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§ 3. Participation of the third parties in maintenance of execution of obligations.

1. «For occurrence of relations with participation of the third parties, - wrote M. To.

1 Semenova L.I.putting of obligation execution on the third parties in relations between the socialist organisations.//Jurisprudence.

1966, №3, with. 122.

Braginsky M. I. Structure of contractual communications and responsibility of participants by deliveries by transit. - M.: VJUZI, 1960, with. 79.

Sulejmenov, - presence, at least, two legal relations inseparably linked among themselves and the friend from the friend following »[259 [260] [261] is necessary.

In our opinion, it is necessary to agree with V.A.Hohlovym that in the operating Russian legislation maintenance of execution of obligations is understood as an establishment in interests of the creditor of additional legal relations therefore the last has additional rights - legally significant claims of the authorised party in the obligation, allowing it is not so much to guarantee execution, how many to receive «an execution equivalent» otherwise (from other source, in another way, from other subject, etc.).

The given feature of a legal design of maintenance of execution of obligations is marked also by M.I.Braginsky, specifying, that value of ways of maintenance of obligations consists that the additional obligation which is close joins the main obligation

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It is connected with the main thing. As specified F.I.Gavze, any of the established ways of maintenance of execution of obligations leads to that except the main thing, the provided obligation, there is a new obligation [262]. «All the ways long maintenance of obligations, - I.G.Panaiotov wrote, - arise in the form of obligations relations» [263].

Thus, it is possible to draw a conclusion, that ways of maintenance of execution of obligations are measures of prompting of the debtor ought

In the image to execute a duty laying on it, carried out by joining to the basic obligation additional, generating at the debtor (or the third party) a duty in case of default or inadequate execution by the debtor of the basic obligation to pay (as a rule, to the creditor) a certain sum of money [264 [265].

About

As follows from sense of items. 2, 3 items 329 GK the Russian Federation maintenance of execution of the obligation are assumed by existence of other obligation providing the basic obligation. In other words, use of one of ways of maintenance of execution of the obligation creates new obespechitelnoe the obligation.

According to B.M.Gongalo, position according to which maintenance of execution of the obligation creates between the creditor under this obligation and the person providing the obligation, the obligations relation, additional (accessory) is conventional in relation to

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To the main obligation. Really, debt relationship occurrence between the creditor and the debtor (or other person who provides the obligation of the debtor) takes place at use of any of items 329 GK listed in item 1 the Russian Federation of ways of maintenance of execution of obligations, except deduction. On B.M.Gongalo's this basis comes to conclusion, that deduction of property of the debtor to ways of maintenance of execution of obligations to concern should not also its inclusion in number of such ways is made unreasonably.

According to B.M.Gongalo deduction is a measure of operative influence [266]. It is interesting, that with a view of a reinforcement of the

B.M.Gongalo's positions refers to V.S.Ema who, after V.P.Gribanovym1, carries the right of retention to a version of measures of operative influence, namely to the measures of operative influence connected with

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Reciprocative performance maintenance. However, from the point of view of V.S.Ema, measures of operative influence, in turn, are necessary for carrying to statutory, but not specified in item 1 of item 329 GK the Russian Federation to ways of maintenance of execution of obligations [267].

Obespechitelnoe legal relation represents the obligation of a special sort. Its specificity consists in additional (accessory) character in relation to provided (to the main thing, the basic) to the obligation. This feature obespechitelnogo obligations, that is its additional (accessory) character in relation to the core, is shown first of all in following moments:

- First, invalidity of the basic obligation involves invalidity obespechitelnogo obligations;

- Secondly, obespechitelnoe the obligation follows destiny of the core at transition of the rights of the creditor to other person, for example, at an incorporeal right concession under the basic obligation;

- Thirdly, the termination (change) of the basic obligation, as a rule, attracts also the termination (change) obespechitelnogo obligations.

The majority obespechitelnyh obligations quite answers the specified signs. However there is also an exception of this rule. Special position among ways of maintenance of execution of obligations is occupied with the bank guarantee. According to item 370 GK the Russian Federation provided by the bank guarantee

1 Gribanov V.P.Predely of realisation and protection of the civil rights. / realisation and protection of the civil rights. (Classics of the Russian civil law) — M.: "Statute", 2000, with. 142 and a trace.

2 Civil law: In 2 t. Volume II. Semivolume 1: the Textbook / Otv. red. Prof. E.A.Sukhanov. - 2 izd., the reslave. And dop. - M.: Publishing house BEK, 2000, with. 133.

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The obligation of the guarantor before benefitsiarom does not depend in relations between them on that basic obligation in which maintenance of execution it is given out even if in a guarantee the reference to this obligation contains.

