2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS

Maintenance of obligations is traditional institute in civil and the commercial law. The confidence of creditors that the bound party will execute the obligation or will pay damages at its default, could be born only in the presence of certain additional levers on the debtor.

The Roman lawyers defined maintenance of obligations, as prompting of the debtor to timely execution on pain of unprofitable consequences [110] .

Ways of maintenance of obligations existed and in ancient Russia. In the Pskov Judgement reading and writing the bail, transition of the close relative in a condition of responsibility for a debt [111] are mentioned zaklad. Maintenance of obligations was provided by the Code of laws of 1497 and Cathedral Ulozheniem 1649

In the Russian pre-revolutionary legislation and grazhdanskopravovoj the doctrine can allocate maintenance of obligations as means and the ways, called to stimulate debtors to their appropriate execution. In G.F.Shershenevich's this occasion wrote: « The obligation grants the right to demand, but not to force to execution of the action promised by the debtor. If from this party is not present and there can be no maintenance that the established obligation in accuracy will be executed, at least, it is necessary to provide veritelju that valuable interest which for it contacts the obligation » [112] . Russian civil law discriminated as ways of maintenance of obligations the deposit, the penalty, the guarantee, pledge and zaklad.

Positions about maintenance of commercial obligations are available in the legislation of all states concerning continental and Anglo-Saxon legal systems. For example, the Uniform trading code of the USA (ETK) includes section 9« Maintenance of transactions ». Introduction positions of section 9 ETK the USA are formulated as follows:« The present section is applied to obespechitelnym to the interests created by means of the contract, including the gauge, cession, the real estate mortgage, the direct trust on a personal estate... » .

Occurrence of the legal institution of maintenance of obligations, obviously, has been connected with concrete vital circumstances at which the creditor (veritel) appeared not protected before unfair behaviour of the debtor. Enterprise activity by definition is connected with known commercial risks. Among risks not last place occupies unfair behaviour of the partner. For decrease in these risks it is a lot of years back the legal design which has received the name «obligation maintenance» has been invented. Occurrence in the right of the specified design in the form of separate norms became possible owing to realisation of the general principle of optionality of private law and contract freedom.

Long-term experience of application of norms about maintenance of obligations has shown, that most influence effectual measures on the debtor have appeared what created at the debtor interest in the best performance of the duties taken on [113] . Therefore the creditor and the debtor (or the person operating on the party of the debtor) enter in corresponding obespechitelnye relations.

before obespechitelnoe legal relation will arise and is realised, presence of the main thing or the basic lawful act, the juridical act is necessary. The basic juridical acts are transactions, the majority from which has obvious commercial character.

Obespechitelnoe legal relation can arise only as additional in relation to the commercial obligation. Result of occurrence obespechitelnogo legal relations are additional duties of the debtor (the person operating on the party of the debtor) and the incorporeal right corresponding to them of the creditor. The matter is that obespechitelnye relations have the same nature, as the cores, i.e. are obligations. From here the conclusion that obespechitelnoe legal relation puts the debtor in a necessity condition naturally enough follows, defining its further behaviour.

according to O.S.Ioffe, «action in this case constitutes a condition of occurrence of the right, but it is also result of realisation of the right» [114] .

Till the offence moment, and it will be a question of default or inadequate execution of commercial obligations, obespechitelnoe legal relation represents itself as a guarantee, possibility of certain behaviour. It only conditions for decrease in commercial risk. But since that moment when the commercial obligation is considered unsatisfied, obespechitelnoe legal relation is realised, i.e. becomes material and owing to the materiality generates real duties at the debtor and the right at the creditor, owing to it and the basic obligation is carried out. At this stage the behaviour of a party liable is directed on satisfaction of property requirements of the creditor as it should be and on conditions, statutory or the agreement of participants of the basic commercial obligation [115] .

Outstanding Russian jurist D.M.Meyer in the middle of XIX century noticed, that maintenance of obligations - that other as «ways, artificial receptions for dostavlenija to a liability law of that hardness which lacks it in essence» [116] . On operating Russian civil law, according to item item 1 329 GK the Russian Federation, execution of obligations can be provided with the penalty, pledge, deduction of property of the debtor, the guarantee, the bank guarantee, the deposit and other ways, statutory or the contract.

the Civil code of the Russian Federation was a step forward regarding a regulation of new ways of maintenance of obligations 1994. The ways of maintenance named in item 329 in the form of the bank guarantee and deduction of property of the debtor to earlier Soviet civil law (GK RSFSR 1964) Were not known.

at all similarity and an orientation on appropriate execution of the basic obligation, obespechitelnye legal relations are not homogeneous and have the big number of distinctions. At the same time, obespechitelnym certain general signs and lines are inherent in legal relations.

