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1.2. The penalty maintenance

In a question of regulation of penalties the Russian right is close to French and German. The analogy is traced in character of established penalties and the mechanism of their collecting.

passing to research of the maintenance of the penalty, it is necessary to address to text GK RSFSR from November, 11th, 1922 and to the project of the Russian Civil code which has been brought in the State Duma on October, 16th, 1913 Project GU had huge value for formation of the domestic civil legislation and in many respects was based on operating then the Russian legislation.

in project GU of 1913 in item 71 the penalty «not in a sum of money» [25] was provided. In turn, the project has considered the Russian tradition which has developed in XIX century on which the penalty could be expressed not only in money, but also other things, except for lawful penalties [26] . The project became a basis for working out of the first Soviet Civil code.

In the Civil code of 1922, in item 141, the legislator has written down, that the penalty the sum of money or other property which one counterpart undertakes in case of default admits «or inadequate execution of the contract by it to deliver to other counterpart» [27] . It is possible to assume, that in the code of 1922 «other property» was understood specified in item 54 as "any property which has been not withdrawn from the private commerce».

C the middle of XIX century prior to the beginning of 60th of XX century, thus, hypothetically there was a possibility to pay the penalty for infringement of conditions of the civil-law contract by the goods, for example, a flour, sugar or spirit. But in practice about 1920th the penalty was established only in the monetary form. It is absolutely clear, as in end of "new economic policy» commodity relations between businessmen and the socialist organisations were gradually curtailed. In the legal literature of the specified period also did not contain concrete explanations concerning penalty payment not money, and other property.

in the beginning of 50th of XX century K.A.Grave noticed, that neither in judicial, nor in arbitration practice it was not possible to find out any case when the penalty would be established not as a sum of money, and in quality of "other property». The unique case known for K.A.Grave, concerned (barter) barter. Business was considered by the Higher Board of arbitration at HUNDRED. The claimant has exchanged the car for 308 poods of sugar, but demanded to compensate the deposit at a rate of 154 poods and to pay the penalty at a rate of the deposit, i.e. demanded collecting from the respondent in the form of the penalty of 154 poods of sugar [28] . But the given practice has not received distribution to the Soviet period when after 1931 any commercial relations between the enterprises and the organisations have been forbidden.

Subsequently GK 1964 and the current Civil code have refused penalty definition as «other property» and recognised as the penalty only money.

in the legislation of other countries the question on the penalty maintenance dares differently. In the German civil code there is § 342 «the Contractual penalty which has been not expressed in money» where precisely it is not defined what exactly can represent itself as the penalty. The French Civil code of 1804 with the latest changes makes penalty definition, is more exact than "the retaliatory reservation», as sum of money.

C the formal point of view, in the right of the USA and England such institute as the penalty, and, hence, and its definition is absent. However if to compare the Anglo-American right with continental the term "penalty" could be applied in the Anglo-American right as the general concept designating adverse consequences for the faulty party, expressed in payment of the certain sum of money defined in the contract. In the American commercial law the penalty is called «adjusted and liquidated damages» and has strictly compensatory character. The debtor under the commercial obligation has the right to refuse at any moment the contract, having paid the creditor damages in full [29] . The American trading legislation does not define the property nature of the penalty. Thus, the parties in the commercial contract have the right to decide independently, that the creditor will receive at refusal of obligation execution, - money or the goods.

the legislation of some countries which have arisen on space of the former USSR, supposes to agreements to the commodity penalty. The Baltic States have appeared in special position. There the Civil codes operating before joining of Latvia, Lithuania and Estonia to the USSR are restored. The Civil code of the Latvian Republic has been accepted on January, 23rd, 1937 and repeatedly installed since 1992 of Article 1716č 1717 define the penalty as «the excessive loss which any person agrees to suffer in connection with the obligation in the event that it not

will execute this obligation or will execute in the inadequate image». The penalty can be established not only in money, but also in «other values» [30] .

GK the Kirghiz Republic also contains norm about the commodity penalty: item 320 grants the right to the parties to establish the penalty in a kind of "other property», not explaining what exactly can represent itself as that [31] .

the Civil code of Georgia (the item 417) defines the penalty, as defined by the agreement of the parties a sum of money which the debtor is obliged to pay for default or inadequate execution of the obligation [32] .

the Republic Kazakhstan Civil code also contains the positions devoted to the penalty. Relations concerning the penalty are regulated practically the same as and in the Russian Civil code. Difference consists that GK Kazakhstan regulates the size of the penalty, deciphers concepts of the penalty and peni, establishes the concrete bases for penalty (the item of item 296 and 298) [33] .