«If one of ways of maintenance of obligations, - S.Dontsov writes, - form the additional right and a duty in relations between the same participants of the main obligation (for example, the deposit) others do legal relation by more difficult, supplementing with its duty of the third parties supporting the debtor (the guarantee, a guarantee)» 1. It is impossible to agree with the author regarding existence of the uniform "complicated" provided legal relation, however it absolutely correctly specifies in distinction of ways of maintenance of execution of obligations depending on subject structure of the additional obligation: «one of them arise between the creditor and the debtor, others - between the creditor and the third party» 2.

In the legal literature one of the bases of classification of ways of maintenance of execution of obligations is participation of the third parties (in relation to the parties of the basic obligation) in maintenance of execution of obligations. To the given sign the guarantee and the bank guarantee differ from all other ways of maintenance of execution of the obligations listed in the item of item 329 GK the Russian Federation, attraction of the third parties to execution maintenance обязательств3. In this case the third parties, on S.Sarbasha's expression, at default or inadequate execution of the basic obligation by the debtor «answer together with the debtor or instead of the debtor» [268].

1 Dontsov S.Ukaz, soch., with. 17.

2 Gavze F.I.in the same place.

3 they are adjoined by pledge if the depositor is not the debtor under the provided obligation.

The legal relations connecting one of the parties of the basic obligation and the third party, execution providing it which result from making contract of the guarantee and bank guarantee delivery will be a subject of our further consideration.

2. The guarantee - a way of maintenance of execution of obligations traditional for domestic civil law which has been provided both GK RSFSR of 1922, and GK RSFSR of 1964. Operating GK the Russian Federation also includes the positions devoted to the guarantee.

The essence of this way remains invariable: the third party (guarantor) incurs the obligation to the creditor to bear for the debtor responsibility in case of default of last its obligation to the creditor [269].

At the same time the concept of the guarantee is not unequivocal, the essence of the given way of maintenance of obligations remains not till the end of found out. In this connection there is no clearness and in a question on character of influence of actions of the guarantor on the core provided with it, the obligation.

So, according to V.A.Hohlova, the guarantee can be only conditionally carried to ways of maintenance of execution of obligations as «the guarantee generates responsibility legal relation, and at all replacement of the person in the basic legal relation...; therefore the guarantor is not obliged to execute a duty for the debtor, it only bears responsibility for execution by payment of a certain sum of money» [270].

The statement about that at the guarantee there is no change of the person in the basic obligation, does not raise the doubts. And here that the author means, when speaks about «responsibility legal relation» which generates the guarantee contract?

As V.A.Belov absolutely fairly marks, in the literature long time did not exist definiteness in treatment of the term "vicarious liability". C the points of view of the author, uncertainty is expressed in existence of two basic concepts of the guarantee:

1) «the guarantee - responsibility» according to which the liability for nonperformance (inadequate execution) is meant "vicarious liability" of the obligation provided with the guarantee the debtor actually, shown in the indemnification, payment of sanctions, and under liabilities - as well to payment of percent for using money resources;

2) «the guarantee - the obligation» where in concept "vicarious liability" the duty of the guarantor is put to execute the same to what the debtor under the basic obligation is obliged: one more obligation, under the maintenance identical to the core, the debtor in which is the guarantor.

V.A.Belov is the supporter of the concept «guarantees - responsibility» which, in its opinion, is «unique and correct». Simultaneously the author notices, that in operating GK the Russian Federation is a question «of execution by the guarantor of own obligation — that is obligations on responsibility execution, instead of obligations of the debtor»: the guarantor assumes liability to bear a liability of infringement of the basic obligation, and at all one more, identical provided, the obligation [271].

Meanwhile, this concept of the guarantee consolidating in separate elements two stated above concepts and in this sense representing to a certain extent synthesis last, seems to us is unique the true.

So, according to V.V. Vitrjanskogo in spite of the fact that in grazhdansko - the legal doctrine, and in the legislation, it is accepted to speak about a vicarious liability as to responsibility before the creditor for the debtor under the basic obligation, actually speech here goes about the obligation which has arisen from the contract of the guarantee: to bear responsibility before the creditor for the debtor who has not executed or the inadequate image executed obligation, — the main and unique duty of the guarantor. Other position based on formal operating by the name of item 363 GK the Russian Federation ("Vicarious liability"), will lead to a paradoxical conclusion that the guarantor as the debtor who has not executed the obligation (let accessory), does not bear before the creditor any responsibility [272].

L.A.Novoselova also considers, that a phrase of the legislator that the guarantor "answers" before the creditor, it is necessary to perceive no more as convention, an original epithet which does not change a being of a duty of the guarantor to pay to the creditor a debt for the debtor [273].

The higher degrees of jurisdiction also "adhere" to a sight at the guarantee as on the obligation: «the obligation of the guarantor to the creditor consists that it should bear responsibility for the debtor in the same volume, as well as the debtor, including payment of percent, compensation of a legal cost under the debt collection and other losses of the creditor caused by default or inadequate execution of the obligation by the debtor» [274].

