Geographical phraseological units and their meanings French. Eleven quirky French animal-related idioms

As a general rule, (1) creditor's rights ensured the obligation of the debtor to pay damages, but this is not enough, invented (2) additional guarantees property rights of the creditor. They were divided into 2 groups:

« Real». This is:

o PLEDGE - see OVP.

o DEPOSIT (arra) is a certain amount of money that the lender transfers to the lender at the time of the conclusion of the contract on account and as security for its execution. A deposit is a unique way to ensure the fulfillment of an obligation. After all, it performs 3 functions. The main one is (1) security . (Stimulated both sides of the contract). But even within the framework of this function, the deposit stands apart. The point is that this the only way, which stimulates not only the debtor (the lender), but also the creditor (the lender) to the proper performance of the contract - the rest stimulate only the debtor. Why is the deposit so unusual? This follows from the rules governing its use. If the contract is not executed due to the fault of the deposit recipient, he must return not only the deposit, but also a fine in the amount of the value of the deposit. That is, he must return the deposit in double size. The second half is essentially a forfeit. The deposit burdens both parties, and the one who asks for the deposit should always remember this - he is also responsible.

And if the amount is paid as an advance, there is no such rule - they return the advance itself and, if they prove it, compensation for losses.

There is a deposit and the second function. It is unique - no other way has such a function. This is a function payment . The depositor transferring the deposit simultaneously executes the contract on his part. The transfer of the deposit is at the same time the execution of the contract by the depositor. Neither the pledge nor other methods of such a function are not.

The third function of the deposit is evidentiary . If the existence of an agreement on a deposit between the parties is proved, the presumption is valid, the assumption that the existence of the main obligation between the parties is proved. The fact is that in the agreement on the deposit or receipt for the receipt of the deposit there must be a reference to the main obligation, it is indicated on account of which contract the deposit is transferred. And even if the agreement itself is formalized orally, by agreement, the deposit agreement can prove the existence of the agreement. You can refer to the deposit agreement, if it is correctly executed: A) the amount should be called "deposit"; B) it is indicated to which contract the amount is transferred.

The deposit burdens both parties, but its disadvantage is that it If the contract is executed, but improperly, the double deposit return rule no longer exists.

o PENALTY STIPULATION (stipulatio poenae (lat. fine); penalty). This is an agreement between the creditor and the debtor, by virtue of which the debtor undertakes to pay the creditor a certain amount of money in the event of a violation of the main obligation. Now it is made out by the separate contract about the penalty. In Rome - by an oath of the debtor in the presence of the praetor, in the form of stipulation. It was an oath to pay a fine. If he refused to fulfill the oath under the condition of a breach of the contract, it was possible to apply to the praetor for an interdict, with which to recover the amount. Minus the penalty- it does not increase the solvency of the debtor. If the debtor does not have enough funds, the presence of a penalty clause will not help in any way. But there are two pluses:

Procedural. To recover a penalty, you need to prove only the fact of violation of the contract by the defendant. And if you recover damages, you need to prove a) breach of contract; b) causing damages; c) connection a and b

Penalty is calculated on any way of breach of contract - both non-performance of the contract, and improper performance. If the contract is not performed, the debtor has not performed any actions in relation to the creditor, stipulated by the obligation. Improper performance - the debtor has committed some actions, but committed violations in terms of time, quantity, quality of products, etc. Penalty can be tied to any violation. And, for example, a deposit that burdens both parties, calculated only on non-performance of the contract. If a thing of inadequate quality was transferred, it is already impossible to demand a double amount of the deposit.

« Personal » means of enforcement. Personal because the circle of persons responsible to the creditor was expanding. There was one way GUARANTEE PACT . Why "personal"? Here we are not talking about the fact that the recovery is directed to the personality of the debtor. The circle of persons responsible to the creditor for the performance of the contract is simply expanding. This is not only the main debtor, but also another person who is called surety. In Rome, there were two types of guarantee:

o ACCEPTANCE OF PAYMENT - the main type of guarantee. The creditor and the debtor, between them the main obligation is the loan contract. To secure an obligation, a third party enters into a surety pact with the creditor, a “clothed pact”, an informal agreement, but secured by a claim. The creditor needs performance, and a third person, called the guarantor, takes over the payment, concluding a pact. Under this pact, the guarantor undertakes to perform the loan contract if the debtor fails to do so. If the guarantor refuses to do this, this pact is secured by a lawsuit - you can turn to the praetor and recover.

The duration of the pact was established by agreement of the parties. If the period was not set specifically, it was set by law - 2 years from the date of entry into force of the main obligation (and not from the date of the conclusion of this pact). Just like now.

The guarantor, who performed the obligation for the debtor, had the right to recover from the debtor everything paid for him to the creditor, as well as to demand compensation for losses caused to the guarantor by the performance of the contract (losses that arose in connection with this). That is, the amount could exceed what he paid for the debtor: what he paid + the losses he incurred from this (for example, if in order to fulfill the contract, he had to borrow money at interest).

o ORDER TO GIVE LOAN – special kind. There is the following chain. First, the 3rd person asks the lender to grant a loan to a specific debtor. This agreement can be drawn up, but not by an agency contract (then the loan would be provided on behalf of a third party, and it would itself be a creditor), but, most likely, service agreement. If the creditor fulfills this request by providing a loan to this debtor, then the 3rd person who requested becomes the guarantor for this obligation. There is no need for a pact to accept payment. The main thing is to have proof of the existence of an agreement where a 3rd party asks the creditor to provide a loan to the debtor

Ways to ensure the fulfillment of an obligation are special legal means of a property nature provided for by law or an agreement that stimulate the debtor to properly fulfill the obligation by establishing additional guarantees for satisfying the requirements (interests) of the creditor.