1. Obespechitelnoe legal relation arises owing to the law or the transaction and develops in strictly certain form. So, item 334 GK provides, that the basis of occurrence of the relation of pledge is the contract or approach of the circumstances specified in the law. Obespechitelnoe legal relation arises, as a rule, owing to the contract. The contract is the best legal form which allows the parties to adjust volume of the provided requirement, a way of given maintenance, a realisation condition obespechitelnogo legal relations. The legislator has defined, that the contract is the basis of occurrence of relations of the guarantee, the deposit, and also pledge (though pledge arises and on the basis of the law).

2. The purpose obespechitelnogo legal relations is achievement optimum for the creditor of execution by the debtor of the duties taken on.

3. Obespechitelnoe legal relation is protected by property measures of protection and responsibility, as well as any obligation. So, the pawnbroker at whom was or there should be a put in pawn property, has the right to obtain on demand it from another's illegal possession, including from possession of the depositor (item 347 GK).

4. Obespechitelnoe legal relation carries out compensatory function as it is realised only under condition of default of the basic obligation. Having learnt about that the basic obligation is not executed, the creditor starts to demand from the debtor or the third party of certain actions by a presentation of corresponding claims (requirements) in what the compensatory nature obespechitelnogo legal relations is shown.

Obespechitelnye legal relations on model are relative and represent communication of strictly certain subjects, one of which always is the creditor under the basic obligation. The right in obespechitelnom legal relation has the compulsion form. The bound party is forced to behave definitely, pamjatuja about possible adverse property consequences of default of the basic obligation.

represents certain interest a problem of definition of object obespechitelnogo obligations. So, O.S.Ioffe [117] , and behind it and

L.B. Nigmatulina [118] consider, that object obespechitelnogo obligations are party liable actions. The given statement is true only in the most general sense if to consider all obespechitelnye legal relations by obligations. And how to be with deduction by the creditor of property of the debtor? It is represented, that initiative actions of the creditor on preservation in sphere of the economic domination of another's things have object not actions of the debtor, and indemnification of own losses of the creditor from unfair behaviour of the debtor, i.e. another's property. It and is clear, as the specified way of maintenance of obligations is a short story in the Russian right and O.S.Ioffe was not considered.

if to compare obespechitelnoe legal relation with the relation arising from civil responsibility it is possible to allocate positive character obespechitelnogo relations. The parties in the basic obligation voluntary establish certain mechanisms and procedures. It is possible to tell with definiteness, that obespechitelnoe legal relation serves more often as the intermediate stage from the moment of material breach by the debtor of the basic obligation before responsibility for misbehaviour.

the exception is constituted by the penalty which is not only way of maintenance of the obligation, but also the civil responsibility form. obespechitelnuju a role the penalty carries out the in synthesis with conservation measures. At first sight it seems, that here there is no problem: norms about the penalty contain in chapter 23 GK «Maintenance of obligations», besides, the penalty is named in chapter 25 GK «Liability of infringement of obligations» as the responsibility form along with the indemnification. Not all so is clear at close examination of a being of the penalty under commercial obligations.

As a design providing execution of obligations, the penalty represents only a stimulant of the debtor to appropriate execution, induces to execute undertaken. Some authors, including D.A.Grishin [119] , exaggerate obespechitelnuju a penalty role, naming it in "the way of intimidation of the counterpart». Actually the penalty, under the general rule, cannot be beyond the valid losses that is fixed in the item of item 394 and 333 GK, therefore to "frighten" partners there is especially nothing, considering, that responsibility in civil law has strictly compensatory character, has restrictive limits and cannot lead to enrichment of the creditor.

nevertheless, the legal nature of the penalty is that, that in the head of a corner its precautionary character is put. The purpose of its establishment in the contract or norm of the law - to warn obligation infringement. In practice of the conclusion of commercial contracts the penalty is constantly used. Open Society "Źóįąķüõėåįīļšīäóźņ" has concluded in 2001 over 800 contracts of delivery of grain and a flour, including for limits of Krasnodar territory. The analysis of the maintenance of these commercial contracts shows, that at the coordination the parties of conditions of delivery without the advance payment the text of contracts necessarily joined penalties in a kind peni and penalties.

opening obespechitelnyj sense of application of the penalty in the presence of the right of the creditor to claim damages, O.S.Ioffe noticed, that: « First, losses are collected, when they are really caused, meanwhile as, despite an offence, losses can and not arise. In the absence of the penal clause similar offences would not attract any negative legal consequences for the person who have made them...

Secondly, for collecting of losses it is necessary to prove not only their size, but also that the representative has taken all possible measures for their elimination. Practically it puts the representative in rather difficult situation in process and, on occasion, could lead even to condonation of the infringer who has actually caused losses.

Thirdly, losses - size uncertain, they come to light only after an offence, whereas the penalty - size precisely fixed, in advance established and known to both participants of the obligation. .