So, the guarantee is the obligation which parties are the guarantor and the creditor of other person (the creditor of the basic obligation).

The guarantee assumes presence still other obligation in which the parties are the promisee of the guarantee and any third party (principal debtor). It turns out as though two layers of obligations relations: the first layer - the basic obligation between the creditor and the principal debtor and, as an appendage to this basic obligation, the second layer — the guarantee contractual obligation (meanwhile the creditor and the guarantor) 1.

The maintenance of the contractual obligation of the guarantee, as a matter of fact, is reduced to a duty of the guarantor to pay to the creditor the damages caused by default or inadequate execution by the debtor of the obligation to the creditor. In other words, the guarantor is obliged to bear responsibility before the creditor in case of default of the basic obligation by the debtor - to pay damages, but it cannot be considered

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Obliged to execute the basic obligation. «A duty of the guarantor« to be responsible for execution of the obligation by the debtor », - wrote A.L.Makovsky, - does not mean, that the guarantor takes up a duty to execute the obligation instead of the defaulter»: «the guarantor... Bears a duty to compensate in the monetary form unsatisfied the debtor» [275].

Thus, in our opinion, it is necessary to recognise inexact M.I.Braginsky's statement, that the guarantee essence «consists that the person called by the guarantor, assumes liability to execute

1 Novitskij I.B., Lunts L.A.decree, soch., with. 256.

2 Zvekova I.A.decree, soch., with. 184 - 185.

3 Novitsky I.B. The Guarantee. The Scientifically-practical comment. 2 e the reslave. izd. - Kharkov: JUrid. Publishing house NKJU USSR, 1927, with. 24-25.

The contract in case of its infringement by the primary debtor »1.

On the contrary, the duty of the guarantor can consist only in necessity to pay money. And, as correctly marks B.M.Gongalo, "replacement" of specific performance with a money's worth is caused not by that the guarantor can be not capable simply under objective causes to execute a duty of the debtor (for example, the obligation of personal character or with the negative maintenance), and the essence of the guarantee which is reduced to that the guarantor should pay money to the creditor at malfunction должника2.

By the guarantee the obligation can be provided, execute which in nature can both the debtor, and the guarantor. Thus according to item 3 of item 367 the guarantee stops, if the creditor has refused to accept the appropriate execution offered by the debtor or the guarantor. Thus, the law provides for the guarantor possibility to execute the basic obligation for the debtor. The norm containing in item 3 of item 367 GK the Russian Federation, gives to the guarantor the right (but does not establish a duty) to execute the obligation provided with it in nature for the debtor to whom the duty of the creditor resists to accept offered by the guarantor ought исполнение3.

The obligation which «is connected only with one subject, but is given to the debtor the right to replace with its certain other subject» [276],

1 Braginsky M. I. Obligations and ways of their maintenance: the penalty, pledge, the guarantee, the bank guarantee (the comment to new GK the Russian Federation). Rules of law about business. The bulletin. Vyp I. — M.: joint-stock company «Center of the Business Information», 1995, with. 69.

Gongalo B.M.maintenance of execution of obligations. - M.: Spark, 1999,

With. ON.

3 See: Zvekova I.A., the Decree, soch., with. 185; Vitrjansky V.Poruchitelstvo.//the Economy and the right, 1998, № 9, with. 10.

Is called as facultative. Here for the debtor «the right of replacement of a subject of execution is left; the debtor can be released from the obligation, having made, instead of provided by the contract, any other action» [277].

Facultative name such obligations in which the debtor is obliged to make in favour of the creditor concrete action (an execution subject it is quite defined), but have the right to replace at own discretion (choice) an execution subject with other, in advance provided subject. And the creditor has the right to demand granting only originally certain subject of execution.

In our opinion, there are all bases to consider the guarantee contractual obligation facultative.

We cannot agree with V.S.Ema's position which writes: « Considering optionality of norm of item 2 of item 363 GK, it is possible to admit theoretically guarantee making contract on which the guarantor will be obliged before the creditor to execute in nature the obligation not the monetary character, not executed by the debtor, for example, to put certain quantity of sugar »[278]. What for to the guarantor to transform accorded it the law a right into a duty? Besides, in our opinion, granting to the creditor of the right to demand from the guarantor of execution of the basic obligation in nature does not keep within a legal design of the guarantee, and item 363 item 2 concerns volume, instead of character of a vicarious liability. But even if to admit inclusion possibility in the contract of the guarantee of a condition that the guarantor undertakes to execute before the creditor in nature the provided obligation not executed by the debtor it is necessary to consider, that the parties have concluded the mixed contract (generating accordingly mixed (complex) the obligation), in which elements of the contract of the guarantee and the contract identical to the core (provided with the guarantee), and made under suspensive condition contain.