First, the ways to ensure the performance of the contract must be provided for by law or the contract.

Secondly, they are applied, as a rule, only at the initiative of the parties to the contract. The contract thus serves as a legal fact, "launching" these legal means.

Thirdly, these methods are exclusively property in nature.

Fourthly, they are aimed at inducing the debtor to fulfill his duty.

Fifthly, they are additional in relation to the main obligation they provide. This is manifested in the fact that they follow the fate of the main obligation (transferred and terminated with it).

Legislation provides the following ways ensuring the performance of the contract.

1. Penalty (fine, penalty). A penalty (fine, penalty interest) is a sum of money determined by law or an agreement, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the agreement. Thus, the attractiveness of a penalty in comparison with compensation for losses is due to the fact that in the event of a penalty, the creditor is relieved of the obligation to prove the existence and amount of losses: the amount of the penalty is predetermined in the contract or the law and does not depend on the amount of losses.

There is one exception to this rule: if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty as well. Otherwise, the forfeit is characterized by the same disadvantages as the compensation for damages. That is why many lawyers recognize the penalty not as a way to ensure the execution of the contract, but as a special measure of civil liability.

Fines and penalties are types of penalties. The fine is usually an amount, the amount of which is predetermined and collected once, and the penalty is a certain percentage of the amount of the debt, set in case of delay in its execution and subject to periodic payment (for example, 0.5% of the amount of the debt for each day of delay).

2. Pledge. The instability of the position of the creditor lies in the fact that by the time the obligation is fulfilled, the debtor may not have any property at all, which could be foreclosed. It would be another matter if in the debtor’s property that existed at the time of the conclusion of the contract, it would be possible to allocate some part of it, the debtor’s rights to which would be temporarily limited and to which the creditor, in the event of a debtor’s malfunction, could levy execution predominantly over other creditors. .

This is exactly what bail provides. The essence of the pledge is to segregate the property of the debtor (called the pledgor), usually passing into the possession of the creditor (called the pledgee), to ensure the priority satisfaction of his claims. In other words, the creditor acts on the principle of "I trust not the person, but the thing."

However, if the debtor violates the obligation, the creditor does not become the owner of the pledged property at all. He only has the right to demand its sale (usually a sale at a public auction), in order to satisfy his claims with the proceeds from the sale in preference to other creditors.

A pledge may be accompanied by the transfer of the thing to the pledgee (mortgage) or be carried out without such transfer. Indeed, some things are simply physically difficult to transfer to a creditor (for example, a land plot, an apartment).

On the other hand, the creditor is often not interested in depriving the debtor of the right to own the thing. So, if the subject of pledge is a means of production (for example, the land on which the farmer operates), the pledger will fulfill his obligation the sooner the more effectively he will use the subject of pledge. In the event that the subject of pledge remains with the pledgor, he shall be obliged to ensure its safety. And, of course, the creditor in this case also has the right to satisfy his claims from the pledged property preferentially over other creditors.

3. Hold. The debtor's property may be held by the creditor not only as a subject of pledge, but also on another basis, for example, on the basis of an agreement on the performance of work, on the provision of services. For example, a laundry cannot be without its client's linen, and the contractor usually has a work product to be transferred to the customer.

In the event that the debtor fails to fulfill the obligation to pay for this thing or reimburse the creditor for the costs and other losses associated with it, the creditor, in accordance with the Civil Code of the Russian Federation, has the right to retain such thing until the corresponding obligation is fulfilled. If the debtor nevertheless persists in his unwillingness to perform the obligation, the creditor's claims may be satisfied in the manner prescribed for the satisfaction of claims secured by a pledge.

4. Guarantee. The creditor can believe not only things, as in the case of a pledge, but also the promise of a person whose solvency he is sure. As a rule, such a promise is given in the form of a guarantee. Under a surety agreement, the surety undertakes to be responsible to the creditor of another person for the fulfillment by the latter of his obligations in full or in part. In case of non-fulfillment or improper fulfillment of an obligation, the creditor has the opportunity to present his claims to both the original debtor and the guarantor. The guarantor, who performed his obligation for the debtor, acquires the rights of a creditor in relation to him, that is, in other words, he can demand from the debtor to return the amounts that the guarantor had to pay.

5. Deposit. In most obligations, one of the parties must pay the other party a certain amount of money, i.e. obliged to make payment. However, part of the payment can be given a different legal regime, turning it into a deposit.

At the time of the conclusion of the contract or somewhat later, one party obliged to make a payment pays to the other party a part of the amount payable, stipulating that this payment is a deposit. The agreement that this amount is a deposit must be in writing and may be contained either in the main contract or in a separate document.

Subsequently, if the party that gave the deposit is liable for non-performance of the contract, it will remain with the other party. If the party that accepted the deposit is liable for non-performance of the contract, it will have to pay the other party double the amount of the deposit.

As you can see, non-performance of the contract is equally unprofitable for both parties to the contract.

The deposit must be distinguished from an advance, which also represents the transfer to the party of the contract of the amount on account of the due payments, but is not a deposit and, accordingly, does not entail the application of the above rules. An advance payment is not at all a way to ensure the performance of a contract, but is simply an advance payment. By the way, if the requirement in writing agreement on a deposit, such a "deposit" is recognized as an advance payment.