Thus, in territory of the former USSR there is no uniform understanding of a subject of the obligation of the penalty. In the same way there is no common opinion on a case in point and in the European right. The problem essence is reduced to that the legislation of one countries supposes the commodity penalty, in other countries the penalty name only money. Really, if to try to state the general estimation of that value which can be used as the penalty the following is represented:

- the penalty should be expressed in the form of the concrete, certain and liquid property blessing;

- the penalty should represent the blessing belonging to the debtor and able to be at it immediately obtained on demand and withdrawn;

- the penalty should be such blessing which can always satisfy the creditor.

the specified requirements are answered only with money, as a universal equivalent of all material benefits. It is represented, however, that in commercial contracts of the party can establish and the commodity penalty.

in modern Russian conditions it is necessary to consider world experience of regulation of commercial relations, to cease searches of the most effective ways of stimulation of the debtor to appropriate execution of contracts. Sometimes, probably, it is necessary to return to some legal institutions which have not been claimed by the legislator during an epoch of command-administrative economy. Such opinion expressed time and again the Russian scientists [34] .

the Commodity penalty can be defined as a duty of the debtor to transfer to the possession the creditor a thing (property) at default or inadequate execution of the obligation. The agreement on the commodity penalty should be fixed in writing as it is offered for other ways of maintenance of obligations. It is represented, that the commodity penalty cannot be penal or test, to it the rule of item 333 of the Civil code about reduction of the size of the penalty is not applied. The commodity penalty, owing to the definition, can provide commercial obligations, as the goods - attribute of commercial activity.

At the same time, the commodity penalty should be not only contractual as was earlier in the Russian right for in the present treatment it provides not all commercial obligations. Application of the commodity penalty in contracts of delivery, contracting, faktoringa and franchajzinga will be the most successful. Its application in contracts of carriage, leasing, podrjada, rendering of services will be rather problematic.

the commodity penalty has doubtless advantages before pledge as assumes the summary procedure of transition of the property right to the property satisfying the creditor. We will notice, that, under the general rule, for penalty it is not required provings of presence and the size of losses. Besides, procedure of the reference of the claim to property of the debtor, long enough and difficult is not applied. In connection with application by the parties of the commercial contract of the commodity penalty, according to T.V. Zakupen [35] , there can be serious problems:

- in what form (simple written or notarial) the agreement on the commodity penalty should be issued; whether

- application by court of item 333 GK for reduction of the disproportionate commodity penalty is possible;

- how to arrive in the event that by the moment of failure detection of the debtor a subject of the commodity penalty is absent; whether

- the commodity penalty on the legal nature a compensation is?

not repeating T.V.Zakupen's argument, we will try to give some independent estimations and to draw certain conclusions in connection with possible application of the commodity penalty as way of maintenance of execution of commercial obligations.

we will begin that similar agreements between counterparts in commercial obligations do not contradict the Civil code which in the item 421 gives the chance to the parties to conclude the contract, not statutory, and independently to define treaty provisions. The agreement on the commodity penalty is the additional (accessory) obligation and cannot separately exist from the basic commercial contract.

businessmen and legal bodies can be subjects of the obligations provided with the commodity penalty.

a subject of the obligation of the commodity penalty can be: specific thing (things), property rights, property complexes, i.e. those values which can be defined as the goods. Money, certainly, cannot be a subject of the agreement on the commodity penalty though the values constituting a subject of the obligation, should have the monetary estimation adjusted by the parties. Unlike the usual penalty, the subject of the commodity penalty comes under to the coordination the parties by the rules applied to regulation of contracts of purchase. In a case if the parties in the contract will define, that the debtor at obligation delay in performance transfers to the possession the creditor property, it is necessary to fix in writing the name and quantity coming under to assignation and, probably, to specify the adjusted requirements to its quality. By transfer as the commodity penalty of individually certain thing, follows, obviously to be guided by the rules provided for contracts of purchase of the real estate regarding the detailed coordination of a subject of the obligation and its lacks, drawing up by the parties of the transfer certificate. There is unresolved a question, whether there can be a real estate a subject of the commodity penalty. On this question there is no unequivocal answer. It is possible to assume only, that the real estate, according to some scientists, the goods to name it is impossible and, hence, a subject of the commodity penalty it cannot be [36] .

