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§ 5. Ways of execution of the contractual obligation

The civil legislation does not contain term explanations "a way of execution". In the legal literature the way of execution objazatelyostva is understood as an order of its execution. [44] order of execution of the obligation is defined, as a rule, by conditions of the concrete contract or norms, reyogulirujushchimi separate kinds of obligations.

The way of execution of obligations is of interest in a case when the debtor is obliged to transfer to the creditor any set of things (the equipment complete set, the determinate sum of money etc.). Then can arise voyo
pros: whether it has the right to execute the obligation in parts or should execute by all means it entirely?

Obligation execution in parts can be burdensome or nevyyogodnym for the creditor and consequently under the general rule (item 311 GK) to it predosyotavljaetsja the right such execution not to accept, if other does not follow from usyolovii obligations, the normative act, customs of a business turn or sushcheyostva obligations.

Really, the being of the obligation when an obligation subject is the indivisible thing, fine arts product, the action and other valuable paper in a singular, an uninhabited premise, predosyotavljaemoe under the rent contract and other, assumes execution as a whole, instead of in parts. Besides, the reference in article on "an obligation being" pozvoljayoet to consider features of a concrete kind of the obligation at filling of the gaps in the law, other legal acts and the contract. So, for the contractor moyozhet to be recognised the right to demand at building realisation priniyomat disappearing result of works (for example, the prepared base of a building).

Execution offered by the debtor in parts when it should ispolyonjatsja as a whole, and on the contrary, the creditor has the right (but is not obliged) not to accept. In that case the debtor is considered delayed execution with the consequences established on a case of delay of the debtor (item 405 GK). If, napriyomer, the creditor legally has refused acceptance of a part of a debt (and it followed make only as a whole) under the credit obligation, the debtor is obliged playotit percent, proceeding from all amount due, including that which acceptance the creditor has legally refused.

In cases when it is a question of counter obligations, the right on chastichyonoe execution in itself is not connected with the correlating passer objazayotelstvom. For this reason if in the contract the condition, which doyopuskaet shipment of the goods either entirely, or in parts contains, the seller, having shipped -
shy the goods partially, have the right to demand payment of corresponding party only in cases when in the contract it is provided, along with the right unilateral peyoredachi the goods, and a duty of their preschedule payment. As an example can serve item 1 of item 711 GK, demanding special instructions on payment of the accepted stages of works. At the same time the big parties of raw materials, materials are transferred in parts in the volumes adjusted by the parties and agreed periods; separate turns of technically difficult objects kapitalnoyogo buildings are stage by stage put in operation; cargoes on a warehouse of the addressee and so forth are delivered

GK provides obligation part performance mainly in connection with realisation of calculations for the transferred goods or the performed works.

Payment possibility by instalments under purchase and sale contracts (item 486 item 2, item 489, item Z item 500), and also podrjada (item 735) Means. Also in GK the Russian Federation (items 1 and 3 items 753) the question on possibility and consequences sdayochi and acceptance of separate stages of works under the contract building podrjada is settled.

In practice quite often there are affairs when one party fulfils the duties under the contract, and another does not execute, referring that objayozannosti are executed by the counterpart not in full. In such cases oriyoentirovatsja without article 328 about counter-execution which is novelyoloj in GK the Russian Federation, very difficult. Counter-execution takes place in cummutative contracts with reference to which it is called in GK also as counter granting (see item 423 GK).

Article 328 GK GF concerns only contracts, and only to those from them which are among bilateral, constructed by a principle "I give, that you have given”. A typical example are dogovory purchase and sale, exchanges, podrjada and others. To contracts vozmezdnym, but unilateral (for example, to the loan for consumption, including a percentage loan) this article not priyomenjaetsja.

Execution admits that case when from the contract vyteyokaet, that discharge of duties by one counterpart is made only to passers
After this duty is executed by other counterpart in the contract. For example, in the delivery contract the advance payment and ustayonovleno is provided, that the supplier ships production only after reception of means from the buyer. The passer here is execution of the obligation by the supplier, carried out under condition of execution (payment for production) other party.

That special design when not simply parties vyyostupajut simultaneously the debtor and the creditor under the relation to each other, but are also interrelation also consists in it: execution of their obligations is caused.

