<<
>>

§ 3. A place of obligations with participation of the third parties in a liability law.

«Obligations with participation of the third parties, - are written by E.A.Sukhanov, - constitute a special version of obligations from the point of view of their subject structure» [71].

E.A.Sukhanov specifies in distinctions of following obligations designs on their subject structure. First, the quantity of creditors and debtors in the concrete obligation is not limited, that leads to occurrence of obligations with plurality of persons (several debtors or (several creditors). Secondly, in some obligations besides

1 Sulejmenov M. K. The decree, soch., with. 124.

2

Ioffe O. S. The Liability law. — M., «JUrid. Lighted.», 1975, with. 75.

2 is more detailed about derivative character of the recourse obligation — in § than 1 chapter III.

The debtor and the creditor other subjects - the third parties participate. In such situations it is a question of obligations with participation of the third parties. At last, in - the third, in most cases there is a possibility of replacement of debtors participating in concrete obligations and creditors other subjects, i.e. changes of persons in obligations [72].

Thus, the author uses uniform concept «obligations with third party participation», including all listed by us in the previous paragraph cases of participation of the third parties in the obligation. It is spent classifications of obligations by subject structure at first on two groups: obligations with simple (elementary) subject structure (two subjects: one debtor — one creditor) and the difficult (complicated) subject structure (with number of subjects more than two). Then obligations with participation of the third parties are delimited from other kinds of obligations with the complicated subject structure.

As it has been shown in the previous paragraph, the concept «the obligation with third party participation» is multidimensional and can be used in narrow (for a designation of the uniform obligation with difficult structure) and in a broad sense (for a designation of each of the obligations constituting system). Whether It is possible to speak about «the obligation with third party participation» as about uniform legal concept?

The concept is a thought in which are generalised in a class and subjects on system of signs, by the general for all allocated subjects and distinguishing them from other subjects of initial set [73] are allocated from some set. The scientific legal concept as the thought reflecting the basic major signs of the legal phenomenon or the relation, existing between a number of the phenomena, is a result, the sum extracted about it objective, scientific

Knowledge. It is designated by the term consisting of one word or a word-combination, and logically characterised from the point of view of the maintenance (conceivable essential signs of the legal phenomenon) and volume (set conceivable at its means of the legal phenomena). Depending on volume legal concepts subdivide on individual in which one phenomenon is thought, and the general in which set of the homogeneous phenomena [74] is reflected. Thus, the general legal concept reflects such signs of some the legal phenomena which allow to allocate these phenomena in a certain kind and to distinguish thereby from other legal phenomena of a sort.

Hence, the positive answer to a question on introduction of uniform concept «the obligation with third party participation» is possible only on the basis of revealing of the general signs for obligations with participation of the third parties in narrow and wide sense.

Such sign, allowing to consolidate absolutely various, at first sight, obligations designs in special group (version) of obligations, participation in them of the third party which N.G.Valeev quite obosnovanno names «an independent figure» in debt relationship is.

The third parties play a known role as in the obligation in favour of the third party (the obligation with participation of the third party in narrow sense), and in the obligations designs consisting of obligations with participation of the third parties in a broad sense. The term "third party" is used by the legislator both in item 430 GK the Russian Federation (Third party beneficiary contract), and in item 313 GK the Russian Federation (Execution of the obligation by the third party). In item 312 GK the Russian Federation (obligation Execution to the appropriate person) the third party accepting execution instead of the creditor, is designated as the person authorised by the creditor on acceptance of execution. In item 361 GK the Russian Federation (the guarantee Contract) the party of the obligation opposite to the guarantor is named «the creditor of other person».

Thus in all listed cases participation of the third party in the obligation is expressed that it definitely influences dynamics of the debt relationship which party it is not. Dynamics of legal relation is, according to V.F.Popondopulo, its dynamics as the independent legal phenomenon, characterised by the specific legal maintenance, i.e. dynamics of legal relation as right forms (occurrence, change, the termination) [75 [76]. Easier speaking, dynamics of debt relationship finds the expression in what other, as in occurrence, change and the obligation termination.

