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§1. Solidary and shared obligations

In model both solidary, and shared obligations the same creditor (1) can demand full granting (2) once (3). But in case debtors are solidary, he can demand all execution from any of debtors (4), from share debtors - only in a certain share (4).

At joint liabilities the creditor can demand satisfaction of all economic interest from any of joint debtors.

If one of joint debtors appears insolvent or not in a condition to execute the obligation, the creditor all the same can demand full execution from other co-debtors. Thus, the risk of insolvency of one of debtors lays on its co-debtors. They are obliged to carry out granting in spite of the fact that further cannot compensate as recourse a part of the paid.

In share obligations the creditor can demand from each of debtors only its certain share, but not a share of other debtor. In shared obligations the risk of bankruptcy of one of debtors lays on the creditor.

Such comparison share and joint liabilities allows to represent the last as the form favouring to the creditor and providing its execution обязательства2. Besides, joint liabilities are more favourable to the creditor in remedial sense as allow to sue in full only to one of debtors, having reduced quantity of remedial opponents. In share obligations for reception of full satisfaction the creditor should win process in relation to each of share debtors [203 [204].

Hence, joint liabilities in comparison with shared obligations gives to the creditor two advantages: shifts risk of bankruptcy of one of debtors and facilitates process conducting.

However, in spite of the fact that in point 1 of article 323 GK the Russian Federation that at a solidary duty of debtors the creditor has the right to demand execution from any of them separately completely is directly specified, judiciary practice ogranichitelno interprets this norm and in most cases orders obligatory partnership of debtors on the party of the respondent [205]. In this sense the second (remedial) advantage by the Russian right at the creditor often is absent.

The domestic doctrine is inclined to consider shared obligations as independent.

About it, for example, V.S.Tolstoy directly writes: «In share debt relationships of the right and a duty of each of the parties participating in the conclusion of the corresponding contract, are connected only by the general basis of occurrence. After occurrence they exist independently. If in the contract some subjects as creditors each of them demands execution only in that part which belongs to it are named, and tell reciprocative performance only that is received by him. If some debtors each of them is obliged to fulfilment in favour of the general participate in the contract
Only that action which is specified in the contract, and infringement only the duty is responsible for the creditor.

Therefore there are all bases to believe, that «shared obligations on character of mutual relations between the parties do not differ sharply from obligations in which one creditor and one debtor» participate. If to be consecutive it is necessary to draw a conclusion, that in analyzed cases «it is available a number of separate debt relationships»,

Independent one from another and connected only the general basis

218,219

Occurrence »’

Differently represents distinction contractual independent, share and joint liabilities in the German right S.Mayer.

Leaning against the offer the second the paragraph of the first § 320 GGU [206 [207] [208], it equates this question to a problem of distribution of risks of reception of reciprocative performance and a liability for damages in case of obligation infringement by one of debtors [209].

The risk of non receipt of counter granting is a risk of hit in

Situation when the person, having carried out from its part granting, however cannot demand counter granting.

The risk of losses is a risk to bear a duty to compensate the harm caused as a result of default of the obligation.

In its opinion, any obligations can be designed both as independent, and as share, and as solidary. For example, the obligation to construct the house. Some persons can independently be obliged to construct the same object completely or in a part, the contract can provide, that one debtor builds the base, another - walls, the third - a roof. Besides, obligations can be designed in such a manner that each of debtors is responsible for building of all house, but reception by the creditor of object irrespective of who from debtors has carried out works, releases all debtors. The type of communication of several debt relationships is not predetermined by any natural and physical factors.

If obligations are designed as independent obligation default by one of debtors, does not influence obligations of other debtors: they have the right to demand counter granting from the creditor for the execution carried out by them and do not bear a liability for damages of the creditor from obligation infringement by other debtor, that is both named risks lay on the creditor.