The legislation also provides for other ways to ensure the performance of the contract, for example, a bank guarantee, etc. In addition, one should not forget that the parties to the contract may provide for a method of securing an obligation that is unknown to the law.

Each obligation is based on the belief of the creditor in the future performance by the debtor of an action necessary to satisfy the interest of the creditor. Such confidence, first of all, is based on his conviction that the proper performance of civil obligations is ensured by measures of civil law coercion in the form of either measures of responsibility or measures of protection. At the same time, in many cases, the application of these state-coercive measures of influence on the debtor is not enough to satisfy the property interests of the creditor, whose rights were violated by the non-performance or improper performance of the obligation by the debtor. Thus, a court decision on the forced collection of a debt may turn out to be unenforceable due to the absence of any property from the debtor.

As a result, the mechanism of civil law regulation uses special legal means, the constructions of which in various legal systems were created specifically to ensure the fulfillment of obligations. The purpose of such special legal means of a security nature is to secure in advance the property interests of the creditor by creating special guarantees for the proper performance of the obligation by the debtor. In modern Russian civil legislation, the norms that fix the constructions of such legal means of security and that together constitute the institution of ensuring the fulfillment of obligations are contained in Ch. 23 of the Civil Code (Art. 329 - 381). In accordance with paragraph 1 of Article 329 of the Civil Code, the fulfillment of obligations can be secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or an agreement.

As you can see, the list of ways to ensure the fulfillment of obligations is open-ended. Moreover, the penalty, pledge, withholding, surety, bank guarantee, deposit can be attributed to special, normatively described in Chapter 23 of the Civil Code methods for ensuring the fulfillment of obligations. Other methods of ensuring the fulfillment of obligations provided for by law or an agreement, but not normatively described in Chapter 23 of the Civil Code, can be attributed to other methods of ensuring the fulfillment of obligations.

The essence of special ways to ensure the fulfillment of obligations can be explained as follows. The creditor, entering into obligations and providing property to the debtor, thereby credits the debtor. In turn, the creditor may demand that the debtor or a third party enter into an agreement with him, on the basis of which he would be provided with additional security in the form of a certain equivalent of the provision made by him, which economically looks like a loan - personal or real. Both personal and real credit can be granted to the creditor also by virtue of the prescription of the law upon the occurrence of legal facts specified in it. If, along with the debtor, a third party assumes personal responsibility for his debt, then there is a personal loan. If, on the other hand, a separate object is allocated from the property of a well-known person, from the value of which satisfaction can be provided to the creditor in the event that the debtor fails to fulfill the obligation, then there is a real loan.

Such methods of ensuring the fulfillment of obligations, such as a surety and a bank guarantee, are forms of a personal loan, because when establishing them, the creditor is guided by the principle: I believe not only the personality of the debtor, but also the personality of the guarantor (guarantor). In turn, a deposit, a pledge, a retention as a means of securing the fulfillment of obligations are forms of a real loan, because when establishing them, the creditor is guided by the principle: I believe not in the person of the debtor, but in the property. A penalty has a special nature, which is attributed to the methods of ensuring the fulfillment of an obligation, since it is an additional sanction in relation to the main general sanction for violation of an obligation - compensation for losses (Article 393 of the Civil Code). When establishing a penalty, the law and the creditor proceed from the assumption that, being bound by the threat of a strictly defined additional property disadvantage, the debtor will strive to fulfill the obligation properly. By agreeing to the penalty, the creditor also receives some additional personal credit from the debtor.

The fulfillment of an obligation is understood as the performance by an obligated person (debtor) in favor of a person entitled (creditor) of an action provided for by law or an agreement or refraining from action. Thus, it is necessary to perform an action (inaction), which is the subject of an obligation.

The action can be expressed in the form:

a) transfer of property, for example, under contracts of sale, lease, donation, exchange;

b) fulfillment certain work, under a contract;

c) the provision of a specific service, for example, under contracts for transportation, insurance;

d) payment of funds, for example, under loan agreements, bank deposits.

The fulfillment of an obligation by inaction can be traced by the example of the storage obligation.

Principles for the fulfillment of obligations:

1. The principle of proper performance of obligations (Article 309 of the Civil Code), in accordance with which the obligation must be made by the required subject, the established person, in the absence of contradictions with the terms of the obligation regarding the subject, method, place of performance, term and other conditions. The criteria for proper performance are established by legal acts and the contract. If the obligation is performed improperly, then adverse consequences are possible for the debtor. As a rule, the creditor gets the opportunity to unilaterally terminate the contract and the right to claim damages.

2. The principle of real fulfillment of obligations (Art. 396-398, 505 of the Civil Code). It is manifested in the fact that the payment of a penalty (fine, penalty) does not relieve the debtor from the performance of the obligation in kind, unless otherwise provided by law or contract. This principle requires that even in the event of a breach of an obligation, the debtor actually, actually fulfills it.

At the same time, in case of non-fulfillment of the obligation, compensation for losses and payment of a penalty release the debtor from fulfilling the obligation in kind, unless otherwise provided by law or contract (paragraph 2 of article 396 of the Civil Code). The debtor is also released from the performance of the obligation in kind if the creditor refuses to accept the overdue performance, which has lost interest for him, as well as when paying a penalty as a compensation (paragraph 3 of article 396 of the Civil Code).

