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§ 2. The conclusion and the maintenance of the contract on transfer of the electronic Money resources

Further we will consider making contract process about transfer of electronic money resources. The contract on transfer of electronic money resources consists between the operator of electronic money resources and its client - the physical person as whom the citizen of the Russian Federation can act, the stateless person or the foreigner.

The citizens possessing civil capacity have the right to make transfers of electronic money resources. Clients of the operator of the electronic money resources, possessing partial capacity (from fourteen till eighteen years), can carry out transfers of electronic money resources exclusively within the capacity: according to item 1 of item 26 GK the Russian Federation they make transactions with the consent of the legal representatives - parents, adoptive fathers, trustees, except for the transactions listed in item 2 of item 26 and item 2 of item 28 GK the Russian Federation, legal representatives made independently without the consent (for example, the order the incomes, entering of contributions into credit institutions and the order them, fulfilment of small household transactions etc.).

Under the general rule, hence, and transfers of electronic money resources partially capable citizens make all transactions with the consent of the legal representatives. Exceptions constitute cases when transfer of electronic money resources is carried out within the limits of the order by the minor the incomes at the conclusion of the small household transaction or in other cases provided by the legislation of the Russian Federation. In last cases transfer of electronic money resources is carried out by partially capable citizens independently irrespective of presence or absence of the consent of legal representatives. Thus, as the client under the contract on transfer of electronic money resources the citizen since fourteen years can act.

However quite often separate operators of electronic money resources it is groundless limit the civil rights of partially capable citizens, including in treaty provisions about transfer of electronic money resources contradicting GK the Russian Federation interdictions and restrictions. For example, some developed by operators of electronic money resources dogovory contain a condition that the citizen who has reached of age of eighteen years [231] can be the client.

In other cases making contract possibility about transfer of electronic money resources by partially capable citizens is limited to the operator of electronic money resources by transfer of the closed list of transactions which citizens since fourteen years while translating electronic money resources [232] or by the requirement of the written approval of the legal representative under the form established by the operator can make

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Irrespective of character of the transaction on transfer of electronic money resources [233]. Similar treaty provisions about transfer of the electronic money resources, breaking the civil legislation of the Russian Federation, are void at preservation of a validity of the contract on transfer of electronic money resources as a whole.

Despite containing in the concrete contract on transfer of electronic money resources of restriction for partially capable citizens, application is come under by general provisions GK the Russian Federation.

From fourteen till eighteen years citizens can act as clients under the contract on transfer of electronic money resources with the consent of the legal representatives, and while translating electronic money resources within the limits of the small household transaction, at the order the incomes etc. - is independent irrespective of such consent.

For example, in the presence of the written approval of parents refusal of the operator of electronic money resources of realisation of transfer of electronic money resources by the minor of fourteen years for the considerable sum is illegal, as well as the requirement of the operator of electronic money resources of the consent of the legal representative if the sum of transfer of electronic money resources allows to consider the transaction small and household. It is represented, that the transaction recognition under the order electronic money resources the small household transaction by analogy to transactions under the order cash and money resources is possible. Judiciary practice recognises that household transactions can be connected with monetary calculations [234].

As a rule, the operator of electronic money resources has all information, necessary to define the fact of fulfilment of the small household transaction or the fact of the order means of the contribution of the minor, however does not possess the information for the circumstance establishment, what money resources are spent by the minor - own or given by the third parties, including legal representatives. As the given circumstance is out of a zone of the control of the operator of electronic money resources, it cannot refuse to the minor client in making contract on the basis of that to them not a fact in evidence of an expenditure of own money resources.

As the executor under the contract on transfer of electronic money resources the operator of the electronic money resources which status has been analysed by us earlier in the second chapter of the present dissertation acts. Once again we will designate, that the operator of electronic money resources is understood as the organisation translating electronic money resources without opening of the bank account, that is granting to the addressee of electronic money resources of the payer, according to the licence of Bank of Russia granted to it, acting as the independent operator of electronic money resources or the participant of one or several payment systems.