Fourthly when it is established it is long operating obligations, their infringement is reduced not to full refusal of execution, more often, and to the inadequate execution expressed in delay, qualitative defects etc. At the moment of the offence losses either do not come, or have no tangible expression. The question on their indemnification can be put only after the expiration more or less considerable time. Meanwhile, the creditor already at the moment of infringement should have means, operative enough to induce the debtor to obligation execution, and maneuverable enough to operate throughout all time when the offence lasts, and not just during the moment when losses will come to light... » \

the Resulted extensive citation demands some comments. During times when the economy was planned, and the property of participants of the civil circulation, basically, belonged to the state or was, as were expressed then, "public", the penalty in commercial contracts was, more likely, a tradition tribute, but, in no event, not real maintenance of obligations. Presence in the contract of the penal clause did not stop the managing subject before obligation default because penalty payment in the smallest degree was reflected in personal well-being of heads of the enterprises and the organisations, could entail only deprivation of the quarter award. In 1970th the contractual discipline was supported not [120] by measures of a possible civil liability, and is pure administrative actions and so-called « Party responsibility ». All should be remembered it, reading O.S.Ioffe's theoretical works.

but also O.S.Ioffe was not original in the judgements. Attentively enough to read« a civil law Course »G.F.Shershenevicha and I.A.Pokrovsk's works 1 . Pokrovsk wrote, that owing to freedom of contractual relations chances of the most rigid economic operation of economically weak subjects from economically strong. The penalty became the weapon against unfair businessmen. But character of this weapon has been defined at once as precautionary, preventive. The penalty cannot be the offensive weapon, the legal relation connected with it is realised only in the presence of an offence. Moreover, in commercial practice the debtor receives in the beginning from the authorised party the notice with an establishment of a certain term for correction of the created position. Sometimes it is called as "reasonable term» for appropriate execution of the obligation.

G.F.Shershenevich specified, that the Russian legislation understands the penalty in value obespechitelnoj measures. Saying, that the penalty «means to induce the debtor to execution on pain of unprofitable consequences...», the remarkable Russian lawyer underlines, that obligation maintenance - not a unique problem of the penalty. It also is in the way in advance to define the size «compensations for deviation from the obligation» [121] [122] [123] . « Predefiniteness »penalties was repeatedly marked by Russian and Soviet jurists [124] . It is considered even feature of the penalty, and presence of"predefiniteness"of negative consequences of default of the obligation as if gives the basis to believe the penalty not the responsibility, but only base for definition of its size [125] [126] .

C such position it is possible to agree only in a general sense. In commercial practice of the party include in dogovory at once some penalties. One, for example, for goods unpaid amount, and another - for refusal of acceptance shipped The goods of appropriate quality and completeness. The penalty in a firm sum of money (penalty) accurately defines possible volume of responsibility whereas execution interests on arrears (penja) give only a mathematical basis of calculation of volume of responsibility. In this case would be more correct to speak about an establishment by means of the contractual penalty of bases for definition of the size of possible responsibility of the infringer of the contract.

the signs allocated with O.S.Ioffe and underlining obespechitelnyj, precautionary character of the penalty, it is possible to assume, thus, as a basis, considering changes in the current legislation and an economic basis of the Russian society. By the way, the textbook of civil law mentioned earlier under E.A.Sukhanov's edition in § 3 (2) chapters 29, devoted obespechitelnoj functions of the penalty and the written V.S.Emom, repeats O.S.Ioffe's arguments. In brief stated, these arguments about additional (obespechitelnom) value of the penalty can be reduced to the following:

- for penalty it is not necessary to prove presence and the size of losses that follows from the maintenance of item 1 of item 330 GK in court;

- the size of losses cannot be defined immediately at revealing of infringement of treaty provisions while the size of the penalty is in advance defined, that «does its collecting inevitable»;

- defining the size of the penalty, the parties in the contract or the legislator thereby state an estimation of the importance of the provided obligation. Obespechitelnyj penalty potential above if the penal element in it prevails over the compensatory.

the first of the specified signs obespechitelnogo character of the penalty is not basic. Actually the main sign - indissoluble communication of the penalty with the basic obligation. As to independence of the penalty of losses it is true only partly. Moreover, the obligation is provided not with "simplicity" or "inevitability" of penalty, and the possibility of collecting of sums of money. We will try to explain the given thesis.

the legislator accurately defines additional (accessory) character of the penalty in relation to the basic obligation. The mandatory provision of item 331 GK demands the written form for any agreement on the penalty. Similarly the legislator arrives and at regulation of other accessory obligation - pledge, and in cases of the guarantee, the deposit. Thus, the legislator as. Would equalise the basic obligation and providing it accessory, intentionally underlining, that at maintenance of the obligation we deal not with one, and with two obligations, one of which entirely depends on another. The law does not forbid to constitute the separate contract on maintenance of the basic obligation with penalties (especially if penalties are pawned in the contract in interests of all participants) and to provide obligation execution on payment of the penalty by pledge or the guarantee.

