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§ 2. A recognition of the concept of unity of a joint liability in Russia

Discussion about the legal nature korrealnyh and the joint liabilities, inflamed in the German literature, did not remain not noticed by domestic authors.

For that moment the Code of laws of Russian empire (further - the Arch) in which X volume article 1548 contained has been published: «If some persons have assumed liability under the same contract, but not having enacted, that at contract default, everyone replies for all and all for everyone and if one of them has executed, and others have not executed the obligation: that having the right to demand execution under the contract, should address itself not to all entered the obligation, and to what have not executed it» [73]. In comments to the Arch it is noticed, that from specified
Articles judiciary practice a contrario deduced institute of a joint liability of several persons [74]. At the same time the description of problems of a solidary debt through a prism of the European experience and only partly with reference to the Arch [75] was the general tendency.

So, in D.I.Meyer's lectures referring to G.F.Puhtu recognises division of obligations on korrealnye and solidary where korrealnoe the obligation is a uniform obligation with plurality of persons on the party of the debtor, and joint liabilities - set of independent obligations. However accurate criteria of division in the edition it is not named, but only that is frequent to external signs difficult is specified to discriminate korrealnoe and the solidary relation [76].

The similar criticism concerning D.I.Meyer is stated by A.O.Gordon in the small work devoted to article 1548 of I part of X volume of the Arch, specifying on the general insufficiency of the domestic doctrine on the given question [77]. A.O.Gordon did not set as the purpose of the work studying of the nature of a joint liability, and only wished to establish
The standard sense of article 1548 which, in its opinion, consisted in rule fastening «solidarity is not supposed». Importance of explanation of this principle the author saw that judiciary practice went on other way, recognising solidarity also when it has not been directly adjusted in the contract. In the remarks and the argument the author recognised that feature of joint liabilities consists in identity of a subject of a debt of each of parties liable, and also that each debtor is responsible for a debt as a whole [78].

The most detailed and fundamental work on a considered theme is N.L.Djuvernua's published in 1874 [79] the monography. The scientist analyzes all basic theories about division of obligations on korrealnye and solidary and subjects to their convincing criticism. First of all N.L.Djuvernua reproaches methodology of the founder of the theory korrealnyh obligations - G.J.Ribbentropa, proving, that last did not try to find the answer to a question as plurality of persons in the Roman Law was regulated in the Roman sources, and searched for acknowledgement, already ready in advance, the theories which positions never operated in any law and order [80]. Confirming the position, the scientist confutes postulates of all three theories of division of obligations on korrealnye and solidary positions of the Roman sources [81].

To a secret solution korrealnoj stipuljatsii, that is to search of the answer to a question why litis contestatio, made by the creditor with one of debtors, released other debtors, N.L.Djuvernua starts with perfect other initial positions, than German pandektisty, and sees it, first, in the nature most stipuljatsii, secondly, in comparison

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korrealiteta with two other institutes of the Roman Law - an innovation and delegation, instead of in the special nature of the relations arising between the creditor and several debtors.

Thus, N.L.Djuvernua shows initially incorrect message German pandektistov which, trying to answer a question why litis contestatio had cumulative effect, developed theories about the special nature of relations between the creditor and several debtors.

N.L.Djuvernua names two features stipuljatsionnogo obligations. First, it has abstract character, that is action stipuljatsii is not put in dependence from causa (the reasons on which the person enters the obligation), and, secondly, will expression in stipuljatsii is connected with the certain form without which it will not have legal consequences [82].

In itself stipuljatsija does not answer a question why and what for the parties have entered the obligation, whether they wished to sell, present something etc. «to establish legal character stipuljatsii, for this purpose it is not necessary from the very beginning (i.e. at its fulfilment) to put it in communication with circumstances at which it arose, and thereupon it to investigate; its legal character certainly by itself though it is put out of any communications, out of any relation to other actions. Absolutely differently at material contracts in which legally character of action can be established only when communication with other facts, it causa, giving to it this character is from the very beginning visible. This communication keeps that something is already made that for a promise subject should serve as reciprocal fulfilment (Gegenleistung)» [83].

Having established two these features, the author passes to comparison korrealnoj stipuljatsii, innovations and delegations and notices the following feature. Both at an innovation, and at delegation, the creditor could receive

The new debtor for satisfaction of any economic interest, only having lost the debtor old. Simultaneously there was a practical requirement, keeping all conveniences abstract stipuljatsionnogo obligations to have at once two debtors obliged to satisfaction same: « So, abundantly clear, that in that ceremony by means of which it is established korrealitet, kauteljarnaja practice has opened means that having taken advantage of all conveniences which are represented by the formal obligation to eliminate it nevygody, constituting other party of a formalism, in this case - repayment ipso iure the previous obligation the subsequent. We do not think at all to deduce the phenomenon korrealnoj stipuljatsii from any theoretical reasons. It was business of old lawyers, these veteris juris conditores. These kantatorov formulas which tried to combine absoljutizm few forms which were at them on hand, with requirements and interests of the civil circulation. The theory was formed later when practice knew for a long time that way of action which the natural has by arisen in other conditions, during other time, at other value of legal forms and ceremonies »[84 [85].