As it has already been noted, as a result of execution by the guarantor of the duty to pay to the creditor the damages caused by default or inadequate execution of the provided obligation by the debtor, there is a subrogation to the guarantor of the rights of the creditor under this obligation and the rights belonging to the creditor as the pawnbroker, in that volume in which the guarantor has satisfied the requirement of the creditor (item 1 of item 365 GK the Russian Federation).

According to item 387 GK the Russian Federation in case the guarantor, using accorded it the law a right, executes the basic obligation in nature instead of the debtor, to it also on the basis of the law pass the rights of the creditor under the basic obligation.

In this case the subrogation to the guarantor of the rights of the creditor under the basic obligation also takes place. However here the subrogation occurs not as a result of execution by the guarantor of a duty to be responsible for the debtor in case of default of the basic obligation by the last in summary use by the guarantor of the right to execute the basic obligation for the debtor in nature.

I.A.Zvekova specifies, that in a considered case the guarantor executes not the contractual obligation of the guarantee, and the basic obligation [279]. In our opinion, in this case the guarantor executes simultaneously and the obligation to the creditor and the basic obligation. Here there is no execution recommission (item 313 GK the Russian Federation) at which the third party is obliged to make execution to the creditor, and this duty is "assigned" to the third party by the debtor on the basis of the contract concluded between them. To the guarantor the law is accorded to make a right execution of the basic obligation in nature, and the debtor has to it no any relation. So, giving to the creditor execution under the basic obligation for the debtor, the guarantor thereby executes the guarantee contractual obligation.

Thus, influence of actions of the guarantor, as the parties additional (obespechitelnogo) obligations, on a condition of the basic (provided) obligation is available. Now we will pass to consideration of influence of the debtor, as the parties of the basic obligation, to destiny of the obligation between the creditor and the guarantor.

V.S.Em writes: «Concerning the guarantee three persons participate: the debtor under the basic obligation, its creditor and the third party — the guarantor. At the same time the guarantee contract represents the two-way deal as which parties obligations and the guarantor» 1 act the creditor on provided.

According to V.A.Belova, «the debtor under the basic obligation — to the obligation provided with the guarantee, - does not participate in guarantee legal relations. One important conclusion from here follows: the guarantee contract consists between the creditor under the basic obligation and the guarantor without participation of the debtor on the core

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To the obligation ».

The debtor under the basic obligation really does not participate in making contract of the guarantee which are the juridical fact which generates the obligation between the guarantor and the creditor of the basic obligation though it, as a rule, will organise making contract of the guarantee and can participate in signing of the document which is making out conterminous will (agreement) of the parties, the right fixing them and a duty.

1 Civil law: in 2 t. That P.Polutom 1: the Textbook / Otv. red. Prof. E.A.Sukhanov. - 2 izd., the reslave. And dop. - M.: Publishing house BEK, 2000, with. 68. [280]

So, according to L.A.Novoselovoj, the most preferable way of registration of the contract of the guarantee is condition inclusion about the guarantee in the text of the basic contract, the obligation on which is provided with the guarantor. Such document subscribes simultaneously the creditor, the debtor and поручителем1. The mark about the guarantee acceptance, made the creditor on the written document constituted and signed by the debtor and the guarantor, can testify to observance of the written form of the transaction of the guarantee.

The debtor is not also the party of the obligation arising from the contract of the guarantee, however, as correctly, in our opinion, approves B.M.Gongalo, «development of the legal relation arising on the basis of the contract of the guarantee, and its existence to a great extent... Depend on the debtor» [281]. Really, if the debtor executes the basic obligation properly therefore the given obligation will stop the additional (accessory) obligation of the guarantee (item 1 of item 367 GK the Russian Federation will stop also) and existing possibility of approach of "responsibility" of the guarantor will not be realised. And, on the contrary, at infringement by the debtor of the basic obligation the guarantor "will be responsible" (along with the debtor) before the creditor.

At this B.M.Gongalo goes further, approving, that the debtor accepts direct participation and in occurrence of the obligation of the guarantee. So, according to the author, after making contract of the guarantee at

1 Legal regulation of bank activity. Under the editorship of prof. E.A.Sukhanov. - M.: the Uchebno-consultation centre "JUrInfoR", 1997, with. 266.

Item 1 of the Review of practice of the resolution of disputes, connected with application by arbitration courts of norms of the Civil code of the Russian Federation about the guarantee, being the appendix to the Circular of Presidium YOU the Russian Federation from January, 20th, 1998 № 28.//the Bulletin YOU the Russian Federation, 1998, № 3, with. 92-93.

