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kinds of debt relationships as objects of maintenance of the penalty (in narrow sense)

Classification of contractual debt relationships is spent on a basis: 1) the moment of their occurrence (real, konsensualnye), 2)

The beginnings vozmezdnosti — reciprocative performance of the parties (vozmezdnye, gratuitous), 3) distributions of the rights and duties between the parties (unilateral, bilateral).

Other division is spent on dogovory the basic and preliminary; prisoners in favour of counterparts and advantage of the third parties; named and not named dogovory.

In our opinion, object of maintenance both lawful, and the contractual penalty are obligations of the parties on vozmezdnym, bilateral and unilateral, konsensualnym and to the real contracts invested with the statutory form and with observance of requirements about the state registration when it is statutory in each case.

At the same time obligations of the parties can be object of maintenance of the penalty, for example, under the real estate sale contract (item 551 GK the Russian Federation) and when there is no state registration of transition of the property right to the real estate in case of evasion of one of the parties from gosudarstven - if ache registration as such contract admits to prisoners since the moment

Signings by the contract parties as uniform document according to point 1 of article 433 GK the Russian Federation. Similar registration should not be identified with the state registration of the contract [73].

As is known, the law allows fulfilment of contracts and in the oral form though possibility of fulfilment of contracts in the oral form is limited on the basis of its subject structure and the sum constituting its subject. For example, in the oral form can consist dogovory, executed at most them with ** holding court (for example, at acquisition of the goods in retail shops, when

Transfer of the goods and its payment is made in one stage).

At first sight, apparently, that object of maintenance specified obja - zatelstva are not, as obligations arise and are executed during the same moment, between the parties there is no agreement on the penalty.

Meanwhile it not absolutely so. The specified legal relations can be object of maintenance of the lawful penalty. So, for example, the Law of the Russian Federation "About protection of the rights of consumers" provides the penalty at a rate of 1 % from the price of the goods per every day of delay for untimely satisfaction of requirements of the buyer concerning lacks of the sold goods. The contractual penalty in this case also is possible, but only in case of its coordination the seller and the buyer (manufacturer) in addition in writing.

Differently, obligations of the parties under the verbal contract can be object of maintenance of the penalty provided in the law, — on cases of infringement of obligations by a concrete kind of civil matters.

Studying of normative acts shows, that the legislator ambiguously solves a question on possibility of maintenance with the penalty of gratuitous debt relationships under the contract of gratuitous using (loan), donation, gratitous bailment. The reason here is covered that ź... Civil-law forms of contractual and some other social communications combine two various has begun - imperativeness and optionality╗ which being is reduced to ź... To legal freedom of subjects based on the law to carry out the legal personality and rights at own discretion╗, or ź...

The legal necessity of subjects based on the law to carry out the legal personality and to fulfil subjective duties according to law requirements...╗ [74].

Apparently, the law regulates those or other gratuitous debt relationships from a position of the imperativeness ordering to subjects of the obligation to carry out the legal personality in strict conformity with requirements of the law by which putting on possibility is not provided

Obligation liability of infringement, except that, that in it (grazhdanskopravovoj to norm) is specified, the penalty (as a way of maintenance of the obligation - at a stage of making contract (obligation), as the civil responsibility form - at a stage of infringement of the obligation (item 689 GK the Russian Federation) cannot be applicable, in our opinion.

The situation and regarding responsibility of the keeper is represented similar at gratitous bailment (item 2, item 902 GK the Russian Federation).

It is necessary to notice, that the law forbids donation in any form, in particular, under the contractual relations concluded between the commercial organisations (item 575 GK the Russian Federation). Recently the commercial organisations in practice often enough apply in relations of property goods turnover institute of a concession requirements (delegation). The Statutory interdiction extends on the conclusion between the commercial organisations of contracts on a concession of the requirement (delegation), having the gratuitous character, qualified as the gift contract [75].

Debt relationships between the commercial organisations, irrespective of the form and the name of the concluded contract, representing on the legal nature civil relations of donation, cannot be object of maintenance of the penalty owing to the law express prohibition. Are not object of the penalty and the relation on the donation, arising between the persons specified in article 575 GK the Russian Federation.

With reference to a problem of the penalty object of protection those cases when the law does not allow the donator to refuse execution of the duties can be only, nevertheless last has broken the obligation.

On the contrary, źloan recipient duties under the thing maintenance╗ do not forbid the parties to provide appropriate execution of such debt relationships by the penalty. At the same time, the legislator in limits

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One kind of obligations relations can solve differently a question on protection and maintenance of those or other kinds of concrete obligations of the parties (item 695 GK the Russian Federation).