Making contract about transfer of electronic money resources is carried out by the acceptance by the client of the public offer of the operator of electronic money resources. The public offer according to item 437 GK the Russian Federation represents containing offer all the essential treaty provision which can be accepted any person - it is addressed an uncertain circle of persons. As well as the bank offer to conclude the contract of bank service [235], the offer of the operator of electronic money resources is addressed any and contains the essential treaty provision about transfer of electronic money resources. Thus the concept «any person» means «each of accepted», and not just «the first of accepted» the offer, that is «not everyone».

As soon as someone accepts the offer, it acts in film at once, possibility when this offer can be accepted several persons thus is excluded. In such situation «any person» will mean «not everyone». In practice to such public offers which everyone can accept «not» but only the first of any persons, carry, for example, documentation placing about tendering [236], placing of the information on tendering [237], the offer to conclude the contract of purchase in the remote way of sale [238], a report of information - the public offer on sale of the state and municipal property [239].

At the same time the offer of the operator of electronic money resources any other subject, wished to respond to the offer in the subsequent can accept not only the first of responded on it, but also.

Offer exhibiting is, as a rule, placing by the operator of electronic money resources of the text of the offer with instructions of the essential treaty provision on transfer of electronic money resources on the site - conditions about a subject (rendering of payment services - services in transfer of electronic money resources). Such offers some operators of electronic money resources directly name «public offers» [240].

Incorrect it is represented to conclude the name meeting in some cases the operator of electronic money resources of the offer published on a site the contract on transfer of electronic money resources by agreement [241]. And in that case publication on an official site of the operator of electronic money resources of the text of the contract will be considered as the public offer.

According to item 435 item, 436 GK the Russian Federation the offer is unilateral under the general rule the irrevocable transaction as the purposeful action, requiring perception other party (otzyvnost offers can be reserved in the offer or follow from an offer or conditions being in which it has been made). That is not any offer from the tenderer in the name of the operator of electronic money resources will conclude the contract on transfer of electronic money resources to be qualified as the offer, but only:

- Certain enough offer expressing obvious intentions of the operator of electronic money resources, sent this offer to conclude the contract;

- The offer containing the essential treaty provision about transfer of electronic money resources, - a condition about a subject.

The offer of the operator of electronic money resources is accepted by the client who agrees with the conditions offered in such offer. According to item 438 GK the Russian Federation the acceptor in the name of the client makes the acceptance in the form of fulfilment of the irrevocable unilateral contract, that is the purposeful action requiring perception by the operator of electronic money resources. The acceptance means only full and unconditional acceptance of the offer. Thus silence is not the acceptance if other is not established in the legislation of the Russian Federation, the agreement of the client and the operator of electronic money resources, custom, former business relations of the client and the operator of electronic money resources.

As the acceptance can be considered and implicative actions of the client - fulfilment of actions on performance specified in the offer of the operator of electronic money resources of conditions - if other is not statutory, other legal acts, is not specified in the offer of the operator of electronic money resources. In practice, as a rule, the acceptance of the offer of the operator of electronic money resources represents fulfilment of implicative actions, for example, filling of registration forms on a site, a direction to the tenderer of the consent to conclude the contract on transfer of electronic money resources, button pressing on the consent with the offered conditions etc.

Implicative actions are understood as the actions testifying to intention of the client to conclude the contract on transfer of electronic money resources. In the legislation of the Russian Federation it agree item 434 item 3, item 3 of item 438 GK the Russian Federation, to the Circular from May, 5th, 1997 № 14 Presidiums YOU the Russian Federation «the Review of practice of the resolution of disputes, connected with the conclusion, change and cancellation of contracts» [242] implicative actions are understood «as the actions testifying to the consent of the person, the made action, its intention to make the transaction, to conclude the contract» [243], «the actions expressing will of participants of the civil circulation on an establishment, change and the termination of civil matters» [244]. Therefore in cases when in the offer the way of the acceptance by implicative actions directly is not specified, the acceptance of the offer placed on a site of the operator of electronic money resources, any actions expressing will of the client to conclude the contract on transfer of electronic money resources will be considered.

