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§ 2. Solidary, joint and subsidiary obligations

In the German literature it is accepted to allocate along with solidary also joint obligations (gemeinschaftliche Schuld) 239,240.

Compatibility of obligations assumes, that full granting to which some persons are obliged, cannot be carried out one of them in a part, completely.

Execution only one debtor will be deprived for the creditor of value therefore execute they can only all together, the combined action. A classical example of such plurality is obligations of a trio of musicians. A version of a joint debt also name the obligation of participants of the joint property concerning their community property (Gesamthandschuld). For example, if participants of the contract of the special partnership were obliged otchudit a concrete thing from the community property execution of this duty is possible only through the joint order [225 [226] [227].

Practical consequences of the introduction of debtors in joint obligations are, first, their necessary partnership on the party of the respondent under the claim about obligation execution in nature, secondly,
Responsibility of all participants of plurality for delay and the impossibility of execution caused by behaviour of one of debtors [228].

This design of the German right unknown to other laws and orders [229], has been borrowed by projects nadnatsionalnogo regulations.

Article point 3 10:101 PECL defines, that at a joint debt all debtors are obliged to carry out granting together, and the creditor can demand its realisation only from all together.

This norm is copied by point 3 of article III.-4:102 DCFR.

The comment to PECL understands a joint debt as follows. The joint debt differs from solidary that the creditor can demand enforcement of a joint debt only from all debtors. The joint debt is not only association of the several isolated duties. Moreover, each debtor is obliged to promote other debtors to carry out the general granting. Obligations of musicians to play the symphony are as an example resulted and different contractors to erect a structure [230].

Simultaneously in article 10:104 PECL it is specified, that if in case of default of a joint debt harm compensation in money debtors are responsible for payment as joint debtors is required. The same regulation is contained by article 111 DCFR.

Fleeting instructions of supporters of existence of joint obligations that their major importance consists in a refutation
Presumptions about private effect of the juridical facts which have occurred to one of joint debtors, especially obligation infringements, opens the valid history of occurrence of this concept and its substantial component.

Despite accurate comprehension by the German doctrine of that attempt to solve incidents about the general and private effect of juridical facts on a legal status of joint debtors is unsuccessful with

References to a "true" design of solidarity, and to a recognition of that,

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That in many respects this question has no practical value, attempts in some cases to create a presumption of cumulative effect of infringement of the obligation one of joint debtors are connected besides with kontseptualizatsiej a new kind of plurality - joint obligations.

Such approach was in many respects predetermined by practice of the Supreme Court of Germany in a number of the affairs considered by it about joint and several liability of in common practising doctors, lawyers and builders of the joint project.

In so-called business about steklobetonnom a ceiling [231 [232] one contractor established to the customer the concrete ceiling, the second - illumination from the glass, built in in this ceiling. Works have been executed poor, and the customer has made the demand about the damage full indemnification to the contractor who was carrying out a part of works, connected with glass light knots. The respondent denied the duty to indemnify a loss, referring that it carried out only works with glass, instead of erection of a concrete ceiling, therefore it should not be responsible for an error in realisation of the building project. The Supreme Court of Germany has come to conclusion about satisfaction of claims in view of the following.

The cross-section armature of a glass part passed through concrete,
All ceiling represented constructive unity, and building of light knots cannot be separated from building of other ceiling. Both businessmen could execute the project only under condition of the teamwork, everyone in the part was dependent on assistance of another. Therefore for the claimant of action of businessmen were inseparable and because of a kind of carried out works it is impossible to establish obliged for each part. Hence, works represent an indivisible subject in sense § 431 GGU [233]. However at such obligation taken up in common to carry out works a rule § 425 according to which basic independence of responsibility of each joint debtor and absence of responsibility of one debtor for fault of another are established, it is inapplicable, as other follows from the nature and the obligation purpose. In view of necessity of combined action of businessmen and impossibility of division of works everyone is responsible for breach of contract by another. In such cases each businessman should be responsible for fault of another.

Thus, the impossibility for the customer to divide concrete kinds of the works which are carried out by each of contractors that did by their uniform subject for the claimant began the basic argument for the Supreme Court of Germany.

This practice has been developed in business «about tilers» [234]: the group of persons has concluded the turnkey contract on packing of a tile with the customer. Works have been executed poor, and the customer has sued to one of the working. The court has come to conclusion about satisfaction of claims on those bases, that as it is impossible to establish who from members of group has carried out works as inadequate image, unfair would be to assign to the claimant such onus of proving, therefore responsibility of each member of group for infringement it is supposed, until proved otherwise, that is - that the corresponding executor had the separate sphere of work.

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Further arguments about performance in a turn of debtors in relation to the creditor as something uniform have started to be used for a substantiation of responsibility of one doctor for inadequate rendering of services by another in case of realisation of joint practice by them.