At regulation of gratuitous contracts the different approach of the legislator in definition of object of the penalty concerning bound party obligations comes to light. Under the unilateral treaty when duties on execution of a contract lay on one party (donation) by object of maintenance by the penalty of appropriate execution of obligations in a part, obligations only a bound party (donator) are statutory. Under the bilateral contract when the parties have mutual obligations under the relation before each other, not carrying vozmezdnyj character, object of the penalty are party obligations in which interests the contract (a loan recipient under the contract of gratuitous using) is made.

Interesting the gratuitous bailment thereupon is. The question on, whether is the given contract unilateral [76] or the two-way deal [77], or under certain circumstances - the given contract is transformed in bilateral [78], continues to remain debatable.

(Item 886 GK the Russian Federation) follows from legal definition of the bailment for hire, that the bailment for hire consists in interests of the depositor. A main objective of the given relations - thing preservation in integrities and its returning in safety to the depositor in this connection the depositor does not have counter obligations in relation to the keeper. Therefore hardly here it is possible to talk about appropriate execution by the depositor of a duty of reception of the deposited thing - as object of the penalty.

In the literature there is an opinion that under not connected with payment of compensation by duties of the depositor necessity of compensation to the keeper of the caused losses is meant mainly, and also reception of the deposited thing [79].

The similar point of view is fairly criticised on those bases, that it is outside of concepts "reciprocity" and "vstrechnost" [80].

These duties of the depositor can be object of maintenance of the penalty (item 888, 899 GK the Russian Federation).

It is necessary to agree with M.I.Braginskogo's opinion which considers, that gratitous bailment, as well as donation, gratuitous using a thing, gratuitous delivery by the transport organisation of tickets to the persons allocated with the right to free pass, — these and all gratuitous contracts similar to them have for an object to protect interests of one of counterparts. In its opinion, the unique way to provide execution of the obligation of that from the parties which addresses for services is a granting to the counterpart of the right to claim damages [81].

The stated allows to draw a conclusion that as a whole under gratuitous contracts on which there is no counter obligation of the party in which interests the contract is concluded, only appropriate execution of the obligation of other party can be direct object of the penalty.

Within the limits of cummutative contracts some authors discriminate "exchange" and "brave" (games and bets), źon the purpose and intention of the parties an end result╗ which, material assets are put in dependence on event absolutely unknown or casually or only it is probable, so at their conclusion it is absolutely not known, which party in an end result wins, will receive benefit ╗[82].

As the legislation of other countries, the Civil code of the Russian Federation has apprehended an uncooperative altitude to games and a bet: the requirements connected with the organisation of games and a bet and participation in them, do not come under to judicial protection (item 1062 GK the Russian Federation), except for some cases.

It is thought, that there where the law with a view of protection of the rights and interests of participants of games imperatively establishes some duties of their organizers (item 1063 GK the Russian Federation) when as their organizers special subjects — the Russian Federation, municipal unions act, and also the persons who have received from authorised state or municipal body the permission (licence) to carrying out of games, in case of default by the organizer of games of a duty to pay a prize, the won participant have the right to demand, along with a prize and the indemnification, penalty payments if that is provided in rules of carrying out of game [83].

Concerning security of preliminary contracts it is necessary to tell the following.

Under such contract of the party undertake to conclude in the future the contract on assignation, performance of works, rendering of services (the basic contract) on the conditions provided by the preliminary contract. Under such contract the parties have a duty - "one for two" to conclude the contract [84].

The given obligations have no counter character, do not generate the basic obligation (purchase and sale, rent, etc.). Counter-execution takes place in cummutative contracts to what preliminary dogovory do not concern.

At evasion of one of the parties from the conclusion of the basic contract the court has the right on request of other party about compulsion to making contract to make the decision on a recognition of the basic contract the prisoner. However the conclusion of the basic contract in itself also automatically does not mean, that the parties will execute in the future properly its conditions on assignation (to performance of works, rendering of services).

In this connection penalty application for evasion from making contract would lead to some warp of valuable interests of the parties, in a case when the contract for any reasons will not be executed.

At infringement by the unfair buyer of the duty under the advance payment of the goods the contract will be considered not executed because of the party (item 328 GK the Russian Federation) which, in our case, was the initiator of the conclusion of the basic contract and in which advantage the penalty is collected.

Any penalty urged to stimulate appropriate execution of the obligation, to compensate losses of the creditor. The penalty would serve in the case considered above as means of enrichment at the expense of property sphere of other party.