The sequence of execution of usual mutual obligations ustanavyolivaetsja the law, the contract, can follow from an obligation being, but counter-execution in sense of item 328 GK is established only dogovoyorom. Accordingly and delay in performance consequences are various. Under the usual mutual obligation at delay of the debtor the creditor has the right to refuse execution but in the event that will prove, that execution utyoratilo for it interest (item 405 GK). Counter execution is possible priosyotanovit or to refuse execution and to demand the indemnification owing to the fact of an unaccordance of the caused execution. In spetsialyonyh the norms devoted to separate kinds of contracts, direct sendings to article 328 GK (see in particular, item 719 GK) contain sometimes.

At the same time, in some cases at default of counter duty GK provides narrower circle of consequences in comparison with predusmotyorennym in item 328 GK. In particular, owing to item 463 GK refusal of the seller to transfer to the buyer the sold goods generate at the buyer the right to refuse from isyopolnenija purchase and sale. Such edition, however, does not exclude application and to purchase and sale of all volume of the consequences containing in item 328 GK.

Arbitration courts, leaning against the new civil legislation, poyostepenno turn out practice of application of item 328 of the Code.

So, a society with limited liability "Ritsa-Intorg", obratiyolos in Arbitration court of Omsk area with the claim to Savings bank of the Russian Federation in the name of Omsk bank about collecting of 453 914 625 roubles of the penalty on credit delivery under the contract, 58 187 357 roubles of percent, nedoyoplachennyh under the certificate of deposit got under the contract, 155 387 289 roubles of percent for using another's money resources.

The claim is satisfied by the decree partially: 403 374 000 roubles peni and 53 350 000 roubles of percent for using strangers monetary sredyostvami are collected. In other part of the claim it is given up. Appeal inyostantsii from 04.09.96 the decision is left by the decision without changes.

Federal arbitration court of the Western-Siberian district postanovleyoniem from 17.10. 96 has left the decision of the first and the decision of appeal instance without change.

In the protest of the vice-president of the Supreme Arbitration Court of Rosyosijsky Federation it is offered to cancel the named judicial certificates regarding penalty and in this part of the claim to give up.

The presidium 4684/96 from April, 1st, 1997 has satisfied the protest with decision N on following bases.

Between savings bank of the Russian Federation in the name of Omsk bank and Open Company "Ritsa-Intorg" the credit contract оті 7.11.95 N 13 about granting of 880 000 US dollars till 15.01.96 under 30 percent godoyovyh is concluded. According to treaty provisions the loan is given by bank in time not later than three bank days from the moment of acquisition by the borrower of certificates of deposit as maintenance of execution of a contract. With a view of return of the loan and percent for its use acceptance by bank dogoyovora the pledge of rights is provided, following from the certificates of deposit which list should be enclosed to the contract and is its integral part. DepoYOzitnye certificates came under to transfer on storage in bank. In a case nepreyo
dostavlenija the credit the bank was obliged has paid »to the borrower penju at a rate of 0,5 percent from the detained sum per every day of delay.

Thus, delivery by loan bank is put in dependence from isyopolnenija by the borrower of the obligation on acquisition depositary sertifikayotov, the pledge of rights on which is means of maintenance of return of the credit.

The same parties conclude two contracts on entering into the deposit of bank for the term up to 15.01.96 of 500 000 000 roubles (from 26.10.95 N 62) and 120 0000 000 roubles (from 23.11.95 N97).

On conditions of these contracts the bank should write out, and Open Company "Ritsa-Intorg" to receive certificates of deposit not later than two working days from the moment of deposit transfer into the bank account. Any proofs of reception depoyozitnyh certificates under the specified contracts and their transfers on hraneyonie in bank, and also makings contract of the pledge of rights, following of depozityonyh certificates, in business are not available. The list of certificates of deposit to doyogovoru is not enclosed. Hence, the borrower has not executed the passer objazayotelstva on acquisition of certificates of deposit as it should be obesyopechenija obligation execution under the credit contract from 17.11.95 N 13.

According to item 2 of item 328 GK the Russian Federation in case of default obliged stoyoronoj the obligation caused by the contract the party on which counter-execution lays, has the right to suspend execution of the objazatelstyova or to refuse execution of this obligation. As Open Company "Ritsa - Intorg" has not presented proofs of acquisition of certificates as maintenance of return of the credit, the Omsk bank had bases for refusal in its delivery. Therefore application of responsibility for a credit unaccordance in a kind peni at a rate of 0,5 percent from the detained sum of the credit, preduyosmotrennoj the contract from 17.11.95 N13, is groundless.