If the creditor and debtors chooses shared obligations in case of default of the share by one of debtors the creditor, not having received full satisfaction, can not carry out counter granting to other debtors in their shares [210], however he cannot and demand from them the losses formed owing to infringement. The risk of non receipt of reciprocative performance lays on debtors, risk of losses - on the creditor.

222

If obligations of debtors are solidary each of them is obliged to full satisfaction. The debt in the obligation of everyone consists in reception by the creditor of granting as a whole. Obligation infringement by one of joint debtors leads to simultaneous infringement of obligations of the others as result is non receipt by the creditor of full satisfaction, to carry out which everyone was obliged. On debtors lays down not only risk of non receipt of reciprocative performance, but also risk of a liability for damages. In this sense, really, obligation infringement by each of joint debtors leads to responsibility of other co-debtors, but they answer for infringement of the own obligation, after all anybody and has not given full satisfaction to the creditor.

Thus, depending on what model of relations (independent, share or joint liabilities) will choose the creditor and debtors for satisfaction of economic interest (house building) obligations will have the different maintenance and in them differently corresponding risks will be meted.

Such approach would enrich the Russian right with new model of relations between the creditor and several debtors. Possibility to construct the relations with several debtors would be given the creditor so that was considered, that it loses interest in execution by one debtor without execution of another. This conclusion will be adjusted with article 311 GK the Russian Federation providing possibility of the creditor not to accept of execution of the obligation in parts, and article 328 GK the Russian Federation about stay of execution in cases if counter-execution is made not in full.

The point of view dominating now leads to that the concept of shared obligations multiplies essence, as a matter of fact being the equivalent obligations independent from each other which is not possessing any features.

As often obligations can be connected both on model share, and on model solidary, absence of directly expressed agreement between the parties about a plurality kind has predetermined use in the law of certain general optional rules.

For example, owing to article 1202 FGK solidarity of the obligation is not supposed: it is necessary, that it has been reserved specially. This rule does not operate only when a joint liability arises owing to action of any position of the law.

According to §§ 888 - 891 AGU under the general rule if granting delimo, obligations are share. Solidarity of the obligation arises, if it is adjusted in the contract, specified in the law or at indivisibility of a subject of the obligation.

Article 143 SHOZ as specifies in share character of obligations as an optional rule and says that solidarity arises only in cases when debtors have expressed will to be responsible for execution of all obligation and when solidarity is statutory.

GGU contains in this respect following positions.

According to § 420 if some persons owe a dividend granting in case of doubt each debtor is obliged only to an equal share. Paragraph 427 establishes joint and several liability of the several persons obliged to a dividend to granting in common through the contract. Paragraph 431 speaks about occurrence of joint liabilities between the debtors obliged to indivisible granting.

Thus, solidarity in cases of the joint introduction into the obligation through the contract and presence of an indivisible subject of the obligation is established. In the absence of instructions on other obligations should admit share other cases.

Other approach projects nadnatsionalnogo have chosen regulations, having established a solidarity presumption if other does not follow from the law or the contract [211].

Komparativistsky researches [212] on this question testify that introduction by different laws and orders of opposite general rules about share or joint liabilities in itself does not lead to that similar incidents dare differently. First, in laws and orders where shared obligations are provided as the general rule, it is frequent for certain contractual types or in general for all obligations connected with enterprise activity, exceptions in the form of solidarity of obligations [213 [214] are entered. Secondly, the presumption starts to work when ways of interpretation of the contract do not help, therefore the court always has a possibility by means of interpretation to apply legal effects of that form of plurality which seems to it approaching for the developed relations. Such approach allows to recede from the rule ordered by the law in some cases.

For example, German courts destroy a presumption solidarity of the obligations which have arisen from one contract if counter granting is adjusted in shares. In one of lawsuits the seller has concluded the contract of purchase of the ground area with two buyers which contained a uniform all-round price of the ground area. At the same time simultaneously it provided, that the property right will pass to the first buyer in
1/5 shares, and to the second - in 4/5. The court has come to conclusion, that in this case each of buyers is obliged to purchase price payment in corresponding доле226.