Enforcement of obligations is a special measure provided for by law or contract, aimed at compelling the debtor to fulfill the obligation under the threat of property losses. Thus, additional protection of the rights of the creditor is established, regardless of the occurrence or absence of losses.

These measures (or methods) form a special obligation legal relationship, main feature which is its accessory (additional) character. This is due to the fact that the so-called security obligation from the moment it arises is directly dependent on the main one.

This conditionality manifests itself:

Firstly, in the principle of following, for example, when the creditor's rights are transferred to another person, in particular, when the rights of claim for the main obligation are assigned (Article 384 of the Civil Code);

Secondly, the invalidity of the main obligation simultaneously indicates the invalidity of the securing obligation. And vice versa, if the condition on a pledge, deposit, guarantee or other way of securing the fulfillment of obligations is invalid, this circumstance does not entail the loss of legal force of the main obligation (clauses 2, 3 of article 329 of the Civil Code);

Thirdly, with the termination of the main obligation, as a rule, the security obligation also terminates (Articles 352, 367 of the Civil Code, etc.). The exception is the subsequent pledge (Article 342 of the Civil Code) and some other cases.

The main ways to ensure the fulfillment of obligations:

a) forfeit as an additional obligation for the debtor to pay a fine, that is, a certain amount of money, in case of violation of the obligation (Article 330-333 of the Civil Code);

b) pledge - a relationship according to which any property not withdrawn from civil circulation is transferred by one of the parties to the contract (debtor) to the other party (creditor) in order to certify the seriousness of their intentions to fulfill the obligation (Articles 334-358 of the Civil Code);

c) guarantee - a relationship in which the fulfillment of an obligation, along with the debtor, is assumed by a third party (Article 361-367 of the Civil Code);

d) deposit - a sum of money issued by one of the agreed parties on account of payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution (Articles 380, 381 of the Civil Code).

e) bank guarantee - an agreement under which a credit or insurance organization, at the request of the debtor, gives a written obligation to pay the creditor a sum of money upon presentation by the creditor of a demand for its payment (Article 368-379 of the Civil Code);

f) retention of the debtor's thing until the moment he fulfills his obligation (Articles 359, 360 of the Civil Code).

However, this list is not exhaustive. The law or the contract may provide for other security measures.

Such measures, specified in the law itself, include:

a) owner liability to creditors of a state-owned enterprise or institution (clause 5, article 115, clause 2, article 120 of the Civil Code);

b) creditor's right require state registration of the contract in case the counterparty evades its registration (clause 3 of article 165 of the Civil Code), in particular, when buying and selling real estate and other cases.

Examples when measures to ensure the fulfillment of obligations arise in accordance with agreements are the following: a) shifting the burden of maintaining property, the risk of loss or accidental damage to property to a temporary owner or user (Articles 210,211 of the Civil Code); b) depositing the disputed amount of money into the debtor's deposit and others.

Termination of obligations

If the rights of the creditor are exercised (the obligations of the debtor are fulfilled) or the exercise of rights and obligations due to objective circumstances seems to be impracticable, then the obligation ceases to be valid. The specific grounds on which the obligation is terminated are provided for by legal acts or the contract.

The main ways to terminate an obligation are as follows:

1) Termination of an obligation by its proper performance (Article 408 of the Civil Code). The creditor, accepting the performance, is obliged to confirm the performance in one of three forms:

a) by issuing a receipt of receipt of performance in full and in the relevant part;

b) by returning a debt document;

c) by means of an inscription on the debt document, which confirms the fulfillment of the obligation.

2) Termination of an obligation by presenting in return for the performance of a compensation, that is, another subject of the obligation (payment of money, transfer of property, performance of work or services). The amount, terms and procedure for granting compensation are established by the parties (Article 409 of the Civil Code).

3) Termination of an obligation by offset - full or partial termination of one obligation simultaneously with the full or partial termination of a homogeneous counter claim. In particular, the monetary claims of the parties to each other (for example, advance payment and penalties) will be homogeneous claims. To set off, a statement from one side is sufficient (Article 410 of the Civil Code).

Set-off of claims is not allowed:

a) if, at the request of the other party, the claim is subject to the limitation period and given term expired;

b) on compensation for harm caused to life or health;

c) on the recovery of alimony;

d) life support;

e) in other cases stipulated by law or contract (Article 411 of the Civil Code).

d) Termination of obligation coincidence of debtor and creditor in one person, for example, when reorganizing legal entities(in the form of a merger or acquisition).

e) Termination of an obligation by novation (Article 414 of the Civil Code), that is, the replacement of the original obligation with another obligation between the same persons, providing for a different subject or method of execution. At the same time, the novation also terminates additional obligations associated with the original one, unless otherwise provided by agreement of the parties.

Novation is not allowed in relation to obligations to compensate for harm caused to life or health, and to pay alimony.

e) Debt Forgiveness- release by the creditor of the debtor from his obligations in the absence of any counter satisfaction. Debt forgiveness should not violate the rights of other persons in relation to the creditor's property (Article 415 of the Civil Code).

g) Termination of obligation impossibility of execution, if it is caused by a circumstance for which none of the parties is responsible (Article 416 of the Civil Code).

