execution by one joint debtor possesses the same effect for other debtors» (my italics is not carried out. - NT.). Solidary can

To admit only such obligations in which execution by one debtor ceases obligations of the others.

Supporters of a considered position also referred to practical inapplicability to similar cases § 426 GGU according to which the executed debtor has claim for exoneration to other debtors in equal proportions.

So, the primary debtor and the guarantor [167] are not joint debtors. At the same time requirements to several co-sureties are one-serial, and consequently, solidary.

K.Larents cites as an example the decision of Imperial court of Germany from 26.04.1913 - VI 572/12 about a fire in a cathedral of the city of Fulda. On the occasion of a holiday in a cathedral there should pass fireworks. On imprudence of the dealer which started fireworks, there was a fire. The episcopate possessed requirements to the Prussian state, on the basis of the duty of the state established in the law on erection and repair of churches, and also to the dealer according to the paragraph the first § 280 and the paragraph the first § 823 GGU, concerning duties on compensation of the caused harm. The state has refunded all expenses on repair and has addressed with claim for exoneration to the dealer. The imperial court has satisfied the requirement on the basis of norms about conducting another's business without the commission.

K.Larents writes that and the state it is impossible to recognise the dealer as joint debtors as the person who has harmed [168] should bear definitive expenses.

After K.Larentsem [169] also V.Zelb recognises this criterion and writes that cases cessio legis represent the independent form of plurality of the debtors, directly not settled GGU.

The author results such example: the employee of bank in infringement of bank requirements gives out to the client a loan which has not been returned. The bank has claim about return of the sum of a loan in relation to the borrower from
Loans for consumption according to paragraph 1 § 607 GGU. Along with it it has claim about harm compensation to the employee in view of employment contract infringement. In case of compensation of harm by employee, the bank should transfer it claim from the loan for consumption [170 [171].

This criterion is supported and in the authoritative Austrian literature. In particular, that it is necessary to distinguish solidarity of obligations from a competition of claims is underlined. Requirements of the proprietor of a thing to the thief and to the buyer kradennoj things are not solidary, and simply represent a competition of several requirements, to resolve which owe institute beneficium cedendarum actionum ™. In the comment to AGU the following example is resulted: to the proprietor of a thing belong the requirement to the thief about the indemnification and compulsory demand to the third party which has bought a thing at the thief. The proprietor can make demands against the thief about the indemnification in the form of full cost only after it mutually (vstrechno) will carry out to the thief a concession of compulsory demand against the third party. The thief cannot realise passed right as it will contradict the contract of purchase concluded by it with the third party. So the competition between several requirements concerning one interest will be resolved. In this case the recognition of the thief and the purchaser of a thing joint debtors will not have any practical advantage. Similarly, there is practical advantage in a recognition solidary no accessory
Obligations as all problem questions are settled by institute accessory ™ [172].

But such position is not unique, and a number of researchers do not recognise distinctions between similar situations and cases of joint liabilities, after all in both incidents execution of one obligation releases in relation to the creditor of debtors and on the rests [173].

With convincing criticism of criterion "odnoporjadkovosti", constructed on necessity of distinction of external relations of joint debtors with the creditor and internal relations of joint debtors among themselves, has acted X. Emann. The position described above it has conditionally designated as «fear before recourse in a false direction» [174].

He writes that in the newest literature interpretation § 422 and the paragraph of the first § 426 GGU causes two fears:

(1) Granting by the debtor which in internal relations should not bear definitive burden of execution, can release other debtor who should bear as a result expenses (§ 422 GGU);

(2) Person who in internal relations should bear definitive burden of execution, can show levelling claim about distribution of expenses to execution in equal proportions (the offer the first the paragraph of the first § 426 GGU) to other debtor who in internal relations should be released from execution.

As an example it is possible to result obligations of the keeper and the thief. If the keeper pays damages for theft, the thief will be relieved from responsibility (1). If the thief pays damages, he can demand half from the keeper and will reduce the responsibility (2).

According to the author, such reasonings are deeply erroneous, though are based on F.K.Savini's following true reasonings on granting of recourse from the solidariest debt.

As joint liabilities give to the creditor possibility there is nobody an arbitrariness in a choice of the debtor, which will execute not to transform this institute into a lottery where the one to whom the creditor the first will make the demand will lose, the passive joint liability is followed inevitably by the claim for exoneration allowing the executed debtor to demand from other debtors of distribution of burden исполнения181.