«The third party, - M.I.Braginsky writes, is the one who not being among counterparts, appears in legally significant communication with one of them or with

' AT

Both »., As is known, it is accepted to understand the party of the contract [77] As the counterpart, therefore on the basis of the formulated M.I.Braginskim third party definitions can be made the conclusion, that the obligation with third party participation is an obligation, occurrence, change or which termination depends on actions of the person which does not participate in the conclusion of the generating obligation of the contract, but is in certain legal communication with one of the obligation parties. However

The made definition is applicable only to treaty obligations with participation of the third parties, that is to such which basis of occurrence is the contract. Meanwhile, not all obligations with participation of the third parties are contractual. So, the recourse obligation is a non-contractual obligation with third party participation (often recourse obligations name still obligations ex lege).

In our opinion, more exact is third party definition in the obligation as the person who does not participate in the obligation as the party, but gets the certain rights or duties concerning one or both parties of the obligation which realisation is expressed in occurrence, change or the termination of the obligation connecting the debtor and the creditor. Accordingly, the obligation with third party participation is an obligation, dynamics (occurrence, change or the termination) which depends on actions of the person who are not the party of the obligation, but connected defined the rights and (or) duties at least from one of them.

Thus, it is possible to speak about a parity separate, especial and the general with reference to obligations with participation of the third parties.

In the right it is necessary to understand the unity of all legal phenomena expressed in similarity or a generality of their properties (signs) [78] as the general. The obligations constituting separate obligations designs, listed by us in the previous paragraph, it is possible to designate the general concept «obligations with participation of the third parties». Then concept «the obligation with participation of the third party in narrow sense» and concept «the obligation with third party participation in a broad sense» will be that especial in which as specifies D.A.Kerimov, contain not only essential properties, natural communications and relations of separate displays of the right, but also their distinction. Erection especial in the general in the right assumes detection of an internal generality and unity between especial displays of the legal phenomena. Being based on this generality and proceeding from it, it appears possible to open differences from each other especial forms of the legal phenomena and by that to show objective variety of separate displays общего1.

Concepts, «general most general and essential properties

' AT

The studied phenomena », N.D.Egor names categories. Legal categories an essence logic formulas specific to a given science (peculiar to theoretical thinking) in which in an abstract kind scientific reflexion certain legal явлений3 is given. A.M.Vasilev understands as legal categories the deepest, fundamental concepts which are a limit of generalisation both in certain area of legal knowledge, and of jurisprudence as a whole [79].

The question on, whether possesses concept «the obligation in favour of the third party» such degree of a generality to be considered as a legal category of a liability law, has no crucial importance. Important other circumstance in which specifies N.D.Egor, that the obligations entering into the same category, should possess such general for them lines which allow to allocate the greatest quantity of rules of law, in an equal measure applicable to all obligations of the given category. At the same time, distinctions between categories of obligations should predetermine the such

1 In the same place, with. 208 - 210.

2

Egorov N.D.classification of obligations on the Soviet civil law.//the Soviet state and the right, 1989, № 3, with. 37.

Krasavchikov O. A. The Soviet science of civil law (concept, a subject, structure and system). / Scientific works Sverdlovsk jurid. In. - Sverdlovsk, 1961, with. 29.

Features in character of their legal regulation which do not allow to apply the norms concerning one category of obligations, to the obligations relations entering into another категорию1.

It is necessary to recognise, that rules of law, applicable to all obligations concerning a category of obligations with participation of the third parties, no. In this respect the concept «obligations with participation of the third parties», is mismatched by the legal institution with the same name as which, as is known, understand the body of laws regulating certain group of public relations, consolidated by any general factor

L

(Factors) which for the given group is the most essential.