3. Termination of obligation on the basis of an act government agency(Article 417 of the Civil Code). In the event of issuing an act of a state body or body that does not comply with the law or the house legal act local government losses caused to the party to the obligation are subject to compensation by the Russian Federation, the subject Russian Federation or municipality.

i) Termination of obligation death of a citizen: debtor or creditor (Article 418 of the Civil Code). Occurs if the execution cannot be carried out without the personal participation of the deceased debtor (for example, the creation artwork), or the performance is intended personally for the deceased creditor, or the obligation is otherwise inextricably linked to the personality of the debtor or creditor.

j) Termination of obligation liquidation of the legal person, except in cases where a legal act places the obligation on another person, in particular, on claims for compensation for harm caused to life or health, etc. (Article 419 of the Civil Code).

This list is not exhaustive. It can be executed by law, other legal acts or an agreement.

Liability for non-fulfillment or improper fulfillment of obligations

For non-fulfillment or improper fulfillment of obligations, civil law provides for liability - the obligation of the debtor to compensate for the losses caused to the creditor.

The most adequate compensation for the material damage caused is compensation in kind, for example, the provision of an item of the same kind and quality, repair of a damaged item, etc. (Article 1082 of the Civil Code). However, in practice, monetary compensation for property losses (harm) prevails: firstly, compensation in kind in many cases, based on the circumstances of the case, is impossible or difficult to implement (for example, it is associated with significant material costs); secondly, money by its nature is an established and recognized measure of value, including personal or property damage.

In addition, there may be cases of recovery from the debtor of losses, penalties and compensation in kind at the same time: in case of improper performance by the debtor of his obligation, unless otherwise provided by law or contract (Article 396 of the Civil Code), in particular, in case of non-performance by the seller (manufacturer, performer) the obligation imposed on him to the consumer (clause 3, article 13 of the Law of the Russian Federation "On the Protection of Consumer Rights").

In paragraph 1 of Art. 15 of the Civil Code of the Russian Federation contains two important principles:

a) the right to claim damages belongs exclusively to the person whose right has been violated;

b) compensation for losses is made in full. Compensation for damages in a smaller amount is an exception, which is established only by law or contract. For example, the law may provide for limited liability for certain types obligations and obligations related to a certain type of activity (clause 1 of article 400, clause 2 of article 394 of the Civil Code).

So, in the event of obligations from causing harm (tort obligations), the amount of compensation is affected by gross negligence (guilt) of the victim himself or the property status of the citizen who caused the harm (Article 1083 of the Civil Code).

The law or agreement may also provide exceptional cases payment by the obligated person to the creditor of compensation in excess of damages (in particular, by the inflictor of harm to the victim - clause 1 of article 1064 of the Civil Code). Most often, in practice, there are examples when the debtor is charged both losses in full and at the same time a penalty (the so-called penalty penalty - paragraph 2, clause 1, article 394), for example, in accordance with the federal law dated December 13, 1994 No. 60-FZ “On the supply of products for federal state needs” “in case of non-fulfillment of obligations under a state contract, in addition to paying a penalty, suppliers also compensate for the losses incurred by the buyer” (clause 3, article 5).

Full compensation consists of two integral components of losses: a) real damage and b) lost profits.

Real damage is understood as the expenses that the injured person has made or will have to make to restore the violated right, as well as the loss or damage to property. For example, if the creditor has not fulfilled his obligation, then the creditor has the right to fulfill it independently or with the help of third parties and demand compensation from the debtor for the necessary expenses incurred and other losses (Article 397). In particular, when selling goods of inadequate quality, the consumer has the right to demand from the seller reimbursement of expenses associated with the elimination of defects in the goods both by the consumer himself and by third parties on his behalf (Article 18 of the Law of the Russian Federation "On Protection of Consumer Rights").

Under the Lost Profits means those incomes not received by the injured person, which he could receive if normal conditions civil circulation and conduct of economic affairs, if there was no offense. For example, a supplier underdelivers a product to its retail counterparty, who, in turn, is forced to lose revenue proportional to the corresponding part of the underdelivered product. If the supplier underdelivered the goods and, as a result, received certain income, then the counterparty has the right to demand, along with real damage, compensation for a certain benefit in an amount not less than such income.

Terms of civil liability:

1. Wrongfulness- action or inaction of a person that violates the norms of the law, other legal act, the subjective rights of participants civil relations. Unlawfulness is excluded by necessary defense (Article 1066 of the Civil Code), extreme necessity (Article 1067 of the Civil Code), also subject to the established conditions, the performance by a person of his official duties, law, order, exercise of the right. Necessary defense is connected mainly with the right of citizens to self-defense, to suppress crimes, to apprehend a criminal. It should not exceed reasonable limits.

State emergency - This hopeless situation when it is necessary to deliberately cause harm to eliminate the danger that threatens both the person himself and third parties. The obligation to compensate for damage may be assigned to a third party, in whose interests the person who caused the damage acted. Taking into account all the circumstances of such an incident, the court may release both the third party and the tortfeasor from compensation for harm, or reduce the amount of liability. The share principle can also be used.

2. Guilt- the mental intentional or careless attitude of the subject to his behavior and its result. The guilt of the organization will be a deliberate or careless action (inaction) of any of its employees, not only acting in accordance with an employment agreement, but also under a civil law contract.

The person is found not guilty if, with an appropriate degree of care and diligence, it has taken all measures for the proper performance of the obligation. The absence of guilt is proved by the person who violated the obligation (clauses 2, 3 of article 401 of the Civil Code of the Russian Federation).