Also in the German literature incidents about when one person concludes dogovory in the interests, and also to benefit of other persons are considered. For example, the school teacher buys tickets for excursion for itself and for group of schoolboys, the person buys coal for itself and two neighbours, etc. Distracting from a question, whether such subject from own name or as the representative, the presumption on which is absent in the German right operates, authors of the special literature and comments in GGU come to unanimous opinion, that a joint liability in such cases is excluded, as it is impossible to agree that schoolboys, neighbours, colleagues, etc. wish to take up risk of insolvency each other; it is impossible to prove, why the creditor only because of that circumstance, that persons have gathered, should have bolshee maintenance, than in usual cases when for each separate granting one debtor answers. At the same time judiciary practice on this question противоречива227,228.

In an another matter some proprietors of the ground area have decided to erect on it an apartment house. Further each of them should become the proprietor of corresponding habitation. One of these persons has incurred [215 [216]
Functions on management of building also has concluded the contract with a corresponding contract organisation.

The Supreme Court of Germany has given up in a recognition of all proprietors joint debtors with references that the risk of responsibility for all cost of building and insolvency someone from joint owners in social and economic senses exceeds borders of possible habitation for the separate proprietor. The businessman who knew that the apartment house should be constructed, could not rely reasonably that each of joint owners wished to be obliged solidary with others [217].

Thus, despite presence in GGU rules about solidarity of the obligations which have arisen from one contract, judiciary practice considerably corrects it.

GK the Russian Federation establishes as the general rule share character of obligations (article 321), solidarity of obligations can arise only in force договора21 \' 1 or law instructions, in particular at indivisibility of a subject of the obligation (article 322 point 1). Simultaneously GK the Russian Federation does the general reservation on the obligations connected with enterprise activity which are assumed solidary (article 322 point 2).

At application of these rules there are questions on, whether they are applied only to cases of making contract or extend on the obligations which have arisen from other bases, and that represents indivisibility of a subject of the obligation.

In favour of that the norms established in article 321 and point 2 of article 322 GK the Russian Federation, extend only on cases of treaty obligations, it is possible to result following arguments.

Article 321 and point 2 of article 322 GK the Russian Federation establish corresponding rules with the reservation, that other can be provided «the law, other legal acts or obligation conditions». To establish other «obligation conditions» it is possible only through the contract, as it is designated in point 1 of article 322 GK the Russian Federation in which it is specified, what circumstances confute an optional rule about the shared obligation (the contract or the law). Hence, time can be changed a rule only direct will, means, it concerns cases when from will it is not clear, share or solidary character of obligations is meant.

Besides, in the domestic doctrine признано231, that prominent feature of shared obligations is the general basis of occurrence - one contract. Thus, presumption action is limited by action of rules about shared obligations.

If to address to norms of the law of torts they order solidarity occurrence only in two cases: interaction of sources of the raised danger (point 3 of article 1079 GK the Russian Federation) and joint injury (article 1080 GK the Russian Federation). In other cases article 1064 GK the Russian Federation is applied and obligations of each offender are independent, instead of share. Thus, considered presumptions cannot be applied to torts.

Hence, as rules about share and solidary character of obligations are established on cases of an ambiguity of the expressed will and be applied they can only to obligations, the legal which structure of occurrence includes will - the unilateral contract or the contract.

231

See sn. 218.

Also in solidarity of obligations can be directly specified in the law. One of such examples - indivisibility of a subject of the obligation.

It is possible to allocate some approaches to definition of concept of indivisibility.

First, it is possible to recognise that indivisible the obligation subject if it is physically indivisible [218] is. It is so-called indivisibility «by the nature». Here there is a same problem, as at definition of an indivisible thing: from the point of view of physical possibilities any thing can be divided into certain parts. Hence, if to use this criterion, the indivisible subject can to be found out simply [219].