However the civil jurisprudence develops also such concepts and categories which do not find a direct legislative embodiment, but get the important epistemo-logical and at the same time practical value. The civil law develops and proves legal categories and the designs, allowing to explain and analyze available civil-law phenomena, and in a certain measure - to predict them

і

Development and to receive the proved knowledge of the new phenomena in this sphere. Legal concepts and categories - result of generalisation and abstraction at which internally necessary and essential properties of the legal phenomena and processes are found out, the general reveals in especial, separate, private, the riches of the separate join in the general. Thanks to abstract concepts begins possible to express the legal validity in all its completeness and concreteness [80].

1 Egors N.D.in the same place.

2

Yakushev V. S. About concept of the legal institution.//Jurisprudence, 1970, № 6, with. 62, 63 — 64.

2 Civil law: In 2 t. Volume I: the Textbook / Otv. red. Prof. E.A.Sukhanov. - 2 izd., the reslave. And dop. - M.: Publishing house BEK, 1998, with. 47 - 48.

S.N.bratus names both a concession of the requirement and delegation, and maintenance of execution of obligations «the institutes complicating structure of debt relationship» [81]. In this respect features of separate obligations designs with participation of the third parties can be underlined by comparison of obligations with participation of the third parties as a whole with obligations with plurality of persons and cases of change of persons in the obligation.

"Complications" in which the author specifies, really take place both at change of persons in the obligation, and at occurrence obespechitelnogo obligations, and in both cases they concern such element of debt relationship as its subjects.

At change of persons in the obligation its subject structure changes, however, about participation of the third party in the obligation in this case to speak it is not necessary: one person who was representing itself as the creditor or the debtor, is replaced by another.

The similar situation develops and in obligations with plurality of persons: in spite of the fact that the number of subjects of the obligation here more than two, each of them represents one of the obligation parties — is the creditor or the debtor. If third party position qualitatively differs from position of the parties of the obligation (the debtor or the creditor) subjects of obligations with plurality of persons are in qualitatively identical position (even in those shared obligations where shares of subjects are not equal).

Known interest represents comparison of obligations with participation of the third parties and the obligations arising from multilateral transactions (contracts).

At once it is necessary to notice, that in the literature terms "contract" and "obligation" are frequently identified. As the contract sometimes understand not only the juridical fact underlying the obligation, but also the contractual obligation [82]. Thus, the contract name debt relationship. So, the chapter of IV popular book of M.I.Braginsky and V.V. Vitrjanskogo is entitled as follows: «the Contract — legal relation» [83 [84].

With mixture of two specified concepts the authors considering multilateral treaties and generated by them of the obligation who are designated recently as obshchetselevye quite often "sin": «the Group obshchetselevyh contracts (the contracts directed on achievement of the purpose, uniform for all participants), - is written by J.V.Romanets, - constitute the obligations which purpose is creation of the legal person (mean the articles of incorporation necessary for formation of the general partnership, the limited partnerships, societies with limited and with additional responsibility, associations and the unions, dogovory founders about joint-stock company creation), and dogovory which purpose is joint cooperation without formation of the legal person

L

(dogovory the special partnership) ».

Distinctions between treaty obligations with participation of the third parties and obligations from multilateral transactions are shown already in the bases of their occurrence in spite of the fact that obligations of both versions arise from contracts.

The contract - the multilateral transaction grows out of the adjusted wills of its participants. And it means (if each will to consider as a stage), that process of the conclusion of the multilateral transaction consists of three, four and more stages, depending on quantity of the parties participating in fulfilment сделки1. Thus, all persons who become subsequently the parties of the obligation which have arisen from this transaction take part in fulfilment of one multilateral transaction. And way of expression of will of each of the parties at the written contract conclusion is contract signing. For treaty obligations with participation of the third parties it is not characteristic: the third party participates in the obligation (i.e. influences its dynamics by means of realisation of the rights or the discharge of duties, connecting it from one of the obligation parties), but not in the agreement from which there was a given obligation.