Thus there can be problems in connection with conformity of the acceptance of the client to completeness and unambiguity requirements - according to item 438 GK the Russian Federation the acceptance should be «full and unconditional». In particular, not always clearly, about what registration forms necessary to filling by the client on a site of the operator of electronic money resources, there is a speech. On a site of the operator of electronic money resources there can be no a closed list of the implicative actions testifying to the consent of the client with conditions of the offer to conclude the contract on transfer of electronic money resources.

For example, from the offer text to conclude the contract on transfer of electronic money resources of one of operators of electronic money resources not clearly, whether opening of an electronic purse in payment service of electronic money resources at the initiative of the client [245] testifies to the acceptance the client of the offer of the operator of electronic money resources. Thus, certainly, opening of an electronic purse by the operator of electronic money resources at the initiative of the client should be considered as the offer acceptance about making contract about transfer of electronic money resources, as according to item 3 and Law item 9 № 161 electronic instrument of payment (including, the electronic purse) is given to the client by the operator of electronic money resources.

However thus absence of unequivocal requirements in the offer to conclude the contract on transfer of electronic money resources on a site of the operator of electronic money resources to the acceptance of such offer leads to occurrence of risk of a recognition, for example, implicative actions in the form of filling of registration forms insufficient or uncertain. Such acceptance of the client as mismatching item 438 GK the Russian Federation, can be recognised by the imperfect client, and the contract on transfer of electronic money resources - not prisoner at the initiative of the operator of electronic money resources or the client in pretenzionnom, and further - judicially.

In this connection as much as possible exact instructions of the list of the actions testifying to the acceptance by the client of the offer about making contract about transfer of electronic money resources are necessary. For example, within the limits of payment service of one of operators of electronic money resources as examples of implicative actions realisation of independently registration of the Accounting record of the User in Service »or« the first replenishment of Balance of the Prepaid card «the Uniform settlement card » under condition of granting of data on User's number which will be used as a name (login) the User in Service »[246] is underlined«. Within the limits of payment service of other operator of electronic money resources as its acceptance fulfilment of implicative actions on opening of "the Personal or Corporate account» [247] is considered.

According to item 440 GK the contract on transfer of electronic money resources is considered the Russian Federation the prisoner if the acceptance is received by the operator of the electronic money resources who have directed the offer, within the term specified in it. According to item 441 GK the Russian Federation if term for the offer acceptance in its text is not specified, the contract is considered the prisoner if the acceptance is received by the operator of the electronic money resources who have directed the offer, during «normally necessary for this time». The Closing date acts as an estimated category and usually includes time for correspondence delivery, for decision-making taking into account an estimation of all circumstances etc.

It is represented, that term for the acceptance of the public offer of the operator of electronic money resources is termless as the establishment of concrete term is inexpedient in connection with complexity for the client to trace the beginning of a current of term for acceptance of the public offer, namely the moment of placing of the public offer the operator of electronic money resources in a network the Internet.

As it has been specified earlier in the present research, the contract on transfer of electronic money resources is the consensual contract, that is it is considered entered into from the moment of agreement achievement on a unique essential condition - to a condition about a subject. According to item 1 of item 4 of the Law № 161 operator on transfer of money resources renders services in transfer of money resources on the basis of the contracts concluded with clients and between operators on transfer of money resources. Thus, a subject of the contract on transfer of electronic money resources is rendering of payment service which consists in realisation by the operator of electronic money resources of activity on granting to the addressee of means of electronic money resources of the payer under item 12 of item 3 of the Law № 161.

The operator of electronic money resources according to the order of the client generated and given on the basis of an electronic instrument of payment under item 3 of the Law № 161, at the expense of electronic money resources, electronic money resources considered by the operator, translates to the addressee - to the third party specified by the client. Thus we will notice, that the operator of electronic money resources considers electronic money resources by means of formation of the record reflecting the size of obligations of the operator of electronic money resources before the client in the sum of given money resources (the rest of electronic money resources)

According to item 4 of item 7 of the Law № 161.