In some cases, the law provides for liability without fault. In particular, a person who has not fulfilled or improperly fulfilled an obligation in the course of exercising entrepreneurial activity, is liable if it does not prove that proper performance was impossible due to force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. Force majeure does not apply, in particular, violation of obligations on the part of the debtor's counterparties, the absence on the market of the goods necessary for execution, the debtor's lack of the necessary funds (clause 3 of article 401 of the Civil Code).

3. Harm any violation of a legally protected good. Distinguish between material damage and moral damage.

Material- this is a property cost damage that has an economic content.

Moral injury- physical and moral suffering caused by actions that infringe on personal non-property rights (the right to a name, the right of authorship, etc.) or on intangible benefits.

4. Causal relationship between wrongful conduct and harm. This is the objective part. If there were no such behavior, then there would be no negative result.

Types of civil liability:

1. Based on liability distinguish:

a) contractual;

b) non-contractual liability.

In case of contractual liability, the parties are bound by a civil law relationship arising from the contract.

With non-contractual- liability arises in case of unlawful actions of a person (when causing harm to a citizen or his property) in the absence of previous legal relations between the perpetrator and the victim.

2. By subject composition(if there is more than one subject of responsibility) allocate:

a) shared liability, where each debtor is liable in the amount of his share;

b) joint and several liability, for which each debtor is liable until the obligation is fulfilled in full;

c) subsidiary (additional) liability, when the creditor, in case of default by the main debtor, has the right to present a claim to the clip, which is liable in addition to the liability of the debtor (Article 399 of the Civil Code).

3. By its nature, civil liability can be natural and monetary (Article 1082 of the Civil Code). The fulfillment of an obligation (responsibility) in kind is the provision of a thing of the same kind and quality, the correction or repair of a damaged thing, etc.

Test questions:

1. Define the concept of civil law and its meaning?

2. What are the features of civil legal relations?

3. What is the difference between legal capacity and legal capacity of citizens?

4. What objects of civil law are known?

5. What are the ways to protect civil rights?

6. What conditions must be met for a transaction to be considered valid?

7. What powers are included in the content of the property right?

8. What is the right of common property?

9. What are the ways to ensure the fulfillment of obligations provided by civil law?

The concept, subject and method of family law

Family law, as a branch of law, regulates certain kind 1 public relations- family relations arising from the fact of marriage and belonging to the family.

Family law regulates a certain type of social relations that constitute the subject of family law, i.e. the subject of family law is not the family itself, but the relations that arise in the family.

1) the conditions and procedure for entering into marriage, termination of marriage and its recognition as invalid;

2) personal non-property and property relations between family members: spouses, parents and children (adoptive parents and adopted children);

3) personal non-property relations between other relatives and other persons in cases provided for by family law;

4) forms and procedure for placing children left without parental care in a family.

RF IC grants the right to any of the participants family relations act in a certain way, i.e., the method of legal regulation will be the method of discretion.

However, the SC contains not only permissions, but also prohibitions that have not lost their influence, since they are directly related to the motives of lawful behavior. The ban refers to specific actions and deeds, therefore, as a rule, the state will is clearly formulated in it.

Family law prohibitions can be classified into:

1) direct and indirect, which in turn are divided into unconditional and with exceptions;

2) independent and combined with duties.

A direct prohibition is expressed openly, its sign is the clearly expressed will of the legislator, including in the text legal norm the particle “not” (for example, in article 14 of the UK it is indicated between which persons marriage is not allowed).

However, sometimes an outright prohibition is accompanied by an exception to general rule(e.g. adoption of siblings different persons is not allowed, except in cases where such adoption is in the interests of children (clause 2, article 124 of the UK)).

Family law contains indirect prohibitions that provide more flexible regulation, especially through indirect prohibitions that are combined with duties. Indirect prohibitions are prohibitions that make it possible to conclude that any actions are inadmissible (for example, the issuance of a certificate of divorce is carried out by the registry office after a month from the date of filing the application (clause 3 of article 19 of the UK)), i.e. the issuance of a certificate of divorce is prohibited until the specified period has expired.

Obligations are a common and widespread form of civil legal relations, in which two persons are bound by the need to fulfill certain actions. This may be the transfer of an object of property, the payment of sums of money, the performance of services, the reimbursement of expenses, the repayment of debts, etc. The responsible persons do not always comply with the agreed conditions, which is why the creditor suffers. Ordinary citizens who enter into financial relations with credit, insurance and banking organizations usually act as debtors. To protect yourself from unpleasant consequences as a result of such cooperation, creditors use legal instruments that allow them to insure against losses to a certain extent.

Understanding the intricacies of such actions will help the concept and methods of ensuring the fulfillment of obligations that are practiced in modern legal system. This model acts as a safety instrument, which is activated if the debtor fails to fulfill the obligations established by the agreement. At the same time, there are different forms and legal structures for the implementation of this right. But its essence remains the same - to ensure, first of all, the reliability of the transaction and the financial security of the creditor's side.

Types of ways to ensure the fulfillment of obligations

The norms of regulation of legal relations provide for two main types of means of securing obligations - accessory and non-accessory. In the first case, we are talking about the most common forms of guarantees for the performance of obligations, among which are a deposit and a surety. It should be noted that an agreement on the use of one of them entails an ownership obligation, which operates in addition to the main one. These are modern legal ways to ensure the fulfillment of obligations of an accessory type. The basis for the approval of additional obligations may be the initiative of one of the parties to the agreement or the prescription of the law. This usually happens at the time of the occurrence of the facts, which were also provided for in the legal contract. For example, the right of pledge may come into effect after certain conditions prescribed by law are met. The same applies to the right of retention, which the creditor can rely on. But in all situations of this kind, it should be remembered that the initial agreement may exclude the operation of such legal factors. For example, if the documents contain clauses that the creditor cannot use the right of retention.