In one of similar affairs [235 [236] insurance company has addressed with the claim to two doctors of the medical institute which has rendered services to the person insured at it. One of respondents has entered into a vein to the patient contrast substance for picture creation on the x-ray device, but the vein has burst also substance has got to fabrics. It has led to serious disease of the patient. The Supreme Court of Germany has satisfied the claim to both respondents, having specified on the following. Respondents carried out the joint practice in the form of the special partnership and acted outside as something uniform. Patients concluded dogovory not with the separate doctor, and with institute as a whole. It testifies that doctors wished to answer not only for themselves, but also for the colleagues. The court also has noticed, that the patient wished to receive medical services not from one concrete doctor, and from all in common. Set of these conditions has led to a general rule refutation § 425 GGU and to satisfaction of the claim to the doctor who actually has not caused harm to the patient.

With a similar substantiation the Supreme Court of Germany has come to conclusion about responsibility of all lawyers of one lawyer formation for breach of contract by one of них2э0.

Such practice has been supported at once by the doctrine and occurrence of supporters of existence along with share and solidary also

Obligations joint.

In necessity of combined action also see the basis for cumulative effect of infringements of the obligation one of debtors, specifying or that in a turn and for the creditor joint debtors act as something uniform (as a matter of fact, coming back in the argument to the reference to a design of a uniform joint liability with set of persons on the party of the debtor), or that in such situation the choice of the concrete executing person is carried out not by the creditor, and others должники231.

Also refer to a tacit agreement of debtors with the creditor,

Which follows from a way of performance of debtors in a turn, about

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Responsibility of each joint debtor for fault of another.

It is interesting to notice, that a question on share or solidary character of obligations of debtors just as it is investigated in the Russian vessels [237 [238] [239], in the given cases did not stand at all though the system of the special part of liability law GGU in many respects coincides with system GK of the Russian Federation and also contains a presumption of solidary character of obligations only
In common operating trespassers or persons in common entered the contract. It was a question of a refutation prezjumirujushchegosja consequences of solidarity of obligations in the form of private effect of infringement of obligations one of debtors, that is about putting on on other debtors of additional adverse consequences in view of wrongful acts of one of them.

Feature of joint obligations see that the component "debt" in the obligation of each of debtors does not coincide on volume with a component "responsibility". The joint debtor is obliged to certain behaviour in relation to the creditor only in a concrete part of execution, and bears responsibility for reception by the creditor

Executions as a whole.

If to address to reasonings of the founder of the theory of allocation in the maintenance of the obligation of components of a debt and responsibility thus A.Brints described korrealnye obligations. We will recollect its example. In a case when two for satisfaction of joint interest have borrowed, but everyone is obliged to payment of the full sum it is obvious, that everyone from the very beginning has two debts: one own in half of total sum and one stranger on other half [240].

Also at the heart of the theory of the joint obligation representation that obligation execution as a whole is impossible for each debtor separately lays. However such impossibility of execution is not an obstacle for occurrence of the obligation [241], hence, does not constitute any feature.

Therefore it is possible to present the joint obligation so, that each of debtors is obliged to give to the creditor execution as a whole and, accordingly, bears for it responsibility. Hence, substantial differences between joint and joint liabilities are absent.

If in need of teamwork the creditor and debtors adjust solidarity of the obligations each debtor is obliged to give to the creditor full satisfaction of its economic interest and obligation infringement by one of debtors with inevitability leads to infringement of the obligation by another on circumstances for which he answers as for the third party action involved with it to execution.

For an example we take business «about tilers». Some persons were obliged to put a tile on certain space.

The creditor can enter with each of them the independent independent obligation. Hence, in case of revealing of infringement it can claim damages only from that person by which actions it is damnified, having given corresponding proofs in court.

The creditor and debtors can enter shared obligations. Yet will not be zamoshcheno all space, the creditor can not accept execution from the others.

Or each of debtors will answer (to pay the size of losses) for absence at the creditor zamoshchenija all space. Hence, each of debtors should and is responsible for that the tile will be located on all required space. That is between the creditor and each of debtors there are joint liabilities.

Besides, with approach of a stage of responsibility in the obligation when to execute in nature it is already impossible, the joint obligation should turn in solidary, as compatibility of actions any more
It is required, and each of debtors is responsible for default in full in money. But unresolved there are questions how the presentation the creditor of the requirement about damage compensation can change a kind of plurality with joint on solidary, and also since what moment in that case norms about joint liabilities are applied to obligations joint (on the future or with the retroactive effect) [242 [243]?

In case of joint obligations each of debtors is responsible for all granting, hence, this concept unduly as completely coincides under the maintenance with already existing kind of plurality - joint liabilities.

Owing to principles of compulsion of judicial certificates and their feasibility in systems where as the priority the way of execution of obligations in nature is provided, discriminating feature of joint obligations will be that the claim about execution of the joint obligation in nature can be is satisfied only to all respondents together obligatory partnership on the party of the respondent, hence, should to be formed.