Cost of the property forming the commodity penalty, is adjusted by the parties in the basic contract. It is represented, that cost of a subject of the commodity penalty should be that to cover possible losses of the creditor in full, including the loss of profit.

transition of the property right to the caused things (property) will be the maintenance of the obligation of the commodity penalty. The conclusion of the commercial contracts provided with the commodity penalty, in the notarial form is preferable. It will allow to obtain on demand at occurrence of disputes a subject of the commodity penalty at the debtor, not resorting to legal proceedings. By the way, the notarial form is obligatory at the conclusion of contracts of the rent which element of the maintenance also is assignation in the property.

At occurrence of disputes concerning harmony of a subject of the commodity penalty to consequences of default or inadequate execution of the commercial obligation, it is necessary to consider, that at party making contract have meaningly defined cost of the property which is coming under to transfer to the property of the creditor at default. Hence, the creditor also would not conclude the contract on other conditions or with maintenance of smaller value. Application in these conditions court of item 333 of the Civil code can be regarded as infringement of legitimate rights and interests of the creditor, infringement of a principle of freedom of the contract.

has put at all in, whether is the commodity penalty a version of the classical monetary penalty or represents an independent way of maintenance of the obligation though also it is important. Maintenance of obligations in general represents satisfaction of interests of the creditor, on a default case, money or other things (property). At realisation obespechitelnyh obligations of the penalty, the bank guarantee, the deposit, the guarantee creditors cash. Realisation of the obligation of pledge too, as a matter of fact, brings to the creditor money, but can bring other property at fiduciary pledge or signing by the parties of the agreement on a compensation. Only deduction of property of the debtor gives to the creditor not money, and other values as deduction of money turns to counterclaim offset.

only at realisation of the obligation of the penalty the court has a right to reduce payments due to the creditor. The penalty can and should be reduced court in one case: if it represents penju, the percent which have grown before, that the penalty forms the income of the dissatisfied party and its collecting breaks a principle kompensatsionnosti grazhdanskopravovoj responsibility.

in all other cases it is ridiculous even to bring an attention to the question on reduction of the size of maintenance of the obligation, whether it be pledge, the deposit or a guarantee. All because at realisation obespechitelnyh obligations, except for the monetary penalty, do not arise claims for damages. Therefore will discuss more correctly not possibility of application of item 333 of the Civil code to the commodity penalty, and a parity of the commodity penalty and a duty under the indemnification. Here sees two possible approaches.

First, the commodity penalty can be considered, how a version of the classical penalty, on the Latvian and German sample. In this case the court has the right to collect not only the penalty, but also to pay damages of the creditor (the penal commodity penalty), or to pay damages in a part exceeding estimated cost of the commodity penalty (the test commodity penalty). Such approach is represented not absolutely true if to consider, that the indemnification not is obligation execution in nature, and represents, as a matter of fact, collecting of money. In other words, there is no need to collect a thing, and together with it and money if it is possible from the very beginning as at pledge, to select a subject of the obligation of the commodity penalty such thing (property) which reception by the creditor will satisfy at once all requirements.

hence, secondly, the commodity penalty should not correspond with losses in any way. Realisation of the obligation of the commodity penalty should exclude the indemnification and cease the basic obligation. The conclusion from here follows: Civil code item 333 to the commodity penalty is not applied, especially in a case when the indivisible thing becomes a subject of this penalty

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, for example, the car. Thus, the commodity penalty can be alternative or exclusive in view of its special, "real" character.

if the obligation, Provided with the commodity penalty, it is not executed properly, and the debtor refuses to transfer to the possession the creditor a penalty subject, referring on its absence, the creditor can accept one of two decisions:

- to demand the indemnification as the commodity penalty is only obespechitelnym a condition of the basic obligation;

- to make agreement about a compensation, having ceased, thus, the basic obligation (money or other property should be a compensation subject).

it is necessary to solve, instead of whether is the commodity penalty a compensation? For the answer to this question it is reversible to O.J.Shilohvosta's who was engaged in research of a compensation in civil law 1 authoritative opinion. The specified author does not consider the exclusive penalty as a compensation version. Norm of the item 396 about the penalty having character of a compensation, speaks about the exclusive penalty which payment releases from the indemnification at obligation default. Agreeing with O.J.Shilohvostom, we will consider in addition distinctions of a compensation and the commodity penalty.