Long time in the civil literature goes discussion about a legal status of the consignee in the contract of carriage. So, V.A.Ojgenziht considers, that at delivery making contract in which the order of delivery of the certain goods is defined, simultaneously there is an actual contract of agency on the conclusion on behalf of the consignee the consigner of the contract of carriage. The contract of delivery also defines powers of believed (consigner). Thus, the consignee, according to the author, is party «uniform contract of carriage» 2.

However, in our opinion, it is necessary to agree with V.V. Vitrjanskim who is believed, that by a design of the contract of carriage as tripartite where the consignee enters the contract, not participating in process of its conclusion, contradicts as basic positions of the civil

1 Zhuravlyov N.P.multilateral of the transaction in the Soviet civil law. avtoref. diss.... kand. jurid. Sciences. - M., 1984, with. 14.

2

Ojgenziht V. A. Specificity of regulation of some civil matters.//the Soviet state and the right, 1978, № 3, with. 50.

Legislations, and civil law theories. By the contract party that person who has expressed definitely the will on the conclusion of the corresponding agreement, and also the consent with conditions of such agreement can be recognised only. And from this point of view the consignee cannot be recognised by the party of the contract of carriage of cargoes in any way: it does not receive the offer, does not participate in development of treaty provisions, and learns about the concluded contract of carriage from the notice of a carrier on arrival of cargo in its address or from the account of the consigner on payment sent груза1.

Discriminating line of the relations mediated by multilateral transactions, and, hence, and feature of these transactions that they are characterised by a unilateral orientation of interests of the parties participating in them is. Taking into consideration an orientation of interests of the parties in mutual contracts, A.B.Savelyev suggests to differentiate dogovory in which it is opposite, and in what it coincides. In the first case party (bilateral contracts) pursue the aims which «coincide in sense of a counter opposite orientation» (one sells a thing, and other it buys). In the second case (these are multilateral treaties) participants mean the same overall aim and as a result for each party there come identical legal effects (examples of such contracts are, as has already been specified, the special partnership contract, articles of incorporation).

On absence antogonizma, identity, a uniform orientation of interests of the parties of multilateral treaties, unlike contrast of interests of counterparts of bilateral contracts, specified G.F.Shershenevich

1 Vitrjansky V.Uchastniki of the contractual relations connected with transportations.//the Economy and the right, 2001, № 2, with. 39 - 40.

Savelyev A.B.contract of the special partnership in the Russian civil law. In kn.: Actual problems of civil law. The collection of articles under the editorship of prof. M.I.Braginsky. - M.: Publishing house "Statute", 1998, with. 278.

And I.S.Retersky, O.S.Ioffe and JU.K.Tolstoy [85].

We cannot agree with M.G.Masevich in that, as in the multilateral transaction each party can pursue own, distinct from other parties, the purpose for which achievement it has entered this contract. On this basis the author comes to conclusion, that a sight at the consignee as on special, the third party in the contract of carriage does not contradict the contract theory in civil law [86].

On an opposite orientation of interests of the parties in transactions, oposredstvujushchih the exchange, specifies N.P.Zhuravlyov. Thus the author fairly, in our opinion, notices, that an opposite orientation of interests of the parties in the transactions mediating an exchange (two-way deals), finds the expression that each condition of such transactions always is turned only to one concrete party and orders certain behaviour only to it (the seller is obliged to transfer a thing, and the buyer to accept it).

It, in turn, predetermines features of obligations arising from such transactions for which presence at the parties of the opposite rights and duties, and also opposite actions of the parties to execute the obligation is characteristic. The one-orientation of interests of the parties in multilateral treaties, on the contrary, assumes presence of such conditions which define simultaneously behaviour of all parties (are turned to all parties). Accordingly, the rights and duties of participants of the multilateral

Obligations cannot be opposite under the maintenance: they are absolutely identical to all parties [87].

Each participant of the obligation which have arisen from the multilateral treaty, is in mutual relations simultaneously with all other participants. Thus participants «are not divided on two parties, active and passive, but all are in identical legal status. Each participant of the contract under the relation to all other participants has the rights and performs duties, being simultaneously active and passive subject» [88]. Thus, each subject of the multilateral transaction becomes the independent party in the obligation which has arisen from this transaction: all parties possess identical "set" of the rights and duties concerning other parties, and all parties equally (companions, founders) are called.

