Первый отдел. Общая часть учения о договорах и обязательствах

Chapter one. Contents and main types of obligations § 2. Conditional obligation. – Different types of conditions. – Occurrence of a condition and its effect. – Correlation of conditions. – The concept of deadline. - Deadline effect. The right and obligation established under the contract may be conditional, combined with a condition. The condition is an obligation that is generally unknown (future) or unknown to the parties at the moment of concluding the contract, on the occurrence (or on the clarification) of which the existence of the right itself, which constitutes the subject and purpose of the contract, depends. The condition will be positive when it means a lack, the absence of an event (conditio affirmativa, c. negativa). The condition can be made dependent on a random event (c. casualis) or on an arbitrary action within the power of a person (c. potestativa). An arbitrary condition can be understood in a double sense. Any event caused by the human will seems to be an arbitrary action (for example, it is not without the will of a person that a marriage arises, an occupation, a place of residence, etc. are chosen), and the condition can be associated with one of such events that, regardless of the interest connected to them by contract, represents a special, independent interest in the life of each person (for example, I am renting out my house only in case the renter himself moves to the city where the house is located and lives in it with his brother). - But in addition, a condition is also possible, the basis of which is the direct consent of the contracting party to the very action that constitutes the subject and direct interest of the contract. Of course, such a condition, if it applies equally to both parties, is unthinkable in a contract, for leaving both complete freedom, it eliminates the obligatory connection, without which the contract cannot be imagined; Such a condition is also unthinkable on the part of the debtor in a unilateral agreement (I undertake to pay you if I want), but it is legally possible when, while leaving one party free, the other remains bound (for example, Peter undertakes to sell the property to Ivan in a year, at such and such a price, if Ivan wants to buy it then. Ivan is free to buy here or not to buy, but when he wants, Peter has no right to refuse the sale). Also called mixed (c. mixta) is a condition that is made dependent, in addition to the will of one of the parties, on the will or action of a third party who did not participate in the contract. The acquisition of rights and the beginning of a legal state may depend on the condition; in this case, the exercise of the right is postponed until the occurrence of a condition called suspensive (c. suspensiva); or the termination of an existing right depends on the occurrence of a condition, in which case the condition is called terminating (c. resolutiva). The condition may turn out to be physically or legally impossible to fulfill (quae natura, quae jure impleri non possunt), or morally impossible (c. contra bonos mores, c. turpis). The condition is considered pending (pendet conditio), while it is still unknown whether the conditional event will follow or not; the condition disappears (deficit) when there is no longer any doubt that the conditional event will not follow at all; a condition is considered to have occurred (impletur, existit) when the conditional event occurs. As long as the condition has not yet occurred, the right under the contract undoubtedly already exists and cannot be changed without the consent of both parties. The creditor who faces the claim not only has an expectation (spes debitum iri, jus futurum), but can also count on execution, but until the condition has yet occurred, this right is not subject to exercise, since a claim for execution cannot yet be brought (hence, the limitation period for this claim is impossible). In this state, there is a legal connection between the parties entering into the contract, without direct implementation. The practical effect of this connection is expressed, however, in their mutually obligatory relationship regarding the subject of the expected fulfillment. Neither one nor the other party has the right to take actions to change this performance, to increase or decrease its meaning and value; hence the legal opportunity arises for the interested party to monitor the protection of the integrity of the future exercise of his right and, in some cases, demand its protection or provision. The fear of random events regarding the property lies with the party that holds it, and if, before the condition occurred, the execution was carried out in advance or the property was transferred in advance, then it remains on the fear and responsibility of the one in whose favor the execution was made. In this form, the right, as well as the obligation, passes to the heirs. With the occurrence of the condition, the possibility of exercising the right opens, a claim is opened and the limitation period begins. Until recently, the following provision was derived from Roman law and adopted in legislation (for example, Code civ. 1179) and in doctrine, the following provision that the effect of the condition that has occurred is retroactive, raised to the minute of the conclusion of the contract, as if the right exercised with the onset of the condition existed unconditionally from the first minute (perinde habetur ac in illo tempore, quo stipulatio interposita est, sine conditione facta esset). From here it was concluded, among other things, that all alienations of property completed, burdens and duties imposed on him during the waiting period, are destroyed and declared invalid. But recently the validity of this general position has been questioned; they find that it is expressed in Roman law not unconditionally, but in connection with the special circumstances of a given case, and the doctrine is inclined to the opinion that the established condition should be given retroactive force not in all cases, but according to the nature of each relationship specifically, and according to the reason of each contract, i.e. they base it not on the general principle, but on the interpretation of the private will (see about this in Förster I, § 36). The termination condition is destructive (obligation pure, negotium purum sub conditione resolvitur). By virtue of the contract, the right is directly and directly exercised and becomes truly acquired; but the possibility of termination of this right is foreseen, a return to the previous state when a terminating condition occurs (for example, a sale, although completed with a transfer, is destroyed upon the occurrence of the condition and the property returns to the previous owner). A condition of this kind can be directly expressed, and in this case it acts directly and unconditionally; in other cases it is only implied - for example. in all mutual contracts it is assumed (Article 1184 Code civ.) that if one party does not fulfill its obligation, then it cannot blame the other party for non-fulfillment. But this kind of assumption does not operate directly and unconditionally, but is applied depending on the nature of the relationship and the special consideration of the court (for example, property was sold for a period, and the money for it was not paid on time: from this, without a special condition, it does not follow that the sale is in any case destroyed). The essential property of a condition is the uncertainty, the untruthfulness of the event with which it is associated. On the contrary, when the right is associated with a period, i.e. with the onset of a certain moment in time, then the right at its very beginning receives fame and fidelity; but the exercise of the right is only delayed, because with the passage of time a certain moment of the deadline must certainly come. This is the difference between a condition and a term (dies), and this difference is reflected in the acquisition of the right associated with one or the other. A term, as well as a condition, can have either suspensive (ex die) or cessatory force (ad diem), depending on what is associated with it - the beginning or continuation and termination of the law being put into effect. The period is determined either by exact reckoning or a calendar day known in advance (dies certus), or by an event that must certainly occur, but it is not known when it will occur, for example. death (dies incertus quando). In these cases, the will is determined truly by a term, and not by a condition. But when a period is determined by an event about which it is not known in advance not only when it will occur, but also whether it will ever occur (dies incertus an et quando), in this case the event turns out to be unknown, and therefore the will is determined in essence not by the period, but by the condition. This is the case, for example. restriction of the right to marriage, change of residence, birth of a child, etc. – In other cases, a deadline, or some delay in performance, although not directly stated in the contract, goes without saying, by the nature of the action constituting the subject of the contract, for example. when ordering a product from a factory, when purchasing standing bread, etc. When a deadline has been set, then only with its arrival the right to demand performance, the right to sue, arises, and the limitation period begins accordingly. For an open-ended obligation, the claim is considered open whenever (quod sine die debetur, statim debetur). A fixed-term benefit is usually established, and according to the general assumption, in the interest of the debtor, the person obligated to perform. However, it may not have the same meaning, depending on the property of the relationship, how it is determined by its essence and the will of the parties. Sometimes this benefit is in the interest of both parties: the debtor cannot be forced to perform, as well as the creditor to accept performance, before the due date (in this sense, of course, usually, the due date in bills and loan letters). Sometimes it tends to favor the interest of one debtor: he is not obliged to pay before the due date, but he can, if he wants, pay before the due date. Sometimes it is associated with the benefit of the creditor alone: ​​he is not guilty of accepting payment before the due date, but can, if he wants, demand it before the due date. The very property of the relationship sometimes indicates where the benefit is heading: in a deposit, for example, when a deadline is due, it is obviously in the interest of the giver, since it is difficult for the receiver to assume an interest in holding the deposit until the deadline. A horse dealer buys horses from a herd for the duration of the spring fair: it is obvious that the deadline is in the interest of the buyer, who benefits from leaving the horses in the herd for food until the moment when he has to take them to auction. The assignment of a term in an obligation is associated with the creditor, i.e. with the creditor's confidence in the solvency of his debtor. So, when the debtor's insolvency is clearly revealed, the term loses its meaning and the obligation becomes open to collection. – In addition, in other legislation (French) there is a regulation that the term loses its force when a person who has undertaken to secure his debt evades the provision, and even when the debtor intentionally or arbitrarily reduced or destroyed the value of securing his debt, for example. destroyed, damaged the mortgaged property, devalued it by cutting down forests, etc. Even if the collateral is accidentally destroyed (by fire, etc.), the debtor is obliged to either replace the collateral or pay the debt ahead of schedule. In Russian law there are no special regulations on this subject, except for the general rule of Art. 1530, that the parties are left free to include in the contract any conditions that are not contrary to law, such as: about the period, about payment, etc. Without a doubt, the condition must be determinative, because only in this case can it have real meaning. A condition is a circumstance unknown to the parties to the transaction, on which the existence of the obligations of the parties based on this transaction is dependent. Therefore, it is not at all contrary to the law on contracts that an obligation is connected with an expected future action of a third party (Cass. decision 184, No. 414). In this case, the obligation was made conditional on the issuance of a certificate of pledge from the Treasury Chamber. An agreement is considered to be unfulfilled when the condition with which the beginning of its validity is connected under the agreement has not been fulfilled. The owner of the plant, having leased it to one person, whom he later considered subject to elimination, gave the plant for the maintenance of another person, authorizing him to work for the removal of the first tenant: this contract is supposed to remain in force for three years from the date of removal of the first tenant. This removal did not take place, due to a refusal by a court decision (2 Sat. Sen. Resolution IV, No. 949). For some contracts (for example, for hiring, for personal hiring), the law establishes the longest terms. There are contracts (sales) in which the appointment of a deadline is mandatory. In general, there is no rule that in any case a period must be specified in contracts: there can be contracts of unlimited duration (cf. Cass. decision of 1880, No. 58). Although in individual articles relating to different types of contracts there are very often rules about what the term “should” mean in them (for example, Art. 1691), according to rules of this kind, when there is no positive prohibition in them, it is impossible to attach unconditional meaning, and therefore it is difficult to agree with the decisions of Cass. Dep. Senate 1870, N 1671, 1681, which states that an agreement on the lease of property, without specifying a period, is invalid. However, after that, one must assume, Cass’s judgment. Dep. The Senate has changed, because in the decision of 1873, No. 1119, it is generally stated that failure to indicate a term in a contract does not in itself serve as a reason for recognizing the contract as invalid. The term in the contract can be determined without specifying the day, by the end of a certain business or scheduled action. Thus, in the lease agreement, all glass production that can be carried out in two melting furnaces, which must be built one after the other, is ceded. Cass. decide 1873 N 910. The term in a contract can be determined not only by a known calendar day, but also by an event, the occurrence of which depends on the will of the parties or on random reasons. Cass. decide 1876 N 268. The term in the contract can also be determined by the death of one of the parties (Cass. decision. 1868 N 429. Compare "Legal Vestn." 1872 N 2, decision Court. Pal.), - for example. I leave it to Marya to collect after my death the thousand rubles that I owe her. Misunderstandings arise about this subject: are such conditions legal that it is assumed that property belonging to one party will be transferred upon death to the other party? Others are inclined to recognize such conditions as testamentary and therefore inconsistent with the form of the contract. I consider it useful to cite here discussions on this issue from the 2nd part of the Course Gr. Rights. There is a significant difference between a will and a contract in many respects and, among other things, in the following. The will itself serves as an act of transfer of patrimonial rights to property; is connected with the will and the succession of property is accomplished by it. The contract, on the contrary, establishes only an obligation to take a certain action with respect to property; an obligation to transfer may be established, but the transfer itself is not performed. The transfer of property under a transaction is also carried out by the action of transfer, in which both parties participate. So, by the nature of the contract, it is impossible for him to make an irrevocable and obligatory transfer or transfer of property, as it is done through a will. If the agreement between Ivan and Peter had stipulated that Ivan undertakes to transfer certain property to Peter at a certain time, and Ivan had died before the deadline without completing this transfer, then Ivan’s heirs in this property, answering Peter for the consequences of failure to fulfill the obligation accepted by Ivan, could still refuse to transfer the property that Ivan had not yet transferred and to which, by succession after Ivan, the right of ownership passed on to them. On the contrary, if Ivan bequeathed certain property to Peter, it directly passes to Peter after Ivan’s death, by virtue of the will, and if this property, which became available after Ivan’s death, should have been accepted by Peter from the hands of his heirs, the heirs would not have the right - as long as the will remains in force - to hold it in their hands: by virtue of the will, it is not their property, but Peter’s. Reasoning in this sense, we come to the following conclusion. If a living person, by agreement with another person, has assumed an obligation and delayed its fulfillment until his death, this obligation, even after his death, as a general rule, remains in force and is binding on the heirs in its essence and in its value. The heirs are obliged to fulfill or satisfy for non-fulfillment. So, if the deceased accepted an obligation to transfer certain property, but the fulfillment (not completed during life - for in this case there would be a gift combined with immediate transfer) is postponed until death, then the transfer of property in kind cannot be unconditionally obligatory for the heirs. If the contract directly stipulates that such and such property, at least in the form of remuneration or payment, should pass into the ownership of such and such person upon the death of the testator, such a transfer cannot occur by itself by virtue of the contract alone, and can be rejected by the heirs as based on the contract and not on the will. They do not have the right to renounce what constitutes the essence of the obligation, i.e. from remuneration to the extent of interest that the deceased assumed, but has the right not to obey what relates to the essence of the testamentary disposition, which in reality did not exist - i.e. from the transfer of patrimonial rights to property to a known person. Let's imagine examples: Ivan, living in Peter's house and in his support, realizes that he must pay him 3000 rubles for it, so that Peter receives this amount after his death, and Peter undertakes to support and feed him until his death. The heirs are obligated to pay this amount unconditionally, since it constitutes the obligation of the deceased. Ivan, renting an apartment in Peter's house, enters into a condition with Peter that for 10 years he will use the apartment, paying 100 rubles for each year, but is not obliged to pay for the apartment until his death, and then upon his death, all the movable property located in this apartment is left to Peter as full property, even if he died before 10 years; Until his death, Ivan undertakes to neither sell nor mortgage any of that movable property, and after his death, his heirs in other property and in monetary capital should not have claims to this movable property. After Ivan's death, the heirs do not allow Peter to take possession of the remaining movable property - and they are right. Ivan’s order regarding this movable property does not find a place in the series of legal actions. According to the deal with Peter, Ivan did not lose ownership of his things, because he did not transfer them to Peter. He could transfer them immediately by deed of gift, and grant himself the right to lifelong use, and in this case the transfer would follow the completed gift; but he didn’t do this. He could, recognizing himself as indebted to Peter, give him all these things as collateral, and then the fate of the property and Peter’s satisfaction from it would be determined by the right of collateral. But he didn’t do even that. Consequently, he retained the ownership of his things until his death and, having established the transfer of things into the property of Peter, delayed this transfer until his death, but this transfer could have been accomplished directly from Ivan to Peter only through a will, which Ivan did not make, but retained the right of ownership to himself. It follows, firstly, that Ivan, even after completing the mentioned transaction, retains the full opportunity to bequeath to whomever he wants the very movable property that he undertook to transfer to Peter under the transaction: by this Ivan violated the obligation he assumed, and Peter is responsible for the violation; but in any case, while retaining the right of ownership of these things and not limiting it even with a pledge, Ivan cannot be unconditionally deprived of the right to dispose of property. Secondly, if, after concluding a deal with Peter, Ivan during his lifetime complied with the obligation regarding his things, then, after Ivan’s death, despite the deal, the ownership of these things still passes by succession to Ivan’s heirs, and not to Peter, who does not have direct succession after Ivan and does not have the right to take direct possession of things after Ivan’s death. So, Ivan’s heirs may refuse to transfer these things to him in kind, although they are obliged to fulfill the obligation accepted by Ivan, i.e. reward Peter to the extent of this obligation (cf. another analysis of this case in the decision of the Senate on d. Loshakova. Cass. decide 1869, N 1322). The essence of a will is that the order of the testator before his death does not acquire legal force for the person in whose favor it is made, that it is subject to execution only after the death of the testator and can be canceled by him at will - and that in its legal meaning it is not connected with any contractual agreement. Therefore, an agreement with another person drawn up in the interest of a third party cannot be included in the wills, even if the latter did not participate in that agreement and even if it was intended that this interest would be exercised only after the death or as a result of the death of the counterparty. Thus, one should not attach the significance of a will to an insurance policy under which the life of the policyholder is insured in favor of a third party, so that the agreed amount is issued to this person upon the death of the policyholder, or urgent or lifetime distributions are made (cf. Poln. Sobr. Zak. 1868, N 45966, § 112–126). It is true that here, too, the assignment is fulfilled upon the death of the insured, but not according to the essence of a unilateral will, but according to a condition with the insurer, for the payment of the insurance premium: the death of the testator is one of the possible conditions, but not the only necessary condition of the insurance contract. True, here too the policyholder can cancel his appointment: for this he should stop paying the premium; but this will in essence be the termination of the contract with the insurer, in connection with which the interest of the third party in whose favor the will is made lies. Let us also note the following. In a will, death is not an accidental accessory to the act, but a condition of disposition, depending on the special direction of the will: it constitutes an essential property of the testamentary act. The whole order is designed for death and regardless of death it does not matter: this is the last will of a person. But regardless of this meaning of death as an essential and exclusive motive in a will, death as an event can have the meaning of a simple term among all kinds of terms and events chosen by the will to self-determination and self-restraint in acts and transactions between the living. Death may be associated with a term clause in contracts, and the contract does not cease to be a contract and does not lose its force only because it considers the death of one or the other party to be the limit of one or another relationship established by the contract - if it cannot be concluded from the content of the contract that its essential purpose is a disposition in the event of death and that, therefore, a will is hidden under the guise of a contract. From this point of view, Cass is hardly justified. decide 1872 N 980. In 1848, Maksimovich gave Marya Rudneva 5,000 rubles. against a mortgage, and on the same day a separate condition was made between them, by virtue of which Rudneva was allowed to deposit this amount into the bank in favor of her pupil Natalya; in the event of Natalya’s death, give this amount to her children, and if she is childless, return only 1000 rubles from the borrowed amount to Maksimovich; If, before this is fulfilled, Maksimovich himself dies, then the mortgage is considered void, and his heirs have no right to collect on it. Maksimovich died in 1850, and his daughter filed a claim on the mortgage against Rudneva’s heirs, who objected to the above-mentioned condition. The Senate rejects this objection for these reasons. The heirs execute the contract of the deceased patrimonial owner by virtue of the general law of hereditary liability, and not by virtue of a special condition included in the contract in order to oblige them after the death of the counterparty himself: the heirs can be obligated in this way only through a will. The condition stipulated in the contract in the event of death cannot be fulfilled by the same person who decreed it, but requires fulfillment by the heirs; but for them it is obligatory only by will. Equally, a waiver of a right expressed in a contract can be legal only when it is made dependent on conditions that can occur only during the life of the counterparty, but not depending on his death. Against these arguments, first of all, it should be noted that according to the Rudnev agreement, actual performance was not required from his heirs, i.e. transfer of any part of the available inherited property into the possession of a third party; if Maksimovich mentioned in the condition that his heirs will not have the right to collect on the mortgage, then these words in his agreement do not have significant meaning and are completely superfluous, therefore, there is no reason to base a discussion of the legal force of the agreement on these words. If these words had not been there, the essence of the condition would not have changed at all, and as soon as it became obligatory for Maksimovich himself, it thereby became obligatory for his heirs. The essence of the condition simply lies in the fact that Maksimovich, giving Rudneva money for the mortgage, provided himself (among other conditions) with only the lifelong right to collect the debt and security. Is it possible to allow a private person to be deprived of the right to lend money on such a condition, i.e. limit your personal demands within the limits of your life? This would mean restricting beyond measure and needlessly the legitimate free will of the contract. Death in this case is only a term by which the counterparty has limited its right to claim under the obligation. A case of this kind differs significantly from the above, in which Ivan transferred movable property to Peter in the event of his death. In this latter case, the subject of the agreement is Ivan’s real right to movable property, which did not cease to be his property until his death; therefore, he made an order about the property in the event of his death. And in the present case of Rudneva, when Maksimovich had decided that in the event of death his right to foreclose on the mortgage would pass to a third party appointed by him, in that case there would be grounds to recognize the condition as illegal, because then the right to foreclose would be materialized and transferred as an integral part of the inherited property into the ownership of another, in the event of death. § 3. Contents of the obligation. – Positive and negative. - An obligation to give or fulfill. – Mutual obligation. – Inseparable and divisible obligations. – Possible and impossible action; known and unknown. – Separation obligation and the meaning of choice. – Determination of an object by genus, species and individual. – The meaning of money. Every contract produces, on the one hand, the right to demand, and on the other, the obligation to fulfill. An obligation can be either positive or negative. The first one is more common. In the latter case, the person undertakes not to do anything that he would have the right to do if he were not bound by the contract. So, for example the clerk, leaving a bookstore to open a trade, on his own behalf, undertakes not to open a store in the same city or in the same part of the city. This obligation is negative. Or a person undertakes to tolerate and allow in the sphere of his property such actions of another person that he would have the right not to allow. This obligation is negative (non facere, pati). With a positive obligation (facere), a person is obliged to either give or perform. Both are accomplished through an action, but in the first case, the action has the goal of immediately transforming a property right, transferring a thing from the property of one person to the property of another, or delivering the thing to another person for direct use (hiring a horse), or generally enriching the property of another person by its action directly. This includes assignment of an obligation, release of debt, etc. In the latter case, the purpose of the obligatory action is the same, i.e. enrich the interested party in his property, in the mass of material, productive forces that he possesses; but the action is of such a kind that the goal is not achieved directly, and the action itself does not have complete definition or relates to an unknown object. These are, for example. all actions having the nature of work. The work should lead to the creation of a thing for the person interested (to build a house) or to give a new value to an existing thing, or to add a new value to his property; but the achievement of this goal is assumed in the future, and not in cash (such as, for example, a personal service, an expected transfer of possession, delivery, master work, hiring a teacher, an obligation to guarantee or pledge property). One of the most important properties of this difference is the following. Any obligation or claim, entering negatively or positively into the mass of property of the creditor or debtor, is subject to assessment and is resolved into a certain monetary value. Without a doubt, both the thing and the action are subject to such assessment. But the obligation to give can almost always be determined and assessed with precision, whereas an exact assessment of an action that is more or less personal in nature can only be approximate and imperfect. Therefore, in some cases, the law of legal proceedings allows for the filing of claims for obligations without an exact determination of the price of the claim, which can only be clarified during the process. An action usually refers to a certain moment. In compensation contracts, three cases are possible: 1) The action and the corresponding impact are combined at one moment or follow one another directly. This is the exchange of a cash thing for another cash thing (Baarverkehr, Baargeschäft, affaire au comptant, Baarkauf, Baartausch). Exchange, purchase and sale. 2) The action is performed in the present, and the impact is related to the future. This will be a credit transaction (affaire, marché á terme). 3) Both action and impact are related to the future. For example, a supply agreement. When a right or obligation becomes the property of several persons, the question arises as to whether and how it can be divided among these persons. There are some rights and obligations that are inseparable in nature. Those obligations are divisible in which the obligatory action and the corresponding right can be divided into homogeneous parts, so that each part, being smaller than the whole, retains all the essential properties of the whole. In short, the division should be based on quantity, not quality. There are other actions that retain their meaning and quality only as a whole and cannot be divided into equal parts only by quantity. This or that property depends either on the nature of the thing or action, or on the content of the contract and the special attitude of the persons participating in the contract and obliged to perform it. There are actions that have an indivisible integrity that cannot be divided into several separate operations: for example. the doctor's obligation to travel with the patient to Carlsbad for treatment. There are actions that, although they have economic integrity in the intention of the parties, can be broken down into separate operations: for example. the obligation to build the house completely, the obligation to complete all the stone work during construction. There are actions performed according to their properties at once; There are others, composed of quantity or a series of sequential, periodically repeated techniques. There are actions that are not at all limited by time and are not subject to mathematical calculation by quantity, for example. in the right of passage and passage through the dacha, in the obligation not to drive through the dacha, not to drain water, not to build dams, etc. In the right of passage and travel through a separate dacha, it is impossible to imagine a division of the right or obligation in quantity between the heirs of the person having the rights or the obligor. An obligation to give or transfer is divisible when the subject of the transfer is divisible. In the obligation to perform, indivisibility is assumed, since the action is indivisible; but when an action consists of work determined by measure and time, then it may be subject to division. With the obligation to perform one of the two - either one or the other - divisibility is incompatible until the choice of one or the other action is made. In general, it should be noted that the indivisibility of any obligation is eliminated when it is possible to evaluate it with money. In an obligation, only the possible action to which one is committed is conceivable. The impossible in itself cannot be of interest to any party. Every obligation presupposes free action in the future, i.e. an event that has not happened, is incorrect, which someday must come into being, take place, take on a certain form, become true. And doing the impossible is unthinkable. Impossibility can be either natural or legal. The first refers to objects that never existed or were destroyed, or could not exist in any way; the second - to things that cannot be the subject of civil property or already belong to the creditor. Finally, there may also be a moral impossibility - an action that is contrary to public morality or a positive law that protects an important public interest. An impossible condition contradicts the very essence of the contract, and therefore makes the contract invalid (cf. Cass. decision 1879, No. 223). But in this case, the impossibility is assumed to be objective and lies in the property of the object itself, and not in the personal strength of the obligated person. So, if the action in itself is not among the impossible, but is impossible only for the obligated person, then this person is not relieved of the obligation to perform. Subsequent impossibility that arose after the conclusion of the contract does not serve as a reason for declaring it invalid. It only serves as a difficulty or obstacle to the execution of the contract as agreed. An action can be either definite, known, or unknown, indefinite. The subject of the action is defined, fully known, when from the contract itself one can clearly see what individual object is meant or what kind of objects, what type, what quality, in what quantity. But if the subject of the action is so unclear that it is impossible to distinguish it by any sign, in this case the contract leaves the sphere of legal actions, in which everything must be determined, or contains the possibility of determination, and mandatory execution becomes impossible, therefore the contract becomes legally invalid. But between the action that is completely definite and the action that is completely indefinite, there is a spacious middle. In it they find a place of action that is not quite defined, i.e. such, the subject of which is intentionally left on one side uncertain, so that in this unknown part the determination is left to the free will of one or the other party. Here there is the possibility of determination during execution, there is a place for interest, therefore there is a place for a legally valid obligation. Here are the main types of such uncertainty: 1) The determination of the subject of performance or accessories may be left to the discretion and decision of a third person or institution (arbitrium certae personae, boni viri). 2) The subject of an obligation may be several separate actions, of which only one must be performed. Which one exactly - the contract does not determine, but provides one or the other party with a choice at the moment of execution (oblig. alternativa). Here the obligation extends over several actions, but the performance consists of only one action. Eg. deliver 1000 des. land or 1000 rubles, put 500 quarters of wheat or 300 quarters of buckwheat to such and such a number. Such an obligation is necessarily indivisible: I cannot, for example. in accordance with the obligation to transfer in the first case partly in land, partly in money (without a new agreement with the creditor), in the second case partly in wheat, partly in cereals. My job is to give, to fulfill this or that in its entirety. The important question here is: who gets to choose? It is normally assumed that the obligation comes from the debtor: I undertake to do this or that. So, usually the choice is given to the obligated person, unless the contrary is stated in the contract itself. This freedom of choice extends, of course, for the one who has committed himself to the moment of fulfillment; for the demander - before the statement of the demand. In fulfilling such an obligation, choice may not be possible; eg Of the objects between which a choice is supposed, there is nothing available except one object. In this case, it is most natural to assume that execution without choice must refer to what is available and what is possible to perform. However, if the choice, according to the will and intention expressed in the contract, relates to the essence of the condition between the parties, then with the destruction of the possibility of choice, the execution of the contract generally becomes impossible. 3) An object can only be determined by genus, not by species (genetically). Only the genus of individuals from which a choice must be made can be designated, but the individual itself is not designated, and its choice is left to one side or the other. And in this sense of the unknown there must still be a limit, there must be the possibility of interest and obligation. Neither one nor the other would exist if, for example, a too broad genus were designated, with almost unlimited freedom of choice. In this case, neither the demand nor the obligation would have serious significance (for example, I am selling you an animal). Gender is a concept that in itself has no definite boundaries. It's relative. A genus may itself be a species in relation to another vast genus. In this sense, some legislation (French) invalidates an obligation in which only gender is indicated (1129). You can say: I am selling a horse. Here there is an opportunity to weigh the meaning of the obligation, to make a determination and assessment of the subject to which the performance relates. It is only necessary that the number of individuals be determined. This definition of an object not by an individual, but by a generic name has the following property. The individual dies, is destroyed and is destroyed irrevocably, irreplaceably. On the contrary, the genus does not die, therefore, if I sold, for example. his white horse - Lebed, then in the event of Lebed's death, fulfillment of the contract, at least in kind, is impossible; and if I just sold a horse, then in the event of the death of the horse that I had in mind when concluding the contract, I have exactly the same opportunity and am equally guilty of fulfilling my obligation. 