On the other hand, the examples resulted in the literature as joint obligations (the obligation of community of musicians, actors, etc.), often initially do not get under possibility of their compulsory realisation in nature as are closely connected with the person of debtors.

If to speak about examples of the Russian and German judiciary practice, basically connected with correction of lacks of works ispolnimym there will be also a judicial certificate against one of debtors as it can involve in execution of the third лиц25.

And if the creditor wants, that corrected lacks of works all together it can sue to all debtors together, that does not constitute feature as at joint liabilities the creditor at the desire can demand execution in any of variations: from any debtor completely, from each of debtors in shares, from all debtors in common (point 1 of article 323 GK the Russian Federation, § 891 AGU, § 421 GGU, article 144 SHOZ, article 11.1.3 PICC).

Thus, joint obligations do not represent the independent form of plurality of debtors and are obligations solidary [244 [245].

Other kind of plurality of the debtors, recognised in the domestic literature as independent 2э9, is subsidiarnost obligations.

Discriminating feature of subsidiary obligations article 399 GK the Russian Federation names that to a requirement presentation to the person, which according to the law, other legal acts or conditions
Obligations are born by responsibility in addition to responsibility of other person who are the primary debtor, the creditor should make the demand to the primary debtor.

If to compare definitions of kinds of the plurality allocated GK the Russian Federation it is possible to find out, that classification is carried out on the different bases, and, hence, is not uniform.

Shared obligations are contrasted solidary on the size of the requirement of the creditor (in a corresponding share or as a whole). Subsidiary obligations differ from solidary in the order of a requirement presentation (at first to the primary debtor or at once to any of debtors at will of the creditor).

It gives the bases to believe, that in the first classification constructed by material criterion, the subsidiary liability is joint liability subspecies when in a component of the obligation of one of debtors there is no obligation to certain behaviour in relation to the creditor but only responsibility for actions of the person in which obligation such obligation is.

From the point of view of the maintenance of the right of the creditor subsidiary and a joint liability coincide: he can demand in full from any of debtors.

First, such thesis proves to be true what even after a requirement presentation to the primary debtor and not execution receptions, the obligation of the primary debtor does not stop, that is there are two independent obligations of the primary debtor and subsidiary. Execution by one of them, releases another in relation to the creditor the disposition of point 1 of article 325 GK the Russian Federation, hence, is carried out.

Secondly, point 1 of article 399 GK does not say the Russian Federation that requirements to the subsidiary debtor do not exist to a requirement presentation to the core, it simply cannot be realised judicially.

Thirdly, article 421 GK the Russian Federation, especially in a context of articles 309 і, 3271 GK the Russian Federation, creates possibility to the creditor to agree about an order of a presentation of the requirement and at solidarity of obligations both with all debtors, and with any of them {pactum de non petendo).

Besides, foreign legislations know a certain regulation of an order of a presentation of the requirement the creditor, meaning the reference at first to the primary debtor, and even more "rigid" in relation to the creditor, but do not know an independent kind of plurality of persons.

The paragraph of article 399 GK second point 1 for possibility of a presentation of the requirement to the subsidiary debtor considers sufficient refusal of the primary debtor to execute the Russian Federation judicially or its silence in reasonable term on the claim of the creditor [246].

Paragraph 771 GGU as the general rule gives the chance to the guarantor to give up to the creditor in execution on the ground that last yet did not carry out collecting in the course of final process concerning the primary debtor. However obligations of the primary debtor and the guarantor admit solidary.

Thus, subsidiary obligations also do not represent the independent form of plurality and join in volume of concept "joint liabilities".

This conclusion predetermines unity of many theoretical and practical approaches to these kinds of plurality of the debtors, divided only in the order of a requirement presentation.

In particular, the approach for a long time has affirmed as judiciary practice [247] and the doctrine [248] that subsidiary obligations is a set of independent obligations. Also approaches about prezjumirovanii presence of some elements of an offence have been developed, for example, at attraction of the person to the subsidiary liability that is applicable and for a joint liability.

Besides, article 399 GK the Russian Federation devoted to the subsidiary liability, is constructed in such a manner that in it some features of relations of the creditor, the basic and subsidiary debtor are only mentioned. However, general rules about consequences of execution of one of obligations and about internal relations of several debtors contain only in norms about solidaritete which and are necessary for applying in this case.

As a result of comparison of joint liabilities with other kinds of plurality of debtors it is possible to come to conclusion, that in comparison with shared obligations solidaritet represents the form of plurality shifting risks of non receipt of counter granting and occurrence of losses on one of obligations on debtors in obligations favouring to the creditor, solidary with the first. In this sense solidarity functionally belongs to maintenance means as on satisfaction of one economic interest of the creditor obligations communications are directed at once some.

The similar role is carried out by joint and subsidiary obligations which enter into concept of solidarity and to them application of the legal decisions developed for this design is possible.

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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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