The guarantor, at the creditor is not present any rights and duties. A duty of the guarantor to pay to the creditor money appears only after default or inadequate execution by the debtor of the basic obligation. In this connection, the obligation between the guarantor and the creditor of the basic obligation arises on the basis of the legal structure including, besides the guarantee contract, wrongful act of the debtor (default or inadequate execution of the obligation by it). The legal effect of the contract of the guarantee (before infringement by the debtor of the obligation) consists that it generates legal coherence of the guarantor with the creditor which is expressed that the creditor is considered conditionally authorised, and the guarantor conditionally obliged. Coherence is shown that the contract parties cannot refuse unilaterally neither the contract, nor from the obligation which, maybe, will arise on its basis. Thus, the design of the contract of the guarantee is similar to a design of the transaction made under suspensive condition (item 157 GK the Russian Federation). If the debtor under the basic obligation fulfils the duties properly at the guarantor and the creditor does not arise the rights and duties. If the basic obligation the debtor is not executed or executed by inadequate image the creditor has a right to demand from the guarantor of payment денег1.

In our opinion, the basis of occurrence of the obligation between the guarantor and the creditor is the contract between them. Such point of view finds the acknowledgement in the literature: the rights and duties at the parties in the guarantee contract arise at achievement of the agreement of the parties

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(Consensual contract).

«The basis of occurrence of the guarantee, - writes Panaiotov I.G., -

1 In the same place, with. 110-111.

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Legal regulation of bank activity. / under the editorship of prof. E.A.Sukhanov. - M.: the Uchebno-consultation centre "JUrInfoR", 1997, with. 267.

Is the contract between the creditor under the main obligation and the person who has expressed the consent to be by the guarantor for the debtor under the main obligation »[282].

For the permission of a question on similarity of the contract of the guarantee to conditional juristic act it is useful to draw an analogy with the contract of insurance which, at first sight, also can be carried to number of conditional juristic acts.

M.I.Braginsky specifies, that as the right of the insurer to demand from the insurer of the indemnification (sum insured payment) arises only from the moment of insured accident approach concerning which it is not known, whether it will come, the insurance contract gets lines of conditional juristic act. However M.I.Braginsky approves, that the insurance contract is not conditional juristic act [283]. Confirming to the conclusion he refers to V.I.Serebrovskogo who, as a result of consideration of the specified problem also has come to the similar conclusion for following reasons:

- First, the basic duty of the insurer — insurance premium payment - is not in dependence from any condition: under the general rule the insurer is obliged to pay the award at the making contract of insurance;

- Secondly, «an establishment the insurance contract of a risk depending on approach of the event provided in the contract... Resembles a condition» a little. In other words, «approach of the event provided in the contract» is not a casual, additional part of the insurance contract, and a contract part essential, necessary (essentiale negotii) [284].

The first of the arguments resulted by V.I.Serebrovskim cannot be used for differentiation of conditional juristic acts and the guarantee contract in a kind of gratuitous and unilateral character of the last. And here the second argument, in our opinion, allows to approve, that the guarantee contract is not conditional juristic act. Default (inadequate execution) the debtor of the basic obligation cannot be considered as suspensive condition about which approach occurrence of the obligation of the guarantee as this circumstance is essential is connected, instead of collateral, casual for the guarantee contract.

3. The bank guarantee - a way of maintenance of execution of the civil-law obligations new to the Russian civil law, earlier unknown to the domestic legislation. It consists that bank, other credit institution or the insurance organisation (guarantor) allow the written obligation to pay at the desire of other person (principal) to the creditor of the principal (benefitsiaru) according to conditions of the obligation given by the guarantor a sum of money after representation benefitsiarom the written requirement about its payment (item 368 GK the Russian Federation).

Provided GK RSFSR 1964 and Bases of the civil legislation of Union CCP and republics of 1991 the guarantee as a way of maintenance of execution of obligations was, as a matter of fact, a guarantee version. The guarantee certificate in that kind in what it has been regulated by earlier operating legislation, differed from the guarantee, in particular, that it was used in relations exclusively between the socialist organisations where as the guarantor the higher organisation acted. In case of repayment of debts of the debtor by the guarantor, last had no right of regress to the debtor of the subordinate economic organisation.

Now essential difference of the bank guarantee from the guarantee and from all different ways of maintenance of execution of the obligations provided by item 1 of item 329 GK the Russian Federation, consists in independence of the bank guarantee of the obligation, which execution it provides. The bank guarantee does not carry accessory character: the principle aktsessornosti, inherent in the majority of ways of maintenance of execution of obligations, gives way to a principle of independence of the bank guarantee.

So, the author of one of the dissertations, devoted to complex research of institute of the bank guarantee, JU.V.Petrovsky, writes: «Legal uniqueness of the obligation of the guarantor under the bank guarantee consists that after the establishment the guarantee certificate does not follow« destiny »the basic obligation (that is characteristic for other ways of maintenance provided GK the Russian Federation), and sojourns in the original individually-legal, isolated regulation isolated from any influence from the basic obligation» [285].

The principle of independence of the guarantee certificate is legislatively fixed in item 370 GK the Russian Federation by which it is established, that the obligation of the guarantor provided by the bank guarantee before benefitsiarom does not depend in relations between them on that obligation in which maintenance of execution it is given out even if in a guarantee the reference to this obligation contains.