4) There are objects in which, by the nature of their nature, natural isolation is not important and which require artificial isolation - by number, weight, measure. To determine the value, their individual does not mean anything in itself, but only quantity and quality are important. If both are indicated, the action will be quite definite. If one quality is indicated without quantity, then the obligation lacks any data to determine interest and obligation. But a single quantity may be designated, and such a designation allows for choice, closest definition, and average evaluation. So, we can say: I sell so many quarters of wheat, barrels of sherry, carts of sand, etc. The choice of varieties and quality will belong to one or the other party, and in the absence of a contractual definition, to the obligated person. It is not only material things that can be signified by quantity; Some executive actions are also subject to quantitative determination, for example. work, namely mechanical and uniform, not requiring artistic creativity. Where we are talking about ordering a work of art, e.g. paintings by Aivazovsky, where quantitative definition means very little. It is not always necessary to determine a quantity by a known number: it is only necessary that there be solid data from which it would be possible to determine this quantity. So, for example you can sell wheat for so many acres in my village, maybe supply fodder for 1000 regimental horses. Among the quantitative characteristics by which action is determined, money is especially important - as a universal instrument, a common unit of measurement of values: in this sense, money has the same meaning as any unit of measurement. But in addition, money can itself be a value, contain value in itself. Thus, through money, every property is resolved into a certain value, and this is all the more convenient since the unit of valuation is egalitarian, does not depend on personal relationships and needs and has the same value for everyone under all circumstances. Money retains this meaning as long as the known normal price of a monetary unit is established and supported in the general consciousness. § 4. Types of obligations. – Mutual and unilateral. - Free and paid. – Contracts based on risk. – Clear and unclear requirements. In any contract there are certainly two parties, but these parties are not always in the same relation to one another 2. There may be a transaction of such a kind that each party assumes a positive obligation and each, therefore, has a positive claim. Here in the transaction one party asks: do you agree to give or do this? – and receives a positive response; but at the same time the other one asks: do you agree to do or give this and that? – and also receives a positive response. Thus, a mutual obligation arises from the contract. Each party has both an obligation and a claim - both debtor and creditor. Eg. sales agreement. The seller must hand over the item and has the right to demand money. The buyer must pay money and have the right to demand the thing. But it may also be that in a contract only one party assumes a positive obligation; only one asks: do you agree to do or give this and that? – and receives a positive answer. Thus, a one-sided obligation arises. This is, for example. simple loan agreement. Here only one party is positively obliged - the debtor to pay the money; and the other side, the creditor, has only a positive claim. a) With this division, a positive obligation is meant. A negative obligation, even in a unilateral obligation, can be on the side that has the right and demand, because every right, every demand has its own legal limit, beyond which it should not go. When I have the right to demand, I have it only at a certain time, under certain conditions, not later or not earlier than a certain term. So, for example and the creditor has a negative duty not to exceed the limits of his right. Or, more accurately, it is not an obligation, but an accessory, a property of the legal position in which the person finds himself. Thus, the creditor has no right to demand payment before the due date. This does not mean that he has a duty not to demand. b) This division refers to the position in which the parties find themselves at the moment the contract is concluded. This situation may subsequently change due to random events or free actions on the part of the rightful party. Let's take, for example. agreement on luggage at the moment of execution. Here, one party gives the thing for storage, and the other accepts it - and that’s all. Only one party is obligated to return the item intact upon request. According to the essence of the contract, only one party receives the right of action - the party giving for preservation. But this attitude may change over time. Given away, e.g. to preserve a large amount of grain bread. If the one who gave it does not demand it for a long time, then the one who accepted it may be forced to pay the costs of preserving the grain, and subsequently receives the right to demand compensation from the other party. What is the practical significance of this division? In mutual obligations there is always reciprocity of action, reciprocity of execution. If these mutual actions are closely related to one another, then one is dependent on the other, and if one side, for example. fails to fulfill her obligation, then the other may refuse to fulfill hers. Eg. house sold. If the seller has not yet received the money, he can refuse to execute the deed, and the buyer does not have the right to force him to issue a deed, to transfer the property, or to blame him for refusing to transfer. In general, when the question arises about the guilt of the parties in concluding an agreement, about the illegal purpose of the agreement, then in a mutual obligation it is more difficult to distinguish one party from the other than in a unilateral one. In a unilateral obligation there is no such close connection, essentially a relationship, between the positive actions of one and the other party. In the example given (deposit), the one who took the thing for safekeeping is obliged to return it, even if he spent money on its preservation and at least expected a reward from the other party. It cannot withhold because it cannot indicate the failure of the other party to fulfill the obligation assumed under the contract. Perhaps it may happen that he retains the thing in his hands, but not by force of contract, but in the form of security for a claim for compensation, which he is obliged to present specifically. This division is adopted in many legislations (French); however, the law does not give it a certain practical significance. In our law it does not constitute a special category. Our law divides not obligations, but methods of acquisition into gratuitous or gift and mutual (see book III of the Civil Code, section I, section III). A unilateral obligatory relationship arises from some other actions with which a responsible obligation is necessarily connected (see below § 72): such, for example. accepting the title of guardian, entering into someone else's property affairs or managing someone else's property without instructions (nego-tiorum gestio). Entry into civil patrimonial or family rights and states associated with these rights, occurring at will and independently of the will, as a result of involuntary events, entails various kinds of obligations, in the origin of which the will either participates only indirectly and indirectly, or does not participate at all: in these cases, according to the Roman expression, ex re venit obligatio. For example, we can point to the attitude of the heirs regarding the total inheritance, the attitude of litigants in the process (litis contestatio), the attitude of the neighborhood, common property, etc. The explanation of these obligations relates to other parts of civil law. Finally, also without the direct participation of the will in establishing an obligation, it arises from an action that is criminal or violates a right. Everyone is responsible for his own action, i.e. in the civil sense, he is responsible for the consequences for another person, in terms of property. To determine the measure of this responsibility, it is necessary, not only for the purpose of criminal retribution, but also in the civil sense, to take into account the measure of guilt, because in the civil sense the consequences of malice and guilt or negligence in committing a criminal or unlawful act are not the same. 2) Another division is based on the apparent purpose of the contract, which is intended by the parties. If the contract shows that at the conclusion each party had its own benefit, material or monetary, the contract will be mutually interesting; if there is a visible benefit on one side, but on the other side there is no visible benefit or reward, or only the intention to deliver a benefit to one opposite party is visible, then the contract will be gratuitous or gift. So, for example an agreement on sale, on exchange, on a loan from interest, on personal hiring, etc., is connected to the benefit, with the interest of one and the other party; on the contrary, in a gift, in a gratuitous power of attorney, in a deposit, in a loan without interest, the visible benefit is all on one side: these are gratuitous contracts. This division is used in French legislation (onereux and à titre gratuit). In our legislation, it corresponds, although not completely, to the above-mentioned division of methods of acquiring rights to property - into gratuitous and mutual. The former include: grant, donation, allotment, dowry, will, the latter: barter and purchase and sale. All these acts are not included among the treaties; but our law does not create a similar category for contracts. The practical significance of this difference appears in the case of non-fulfillment and performance of the contract. When it comes to judging the penalty of the obligated person or his failure to fulfill an obligation, then it is obvious that the person who has obligated himself for free has the right to greater leniency than the person whose action is rewarded under the contract, and the failure of the former does not appear quite the same as the failure of the latter. This is important for resolving the issue of remuneration. Let's imagine, for example. the position of the donor, when, after making a deed of gift, the estate, while remaining untransferred, suffered through his fault some damage or a decrease in income, and the position of the estate manager, when, through his fault, the estate was destroyed (cf. our 1539 article of the Civil Law and the principles expressed in it). 3) In other agreements, the clear goal is benefit, enrichment of one party exclusively. In others, a transaction is assumed for mutual enrichment, mutual benefit. Both sides, while providing themselves with benefits, provide them to the other side as well. This benefit of one party may be greater than the benefit received by the other, or equal to it, or less than it; but in any case, each party can, at the very conclusion of the contract, with a greater or lesser probability, calculate what it is acquiring. So, for example When selling a house, each party can compare the value of what is being alienated with the value of what is being acquired and judge whether the deal is profitable for it or not. Any contract, without a doubt, involves risk, but here the risk depends on random or personal third-party circumstances that are not foreseen in the contract and are not related to its essence. This risk is not included in the contract. The calculation of the contracting parties includes, in essence, only known, certain actions and events. Here there is a contract with risk, but the risk is not included in the legal content of the contract. But it may happen that the entire agreement is based solely on risk, that according to the purpose and intention of the parties, the final result of the contract, its material value, is made dependent on an event that is completely unknown or random, or only probable, so that when concluding it it is completely unknown which party will ultimately win, receive the greater benefit. Examples: transfer of an estate during life with an obligation to produce income for life; sale of future harvest; insurance; bet. The practical significance of this difference is important in those legislations that allow the destruction of a contract due to an error in the motivating reason for it, an error in the subject of the action, entailing a significant disadvantage for one of the parties (laesio). The legal effect of this circumstance is allowed only in contracts of the first type. Chapter two. General conditions for the validity of obligations § 5. Valid and invalid obligation. – In-kind obligations. – Void and voidable obligations. – What determines the validity of an obligation? An obligation can only be called fully valid when a right of action is associated with it. Only under this condition does the obligation have meaning, because it allows for a legal requirement, connected with the right to demand fulfillment through public authority. Otherwise, no matter how reliable the agreement of the parties to establish an obligation is, this agreement is not binding and does not produce a valid obligation. There are obligations that the law, for reasons of state or moral interest, declares invalid, i.e. not enforceable by public authority. This is the case, for example. obligation of a minor without the consent of the guardian; This is a mortgage written on a house on real estate; This is what every obligation becomes after the statute of limitations has expired. On the other hand, the law assigns particularly strict force to certain types of obligations. Here the question arises: whether and to what extent can such obligations be valid between private individuals that are not valid before public authority, i.e. with which the right of action is not associated? Obviously, there will be no need for this question if there is no need to determine the legal significance of actions performed by private individuals. So, for example according to a loan letter, according to which the statute of limitations has passed, the debtor can, in good conscience, pay the lender, knowing that he is not obliged to do so under the law. What good is this law if the cooperation of public authority is not sought? But what if the person who paid did not want to subsequently demand back the money paid on the grounds that he was not obliged to pay it, and began to prove that he paid it without knowing about the missed deadline, considering the act valid? The question is: in what sense will the law understand payment? If he orders the money paid to be returned, then he does not recognize the action as payment of an obligation and does not recognize any obligation. If the law leaves the money with the creditor, it therefore assigns some force to an obligation that is invalid by law. This issue relates to the Roman division of obligations into civil and natural - obl. civilis et naturalis. The first, arising ex jure civil, had full force, i.e. enjoyed the right of action. The latter, although it did not enjoy this right, was not completely devoid of all power. Without giving its owner a right of action, it gave him a basis to object to the demand of the opposing party when that party wanted to destroy his own, voluntary action aimed at fulfilling such an obligation. This distinction in Roman law was based on the difference between strict jus civile and jus gentium and on the corresponding ancient difference between the strict civil form of obligation with the right of action. In modern law, this distinction has disappeared, because an informal contract can also be associated with a right of action in general. But even in the latest legislation, a positive form has been established for some types of contracts, for example. written, so sometimes there is a need to determine exactly what consequences a failure to comply with this form entails. Meanwhile, the disappeared difference obl. naturalis et civil makes it impossible to determine these consequences in practice with the precision that we see in Roman law, and the natural sense of justice prevents the recognition of informal obligations as completely invalid 3. With all that, for those cases where an obligation, which was at first completely valid, subsequently loses the right of action, some legislation retains the name and quality of a natural obligation (Code civ. 1235), - obl. naturelle, or moral, ethical (Allg. Landrecht), and in the case of voluntary satisfaction under such an obligation, a reverse demand is not allowed. Prussian law in the same sense speaks of moral obligation and imperfect duty (Savigny. Obligat. R. I. S. 129 et seq.). Our law does not know such a distinction at all (in general, we do not know the special legal concept of the reversion of what has been paid, repetitio soluti and condictio indebiti). So, if we had a serious question about whether it is possible to demand back what was paid voluntarily under such an obligation that is deprived of the right of action, for example. on the obligation of a minor or on an obligation extinguished by prescription, then this issue should be resolved negatively. In our opinion, it would be natural to assume that the one who paid thereby realized his obligation, and with this consciousness, as a general rule, blocked his path to turning around. The same should be said, for example. about informal acts submitted for collection. The police (or court) are obliged to present such a report to the debtor. If he did not exercise the right of exception and paid, he cannot subsequently demand a refund of what he paid. The material content of the obligation, i.e. what one party undertakes to give or perform is very important. And our law (1528 art.) says that the subject of the contract can be actions or property. This indicates a general, universally accepted division (obl. de faire ou de donner): the same is indicated in the expression of Art. 1539: to give or fulfill. The former is, without a doubt, more definitive than the latter. When the purpose of the contract is to transfer known, directly designated property, its subject is more or less definite, and most of all definite when it is indicated by quantity or monetary unit, but when the purpose of the contract is the execution of actions that depend on a variety of local and temporary circumstances, involving a series of operations, preparations or corresponding assistance of the other party, then the execution of the contract is devoid of quantitative determinacy and is not available for precise accounting at the very conclusion of the contract, therefore in itself does not represent a determinative value. However, the transfer of property can be surrounded by such conditions that deprive it of certainty, and actions may have such a certainty in their nature that immediately makes it possible to establish the value of the contract. That is why the requirements associated with the contract can be clear and precise, but on the other hand – unclear (liquides et non liquides), i.e. those that provide an exact value at the very beginning, and those that can be valued only after research and consideration of the circumstances of the case and the conflicting explanations of the parties. In this sense, the most definitive are obligations written for money or debt obligations: this category includes “clear and indecipherable demands” distinguished by our law. Zach. Court. Citizen 432. The concept of debt in a broad sense, i.e. obligations to fulfill, connected with any obligation; but in a special, close sense, debt means the obligation to pay a known quantity or amount to a known person, at a certain time or period: for this you need to be sure that the known amount indicated in the obligation is actually in debt, i.e. formed from credit currency transferred or credited between the parties. When this certainty is absent, then there is no direct duty in its particular meaning, but there is a certain obligatory relationship, which in itself does not constitute a determinative value, but can be resolved into a determinative value only after a mutual settlement of relations or after a trial and a judicial verdict. So, in one case, the obligation is resolved by payment of the debt amount, in another case - by satisfaction for the malfunction, for damage or loss from non-fulfillment of the obligation. As an example, we can point to the case of Molvo and Zadler (2nd General Meeting of September, September 15, 1878). The merchant Zadler, having accepted the wholesale construction of the railway under the contract, accepted the merchant Molvo as his comrade on special terms, according to which Molvo agreed to accept the entire balance of the enterprise into a common account, and any disagreements that might arise were left to the analysis of the intermediary Mark: profits and losses are divided between the comrades in the prescribed proportion. On this condition there is an inscription: “We, Molvo and Mark, are responsible with all our fortune for full payment of all bills, conditions and obligations of the railway builder Zadler and undertake to clear it to all his creditors within a 6-month period. We will pay the entire shortfall in full, but Zadler will remain in debt to us for 60% of the entire loss.” The number of Zadler's debts is not specified. Based on this inscription, Zadler, who turned out to be insolvent, began to demand from Molvo and Mark the entire amount of his debts, showing it at 4 million. Obviously, this claim cannot be considered a debt claim and can be stated only in the form of a demand for compensation for losses from non-fulfillment of the contract. The validity of a contract depends on the reality, the presence of those legal events that serve as its indispensable basis and are certainly presupposed in it. When they do not exist in reality, then the contract cannot be valid. Some of these events are so significant and have such decisive significance (eg free will, consciousness of the parties) that where they are not there there is absolutely no contract. Other events may be significant, depending on circumstances and relationships. This consideration is the basis for the distinction recognized in Roman law and accepted in all Western legislation between acts and contracts that are void and refutable (negot. nullum, rescissibile; acte nul, a. annullable, nichtig, anfechtbar). This difference also has practical significance. What is in itself insignificant is insignificant from the very beginning, no matter at what moment it is recognized as insignificant. An act that is void in itself can be directly rejected as void by anyone to whom a claim is made under such an act, and the question of its nullity arises with regard to direct refutation. But when an act is only refutable, its invalidity can be recognized by the court only on the basis of a lawsuit, and this invalidity is not always unconditional, does not always receive retroactive effect, and the act cannot be destroyed with all its consequences, both in relation to the parties and in relation to third parties. The theory distinguishes in insignificance itself unconditional and relative insignificance, depending on whether every interested person or only certain persons is allowed to point out this insignificance, depending also on whether the effect of insignificance extends to the whole act or to some parts of it and its accessories. It is essential for the validity of the contract: that it be based on a free agreement between the parties; that each party should be free and capable of its own accord to enter into an agreement with the other party; so that the subject of the agreement has a certain certainty; so that the subject and purpose of the agreement are not prohibited, since prohibited purposes cannot enjoy the protection of the law in their implementation. § 6. Capacity of persons to conclude an agreement. – Obligations of minors and persons under guardianship. For the validity of a contract, it is necessary that the persons entering into it are not incapable of entering into a contract at all. Everyone is assumed capable, but the law recognizes some persons as incapable, in one respect or another, of concluding contracts in general or entering into certain obligations. But the participation of incapable persons in the contract does not unconditionally destroy its validity, but appears only as a defect, which serves as a reason for its refutation on the part of the victim, due to the harm (laesio) suffered from it, and in cases determined by law. Thus, French law says that minors under repression (interdits) and married women cannot generally, except in cases specified in the law, refute contracts by their inability; and capable persons, having entered into an agreement with incapable persons, in no case have the right to refer to this inability to refute the agreement. The invalidity of such a contract is relative, and depends on the interest of the incapable person: the minor can either, upon coming of age, acknowledge his obligation or reject it, and the other party has the right to insist, because it is assumed that when entering into an agreement with a minor, anyone can and is obliged to verify his age and know the law, which requires, in necessary cases, the participation of a guardian or the authorization of a trustee. But on the other hand, it would be unfair, if such an agreement is destroyed, not to put into the account of the minor everything that was transferred to him by virtue of the agreement and served him as a profit: otherwise, he would use someone else’s property for nothing. This is the rule of French law. Prussian (and Austrian) law recognizes contracts of minors as invalid, since they serve to acquire rights for them; but in everything that tends to impose responsibilities on them or to alienate property, these agreements are invalid without the consent of the guardian and trustee. A minor can enter into such an agreement only conditionally, in order to bind the other party until the expression of guardianship consent. Austrian law has a useful rule: a minor is liable (for damages) if he pretended to be an adult when entering into a contract. In general, it is impossible to imagine the unconditional legal impossibility of entering into obligations, just as it is impossible to imagine the unconditional lack of rights, i.e. complete destruction of the human person in the legal sense. The satisfaction of the very first needs of human nature is necessarily connected with the entry into one or another obligatory relationship, and every human action can acquire the meaning of obligatory, i.e. to arouse rights or obligations on one side or the other. Persons deprived of all rights of estate according to our laws, losing property rights in their former estate, are not deprived, in their new state, of the general legal opportunity to enter into relations connected with the rights and obligations of property. True, it is doubtful that in the event of a dispute and wrangling they would have the right to sue regarding these relations. Nevertheless, our law contains many private restrictions for persons of one or another class to enter into certain types of contracts and obligations. These restrictions arise from various reasons, political, moral or fiscal. They will be mentioned in detail in places. Thus, the right of monastics and white clergy to enter into debt obligations and industrial transactions is limited; the right of Jews to enter into certain obligations; the right of officials to obligations incompatible with the duty of their title; the right of retired officials and persons punished in court to petition in other people’s cases; the right of persons who do not belong to the merchant class to obligations inherent in trade (for obligations related to craft, a similar restriction follows from Article 472 of the Constitution of Industry); the right of foreigners to participate in certain treaties; the right to carry out transactions with funds on exchanges without brokers, etc. The right to enter into contracts belongs not only to individuals, but also to classes of persons with legal personality within the limits specified for each corporation by its special charter. With regard to societies, estates and other institutions of national importance and in connection with one or another part of state administration, in some cases a certain authorization of the contract is required on the part of the subject authorities. This rule is of particular importance for government and government institutions, when they have to enter into agreements with private individuals on behalf of the treasury to meet the economic needs of the country and state. Our law does not give a general rule about who is deprived of the right to enter into obligations, although in places it mentions persons who generally do not have the right to be bound by contracts (Articles 2101, 2102). This refers, without a doubt, to cases of incompetence depending on minority, mental illness and state under guardianship due to various reasons. Persons in these states are limited in their right to enter into obligations, but this restriction is not the same. Only in relation to the insane can it be considered unconditional, since every agreement of an insane person is devoid of the most essential accessory - clear consciousness and will. Complete freedom to enter into obligations is acquired for everyone only upon coming of age (Civil Law 221). Anyone who has reached the age of 17 enters into the management of his estate, but can incur debts, give written obligations and perform acts and transactions of any kind and dispose of capital anywhere in circulation or in an account except with the consent and signature of the trustee (220). However, the management of the estate is necessarily connected with the entry into obligations and contracts, from which it must be concluded that this right, insofar as it is connected with the disposal of the estate, is not prohibited in this state, although in some cases the trustee has the right to object to transactions that have the property of prohibition, indicated in the second half of the article. As for minors under 14 years of age, their civilian personality does not enjoy independence at all and is represented entirely by parents and guardians. The liability of minors for actions, both criminal and non-criminal, is also limited, as will be explained below. Our law does not at all distinguish between contracts of a minor according to their internal content, what tends towards benefit and what towards burden and disadvantage, and does not at all pay attention to the interests of the other party who entered into the agreement. Our law treats the subject only from a formal point of view and establishes a decisive rule that without the signature of the trustee, no obligations issued to minors can be considered valid (218, 220). The inconvenience of such a decisive rule is obvious, as a result of which practice sometimes gives the broadest possible interpretation of the law, affirming the obligations of minors recognized by them at the age of majority. For prohibitions and precautions when drawing up acts on behalf of the insane, dumb and deaf-mutes, see Zak. Citizen, adj. I to Art. 708, art. 55, 76; Notary. Pol., art. 106–111. On the limitation of the rights of persons under guardianship for extravagance, Art. Prev. Prest. ed. 1890, Art. 152. – On the limitation of the rights of insolvent debtors under bankruptcy, Zak. Court. Citizen 502 et seq., Const. Court. Bargain. 501 et seq. Acts of minors. The signature of the trustee on the loan letter of a minor, although as a witness, satisfies his consent to the issuance of the loan letter (2 Sat. Sen. Resolution V, No. 1180). By the decision on the village of Stakhurskaya (J.M.Yu. 1862, No. 8), the Senate recognized that a power of attorney of a minor, issued even with the consent of the trustee, could not grant the attorney the right to issue loan letters on behalf of the minor: each of such acts in itself requires the consent of the trustee. – The decision in the village of Sokolova (ibid. 1863, No. 6) recognized that when a minor has several trustees, the signature of one of them on the act is sufficient. The merchant sought from the clerk on the occasion of settlement with him shortcomings in the goods and in the money; but this claim was denied, since the clerk was hired, being a minor, without the consent of his father (Sb. Sen. decision I, No. 143). A settlement agreement by a minor, without the consent of the guardian, on the renunciation of the specified marital part is invalid (Moscow General. S. Sen. d. Gamaleya 1856). A receipt for the receipt of what was promised does not constitute an obligation, and therefore can be issued to minors, without the consent of the guardian (2 Sat. Sen. Resolution V, No. 1270). The purpose of the law prohibiting the issuance of bonds from minors is to protect them themselves, i.e. their interest, from the consequences of ignorance and deceit; therefore, they only themselves have the right to refer to the invalidity of the obligation for this reason, and not the other party who was an adult (2 Sat. Sen. decision III, No. 633; ​​Cass. decision. 1879, No. 118; 1883, No. 118). The effect of this prohibitory law does not extend to obligations issued with the participation of minors in their favor, for example. on a loan letter given in the name of a minor (2 Sat. Sen. Resolution III, N 637). The law on the invalidity of the obligations of minors does not in any way mean that they have the right to appropriate someone else’s property and keep it for themselves simply because it was accepted by them when they were minors (Cass. decision 1874, No. 820). The purpose of the laws, on the basis of which acts given by minors are recognized as invalid, is to protect their interests, therefore these laws do not in any way give the right to persons with full rights to seek the destruction of acts committed by them in the name of minors (Cass. decision 1876, No. 378; 1880, No. 472). A loan letter from a minor, which in itself is invalid, can become valid upon recognition by the debtor when it comes to maturity: it is not, however, recognition when the debtor does not argue about the authenticity of the act, at the same time refuting its validity by lack of money (Cass. decision 1874, No. 220). A former minor who, having come of age, upon presentation of loan letters given to him when he was a minor, recognized them as valid, does he have the right to subsequently deny payment due to his minority? In the case of Likhachev and Wilde-Wildberg, State. The Council (1858) admitted that it had not. Likhachev’s consciousness, committed at an adult age, makes payment for his recognized debts completely obligatory and constitutes evidence separate from the issuance of letters of borrowing (also in the decision of the Moscow General. S. Sen. of 1860 for the village of Mylnikova; cf. also Cass. decision of 1869, No. 848; 1871, No. 795). When a minor issues a debt obligation in bad faith, by deceitfully concealing his years and presenting himself as an adult, collection of the obligation from him can be carried out in a criminal court, as compensation for damage caused by a crime (Sb. Sen. decide. I, No. 104). In the case of Gololobova (Cass. decision. 1876, No. 488), the guardian of a minor daughter, who, together with her mother, owned the undivided estate of her deceased father, filed a report with the guardianship that he, with the consent of the minor, has no obstacle to giving her mother 100 rubles from the income from the estate. per month. According to such an act, a penalty was awarded, as for the obligation of a daughter; but the Senate did not recognize such an obligation, judging that the report was submitted by the trustee for a person who had already reached the age of 17 and could dispose of property with the consent of the trustee. This reasoning almost suffers from excessive formalism. It seems incompatible with the title of guardian or trustee to accept an obligation imposing payment or duty on the part of a person under his guardianship or trusteeship, as a result of which such obligations were declared invalid (Sb. Sen. decision I, No. 91. Cass. decision. 