Let's designate, that the contract on transfer of electronic money resources acts as the basis for occurrence of the several civil obligations developing between concrete accurately certain subjects - the client and the operator of electronic money resources. According to item 309 GK the Russian Federation operates a principle of appropriate execution of the obligation: to the appropriate person, the appropriate subject, appropriate way, in an appropriate place and in due time. So execution of a contract about transfer of electronic money resources assumes direct realisation of the legal obligations assigned to its parties, - contractual duties, creditor duties, non-contractual duties.

Let's consider the maintenance of the contract on transfer of electronic money resources. Execution of a contract about transfer of electronic money resources can consist in performance by the operator of electronic money resources, first of all, following duties:

- To identify the client;

- To update the information received at identification of the client;

- To store documents and the materials given by the client;

- To consider electronic money resources without opening of the bank account to the payer;

- To give an electronic instrument of payment;

- To translate electronic money resources;

- To inform the client on realisation of transfer of electronic money resources;

- To inform the client on collection from it compensations for transfer of electronic money resources;

- To "block" an electronic instrument of payment at the initiative of the client, that is to impose a ban for realisation of transfers of electronic money resources with use of a concrete electronic instrument of payment under the order

The client;

- To bear responsibility for actions involved with the operator of electronic money resources of the agent.

Discharge of duties under the contract on transfer of electronic money resources by the client can include, first of all:

- Duty preliminary to give money resources;

- Duty to give the personal data at desire to pass the simplified or full identification, a duty under the payment of expenses of the operator of electronic money resources;

- Duty to provide safe storage avtorizatsionnyh data which allow to spend autentifikatsiju the client in the way excluding possibility of reception to them of access of the third parties;

- Duty to use an electronic instrument of payment in the certain way, for example, the contract on transfer of electronic money resources the duty can be assigned to the client not to use another's computers or other devices for access to an electronic instrument of payment;

- Duty to give on request of the operator of electronic money resources the information and the documents confirming a source of an origin of money resources, given by the client to the operator of electronic money resources.

Despite lacking in the legislation of the Russian Federation of instructions on essential treaty provisions about transfer of electronic money resources, the analysis of a being of the specified contract allows to approve, that other conditions, for example, a condition about the price, are not essential treaty provisions about transfer of electronic money resources.

As the price of the contract on transfer of electronic money resources compensation which is paid by the client to the operator of electronic money resources acts. For example, in practice on the client the duty on payment of the commissions for realisation of each payment operation - for realisation of transfers of electronic money resources, for granting of money resources, for realisation of return of the rest of electronic money resources can be assigned. More often the condition about the price does not join in the text of the basic contract, and is established in special Rules, Tariffs etc., being appendices to the contract on transfer of electronic money resources. Thus completion of a condition absent in the contract on the price is possible by means of application of item 3 of item 424 GK the Russian Federation as it helps to fill adequately an absent condition about the price at presence in the market of indicators for definition of such price

Let's note, according to Law item 9 № 161 operator of electronic money resources is obliged to give to the client the information connected with use by the client of its electronic instrument of payment, including the information on collection from the client of compensation. Thus the concept of appropriate informing of the client of the legislation of the Russian Federation is absent. As a rule, the operator of electronic money resources to execute legislatively established duty of informing of the client about transfer of electronic money resources chooses least zatratnyj a way of informing, for example, a notice direction on an e-mail address of the client with use of a network the Internet. Such notice is represented ought as the legislator has not provided concrete criteria of such notice, for example, notice transfer on the protected communication channel, notice transfer to the oral or written form etc. Especially written form at an exchange of messages in a network the Internet, for example, by a direction of notices and letters on e-mail, is considered observed. Other example - quite often operator of electronic money resources gives to the client possibility of reception of such notice, for example, on cellular telephone number, by means of payment of corresponding services of the operator of electronic money resources.