Owing to the preliminary contract of the party are deprived possibility to demand from the counterpart of specific performance of the obligation which only is supposed to be included in the basic contract, in the cases which are coming within the purview of articles 463, 398 GK the Russian Federation [85].

Under K.I.Sklovskogo's statement, there are no doubts, that the preliminary contract is not included in sphere of action of item 397 GK the Russian Federation as not any obligation is subordinated to this mechanism. In similar cases it is a question about actual actions (to transfer a thing, to perform work). Execution of the preliminary contract consists in fulfilment of actions legal (the conclusion

The basic contract) [86].

On a case of evasion of one of the parties from a duty on the conclusion of the basic contract the legislator applies the rules intended for making contract without fail (item 4 of item 445 GK the Russian Federation), namely: possibility of compulsion of other party to the conclusion of the basic contract and collecting of losses.

As a result of the indemnification the broken valuable interests of the party would be to the full compensated. At the same time, at this party would not remain "openings" for reception of any additional sums in the form of the penalty at which collecting proving of the fact of causing of losses and their size is not required.

Really, application as a measure of responsibility of the penalty for infringement of a duty of the party on making contract would contradict the institute of the civil legislation on obligation maintenance, maintenance functions, is possible to principles of the civil legislation on a rationality and justice.

The given statement is not indisputable as in the law there is no express prohibition on the coordination the penalty parties on a case of infringement by the parties of the preliminary contract.

Opponents of the given point of view as a refutation the argument that to consequences of evasion from the conclusion of the basic contract under the preliminary contract the rules intended for making contract without fail are applied can be resulted. Under such contracts at evasion of one of the party from making contract by the law the penalty on a case of infringement of the obligation on making contract is provided. For example, the Federal act "About the state material reserve" provides payment by the supplier of the penalty in the form of the penalty in size

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Costs of production defined in the project of the state contract.

However it is represented, that in a legal regime of regulation of the conclusion of contracts without fail and preliminary contracts there is a distinction.

In the literature there is an opinion of different authors that on the legal nature are preliminary the bailment for hire [87 [88], a loan, the guarantee contract, the prisoner for maintenance of the obligation which will arise in the future (item 361 GK the Russian Federation), the contract on the organisation of transportations (item 798 GK the Russian Federation), the credit contract (item 819 GK the Russian Federation), the bank account contract (item 845 GK the Russian Federation) [89], as, however, and any other real contract [90]. Real contracts for the occurrence assume the agreement plus thing transfer. The law establishes the penalties applied for infringement of the contractual obligation, having on the legal nature preliminary character (for example, under the contract on the organisation of transportations - the penalty for default of the plan of transportations).

The analysis of judicial-arbitration practice of application of the penalty for infringement of the specified contracts allows to draw a conclusion that the penalty is collected for infringement of obligations under the basic contract that is when the basic contract is considered the prisoner, however in the inadequate image is executed by one of the parties [91].

Comparing among themselves consequences of infringement of preliminary and basic contracts, it is necessary to mean, that in the first case it is a question of indemnification of negative interest (interest to the conclusion of the basic contract), and in the second — positive interest of the creditor to observance objazatel -

stva the counterpart, broken by its inadequate execution under the basic contract. It is possible to assume in advance, that in the first case losses will appear less, than in the second. Hence, the risk of infringement of the basic contract is exceeded obviously by what is connected with infringement preliminary договора1.

Thus, in the preliminary contract there is no object obespe - chenija the penalties, connected with assignation (performance of works, an eye

zaniem services) and it is direct with property. The parties in the absence of the basic contract do not act under the relation to each other as the creditor and the debtor. The party obligation under the preliminary contract in the form of evasion from the conclusion of the basic contract should be provided by general rules about responsibility in the form of collecting of losses, in connection with an originality of the preliminary contract, as a party duty on making contract not korrespondiruet to the counter obligation of another, connected ^ with transition property благ2.

At the same time, the parties have the right to adjust in the preliminary contract along with conditions about a subject and essential conditions of the basic obligation, terms of its execution, as well the penal clause on a case of inadequate execution of the basic obligation. In case of the conclusion this penalty will be considered as the parties of the basic contract contractual under the basic obligation that does not contradict law requirements.