Independence of the obligation of the guarantor of the basic obligation is shown, in particular, in the following:

Invalidity of the basic obligation does not attract invalidity of the obligation of the guarantor before benefitsiarom;

- Change or the termination of the basic obligation on any basis (including appropriate execution) does not attract the bank guarantee termination;

- Transfer by the debtor in the basic obligation of the debt on other person does not attract the termination of the obligation of the guarantor and is not the basis for clearing of the guarantor of obligation execution.

Thus, as correctly specifies JU.V.Petrovsky, the principle of independence of the obligation of the guarantor is expressed that any circumstances connected with movement (dynamics) of the basic obligation in which maintenance it has been given out bank гарантия1 cannot be the basis for refusal benefitsiaru in the requirement about payment of a sum of money.

In other words, the principle of independence of the obligation of the guarantor before benefitsiarom from the basic obligation is shown that as the bases to refusal in satisfaction of the requirement benefitsiara exclusively circumstances connected with non-observance of conditions most can serve

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The guarantees which do not have any relation to the basic obligation.

The given feature of the bank guarantee has received ambiguous comments in the legal literature.

So, E.A.Pavlodsky considers, that owing to independence of the bank guarantee of the basic obligation bank guarantee reference to ways of maintenance of execution of obligations has no more bases, than, for example, insurance of risk of a non-return of extra means [286].

However, in the literature enough wide circulation was received by a position according to which the guarantor is obliged to make payment benefitsiaru only in case of default or inadequate execution by the principal of the basic obligation. So, A.L.Melamed approves, that the obligation of the guarantor cannot be absolutely independent of the basic obligation, as in the requirement about payment of a sum of money on a guarantee benefitsiar

1 In the same place.

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Vitrjansky.//the Economy and the right, 1998, № 10, with.

8.

Should specify, in what infringement by the principal of the basic obligation consists and, hence, the guarantor makes payment on a guarantee only in case of default by the principal of the basic obligation. According to the author, the incorporeal right arises at benefitsiara exclusively at approach of a guarantee case which is understood as default or inadequate execution by the principal of the obligations [287 [288].

T.A.Faddeeva also believes, that the basis for a presentation benefitsiarom to the guarantor of the requirement about payment of a sum of money are so-called guarantee cases, i.e. infringements of the basic obligation by the principal. Thus the author directly specifies, that, despite the categorical formulation of item 370 GK the Russian Federation, would be inexact to assume, as if the bank guarantee is absolutely independent of the basic obligation. The duty of the guarantor to make payment in advantage benefitsiara has the basis default by the principal of the basic obligation. As a result of T.A.Faddeeva comes to conclusion, that the bank guarantee is the additional obligation in relation to the obligation between benefitsiarom and the principal, though and possessing a known autonomy.

O.M.Olejnik adheres to the similar point of view: the basis for the reference to the guarantor, according to the author, is non-observance of conditions of the basic contract by the principal that should have documentary acknowledgement [289].

Formally such position contradicts a rule established by item 2 of item 376 GK the Russian Federation, according to which even in the event that the core

The obligation has stopped, including because of its appropriate execution by the debtor (principal), the repeated requirement benefitsiara comes under to satisfaction the guarantor.

According to GK the guarantor should pay the Russian Federation even then when the basic obligation is executed [290 [291] [292]. The given duty of the guarantor does not depend on actual default by the principal of the obligations on the core

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To the contract. «The fact on which payment under the bank guarantee depends, - writes N.J.Rasskazova, - infringement by the principal of the basic contract, and a presentation benefitsiarom requirements» is not. In its opinion, the guarantor pays not because the infringement case that is why, that the demand answering to conditions of the bank guarantee is made took place. A duty benefitsiara to specify in the requirement to the guarantor in what infringement by the principal of the basic obligation consists, «has especially formal character as concerns more likely registration of the written requirement, but in any way to a being of the relations developing between the guarantor and benefitsiarom» [293].

Arbitrazhno-judiciary practice for situations when benefitsiar is intended to receive the guarantee sum in spite of the fact that it (benefitsiar) has already received execution under the basic obligation, the exception of a rule about independence of the bank guarantee is made.

According to become already axiomatic recommendation of Presidium YOU the Russian Federation in the presence of proofs of the termination of the basic obligation in connection with its appropriate execution about what benefitsiaru it was known to a presentation of the written requirement to the guarantor, court can be given up in satisfaction of requirements benefitsiara on the basis of item 10 GK the Russian Federation (misuse of right).

Benefitsiar has addressed with the claim to the organisation — to the guarantor. In a guarantee it was provided to pay a duty of the guarantor to 20 million roubles at a presentation benefitsiarom requirements with the appendix of written acknowledgement of the fact of absence at the principal of money resources for payment of the goods in the size defined by the contract of purchase.