Thus, the institute korrealnoj stipuljatsii, according to N.L.Djuvernua, is display of a formalism of the Roman Law which loses the specificity together with disappearance of the abstract obligation from стипуляции83.

However for N.L.Djuvernua's unknown reasons has not been heard, and theoretical representations of other author were embodied in the subsequent acts of Russia - I.P.Chirihina - expressed in its monography 1888 [86].

I.P.Chirihin also begins the work with instructions on logic and methodological errors of theories German pandektistov, in particular it specifies in a vicious circle of their reasonings constructed as follows: at first they reveal from sources of the Roman Law of position about that, ceases or not litis contestatio the nature of the obligation they deduce obligations of several persons after that explain its such effect the obligation nature, and from this, the general or private effect has litis contestatio*1.

Further it criticises position about existence of plurality of the obligations ceased by one execution: « According to supposing set, in korrealnom the obligation it is so much obligations, how many persons; but it can be clear, for example, in that case, when the creditor one and two debtors, then, so, two and obligations; how many will be obligations, if also creditors and debtors on two? Whether it is possible to recognise then four obligations? Or - whether it is possible to recognise sixteen obligations, when creditors and debtors on four? Already odnoju this impossibility to admit similar result absolutely eliminates possibility to see in korrealnom the obligation set. Really it is strange to speak about several obligations when one object means, one execution which should follow only once. The object and execution is a sense of the obligation, I have one object in view of, at least I concluded the obligation with set of persons, from my point of view, this one obligation; Once execution has followed, all relations stop »[87 [88].

These reasonings lead to its conclusion, that both at solidary, and at korrealnyh obligations there is only one uniform obligation which "to name more common" solidary [89]. At
It the unity of the obligation cannot be considered as an obstacle for distinction in its structure of several otvetstvennostej on number of debtors [90].

In spite of the fact that the specified author contrasted the sight with theories of division of obligations on korrealnye and solidary, as a matter of fact, it has reduced all cases of plurality of debtors when execution by one releases the others, to cases korrealnyh obligations in G.J.Ribbentropa's terminology, only naming their solidary. The institute of joint liabilities developed in pandektistike as several obligations which independently from each other have in a random way appeared directed on compensation of the same harm, has been forgotten.

Similarly with direct references on F.L.Keller [91] identifies institute of "mutual responsibility" with korrealnymi obligations, but naming their solidary, S.P.Nikonov in article «Mutual responsibility as maintenance of obligations» [92 [93]. It describes mutual responsibility or joint liabilities as the uniform obligation with the several main things obliged from which everyone answers before the creditor at a rate of all obligation, and payment by one ceases obligations relations for all co-debtors. As signs of a joint liability the author names: plurality of the main things obliged in general for all the obligation, their joint liability before the creditor, their general interest in the maintenance

Obligations, absence of an element subsidiarnosti in their responsibility

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Before the creditor.

As it is possible to notice, the theory of division of obligations on korrealnye and solidary in its variant with plurality of persons on the party of the debtor is supported by the domestic doctrine in the truncated variant. Uniform obligations with plurality of subjective relations (in G.J.Ribbentropa's terminology - «korrealnye obligations») began to be called solidary. The model of set of the independent obligations connected in such a manner that execution one releases debtors and on the rests (in G.J.Ribbentropa's terminology - "joint liabilities"), has been denied and forgotten.

Probably, formation of such approach was affected by that the theory korrealnogo obligations corresponded in the greatest image to the usual institute of "mutual responsibility" known since times Russian правды94,93.

Besides, Arch article 1548 spoke only about one kind of joint liabilities - the obligations which have arisen from one contract. Arch article 648 about joint injury said: «When the crime or offence are made by several persons, on [94 [95]
Preliminary between itself on that to the consent, all soglasivshiesja on participation in fulfilment of this offence or a crime pay fifty-fifty compensation for damnified by it and losses, and if someone from them appears insolvent, the part following from it decays on other participating in fulfilment of this crime or offence (). What on this basis will pay moreover, that from them on harmony followed, can demand all unduly them paid with for what they have paid () ». Though, as a matter of fact, this article reproduced the mechanism of joint liabilities as gave the chance sustained to collect the full indemnification from solvent debtors, but formally proclaimed their share. Thus, before eyes of scientists of that time simply there was no the major example of the joint liabilities constructed on model of plurality.

The further statements in the domestic literature

The pre-revolutionary period about the nature of passive joint liabilities

Developed on one of two directions: or theory support

Unities of a joint liability [96 [97], or the description of gradual transition - - 97

From the unity theory to the theory of plurality with support of last. Only K.P.pobedonostsev adhering to the theory of "mutual representation» [98] independently keeps.

In the project of the Civil code of Russian empire 1905 in the special chapter IV «Cumulative obligations and cumulative requirements»

Books the heel in articles 1706, 1713 had been fixed the formula of the uniform obligation with several persons on the party of the debtor, existence of the relations, concerning all debtors together and each of debtors separately was thus marked.

In the comment to this chapter the thought on unity of the obligation with plurality of personal relations "some times repeats.