This representation has been so extended in the German doctrine, that § 337 first projects GGU F.F. Background Kjubelja established, that recourse claim is in equal proportions given from the solidariest debt, «if other does not follow from the law or the transaction». Such position has encountered criticism as created danger, that the joint debtor who has been for various reasons obliged in the internal relation with the co-debtors to a smaller share or has not been obliged at all, despite it, could be obliged to pay half of cost of execution to other debtor as the opposite has not been directly mentioned neither in the law, nor in the transaction. To avoid this danger and to exclude narrowing of concept of a solidary debt which has meaningly been given as much as possible widely, regulation § 337 first projects it has been replaced by become law § 426 according to which recourse in equal proportions should be given only, «..., if other is not defined». Other can follow not only from law or transaction express indication, but also character of legislative regulation of the arisen obligations. In this sense it is more successfully formulated § 896 [175]

183

AGU which gives recourse with the reservation «if there is no other special relation between them» (joint debtors).

Thus, according to X. Emanna, historical and close interpretation § 426 GGU testifies against a primary parcel to presence of necessary communication between external and internal relations of joint debtors and consequently, excludes necessity of introduction of special criterion "odnoporjadokovosti" the joint liabilities, defining character of external relations of debtors with the creditor on the basis of internal relations of debtors among themselves.

If to speak about features of German system of recourse it simultaneously gives to the executed debtor two requirements: 1. (New) claim for exoneration on the basis of the paragraph of the first § 426 GGU to with debtors in the shares which size is supposed equal; 2. The requirement of the creditor which on the basis of the paragraph of the second § 426 GGU passes to the executed debtor for a reinforcement of its claim for exoneration, in particular, the remained maintenance [176 [177].

If literally to interpret § 422 GGU and to say that execution by one debtor ceases obligations of the others it is impossible to explain transition of the ceased requirement of the creditor to the executed debtor on the basis of the paragraph of the second § 426 GGU. Therefore these two legislative instructions are necessary for interpreting it is system, that will lead to a conclusion that execution by one of debtors releases the others only in relation to the creditor.

Incorrect the parcel about necessary communication between solidarity of obligations and recourse presence between debtors is represented also.

Universality of this position is confuted by presence of possible alternatives [178 [179] [180].

In the Roman Law, for example, relations between joint debtors were independent of their relations with the creditor. Claims against other debtors not from the special recourse basis, and on the basis of obligations from terms of partnership, the commission or actions in another's interest without поручения187,188 were given to the executed debtor.

As a result all criteria, offering to define sphere of action of norms about solidaritete through features of internal relations of joint debtors, appear insolvent.

There are no formal obstacles also for a recognition as joint liabilities with the subsequent transition of the rights to the executed debtor by the Russian right.

Point 1 of article 325 GK the Russian Federation directly fixes what did not suffice in due time German the dogmatic person, namely: «Execution of the solidary
Duties completely one of debtors releases other debtors from execution to the creditor ». Point 2 of this article giving claim for exoneration to the executed debtor, begins with words:« If other does not follow from relations between joint debtors... »[181].

Point 53 of the decision of Plenum VS the Russian Federation № 54 excludes from 22.11.2016 possibility «recourse in a false direction», specifying that recourse is given only in a case when the joint debtor has executed to the creditor in the size exceeding its internal share.

In the modern Russian right chances of solidarity of obligations without recourse granting. Responsibility only one joint debtor in internal relations can come as well at the joint liabilities directly named in the law as those as owing to optionality of norms about recourse at participants of the obligation possibility to agree about other [182] remains.

The establishment between solidarity obligations solves a question, how many is due to the creditor, leaving opened regulation of distribution of burden of execution between debtors [183].

Thus, internal relations of joint debtors also cannot serve as adequate criterion for definition of sphere of action of norms about joint liabilities.

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A source: Tololaeva Natalia Vladimirovna. PASSIVE JOINT LIABILITIES: the RUSSIAN APPROACH And the CONTINENTAL TRADITION. The dissertation on competition of a scientific degree of the master of laws. Moscow. 2017

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  9. Tololaeva Natalia Vladimirovna. PASSIVE JOINT LIABILITIES: the RUSSIAN APPROACH And the CONTINENTAL TRADITION. The dissertation on competition of a scientific degree of the master of laws. Moscow, 2017 2017
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