the commodity penalty is an inseparable part of the basic obligation. The termination of the basic obligation, at least and a compensation, ceases the obligation of the commodity penalty. The obligation from a compensation arises, on the contrary, «on ruins» the basic obligation where the basic obligation stops at the moment of signing of the agreement on a compensation.

the commodity penalty can be not only exclusive, but also alternative, that is reached by the reservation in the basic contract: « The party which has not executed the contract properly, is obliged to pay damages or to transfer to the possession the dissatisfied party in the form of the commodity penalty the named property ». At a compensation the indemnification is not mentioned in general.

the Agreement on the commodity penalty can be reached participants of the commercial contract to or at the moment of its signing, but in any way at the moment of failure detection of the debtor that is inherent in a compensation.

the commodity penalty, and, more precisely, its realisation, is closely connected with party unlawful conduct in the commercial contract. A duty to give the commodity penalty arises at the debtor while the basic obligation is considered unsatisfied or executed not according to conditions. The compensation can be given at any moment under the agreement of parties, even before the expiry of the term of execution of the basic obligation.

There are distinctions and under the form of fastening of duties of the commodity penalty and a compensation. The commodity penalty can be adjusted only in writing, and the notarial form is recommended. The agreement on a compensation between subjects of a commercial turn submits to general rules about the form of transactions. And, at last, the purpose of the commodity penalty - to stimulate the debtor to obligation execution, the compensation purpose - to cease the obligation and all additionals connected with it.

having considered the commodity penalty as obespechitelnoe the obligation, it is possible to draw the main conclusion that it can be quite used at the conclusion of separate commercial contracts. The commodity penalty represents an independent way of maintenance of obligations, it cannot be mixed with the monetary penalty provided by item 330 of the Civil code. The main distinction of the monetary and commodity penalty consists that the commodity penalty cannot carry dual character, it cannot be the independent form of property responsibility as realisation of the obligation of the commodity penalty occurs within the limits of the indemnification. At making agreement about the commodity penalty

the parties in the commercial contract define in advance possible losses and the exact size of their compensation by a subject of the commodity penalty. In it estimated function of the commodity penalty and absence of elements of penal function sees.

attempt of unification of the civil legislation of the CIS countries in the form of modelling GK recently is undertaken. The given project of the code, trying to counterbalance all interests and traditions of participants of the CIS, has incorporated all features of the penalty which were inherent in it at different stages of development of the civil legislation, including allied and union republics. In the given project we see return to norm about possibility to establish the contractual penalty in a kind of "other property», as in GK RSFSR 1922 [37] . Thus, in the civil circulation the commodity penalty can be returned, however for this purpose it is necessary to make additions to the operating Civil code.

thus, in the Russian civil law pertinently to speak about the monetary penalty (item 330 GK), applied to maintenance of execution of commercial both noncommercial obligations, and the commodity penalty, as a way of maintenance of execution of commercial contracts.

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A source: Konovalov Alexander Ivanovich. the PENALTY In the COMMERCIAL TURN. The dissertation on competition of a scientific degree of the master of laws. St.-Petersburg 2003. 2003

More on topic 1.2. The penalty maintenance:

  1. the Chapter II OBJECT of MAINTENANCE of the PENALTY (AS WAY of MAINTENANCE of the OBLIGATION)
  2. Obligations civil matters as objects of maintenance of the penalty (in a broad sense)
  3. 2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS
  4. rights as direct objects of maintenance of the penalty
  5. 2.2. A parity of the penalty and other ways of maintenance of OBLIGATIONS
  6. kinds of debt relationships as objects of maintenance of the penalty (in narrow sense)
  7. 1.3. History of the legislation on the penalty, the foreign LEGISLATION On the PENALTY
  8. CHAPTER 1. CONCEPT, THE MAINTENANCE AND LEGAL REGULATION OF ADMINISTRATIVE RESPONSIBILITY FOR NON-PAYMENT OF THE ADMINISTRATIVE PENALTY IN TIME, STATUTORY
  9. the purpose and penalty functions
  10. Concept of the penalty
  11. § 2. A parity obespechitelnogo payment and the penalty
  12. 2.3. Compensatory function of the penalty in a commercial turn
  13. principles of legal regulation of the penalty
  14. 1.1. Concept of the penalty
  15. a penalty parity (as way of protection) with losses and percent for using another's money resources
  16. Ways of perfection of application of rules of law about the penalty
  17. 2.4. The penalty, as the responsibility form under commercial OBLIGATIONS
  18. charge of the judicial penalty (astrent)
  19. the PENALTY GENERAL CHARACTERISTIC