Thus the right of the operator of electronic money resources to levy from the client compensation for transfer of electronic money resources, including including and a payment for informing, is provided in item 25 of item 7 of the Law ³2 161 concerning operators of electronic money resources. The decision of the world judge proving legality of an establishment in the contract on transfer of electronic money resources of the right of the operator of electronic money resources unilaterally to change the size of such compensation by means of sending to item 421 and 422 GK [248] under condition of timely notice of the client by the operator of electronic money resources about change of a rate of commission deserves criticism it agree item 36 of the Law of the Russian Federation from February, 7th 1992 № 2300-1 «About protection of the rights of consumers» [249] (further - the Law № 2300-1). Granting of such right to the operator of electronic money resources contradicts item item 2 310 GK the Russian Federation according to which unilateral change of conditions of the obligation connected with realisation of enterprise activity only by one of the parties (in our case - the operator of electronic money resources), is supposed only to the party which is not carrying out enterprise activity (in our case - to the client), and granting of such right to the operator of electronic money resources is not statutory or other legal act.

Character of the contract on transfer of electronic money resources is not urgent, the condition about term also is not among the essential. The contract on transfer of electronic money resources can be concluded both for certain term, and without term instructions. In the latter case the contract on transfer of electronic money resources will be considered as the prisoner for uncertain term. The deadline of the contract on transfer of electronic money resources legislatively in the Russian Federation is not provided.

Payment term also does not act as the essential treaty provision about transfer of electronic money resources. Payment term is defined by the parties in the contract on transfer of electronic money resources, in the right of the Russian Federation restrictions of freedom of the discretion of the parties in the given question at the expense of introduction of deadlines are not established. On a case of absence of a condition about payment term there is obshchevospolnjajushchaja a norm of item 314 GK the Russian Federation - «the obligation should be executed within seven days from the date of a presentation the creditor of the requirement about its execution».

Term of transfer of electronic money resources under the order of the client does not act as the essential treaty provision about transfer of electronic money resources. Such term is established by the parties in the contract on transfer of electronic money resources within the limits of the deadlines entered by the legislator according to item 10 and Law item 11 № 161 according to which transfer of electronic money resources is carried out promptly: by simultaneous acceptance by the operator of electronic money resources of the order of the client, reduction of the rest of electronic money resources of the payer by it and increases it of the rest of electronic money resources of the addressee for the transfer sum; with use of the prepaid card in time no more than three working days after acceptance by the operator of electronic money resources of the order of the client if more the short term is not provided by the contract concluded by the operator of electronic money resources with the client, or rules of payment system.

Speaking about specificity of responsibility, we will notice, that concrete measures of responsibility at the admission under the order of the client in the legislation of the Russian Federation are not provided by the operator of electronic money resources of term of transfer of electronic money resources. In this case it is possible to speak only about the right of the client to claim damages according to item 15 GK the Russian Federation and payments of percent for using another's money resources in connection with liability default it agree item 395 GK the Russian Federation. Chances of realisation of processing of the order of the client about increase in the rest of electronic money resources in payment service of electronic money resources during long term that can be caused, for example, technical failure. It is represented, occurrence of such circumstance depends on actions of the operator of electronic money resources and is under its control, and, hence, does not exclude its responsibility.

The operator of electronic money resources acts as the subject who is carrying out enterprise activity, therefore it bears responsibility irrespective of fault. Occurrence of technical failure unlike force majeure circumstances is not extreme and unavoidable circumstance which is not under the control of the operator of electronic money resources and does not depend on it. Only force majeure circumstances are characterised chrezvychajnostju and objective nepredotvratimostju under item 202 GK the Russian Federation, that is the given circumstances cannot be expected, but even if they could be expected, all of them cannot be prevented accessible to the operator of electronic money resources means.

Also in activity of the intermediary of the operator of electronic money resources in the name of the credit organisation accepting money resources from the client and translating to their operator of electronic money resources for transfer on an electronic instrument of payment of the client, there can be a suspension of transfer of the money resources accepted from physical persons lasting some days to the operator of the electronic money resources, caused by necessity of elimination of the critical vulnerability which has been found out in a hardware-software complex of such intermediary. On termination of debugging the intermediary of the operator of electronic money resources in transfer of electronic money resources is obliged to list to the operator of electronic money resources the money resources accepted in its advantage of physical persons in the course of elimination of vulnerability that the operator of electronic money resources a smog execute the order of the client about increase in the rest of electronic money resources in payment service of electronic money resources.