1874, No. 314). Wasteful and incapable. The spendthrift has no right to make transactions related to his estate: this right belongs exclusively to his guardians, who are not obliged to ask his consent; used in Art. 152 Est. Prev. Prest. (ed. 1890) the name of the curator does not limit the right of guardianship. As an exception, Art. 20 Est. Gr. Court. leaves it to the spendthrift to seek and answer in court with notice only to the guardianship. However, if the spendthrift decided to end the court case with a settlement deal, then this deal is invalid without the consent of the guardian (Cass. decision 1878, No. 42). The law (Article 152 of the Constitution of the Pred.) prohibits persons under guardianship for extravagance from committing only mandatory acts (Cass. Resolution 1878, No. 71). In the decision of 1869 (2 Sat. Sen. decision III, No. 650) it was recognized that acts issued by a spendthrift, at least during the interval between the establishment of guardianship and the imposition of a prohibition on the estate and the announcement, are invalid if at the time of issuance the guardianship already existed in fact and the person who issued the obligation was limited in his rights. This consideration alone, however, would hardly be sufficient to destroy the value transferred to the spendthrift by third parties; but at the same time, by the way, it was taken into account that Chaplin’s dissolute life was generally known even without publication. But Cass. Dep. (1874, No. 862) recognizes as valid obligations issued by the spendthrift during the period from the imposition of the prohibition to the imposition of guardianship. The decision in the village of Matkovsky (Sb. Sen. decision II, 422) invalidated the remuneration assigned to the manager for work on affairs by Batashov, while he was under guardianship for wastefulness. Ibid., N 442. The right of persons under guardianship (for extravagance) to receive subsequent payments in their favor under contracts is directly refuted by Articles 149–152 (237–240 as amended in 1876) of the Constitution. Prev. Prest. Cass. decide 1877, N 345. Deaf and mute people are not considered, due to their condition, incompetent to issue obligations, and the law does not require an indispensable examination to recognize them as legally capable. Drawing up a deed on behalf of the deaf-mute at the notary (Not. Pol. 89, 106) is furnished only with formalities to certify that the deed is issued consciously and of good will. Consequently, household certificates can also be issued to deaf and dumb people who have not been examined (Cass. decision 1876, No. 593). In later decisions, the Senate shied away from this interpretation. So, in dec. 1883 N 51, Kassats. The Department recognized that deaf and mutes even upon reaching adulthood, i.e. 21 years of age, do not acquire the right to full disposal of their property and freedom to enter into contracts and obligations; for this, according to the interpretation of the Senate, an examination of a deaf-mute is required, and until the examination he continues to be considered incompetent. When concluding a contract, equality of the parties and legal freedom of relations must be assumed. A loan letter issued by a serf in the name of an assistant in the existence of serf relations does not have these properties and therefore does not have binding force (Cass. decision 1871, N 1120). Even though the person participating in the contract was not officially recognized as in a state of insanity or insanity, this does not prevent one from proving that when committing the act he was deprived of consciousness and will (Cass. decision 1873, No. 433 and 1139; 1879, No. 90, 387). About the act given while intoxicated (Cass. decision 1873, N 682). § 7. Purpose and motive of the contract. – Commitments without purpose. - Simple sense of duty. - An imaginary goal. - The target is prohibited. – On the meaning of a prohibited purpose under Russian law. – Destruction of a contract for a prohibited purpose and the consequences of destruction. In particular, speaking about the validity of an obligation, it is necessary to mention, firstly, the motivating reason, and secondly, the form of the obligation. In any obligation, one must distinguish between its object and the motivating reason, immediate or distant. The subject of an obligation is what the party undertakes to do. The motive is the immediate, immediate purpose for which the agreement is being made. In order for an obligatory relationship to emerge, a certain obligatory connection between persons must arise. It is causa, the immediate motivating reason, determined by the intention and will of the contracting parties and the legal essence of the contractual relationship, according to its type. Perhaps, in addition, there is a distant goal, which is known to the person himself and is not stated in the contract. For example, I have a house, but no money, and I need money to travel abroad. You have money and no home, but you need a house (distant reason). I'm selling you a house - for what? To get a commitment for money. You give me money - for what? To have a house (proximate cause). I transfer the house, you – the money (item). So, in gift obligations, the immediate goal is to give, to do a benefit. In a contract that imposes an obligation on both parties, for compensation, the obligated party means to acquire an obligation, to acquire a thing, to extinguish an obligation. In a bilateral contract, the obligation of one party intends to acquire the obligation of the other party. It is impossible to imagine commitment without such an incentive. There must be some reason. But it is not indicated everywhere, and in this sense, all obligations can be classified into two categories: concrete, with the meaning of a motivating reason, and abstract, without this meaning (French obl. causée and non causée). The theory of law is still confused by this concept of cause - causa, and there is noticeable hesitation in positive legislation. Some believe that every obligation must express a reason, its purpose, and that where the individual, specific will of the parties in connection with its cause is not expressed, there is no obligation valid before the law: an exception is allowed for some special types - for example. for a bill of exchange and for claims confirmed by direct consciousness of duty. Others are of the opinion that in the current state of social relations there is no reason to adhere to the rigor of the Roman view, and that the will, expressed even in abstraction from an individual cause, can produce a completely valid obligation, if only it is positively directed towards establishing an obligation. This last theory receives predominant importance, which fully corresponds to the practical need in real life, with the increasing movement of industry and with the current speed of circulation of all values. The majority is inclined to the opinion that where the word: I undertake is in the letter, and it is clear what the obligation is to, there is no need to look for where the obligation comes from. This is, in any case, a consciousness of duty (French 1132. La convention n'est pas moins valable quoique la causa n'en soit pas exprimèe). An obligation without a purpose is unthinkable: if it could be proven that it is without a legal purpose, then, of course, it would not be evidence, and therefore in many legislations there is a rule that an obligation without any purpose is invalid. There is also another rule: an obligation is invalid when its motive was imaginary, when the obligated person, entering into an obligation, based it on a fictitious, supposed legal relationship that did not exist in reality. Examples. I issue a letter of loan to Ivan, but in essence there was no loan, and I did not receive any money from Ivan, but issued a deed for other purposes, for example. in the form of a gift, or in order to provide for Ivan before the due date in another, obligatory relationship between him and me. My father bequeathed N - 200 heads of cattle. As an heir, I instead issue N an obligation to pay him 2000 rubles, explaining the reason. Following this, another will of my father was revealed, with which he destroyed the previous one. Finally, the law declares an obligation void when it tends, according to the intention of the parties, to an end that is absolutely prohibited by general law. Such, for example. goals - deprivation of personal freedom, unconditional prohibition to marry, restriction of freedom of conscience, gambling, disposal of inheritance after a living person, etc. Our law does not express that any obligation must necessarily contain an explanation of the motivating reason from which it arose and the purpose that the parties intended. On this basis, a penalty can also be awarded by a simple letter containing an obligation to pay for previous relations between the parties (Cass. decision 1871, No. 15). In general, it is not required that the act indicate its name according to the type of obligation it contains, and if the act is not named by its own name, it does not lose force (Cass. decision 1868, No. 2); Only in relation to some acts (bills) does the law specifically require that the name be indicated. Our law mentions the purpose of the contract: it should not be contrary to the laws, decency and public order (1528). Article 1529 says: a contract is invalid and the obligation is void if the motivating reason for its conclusion is the achievement of a goal prohibited by law, such as when the contract tends: 1) to the dissolution of a legal marriage; 2) to falsely reconsolidate the estate in order to avoid paying debts; 3) to extortionate twists; 4) to assign to a private person a right that he, due to his condition, cannot have; 5) to the detriment of the state treasury. In general, and regardless of this article, an obligation to act prohibited by law cannot be valid before the law. When it comes to compulsory execution, neither the court nor any other public authority has the right to serve as an organ of such compulsion; therefore, an illegal obligation, devoid of legal sanction, is in this sense invalid. But the above article means something else: not the action itself, but the purpose of the agreement and its motivating reason, since it is clear from the entire economy of the agreement. The law destroys the agreement of the will aimed at an illegal goal (cf. Cass. decision 1880, N 286). This is precisely where one should look for a guiding principle in the application of the article: otherwise its rule will turn out to be shaky and uncertain in application. Any agreement, no matter how free it is from illegal purposes and intentions, may, as a result, when executed, be associated with consequences that are inconsistent with the law and its prohibition. It may happen, for example, that the convenience and benefits provided under the contract to a wife who does not agree with her husband give her the opportunity to lead a separate life in connection with a stranger; it may happen that the space and value of the operation undertaken by the merchant exceeds the legal size of his trading rights; It can happen, and often happens, that an agreement, in its form or content, is indirectly connected with damage to government interests. Should such contracts be declared invalid? Obviously not, because otherwise there would be few valid contracts left, and an unscrupulous debtor or performer would be given a ready opportunity to evade contractual obligations, citing only the consequences of one or another action, even if indirect, distant and alien to the goals and content of the contract. Rule 1529 of Article does not refer to these indirect and incidental effects, but to the intended and conscious purpose of the agreement. Only in this sense does it receive the proper definition and firmness. The cases cited in the article obviously do not exhaust the content of the article and are placed in it in the form of an example, as indicated by the word: somehow. In addition to this general article, you can indicate several more special ones related to special cases of this kind, for example. Article 2151, on the non-establishment of companies, the subject of which is contrary to morality, good faith in trade, public order, or is associated with public damage, or with harm to industry; 2014, 2019 Art. about a loan for a game or for a game, about a fraudulent loan. The question may arise: what constitutes the invalidity of the contract; Is the entire contract destroyed by all its consequences, or only by that one obligatory condition that is contrary to the law? It should be answered, it seems that the entire “contract is invalid” when it has an integral and inextricable connection in all its conditions, connected by one illegal purpose; but when the defect lies in one of the individual conditions of the contract and with the exception of this condition the contract does not lose its purpose and independent meaning (such, for example, may be a dependent condition on security), then one separate “obligation is void”, and in other parts the contract remains in force. So, for example when the contract establishes the obligation to return the taken money or things, to deliver the things, and a fine is shown for delay, which turns out to be an extortionate twist, then with the destruction of the illegal condition, the obligation to fulfill the main part of the contract is not canceled. An agreement prohibited by law cannot serve for either party as a source of any rights based on this agreement (Cass. decision 1870, No. 982; 1878, No. 85). An illegal condition placed in an agreement is invalid, but it does not follow from this that the entire agreement in which it is placed is invalid, and therefore the sales record remains in force when the condition that the property passes into the possession of the buyer remains in force. This is how the Senate judged in the village of Vishnevskaya, but the State. The Council (1863) reasoned that, according to the reason of our laws, acts in which illegal orders are placed should be considered invalid, since such acts are prohibited (Article 769 and 883, corresponding to Article 54 and 120, Appendix I to Article 708, Civil Code, edition of 1887) to be performed and witnessed. An exception is made, in the opinion of the State Council, only for spiritual wills, which are not contracts. As a result, the entire sales record must be declared invalid. J.M.Yu. 1864, No. 4. – The decision is very strict; the decisions of modern times are not so strict (cf., for example, Cass. decision 1876, N 117; 1878, N 73). In the Bystrom case, the debtor's loan letters were refuted on the grounds that they were issued for the immoral purpose of causing damage to the legal heirs in favor of a third party. But the Senate also eliminated the very judgment about such a sign of an immoral purpose, since any payment, for any obligation, entails an inevitable reduction in the property of the obligated person, and therefore inevitably causes damage to both himself and his heirs (2nd General Meeting of Sen., decision 1878). The court declared the entire agreement invalid, finding one illegal condition in it, that for non-fulfillment the parties would expose themselves to arrest. The Senate explained that the invalidity of the entire contract cannot be deduced from the invalidity of one condition, unless its purpose is contrary to the law (Cass. decision 1873, No. 717). When an action constituting the subject and purpose of a contract is one of those absolutely prohibited, the agreement on this action will be invalid and cannot serve as a basis for mutual claims for non-fulfillment, unless there was intent or deception on one side when concluding the contract to the detriment of the other. But when an action, not absolutely prohibited, requires only by law the prior consent or approval of the subject authority and the agreement is concluded without this approval, then, even though the action could not be performed, the agreement about it still remains valid, i.e. initiates legal relations between the parties. In this sense, the issue of the agreement on the transfer of the printing house, concluded contrary to the legal order, without the permission of the provincial authorities, was resolved (Cass. decision 1876, No. 176). In the case of Sushkin and Afanasyev, the Senate recognized that creditors can foreclose on any property of the debtor, and therefore the re-strengthening of the estate in order to avoid paying debts can only take place in the case when other property belonging to the debtor is not enough to satisfy his debts, i.e. when the debtor was already insolvent at the conclusion of the contract or when he became insolvent as a result of the conclusion of the contract. Then, in order to achieve the goal of false re-strengthening of the estate in order to avoid payment of debts, it is necessary that the agreement tends to reduce the property of the debtor, which serves to satisfy his creditors, so that under such an agreement the debtor’s property is transferred to other hands without money or at a disproportionately low price, or that the agreement is fictitious, i.e. so that he would seem to transfer the property to another person, leaving it in reality in the hands of the debtor. Thus, in order to invalidate the contract on the basis of paragraph 2 of Article 1529 of Art. it should be established: 1) that the debtor was insolvent at the time of concluding the contract or became insolvent as a result of concluding the contract, and 2) that the contract was concluded with the aim of hiding the debtor’s property from recovery by creditors and transferring it without money or fictitiously into other hands (Cass. decision 1881, No. 24). Another question: does the contract become invalid for both parties or only for one if only one turns out to be guilty? Necessary for both parties when the negative quality relates to the previous contract itself. For one, when it relates to the purpose and intention of one party and it is possible to separate the obligation of one party from the obligation of the other. Moreover, it should be noted that with the destruction of the contract, the parties with the property constituting the subject of it return to the position that preceded the conclusion of the contract. Sometimes this cannot be achieved simply by negating the relations created by the agreement, precisely when, as a result of the agreement, credit transfers of property, credit actions occurred, new values ​​were formed, or values ​​were transferred from one hand to another. In such cases some liquidation of value is required to equalize the relationship; what was borrowed and found to have been received for nothing must be returned, and from the broken relationship claims for harm, damages and costs may arise when one party is found to be guilty and the other innocent, acting in good faith. To the question of whether a contract should be considered invalid when there was a criminal motive on one side when concluding it, Cass. Dep. in dec. 1885, No. 63 gave a negative answer, recognizing that the criminal inducement of one party to conclude an agreement cannot serve as a basis for invalidating the agreement; if such a criminal motive is not expressed in the contract itself and is not proven by its content, then the other party who entered into the contract in good faith has the right to demand execution of the contract. Our judicial practice often encounters bewilderment, especially with regard to the application of paragraph 5 of Article 1529, regarding agreements tending “to the detriment of the state treasury.” Private persons in disputes against contracts tend to refer to this clause in all cases where it can be attached, and the courts do not always discern its true meaning. The word treasury itself does not have the same meaning: for us it means not only the interest of the fiscus or the state treasury in general, but also the economic interest of individual departments and parts of management protected by treasury law. However, this is not the same thing. The treasury, in the form of a separate department, becomes for the economy of each part in the category of subjects of law, having civil rights and obligations and entering into contractual relations with other persons. It would be strange to assume that 5 p. 1529 art. includes the interests of each of these departments in the concept of harm to the state treasury. Where the treasury is a subject of civil law, it would be completely unfair to apply the aforementioned rule to its interests. In general, it should hardly be applied where the agreement of the parties among themselves violates the obligatory relationship of one of them to the treasury or government department, which also stems from the agreement. 1529 Art., of course, does not mean a violation of a contractual obligation to the treasury, but the deliberate goal of depriving the state of its income for its own benefit. In this sense, it is difficult to agree with the application of Art. 1529. in Cass. Resolution 1870, N 484. Zakharov bought timber from the Levashovs for felling, and the Levashovs sought from him unpaid money and penalties for malfunctions. The defendant objected that the entire agreement was void under paragraph 5 of Article 1529 of Art. It turned out that the land from which the forest was sold included the entire estate of the Levashovs, collateral and security for the state arrears under the farming conditions of the previous time. The court took the same point of view and destroyed the agreement, as tending to harm the treasury, declared all its obligations void and the claim based on it without basis. However, in this case there is no place at all for the application of Art. 1529. and introducing into account the supreme interest of the state treasury. It turns out simply that the owner was not free to dispose of his property, that he sold such a significant part of it, which inseparably served as security for the recovery of a third party, without his consent. It follows from this that in the interests of a third party - the destruction of the sale of property - is a case of general rather than extraordinary significance. In this case, the destruction of the sale is followed, of course, by the settlement of the buyer with the seller in the amounts transferred in vain and in mutual losses. And in the above case, the way to these calculations is also closed with the decisive conclusion of the court that if the contract is destroyed, all claims based on it are recognized as void. To Cass. decide 1886 (No. 85) a contractual agreement was declared illegal, according to which one counterparty undertook to compensate another for the collection of a stamp fine for writing an agreement on plain paper, which could fall on the latter, since such a fine has the effect of punishment and, as such, cannot be transferred to another person by agreement of private individuals, even in the form of a written agreement. The law, by imposing a penalty on a violator of public interest, does not destroy or invalidate agreements on mutual obligations between private individuals - simply because those participating in the transaction do not enjoy the corresponding trade rights or are not members of the corresponding guilds. In general, there is no reason to destroy a transaction that is not contrary to the law, based on one violation of government interest, which can already be protected by legal order (Cass. decision 1869, No. 454). The Chamber destroyed the condition, citing Art. 1529. Zach. The citizen, seeing in it a concealment of the price of the estate, in order to avoid paying duties, and concluding from the fact that it tends to harm the state treasury. The Senate canceled this reasoning, recognizing that in this case the law threatens a fine, but does not destroy the rights acquired under the contract (Cass. decision 1878, N 102). Failure to determine the value of a contract by monetary value does not invalidate the contract (Cass. decision 1874, No. 509). Agreements on extrajudiciality and jurisdiction. Any claim regarding civil rights is subject to judicial review and cannot be rejected by the proper court. Private individuals cannot, and by mutual agreement, deprive each other in advance of the right to appeal to the judiciary with claims regarding misunderstandings and disputes that may arise in any subject of civil law (unless they agreed to conciliation or arbitration proceedings in a special form established by law). Placing in a contract between the parties such a condition that one party is obliged to unquestioningly obey the orders or demands of the other and cannot seek justice on any subject in court, in no case deprives either party of the right granted by general law to seek in court a violation of the contract by the other party or satisfaction for the illegal action of the other party (cf. Cass. decisions 1879, No. 22; 1880 city, N 71). The right to seek judicial protection and to have one’s affiliation sought by the court is inalienable and cannot be subject to restrictions at the will of persons in cases not provided for in the law itself. This applies to all those cases where the parties to the contract undertake, in the event of a dispute, not to resort to judicial proceedings. In deducing this rule, the Senate (Cass. decision 1876, N 290) excludes from it the amicable condition between the parties - to obey the decision of the final appellate instance. However, in this case, the Senate has in mind the substance of the decision. He explains that, despite such a condition, the appeal decision can be overturned for violations of the law; and since such violations were not indicated in the request for cancellation, but only irregularities on the merits were indicated, then the fulfillment of the settlement condition must take place. In strength 227 Art. Est. Gr. Court. (applicable to settlements, Cass. decision 1876, No. 17), the parties, when concluding an agreement, can determine the court of the first degree to which they submit any disputes that may arise regarding that agreement and its execution (Cass. decision 1884, No. 96). In all cases, except for cases involving real estate, the parties are allowed, by mutual agreement, to choose a District Court other than the one to which the case would be subject in the general order (Article 228). Provided by 227 art. Est. Gr. Court. The right, at the very conclusion of the contract, to determine the court of the 1st degree, where the parties, by mutual agreement, intend to resolve disputes under the contract, is limited by jurisdiction by the type of cases (for example, Article 228 on real estate) and the gradualness of the courts. This rule is established by the new statute of the court. On the basis of it, it is impossible to submit to the courts operating in the area of ​​the old order disputes that, according to their existing jurisdiction, are not subject to their consideration; but it does not prevent persons concluding an agreement outside the locality subject to the new charter from submitting their disputes, within the limits of Article 227, to the resolution of new courts. Cass. decide 1870, N 507; 1875, N 781. Insurance of goods prohibited for export or import, or secretly imported. U. T. 547. Transactions involving the production of trades in someone else's name and without payment of duties. T. V, ed. 1893, Const. oh right. tax., art. 336. Transfer and sale of bread received on loan from reserve stores from one family to another or to persons of a different class. Est. Prod. ed. 1892, art. 67, 132. Strikes and deals between traders and industrialists to raise or lower prices for food items in order to restrict the free import of them. U. Prodov. ed. 1892, art. 121, 138. Cash payments between medical officials and suppliers of supplies to the institutions where they serve. U. Doctor. ed. 1892, art. 90. Transactions on the transfer of contaminated items. U. Doctor. ed. 1892, art. 736. Obligations on the part of persons entering clergy and ministerial positions regarding the issuance of a portion of income or maintenance allowances to their predecessors or their families. Est. General Ghost ed. 1892, art. 534. In general, deals on the rental of places of clergy and clergy. Mn. State Sov. May 22, 1867. Wed. Cass. decide 1870, N 1701. Transactions on the transfer of landowners' estates in the Western Region to persons of Polish origin. Zach. Citizen Art. 698, approx. 2. Transactions by sworn attorneys to acquire the rights of their clients in litigation. Institution Court. Est. 400. Transactions of trustees and curators to purchase claims of other lenders participating in the mass. Est. Court. Bargain. 530. Records of the assignment, sale and encumbrance of pending inheritances. 710 art. Zach. Citizen Sat. Sep. decide I, 598. Transactions on the acquisition of pledged items by the owners of the loan office, at least by agreement with the borrower. Zach. Citizen Art. 1663, approx. 1, adj., art. 13. You can cite cassation decisions on the invalidity of transactions: On assignment of expected inheritance. – 1872, N 1096. The conditions of employment, in which the contractor placed punitive regulations in place of existing laws, namely a special fine from the worker for insulting the owner and for theft. – 1871, N 671. On assistance in arranging a marriage for an agreed fee. – 1867, N 70. On the transfer to the maintenance of the bridge with the right to collect, not permitted by the established procedure. – 1874, N 627. Conditions in which one party imposes on the other a restriction on a right that it has no right to restrict, namely the right to trade in an entire area, in a village. – 1868, N 86. Conditions of sale with the right to issue this instead of a deed of sale. Sep. decide in J. M. Yu. 1859, October, No. 5; 1861, N 9; 1862, N 9. A transaction between two persons regarding bidding for the estate of a third party, in such a sense that when one gives a price for the estate, the other does not have the right to raise it, under fear of penalty, was declared invalid by the court in the Kingdom of Poland on the basis of Art. 1133. Floor Code, as contrary to good rights and concluded to the detriment of a third party. Cass. decide 1878, N 62. Recognizing the transaction under Art. 1529 Zak. Citizen concluded for the purpose of transferring property in order to avoid paying debts, the court is obliged to first establish the debtor’s insolvency to pay and the absence of other property on which creditors could foreclose. Cass. decide 1877, N 264. Wed. Cass. decide 1881, N 24. The question of directing the contract to an illegal purpose relates to the merits of the case, and the court’s reasoning on this subject is not subject to cassation verification (Cass. decision 1877, No. 38). In this case, the contract was destroyed because it was withdrawn from a strike between the parties, to hide property from the claim of a third party. Providing a daughter with an obligation to her future husband that the father undertakes to provide for the future family life of the spouses for a certain amount is completely legal and does not fit the prohibitions of Article 1529. 2 Sat. Sep. decide V, N 1186. In the decision under N 1157, the receipt given by the groom to the bride to receive 2400 rubles from her was recognized as valid. on the occasion of marriage, with the understanding that if the marriage does not take place, the money must be returned. This is neither a bargaining, nor a penalty, nor a loan, but the issuance of money for a certain use, beyond which it must be returned. The inclusion by the contractor of a punitive decree in the terms of employment in lieu of existing laws constitutes the appropriation of a right prohibited by law and should not be valid (Cass. decision 1871, No. 671; 1876, No. 342; 1878, No. 73). On this basis, the court destroyed the provision on fines for workers for absenteeism and drunkenness and disobedience or insult. Our law makes no mention at all of the absence of purpose or motive, but 1) he allows a dispute about lack of money, and for lack of money destroys the loan (Article 2014); 2) if it turns out that the motivating reason set forth in the contract does not exist and that the contract would not have been concluded if the obligated party, at the time of its conclusion, knew about the absence of an obligatory reason, then in our case the court in fairness will have to release the defendant from liability, although there is no general rule in mind for this. It will depend on the circumstances. Eg. in the above case (about a will), it is clear that the obligation arises not directly from the contract, but from the will. Whenever there was no will (for 200 heads of livestock), there would be no obligation for 2000 rubles; the obligation under the contract appears only as a replacement (renewal) of the obligation under the will. Consequently, when the will is invalid, the obligation disappears. In this case, a reversal of what was paid under the obligation is also possible. § 8. The meaning of form in a contract. – Roman stipulation and rules of foreign legislation. – Historical significance of the form in Russian legislation. – Rules on the execution of acts. – Lack of leadership. – Fluctuations in judicial practice and its tendency towards formalism. – The meaning of appearance in acts of agreement. – Household acts. – Verbal agreements. – Is it possible to prove them with witnesses? – Stamp duty. The basis of the contract is the agreement of the will of the parties. It would seem that this is enough and that for the binding effect of the contract it is only necessary to certify the agreement and the essence of the will with sufficient evidence, according to the nature of the subject. In this sense, every external manifestation of will, every sign of a completed agreement, i.e. every external form of an agreement (in the broad sense of the word) is intended to serve as evidence of the agreement. These are: a solemn word of promise, a symbolic action, a letter, the participation of witnesses, a notary, and a court. But with the development of positive legislation, this basic, original meaning of the form changes. Some of the usual signs of agreement turn out to be insufficient and vague; with the increasing complexity of transactions and legal relations, it is necessary to give greater certainty to their external expression; The fiscal interests of the state are connected with the use of one form or another. Then the form or external sign is no longer just an instrument of evidence; it serves not only for identification (ad probationem). The form becomes an essential condition for the validity of the contract, so that an agreement in which this form is not observed is deprived of binding force, and only the legal form can serve as proof of it. Roman contract law was strictly formal. For the validity of a contract before the law, it was necessary to conclude it in the prescribed form, the so-called stipulation (stipulatio), which consisted in the proposal on the one hand of a definitive question and in the answer to this question on the other hand. Agreement alone did not constitute an obligation (solus consensus non obligat). Only as an exception, an informal promise was given force when it was accompanied by the receipt of payment or performance on the other side, and for some types of transaction (emtio venditio, locatio conductio, societas, mandatum) the possibility of a simple agreement (nudum pactum, nudus consensus) was allowed. On the contrary, in the new European law, according to custom, the concept has been established that for any contract an agreement is sufficient and that all its forms, even written ones, serve only as evidence of the agreement. So, what was an exception in Roman law - nudum pactum - became the general rule, but for some contracts and acts, due to their special importance, a strict legal form was developed. This concept remains, in essence, the basic concept to which the latest legislation generally applies; but in individual legislations of one side or another it is applied unequally and inconsistently. Some are inclined towards the system of informal agreement, leaving it entirely to the will of the parties to put it in one form or another that serves as its confirmation, others are distinguished by the strictness of the mandatory formalities established for contracts of their kind. Thus, French law seems to adhere to the rule that agreement is sufficient for the validity of a contract, and applies a solemn strict form to certain types of contracts (donation, hypotheque, adoption, mariage). But at the same time, French law absolutely requires a written form for all transactions worth more than 150 francs, and does not allow such transactions to be proven in court through witnesses (Code civ. 1315, 1341, 1326), unless there are some facts in writing - commencement de preuve par écrit - that can be explained through witnesses. Not limited to this formality, French law establishes others, more or less burdensome. So, for example he demands that mutual agreements must be drawn up in as many copies as there are parties involved (Code civ. 1325); requires that a unilateral debt household deed, not written in one’s own hand, contains, in addition to the signature, a special inscription from the debtor that he confirms the deed (bon, ou approuvé. Code civ. 1326). Prussian law requires writing for all transactions over 50 thalers. On the contrary, Austrian law allows complete freedom of informal transactions, with the exception of some that require, by their nature (for example, real estate) a formal or written and notarial form. And in our law there is, although categorically unspoken, a rule that some contracts and transactions require unconditional compliance with the written, or special, form assigned to them. But when applied to special cases, this rule still arouses a lot of bewilderment among us. Our law, in its fundamental principles, is not distinguished by its desire for formalism, and its current formalities, insufficiently explained both in law and in practice, were taken mostly from the outside, from foreign institutions, and, moreover, taken fragmentarily, at different times, sometimes without consideration of the general principles of the legislation from which they were taken. That is why our formalities of acts still represent a rather motley and tangled network. The basis of the current legislation on this subject dates back to the era of Peter the Great's reforms. Then the main purpose of establishing formalities in the writing and execution of acts was, on the one hand, the government’s intention to prevent the preparation of sneaky and deceptive acts, and on the other hand, to increase revenues of the state treasury. The first goal was not achieved, and the last one – i.e. fiscal interest - received predominant importance in the 18th century, so that violation of formalities, coupled with any damage to government revenues, could be a reason for declaring the act invalid. The new rules of civil procedure, introduced in our country in the 18th century, based on the models of the then foreign statutes, reflected the prevailing theory of formal evidence at that time. Hence, in our judicial practice, in exclusively written proceedings, a tendency toward formalism in the discussion of contracts and the rights arising from them has spread. In the present century, our legislation, especially since the publication of the Code of Laws, has developed primarily under the influence of the Napoleonic Code and French views, which were adopted for the most part also fragmentarily, without a holistic consideration of the general spirit and content of the entire system and history of laws. In this way, some rules entered into our law, which further contributed to the development of formalism. Our law nowhere expresses a categorical rule (like the French or Prussian) that verbal transactions, beyond the prescribed amount or in special cases, are not allowed or do not have the right to trial. On the contrary, in 571 Art. Zach. Citizen it is said that the procedure for concluding verbal contracts consists of the full will of the contracting parties, as long as they are established on unforced arbitrariness and mutual consent and do not contain anything contrary to the laws. From this we can conclude that the law considers the mutual agreement of the parties (consensus facit obiligationem) to be the main basis and consolidation of the contract. But from other articles we can draw the conclusion that our law assigns the full force of evidence only to written contracts, and allows verbal contracts, as an exception, only in some cases. So in chapter 1. section Book IV, on the preparation and execution of contracts in general, the law establishes the following categories of forms of contracts: serfdom, personal appearance, notarial and domestic, and in domestic ones it distinguishes between written and verbal contracts (Article 1531). At home, they are drawn up in writing or verbally: agreements on deposits for the sale of real estate, on the sale of movable property, on the exchange of movable property, on the collection of goods from a store, on luggage, on a power of attorney for filing a petition (Civil Law 1380, 1510 et seq., 1685, 2045, 2104, 2321). These same cases include: verbal powers of attorney for assault on behalf of an illiterate person in the courts of the previous order (Law. Court. Civil., Art. 42); contract for the lease of movable property, e.g. livestock, carts, etc. (Law. Civil. 1700); on the rental of urban buildings and urban land plots (Article 1702); on the hiring of servants and workers (Civil Law 2226); about hiring in rural work (with two witnesses) Cross. Institution 31, adj. 2, § 3; according to the 1886 regulation on hiring for rural work, verbal contracts are not subject to any formalities, and written ones can be submitted for certification of signatures to the police or volost boards and for inclusion in the books of transactions and contracts available in the latter; in addition, it is provided to those wishing to enter into contracts using special contract and settlement sheets (Articles 12–20; 69); on the hiring of workers in factories, factories and manufactories (Const. Industry, Art. 86 et seq.); on the assignment of work to guilds and artisans (Constitution of Industry, Art. 424). For the following transactions, a verbal agreement with a note in the book of an estate institution is allowed: on the acceptance of a student (Constitution of Industry, Art. 417 et seq.); Peasant transactions up to 300 rubles are recorded in the book of the volost government. (General Cross. Pol. 91, Cross. Institution 31, appendix 2, § 3); on the lease of land by peasants for a certain period and for a certain amount (Law Civil Code, Art. 1700). Further, in relation to the execution and drawing up of contracts, the laws distinguish: firstly, contracts concluded under serfdom - mortgages on real estate (Articles 1642, 1643); secondly, appearing in serf affairs: on the sale of real estate (1683), on a loan with the pledge of real estate (1667, 1668), serf loan letters (2033, 2034), letters of trust (2308 et seq.), separate records (Civil Law, art. 708, appendix I, art. 18); thirdly, those that appear in brokerage affairs: on the rental of real estate, on contracts, on personal hiring and house loan letters (1701, note, 1742, note 1, 2224, note, 2036, note). Where a notarial provision has been introduced, the procedure for observing the said formalities changes accordingly. See Notary. Floor. and Time Right 1867 in Complete. Collection Zach. N 45135. For certain categories of articles related to one or another type of agreement, the law determines in what form the agreement should be drawn up. Thus, for the sale, a sales record and a house deposit receipt are indicated (1680, 1686); for hiring, for contracting - an act of appearance (1701, 1742); for a loan - personal or home (2031), etc. A written act is required as evidence in the contract for the employment of a clerk - Const. Bargain. 