Besides positions about execution cumulative effect one joint debtor on obligations of other joint debtors and claim for exoneration the Project contained the developed regulation of a problem of influence of various juridical facts on a legal status of joint debtors.

But the order of responsibility of several persons for the same harm has simultaneously been changed. For example, according to Project article 2612 if the act which has harmed, is made by two or several persons in common all of them answer as cumulative debtors. To the same responsibility come under together with made act and what have inclined them to this act or helped them. Paid compensation has the right of the return requirement to other accomplices, and definition of the size of such requirement depends on judicial discretion (Project article 1687).

This project could not become the law, and the following normative act in which regulation of passive joint liabilities contained, there was a Civil code of RSFSR of 1922 (further - GK 1922).

In GK was two articles, devoted to the general concept [99] 1922
Joint liabilities, 115 and 116 in which positions about a solidarity establishment only the law or the contract contained, a presumption of solidarity in case of indivisibility of a subject of the obligation, the mechanism of recourse and the general rule about an order of a presentation the creditor of the requirement to joint debtors («Under a joint liability the creditor has the right to demand execution both from all debtors in common, and from each of them separately, besides as completely, and regarding a debt. At unsuccessfulness of collecting the creditor can collect all from one debtor half-received with other debtors»),

In concrete cases GK of 1922 ordered solidarity for persons, simultaneously and in common guaranteed (article 240), the primary debtor and the guarantor (article 241), responsibility on a number of norms of the corporate right (article 295, 309, 329, 339, 340, 356, 360), and for the persons, in common harmed (article 408).

By the moment of acceptance GK of 1922 these positions were indisputable and contained in the majority of codes of other countries. Considering the short terms of preparation of this normative act and concentration of the legislator during this period on the real right [100], so compressed regulation becomes clear, and is possible, and basically the sufficient.

GK did not do a choice between models of unity and plurality of joint liabilities, describing only the mechanism of their action 1922. The conclusion, that the code takes of any position of a solidarity design, it was possible to make only from this, that words "joint liability" were used in article 115 in a singular.

After the code in the literature steel joint liabilities
To be described only as an order of a presentation of the requirement by the creditor [101], or as obligations with plurality of persons on the party of the debtor [102 [103]. It is necessary to notice, that one of founders of the code - A.G.Gojhbarg101 - speaks about a joint liability as about the obligation with several persons on one party [104].

I.B.Novitsky and L.A.Luntsa's textbook «the General doctrine about the obligation» was allocated only, in which I.B.Novitsky has presented joint liabilities as set of independent obligations and on the basis of this parcel has offered decisions of problems on influence of various juridical facts on a legal status of joint debtors [105].

The Civil code of RSFSR of 1964 (further - GK 1964) in regulation of joint liabilities a little than differs that to us offers the current code. Regulation of joint liabilities is placed in chapter 16 «Execution of obligations» and fixed in articles 180-183. In comparison with GK 1922 in this code the rule, concerning problems of influence of various juridical facts on a legal status of joint debtors has been entered. According to article 182 «Objections of joint debtors against requirements of the creditor», in case of a solidary duty the debtor has not the right to put forward against
Requirements of the creditor the objections based on such relations of other debtors to the creditor in which the given debtor does not participate.

The doctrine continued to see at this institute plurality of persons in the obligation, that is the uniform obligation in which on the party of the debtor some persons [106] participate.

To this theoretical position has followed GK the Russian Federation which differs from the predecessors only presence of following position [107]. Point 1 of article 308 GK the Russian Federation has directly fixed the formula korrealnogo obligations and says that in the obligation (a unit ch.!) as each of its parties - the creditor or the debtor - some (!) persons can participate simultaneously.

Articles 322, 323, 325 GK the Russian Federation use a word "duty" when speak about relations of the creditor with the concrete debtor, and "obligation" when mean relations of the creditor with all debtors. According to article 324 GK the Russian Federation in case of a solidary duty the debtor has not the right to make the objections based on such relations of other debtors with the creditor in which the given debtor does not participate against demands of the creditor. The possible variant of interpretation of this norm assumes, that in it division in a uniform joint liability «the general relation of the creditor with all debtors» and «sets of personal relations of the creditor with each of debtors» is fixed.

Besides, theses about necessity to discriminate concept «the obligation party» and «the person participating in the obligation», about possibility
Participations of several persons on one party of the obligation and about presence of the "general" and "personal" relations of joint debtors with the creditor became axioms in the Russian doctrine [108].

Thus, for the description of initial model of relations between the creditor and joint debtors GK the Russian Federation uses the theory of a uniform joint liability with plurality of persons on the party of the debtor. This theory has resulted from reconsideration by domestic pre-revolutionary authors of German theories about division of obligations on korrealnye and solidary, called to find the answer to a question why fulfilment litis contestatio with one debtor, released other debtors. The doctrine and legislation history testifies that, as a matter of fact, the modern domestic law and order in the deformed form borrowed the theory uniform korrealnogo obligations, naming its solidary, thus, that serious doktrinalnoe discussion of it

Question has ended in the end of XIX century

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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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