The new Civil code of the Russian Federation proclaims a principle of freedom of the contract which means the right of citizens and legal bodies to conclude or not to conclude the contract, and also freedom of choice of the concluded contract, including the contract, not statutory or other legal acts, but to -

1 See: Braginsky M. I, Vitrjansky V.V. Ukaz. soch. - with. 189.

2 In the literature there is also other point of view on the given question. In particular, K.I.Sklovsky considers, that it is necessary to reserve maintenance of the most preliminary contract specially. Callable owing to the law it is necessary to prove losses. It is more convenient to enter the penalty. See: Sklovskij K.I.

Ukaz.soch. - С.476.

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torye owing to general principles and sense of the civil legislation generate the civil rights and duties.

In the literature such dogovory are called as "not named". In this connection the question on what norms is discussed and in what sequence should be applied to them [92 [93] [94].

To not named contracts which are not keeping within frameworks certain type and a kind of contracts named in the legislation, it is necessary to apply general provisions of obligations (conventional law) regarding regulation of an order of their occurrence, execution, responsibility, etc., norms of similar type of contracts - regarding an establishment of a subject of debt relationship, the rights and duties of the parties, infringement consequences

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Obligations, etc. At last, questions which cannot be resolved that -

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kim in the way, should dare on the basis of legislation general principles.

Finding-out of character of object and the penalty purpose is concerned by article 6 GK the Russian Federation, for it regulates possibility of application of the legal analogy (the legislation regulating similar relations) or analogy of the right (regulation of the right and duties of the parties, proceeding from general principles and sense of the legislation, requirements of conscientiousness, a rationality and justice) [95].

In connection with a recognition the legislator of possibility of protection of not named contracts, in our opinion, the obligations of the parties following from such contracts, certainly, can be object of maintenance of the penalty adjusted by the parties.

In party practice often enough resort at regulation of the mutual relations to a design of "not named contract", in which

Establish the contractual penalty.

In case of an establishment the parties in "not named contract" - the contractual penalty, the creditor, whose interests are broken, have the right to address for protection of the interests at own discretion: he can demand penalty, or losses, or both the first and the second according to statutory order (item 394 GK the Russian Federation), or bank percent for using another's money resources (under liabilities).

Judicial-arbitration practice starts with a principle of protection of interests of the creditor by application contractual неустойки1.

In the absence of the coordination the parties in "not named contract╗ penalties the lawful penalty established for infringement of the obligation on similar, special legal relations, is not applicable.

To such legal relations, in case of infringement of the obligation by the parties, the responsibility established in General provisions on obligations (losses, bank percent for using another's money resources (under liabilities) should be applied.

The problem of an establishment of the rights and duties of the parties, subject, not the statutory contract, is closely connected and with the so-called mixed contracts which have found the regulation in the law (item Z item 421 GK the Russian Federation).

Perfection of contractual designs, marks M.I.Braginsky, goes mainly in the area of their complication, a combination in one version of elements various договоров3.

A number of the mixed contracts as an independent kind is provided also by the Civil code (for example, hiring-sale). Dogovory transportations, under G.F.Shershenevicha's statement, are reduced to a set of elements of personal hiring, property hiring, load, поручения4.

1 the Bulletin YOU the Russian Federation See, for example. 1997. - № 6. - with. 107.

2 See: the Bulletin YOU the Russian Federation. 1998. - № 12. - S.68-69.

3 See: Braginsky M. I, Vitrjansky V.V. Ukaz.soch. - С.331.

4 See: Shershenevich G. F. A commercial law course. T.2. - С.241.

As is known, under the mixed contract to relations of the parties are applied in corresponding parts of a rule about the contracts which elements contain in this contract if other does not follow from the agreement of the parties or a being of the mixed contract.

It is thought, that the answer to a question is positive what probably to apply established to special legal relations by the law the penalty for obligation infringement in a corresponding part of legal relation if elements of this legal relation are regulated by rules about this contract.

Meanwhile, in the literature there is also other point of view.

V.A.Ojgenziht believed, that mixed dogovory differ that "in all of them... It is integrated into one complex object", that in them "... Application of the norms concerning not to the given integrated contract" [96] is excluded.

However hardly refusal of application corresponding to each part of legal relation under the mixed contract of norms would allow the parties to provide most full protection of the interests under such contract. Besides, there would be in the extremely inconvenient position the courts which are resolving disputes in connection with inadequate execution by the parties of mixed contracts. Now judicial-arbitration practice does not test fluctuations in definition of the legal nature of the mixed contracts, and also in application of the contractual penalty adjusted by the parties under the mixed contract [97].

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A source: Malikova Elza Maratovna. penalty Legal regulation at the present stage. The dissertation on competition of a scientific degree of the master of laws. Kazan -. 2001

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