8, 36, in the contract of bodmery, insurance, promissory notes - Const. Court. Bargain. 284; It is mandatory to conclude a written contract for the hiring of a shipbuilder - 220, 256 of the Constitution. Bargain.; Lay down Order. 1213; on hiring a pilot for the entire journey - Ord. Bargain. 315, 316; on the rental of fair premises - Const. Bargain. 602, note; pay slip, pay book - form of contract for the employment of servants and workers - Const. Bargain. 261, Const. Industry, Art. 92; the same notebook for ship workers - Ord. Put. Message 317 to Cont. 1893; a broker's note is made by a note in the broker's book - Const. Bargain. 636, 592, adj. I, art. 97. Sometimes the law requires that an agreement be written in several forms. These are the conditions for hiring a shipbuilder - Const. Bargain. 225; ship's servant and waterman - 260; on hiring a ship for cargo – 333; bill of exchange – Const. Bill of exchange, art. 3. In other cases, it is indicated, in more or less detail, what should be placed or what items should be mentioned in the act (for example, 1686 Civil Code); but what force these decrees have, unconditional or relative, and whether their violation takes away any binding force from the contract or only weakens its effect - this is determined positively by our law only in rare cases. Hence, during disputes, frequent confusion arises. These perplexities were resolved partly, in the previous procedure, by dividing penalties into indisputable and controversial, carried out by the police or the court (Law. Court. Civil., Art. 1, 2, 12, 571). Only legally committed obligations were recognized as indisputable; therefore, when, upon submitting the act to the police, it turned out to not completely agree with the formalities specified in the law, the police had reason to refuse to accept it for proceedings, and then it was necessary to search the court for that act. In the new procedure, this distinction no longer exists, and the court will in all cases have to accept the act for its consideration. The new judicial statutes have given us a new and improved tool for applying the law to controversial civil cases, i.e. verbal court, which existed until then only in name and not in reality, and significantly expanded the power of the judge in discussing and evaluating evidence. But in the application of new statutes, judicial practice shows no less, if not more than before, a desire for formalism on issues of the form of contracts and civil transactions, and this direction is all the more noticeable because in the new courts, after the peasant reform, a significant number of such transactions between persons of the tax-paying class and illiterate people are discussed, which in the past did not reach judicial consideration at all. This tendency towards formalism is explained, firstly, by the relative youth and uncertainty of our judicial practice, as well as by the natural distrust of the highest court in the powers of new judicial figures, especially justices of the peace; secondly, the weakness or lack of leadership in our civil law; thirdly, by some decisions of the judicial statute itself (for example, Articles 409 and 410), which restrict the freedom of the judge in discussing evidence. In this tendency to attach decisive importance to the formalities of appearance and execution of contracts, our courts were initially confirmed by the practice of Cass. Dep. Senate (at least at first, for recently the views of the Senate itself on this subject have expanded significantly). It is hardly necessary to recognize such an inclination towards formalism as being consistent with the spirit of our legislation, which nowhere expresses a general rule about the unconditional meaning of form, and only in some cases, establishing a special strict form for an act, undoubtedly connects it with the validity of the whole contract in achieving its main goal. Moreover, the new statute of civil proceedings provides the judge with more freedom than before in discussing written evidence, providing all kinds of papers for discussion (Articles 438, 456). Domestic acts recognized as authentic are to be accepted in equal force with acts in good order completed or witnessed; an act not recognized as a serf or a personal act retains the force of a domestic one; the determination of the force and advantage of domestic and other informal acts is left to the court (arts. 458–460). So, in the absence of a general guiding rule in the law, one sure way to correctly resolve perplexities is to determine, in each case, the legal meaning of this or that formality and its relationship to the content and purpose of the contract and to the essence of the requirement arising from it. It is obvious that not all formalities have the same meaning in the law and that in each act it is necessary to distinguish the legal relationship determined by it, in accordance with the goals of the parties, from those events that are certified by the content of the act and can have, regardless of its validity and feasibility in its main purpose, an indisputable legal significance for the parties. So, for example the special right to pledge as security for a debt is asserted exclusively in the form of a mortgage, and where this form is not observed, the right to pledge is invalid; but this does not in any way destroy the right to personally collect debt on a loan approved in the same document. The form of the serfdom deed, established for some contracts, has unconditional significance. The same cannot be said about the formality of the appearance of the act in serfs or notarial affairs. In other cases, when by purpose and intention or by direct expression of the law this appearance is mandatory, the validity of the contractual relationship to which, by its purpose, the act corresponds between the very parties by whom the act was drawn up, depends on compliance with this formality. But in general, the appearance of the act is only of relative importance. If the authenticity of the will expressed in the contract by the obligee is undoubted, there is no direct legal basis to relieve this person of responsibility simply because the contract itself was not revealed where it should have been when it was drawn up: there is, apparently, no need to certify what is in itself legally reliable (i.e., agreement of the parties in a certain sense, consensus). The absence of a certificate can have decisive formal effect only where the law requires it decisively, due to special state considerations. But regardless of these special considerations, the appearance of the contract, as evidence of the agreement at the very time it took place, acquires legal significance when, during the execution of the contract, it turns out that this execution is connected with the rights of third parties who did not participate in the agreement. With regard to these persons, the authenticity of the agreement of the parties at the time when it took place may turn out to be unreliable without official certification. Thus, in the event of the insolvency of the debtor, when his property essentially becomes the property of all creditors collectively, his obligations not revealed in a timely manner give way to those revealed, which have the advantage of such reliability (otherwise, every debtor could, by agreement with unscrupulous persons, issue them new obligations at any time and, by putting them in competition with legitimate and reliable creditors, reduce the funds of the masses to the detriment of these latter). Wed. Art. 2039 Zach. Citizen It is in this sense that the Ort. Gr. Court. in the chapter on judicial evidence (Art. 459) decides that acts committed or revealed in an established manner take precedence over acts at home and other written evidence; but the latter can be accepted in respect to the extent that they do not positively contradict the former or serve to complement them. This rule obviously relates to the conflict of rights under revealed rights with rights under domestic acts. A very important and still controversial question in our judicial practice is the question of in what cases verbal contracts are allowed by law and to what extent it is possible to prove the existence of such contracts in court through witnesses without acts and written evidence. Above were the provisions of our law on verbal contracts with a general clause stating that the procedure for concluding them is in the full will of the contracting parties. The general, apparently, meaning of this 571st article. is somewhat modified by a note to it, in which it is said, “which specific agreements cannot be drawn up except in writing, this is indicated in Book IV of this code, for each type of them in particular.” At the same time, in 573 Art. It was said: under the action of previous courts, that verbal contracts and obligations, in case of a dispute, are dealt with by police stations and verbal courts; but even there, apparently, there was no justice for such agreements, which the law ordered to be concluded only in writing. Thus, regarding the verbal hiring of servants and workers using only their passports, it is indicated that in a dispute over such hiring, requests are not accepted either by the police or in the verbal court, if the verbal hiring took place where there is a broker (Article 2226, note). A rule of this kind was in accordance with the procedure for written legal proceedings that existed in our country, by virtue of which it was necessary, when submitting the initial petition to the court, to present evidence regarding the claim, and without this, the petition was not accepted. But, besides written legal proceedings, there were no other courts, because verbal courts existed only on paper. In reality, the verbal court was only a commercial court; but even in a commercial court, evidence through witnesses was limited by rules 284 and 285 of the Constitution. Court. Bargaining, by virtue of which witnesses are not allowed under such contracts, which by law must be concluded in writing. Two cases are excluded from this: when the document, due to circumstances, could not be drawn up, for example. in luggage during fires, floods, etc., and when a written obligation is accidentally lost, but its existence and content can be reliably proven. Thus, the courts of general order remained closed to a great many lawsuits based on the most common form of transaction among the people - a verbal transaction. This was an important flaw of the court. By restricting the freedom of evidence in court, the law, no doubt, had in mind - on the one hand, to eliminate from the court such processes that, due to the ambiguity and complexity of verbal evidence, would impede the administration of justice, on the other hand, to encourage contracting parties to conclude transactions in writing. But this last impulse did not achieve its goal among the mass of illiterate people, to which the vast majority of the population belonged. The above-mentioned disadvantage became extremely noticeable after the abolition of serfdom, when all people who had hitherto been outside the sphere of free civil relations became full-fledged persons in their property and in industry. When issuing new judicial statutes, it was intended to correct this shortcoming. Verbal court is established everywhere. With the weakening of the old theory of formal evidence, the judge is given more freedom in discussing arguments and evidence and in deciding the case. To resolve cases on the spot that are less significant in amount, magistrates' courts have been established, which are empowered to determine the value and strength of evidence through a verbal analysis based on the conviction of conscience. It would seem that these courts among the masses of the illiterate population would provide a way to resolve daily disputes arising from verbal transactions. But this expectation was not justified or not fully justified. In Const. Gr. Court. for general judicial places, article (409) was placed with the following content: witness testimony can be recognized as evidence only of those events for which written certification is not required by law. Only three cases are excluded from this rule: necessary luggage during a disaster, loss of a deed during a disaster, and proof of prescription of possession. The effect of this rule by the practice of the Cassation Senate was extended to magistrates' courts, and to all judicial cases in general the Senate began to apply this rule with such severity, which, in the opinion of many, almost went beyond the limits of the law in its true sense. The law speaks in the first half of the article about events requiring written satisfaction. This is interpreted in the sense that the existence and terms of a transaction, which, by its nature, the law requires to be concluded in writing, cannot be proven by witnesses. And what kind of transactions, by type, are prescribed to be concluded in writing - our civil law does not provide firm grounds for resolving this issue. In the absence of a general rule about this, practice often attaches mandatory significance for certain types of contractual relations to articles that determine for each the form of the transaction, i.e. what should be its written form? To conclude from here in all such cases that the verbal form is not allowed is hardly valid without a direct and positive indication. In this sense, our law would be even stricter than the most formal of legislation - French, for in our law there is neither the French leniency for matters of little value, nor the French rule about commencement de preuve pas ècrit. Such severity would not at all correspond to the internal economy of our life, which presents incomparably more difficulties than in France in drawing up written acts everywhere. In some places, these difficulties reach the point of positive impossibility. The deed of agreement must be paid with stamp duty; but failure to comply with this rule does not deprive the act of binding force and only entails the collection of a fine (Ust. Gr. Court. 461, 462. T. V, ed. 1893, Ust. Coat of Arms. Sat.). For the validity of a contract, it is generally not required that it necessarily fit one of the types or categories specified in the law. Legal forms, obviously, do not exhaust the entire content of contractual relations in the economic sphere: it expands as economic relations become more complex - new needs arise and, to satisfy them, new types of transactions arise. All conditions that are not contrary to the laws are allowed (Article 1530). There are agreements that do not correspond to their name or the form in which they are concluded. And this circumstance in itself does not violate their reality, as long as their actual content is not contrary to the law. Any contract can be recognized as valid if it is not prohibited by law. Therefore, for the validity of a contract it is not at all necessary that it can be subsumed under one of the categories of acts directly established by law, but it is only required that it does not represent anything illegal (Cass. decision 1875, No. 810). If in the terms of the transaction itself, the transaction subject to discussion by the court is classified as a certain legal category of obligations, the court has the right to establish a different qualification of the contract only in the case where the name does not correspond to the legal characteristics associated with it (Cass. decision 1874, No. 20). Special form of acts. To Cass. decide 1887, No. 137, it is explained that the agreements of the parties regarding the destruction of the contract and the will of the person deviating from the right expressed in the contract may, by virtue of Articles 1545 and 1547. Zach. Citizen be presented in the form of a notarial or household deed; but in these laws there is no precise indication that, apart from the given method of expression, the will of the parties could not be expressed by such an action, from which the intention or consent of the person who performed this action is undoubtedly seen to renounce the right belonging to him under the contract. In some cases, the expression of will can only be meaningful when using the method specified in the law under penalty of invalidity of the transaction; but this restriction applies only to the transfer or limitation of the right to real estate (828 Civil Code, corresponding to Article 87 Appendix I to Article 708, ed. 1887; 66 Notary Pol.). Apart from such cases, there is no reason to recognize an agreement as non-binding simply because it is not expressed through a special act or inscription on the contract, and in general contracts for their validity do not require a special form, unless it was once prescribed by law or the parties decided in the contract itself that, in order to serve as evidence, it must be written in a certain form (Policy on Notaries, Part 66; Temporary Notary Pr. 1867, Art. 21; Art. Court. 457, 458; Civil Court. Art. 571. There is no reason to admit that only such documents can serve as evidence of any obligatory relations that can be attributed to one of the genera listed in 1533–1535 Art. (ed. 1857). And informal transactions can have meaning when the law has not established one or another form for this case under penalty of nullity. On this basis, the court incorrectly rejected as evidence of debt a private letter from a brother to his sister about accepting bank notes for safekeeping (Cass. decision 1877, No. 281). Verbal transactions and their relation to written ones. Although the form of those agreements that the law classifies as formal or domestic contracts is established in writing, no law prohibits entering into verbal agreements, and if written evidence is presented in confirmation of the existence and content of verbal agreements, not disputed by the parties, then the defendant, aware of both the validity of the obligations assumed and the fact that they have not been fulfilled, cannot refuse to fulfill the correct demands of the plaintiff (Cass. decision. 1873, N 845). Where the law does not necessarily require written form, for the firmness of the contract, the consent of the parties, expressed not only in writing, but also verbally, as well as some positive or negative action, is sufficient. Thus, it is recognized that the participant in the ownership of the house, receiving his share of the payment for renting premises in the house for seven years, thereby expressed his consent to the terms of the lease (Cass. decision 1875, No. 352). In dec. 1868 N 708 Cass. The Senate reasons that a verbal contract is valid when both parties agree on its existence and the content of the terms; but when a dispute arises about the validity of a verbal contract and the meaning of its terms, and the law, by the nature of the contract, specifies the procedure for its drafting, then the court does not have the right to give the contract legal force and meaning. The decision is dark and inaccurate, because it is impossible to base the validity of a contract in court on the sole circumstance of whether there is a dispute or not about that very reality. While allowing the conclusion of all kinds of agreements on property and actions, the law establishes a written form of execution only for some of their types, which are indicated in Art. 1532–1535 (1857 ed.). Among these agreements, the giving of livestock for feeding is not mentioned (Cass. decision 1873, N 1577). Contents of acts not mentioned in Article 410. Est. Gr. Court., can be rebutted by testimony. Therefore, the Senate does not discredit the decision in which the court, on the basis of testimony, recognized that the issuance of subsequent promissory notes did not constitute a new loan, but only a replacement for previous receipts (Cass. decision 1876, No. 53). The case was about a verbal order to sell tobacco. The Senate reasons: there is no indication in the law that such an order, which does not constitute a trade commission agreement in the sense of Art. 1301. Est. Bargain. (43 Const. Court. Trade ed. 1893), i.e. the sale of goods by merchant order was put into writing (Cass. decision 1877, N 274). There is no written form for contracts for the delivery of food, apartments and clothing; so, their existence can be proven by witnesses (Cass. decision 1877, No. 23). If a written agreement exists, a verbal, at the same time concluded, agreement between the same persons regarding the execution of this agreement not in the sense as written has no force (2 Sat. Sen. Resolution I, No. 217). Language. There is no regulation that bills within Russia should be written exclusively in Russian, and 737 Zak. Citizen (Article 708, note 3, appendix Art. 3, according to the 1887 edition) and 738 Art. (lost force after the introduction of the Kingdom of Poland in the provinces. Notar. Regulations) Zak. Citizen Acts written in Polish, Finnish and Swedish do not lose their evidentiary value. Art. 97 Notar. Floor. refers only to notarial acts (Cass. decision 1874, N 301). 955 art. Vol. IX prohibits the use of the Hebrew language in public acts and in trade books, but not in domestic transactions between Jews. Meaning of the coin. Violation of Articles 1540 and 1541 (the latter was excluded in the 1887 edition), indicating that transactions should be written only on silver coins, and not on banknotes, does not in itself entail the recognition of the transaction itself as void (Cass. decision 1868, No. 740). External accessories. The fact that two of them, albeit of unequal properties, were written on the same sheet of paper between the same persons does not interfere with the validity of the acts (Cass. decision 1873, No. 494). A debt receipt written in pencil cannot, therefore, only be excluded from judicial evidence (Cass. decision 1874, No. 391). When the issuer of the obligation does not deny its issuance, the external form of this obligation, unless it is the subject of a dispute, cannot have an impact on the resolution of the case (Cass. decision 1876, No. 266). Meaning of the name. The designation in the act of a person’s title, name and patronymic is necessary to determine his identity; an omission on this subject is unimportant if the court finds it possible to determine the identity of a person beyond doubt (Cass. decision 1878, No. 118). A domestic obligation cannot exist without the designation of the person to whom it was issued (Cass. decision 1867, No. 480). However, there is no reason to invalidate such an obligation, which, although without a name, clearly refers to a person who has to perform a certain action or enter into a certain relationship, if there is no dispute or doubt about this person (Cass. decision 1875, No. 565). In this case, the sister gave her brother, in case of delivery, a guarantee that whoever enters into an agreement with him and gives him 300 rubles in advance, she guarantees that the delivery will be correct. Another 1875, N 307. Without the identification of the person in whose name the obligation is written, it has no force at all, and it will be impossible to clearly determine from other documents to whom it was issued. Witnesses cannot verify this (Cass. decision 1871, No. 66 and 79). Signature. An unsigned act is not necessary, even if it was entirely written in the hand of the obliging person (Cass. decision 1871, No. 794). The application of a seal on the act of an illiterate does not replace the signature on the act (Cass. decision 1876, N 528). The binding nature of a contract depends (Article 1528) according to the law not solely on the signature, but on the mutual consent of the parties, and when this consent, regardless of the signature, is certified by the acceptance and the very action of the party, the contract must be recognized as binding. Thus, a lease agreement signed by one owner can be considered binding on the tenant who has taken possession, depending on the circumstances of the case (Cass. decision 1871, No. 126). A Jewish signature on acts is allowed with translation into Russian and with certification. IX, 956. Witnessing a Jewish signature on a deed is not necessary for household deeds (Cass. decision 1871, No. 216). The issue of informal contracting can have two meanings. Or: in general, without a formal agreement, no demand based on an agreement is allowed - this would be decidedly unfair, since the very existence of the agreement cannot be doubted. Or: it is not allowed to prove such accessories of the contract that require a positive definition, for example. regarding the size of the fee, the amount of interest, etc. It is hardly possible to accept this rule in an unconditional sense. If the existence of a contractual relationship is undoubted and there is positive and accurate evidence of its belonging, for example. written definition of the established fee, it would be unfair to deny the possibility of discussing such evidence. It all depends on the extent to which this evidence certifies the judge. Of course, where the law unconditionally and exclusively requires a formal contract, this rule is mandatory, but such a rule will be special. In one case (Cass. Dep. Senate 1867, No. 43), a clerk, serving without a formal contract, but by proxy, demanded an underpaid salary from the owner, 2500 rubles. per year. The owner did not recognize this amount of payment, but showed the lower one. The plaintiff did not provide any other evidence: his claim was rejected for lack of evidence. But the Senate also argues, hardly substantively, that the only procedure for a personal rental agreement protected by law is a formal agreement presented to the broker, and on this basis rejects the claim, citing Article 2226 of the Law. Citizen, and, moreover, generalizes the rule that applies exclusively to the hiring of servants, contrasting the appearance agreement with a verbal transaction, so that the article, in its literal meaning, does not eliminate the possibility of accepting and discussing written evidence. Moreover, this rule, set in view of the previous order of legal proceedings, is not applied in all severity to the order of verbal competition in new courts, and therefore in the edition. 1887 is highlighted in a note with the caveat that it applies where the Court of Const. not entered. Cass. Dep. The Senate has recently retreated significantly from its previous formal attitude towards these issues. Thus, in the decision of 1874, No. 713; 1875, No. 336, it is recognized that the absence of a written act of hiring does not eliminate the claim and liability under the contract, and where the very conclusion of the contract is not formally proven, a claim for remuneration for services or work may occur. Yes, decide. 1868, N 696, 809; 1869, N 515; 1875, N 351, 479 recognize that a written home condition, not denied by the parties, does not lose force because it is not attested. Turnout. Her attitude towards domestic acts and verbal transactions. In the previous order, it was recognized regarding acts of appearance (1857, Sat. Sen. decision 555), that failure to fulfill any of the conditions, the observance of which is necessary when witnessing the act, deprives it of legal binding force, and it is completely indifferent which of the conditions is not fulfilled. A domestic condition of sale, with the meaning of receiving money, presented for appearance, but not witnessed, and therefore not given legal force, does not in itself serve as evidence of a valid payment and the basis for a reverse claim for the return of money (2 Sat. Sen. decision II, No. 388). Based on Lit. Art. and additional constitutions, only those obligations that were declared in judicial acts within a year and six weeks were recognized as legal; and those not declared were considered insignificant. Wed. Sat. Sep. decide I, 563. In the Bulgakov case (Cass. decision. 1876, No. 484), on the issue of the formality of acts, the Senate discusses: Article 66 of the notarial regulations, which replaced the previous laws on the execution of acts, contains a general rule by virtue of which all acts can be carried out, at the discretion of the parties, in a domestic or notarial manner, except for acts on the transfer or limitation of the right of ownership of real estate. See also 1876 N 568. Only acts of transfer or limitation of property rights must always be performed before a notary; other acts can be committed at home (Cass. decision 1874, N 852; 1869, N 576). Both according to the previous judicial procedure (2 parts X vol., 749, corresponding to Article 432 of the Law Court. Civil edition of 1892), and according to the new statute of legal proceedings, household obligations, although written on plain paper, have valid force in court upon judicial review (Cass. decision 1868, No. 625). The importance of appearance formalities varies depending on the state of the debtor - whether he is solvent or insolvent. In the latter case, informal acts are subject to restrictions on the distribution of the competition, and this right of competition extends to such claims for which even court decisions were made that were not enforced before the opening of insolvency (Cass. decision 1875, No. 42). Certification and appearance of the endorsement on the loan deed are not required by law and are only relevant in case of insolvency (Cass. decision 1870, No. 177). Records of transactions and agreements in the book of the volost government under Article 91. General cross. floor. appearance acts have no meaning in the sense of Art. 728. Zach. Citizen (corresponding to Article 18 of Appendix I to Article 708, edition of 1887) (Cass. decision of 1874, N 624). By force 91st century. Floor. about the cross. verbal transactions are entered into the volost register; written conditions do not need to be included (Cass. decision 1876, N 338). The loan letter was destroyed because it was presented not by the debtor himself, but by the husband of the creditor, without a power of attorney from the debtor; he accepted it and handed it to his wife (Sb. Sen. decision I, 169). The owner, having given the estate for a period under a notarial deed, continued the lease beyond the term with a home inscription on the contract, and then, contrary to this inscription, leased the estate to another person by a notarial deed. The last tenant argued that in the event of a conflict of rights, his notarial act should have precedence. It is recognized that although 459 Art. Est. Gr. Court. gives preference to notarial acts, but this applies only to the case when the acts relate to the same legal action; but when they relate to actions that are different in time and in persons, then the preference of one act over another depends on the considerations of the court as a general rule (Cass. decision 1874, No. 124). Signature of an illiterate person on an appearance certificate. Medvedeva's loan letter of 1849 was signed, due to her illiteracy, by a third party and then presented to the notary. Contrary to Art. 882 Zach. Citizen (corresponding to Article 119, Appendix I to Article 708, ed. 1887) this signature, before being submitted to appear, had to be certified by the police. 4 Dep. The Senate found that although for this reason it is impossible to recognize the act as a loan letter, it should be recognized as a debt obligation without a doubt, because the witnesses confirmed under oath that they signed it at Medvedeva’s request, the notary confirmed the same, she herself did not dispute it and her sons confirmed it. But General Collection The Senate found that the lack of a police application constituted a significant deficiency; it is true that at the same time General. Collection was also included in the analysis of witness testimony and other data, and found them insufficient (2 Sat. Sen. decision V, No. 1235). Home acts from the illiterate. Regarding domestic acts, the law does not establish definitive formalities at all (a strict form is required only for some types, for example, for a safekeeping receipt, for a deposit receipt). In practice, there is confusion about signing for illiterate people. The law (919 Art. Zak. Civil.) says that the home deed must be signed by the giver himself; if he is illiterate, blind, or due to a serious illness he cannot sign himself, then by his spiritual father or another person in whom he trusts. A power of attorney (for assault), as can be seen from Article 2322, must be given to the attorney in person, and no special ritual for its appearance before a public office or official is specified. Articles 920–923 talk about various ways to authenticate domestic acts; Moreover, it is indicated that for the validity of some acts (obviously the largest number), one signature of the giver is sufficient, without any outside certification; This includes obligations given by competent persons, receipts and invoices, etc. Acts of the second type must also be certified by the signature of two witnesses. From a comparison of these articles, 921 and 922 with 2322, it follows that obligations given by illiterate people require outside witnessing, i.e. signatures of two witnesses certifying the authenticity of personal trust for assault. It is obvious, however, that such acts, even without such certification, do not become invalid when, upon presentation, they are confirmed in authenticity by the person who issued them. When this person does not recognize the deed or, after his death, the heirs do not believe the deed, the deed is rejected, and it is hardly possible to allow the plaintiff to prove its authenticity. But when there are witnesses to the act, there is a complete opportunity to determine its authenticity with those witnesses and other evidence. If instead of witnesses or in conjunction with them, certification of a signature is used (in essence, certification of personal trust in a signature), it should also be considered the fulfillment of a legal requirement. This certification can be made by the police, the township government, a broker, etc. (Cass. decision 1874, N 642, 855; 1876 N 223). Within the meaning of Article 882 (Article 11, Appendix I to Article 708, ed. 1887) and Article 919. to recognize a valid signature for an illiterate person, it is required that the signature itself contains an indication that it was made - at the request and desire of the person giving the act - by the one who signed. The police are not required to provide proof of trust: they only certify the authenticity of the signature of the person who made the assault (Cass. decision 1872, No. 446). Another decision of the same year, N 1224, recognized: the police, by certifying the authenticity of the signature, thereby certify that the act was signed by another at the request of the illiterate. However, failure to comply with the rules in the signature does not in itself discredit the act if it is not doubtful (Cass. decision 1867, N 290; 1870, N 230; 1872, N 80; 1874, N 598; 1876, N 419, etc.). In the Gnidina case, the obligation was issued on behalf of the peasant society by two of its attorneys, illiterate, and signed for them by a third party without certification; revealed in the volost government. 4 Dep. The Senate recognized this act as not having the force of judicial evidence; but General Collection The Senate confirmed the act in force, as recognized by the defendant (February 28, 1875). (See also Cass. decision 1876, N 553; 1877, 63 and 80.) One solution Cass. Dep. 1875, N 808 does not recognize as valid the condition signed for the illiterate by her son, with three witnesses immediately signing. The Senate finds that it disagrees with Art. 409 Set. Court. make up for such an essential element of a domestic act with testimony (see also 1869, No. 85). Hardly thorough. The law does not say that a certificate from a public authority is required; 921 art. Zach. Citizen mentions outside witnessing. Therefore, there is no legal basis for rejecting the testimony of strangers who were present at the signature, which gives the opportunity to resolve doubts about the authenticity of the act. In 1876, a similar issue was discussed in 2 General. Collection Sep. in the Butvilovskaya case, and it was decided that in relation to a loan deed signed by an illiterate stranger without proper certification, but with private witnesses, it should be allowed to interview witnesses to investigate the authenticity of the deed. In 1875 (N 564) the Senate did not recognize the signature of two volost judges on a receipt from an illiterate person as sufficient evidence that they were present when this receipt was given. Confirmation of a signature made for an illiterate person by the hand-applyer himself does not in itself give force to the act (Cass. decision 1875, N 907). To Cass. decide 1875, No. 977, it is explained that witnessing the signature of an illiterate person is required for each act specifically, and it cannot be replaced even by a general power of attorney from an illiterate person to put his hand to the acts for him. In 1886 (decision No. 80) on the question: if the person who issued the house deed could only sign his last name, then can he be considered illiterate in the sense of Art. 882? Zach. Citizen (corresponding to Article 119 of Appendix I to Article 708 of the Civil Code, edition of 1887), i.e. is it required to authenticate such a person under the act issued by him, as established by the above article in relation to the signature of illiterate people, Citizens. Cass. Dep. found that this question should be resolved negatively, since in the case where a domestic act, in accordance with the requirement of Art. 919. Zach. Citizen, signed by the giver himself, such is the signature of the giver of the act, within the meaning of Art. 921. of the same Laws, does not require any outside certification (in the same sense, see decisions of 1869 No. 65; 1879, No. 141, 151). Foreign acts. Acts of private individuals drawn up abroad are performed either according to the Russian rite, or according to the law of the place where they were committed. In the first case, they are approved with the seal and seal of the Russian authorities or Russian consuls, who, having entered the act into the book, must each time report to the Ministry of Foreign Affairs. The certification of Russian embassies and consulates must be certified by the Ministry of Foreign Affairs (Const. Consular Art. 2 and note 1; 12, 16 and note; 57 and 58; Establishment Gr. Court. 465). The Ministry of Foreign Affairs also certifies Russian government officials on acts to be sent abroad. The purpose of this is evidence of the authenticity of the certificate. It does not follow from this that transactions made abroad by an attorney are considered invalid simply because his power of attorney, undoubtedly genuine, does not contain such a certificate (Cass decision 1872, No. 657). In the village of Bistrom, a similar question arose about whether a power of attorney executed abroad at the Russian consulate is valid without certification of this certificate by the Ministry of Foreign Affairs. It is recognized that failure to comply with this formality is not significant when there is no doubt about the authenticity (decision 1 of the General Meeting of September 1878). A deed executed abroad on an immovable estate located in Russia, in order to obtain the power of a serf, must be presented in Russia within the prescribed period. Zach. Citizen 915. If an act is drawn up and executed in a foreign state according to local custom, it is nevertheless accepted as evidence in Russian courts if there is no doubt about its authenticity. Est. Court. Bargaining, art. 242. Const. Gr. Court. 