In time, established in a guarantee, benefitsiar has made to the guarantor the demand about payment with the appendix of the inquiry assured by the principal confirming absence of means on the account of the principal per day when goods payment should be made. The guarantor has refused sum payment on a guarantee, having specified, that, on data available for it, payment of the goods benefitsiaru has been made by the third organisation at the desire of the principal and, hence, the provided obligation is executed.

Benefitsiar has repeatedly demanded payment from the guarantor and after refusal of the last of payment has addressed with the claim in arbitration court. The requirements benefitsiar based on positions of point 2 of article 376 of the Code according to which if the guarantor to satisfaction of the requirement benefitsiara knew, that the basic obligation provided with the bank guarantee, completely or in a corresponding part it is already executed, the guarantor should inform immediately on it benefitsiaru and to the principal. Received by the guarantor after such notice the repeated requirement benefitsiara comes under to satisfaction the guarantor.

Considering dispute, the arbitration court has established, that benefitsiar, being the creditor in the basic obligation, has already received payment for the goods put to the principal. This circumstance proved to be true the proofs presented by the guarantor. The fact of payment of the goods at the expense of means of the bank credit was not denied also by the debtor under the basic contract (principal).

Under such circumstances the arbitration court has regarded actions benefitsiara as misuse of right and on the basis of Code article 10 in the claim отказал1.

L.G.Yefimov is absolutely right that consecutive observance of a principle of independence of the bank guarantee should lead to satisfaction of such claims without finding-out of a condition provided

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Obligations. The matter is that the bank guarantee as, perhaps, any other way of maintenance of execution of obligations, it is focused on protection of interests of the creditor of the provided obligation. Literal value containing in GK the Russian Federation of the positions devoted to the bank guarantee, allows to approve, that the given legal means provides unconditional payment of the guarantor on demand benefitsiara by a principle: «at first to pay, and then to lead proceeding» 3. However, in opinion, O.M.Olejnik, it is impossible to neglect the rights of the debtor and the third party which also have the legitimate interests requiring protection. According to the author, the basic problem of a guarantee is the coordination, the compromise of interests of the creditor (benefitsiara), the debtor (principal) and the third party (guarantor) at a leading position benefitsiara [294].

From these positions, from our point of view, Presidium YOU the Russian Federation also considers new rules of law about the bank guarantee in the specified Review. The satisfaction of requirements benefitsiara on the basis of formal application of position of item 2 of item 376 GK the Russian Federation in a considered case could generate a series of reciprocal claims: the guarantor to the principal (as recourse -

Item 4 of the Review of practice of the resolution of disputes, the norms of the Civil code of the Russian Federation connected with application about the bank guarantee, being the appendix to the Circular YOU the Russian Federation from January, 15th, 1998 № 27//the Bulletin YOU the Russian Federation, 1998, № 3, with. 89 - 90.

•>

And the contract.//the Economy and the right, 2000, № 10, with. 52.

3 Latyntsev A.V.maintenance of execution of treaty obligations. - M.: "Leks-book", 2002, with. 247.

Item 379 GK the Russian Federation), the principal to benefitsiaru (from unjust enrichment). However the higher degree of jurisdiction focuses arbitration courts to refuse benefitsiaru in protection of the right belonging to it. Speech here goes that benefitsiar, making the guarantor the repeated demand about payment of a sum of money under the bank guarantee, despite reception of appropriate execution from the principal under the basic obligation, carries out the right for reception of a sum of money from the guarantor in the contradiction with its appointment which is expressed in item 369 GK the Russian Federation: the bank guarantee provides appropriate execution by the principal of its obligation before benefitsiarom (the basic obligation).

«Misuse of right, - writes A.A.Malinovsky, - there is such form of realisation of the right in the contradiction with its appointment by means of which the subject harms other participants of public relations» 1.

Misuse of right takes place in a case, «when the authorised subject, operating in borders of the right belonging to it, within the limits of those possibilities which constitute the maintenance of the granted right, uses such forms of its realisation which leave for statutory limits of realisation of the right» 2. One of the major criteria defining limits of realisation of the civil rights, the requirement of realisation of these rights according to their appointment is. So, according to O.S.Ioffe, under limits of realisation of the civil rights it is necessary to understand the limits following from their special-purpose designation [295].

Appointment, the purpose of any obespechitelnogo obligations, including

1 Malinovsky A.A.misuse (a concept basis). - M., 2000, with. 27.

Gribanov V.P.Predely of realisation and protection of the civil rights. / realisation and protection of the civil rights. (Classics of the Russian civil law) - M.: "Statute", 2000, with. 46 - 48.

And obligations of the guarantor before benefitsiarom, consists in a duty to provide execution of another — the basic obligation.

The presidium of the Supreme Arbitration Court of the Russian Federation, recommending to vessels to refuse in satisfaction of the requirements based on the bank guarantee benefitsiarov, received appropriate execution under the basic obligation, on the basis of item 10 GK the Russian Federation, actually creates the rule of law: «the obligation of the guarantor before benefitsiarom on a guarantee stops appropriate execution of the basic obligation».