It is represented, that in this case the operator of electronic money resources also should bear responsibility before the client for third party actions - the intermediary who has been involved by the operator on transfer of electronic money resources for acceptance of money resources from the client and their transfer. The operator of electronic money resources is the businessman which bases of responsibility according to item 401 GK the Russian Federations lay in the field of a recognition of its activity brave that is expressed in requirements to its activity in the form of sufficient degree of discretion and care of possibility of execution of obligations as it is a question of execution by the operator of electronic money resources of its basic duty - duties on transfer of electronic money resources. Responsibility of the businessman is based that enterprise activity is an independent activity on the risk, that is its consequences completely cannot be predicted in advance. As a whole such brave responsibility, in our opinion, corresponds to principles of compensatory character of a civil liability more.

Thus unlike the operator of electronic money resources responsibility of the client as physical person is especially guilty. In its relation the presumption of innocence - fault operates and its degree should be proved.

Thus, making contract about transfer of electronic money resources is carried out by the acceptance by the client of the public offer of the operator of electronic money resources. Offer exhibiting is, as a rule, placing by the operator of electronic money resources of the text of the offer with instructions of the essential treaty provision on transfer of electronic money resources on the site - conditions about a subject (rendering of services in transfer of electronic money resources). The client makes the acceptance as full and unconditional acceptance of the offer in the form of fulfilment of the irrevocable unilateral contract, that is the purposeful action requiring perception by the operator of electronic money resources, implicative actions, for example, filling of registration forms on a site of the operator of electronic money resources, button pressing about the consent with offered by the operator of electronic money resources conditions.

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A source: KHRUSTALYOVA ANNA VALEREVNA. ELECTRONIC MONEY RESOURCES AS OBJECT of CIVIL MATTER. The dissertation On competition of a scientific degree of the master of laws. St.-Petersburg - 2018. 2018

More on topic § 2. The conclusion and the maintenance of the contract on transfer of the electronic Money resources:

  1. Dogovory about transfer of electronic money resources with use of payment cards
  2. CHAPTER 3. REALIZATION OF TRANSFER OF ELECTRONIC MONEY RESOURCES
  3. CHAPTER 2. SUBJECTS OF LEGAL RELATIONS ON TRANSFER OF ELECTRONIC MONEY RESOURCES
  4. § 3. A parity of concepts of electronic money resources and an electronic instrument of payment
  5. § 1. The operator of electronic money resources
  6. § 2. The legal nature of electronic money resources
  7. § 3. Payment return on disputable operation at calculations by the electronic Money resources
  8. § 1. Concept and signs of the contract on transfer of the electronic monetary Means
  9. Transfer of money resources with use of bank payment cards as the clearing settlement form: civil aspects
  10. § 1. A place of electronic money resources among objects civil The rights
  11. CHAPTER 1. CONCEPT OF ELECTRONIC MONEY RESOURCES
  12. Measures of civil responsibility of banks for infringement of the rights and legitimate interests of clients while translating electronic money resources
  13. the Chapter III. Civil responsibility of banks for infringement of the rights and legitimate interests of clients while translating electronic money resources.
  14. KHRUSTALYOV ANNA VALEREVNA. ELECTRONIC MONEY RESOURCES AS OBJECT of CIVIL MATTER. The dissertation On competition of a scientific degree of the master of laws. St.-Petersburg - 2018, 2018
  15. the bank account Contract as civil-law means of maintenance of clearing settlements with application of electronic instruments of payment
  16. § 3. Testamentary disposition by the rights to money resources in bank
  17. inheritance of the money resources brought into the accounts in banks, other credit organisations.
  18. a penalty parity (as way of protection) with losses and percent for using another's money resources
  19. § 5. Features of fulfilment of testamentary dispositions by the rights to money resources banks