464. At the same time, it is not at all required that when drawing up an act of this kind abroad, a formal certification must also be attached to it that it does not contradict foreign laws (Cass. decision 1868, No. 355). Penalty. The law does not prohibit making unauthorized entries at home (Cass. decision 1869, No. 416). Guarantee. The very inscription on the guarantee should serve as an accurate indication of its type and the responsibility of the guarantor (1557, 1562 art.). This rule is unconditional, and if the inscription does not have a clear meaning, it cannot be replaced by an interpretation of the obligation based on the general consideration of its content and the circumstances of the case (Cass. decision 1869, No. 990). According to its meaning, a formless subscription can also be considered a surety, when from its content it is clear that liability under it occurs when the principal debtor is solvent (Cass. decision 1877, No. 342). And without a direct guarantee inscription, an obligation can be recognized as a guarantee when its content corresponds to the legal characteristics of a guarantee (Cass. decision 1871, No. 1139); 635 Art. Est. Bargain. ed. 1857 (corresponding to Article 93 of the Constitution of the Bill of Exchange of 1893) does not necessarily require that the guarantee be indicated in the text of the bill itself; it is considered made “in the bill itself” when it is indicated under the text (Cass. decision 1875, N 149). Resale. A home deed, the essential accessories of which correspond to the sales record, is not considered invalid simply because it was written on plain paper and is not certified (Cass. decision 1876, No. 362). The rule on the appearance of sales records for certification of serf affairs lost its force with the publication of the notarial regulations (Cass. decision 1872, N 1040). The sale of real estate and the receipt of a deposit for it must be certified by written acts (Cass. Resolution 1878, No. 139). Debt deeds. The loan letter may not be presented, and this does not lose its force, but is only limited in action (Cass. decision 1868, No. 761). Samples of loan letters are attached to St. Zak. for example, and not necessarily (Cass. decision 1875, N 415). Samples of bills of exchange are certainly not required, as long as rule 541 of Art. Est. Bargain. ed. 1857 (Article 2 of the Establishment of the Bill) on the essential accessories of the bill (1875, No. 25). The loan agreement does not necessarily require the drawing up of a written act (Cass. decision 1870, N 1334; 1875, N 509). When the sale of movable property is made not for cash, but on credit, then the obligation arising from this must be put in writing (Cass. decision 1867, No. 400). The sale and collection of goods from a shop in petty trade are not among the events for which written certification is required by law (Cass. Dec. 1867, No. 510). There is no reason to classify an open or negotiable letter as a bill of exchange, with the consciousness of duty and obligation to pay it to such and such or his order (Cass. decision 1874, N 1886). Instead of bills of exchange, sometimes simple letters of transfer are used (for payment according to order); although they do not have a strict form like a bill, the decision of the Senate recognized that, in the event of non-payment of a letter of transfer, the person who issued the letter must immediately be notified of this: otherwise, due to the circumstances, he may be released from liability for non-payment (decided in J. M. Yu. 1863, No. 12). The mortgage of movables requires a formal written agreement and cannot be proven by witnesses (Cass. Dec. 1867, No. 212). In 1876 (Cass. No. 58 and 477), the Senate, explaining its previous decisions, confirms that collection under acts of mortgage of movables made without observing the prescribed formalities cannot be carried out in the manner established by law for collection under acts of mortgage, but such informal acts can serve as the basis for collecting a debt or for receiving back money and things (see. still 1874, N 139). A house receipt with a pledge of movable property, although not revealed, is a legal act of pledge (Cass. decision 1876, N 462). Mortgage law is associated with the form established by law for different types of mortgage of movable property. By complying with this form, the lender can exercise the legal right to the mortgage; but this right does not apply to domestic, informal, and deviating from the legal definition of a mortgage (Cass. decision 1868, No. 340). To Cass. decide 1876, No. 18, it is recognized that a verbal agreement on a mortgage, even without a direct act of mortgage, can be valid if the agreement of the parties on the mortgage is proven in court by recognition. Failure to indicate the price of things does not relieve the person who accepted the things from the obligation to pay their value in case of non-return, according to the rule on compensation for losses, and the value of things can be proven by witnesses. It should be noted that the case contained a receipt for the items being accepted. Article 1671, which prescribes the transfer of pledged things according to a special inventory, does not prohibit this inventory from being included in the obligation itself, when this is possible due to the type of thing that has special features that prevent its replacement with another thing. Therefore, when the subject of the mortgage is interest-bearing paper, the designation of its characteristics in the act replaces the inventory (Cass. decision 1875, No. 94). Bill. The bill does not require appearance, except in the case of an illiterate signature, which must be witnessed - otherwise the bill is not valid. 548 art. Est. Bargain. ed. 1857 (Article 8 of the Establishment of the Bill). – 2 Sat. Sep. decide III. 621. The form of the bill attached to Art. 540 Est. Bargain. ed. 1857 (Article 1 of the Establishment of the Bill), has only the value of a sample, and the validity of the bill does not depend on the exact observance of this form, but on the essential accessories specified in the law (Cass. Resolution 1877, No. 49). On the decisive importance of formalities in a bill of exchange for the protection of bill of exchange law, see 2 Sat. Sep. decide III, N 620. Rent. Failure by serfs to complete a lease contract in the case specified in Article 1703 does not deprive the contract of binding force for the parties themselves and their heirs, but can only be of significance for third parties, i.e. for creditors of the owner or future acquirers of the estate (Cass. decision 1872, No. 60). Failure to comply with the form in lease contracts on landowners' estates does not lead to the destruction of the transaction (Cass. decision 1872, N 1236). With the exception of city buildings and land in the city, all other real estate can be leased only under written agreements (1691, 1700, 1701, 1702). In addition, verbal lease of land by peasants from landowners is allowed for no more than three years (Cass. Resolution 1876, No. 357). An agreement on the rental of a city building was recognized as valid when it was expressed in the form of a journal of the company that rented the apartment, signed by the landlord (Cass. decision 1868, No. 481). When leasing church lands, a formal written agreement must be concluded (Cass. decision 1869, N 1323). Although the agreement with the volost government for the lease of peasant land was made only in the same volost government, but through this this agreement does not lose the force of a domestic act, which is completely binding on the parties. Failure to comply with the prescribed forms did not generally deprive contracts of binding force even before the publication of judicial statutes in 1864 (Cass. decision 1878, No. 45). A verbal agreement with the peasants on the lease of the wasteland could only be valid with a note in the book of the volost administration (Cass. decision 1870, N 1937). Personal hire. Although a personal rental agreement must be drawn up in writing, but since the law does not prescribe this on pain of invalidity of the agreement, its conclusion can be proven not only by an act signed by the parties, but also by all kinds of written evidence (Cass. decision 1875, No. 712). A personal rental agreement generally requires written form, only for some types an exception is made in Art. 2226 and 2227 (replaced in the 1887 edition by Art. 2201); and so the agreement between the principal and the attorney on remuneration for petitioning in cases requires written certification (Cass. decision 1878, No. 65). The personal employment agreement was recognized as valid on the basis of an invitation letter to serve at the factory with the rank of sugar maker and testimony that the invitee entered the factory and had relevant occupations there (Cass. decision 1875, No. 78). Moreover, the condition that is not rejected by the enemy, although not revealed by the broker, is valid (1868, No. 380). Supply. Although according to 1742 Art. The supply agreement must be written on stamped paper and presented, but it does not follow from this that an agreement of this kind is not binding on the parties simply because it was drawn up in a home manner and on plain paper: Art. 458 must be applied to this act. Est. Gr. Court. (Cass. decision 1867, N 225; 1876, N 158). Luggage The deposit agreement must be concluded in writing and cannot be proven by witnesses (Cass. decision 1874, No. 733). The form of the safe receipt is strict, and a simple letter cannot replace it (Cass. decision 1870, No. 307). According to D. Kikina, the decision of the Senate recognized that the informality of the safe receipt does not deprive the transferor of the right to prove the validity of the luggage by other legal means. In this case, the penalty was awarded based on the testimony of the witnesses who signed the receipt. J. M. Yu. 1866, N 2. Similar decision. Cass. Dep. 1873, No. 1024. In the decision (Cass.) 1875, No. 683, the Senate points out the difference in subjects related to the essence of the agreement and the order of its writing and appearance. Rules 2111 Art. on this last subject, relating to the determination of the reliability of the act and not containing the essence of the deposit agreement, they cannot constrain the court in assessing the strength and reliability of it. Therefore, the court was justified in recognizing as valid the safe receipt, which was not written in the hand of the receiver and without certification by a full number of witnesses, since despite all this, the authenticity of the act was not denied. Power of attorney. Failure to comply with Rule 2329 Art. Zach. Citizen, that every transfer of trust must be written on a special sheet, a rule established primarily in the interests of the treasury, does not have the consequence of declaring the transfer of trust invalid, under the force of Art. 461. Est. Gr. Court. (Cass. decision 1876, N 588). A power of attorney from illiterate persons for assault is recognized under Article 2322. valid if given to the attorney personally, i.e. not in writing, but verbally; when issuing obligations, it is sufficient if such a power of attorney is confirmed before a notary. There is no need to draw up a special power of attorney for assault (Cass. decision 1873, No. 426). There is no need to require proof of trust to submit a request, which is simply explained in assault under the request (Cass. decision 1871, N 1272). Assignment or commission transactions can be carried out at home (Cass. decision 1876, N 451). A partnership that does not belong to one of the types specified in Art. 2126–2138. Zach. Civil, can be proven by witnesses and informal documents (Cass. decision 1876, No. 60). In this case, the peasants set up a brick factory together. Chapter three. Complex and cumulative liabilities § 9. Complex and cumulative obligations. – Combination of several obligations in one agreement. – Interest clause. – Interest according to condition. – Slowdown percentages. – Interest is procedural. - Legal measure of interest. – Attribution of interest to capital. – Economic dispute about the measure of interest. – The concept of surplus. – Cancellation of legal restrictions and opposition to repeal. – Accounting for interest. – Current account interest. In a simple obligation, each party is assumed to be an integral unit and each claim is assumed to be integral and unique. But such simplicity is not always found. There may be a contract consisting of several obligations, requirements and relationships between many persons. This happens in two ways. Either one person combines, under one agreement, several obligations and demands, or the agreement combines several obligated persons who are in unequal obligatory relations with each other and with the demanding party. The combination of several obligations in one contract occurs in such a way that one of these obligations receives the meaning of the main, essential one, and the other consists of a necessary dependence on it, and, moreover, in such a way that the very volume of the dependent obligation is determined by the volume of the main one, and with the destruction of the main one, the dependent one disappears. Examples: surety, mortgage, penalty, etc. The most common of the additional obligations and the most common in civil life is the interest obligation. The idea of ​​interest is based on the difference between the value of the thing itself and the value of its use and enjoyment. The first constitutes the purchasing interest, the latter the hiring interest. The right of property is unconditional, and the concept of time does not have a necessary connection with it; but when we talk about use and enjoyment in particular, both presuppose an activity that continues over time, the activity of a person in relation to a thing, and therefore the value of use matters only in such a case when we imagine a certain period of time during which the activity is performed. Representatives of the value of both a thing and its use can be various objects, money, work, the use of another thing, etc. But some things, by their nature, require the establishment of a common constant measure to determine the value of their use. These are quantities, things whose legal significance lies not in the individuality of individuals, but in the number, measure or weight of the mass. It is to these quantities that the concept of percentages is applied, expressing the value of use (usurae). This is a known portion, a quantitative portion of the quantity consumed, which serves as a reward for consumption. The concept of interest applies to all so-called quantities of similar things (wine, oil, grain bread, etc.) and especially to money. This last application is the most commonly used and has acquired such importance that when speaking of interest, we usually mean interest on money. Interest is sometimes equated to fruit (fructus); but such a comparison is incorrect: fruits come from a thing by nature, and interest requires a legal basis. So, it is more correct to recognize that the demand for interest, as a dependent demand, is the fruit of another, main demand related to capital. What is the basis for, where does the demand for interest, the obligation to pay interest come from? It comes, firstly, from the free agreement of the parties - the creditor and the debtor. The agreement is made up of two parts, one of which relates to capital and constitutes the main obligation, and the other part consists in the fact that for the use of capital for a certain time, a certain share of the capital amount is awarded to the creditor, based on a hundred. Secondly, from the law connecting the obligation to pay interest with the action or inaction of a person. Thus, by the force of the law, an obligatory relation arises, or another, additional one, regarding interest, is connected to the main obligatory relation. This last rule has the following basis. With some development of civil life, money acquires a common and equal value for everyone, and the use of money for remuneration from interest becomes a custom for everyone to such an extent that the value of money in use becomes, as it were, market value, so that, having in mind the use or retention of money for a certain time, one can always determine with greater or less certainty what this use would cost. Let us assume that the thing was in use for some time by a person who did not have the right to do so, that through this use the right of another person was violated and that there is a legal reason for this person to demand compensation for use. It remains to be determined how great the material interest of this illegal use is. It is obvious that the resolution of this issue will depend in each case on random and local conditions, and the measure of remuneration for all cases cannot be the same. Hence the difficulty for the plaintiff: he must prove the amount of his lost interest. But the position of the offended plaintiff becomes incomparably more convenient when the thing for whose use he seeks compensation is money. The closest and surest means of satisfaction will be to calculate interest on the capital for the entire time it was in illegal use: the plaintiff, freeing himself from the obligation to prove the extent of his loss, can limit himself to demanding compensation for the use of the capital. It is assumed that money has the same value for everyone and the interest on it is known to everyone, i.e. what is usually paid for the use of money. In this case, the law can make a general assumption that a person who has been illegally deprived of the use of his money for a certain time has been deprived of the opportunity to put it into circulation for a certain percentage and assigns this percentage to him as a reward. But such a general assumption would be unfair when applied to quantities other than money. The circulation of these quantities from interest belongs to rare, exceptional phenomena, while the circulation of money from interest is an ordinary phenomenon. Interest by condition expresses a payment agreed in advance for the use of capital. Legal interest expresses remuneration for losses from improper use of capital. This entails the following consequences, which are also recognized by positive law. Along with conditional interest, one cannot demand legal interest for the same use of the same capital, unless in such a case when there is a delay in the return of capital and the legal interest is higher than agreed upon. The requirement of legal interest is incompatible with the agreed penalty, when the penalty is established as compensation for a loss. But legal interest does not serve as an unconditional exclusive measure of the loss incurred: they express only its average measure; in other cases, the amount of loss actually incurred may be higher than the legal amount of interest. (This is not allowed, however, with few exceptions, by French law - Code civ. 1153, Italian and Austrian.) - The flow of legal interest begins from a certain time, but has no definite, predetermined limit and stops at the moment of return of capital. With interest of this kind (except for a special agreement), neither the terms of payment nor the capitalization sometimes combined with arrears are incompatible. For them, therefore, there is no special limitation period; There is no special claim before the claim for capital. Other legislation (Prussian) recognizes that a special claim for them cannot be brought later, unless it was filed together with a claim for capital and if payment of capital is accepted with a receipt, without a clause on interest. The cases of application of the rules on legal interest, which are most often encountered, are as follows. The percentage of delay, when the amount that, according to the contract, must be paid within a certain period, is retained in the hands of the obligor even after the expiration of this period. From this time on, according to the rule of law, interest is due - interest is no longer under the contract; the contract could have stipulated that such and such interest is due for the use of capital before a certain period of time; but here the obligatory relation arises as a result of delay. Before this delay, the debtor is not obliged to pay the capital sum, but according to the contract is only obliged to pay interest for the use of it. The period has expired, and then, if the capital is retained by him without permission, he must pay interest due to delay, according to the force of the legal rule (on delay, see below § 17). And regardless of the delay, the obligation to pay interest may arise whenever, in favor of one person, another person, who has a certain legal relationship with him, uses his capital, which is subject to return from the property of the first person. So, for example, when an attorney, carrying out the business of his principal, is forced to use his capital for this business, this capital is subject to return, and the speed of return does not always depend on the will of the principal; but even if there was no delay on his part, he is obliged, along with the capital, to compensate for the value of its use, i.e. interest. This also includes interest imposed on the amount constituting the price of the claim or litigation for the entire time that the litigation continues, if this amount was in the hands or in debt of the person accused in the claim. Roman law distinguished between two types of procedural interest: some begin at the very beginning of litigation, with the beginning of litiscontestation, i.e. when the defendant received the plaintiff's demand. From this moment, the mutual relationship of the parties becomes mandatory: they are responsible to each other for the integrity of the property that constitutes the subject of the litigation, with all its increments, from the minute when the litigation arose. Therefore, the defendant (assuming him to be guilty of the claim) from the time the claim is brought against him, is responsible to the plaintiff for the value of the claim, cum omni causa, among other things, and with interest on the capital; sometimes his responsibility is also associated with delay, if, leaving the dispute, he evades satisfaction of the obligation. Other interest is calculated from the court decision, which, at a given moment, legally and materially, determines the relationship of the parties, and at the same time determines the subject and value of the execution. This value is considered to be indebted to the guilty party, whose delay begins with the expiration of the period set for the execution of the decision. This difference, however, is not repeated in the latest legislation, although everyone recognizes the flow of legal interest in litigation from the time the claim is filed (Austrian) or from the statement to the defendant (Prussian). The amount of interest is determined by the contract, the will of the testator, custom or market price, and finally - by law. The law, in determining this amount, usually assumes a twofold goal: 1) to establish the highest measure (maximum) of interest, to prevent oppressive, usurious demands, so that the demand for interest above this amount is considered illegal and invalid. It is recognized even more than that - a misdemeanor or a crime of excess, entailing a fine and criminal penalties. 2) The law also intends to determine the normal rate of interest in the case where, without an agreement, the recovery of capital that was in illegal possession is awarded, with interest for the duration of this possession. The definition of the highest rate of interest has now been retained in very few legislations. When it existed, exceptions were allowed, however, for some cases; for example, in trade transactions, in transactions involving special risk, interest was allowed above the legal limit. I inherit after my uncle in the acquired property and take possession of it. Subsequently, it turns out that my uncle left a will, by which he gave the estate to a third party. This person, presenting the will, demands that I return the estate to him. I am contesting the will and the matter is going to court. The estate included capital. If the will is approved, I will have to return the entire estate to the legal heir and at the same time I will be obliged to satisfy him with a percentage of the inherited capital that was in my hands. When it comes to a conscientious owner, the beginning of delay merges with the beginning of litiscontestation; when it comes to dishonesty, the basis for collecting interest is solely delay. For example, when a guardian unauthorizedly uses the capital of a minor for his own benefit, he is obliged to pay interest upon returning the capital from the minute the use of the capital began; from that moment his duty arose, from that moment his delay began. Interest under the agreement is due for the use of capital for a certain time, calculated periodically, in terms, and when the interest is agreed on terms (for example, for each year), then with the maturity of the term, the obligation to pay interest arises. Therefore, from this period, interest, if not paid, is considered to be the entire accrued amount in debt. – As a result, the claim for interest under a condition inseparable from the loan agreement is separated from the claim for capital and can be presented separately, i.e. before or after a claim for capital, and especially from the main claim is subject to limitation, so that in some legislations (for example, in Prussian, in French) for a claim for interest, special, shortened periods of limitation are established. From this it seems to be concluded that the payment of capital does not in itself lead to the presumption that interest has been paid, and a receipt for payment of the entire capital does not eliminate the presentation thereafter of a separate claim for interest. However, judgments on this issue are not the same. Prussian law, for example, stipulates that a capital receipt issued without a clause on interest eliminates the requirement of interest. In the current state of society, the condition of interest belongs to the most ordinary and most necessary transactions. All industrial enterprises are usually conducted with someone else's capital, on credit, and capital is entrusted from interest. Opposite phenomena occur where economic life passes through even lower stages of its development: this was the case everywhere during the time of natural economy, where the agricultural industry with forced labor predominated. In this state, a loan of money appears not as an ordinary instrument of industry, but as a special transaction caused by exceptional circumstances and extreme need. Given the scarcity of monetary capital, borrowing was made with extreme difficulties and was extremely expensive, because it was necessary to borrow from a few people who took advantage of the needs of others for their own personal profit and to oppress the needy. This is where the aversion to loans, with contempt and hatred for capitalist interest-bearers, comes from, which was noticed everywhere, in the first eras of civil life. Religious views were also in agreement with this feeling, since church teaching everywhere condemned the charging of interest. Jewish law prohibits the collection of interest unconditionally between Jews, allowing it only in relation to a foreigner of a different faith. A similar prohibition is found in the Koran. The first church fathers understood the gospel teaching in the same sense. Canon law condemned usury and threatened church punishments for it. In the Middle Ages, the church unconditionally prohibited interest agreements, and civil law strictly adhered to the same prohibition, from which, however, the Jews were excluded. But the complete elimination of the interest condition, incompatible with the need for credit, was impossible, and in practice the prohibition was circumvented with the help of other, fictitious and fictitious transactions, of which the most common was the land rent transaction; the land, while remaining in the possession of the debtor, was subject to annual rent in favor of the creditor, with the right to redeem the land and rent. Only from the 16th century, and then first in the lands of Protestant law, did statutes appear authorizing the agreement on interest, but with restrictions that remained until recently in new legislation, replacing the previous unconditional prohibition. The most important of these restrictions concerns the amount of interest, above which interest is considered excess, illegal and unnecessary. Legal restrictions on interest are condemned by the majority of both economists and lawyers, although recently this majority has spoken out not as unanimously as they did before, given the complete dominance of mercantile theory in political economy. They find that these restrictions have never achieved and are not achieving their goal, but only lead to a squeeze on credit and industry. Money is like a commodity, and its price in use is determined as the price of any commodity, by the relationship between supply and demand. Where there is a lot of free capital, the interest rate for using it decreases, and vice versa. Moreover, it depends on the creditor’s personal considerations about the reliability of the transaction, on the credit used by the debtor, on the urgency of the loan, etc. The interest increases as a risk premium when the creditor cannot reliably count on the debtor’s solvency, the convenience and speed of forced collection, etc. In this case, and under the influence of prohibitive laws, interest rates rise, and no laws on interest are able to prevent this rise, because a cautious creditor or usurer always has the opportunity to circumvent the law in various ways, for example. deducting interest in advance from capital, etc. All these opinions, widespread in literature and in science, about the invalidity of legal restrictions on the amount of interest, excited everywhere a long struggle between supporters of the previous laws on interest and their opponents. This struggle ended, however, almost everywhere with a change in the previous legislation, i.e. abolition of the legal interest rate. In France, after some hesitation, a rule was established in 1807 on the amount of interest not exceeding 5, and in commercial matters not exceeding 6, and according to the law of December 19, 1850, for violating this rule, persons involved in usury are subject to fines and imprisonment. The laws of 1807 and 1850 remain in force to this day in relation to civil transactions; but in relation to trade transactions they were abolished by law on January 12, 1886. In Austria, the interest agreement has been declared free since 1868. In Belgium and Italy, since 1865, restrictions on interest have been abolished, so that all interest conditions must be clearly and in writing indicated in the loan deed itself. In Prussia, the struggle of the parties over the issue of surplus was waged for a particularly long time and with irritation; finally, in 1867, a law was issued for the German Union abolishing the amount of interest on all loans, both secured by real estate and unsecured, and with the fact that if the increase is caught in excess of 6 per 100, the debtor can return the capital at any time, warning the creditor six months in advance (except for bearer and commercial obligations). The legal interest rate is withheld only for loans from public loan banks. In England, in 1833, a series of legislative measures began to gradually eliminate legal restrictions. These measures ended in 1854 with their complete abolition. These restrictions have now been lifted almost everywhere in Europe. Thus the teaching of economists, who advocated the freedom of the loan agreement, triumphed. But since the reform took place, it is impossible not to notice, both in science and in practice, a certain reaction against the prevailing opinion. It is true that in the past many representatives of science expressed this opinion with reservations. The founder of political economy himself, Adam Smith, did not deny the rationality of the prevailing concepts of his time about the state necessity of legal restrictions. Roscher (Syst. der Volkswirtschaft. I. § 194), generally rejecting these restrictions, nevertheless makes the following remark: “The complete abolition of the laws on interest was not justified in practice under all circumstances. In the lower layers of the borrowing operation, medieval relations persist for a long time, when they have long since disappeared in its higher spheres. Here loans are made mostly for productive purposes; there, on the contrary, it is almost always out of extreme need, and the borrowers, due to lack of education, often with complete illiteracy and inability to count, are not able to figure out and weigh what burden they are taking on. In such circumstances, the lending business becomes an industry generally considered to be dishonest; and when dishonor is combined in the general opinion with a providence that is essentially necessary, then only bad people take it up. There is almost no place left for proper competition, which could most successfully lower the price of interest; it is all the less possible to take advantage of it because the debtor for the most part wants to hide his loan in secret. This lack of competition can be alleviated by the establishment of loan banks from the government; But in general, the law can prohibit any conditions that make it difficult for the debtor to make a definitive calculation of the obligation he has assumed and timely repayment of the debt.” – Pay (Lehrbuch. II. § 323) insists even more decisively on the need to repeal at least not all regulations relating to loans for interest. Indeed, one cannot help but notice that in the general desire for the unconditional abolition of legal restrictions on the amount of interest, opinion is too carried away by the abstract principles of social economy and pays too little attention to the conditions of the environment in which the free action of these principles is assumed. The circulation of capital in society follows a well-known economic law, derived from phenomena in their historical study; but, whatever this law may be, no matter how indisputable it may seem in science, which is essentially dispassionate and abstract, legislative policy cannot forget about some vital interests and needs of society or certain classes of it, which must be protected according to the currently existing conditions of economic life. It would not be difficult for the legislator to assume the free operation of the economic law of monetary value if the material state of the money market were the same everywhere and the action of various factors of value would occur in all its departments and corners with the same sensitivity and speed. This is not what happens in reality, especially in Russia, given the extreme diversity of its everyday and economic features. Many and vast areas of our fatherland are and will continue to be for a long time in those conditions of economic life that Roscher calls medieval. In our open and extensive markets, where there is a strong demand for capital for industrial enterprises and there can be an active supply of them both from within and from abroad, one can assume the action of free competition, and the action on the value of a certain relationship between supply and demand, and the dominant power of credit in its correct development, and the predominant importance of borrowing as a means for productive purposes. But in total, how many more remote areas do we have, in which changes in the monetary value of the large market respond very poorly, where, despite the significant demand for capital, the supply is very meager and there can be no competition, so that the few who offer capital become its monopolists and the undisputed rulers of the monetary transaction. How many other relationships exist in all sorts of localities in which borrowing occurs on a trifle basis and solely to satisfy extreme needs and in the most extreme circumstances. These cases constitute precisely the mass of borrowed transactions and are among those in which the interests of the majority require primarily protection from the legislator. In most of these cases the transaction between the capitalist and the borrower is not and cannot be free. The extreme need of the borrower gives the capitalist such an advantage of will, which he certainly uses to his advantage, offering the borrower the most favorable conditions for himself and extremely burdensome conditions for him. This advantage of the will takes on the meaning of its complete dominance where, due to the poverty of the market and the weak circulation of capital on it, the lender is the only agent of supply, the only capitalist or, together with a few others like him, forms a strike to the general embarrassment of local borrowers. In this case, supply (in an abstract supply, free, similar to demand) becomes the craft of the usurer, and the interest for the use of capital rises naturally and exorbitantly, as a result of the abuse of power, and completely in those conditions that, according to the axiom of economic science, determine the normal amount of interest on the money market. This assumption would be valid if at the same time it could be assumed that the national property contains such a mass of capital that can at any time satisfy all those seeking money on a loan, without withdrawal. But it is obvious that the last assumption is purely abstract and completely untrue. With the abolition of the legal interest limit, supply competition will not increase at all, but the situation of borrowers will, without a doubt, be aggravated. The doctrinaires of science reject this burden; they do not believe in the validity of legal restrictions and point out the full possibility of violating this law with impunity. Hence the conclusion is drawn about the uselessness of such a law and even its harm, since it restricts the free circulation of capital. All these considerations refer to the law only in its material meaning and in connection with its sanction, i.e. with the possibility of ensuring its implementation and punishing it for violation. But at the same time, the importance of the mental and moral law is completely lost sight of, which in many cases, as in the present, has a predominant force. The mental effect of legal repression is undeniable when this repression coincides with a moral principle, as it has become established in the public consciousness. In this regard, it is impossible not to make a distinction between different types and purposes of loans. In the old days, when the monetary economy was an exceptional phenomenon, any collection of interest seemed immoral. Now, when, on the contrary, the money economy predominates, moral opinion is indifferent to such a loan transaction in which industrial purposes are meant on both sides, i.e. on the one hand, benefits are extracted from capital, as from a commodity, on the other hand, benefits are also expected to be extracted from it, as from an instrument of productivity. In this case, each party calculates only the measure of its benefit and the probability of risk associated with the fishery: this is generally a matter of calculation and free agreement. Capital is truly found in the value of a commodity on the market. But moral opinion is positively indignant against a loan transaction in which only one party has in mind its own benefit, the greatest and exclusive, with violence to the debtor, and the other party borrows not for profit, but for urgent needs. In such cases, the law almost goes beyond the limits of its recognition when it provides its protection and compulsory protection to the interest condition only up to a certain amount, and beyond this amount it declares the condition invalid. Such a law is important for the sole reason that it does not deviate from moral consciousness; but it also has practical significance. The measure, beyond which the interest condition is recognized as reprehensible, illegal and invalid, serves, if not directly, then indirectly, to curb pretentious impulses. If we remove this line altogether and put the law in an indifferent relation to the condition of growth, the claim of the lender will not find a limit in its own interest in an agreement with the need of the borrower, and the interest, instead of finding a normal measure, will begin to increase only as the claim on the one hand and as extreme as possible on the other. So, it is hardly prudent on the part of the legislator, anywhere, and especially here, to proceed at once to the unconditional abolition of the law on interest