The court has incorrectly estimated proofs and has come to an erroneous conclusion about nayolichii the bases for penalty.

Considering stated and being guided by articles 187-189 of the Arbitration code of practice of the Russian Federation, the Presidium of the Higher ArbitYOrazhnogo has enacted Vessels of the Russian Federation:

The decision from 05.05.96, the decision of appeal instance from 04.09.96 of Omsk area of Arbitration court on business N11-113, postanovleyonie Federal arbitration court of the Western-Siberian district from 07.10.96 on the same business to cancel regarding collecting of 403 374 000 roubles peni and in this part of the claim to give up.

In other part the named judicial certificates to leave without change. [45]

As it was marked above, counter granting constitutes an element ljuyobogo the cummutative contract. However, not any cummutative contract contains a condition about counter character of execution in sense of item 328 GK. We will result such example. The customer under the contract building podrjada is obliged during the currency of the contract to translate monthly to 1 number money resources for performance of certain amount of works, and the contractor carries out opredelenyonyj amount of works not later than 28 numbers of each month in action dogoyovora. On sense of item 328 GK if in the contract specially it is not reserved, that isyopolnenie the contractor is the passer, i.e. that it performs works only after reception of money the contractor will bear responsibility for obligation delay in performance even if the customer and has not executed the obligation.

So, limited liability company "Edition" Park "has addressed in arbitration court of Novosibirsk area with the claim to edition gayozety"Sheets"about collecting of 4 012 000 roubles of the losses caused neisyopolneniem of the contractual obligation and 2 802 600 roubles of the penalty for delay of payments. Taking into account the subsequent change of claims the sum

The penalty has constituted 5 891 840 roubles. The decision from 12.10.95, ostavlenyonym without change by the decision of appeal instance from 13.12.95 and the decision of court of cassation from 26.02.96, claims are satisfied completely.

In the protest of the vice-president of the Supreme Arbitration Court of Rosyosijsky Federation it was offered to change all taken place judicial certificates, having given up in the claim regarding exaction of a penalty.

The presidium (1947/96 from September, 10th, 1996) has considered decision N, that the decision and decisions appeal and court of cassation podyolezhit to cancellation with non-suit completely on following bases. In sootyovetstvii with the contract from 30.12.94 N 3 Open Companies "Editions" Park "predostavljayolo editions of the newspaper of"Sheet"for the publication the program of telecasts of a television broadcasting station"World". Newspaper edition should make predyovaritelnuju payment at a rate of 400 US dollars in a rouble equivalent to the first day of each month. Since May, 1995, newspaper edition"VeYOdomosti"has ceased to make payments that has formed the basis for a presentation to it of the action for damages which size was opredeyolen proceeding from debts for May and June, 1995, and the penalty for delay of payment provided by the contract. The given claim has been satisfied by court.

However at the resolution of dispute the court does not consider that circumstance, that the claimant also has not executed the contractual obligations: has not transferred edition of the newspaper of a program schedule of a television broadcasting station "World" during the disputable period.

By the contract from 30.12.94 N 3 it is not caused, that execution of obligations of one of the parties is carried out only after execution of the obligations by other party (counter-execution of obligations). At such conditions osyonovanija for responsibility of edition of the newspaper of "Sheet" are absent, poyoetomu claims did not come under to satisfaction.

Considering stated and being guided by articles 187-189 Arbitration
The code of practice of the Russian Federation, the Presidium of the Higher ArbitYOrazhnogo has enacted Vessels of the Russian Federation:

The decision from 12.10.95, the decision of appeal instance from 13.12.95 of Novosibirsk area of Arbitration court and decision FeYOderalnogo of arbitration court of the Western-Siberian district from 26.02.96г. On business N 33/48 to cancel. In the claim to give up. [46]

The resulted examples show, what not any condition on predvariyotelnoj to payment testifies to counter-execution. The certain communication, testifying that one duty ispolyonjaetsja only after duties are fulfilled by the counterpart is for this purpose necessary.