It is represented, that the position of dear Presidium YOU the Russian Federation conflicts to effective standards GK the Russian Federation about independence of the bank guarantee, pulling together the bank guarantee with the guarantee in infringement consistently spent in GK the Russian Federation of "base limitor criterion» between the given ways of maintenance of execution of obligations: «if aktsessornost in obespechitelnom the agreement it is established, the guarantee, otherwise - a guarantee» [296] takes place.

Meanwhile, abusing from the party benefitsiara becomes possible because of the principal who, at execution of the basic obligation has not shown sufficient care and discretion, having left the bank guarantee on hands at benefitsiara.

In spite of the fact that obespechitelnoe the obligation arising from the bank guarantee, does not carry character accessory, follows, in our opinion, to agree with V.S.Emom that it is "simply interconnected" with the core [297]: the bank guarantee is used benefitsiarom in case of default or inadequate execution by the principal of the basic obligation. GK the Russian Federation does not assume reception benefitsiarom the guarantee sum in case of appropriate execution

° the basic obligation the principal. Thus, from behaviour

The principal debt relationship development between the guarantor and benefitsiarom, resulted bank guarantee delivery depends.

C other party, it is necessary to recognise, that execution by the guarantor of the obligation under the bank guarantee should influence destiny of the basic obligation. According to V.V. Vitrjanskogo, execution by the guarantor of the obligation before benefitsiarom repays in a corresponding part of the incorporeal right of last (creditor) to the debtor (principal) under the basic obligation. Other conclusion (about preservation of the basic obligation in a former kind) would suppose unjust enrichment of the creditor and would contradict the bank guarantee nature as way of maintenance of the core обязательства1.

Because now in GK the Russian Federation the given question not

It is settled, JU.V.Petrovsky, completely making common cause with V.V.

About _

Vitrjansky, suggests to enter direct regulation of the given situation by creation of special article of the following maintenance: «execution by the guarantor of the obligation before benefitsiarom under the bank guarantee ceases the basic obligation in a corresponding part».

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As specified V.S.Konstantinova as itself obespechitelnoe the obligation has additional character presence of the basic, main obligation will be one of conditions of its occurrence. Obespechitelnoe the obligation cannot arise independently as its purpose consists in a duty to provide execution of another —

1 Vitrjansky d, with. 10.

2 Petrovsky JU.V.bank guarantee in the Russian civil law. avtoref. diss.... kand. jurid. Sciences. — Ekaterinburg, 2001, with. 12 — 13. [298]

The main obligation.

The author is absolutely right, as has already been shown, in purpose definition obespechitelnogo obligations. However regarding features of occurrence of the last the drawn V.S.Konstantinovoj the conclusion not quite extends on the obligation from the bank guarantee.

So, from the point of view of G.A.Avanesovoj, independent character of the bank guarantee is shown as well that the guarantee can be given out the certain creditor of the principal and in its text this creditor will be specified, and can be given out any creditor of the principal, that is benefitsiarom on this guarantee there can be any creditor of the principal within the sum on which the guarantee is given out, at approach of certain conditions [299 [300] [301].

G.A.Avanesovoj's position has been subjected criticism from a number of authors. So, B.M.Gongalo approves, that «the bank guarantee in each concrete case is obliged by the birth to the basic obligation for it is impossible to provide the obligation which is not present». And L.G.Yefimov directly named G.A.Avanesovoj's statement that in the bank guarantee the instructions benefitsiara are unessential, mismatching the current legislation. In its opinion, the guarantor can give out the bank guarantee not to bearer, but only addressed to the concrete person - the creditor under the basic obligation.

The arisen dispute is resolved now by Presidium YOU the Russian Federation which directly establishes, that absence in the instructions bank guarantee benefitsiara to which it is given out, is not the basis for its recognition void. From article 368 GK the Russian Federation does not follow, that the bank guarantee

Should contain the name concrete benefitsiara. In the absence of such instructions the obligation on a guarantee should be executed in favour of the creditor (benefitsiara), shown to the guarantor the original bank гарантии1.

In this case it is impossible to speak about presence of interrelation of the obligation of the guarantor before benefitsiarom with any concrete civil-law obligation as absence in the name bank guarantee benefitsiara does not allow to define the basic obligation in which maintenance the bank guarantee is given out.

About

Item 8 of the Review of practice of the resolution of disputes, the norms of the Civil code of the Russian Federation connected with application about the bank guarantee, being the appendix to the Circular YOU the Russian Federation from January, 15th, 1998 № 27//the Bulletin YOU the Russian Federation, 1998, № 3, with. 91.

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A source: KISSEL Igor Vladimirovich. of OBLIGATION C PARTICIPATION of the THIRD PARTIES. The DISSERTATION on competition of a scientific degree of the master of laws. 2002Ìîñêâà. 2002

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