rates. It would be more prudent to leave this law in force at least for such loans, which, in their amount, correspond to the needs - not of large and medium-sized industry, but the needs of daily maintenance and small-scale industry. Without a doubt, such a law will not eliminate usury: but its complete elimination cannot be the goal of such a law; it is enough if the law serves to at least somewhat constrain him. The most severe and drastic manifestations of usury are committed outside the sphere in which the law operates and written acts are drawn up. It is known that usury is most common and strongest in rural life, where often the entire population, in the midst of extreme needs for basic needs, cannot do without a small loan, and to satisfy it must sometimes resort to the only capitalist in the entire area, on the most difficult conditions, which are observed strictly out of necessity, not out of fear of legal recovery, but because the faulty debtor would lose the credit from his lender altogether. Such an unnatural state, of course, can be changed not by the law of interest, but by a general change in the economic conditions of life. But, with the exception of all such cases, there still remains a great many small documentary loans in which, with the abolition of the legal measure of interest, the position of the borrower in front of the lender would worsen and the terms of the loan would become even more burdensome for the former. The dispute over interest, despite all legislative reforms, does not subside. Essentially this is a debate between two views. One is the beginning of economic freedom, striving to eliminate restrictions in economic relations, in the struggle of opposing interests: laisser passer, l. faire. The other is the beginning of a reasonable restriction, which in any case means the protection of the highest interests, united in the state and popular consciousness with the concept of law. In folk life, in society, there are weak and strong. Others judge this way: the weakness of some and the strength of others does not depend on state power, on the law. It depends on many economic conditions that the law cannot change or prevent. Why get involved in this struggle, which can only be balanced by the power of economic development? If the weak are exhausted in this struggle, the law can do nothing for them. And where the law is powerless, it is better not to put it there. Others argue differently. The law is an expression of the highest state principle, in the name of justice, establishing a balance of interests. He does not interfere in private relationships, but only as long as these relationships do not lead to the question of the right of one person to the actions of another and the obligation. Everything that is called law is confirmed and supported unconditionally by the law with the full force of state power. Thus, not being able to eliminate all violence and oppression, the law must, firstly, eliminate violence where it is exposed as violence that violates the law; secondly, do not give your sanction to such demands that, under the guise of law, hide violence and oppression. Proponents of the opposite opinion usually refer to the fact that the law is powerless to bring many phenomena of life into moderation and therefore it is better to leave them to free development. This situation, taken to an extreme, can go too far. Based on it, it is possible to allow an unlimited number of taverns, gambling houses, places of entertainment and debauchery and demand the abolition of all restrictions on industry of this kind and all penalties. Based on it, it is possible to prove complete impunity for many crimes and misdeeds: is the criminal guilty of growing up in the midst of immoral examples and motives, and can the law correct environmental conditions with restrictive measures and punishments? In the law, the moral significance of prohibition is incomparably more important than they think, for the law serves as an expression of public conscience and should not diverge from it. You never know who suffers from anyone in life and involuntarily bears oppression: they endure it as a bitter case, cursing only the oppressor and consoling themselves with the fact that if the government knew, if the law knew and could, this would not have happened. It is a completely different impression when oppression is carried out in the name of the law. The important thing is not that oppression is committed: what is important is that the oppressor does not dare to appear with his violence in the face of the law, that the commandment exposes him, that he becomes ashamed of his action and is forced to hide it. When applied to Russia, we can say with confidence that the abolition of restrictions on the legal rate of interest, even if it does not have harmful consequences on the large market where significant capital is circulated for industrial purposes, will in any case have a detrimental effect on the people’s life, i.e. in a mass of small transactions caused by the needs of the rural population. She will introduce into this environment not a creative, but a decomposing principle. Usury reigns here in the crudest, sometimes monstrous forms: the local Jewish usurer or rural kulak holds the power of an entire population here in an environment that is illiterate or semi-literate, in the midst of extreme poverty and complete economic underdevelopment of concepts. The instrument of his power is a small loan for terrible interest, the magnitude of which is sometimes not recognized by the borrowers themselves - a monopoly of capital where there is no capital, a verbal deal, a heavy pledge, and, finally, close supervision of debtors, with the seizure of their daily bread and daily movable property at the moment of collection. This power is de facto at the present moment; This state is illegal. It is scary to introduce legislation under the false banner of economic freedom. This freedom will remain only in the minds of legislators. Such a state does not contain elements of freedom; it is, on the contrary, economic slavery, and this imaginary freedom, introduced by the word of the law, will serve here only to legitimize slavery. A monstrous transaction, which did not dare to appear in the face of the law, will appear in the form of a legal right and will entail ruinous penalties, which will no longer be carried out by the autocratic hand of the oppressor, but in the name of law and government, therefore, all the murmurs about oppression will be turned to the law. One may ask: what will the legislator gain from this and what will be the benefit to the population, what satisfaction will there be to the truth from the fact that the legislation satisfies the abstract principle of the imaginary economic freedom proclaimed by a party known only to economic science? The repeal of interest laws wherever it followed aroused murmurs and complaints about the lack of protection of the mass of the poor population from the arbitrariness of moneylenders. In the German parliament, the question of the need for new restrictions is raised almost every year and arouses heated debates (the last time they took place at the meeting on November 26, 1878). Renchensperger's proposal to restore the legal measure of interest, rejected in 1879 by the Reichstag, led, however, to the establishment of a commission that developed a new law, which came into force on May 24, 1880. Without returning to the previous system of a certain measure of interest, the new law determines the interest - according to the circumstances of the case and the actual conditions of pressure exerted by the creditor on the debtor, in extreme need, by providing fate has wide freedom to determine in each case the terms of the surplus, for which a significant fine is imposed and in other cases the destruction of the transaction; and for the business of usury, criminal punishment is imposed. The effect of this law extended exclusively to monetary transactions, meaning only this type of interest (Creditwucher). Thus, various types of usury, especially rural, remained unprosecuted in various property transactions (Sachwucher). These are, for example. accounting transactions, i.e. purchase for a small price of an obligation to a third party, transactions for the lease of livestock, for the purchase of lands and the sale of them in small plots, for the acceptance of things in payment below their actual value; Thus, in rural life, a moneylender often, taking advantage of need or inexperience, delays accepting payment under various pretexts or does not tell the illiterate the real amount of the debt, attributing arbitrary interest. To prosecute all these types of usury a new law was required, which came into force in 1893 and extends to all bilateral obligations. The extent to which the misfortunes of usury in Austria increased after the abolition of the interest law can be seen from the curious book of Count Horinsky: Das Wucher in Oesterreich (Wien, 1877). In both halves of the Austrian Empire there were so many complaints and representations on this subject from local Landtags and various corporations that the governments of both halves were forced to prepare draft laws in 1876 to mitigate the evil and submit them for legislative discussion. 2. In connection with the limitations of the legal measure of interest, there are others related to the custom of lenders to take interest on capital in advance, deducting it when the loan is issued to the borrower. Such a deduction serves to greater or lesser damage to capital, and is therefore extremely constraining for the person obliged to pay the debt; in essence, the amount to be returned is significantly reduced. This makes an operation of this kind more than equal. Let's assume that the loan amount is 100 rubles. It is due 5%. Let's subtract them for the year. The actual amount of capital is reduced to 95 rubles. Subtract for five years, the amount decreases to 75 rubles. At the same time, we must not forget that the amount of money in each share has a use value. I borrow 100,000 rubles. at 6%, in total for the year - 6000. I borrowed on January 1, 1850. I pay interest for the use of capital, therefore, I should have paid it on January 1, 1851 for the fact that during the year I had a whole amount in my hands. But they deduct 6,000 rubles from me in advance; therefore, I am deprived of them from my capital and, moreover, I am deprived of all the value of using this amount, the value that would belong to me if even these 6,000 rubles. were at my disposal. Therefore, I lose 6,000 rubles. = 360 rubles, I lose, therefore, 6000 360 = 6360 rubles. If I pay % two years in advance, then the calculation becomes even more complicated. This gives rise to very complex calculations for accounting for interest on amounts paid in advance (disconto, interusurium); settlements that can take place whenever the due amount is paid by mutual agreement before the due date. In this case, the one who receives payment ahead of time enjoys some benefit that should be credited to him. This benefit consists of the opportunity to use the amount during the entire interval between the minute of payment and the previously due payment deadline. This is also the basis for the deduction of interest when discounting bills. In general, to prevent interest, the deduction of interest in advance is limited. Thus, the former Prussian law allowed such a deduction only for a year in advance, and then when the interest was below the legal limit; Austrian law - six months. 3. According to the condition of interest, they are usually paid annually for the use of capital leased for several years; if for any year it is not paid, then the interest of that year remains in debt to the borrower. Accumulating in this way for many years, the interest can increase to such a sum that, perhaps, exceeds the capital itself. Here, some legislation sets a limit on the calculation of %, following the example of the Roman, in which the amount of % should not in any way exceed capital. This rule was followed later, generally on the basis that an additional obligation should not exceed the main, essential one. The effect of this rule was eliminated only in the case where the reason for the accumulation of interest was the debtor’s illegal evasion of payment. However, this restriction has disappeared wherever the law on interest has been abolished. 4. Another question arises: can unpaid interest be counted as capital, calculating interest on interest? (Anatocismus). In Roman law this was prohibited unconditionally: it was not allowed to include interest in capital, nor to form special capital from them, charging it with interest. This prohibition has been maintained, although not in such an absolute sense, in most of the latest legislation. It is allowed to capitalize unpaid interest (by issuing a separate obligation) as soon as the time has come to pay them, at least for a year, as determined by French law, or for two years, as Prussian law. Interest is capitalized due to its award for collection, from the time of delay in payment, capitalized upon a change, in the person of the debtor or creditor, associated with a change in the very basis of the right or obligation regarding interest, for example. when the guarantor, having paid the debt with interest for the debtor, demands back from him what was paid. Finally, in credit relations between merchants, the capitalization of interest is inevitable, due to the custom of settling accounts at the end of the year and recording the unpaid interest on the debtor with a new account (Saldo. Conto-Curente. Current account). § 10. Russian laws on interest. We have the main types of dependent obligations: guarantee, penalty, pledge, interest. In general, by virtue of Article 1530, the contracting parties are left free to include in the contract, by mutual consent and at their discretion, any conditions that are not contrary to the laws, such as: time, payment, penalty, security, etc. An interest clause can be attached to an agreement on the use of a thing or money. The most common type of interest on a money loan 4 is growth from capital lent until the period the capital is in debt (2020). But one should not think that every debt is necessarily connected with the % condition. A bill of exchange is an obligation with which is connected the concept of credit in a broad sense, and not just a loan. The essence of the bill is not a loan, but a transfer, compensation, consciousness of duty. Therefore - and due to the shortness of the term - the concept of contractual interest is usually not connected with a bill of exchange. The bill does not imply the transfer of capital from one hand to another, into the hands of the debtor, as in a loan letter; it is not even assumed that the amount will be available at the minute the contract is drawn up, but that the amount will be available in the future by the time of payment. In general, when the use of capital occurs under an agreement, interest for it is not assumed in itself, unless it is agreed upon (Cass. decision 1872, No. 837); but, regardless of the contractual interest for the use of the amount, interest can be recovered by force of law for the wrongful retention of the amount in the hands of the one who is obliged to pay it back, and from the moment that this obligation arises. Our law does not express a general rule in this case, but it is firm, because: 1) in general, every illegal owner of someone else’s property is obliged to return it with compensation for unlawful possession, and compensation for unlawful possession of money is expressed precisely as a percentage; 2) in particular cases, which are directly indicated by the law, this general rule is clearly expressed (cf. 641 Law. Civil., 226 Pol. Treasury. Sub.). When a loan obligation is not satisfied on time (even if the loan was interest-free), legal interest is due from the time of delay (Law. Court. Civil. 365, 602, note 626) until the day of payment. But in the event of the debtor’s (declared) insolvency, interest on borrowed obligations from the time of delay is calculated only up to the day of insolvency, and on accounts and contracts, the competition is left to decide whether or not this percentage is true, depending on the truth of the entire claim (Law. Court. Civil. 510 clause 7). The same applies to commercial insolvency, with the exception of privileged claims (Const. Court. Trade. 599, 601). Interest on obligations is usually calculated from the time of delay; but, in case of insolvency, for those obligations, in the fulfillment, presentation and presentation for collection of which omissions were made, interest, if possible, is due only from the day of their presentation for collection. Obligations are subject to the same limitation, even without insolvency, contrary to the written rules established on stamp duty (Law. Court. Civil. 366, 510 p. 3; Law. Civil. 2039). The growth on a protested bill is counted from the date of protest of non-payment; but the increase in protest costs, exchange rate differences and other legal costs is considered only from the day the bill is presented for collection by court (Article 118). According to safe receipts, the right to interest begins with demand, i.e. by filing a petition in court (Civil. 2115 and Cass. decision 1877, No. 140). Possession, although unlawful, may be in good faith if the owner does not know that the property rightfully belongs to another. Just doubt about legal ownership is not a sign of bad faith. The beginning of bad faith possession usually arises from the time of formal announcement through the court of a claim or demand, or from the time when the wrongful possession became known with certainty, if this can be proven (529, 530). An unscrupulous owner is obliged, when returning his money capital that was in illegal possession, to pay 6% per year for the entire period of their retention, even if the money was lying with him unused (641). For special rules on interest on contracts with the treasury, see Art. 50, 226 Pol. Kazen. Other There is no interest on deposits issued from the treasury for contracts. Delay interest is calculated either from delay, when the obligation to pay is itself assumed and the amount to be calculated is completely known; or from the presentation of a demand, when a violation of an obligation in a known amount cannot be assumed earlier; or from the time of the decision on foreclosure, if, due to the circumstances of the case, the first capitalization of the foreclosure could not follow before the decision; with the decision, in any case, capitalization occurs, the payment period begins in any case, although the interest is not defined in the contract. The question of when interest on capital on borrowed obligations should be paid, if there was no special condition regarding this, the Senate in the Popova case explained in such a way that if the terms of interest payment in debt obligations concluded for several years are not determined, such in the general sense of Art. 2020 Zak. Citizen must be paid annually at the end of the year (Cass. decision 1882, No. 32). Interest on arrears. In the Neslinda case (Sb. Sen. decide. II, 523) the question arose: does interest follow on overdue and withheld rent? The Senate decided that interest was due only on debt obligations, and not on contracts in which a special condition depended on the agreement of the parties. since there was no such condition in the rental contract, interest was denied. Bills that have lost the force of a bill of exchange, but retain the force of an obligation, if the debtor is solvent, there is no reason to deprive the right to collect interest from the date of delay and legal penalty. Cass. decide 1869, N 1039. In 1865, the insurance company assigned 5,000 rubles as compensation for the fire. A dispute over the quantity began a process: it was decided in 1868 to give 6,000 rubles. For the extra thousand, the society must assign interest since 1865. Interest from the time of claim. Delay interest is based on a certain amount of money, from the moment when this amount can be assumed to be in debt to the person guilty of payment and withheld from him through his fault without the fault of the debtor himself. Therefore, when the guilty person offered payment in a certain amount, and the claimant refused to accept it, considering himself entitled to a larger amount, then there is no reason to recognize the offered amount as incorrectly withheld and to assign interest on it. In this sense, the charters of insurance companies contain the rule that the policyholder does not have the right to demand interest on his premium if it is not accepted by him due to any circumstances beyond the control of the company. Wed. 2 Sat. Sep. decide II, N 380. According to the general rule, Art. 72. Zach. Court. Citizen (corresponding to Articles 365 and 602, note, edition of 1892) a debtor who has not fallen into insolvency is entitled to interest on delay from the time of delay. Calculation of % from the time of presentation of the obligation for collection is established only for obligations written on paper other than the underlying paper (Cass. Resolution 1875, No. 441). Although rule 72 art. (corresponding to Articles 365 and 602, note, edition of 1892) Law. Court. Citizen on the collection of interest was not included in Part 1 of Volume X, but by its very nature it relates to substantive law, therefore it is not eliminated with the publication of new judicial statutes in those areas where these statutes are in force (Cass. decision 1879, No. 64). When demanding interest on capital withheld or delayed in payment, both petitioners and courts often refer to Art. 641. Zach. Citizen on liability for adverse possession. This only confuses the concept, and the resolution of the question is complicated by an inappropriate investigation of the qualities of possession. But cases of this kind mostly relate to the fulfillment of obligations. It is necessary to determine from what time the obligation arose and from what time its fulfillment lies with the responsibility of the obligated person. Then it turns out that liability in interest on capital begins with delay in payment of capital, and the delay begins either upon the maturity of the term or upon presentation of the claim. Thibault de Brignoles, having used his 2,000 rubles for government construction under a contract with the treasury, demanded the return of this money in 1858, but received it, due to a dispute between the treasury, only in 1871. Then he began to demand interest on this amount; application to this claim of Art. 641. would be connected with the determination of the qualities of the treasury's ownership of capital. But the Senate recognized it was correct to apply Article 72 to the case. 2 hours X t. (corresponding to Art. 365 and 602, note, Zak. Court. Civil., ed. 1892) on interest from the date of delay in obligations and awarded interest from the date of capital requirement. If this demand is fair (which it turned out to be), then from the very moment it was presented, the defendant had to fulfill it with payment: therefore, from that time on, non-payment was his responsibility and turned out to be withholding of capital (Cass. decision 1876, No. 596. Comp. 1877, No. 310). The amount due for satisfaction under the promissory note was withheld by the Debt Repayment Commission from the payments due to the debtor and could be used to pay the debt at the first request; therefore, from that time on, the creditor has no right to demand interest on this amount (Sb. Sen. decision I, 560). If it turned out that in such cases the law specifies to send the withheld amount to the bank, then the right of the creditor to bank interest was recognized (Sb. Sen. decision I, 574). Interest since the decision. The decision of the court to collect the debt with interest causes a new capitalization of the accumulated interest or penalties and a new calculation of them from this capital (Sb. Sen. decision I, 166, 306). A decision made administratively has the same force (2 Sat. Sen. Resolution III, No. 689). From the time of award of a sum of money that was in improper possession, the claimant has the right to interest on it until the day of satisfaction (2 Sat. Sen. decision I, No. 124, 242, 255). When executing a court decision on the basis of Art. 72. 2 parts X t. (corresponding to Articles 365 and 602, note, Zak. Court. Civil., Ed. 1892) % of the capital is recovered from the time of the court decision (Cass. decision. 1873, N 668). Interest on contracting matters. At the time when laws on government contracts were written, i.e. in the 30s, the official concept of interest did not fully correspond to the view of money as a commodity that has constant circulation and constant value on the market. Due to this view, interest is considered an indivisible property of capital, and therefore, for the entire time that capital is held in improper possession, from the minute the capital is formed, interest is due to the rightful owner, without discerning whether this capital lay uncirculated or brought interest to its holder. But at that time, the law still recognized it as necessary to distinguish between the incentive reasons for retaining capital in the treasury, and the state in which the capital was at the time of retention (whether it was sent or not sent to a credit institution), and, finally, the guilt or omission on the part of those officials on whom the retention of capital depended. As a general rule, interest accrues on the capital retained whenever the retention turns out to be incorrect, i.e. from the minute when the value was formed or the deadline for issue or payment was determined, the money to be issued is capitalized with the addition of interest. But in particular, the rule of the law gave reason to refuse payment of interest in such cases, and the processes that arose in this regard were often resolved by refusing the claimant (cf. Sat. Sen. decisions 1, 86, 92). The government contractor Chule demanded interest on the amount detained in the treasury. He was refused on the grounds that in the original application for capital he did not state a claim for interest and even missed the statute of limitations. But the Senate admitted that in the first demand from his superiors, Chula had no reason to ask for interest, and the delay in payment was not due to his fault, and its satisfaction was delayed from 1830 to 1854. So, it is unfair to blame him for the fact that he, hoping all the time for quick satisfaction, began to ask for interest even when the extreme slowness of production was discovered. Limitation is calculated from any specific period or action giving the right to claim; and Chule’s right to demand interest arose from slowness that continued indefinitely and continuously (decided by Moscow General. September 1858). Separate claim for interest. Interest on an overdue obligation is collected in accordance with Article 72. 2 parts X t. (corresponding to Articles 365 and 602, approx. Zak. Court. Civil., ed. 1892), together with the capital, as its accessory, at least in the initial request for recovery under the loan deed, interest was not mentioned (Cass. Resolution. 1871, N 1087). – The interest claim cannot be presented separately from the capital claim “in view of the repeated clarifications of the Senate” (Cass. decision 1873, N 1602). – 273 Art. Est. Gr. Court. indicates that interest on the sought capital amount constitutes an accessory to the capital claim, and therefore the claim for interest cannot be presented separately from the claim for capital, and the decision on capital, taken without a claim for interest, eliminates the subsequent separate claim for interest; but there is no reason to understand a legal penalty in the same sense: a claim for a penalty is separate from a claim for interest, and the penalty is collected regardless of the recovery under the contract (Cass. decision 1874, No. 171, 308; 1876, No. 353). - In favor of gr. Pototskaya was awarded a recovery from the tenant for the value of the sheep that were not delivered to him, and the rental money that was not paid within the contract period, i.e. to May 1, 1850. The decision took place in 1867, it said nothing about interest on this amount since 1850. When executing the decision, Pototskaya asked that interest be attributed to her on the basis of Art. 72. 2 parts X vol. (corresponding to Articles 365 and 602, note, Law Court. Civil, ed. 1892). This was denied to her, because the decision cannot be reversed; interest is due only from the date of the decision (Mn. G.S. 1874). Acceptance of capital in payment, without an objection to the non-accounting of interest on it, does not mean a waiver of interest and does not deprive the right to claim it after the limitation period (2nd Sat. Sen. Resolution I, No. 95). Interest, constituting direct income from capital, cannot be separated from it, and therefore, when for non-payment of interest the transfer of the estate for use is assumed by condition and this transfer has taken place, then further claims to interest are terminated (Sb. Sen. decision I, 310). Our legislation does not mention restrictions on the right to deduct interest in advance, and it should be assumed that receiving interest on borrowed obligations in advance is not prohibited by law (decision on the village of Iskul in Zh. M. Yu. 1863, No. 2). The case of accounting for interest on debt obligations is mentioned in Art. 510 clause 8, Law. Court. Citizen If the obligations have not yet matured on the day of insolvency, then the specified percentage is deducted from the present amount of such obligations, counting from the day of insolvency to the day of the deadline. Our laws on the order of notation of complex % and on the unconditional limit of notation have fluctuated for a long time. It was our custom to count interest on interest; the law stopped calculating them by comparing them with capital, ordering them to be calculated from the day the obligation was overdue to the day of payment (X vol. ed. 1832, art. 1534 and 1535). In 1842, it was decided: if amounts awarded to a private person or the treasury by a final decision of a public office, which has entered into legal force, or is not subject to appeal, are subsequently withheld without the consent of the person or place to whom they were awarded, then they are recovered from the person responsible for such withholding with the specified six percent, starting the calculation thereof after a month from the date of announcement to the defendant of the mentioned decisions on the day of payment without any restrictions. This interest is calculated in aggregate on the entire amount awarded by the final decision, i.e. both from the capital itself and from the interest accrued on it during the ongoing dispute and legal proceedings, at least before the decision was made, the amount of the latter was already equal to the first. In 1854 a new law on the calculation of interest was issued. Complex calculation of % is strictly prohibited. When concluding a contract, it is prohibited to decide that interest will be compounded. You can set a condition for when to pay interest on the obligation: after a year, two, three, etc. years during the normal term of the contract. Interest remaining unpaid after at least a year may, by mutual agreement, be converted into a special obligation, in which case there may be a special interest rate for this obligation. If such an agreement is not followed, then collection is made as follows: 1) Upon expiration of the term of the main obligation, a demand may be made to satisfy it and at the same time to collect interest. In this case, interest under the agreement is calculated for each year separately, in a simple manner. Here the % requirement merges with the obligation requirement. 2) Upon expiration of the interest payment period, according to the agreement, a claim may be made solely for the collection of interest. If these percentages follow for at least a year, then from the date of presentation of the claim for the amount of percentage, legalized percentages are still calculated (Article 2020, edition 1857). The reason for this difference is as follows. In the latter case, the basis for calculating % is no longer an agreement, but a legal rule. In the first case, when the debtor has not paid interest on time for a period of time, for example, for a year, there is not always a delay. The creditor could have intended not to demand interest from him or not to appear to receive it, in order to leave the amount of annual interest in his hands and then take it with growth; such an operation is inconsistent with the purpose of the law. On the contrary, in the latter case a certain demand is addressed to the debtor; then, further retention of interest in his hands seems to be an illegal delay. And when the entire obligation is overdue, then the entire amount of capital is calculated for collection with the interest that accrued on it on the day of the delay, in a simple manner, according to the force of the contract. Then from this entire amount they calculate, also in a simple manner, according to the force of law, the indicated percentages of 6, up to the day of satisfaction. This is the first legal capitalization of interest. However, there may be a second legal capitalization. Namely, if there was a dispute over the collection and a court decision was made on the dispute, then the entire amount of interest that has accrued up to the day of the decision is calculated again, added to the capital, and interest is again calculated from this entire amount until the day of payment, also in a simple manner. It is not said, however, that this capitalization can be repeated with each decision in higher authorities (Law. Court. Civil. 365, 602, note Cf. Art. 615, 623, 631). This rule is explained as follows: a court decision absorbs all the rights that make up its content and establishes a new, formal right ex re judicata: it is subject to immediate execution, and with evasion of it, a new period of delay begins for the debtor. Our law calculates % from the day on which the court decision took place (Law. Court. Civil. 365), and does not mention either the grace period or the day the decision was announced. The contractor argued that interest in the amount of 1130 rubles, which had increased by an amount of 96 thousand from the date of the Senate decree on the collection of this amount to the day of the first payment, was to be added to the capital for a new calculation of interest, and the same should be done for the first and subsequent payments. But the Senate considered such a calculation to be complex and illegal, because the law (365 Art. Zak. Court. Civil., Ed. 1892) prohibits calculating % by %, except in the case of capitalization regarding a judicial decision (1 Ob. S. Sen. November 29, 1876, according to the village of Brainina). To Cass. decide 1876, No. 9, it is explained that 620 art. Zach. Citizen obliges the dishonest owner to return only the income from the estate, but not interest on the income. The income itself in this case corresponds to interest on capital, and since interest cannot be collected on interest, interest on income cannot be collected. (This reasoning does not apply, of course, to those cases when, according to the circumstances of the case, the amount of income can be capitalized and recognized from a certain moment as subject to recovery.) From ancient times, percentages, or growth, were determined by custom among us, although the church authorities opposed the idea of ​​growth and condemned high percentages. The usual height under Ivan IV was 20 per hundred. The Code of 1649 did not at all prohibit taking growth. This prohibition was abolished not before 1754, and at that time the legal interest rate of 6 per 100 per year was established (however, by decree of 1737 it was allowed to take 1% per month on overdue mortgages). From 1786 to 1808, this measure was reduced to 5, then 6 was restored. So, the number 6 remained a legal measure of % until recently. (Bill interest at 1/2% per month. Establishment of the Bill., Art. 106.) Charging an increase in excess of what was legal was called surplus and constituted a crime for which the perpetrators were subject to a triple penalty in court for the first time against the excess interest in favor of public charity, and the second and third time, in addition, to arrest and imprisonment (2020–2022 Legislative Civil., ed. 1857, art. 1866, Torg., ed. 1234). It was, however, allowed, in a public manner, to take excess interest when it was received under guardianship on the capital of minors (2022 Law of Citizens, ed. 1857). In addition, the law mentions qualified % and above a certain amount in the following cases. For delay in issuing the agreed amount from the treasury in advance, the contractor is entitled to 1% per month (Pol. Collection. Civil. 