D '

As it has already been shown, enough wide circulation was received by the concept of the contract of leasing as uniform tripartite contract (obligation). In our opinion, A.A.Ivanov who considers is absolutely right, that the given concept has more than lacks, than advantages.

Set of contracts of financial rent (leasing) and purchase and sale of leasing property cannot be considered as the uniform multilateral transaction in view of absence of the general (adjusted) will of all its participants. Lizingodatel enters the agreement with at first with lizingopoluchatelem, and then with the seller. Last at all does not adjust the will with lizingopoluchatelem. Besides, the purposes which achievement is mediated by two specified contracts, are various: the contract of financial rent (leasing) is directed on assignation to using, and the contract of purchase of leasing property - on assignation in the property.

Relations between lizingodatelem and lizingopoluchatelem, with one

The parties, and lizingodatelem and the seller of a subject of leasing - with another, are settled as in classical bilateral (sinallagmaticheskih) contracts. In this case it is possible to speak about two interconnected obligations (financial rent and purchase and sale) which participants have no any right or a duty which would belong to all of them simultaneously and to each of them separately. To participants belong different under the maintenance and an orientation of the right and a duty which are executed in advantage or by means of the participant of other obligation. The conclusion and execution of each of the specified contracts occurs separately [89].

Thus, if in obligations from multilateral treaties all subjects (parties) pursue the identical aims and are connected the friend by the friend the identical rights and duties in obligations with participation of the third party position of the last qualitatively differs from position of the parties. The third party is connected, as a rule, only with one of them, and the given communication does not assume neither identity of the rights and duties, nor unity of interests of the third party and the parties of the corresponding obligation.

<< | >>
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

More on topic § 3. A place of obligations with participation of the third parties in a liability law.:

  1. THE CHAPTER I CONCEPT, THE PLACE AND THE ROLE OF THE OBLIGATIONS ARISING FROM THE CONTRACT OF DELIVERY FOR LAW-ENFORCEMENT BODIES, IN LIABILITY LAW SYSTEM
  2. § 3. Participation of the third parties in maintenance of execution of obligations.
  3. § 2. Participation of the third parties in execution of obligations.
  4. the CHAPTER III. SYSTEMS of OBLIGATIONS C PARTICIPATION of the THIRD PARTIES.
  5. the HEAD І. CONCEPT And KINDS of OBLIGATIONS C PARTICIPATION of the THIRD PARTIES.
  6. the Third parties in a liability law
  7. Models of participation of the third party in execution of the civil-law Obligations
  8. § 3. The state contract on delivery of the goods for law-enforcement bodies of the Russian Federation and its place in liability law system
  9. § 3. A place of the contract of participation in share building in systems of civil-law contracts
  10. § 3. Features of an establishment of the bases and acceptance conditions obespechitelnyh measures without the notice and participation of the respondent (ex parte) or with the notice and participation of the parties (inter partes).
  11. § 2.2. The Criminal liability for the acts made in state of drunkenness, and for leaving of a place of road accident in the Continental law states
  12. § 3. The mechanism of execution of the international obligations in the national law in a context of participation of the state in the World Trade Organization: theoretical approaches and pravoprimenitelnaja practice
  13. 2.1. Concept of the contract on rendering of paid educational services and its place in liability law system
  14. Churilov Alexey Jurevich. PARTICIPATION of the THIRD PARTIES In EXECUTION of the CIVIL-LAW OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Tomsk - 2017, 2017
  15. § 1.2. The Criminal liability for the acts made in a condition of alcoholic intoxication, and leaving of a place of road accident In the countries of a family of the General law
  16. Ales Jurevich. the LIABILITY OF INFRINGEMENT of the OBLIGATIONS FOLLOWING FROM MANDATORY PROVISIONS of INTERNATIONAL LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow-2016, 2016