This situation varies with reference to purchase and sale. Now according to item 487 GK the obligation of purchase and sale (delivery) with preliminary oplayotoj is considered the obligation with counter-execution to which primeyonjajutsja item 328 GK corrected. From the given contract it is not necessary to establish obuyoslovlennost executions. There is enough, that in it there was a condition about predvayoritelnoj to payment of the goods by the buyer. All consequences on item 328, that is the right to refuse execution of a contract thus operate at absence deyoneg, the right to suspend execution of a contract by the seller on transfer tovayorov - all it operates automatically.

Special interest represents a way of execution of the liability at impossibility of the debtor to pay money personally to the creditor or upolnoyomochennomu to them to the person owing to the circumstances specified in item 327 GK (otsutstyovija the creditor or the person authorised by it to accept execution, in a place where the obligation should be executed; incapacity of the creditor and otsutstyovija at it the representative; obvious absence of definiteness apropos toyogo who is the creditor under the obligation, in particular, in connection with dispute

In this occasion between the creditor and other persons; evasion krediyotora from acceptance of execution or other delay from its party) the debtor has the right to bring a debt in the deposit of the notary, and in cases, statutory, - in the court deposit. In particular of such right the contractor can take advantage at absence of the customer behind result of the performed work or other evasion from its acceptance throughout a month from the date of when there should be proizvedeyona a delivery of result of works. After the double subsequent prevention of the customer the contractor has a right to sell result of works, and vyruchenyonuju the sum, minus all payments due to the contractor, to bring addressed to the customer in the deposit of the notary or court (the item bet. 720 GK).

The similar right of sale of object podrjada and transfers of the realised sum to the deposit of the notary or court allocates the contractor and at household podrjayode. However a right procedure in this case a little other. imeyoetsja in a kind, that item 738 GK extends corresponding term about two months, demands the unitary written prevention and especially provides necessity of sale of a corresponding thing "under the reasonable price".

At all variety of the bases of the deposit all of them attract the same consequences: entering of money or securities into the deposit admits nadleyozhashchim execution. The duty of the notary or court includes the notice of the creditor on the accepted execution. The obligation termination at such way of execution as follows from item 2 of item 327 GK, comes during the moment vneseyonija money to the notary (court). However it is necessary to notice, that in arbitration practice sometimes non receipt by the creditor of the money which is in the deposit, rasyosmatrivaetsja as evasion from acceptance of execution.

The arbitration dispute confirming is represented interesting, that nevostrebovanie the seller of property of the money resources brought pokupayotelem on the deposit of the notary, is not the basis for cancellation dogovoyora purchase and sale.

The award Committee on management of property was ponuzhden to conclude the contract of purchase attached uninhabited pomeyoshchenija with the limited liability company. In connection with nepostupyoleniem money resources on the committee settlement account in cost payment poyomeshchenija the Committee has addressed with the rescissory action of the contract of purchase with association.

The court has dismissed the Committee requirement, proceeding from the following: according to the presented materials of business in connection with evasion of the seller from podpisayonija contracts and hindrance in transfer of a disputable premise in sobstyovennost the buyer the repayment sum has been brought in the deposit of the notary on osnoyovanii item 327 GK the Russian Federation. In writing notified by the notary in depoyozite the sum of the repayment the Committee has not informed the requisites on presence (the name of bank and settlement account number) on which it was possible to list the sum granted on the deposit.

The committee to association had been directed the claim with trebovaniyoem to list premise cost, and then in arbitration court the claim referring to infringement of a procedure of payments under the contract of purchase, not supposing cost payment under such contract from the depositary account notayoriusa is transferred.

The arbitration court at the resolution of dispute has characterised actions KomiYOteta as evasion from obligation acceptance of execution. Owing to a part 4 items 1 of item 327 the debtor has the right to place money due from it or valuable bumayogi in the deposit of the notary, and in cases, statutory, in the court deposit if the obligation cannot be executed the debtor owing to ukloneyonija the creditor from acceptance of execution or other delay from its party. [47]

It is necessary to notice, that for execution of the obligation by entering of a debt in the deposit unlike earlier operating item 185 GK RSFSR of 1964 it is necessary to consider the list of the bases established by item 327 GK settling. And owing to it this special provision does not come under broad tolkovayoniju.

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A source: Dorenkova Julia Mihajlovna. Execution of a contractual obligation in the civil law of Russia. Thesis for a candidate of law degree.

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