457). When the estate is given into temporary possession, the mortgage creditor is given the opportunity to use the income without accounting, instead of interest (Law. Court. Civil., Art. 615). In 1879, the dominant doctrine of freedom of growth triumphed in Russian legislation: the main reasons for this were the well-known principles of economic doctrine and the inconvenience of the contradiction in which we have regulations on legal growth with the private charters of various credit institutions, as well as with practice. The Law of March 6, 1879 (Poln. Sobr. Zak. N 59370) stipulates: instead of articles 2022–2024 Zak. Citizen For loans of any kind, it is allowed to assign an agreed increase for the use of capital, in the amount by mutual agreement of the parties. The amount of growth must be determined in the obligation: otherwise, as well as in those cases where the law requires the calculation of legal growth, it is based on 6 per 100 per year. Growth is calculated only on the capital itself. But when no payment for at least a year’s growth is made within the period specified for the obligation, then, at the request of the lender, the amount due from the debtor for the use of capital (i.e., the amount of accumulated interest) is calculated from the above-mentioned period for the legalized growth, i.e. 6 per 100. The main and important change in the new procedure for calculating interest against the previous one, established in 2020, is that previously the capitalization of interest began from the date of presentation of the demand, and, moreover, the demand for the collection of interest for at least a year: with this action, i.e. By presenting a demand, the concept of delay was combined. Nowadays, delay begins with late payment of interest, but it does not begin by itself, but as a result of the lender’s demand, and not only for collection, but also for capitalization, i.e. on the calculation of interest on interest: at least this follows according to the literal meaning of the new law. The wording of this resolution is not entirely clear. If, for example, I, having the right to the first payment of interest on May 1, 1879, did not present a claim, but presented it three years later, i.e. after May 1, 1882, then the question is: should capitalization be carried out once, starting from May 1, 1882, or repeat it four times, i.e. assume % on % from May 1, 1879, then from May 1, 1880, again from May 1, 1881, and finally from May 1, 1882? – In such cases, the letter of the new law will require further explanation. In our new law, following the example of foreign ones, a new rule has been adopted to ease harassment on the part of primary creditors. When the interest on an obligation is higher than six per hundred, the debtor has the right to return the capital ahead of schedule, at any time, no earlier than six months after the conclusion of the loan, but is obliged to warn the lender about this at least three months in advance. All monetary transactions concluded before the publication of the new law must be executed on the basis of previous laws. Following this law, another decree was issued on the procedure for maintaining loan offices for small loans against hand deposits (see below, § 43). But even for small loans there is no limitation on the amount of interest: Russian legislation in its reform went further than those foreign legislations that, while abolishing general growth restrictions, recognize, however, that it is necessary to leave them in force for small loans. Our law only requires cash registers to indicate in a prominent place in the announcement the amount of the monthly increase charged; it must be indicated in the loan books for each loan and is paid when the loan is repaid; in any case, for half a month, at least the loan was repaid earlier than the deadline. Interest continues to accrue until the mortgage is sold. It would seem that with the publication of the law of 1779, the existing regulations on penalties for interest should be eliminated, but they were not directly abolished, but even rules were issued on the extent of penalties for such abuses of lenders, which, with the abolition of liability for taking more than 6%, should be considered usurious actions. The strengthening of usury, especially rural and at a time of national need, attracted the attention of the government and led to the publication in 1892 of a law on the prosecution of usurious actions, and transactions not only for money, but also for bread were taken into account (Sachwucher) (Collected Uzak. 1892, No. 858). It was decided that anyone who buys grain from peasants for the purchase of standing grain, sheaves or grain from them at a disproportionately low price, if during the transaction the buyer knowingly took advantage of the extremely difficult position of the seller, is first subject to arrest, and for repetition to imprisonment; and, moreover, the buyer must pay the seller the difference with the actual price (purchases at bazaars along with the transfer are excluded). Thus, fishing is essentially subject to penalties, criminally, with the addition of civil penalties, and the determination of signs of growth is left to the discretion of the judge in each case. In 1893 (Collected Uzak. No. 652) it was recognized that it was necessary to further extend and supplement this law. It is recognized as illegal to lend bread and other supplies to rural residents, or money, under the condition of paying off a monetary debt, in part or in full, with bread, supplies or work, if they took advantage of the extremely difficult situation of the borrower to complete the transaction on extremely onerous conditions against local custom. Here, in addition to criminal penalties, the transaction is declared invalid, but the lender can only get back what was actually transferred to them. Thus, here, too, fishing is pursued, but it must be assumed that the reason for prosecution should be a complaint, since the signs of fishing are determined by the discretion of the judge under the terms of each individual transaction. But at the same time, regardless of the craft, the law, without mentioning the surplus of the previous law, sets itself the goal of defining the signs of a usurious transaction and rules as follows: for a loan of capital in excess of growth or on the security of an excessive penalty, 1) if the borrower was forced by his constrained circumstances, known to the lender, to accept the terms of the loan, extremely burdensome or painful in its consequences, or 2) if someone, while making loans, concealed excessive growth in any way (by including growth in capital, etc.), the culprit is subject to imprisonment and a fine of up to 300 rubles. The one who acquires and submits for collection an obligation that is obviously usurious or receives payment for it is also guilty. The obligation is destroyed, except for the value actually transferred. Having used the expression excessive growth and, moreover, monetary growth, the legislator was forced to determine the signs of excess and indicated for this the number of twelve percent. It follows that usurious obligations are discussed and destroyed only by criminal procedure. This very rule is not included in civil laws, but is placed as a continuation to the Constitution. Order, cash Mirov. Judges. While avoiding restoring the legal civil measure of interest, the law indirectly, however, defines it for criminal purposes. But it will undoubtedly acquire civil significance in practice, to the aggravation of borrowers in many cases. One cannot help but fear that when executing borrowed transactions, the well-known formula “legal” or “indicated” interest will mean twelve, and thus the previous number of six indicated percent will immediately be doubled. § 11. Cumulative obligation. – The concept of solidarity. – The action of active and passive solidarity. - Reverse requirement. – Correal obligations. – Establishing solidarity. In any obligation there are certainly two sides: one is the representative of the requirement, the other is the representative of the obligation. It may, however, happen that in one obligation - on the demand side or on the obligation side, or on both together - there is not one person, but several persons. In general, when this happens, the obligation is divided into several equal, separate, independent parts - into as many obligations as there are obligated persons - into as many demands as there are those demanding. Eg. Ivan, Peter and Yakov borrowed 900 rubles from Andrey. Here, therefore, Ivan borrowed 300, Peter 300 and Yakov 300. Likewise, Ivan borrowed 900 rubles from Peter, Yakov and Andrey. Two rented land from a third. The simplest and most natural assumption in such cases is that both the right and the obligation are divided into equal or even unequal, according to the special definition of the contract, but separate ideal parts. But as an exception, by the special will of the parties or a special definition of the law, a legal relationship may arise in which the same obligation in its entirety inseparably relates to each of several creditors or several debtors. Demanding creditors, on the one hand, can merge their demands, bind each other as if by mutual trust, so that each of them is a demander for himself and a representative for everyone. Each may claim satisfaction of the whole obligation; payment made to one extinguishes the whole claim; everyone has the right to take any action to protect the right and bring it into effect. On the other hand, the same relationship may arise between all obligated persons; each of them is a debtor and representative of each of the other debtors; everyone can be a defendant in relation to the whole obligation, and if the obligation is satisfied by one, then all the others are released in relation to the claimant. Thus, in the first case, the representatives of the claim are several persons, but they all have the same claim against the same person, and each in its entirety. In the latter case, several persons assume the same responsibility, without dividing it among themselves, but in such a way that everyone bears the same responsibility in its entirety. Such a relationship between demanding or obligated persons is called a circular, solidary relationship under an obligation. It is active when it relates to a requirement; passive when referring to a duty. This concept can also be expressed in the following words: in solidum, together and separately, one or the other, all for one or one for all. This relationship may arise by special agreement in one or another type of agreement, or depends on the legal properties of certain agreements (bill of exchange); either it can arise from a unilateral establishing will (a will), or it occurs through an obligation determined by the law itself (liability for a crime). In its passive form (relative to obligated persons) it is more common than in its active form. There are relationships that allow only passive solidarity (crimes). The action of active solidarity. When several persons jointly own a circular claim on an obligation, they are bound to each other by a mutual mandate, by virtue of which each can demand and accept for all others the performance of the entire obligation and each can perform for others the actions necessary to ensure and protect the validity of the entire obligation. An obligated person, when he satisfies voluntarily, satisfies whomever he wants from among the creditors as a whole; but if a claim has already been made by one creditor, then this one already declares himself as a representative of all the others, and therefore the debtor must satisfy him alone. If one of the creditors interrupts the statute of limitations, then it is interrupted for all; but if one of them is personally free from the effects of limitation (for example, a minor), then this does not exempt the others, unless the very object of the obligation were among the indivisible. A debtor placed in default by one of the creditors is included in it relative to the others, etc. But the actions of one of the creditors, depending on his personal will and unprofitable for others - for example, deferment of a debt, forgiveness of a debt - are valid only for him personally. The debtor, having satisfied one of the creditors intact, is not obliged to pay the others; but what one of the creditors received serves as the common property of each of them equally (unless there was another condition between them). Austrian law, however, allows in this case the responsibility of one to others - only according to a special condition between them. Prussian law deviates from the above concept of active solidarity. It recognizes for several persons who have a joint right under an obligation only an aggregate, general claim, not allowing one of them to claim separately from the others. In this, Prussian law significantly deviates from Roman law and from the legislation based on it. The action of passive solidarity. In an obligation there are several debtors, each of whom assumes an entire obligation, and they all serve as representatives of each other. Everyone is obliged to the same thing, even if not in the same way. The responsibility of one may be urgent, another - on demand, one - simple, another - by condition. This difference does not violate circular liability. The creditor can collect everything from anyone, as if he alone owes him. The creditor can collect from everyone collectively or first from one, then from the other. This right is destroyed only with final satisfaction of the obligation. One of the debtors cannot even object to the claim by a previous decision to refuse another claim against another debtor in the same obligation. In this regard, the latest legislation deviates from Roman law, which in such cases relied on the fact that when the recovery is already directed at one of the solidary debtors, all others are exempt from it. In Roman law, this was considered a necessary consequence of litiscontestation, since it was assumed that the filing of a claim extinguishes the original right from which the claim arose and gives rise to a new right associated with the claim, and the claim has significance solely in relation to the person to whom it is brought. The creditor, interrupting the limitation period with his claim regarding one of the debtors, interrupts it regarding all the others, putting one in a state of delay, putting the others in it as well. If, through the fault of one of the obligated persons, the property that was the subject of fulfillment of the obligation is destroyed, liability in this property extends to everyone equally: only one culprit is responsible for losses. The flow of interest initiated by a creditor's claim against one of the debtors becomes valid for the others. When one of the debtors to whom collection is directed makes objections against him, these objections in other cases are valid only for him personally, in others - for all other debtors. Real objections have a common force for all, i.e. relating to the very essence of the obligation. Purely personal objections relating to the personal obligations of the defendant, for example, have personal force only. objections to minorities, violence and deceit regarding the defendant, objections based on a special condition of his obligation. When the debtor pays, at the request of the creditor, the entire obligation or more than would have fallen to his share, he should in fairness be equal in settlement with his accomplices for whom he overpaid. From here arises the right of recourse, a right not recognized, it seems (this is still being debated), in Roman law, but recognized by all the latest legislation. He has the right to demand from other debtors the return of overpayment. Even if one of them were to fail, the share of value falling on him would not be lost, but would be distributed among the others, due to their solidarity. However, the reverse demand does not enjoy the advantage of solidarity in foreclosure: the claimant on the reverse demand cannot turn it entirely on one of his accomplices of choice, but can demand from each only his share. A similar right to a reverse claim belongs, in all fairness, to joint and several creditors, in relation to those of them who received satisfaction from the debtor for the entire obligation. But Austrian law (§ 895) allows such a requirement only by a special agreement between the creditors or by a special community relationship between them. In the aggregate contract, the theory distinguishes solidarity from so-called correality. Simply, a joint and several obligation is assumed where the obligation of several persons is united in an object that is single and inseparable. This is, for example, the responsibility of accomplices in a crime, this is the right of several donors in the deposit of common property, etc. The co-reality of right and obligation is assumed where there is not only the unity of the subject, but also the unity of the will, there is a single and integral obligation, in which several persons collectively participate on the part of the one demanding or on the part of the obligated. The theory established subtle differences between one species and the other. A correal relationship can be both active and passive; a solidary relationship is only assumed to be passive, on the part of the obligated party. Correality is established only by the action of the will; solidarity also arises from an event that does not depend on the will. The actions of both relationships are also assumed to be different. But all these differences are more theoretical than practical; the practical significance of both relationships is the same. It consists (as Savigny rightly explains, Obligat. I, 219) in providing the creditor with the opportunity to turn the entire penalty on one or another of the jointly obligated persons, and therefore, recently this distinction, both in science and in practice, has almost lost its meaning. In those positive legislations where it was previously recognized (for example, in Saxon and Bavarian law), it now also disappears. Solidarity, in addition to being established by contract, is sometimes established by law, for certain relationships and for certain types of cumulative liability. So, for example, French law subjects executors to joint liability with respect to the movable property entrusted to them according to the inventory, and residents of the entire house with respect to fire liability; partners in a bill of exchange, in a trading partnership, etc. But it is noteworthy that French law distinguishes between complete and incomplete solidarity. Full is assumed where several persons have entered into an agreement on mutual responsibility or where responsibility is based on common activity in the common interest: in these cases, mutual representation can be assumed. On the contrary, where aggregate liability is established by law independently of the agreement or the general activities of the responsible persons, there solidarity is incomplete. Some are said to be solidary debtors (codebiteurs solidaires), others are said to be jointly liable (sont tenus solidairement). The last category includes persons who are jointly responsible for one undivided property, although not jointly and severally, guarantors in one debt (C. N. 1219, 2025). Incomplete solidarity does not entail the same consequences as complete solidarity. This solidarity consists in the fact that the entire demand can be addressed to any of the debtors, but is not addressed to other debtors; for example, it interrupts limitation only in relation to the direct defendant, and not to other debtors, etc. The partners in a bill of exchange have a similar relationship, as will be shown below. § 12. Establishment of solidarity in obligations under Russian law. - Solidarity in partnership. - In bills. – Responsibility for guilt and for the consequences of a criminal act. Our legislation does not express a general concept of solidarity of obligations and demands, and the very name of solidarity does not appear in the body of general civil laws. But the concept itself, although not in the developed form of a separate institution, is known to our law, and cases of solidarity are found in it. It is the law that allows for the possibility of stipulating in an agreement in which several persons have assumed one obligation that in the event of failure to fulfill the agreement, everyone is responsible for everyone and everyone is responsible for everyone. This depends on the contract and is not assumed. If there is no special condition about this and if one of the obligated persons fulfilled, but the others did not fulfill their obligation, then the one who has the right to demand performance under the contract must turn not to all who entered into the obligation, but to those who did not fulfill it. It follows that otherwise he can convert – by choice; for how to apply, whether it is possible to transfer the penalty from one to another, etc., the law is silent about this (Civil Law 1548). Here we speak only of passive solidarity; There is no talk of active at all. Although solidarity in itself is not always associated with partnership (Savigny. Oblig. I, p. 143), however, a solidary relationship between accomplices or allies in a demand or obligation, in most cases, presupposes partnership. Partnership, according to our laws, has a formal, definite meaning and corresponds to a special type of agreement (2126 et seq.). However, from 224 art. Floor. Kazen. Other It can be concluded that joint liability presupposes a general relationship of partnership. In general, solidarity does not exist in every partnership. It depends on the terms of the contract. When entering into a government contract and delivery agreement and in connection with this operation, a partnership is sometimes formed between private individuals. In this case, it may be decided that if the conditions are not met, one for all and all for one are responsible. And if the partnership is limited by shares, then it is made according to the number of shares (224 Art. Pol. Treasury. Sub.). In general, the essence of a general partnership is circular liability: everyone is liable in general and separately with all their property for the debts of the partnership (2129, 2134). Trading house. – Est. Bargain. 77, Const. Vekseln. 91. Collective liability is established in artels (Art. Torg. 97, Put. S. 324), in some industrial companies and corporations (for example, in a pilot company - Ord. Torg. 320; Establishment of the Riga Pilot Shop 1854, November 24 (28760), § 46, 168, 171, 186), in peasant societies entering into work contracts (for example, Establishment Post. 229). The relationship between several guarantors or a whole company of guarantors can be solidary or circular, and, moreover, either voluntarily agreed upon or necessary, as we will see later. Our law does not mention other ways of establishing mutual obligations, except for a contract; but, it seems, there is no doubt that the testator, subject to legal conditions (1011, 1086), can, when assigning refusals or cash payments, decide on these assignments the mutual liability or mutual right of several persons, can, for example, decide that one of his heirs is obliged to satisfy N, who will have to or who will be able, or “any of them.” If such an appointment exists, then the concept of solidarity will have to be attached to it, although perhaps without recourse or a reverse requirement. So, the general rule: mutual liability is not assumed in the contract. There are, however, cases where it is assumed: namely in certain types of obligations. This is essentially what a bill of exchange is. Here, on the contrary, it is considered a rule: in all cases where a bill of exchange is signed or accepted by many persons together, they are responsible for each other in payment of the entire debt amount. Here, the separate responsibility in parts of each depends on a special condition (Constitution of Promissory Note 92). This will be the mutual liability of persons who together and at the same time were obligated under the bill of exchange. In a bill of exchange agreement there is another point in which the law attaches not only the concept, but also the very name of joint and several liability (in solidum). In every bill of exchange, when initially drawn up, there are assumed to be either two or three parties: one having the right to demand payment, one directly obligated to pay, and one giving an instruction or order to pay. Moreover, from the person having the claim, this right can be transferred by signature to another, and such transfers can be repeated, so that an indefinite number of persons can participate in one bill. Between all these persons there arises joint liability (in solidum). This gives rise to a kind of relationship that cannot be fully explained without going into the details of the bill of exchange law (Articles 25, 78, 79, 111, etc.). See § 30 below. In addition, according to the law, mutual liability is assumed in a general partnership, a trading house and a mutual guarantee. Let us leave the sphere of contract law: there are also obligatory relations outside of it, in which the law presupposes solidarity. These are the cases of joint liability of members of liquidation commissions, elected to liquidate the affairs of private and public short-term credit institutions, for losses from non-compliance with the rules on the sale of the institution’s property and in general on the termination of its affairs, on the distribution of debts of the credit institution, on the distribution of the free balance between shareholders, members and shareholders and on the terms established for the disposal of this balance (Constitution of Credit, Section X, Art. 90–94), and in particular cases of property liability for criminal acts and misdemeanors. When it comes to compensation for harm or loss resulting from a crime or misdemeanor of several persons, the law distinguishes between two cases: when the crime or misdemeanor was committed with prior consent or without prior consent. In the latter case, each of the perpetrators is particularly responsible and is obliged to compensate for the harm and losses caused by his actions. In the first case, they pay the remuneration equally, and if one of them turns out to be insolvent, then the next part from him is divided among the other participants (Law. Civil. 648–650; Code 64, cf. Art. 992 Establishment. Angle. Court. and Art. 527 Law. Court. Angle.). This means that they are subject to circular liability. Therefore, the victim hardly has the right to demand compensation from whomever he pleases, but must first demand equally from everyone, and then, in the event of someone’s failure, turn to others. This significantly weakens the meaning of circular liability: it becomes conditional, relative, and a slow, gradual collection is assumed. This rule cannot be approved: the legislator did not have the determination to fully provide for the offended. Much simpler and closer to the goal is the rule, for example, of French legislation (Code pen. 55): tous les individus condam-nés pour un même crime ou pour un même delit, sont tenus solidadairement des amendes, dommages et intérêts, restitutions et frais auquels ils sont condamnés. Moreover, the requirement of prior consent also weakens the effect of the rule and restricts its scope, if we take into account that the participants in the case of the main culprits are not assumed to have acted with prior consent (Clause 14, 15), and prior consent includes instigators, accomplices, conspirators or instigators and accomplices. It is very difficult to distinguish between these concepts in practice. It remains to be said about the responsibility of officials for omissions in service to the treasury and private individuals in the case when it is divided among several persons. Here, solidarity is not assumed at all, and the penalty is distributed among the perpetrators according to their salaries (cf. Law. Court. Civil. 614, Est. Bill. 105, appendix art. 15, 16). However, there is no general rule in this sense, but this is clear from consideration of the articles and this is always done in practice. Of course, if the action has the nature of a crime or misdemeanor, then liability is subject to Art. 648. Zach. Citizen There is no general rule on the opposite requirement in our legislation. This applies to surety. In a bill of exchange, one signatory to another receives a return claim (Constitution of the Bill. 117). But what’s strange is that precisely in the case in which some foreign legislations exclusively do not allow the opposite requirement, in liability for crimes and misdemeanors, our law especially allows it (Law. Civil. 648, Savigny. Oblig. R. I, 292, 250, 257). In other subjects, the law distinguishes dolus from culpa and in the first case does not allow, but in the second it allows the opposite requirement. (Also see Puchta, Pandect. Vorles, § 235.) One can point to Senate decisions that do not agree with the rule of Art. 1548 that solidarity is not assumed by itself; but they should, it seems, be considered only an accidental phenomenon in judicial practice. Thus, in one decision it is expressed: when two persons issued a loan letter without indicating the division of responsibility, then they are represented as one person, inseparably responsible. Such a merger of personality and property, says the Senate, according to the general reason of all legalizations, seems to be an inevitable - supposedly - consequence of the issuance of a loan letter unconditionally from two persons, since in the face of the law only two parties are represented in a loan in a single form (2 Sat. Sen. Resolution V, No. 1170. Id., II, No. 600). In general, judicial practice is guided by the principle specified in Art. 1548. When a loan letter is issued from several persons, without the condition of mutual liability, then everyone is liable in their share (Cass. decision 1875, No. 19). However, it is recognized that, even if the agreement did not directly and positively stipulate solidarity, it can be inferred from the properties of the agreement and from the relations established by it (Cass. decision 1875, No. 216; 1884, No. 78). 1548 art. says that joint and several liability is not assumed. It goes without saying that each of the jointly obligated persons has their own independent rights and that the obligation can be fulfilled by each of them independently. On the contrary, where the obligated party is represented by a set of persons having legal unity (for example, an entire society), or where several persons have undertaken to perform something together (?), there, in essence, an obligatory relationship assumes solidarity. This is what Cass thinks. Senate (resolution 1869, No. 724; 1873, No. 268; 1875, No. 794; 1876, No. 537). With regard to the execution of the sale note on the estate, issued by several persons as co-heirs together, with the receipt of the deposit, when it turned out that it should be returned, this responsibility is assigned to them without determining the part of each. Solidarity follows directly from the property of the relationship, when the subject of performance in the contract has such an indivisible integrity that it is impossible to separate one of the persons obligated or having a claim from the other. This is, for example, the sale of an immovable estate to two persons jointly: the refusal of one of them to purchase makes it impossible for the seller to sell the estate by virtue of the contract to either of both buyers. All of them together constitute one party and cannot act separately without changing the terms of the contract (Cass. decision 1873, No. 258). The land is leased to three persons; the owner collected the money indifferently from everyone, since the parts were not divided in the contract. The court decided to collect indifferently, but the Senate decided that solidarity in the contract is not assumed, but must be reprimanded (Cass. decision 1874, No. 306). By decision 2 Dep. Sep. 1874, it was recognized that the loan obligation given by Solomonova together with her husband was not presented to her by the broker and was not transferred to her by the creditor, which is required by Art. 2036. 1 part X t. Therefore, in relation to her, it must be recognized as invalid and unnecessary. The creditor complained about this decision, explaining that since a loan letter was issued from two persons, it is enough when one of them, Solomonov’s husband, presented the deed at the notary: in this case he must be considered an inseparable representative of the other accomplice and be liable with him inseparably. This complaint was left without respect (1 General Meeting of September, October 8, 1876). Although a joint bill of exchange has lost the force of bill of exchange law, it does not lose the properties of joint and several liability (Cass. decision 1874, No. 767). According to reason 566 and 634 art. Est. Bargain. ed. 1857 (corresponding to Articles 55 and 92 of the Establishment of the Promissory Note of 1893), the blank inscription of one of the many joint signers of the bill obliges him to pay the entire amount, as if a special bill of exchange was issued from him (Cass. Resolution 1876, No. 492). If several persons participate in a contract on one side, each of them is not prohibited from initiating a claim for breach of contract without authorization from the accomplices; but whoever did not take part in the claim cannot take advantage of the decision (Cass. decision 1870, No. 166). The matter was about the return of the lake, which was in the indivisible maintenance of several comrades. The court, considering the appeal of one of them and seeing the indivisibility of the interests of all comrades, overturned the decision of the lower court not only in relation to the appellant, but also to all comrades. The court, according to the reasoning of the Senate, had the right to recognize that the cancellation of the decision in relation to one partner would not have any consequences for him and that, while remaining in force in relation to other partners of common law, the decision would continue to restrict his right: (Cass. decision 1875, No. 306). In the case of the Kolodnyansky Sugar Factory Partnership, the Senate recognized that violation by members of the company’s board of directors of their general duties by incorrect orders or omissions should entail, within the meaning of Art. 2181. Zach. Citizens, and their general joint liability (Cass. decision 1886, No. 24). When the main culprits of the crime are not in sight, then the losses from the crime are distributed directly to the secondary participants (Cass. decision 1873, N 1086). Rule 648 Art. on the distribution of responsibility for damages from a misdemeanor was extended by the Senate (Cass. Resolution 1875, No. 647) to the execution of a civil decision to recover from the peasant society for livestock poisoning. It is permissible to doubt the correctness of this extension: a misdemeanor necessarily presupposes personal responsibility for a personal action, which is incompatible with the concept of a society that does not appear in court and is not subject to imputation of a misdemeanor. The solidarity of members of the peasant family in the payment of secular and government duties (188 Art. General Pol. Cross.) does not extend to private penalties (Cass. Resolution 1874, No. 838). Chapter Four. Origin and fulfillment of obligations § 13. Origin of obligations. – Conclusion of an agreement. - Unity of will. – Distinction between real and consensual contracts. – Approval by subsequent action. – Preliminary negotiations or degrees of agreement. – Agreements between absentees. By origin, obligations can be divided into those arising from mutual agreement, as a result of a contract, and those arising from a free unilateral action of will, according to law. The first has the main place in the doctrine of obligations. An agreement is the most common way of originating obligations. The conclusion of an agreement is the result of preliminary negotiations, discussion, which is finally followed by an agreement of will; This preparation for a complete agreement of the will, united and comprehensive, requires some time. From the first thought of a contract to its final conclusion, the agreement may, although not yet decisive, be quite close to the final decision, so that sometimes such a moment can be taken as final. Confusion on this subject can be especially significant where there is no special special form for the agreement, for the form serves as a sure sign of a completed agreement. Only when this agreement is certified can the contract be called perfect. Therefore, determining the minute of the completed agreement is especially important for informal contracts. It is necessary to pay attention to the following difference, known in Roman law. In some contracts, for their decisive completion, only a complete agreement of will is needed in all essential articles, expressed either in a well-known accepted form (a letter, an announcement before the court, before witnesses), or in an arbitrary form. These are consensual agreements (hire, supply, power of attorney, etc.). Other contracts, in order to be completed, require that an action belonging to the essence of the contract be performed; Only in the case when this action was performed on one side does the obligation of corresponding influence arise on the other side. Therefore, here the obligation arises not simply from the agreement of two wills, but also from the action following this agreement. These are the so-called real contracts. Their Roman types are: mutuum, commodatum, depositum, pignus, i.e. loan, loan, deposit, mortgage. Here the contract is not complete unless the action is performed; for example, how to imagine a loan if the debtor did not receive the money on loan, a loan if the thing, deposit, pledge was not transferred without corresponding action? Here, in any case, the action is assumed to have taken place, i.e. transfer, and in some cases the contract itself is considered invalid if the obligated person proves that the action of the other party from which his obligation arises (lack of money of the loan) did not occur at all. Of course, this is difficult to prove, because such an action is always assumed. True, one can imagine, for example, an agreement in which a party undertakes to give a loan, a loan, a mortgage, etc., and one can demand performance under such an agreement, but still this will not be an agreement of a loan, a loan, a mortgage, and mandatory performance in kind in most cases will turn out to be impossible, so that the replacement of performance will remain the obligation of remuneration. This will be a contract of entry into a contract, a pactum de contrahendo. The Roman distinction between real and consensual contracts has almost lost all meaning in modern laws. The Roman expression re contrahitur obligatio is no longer important today, because all current contracts are consensual, i.e. based on mutual agreement. The concept of this difference, although not entirely clear, was expressed in our Code of Laws, precisely in Art. 568. Zach. Citizenship, which is difficult to understand without this theoretical explanation. It says: “obligations are contained either in the very contracts from which they arise; These are the essence: contracts for hiring, contracting, supply, etc., or are drawn up as a separate agreement under a previous agreement, written or verbal; these are the essence: mortgages, letters of borrowing, etc.” The editorial is extremely confusing and dark. This article was written by the editors of the code themselves and expresses an abstract doctrine, apparently taken from the theory of Roman law. Even examples are directly given from there (for example, for consensual agreements: emptio - venditio, locatio - conductio, societas, mandatum). The article does not mention purchase and sale among consensual agreements only because in the code system the bill of sale is not at all placed in the category of contracts and is classified as acts of a purely real nature. An agreement, which at its very beginning does not have the signs of a mutual agreement, can be recognized as valid and binding for the other party if the other party subsequently accepted it and confirmed it by the very act that constitutes the essential subject of the agreement. Consent to a contract and its obligation are certified, according to the circumstances of the case, by the actual execution of this contract in relation to the other party and by reference to its terms in one’s own interest. Such cases often occur in contracts for the use of property, when a person enters into it without a formal agreement or when another person takes the place of the previous counterparty without a formal transfer. This was the case in the Koch case (Mn. State Sov. 1879). Koch leased the tavern on her estate for five years to the owner of the private estate, Shcherbakov, under a five-year contract. Shcherbakov soon handed over the lease to Bedryaga, who used the lease for several years and then abandoned it, dissuading himself from responsibility by saying that the contract was concluded not by him, but by Shcherbakov. It is recognized, however, that he is responsible even without the formal transfer of the contract, since he actually entered into the use of the lease, paid the money, and even based his refusal on the investor’s failure to comply with certain terms of the contract. Vodolagin contracted with Gladkov to deliver 100 poods on his barges to Rostov. wheat, with acceptance and delivery for a period and with a mutual penalty. This obligation was signed by Vodolagin alone, who subsequently became a plaintiff in the penalty against Gladkov. Gladkov made an excuse by saying that he did not sign the terms of the penalty, and therefore it was not obligatory for him. But this objection is rejected for the following reasons. Gladkov received the signed contract from Vodolagin, kept it, did not object to it, accepted it for execution, delivered part of the cargo, made payments on delivery with the terms and conditions inscribed on a copy of the contract, and, moreover, on the basis of the same contract, he himself filed a counterclaim (decided by Moscow. General. Collection. September 1861 in J. M. Yu. 1862, No. 6). The apartment was rented on a condition issued from the owner to the tenant under one signature of the owner. This act is recognized as a valid act of hiring, because the validity of the contract requires the consent of both parties, which can be expressed with one of them not only by signing, but also by accepting the contract for execution. In this case, the tenant occupied the apartment and paid money for it (Cass. decision 1875, N 805). Although the condition was signed by only one party, but since the fact of its acceptance and fulfillment is recognized by the other party, it should be discussed as a mutually fulfilled obligation (2 Sat. Sen. Resolution III, No. 570). A contract requires unity of will and purpose, and therefore it is hardly possible to admit the validity of a contract that contains a contradiction that is incompatible on these subjects. There are cases of jointly drawing up several transactions on one subject, of which one complements the other and limits it, and sometimes it is intended to establish one of the transactions just in case and put it into action when the expectation connected with another transaction turns out to be unfulfillable. When