The interesting example confuting existence objectively of indivisible obligations, S.Mayer [220] results in the monography. Respondent D has been obliged to establish to claimant K the tower crane. It was for this purpose necessary to use a truck crane. The parties have adjusted, that K should prepare itself a truck crane for manufacture of works. K has charged it to businessm T.Pri to installation of the tower crane by means of a truck crane
The tower crane has overturned and has caused K.Poskolku's damage of work D and T were inseparable from each other, and execution of the obligation of everyone was possible only by combined action the court has come to conclusion that D and T are responsible for fault each other.

S.Mayer says about obvious injustice of such decision, especially in the light of that K itself has chosen T and last performed works for it. If K performed works independently the bases of reduction of responsibility D would be obvious on the basis of norms about reduction of responsibility of the debtor in the presence of fault of the creditor in infringement.

Thus this author criticises criterion of impossibility of branch of execution by one debtor from execution by another: for the proof of the return simply enough to present, that for one of debtors the creditor worked. The obligation of other debtor gets at once absolutely independent character and is easily separable from actions of the creditor [221].

Also indivisibility can be defined "subjectively economically". Execution in shares will have smaller economic value, than full execution for the creditor. It is possible to object, that execution in parts always less favourably to the creditor, especially, when the obligation subject has been adjusted as uniform. Article 311 GK the Russian Federation forbidding to the debtor to execute in parts from this proceeds.

In the modern literature representation about indivisibility from objectively economic point of view, when the sum of costs dominates
Separate parts of granting will be less costs of granting as a whole [222 [223]. For example, the obligation on property transfer on the ground area under shopping centre building, the obligation to show performance.

Existence of the discrimination to definition of concept of indivisibility, and also absence of regulation of indivisible obligations in projects nadnatsionalnogo regulations brings an attention to the question on, whether there is with necessity such special kind as indivisible obligations?

For the answer to it it is reversible to the purpose of introduction of concept the indivisible obligation in the law and order.

Choosing as the general rule share character of obligations, the legislator simultaneously should enter an optional rule about the size of a share of each of должников217. This rule about the size of a share is entered for application in cases when there are no reference points for definition of the size of shares, hence, probably only in the form of equal shares. However, not to all cases probably to apply equality of shares of granting of several debtors. Those cases when the presumption of equality of shares is inapplicable, and are called as indivisible to obligations.

Such conclusion proves to be true also that in laws and orders into which as the general rule solidarity of obligations is entered, the concept of indivisibility is absent. The concept of indivisibility of section about plurality of persons becomes excessive: the shared obligation
It is necessary to adjust directly in the contract, and, accordingly, and to define a share of each debtor in execution [224].

Thus, in comparison with shared obligations joint liabilities are the form of plurality of debtors favouring to the creditor. The creditor can demand full satisfaction from any of joint debtors, than shifts on co-debtors risk of bankruptcy of one of them.

Besides, joint liability default by one of joint debtors will mean more often default of the obligation and other debtors as the creditor as a result was not fully satisfied in time. For this reason in contractual joint liabilities probably transposition of risk of losses from the creditor on debtors, they will bear also responsibility in case of default. In share obligations the risk of the losses caused by one of share debtors, the appeared bankrupt, lays on the creditor. At the same time, both in share, and in joint liabilities the risk of non receipt of counter-execution lays on debtors.

Whereas the in itself object of obligations does not predetermine their communication among themselves, that is relations can be constructed both on model share, and on models of joint liabilities, the law provides some optional rules in this respect. These rules can be changed the agreement of the parties and are applied only to treaty obligations.

Among similar rules the norm about solidarity of the indivisible obligation is allocated. Proceeding from the purpose of an establishment of this norm, it is possible to draw a conclusion, that the term indivisibility is applied to cases when it is impossible to divide a debt into equal parts.

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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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