There are also non-accessory methods that encourage the debtor to fulfill his obligations to the partner. A feature of this form is the independence of additional obligations to the main ones. This category includes a bank guarantee, which, although associated with the primary debt, but acts independently of it. Now it is worth considering in more detail modern methods of ensuring the fulfillment of obligations. A cheat sheet in the form of brief reviews will help to understand the essence of legal instruments of this kind and identify their features.

forfeit

Although the penalty was originally introduced into legal practice as a means of sanctions, today it is increasingly used as a full-fledged way to secure obligations. For this, in particular, special legal structures are being developed. In most cases, the penalty, as a way to ensure the fulfillment of obligations, is expressed in the form of a fine. In accordance with the contract document or legal regulations, a certain amount of money is considered as a penalty. If the responsible person does not perform the actions prescribed by the agreement by the set time, this amount will have to be paid to the creditor.

The possibility of recovering a sum of money in the form of a fine or penalty enables creditors to compensate for losses caused by the debtor's default. It should be noted that the fine does not have to correspond to the amount of the debt. In most cases, creditors, through a penalty, return only part of the losses incurred through the fault of the responsible person, that is, the debtor.

In contracts and legal regulations, cases are also allowed when only a fine is collected, but not compensation for losses. On the other hand, it is also possible to pay the penalty in full and compensate for losses. There is also a widespread scheme in which the creditor can independently choose a scheme to cover the financial damage caused - through a penalty or by paying the principal debt. A similar legal model to ensure the fulfillment of obligations is a bank guarantee. However, it has several fundamental differences in the legal aspect.

Pledge

From the point of view of an instrument that stimulates the debtor to fulfill obligations, the pledge is one of the most effective means. Again, in accordance with the law or clauses in the contract, material values ​​\u200b\u200bthat are transferred from the debtor to the creditor in the event of default on basic obligations can be recognized as collateral. Actually, in this case there is a principle similar to the scheme of cooperation between a pawnshop and its clients. However, a pledge, as a way to ensure the fulfillment of obligations, has its own nuances, regulated by the right of ownership. But it depends on the specific agreement and type of property. In particular, both real estate and financial assets can be pledged. Property that was under pledge and retired from the possession of the debtor may be claimed by the creditor. In cases of handling goods in circulation, they are kept at the disposal of the pledgor.

A pledge of property that is under prohibition has no legal force. It is noteworthy that the same property can be the subject of several contracts. In other words, a pledge, as a way to ensure the fulfillment of obligations, can be represented by property under the control of several holders at the same time. This form of appeal can be carried out until the next contract specifies restrictions for establishing further pledges that provide for the use of specific property. It is worth noting that similar situations with several pledges affecting the same property are extremely rare.

Deposit as a way to ensure the fulfillment of obligations

In this case in question about one of the simplest forms of securing obligations within the legal framework. The deposit, as a rule, is a certain amount of money, which is transferred by one party to the contract to the other as evidence of intentions regarding the fulfillment of the terms of the agreement. I must say that the deposit can fulfill the most different functions in legal transactions, acting, among other things, and Such an instrument of enforcement of obligations is not possible without identification of the funds paid as a deposit.

The amount itself is also paid as a sign of the conclusion of an agreement, that is, reinforcement of obligations acts only as additional factor confirming the fulfillment of the terms of the agreement. Moreover, if the transferred money cannot be qualified, then they can be considered as the mentioned advance payment. The deposit itself, unlike a pledge, can only take the form of a sum of money. Next, you should learn more about the difference between a deposit and an advance. Similar ways ensuring the fulfillment of bank obligations have some features of the return of funds. So, if the person who received the deposit is responsible for non-fulfillment of the terms of the contract, then he must return this amount in double size. If the party that gave the deposit is responsible for non-fulfillment of obligations, then the money remains with the person who received it. In all other situations, both the advance and the deposit are returned in full to the person who gave it.

Guarantee

All of the forms of enforcement discussed above involve two parties - at least in terms of regulating additional enforcement instruments. But the methods of ensuring the fulfillment of an obligation also include such legal instruments as a surety. In this case, in addition to the debtor and the creditor, a third party, the guarantor, also participates in the contract. It is he who acts as a kind of guarantor, allowing the creditor to count on compensation for losses in case of non-fulfillment of the terms of the contract. In other words, if the debtor does not fulfill the obligation, then the guarantor will either fully compensate for the losses, or partially cover them.

But even here there are forms of security in several variations. For example, the executor and the guarantor may have different connections within the framework of the contract - in some cases their obligations go in parallel, while in others the guarantor must fulfill both his obligations and the terms of the agreement on the part of the debtor. The so-called joint and several liability, which binds guarantors and debtors with obligations, is also spelled out in the law. But it is important to note another feature that distinguishes this method of securing the performance of obligations from a guarantee. Given the joint and several liability, the functions of the guarantor under the contract cease to be relevant from the moment of termination of the main obligation.