if the agreement on the penalty (and it is a question while only about the contractual penalty) represents additional, but nevertheless the separate obligation, it is necessary to define its maintenance. The obligation maintenance about penalty payment are the rights and duties of its participants. The debtor undertakes to pay to the creditor the known or defined sum (or to transfer to the possession the property in the obligation of the commodity penalty) in case of approach of certain events, and the creditor acquires the right to demand payment to it the debtor of the same sum. The obligation can be unilateral or mutual if duty to pay penalties both parties of the basic contract incur.

the obligation Purpose about the penalty is maintenance of appropriate execution of other main (basic) obligation. The basis for a recognition of the penalty in the way of maintenance of obligations just also is its purpose and indissoluble communication with the basic obligation, instead of degree of security or garantirovannosti requirements about penalty payment. Therefore to us, probably, it is necessary to leave conversations on "simplicity" and "inevitability" of penalty, so far as we speak about obespechitelnoj penalty roles, as additional obligation.

and the purposes with which there are penalty obligations, in practice can be various. If the parties have agreed that the penalty has penal character and will be collected in addition to losses - such penalty is turned to the debtor, aimed at creation at it anxiety concerning exact and appropriate execution of the duties taken on. But we will imagine a situation when for refusal of transfer of a thing in cost of 10 thousand river of the party establish the exclusive penalty in 10 thousand river which has character of a compensation. Such situation is modelled on the basis of item 394, item 3 of item 396 GK. The purpose of such obligation about the penalty is indemnification of losses of the creditor with the simultaneous termination of the basic obligation. The penalty is turned to the creditor and creates at it confidence of safety of property. Therefore, it is possible, leaning on resulted above a reasoning to try to formulate again the bases on which the penalty is maintenance of obligations (including commercial).

1. The penalty, being, in itself, the contingent liability which is distinct from the basic commercial obligation, inseparably linked with it also cannot exist independently. The core termination objazatel -

stva attracts the termination of the obligation of the penalty. But the termination of the obligation of the penalty (item 1 of item 396 GK) under the general rule does not attract the termination of the basic obligation.

2. Or an overall objective of the obligation of the penalty maintenance of execution of the basic obligation is strategic. The tactical or private purposes of the obligation of the penalty can be creation at the debtor of impulsive causes or sensation of confidence, stability at the creditor.

3. The penalty obligation creates possibility of collecting in favour of the creditor under the basic obligation of the certain or defined sums of money, other property not withdrawn from a turn (except for the real estate), but does not provide collecting.

O.S.Ioffe's arguments, and then and Century With. Ema about that obespechitelnyj character of the penalty proves to be true simplicity of its collecting, neobjazatelnostju provings of presence and the size of losses and acceptance of certain measures on prevention of losses concern, more likely, to the incidental point of a parity of the penalty and losses, as responsibility forms.

it is possible to specify in one circumstance confirming action of the obligation of the penalty, as way of maintenance of other (basic) obligation, only till the moment which is certain by this basic obligation as the execution moment. It is known, that the civil law in general urged to regulate normal property relations. At debt relationship realisation appropriate execution as it and is written down in the item of item 307 and 309 GK will be normal. The penalty, as well as any other way of maintenance of execution of the obligation, urged to provide normal (or on terminology GK - "ought") obligation execution. If normal execution has not followed, the penalty ceases the action as maintenance of normal execution and further operates as a responsibility measure.

hence, the defining criterion specifying that the penalty - a way of maintenance or responsibility represents, - the fact of infringement of the obligation is. As maintenance the penalty operates till the moment of appropriate execution, and as the responsibility form - during the period from revealing of infringement of the obligation before its actual termination.

feature of application of the penalty as maintenance of execution of commercial obligations consists that in most cases penalties in public commercial contracts are provided by normative acts (lawful penalties) and are penal.

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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 2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS:

  1. 2.4. The penalty, as the responsibility form under commercial OBLIGATIONS
  3. 2.2. A parity of the penalty and other ways of maintenance of OBLIGATIONS
  4. Obligations civil matters as objects of maintenance of the penalty (in a broad sense)
  5. § 3. Participation of the third parties in maintenance of execution of obligations.
  6. § 1. Concept n ways of maintenance of execution of obligations
  7. § 3. Obespechitelnyj payment as a way of maintenance of execution of other obligations
  8. measures of maintenance of execution of tax obligations
  9. 1.4. The penalty nature in a commercial turn
  10. §2. Principles of profitability of execution and assistance of the parties at execution of obligations
  11. 2.3. Compensatory function of the penalty in a commercial turn
  13. 3.1. Ways of maintenance of execution of obligations the private partner as measures of protection of the rights of the public partner