With regard to the termination of the obligations of the guarantor, it may be caused different reasons. In addition to the ordinary situations provided for by the contract, including the fulfillment of obligations by the debtor, the guarantee may be terminated as a result of the creditor's refusal to fulfill the terms of the contract on the part of the contractor. Also, the reason for the termination of the function of the guarantor may be the introduction of changes in his obligations, entailing adverse consequences for him. Of course, an exception is also allowed if the guarantor agrees to the introduction of changes.

bank guarantee

This is a relatively new instrument for regulating relations between the debtor and the creditor, which, however, proves the effectiveness of its function. Nowadays, a bank guarantee as a way to ensure the fulfillment of obligations may involve a wide range of financial institutions, including insurance and credit companies. The debtor, as a rule, initiates this form of confirmation of the fulfillment of his obligations. He appeals to a financial institution with a request to provide the creditor with a written obligation to pay a certain amount in the event that the terms of the agreement with him are not fulfilled.

That is, in this case, the banking structure acts as a guarantor of the transaction. To date, a bank guarantee as a way to ensure the fulfillment of obligations is still being formed and has not become so firmly established in Russian practice, but some signs of such tools are already outlined. For example, experts note the irrevocableness of a bank guarantee. This means that the termination of the agreement with the guarantor can take place only in situations stipulated by the agreement. The non-transferability of rights under the guarantee is also noted - again, unless the terms of the agreement imply otherwise.

One of the main features of a bank guarantee is compensation, that is, the debtor is obliged to pay a predetermined remuneration to an organization that in some way acts as its guarantor. It should be noted that a guarantee, as a way to ensure the fulfillment of obligations, does not depend on the relationship between the debtor and the creditor, as well as on the terms of their contract. This feature characterizes the bank guarantee as an independent tool for securing obligations.

Retention

This type of security for obligations is that the creditor has the right to withhold the valuables belonging to the debtor. Such a right is usually valid until the original terms of the contract are fulfilled. At the same time, it is not necessary that a certain thing from a responsible debtor be kept by the creditor organization. According to the regulations, retention, as a way to ensure the fulfillment of obligations, also allows the transfer of an object of property to third parties. Of course, if the debtor agreed to it. Moreover, under certain conditions, it is he who can initiate the transfer of his values ​​to a specific person.

Foreclosure on the debtor's thing occurs in the same way as they do with property that is under pledge. But there is also a significant difference between collateral and this form of security. The fact is that retention, as a rule, involves the expectation on the part of the creditor of the payment by the debtor of the value of the subject of the agreement. From this point of view, it is more appropriate to draw an analogy with pawnshops, which, in working with clients, operate with amounts corresponding to the value of the pledged items. However, in the business sphere, retention, as a way to ensure the fulfillment of obligations, is not always associated with the payment of funds for the seized thing or the reimbursement of other expenses for it.

Liability for non-fulfillment of obligations

In the civil law system, the breach of obligations usually implies the occurrence of unfavorable financial or property consequences for the debtor. The reduction of property benefits from the party that has not fulfilled the terms of the contract occurs in the process of collecting fines for losses. In case of non-fulfillment or untimely fulfillment of obligations, the debtor is obliged to cover the creditor's losses within the framework of the conditions stipulated by the contract or the law.

The details of damages for the creditor depend on the system of enforcement and enforcement of obligations. In case of non-fulfillment of obligations that involve the transfer of an individually defined object of property into economic possession, control or ownership of the creditor, the latter has the right to take this subject or reimbursement of costs and financial losses that were incurred as a result of the debtor's failure to fulfill its obligations. By the way, in this case, there may be a way to ensure the fulfillment of obligations in the form of retention of things. The terms of liability are usually specified in the contract. At the same time, they are supplemented by circumstances, the absence or presence of which may lead to such circumstances, which usually include the debtor's unlawful behavior and the presence of losses that were incurred through the fault of the responsible person.

Termination of obligations

The moment of termination of obligations is also indicated in the contract. In the usual manner, this occurs as a result of the fulfillment of all obligations by the parties to the agreement. This means that the goals set by the creditor and the debtor have been achieved, and the subject of the contract is no longer relevant. But far from all cases, transactions end successfully, and termination of obligations may occur for other reasons. In this context, one way or another of enforcement of obligations can be seen as a form of the most favorable outcome for the injured party, which is usually the creditor. It happens that the stipulated terms of the agreement and the requirements of the parties are canceled as a result of mutual agreement. This can occur both in the format of the complete cancellation of obligations and in the form of a partial termination of their action.

There are also other cases where such an offset is not possible. Mutual agreement to terminate obligations usually takes place when the debtor and creditor are represented by the same person, for example, in the process of company reorganization. If this does not contradict the law, then the termination of obligations as a result of a merger of organizations and legal entities is also allowed. It should be noted that failure to fulfill obligations may be irreversible. For example, when the performer dies, and there is no physical opportunity to implement the terms of the contract in which the this person. There are also legal restrictions that prevent the debtor from performing certain actions. This already applies to actions that are prohibited by law.

Conclusion

Diversity modern ways ensuring obligations allows both an ordinary citizen and a large organization to successfully and safely cooperate with partners and customers. Of course, not all enforcement methods provide an absolute guarantee of security against financial loss. But here it is important to note the value of a properly drafted contract. Using legal rights and opportunities, each person can count on the most favorable conditions for cooperation. It is also necessary to turn to legal prescriptions, which have significantly expanded the scope of civil law in relation to the rules governing the obligations of debtors. Experts recommend initially determining the most effective model for securing obligations, even if it turns out to be more costly. As practice shows, it is better to initially put up with an increase in the cost of fulfilling the terms of the contract than to incur heavy losses in the event of its violation.