interpreting such transactions, it is necessary to bring them to unity, if possible; if it is impossible, then either all of them collectively lose their force, or one main one is left in force, and the others are cut off. If there is a contradiction between transactions, but they do not converge in time, then the later one can be recognized as a change (update) of the previous one. In the Jacobson case (Sb. Sen. Resolution II, No. 219), a loan letter was issued for a period of one year, and on the same day a signature was given from the creditor to the debtor that the said loan was without interest, that the creditor undertakes not to demand payment during the life of the debtor, and upon his death he has to receive payment from the remaining estate, and after the expiration of the period, to rewrite the loan letter without demanding interest. The Senate decided that such a subscription could not have legal force, because, without destroying the loan letter, it clearly contradicts it. So, the essence of the contract is that it is completed at the moment of complete, conscious, one-time agreement of the will. Determining this minute is especially important for informal contracts. There are two essential points here: agreement and one-time agreement. The completion of a contract usually consists of two actions: on the one hand, a definitive proposal, on the other, a definitive acceptance of this proposal, in the very form in which it was made. The combination of both actions is not always performed in one step. The first time a proposal is made may not be immediately accepted by the other party, but subject to changes that are announced to the proposing party. It may again result in a change in terms offered again to the other party, as a result of its change in the initial proposals. Thus, the final agreement of two wills can be preceded by a whole series of negotiations, resolved into a question and answer formula, until a final proposal formulated on one side is finally formed, which is accepted by the other side with decisive consent. Until this moment, negotiations do not in themselves have a binding meaning for the parties; would the parties want, having stopped at any one point in the negotiations, to consolidate their will on it conditionally, in the form of a binding agreement on a future transaction that will finally be completed (pactum de contrahendo). A one-time agreement provides the least cause for confusion and ambiguity. Both parties face each other when an agreement occurs between those present. And here, however, according to physical conditions, there is always a more or less significant gap between the question and the answer, between the proposal and the expression of consent to the proposal: during this interval, hesitation is possible, and therefore a change in either goal. But many important agreements, especially in commercial life, are concluded between absentees through letters; then the significance of this gap is further enhanced. It is necessary to establish a general rule of good faith to resolve perplexities. Roman law did not need such a rule because the Roman formula for a solemn agreement, stipulation, presupposed a positive answer to a positive question between those present (spondesne? spondeo). We need such a rule. The rule is the following. Whoever wants to enter into an agreement with an absent person and makes him an offer must adhere to his offer, he is bound by his offer until the other party recognizes him and certifies in word and deed that he has accepted the offer. Without such a rule, the concept of a transaction will be deprived of firmness, the recipient of the offer will not be able to count on the good faith and serious decision of the proposer - a great inconvenience, especially in commercial life, where action must quickly follow the transaction and where everything depends on the timeliness of the action. Based on this rule, the one who made the proposal, if the other party answers: yes, no longer has the right to say: then I wanted it this way, but now I have changed my intention. In this case, the other side will have the right to object: why did you offer? Why, having changed his will, did he not notify me in a timely manner? I should have, I had the right to believe that your will is serious and unchangeable. This rule, however, has only conditional, presumptive force. The contract becomes perfect only at the moment of the final, decisive agreement of the two wills; up to this moment, therefore, the will expressed on both sides is a one-sided, conditional will. It contains on the part of the proposer: 1) a promise of his own action, 2) the expectation of the one who has to follow on the other side a corresponding promise of impact. Therefore, in this situation, the conclusion of an agreement is still expected; therefore, the will, although not completely determined, still has the opportunity to change, to redefine itself. Until what minute is the party who made the offer bound by his offer while awaiting a response? Obviously, it is up to her, first of all, to determine, together with the proposal, how long she will expect an answer. If there is no deadline, then it is assumed that the response should be sent in good time. This means that the absentee is not given any time to think at all; he must decide immediately and send his answer as soon as possible. Between those absent from the same city, it is assumed that the answer should be sent no later than the next day; between those absent in different areas - with the first outgoing mail or with the return of mail. (Telegraph is usually not counted towards correctly completed messages.) But when the answer has already been sent, another question arises: from what minute does the expressed will become irrevocable and completely unite with the opposite will? Is it at that very moment when it is determined in the mind of the absent correspondent? When was the letter written? when was it printed and mailed? or only at the moment when the sent letter reaches the attention of the person to whom it is addressed? Opinions on this issue do not completely agree, but, in all fairness, it should be recognized that in a mutual agreement, the expression of the will on one side cannot be considered as fully and decisively accomplished until the other side recognizes it, and in this consciousness both wills have not yet united. The agreement between those absent at this point is equalized with the agreement between those present, in which both wills are simultaneously united. Until the moment when the review or proposal reaches the attention of the other party, the party from whom the response comes has every right to return it, to refuse it, if it has time to do so, by telegraph or by means of a second letter arriving at the same time as the first. But many people extend the possibility of refusal even further. The one who made the offer has the right to take it back not only until the minute when his offer reached the other side, but also in general until the response of the other party, made on his offer, has not yet reached him. Until this moment, the one-time agreement has not yet been completed, and the offeror is free from the contract, although, due to the circumstances of the case, he is not free from responsibility for losses that the other party could have incurred, relying on the fidelity and firmness of the initially made offer. Some legislation does not allow such freedom. In Prussian law, it is assumed that a unilateral proposal binds the will of the proposing party from the moment it comes to the attention of the other party until the will of the other party has been determined, or until the same period assigned to it for determining this will. Austrian legislation and the Bavarian code adhere to the same view. According to Prussian law, the mutual relationship of the parties does not change even due to death, which may befall one of them before a response is received to the sent proposal. The obligation of negotiation actions in this case is not eliminated, but passes to the heirs. The All-German Commercial Code 5 is expressed in the same sense and even more clearly. Our laws contain no rules on this subject at all, although such cases often occur in commercial courts. In general civil matters it is difficult to meet them, because the form of contracts here is mostly strict, and contracts between absentees are concluded through representatives. But there is more freedom in trade transactions, and contracts are concluded through written orders. In commercial matters, due to the lack of law, the court is allowed to be guided by the trade customs of a certain locality, and these customs may not be the same. If there is no custom, then to resolve the matter one has to resort to general principles, the explanation of which is necessary for this reason. Suppose that I, engaged in trade, write to my correspondent in Odessa, suggesting that he buy for me 1000 quarters of wheat at such and such a price, no higher, and send it to Marseilles, insuring the transportation for no more than such and such an amount per quarter, so that for a commission he will take advantage of the difference between the indicated price and the real one. I can make this offer with the caveat that I only want to write off an agreement. Then, while waiting for an answer, as well as after the answer, I can refuse, enter into a condition with another. This is not yet an agreement or the beginning of an agreement, but a negotiation, correspondence about an agreement. I am sending my letter, let’s say, on August 1st by post to Odessa. According to the postal system (old order), this letter should reach Odessa in a week, on the 8th. On the 10th the mail goes from Odessa to Moscow. I expect consent without refusing until the day when the Odessa post arrives in Moscow on the 10th, and, having not received an answer, I consider myself entitled to cancel my offer or enter into an agreement with another. Then a few more days pass - with the next Odessa mail I receive consent from my correspondent and answer him that it is too late. He, for his part, considering the agreement accomplished, wants to force me to fulfill it. I have the right to object to him that I was waiting for news from him with the return of mail. And if I write in my first letter that I expect an answer by such and such a date, then I will be completely assured. I send letters on August 1, and then, with the next mail, I send a letter that I refuse, or I let you know by telegraph. Let's assume that my correspondent 1) receives the news earlier than my first letter - then there is no reason to doubt it; 2) receives after my letter, before he had time to send me an answer; the consequence is the same, I have the right to refuse; 3) receives when the answer in which he wrote me his consent has already been submitted to the post office and sent to Moscow; in this case, I only exercised my right. My will had not yet been finally determined before I received the consent of my correspondent, and the proposal could have been taken back by me. In the same way, my correspondent, on the other hand, having sent his consent to my proposal, can cancel it even before the minute I receive the answer: maybe, for example, send a telegram ahead. But if his refusal came after the withdrawal of acceptance, then I have the right to consider a mandatory relationship between him and me established. This could be very important to me. Having received his feedback on acceptance, I, counting on the execution of the contract, i.e. for the delivery of wheat to Marseilles to the person indicated by me, I issue a bill of exchange to this person with payment in Marseilles. With the failure to fulfill the contract for the purchase and shipment of wheat, I suffer a loss from the issuance of this bill and have grounds to demand compensation from my correspondent. Now imagine that I, having written and sent an offer, then sent a refusal. My refusal comes to Odessa after my correspondent sent me letters of acceptance. Meanwhile, having sent a letter, he began to purchase wheat, and upon learning that I refused, he suspended the purchase, but suffered a loss and demands satisfaction from me. There is reason to satisfy him, but not because the agreement can be considered completed before I received news of agreement, but because under certain circumstances my correspondent, judging by the meaning of my letter, had reason to think that my intention was serious and my will was firm, and therefore immediately began to act on my instructions. Where there is a rule in the law that the responding correspondent must still wait for notification of receipt of the answer, or, in the absence of the law, a firm custom between trading people, there is no place for remuneration in such cases. But if there is no such law or custom, then in the absence of positive guidance it should be taken into account that the correspondent cannot consider the contract violated, cannot force me to fulfill it, but has the right (depending on the expressions of my letter and the nature of the action, which required haste) to tell me: “I did not act arbitrarily, but in your name and on your instructions, having accepted it and considering your intention serious; the work that I began to do is not mine, but yours. Where will I go now with the wheat that I bought for you? The price for it has dropped: they sell it for less than a quarter in rubles.” Such a requirement can be respected. Let’s say the correspondent bought wheat for 10 rubles. for a quarter, and I assigned him no more than 12 rubles. He demands from me: our agreement has been completed, you must fulfill it. According to the agreement, the difference in price should belong to me. You must take wheat for yourself at 12 rubles. for a quarter and give me my profit for 2 rubles. per quarter, total for 1000 quarters - 2000 rubles. This requirement can hardly be called legal. The contract has not been fully consummated: performance under the contract cannot be demanded. But here’s what you can demand: “I bought you wheat for 10 rubles, and when I had to sell it, you couldn’t take it for more than 9 rubles.” 50 kopecks Therefore, by your grace, I suffered a loss of 50 kopecks. for a quarter, only 500 rubles. You must compensate me in all fairness for this loss.” Skipper Sandberg from Barcelona wrote to London and offered to charter his ship for 105 shillings. per ton. On October 5, a broker in London chartered a ship to the Hawa house for a flight from Odessa to London. Sandberg, having received this notice, responded with a refusal to accept the party on October 11, and this response was received in London on October 17 by the House of Hawa. The Odessa house of Chava, considering the agreement to be valid, transferred the party to the house of Gorni with an additional 45 shillings in its favor. per ton; but the performance of the central part, due to Sandberg’s refusal, did not take place. Then the Hawas sued Sandberg for damages, demanding compensation for the profit of 45 shillings. per ton, which they lost due to Sandberg’s refusal. This claim was denied for the following reasons. The right of the Hawa to enjoy the benefits of the contract existed as long as they could consider themselves free owners of the contract, i.e. until news of Sandberg's refusal reached them. On October 14, the news reached Hawa in London and from October 14 to October 31 could be communicated by regular mail from London to Odessa; therefore, if they did not know about this on October 31, it was their own fault. Moreover, the amount of profit is calculated by the plaintiffs guesswork, because it is still unknown how many tons of goods would have been delivered from Horni when loaded onto Sandberg’s ship (decided by Moscow General Collection. September 1857). § 14. Conditional agreement. – Proposal and challenge. – Contract through public auction or competition. - One-sided promise. Intending to enter into an agreement and negotiating its decisive implementation, the parties can stop at certain points, at the stages of the agreement, and in this preparatory work exchange acts of incomplete agreement, preparatory acts, which should not be confused with the agreement. However, such acts may, under certain conditions, have a mandatory property when signed by both parties (pacta de contrahendo; Tractaten; Punctationen; minutes). Roman law denies this property to such acts, but the latest legislation, for example, Austro-Prussian law, does not deny it in cases of claims for the fulfillment of an obligation or for compensation for non-fulfillment. It may happen that the parties intentionally leave their agreement incomplete; Having agreed on some parts of the contract, they make other parts necessary for the full completion of the contract dependent on the further expression of the will, on the event, on the time. This happens when, for example. one of the parties expresses its will only conditionally, temporarily, granting the right to itself or a third party, for example. to the principal, either to confirm this will, or to destroy it (bargaining, overselling, offering a price to the highest approval, sample, sample). Preliminary agreement. The insurance contract is concluded through a policy, but before the issuance of the policy from the company, the agent issues a receipt from the policyholder, which has a conditional meaning that the insurance under it is valid until the company approves the issuance of the policy or renewal certificate, or until the company refuses within the appointed period. In the village of Winkler (Cass. decision 1871, N 1220), the policyholder received such an insurance receipt from July 12, and subsequently received a policy in which the insurance condition was changed and the term was set from November 12, and accepted it without objection. Therefore, the validity of the final contract is assigned to the policy, and not to the receipt. The act of insurance is the policy, but from what minute the insurance contract should be recognized as completed, we find different instructions about this in the charters of insurance companies. Pistsova’s house, insured in Salamander, burned down. After the fire, she announced the renewal of insurance and a premium of 100 rubles. asked to withhold 700 rubles from the remuneration due; and when she was offered half, she refused insurance before sending the policy and asked to return the withheld premium to her. On the issue that arose regarding the execution of the contract, the magistrate court declared the contract invalid, on the basis of general Art. 1528 and 2199 Zak. Citizen But the Senate overturned this decision, adopting seemingly special articles. 88 and 99 of the company’s Charter, which states that the contract is considered valid with the payment of the premium and receipt of a receipt replacing the policy. Hardly reasonable, since the special article does not abolish the general rules on the conclusion of a contract and the final agreement, and in the present case, the decisive meaning is not the external form - the issuance of a receipt, but the determination of the will and agreement; Pistsova’s offer was conditional: if she was given 700 rubles. (Cass. decision 1873, N 1187). Preliminary conditions: these include, for example, an estimate signed by the parties (Cass. decision 1867, N 515). To establish a contractual relationship, a direct and decisive determination of the will by a mutual contractual agreement in the prescribed form is required. Therefore, the verdict of a rural society to lease land to a well-known person cannot replace a separate agreement on that and does not in itself serve to strengthen the lease, if there was no special agreement (Cass. decision 1876, No. 357). A special type of offer is an obligatory challenge, a public promise of a certain reward for a certain action (Auslobung), addressed to any person. The person calling does not mean the person to whom he is obliging, and his proposal does not constitute evidence in itself, but is a challenge or invitation to enter into an agreement. It is difficult to prove that this proposal cannot be withdrawn even if those willing to participate in it appear; but the culprit of the call, in any case, is responsible for losses to the one who, having believed the invitation, would have come to the call. However, one cannot help but notice some differences between calls of this kind, in terms of their content and purpose. There are positive challenges, with a definitive indication of the object, and addressed, although to an unknown person, but to one to whom this object exclusively concerns: such, for example, is the promise of a reward to the one who delivers the missing or lost thing, who delivers the correct address of such and such a person or information about his place of residence, etc. Such a challenge has legal certainty and direct binding effect. But other challenges, addressed generally to the public, obviously do not have in mind the very subject that is directly indicated in them, but an extraneous goal - to arouse publicity or make some impression in the public that is beneficial for the challenger. These are mostly trade or industrial challenges, with the promise of a cash reward to the one who appears and proves that he has a work of art, a product, etc. superior to that of the caller, or that the work, etc. of the caller does not have the qualities for which it is reputed. Others (Savigny) do not give all such calls any legal force. However, some legislations (for example, Prussian, Saxon, Bavarian) make such calls mandatory under special conditions: when they mean the initiation of any useful mental activity, useful physical art or generally useful enterprise. This category includes prizes for essays, works of art, for discovering evidence of a crime, for returning lost things, etc. But even in this case, it is required that the proposal be definitive, with a deadline set, and, moreover, it is allowed to take it back before the expiration of half the term 6 . The most common case of a condition with a reservation and withholding a decisive will occurs in connection with public auction. The very essence of public bargaining lies in this withholding. Here, on behalf of the government or a private individual, a public offer is made to enter into an agreement on a certain item with someone who will give more (sale), or with someone who will take less (bidding for work, supply, etc.). Thus, the proposer does not oblige himself to a known person, but to the one who gives more or takes less. This offer is not binding on any of the bargainers until he commits himself by accepting it, i.e. giving a known price, responding to an offer by announcing the price. But even in this case, the one who announced the price has not yet fully committed himself. Whether he has decidedly committed himself or not depends on the person offering the deal or on his representative, the auctioneer. The offeror of the deal, if he hopes for even more favorable conditions, continues to bargain; then the new announcer of the most favorable price ties up all the previous advertisers, but each of them can bind himself again by announcing even more favorable conditions to the offeror. Only the complete consent of the parties, without any retention, makes the contract fully completed. The offeror must announce that he accepts the last announced condition, and thus end the bargaining. This is done either with a blow of a hammer: with this blow the auctioneer lets you know: enough, I accepted; or by burning out a candle (for example, in France); or the arrival of the deadline until which the auction continues. As soon as the hand of the clock reaches a certain minute, it means “enough”; The auction is over, the last price has been accepted. Sometimes the bargaining is carried out in several stages, and then the agreement at the end of each bargaining will be conditional, and the final one will be made only at the end of the final bargaining. Sometimes the auctioneer announces that he is ready to enter into a deal with someone who will give no less than such and such a price or take no more than such and such a price. In this case, if several persons appear who satisfy his conditions, it is in his will to choose one or the other for the final conclusion of the transaction. This type of agreement is used in our country, especially for contracts with the treasury and for sales of real and movable estates for debts. For this, strictly defined rules have been established. Here are the general features of the sale of real estate at public auction (Pol. Execution. Civil., Art. 200 et seq.). Calls for bidding are made through public announcements. A day is set. But with the destruction of the reason for which the sale was appointed, the auction can be canceled. The bargaining is carried out in the official presence on behalf of the government. It begins at the hour specified by law (12 o'clock). It is based on a sales sheet with an established assessment of the property. Anyone who wishes to declare a higher price writes it on the sales sheet and signs it. This is how he binds himself. This price is publicly announced. Then, whoever wants it from those present raises the price. The auction ends at 2:00 p.m. The chairman notes this on the trading sheet, and if any of the traders wants to add more immediately, he announces and writes. Then the highest price given for the property is indicated on the sheet. Whoever gave it is considered to have entered into the condition, the buyer. He seals this condition with a deposit. However, the matter does not end there yet. The seller still reserves the right to further testing; He also entered into a condition with a caveat: if they don’t give more. Three days later there is a rebidding in the same order, until 3 o'clock in the afternoon. When the hand moves to 3 o'clock, the surcharge is no longer accepted. At the re-auction, the buyer may not be the same person who retained the property at the auction. The buyer at the first auction remains the same, if at the re-auction there are no people willing to give more; but if they give more, even just one kopeck, then the estate goes to another buyer. Thus, the contract ends only after 3 hours of re-auction. Similar rules are established in the new Constitution. Gr. Court. for the sale of the estate by a bailiff for the execution of court decisions. Here, rebidding is not required, but in some cases a new auction may be appointed, and the previous one is declared invalid (Ust. Gr. Court. 1151 et seq.). It is simpler, but in a similar manner, to sell movable property at auction, through an auctioneer or a bailiff. The bargaining begins at the appointed hour and continues until no one pushes; then ends with a blow of the hammer (Pol. Vyzk. Civil. 359 et seq., Establishment Gr. Court. 1045 et seq.). Bidding for contracts will be discussed below. Public auctions are also used between private individuals, but our law does not establish special rules for them. In addition to the obligations arising from the contract, i.e. from the agreement of two wills, there may be cases where obligations arise from a unilateral declaration of the will. It is accomplished either by word or by action (about actions, see below § 69). A simple promise (pollicitatio) in the new law does not have binding force in itself, unless it expresses a positive intention to bind one’s will, in which case the promise is equivalent to an obligation, or the promise is made under a condition and the condition is accepted by the opposing party: in this case, too, the promise is secured by a subsequent agreement. So, if, for example, I, taking part in a debtor’s brother, turn to his creditor with a request for leniency and write: “I assure you that if I could collect 3,000 rubles, I would not think about satisfying you for my brother,” the creditor does not have the right, on the basis of these expressions, to arrest the monetary receipts that follow me: but when I give the creditor a positive promise to satisfy him if he delays the loan letter to my brother, and it turns out, that the creditor decided to postpone it precisely under this condition, then, depending on the circumstances, the promise can be recognized as binding. There may be a one-way mandatory subscription. Such subscription may contain an acknowledgment of a debt or a prior obligation. It can be given in court, in connection with a case that was in judicial proceedings, or outside of court and independently of judicial proceedings. During a dispute over an unclear obligation, the defendant may terminate the trial by agreement with the plaintiff by issuing him a mandatory subscription, which obliges him to satisfy it by a certain date. Here there will be an agreement of two wills, and not a unilateral obligation, and the court itself, without the consent of the plaintiff, cannot oblige the defendant to such a subscription. Outside of court, such a subscription can be a unilateral obligation when it contains the meaning of a compelling reason (causa), i.e. the very basis of debt; and when this basis is not indicated, then in the event of a dispute it may still be necessary to clarify the case with additional evidence. Does consciousness of duty have the same force as direct obligation? This question gives rise to misunderstandings, especially in those cases when, after the death of a person who has written an acknowledgment of debt in a letter, his heirs try to prove that this acknowledgment, especially when it does not indicate the very basis of the debt, does not have the force of a debt document. The solution to this issue depends in most cases on the interpretation of the act according to its content, whether it precisely contains a determinative will - to establish an obligation to pay the debt: if this is recognized, there is no reason to refuse enforcement power to such a document as a debt obligation. Such a case was in the Leve case, decided in General. Collection Moscow Sep. 1868. The document (by which it was awarded to recover from the heirs) was a note addressed from Leve to his brother. “I hereby certify that I owe my brother N 20,000 rubles, which debt I recognize as sacred and independent of any of my testamentary orders.” See Legal. Vestn. 1868, No. 8 and 10. The signature of the debtor on the account, although not at the end of it, but on the side, indicating that payment has been made on this account, can be significant as an acknowledgment of the debt (Cass. decision 1876, 471). A subscription that does not contain a direct and definitive consciousness of duty and obligation to pay, but contains only an obligation to subsequently issue a formal act, can serve as the basis for a claim to compel the issuance of an act, but does not serve as a basis for collecting the amount indicated in the subscription (Mn. State Council. 1876 for the village of Tyshko). The obligation to conclude a contract is in no case equivalent to the conclusion of the contract itself and cannot have enforceable force, although failure to fulfill it constitutes a violation of the contract (decision of Sen. in the village of Reznikova in J. M. Yu. 1862 No. 8). For the difference between promise and obligation, see Cass. decide 1874, N 597, in the village of Polyakova. An obligation arises from the moment it is accomplished by a decisive expression of will. Someone promised to guarantee for another in a certain amount and even authorized an attorney to do so by issuing a power of attorney; but the attorney did not give guarantee. A mere promise and intention to guarantee does not replace an actual guarantee (2 Sat. Sen. decision V, No. 1227). § 15. Freedom of agreement in a contract. – Circumstances that violate this freedom. – Violence or coercion. - Error, delusion, ignorance. – Rule of Russian law on coercion. The agreement in the contract must be free. This freedom can be violated by violence or coercion; in this case there is no essential condition for the validity of the contract. Violence can be physical or moral (mental), through an illegal action on the will that incites fear. In the latter case, the will is violated by the threat of urgent evil. In general, the action of one personal will on another contains aspects that are mostly imperceptible to external consciousness; such, for example, is moral influence, direct or indirect persuasion, even if for a selfish purpose. In most cases, such an influence, even if it was reliable, does not yet serve as a sign of violence that destroys freedom. To do this, it is necessary to know that the will in the contract was forced by fear, and, moreover, by the kind of fear that suppresses freedom. The simple fear of unreal, vaguely imagined, distant evil leaves room for free action of the will. The will may be considered violated when it is clear that the threat, with the arousal of fear, was the direct and immediate cause of the expression of the will in a certain sense. In this case, violence truly destroys the contract, even if it comes from a person not directly interested, but from the outside. This destructive effect of violence is expressed by the recognition of the invalidity of the contract. There is a difference of opinion on this subject. Some believe that such an agreement is in itself insignificant, since it is devoid of the most essential of the terms of the agreement; others believe that such an agreement is subject to refutation and its nullity requires special recognition by the judiciary (about this difference - nul and annullable - see above). The first opinion prevails, however, both in science and in legislation (French, Austrian, Prussian). From the above view it logically follows that a claim for the nullity of a forcible agreement is a property claim, and not just a personal claim, i.e. that the injured person, demanding the destruction of the contract, extends his claim to the alienated property, no matter in whose hands it is (actio in rem, according to Roman law). In any case, it is up to the court to determine, based on the circumstances of the case, what kind of fear and to what extent was a decisive incentive to express the will in the contract. French law explains that the concept of unlawful violence includes a threat not only to the person participating in the contract, but also to his spouse and relatives ascending and descending. Prussian law requires that violence be reported to a court within eight days of the event. But this requirement is not absolutely important. By observing this deadline, it is only easier for the plaintiff to prove the event, but the right of action in itself does not depend on this deadline. Freedom of agreement is also violated by error, delusion, and ignorance. When the will is determined on the basis of a false idea, it is not a real, not a genuine will. Misconception (error) in the mind of the contracting person can reach complete ignorance, ignorance (ignorantia): if a person had known this or that circumstance, he would not have accepted, would not have stipulated this or that condition, would not have remained silent, would have made a slip of the tongue. Finally, perhaps, due to ignorance, carelessness, absent-mindedness and oversight, an error was made in the explanation or meaning of the will, which does not correspond to reality, contradicting the fact. Misconception and misconception are possible not only on one side, but on both sides; It may happen that both parties had a misunderstanding when concluding the contract. When an error is discovered after the conclusion of the contract, a demand may arise from the party for whom it is unfavorable to invalidate the agreement or to correct it. It is dangerous to encourage such demands, because many of the counterparties are inclined to attribute to error any damage or failure in the expectation of benefit from the contract, and contracts would not have firmness if demands arising from such motives could count on success. But there are also cases in which it would be unfair to recognize in full force an obligatory attitude based on an obvious misunderstanding, and to affirm the validity of such a determination of the will, which is clearly unconscious. In such cases, justice requires restoring the parties to their previous state, i.e. or recognize the agreement as null and void, or equalize, where possible, the uneven relationship with an appropriate assessment of mutual rights and obligations. Questions about the legal significance of error in contracts arose long ago in Roman practice, and in the sources of Roman law we find many decisions, provisions and rules relating to this subject. From individual cases of Roman practice, later jurists, starting with the glossators, derived general provisions from which the doctrine of error was compiled, accepted both in science and in legislation, but even to this day not yet fully explained and serving as a subject of controversy (see the 3rd volume of the System, by Savigny, who tried to put in order the features of this doctrine. For its criticism, see Hesse’s article: Zur Lehre vom Irrthum, in Arch. Civ. 1874). To protect the firmness of contracts, it is accepted, first of all, as a rule that everyone is responsible for his own mistake and that error, in itself, does not serve as a legitimate reason for the destruction or modification of a contract. But as an exception, cases are allowed in which the error, when it is significant, excludes the possibility of a genuine, free, valid union of two wills in a contract. What is essential in this case will be determined by the judge based on the circumstances in each case. The misconception may relate to the very content and purpose of the contract (for example, a party, thinking that he is selling a house, enters into a rental agreement; thinking that he is receiving a gift, enters into a loan transaction). A misconception may relate to a person, to his identity and special qualities (for example, it is meant to order a work from one famous artist, but it is ordered to another, unknown, namesake). There are many doubts on this subject: it is necessary, according to the nature of the case, to judge what is essential in the particular person or quality to which the error was related, what was the purpose, what is the intention of the counterparty, what is the property of the contract, etc. The error may relate to the thing itself, which constitutes the subject of the contract, to its material identity (er. in corpore), to its essential qualities (er. in substantia), and finally, to measure and quantity (er. in quantitate): the latter reason is not, however, considered essential. The victim of a shortage of quantity is given only, in special circumstances and on a special basis, and not due to error, the right to compensation or the right to demand equalization in price (laesio ultra dimidium see Volume I, § 42). A simple error in calculation or clerical error may serve as a reason to correct the deed, but not to destroy the transaction. It is necessary to note another important difference, also indicated in Roman law, between ignorance or error in law and ignorance of fact (error s. iqnorantia juris et facti). And on this subject, jurists, summarizing the provisions of Roman law, have drawn a sharp legal distinction between one and the other deficiency, a distinction that is not directly contained in the sources. It was generally recognized that ignorance of the law cannot be an excuse, that actual ignorance can have a destructive effect on all kinds of acts, and ignorance of the law can serve as a reason for restoring the previous state only to eliminate damage, and not to acquire benefits (damnum, compendium, damnum rei amittendae, d. rei omissae, etc.). This rule was based on an arbitrary generalization; Savigny did not consider it possible to restrain him, but pointed out another, more reasonable and correct basis for judgments about error of both kinds - the excusability or inexcusability of error. On this basis, it is inexcusable, for example, not to know a general and well-known law or circumstance, it is inexcusable not to know what one could not help but think about and what was easy to find out; What is inexcusable for an adult and educated person may be excusable for a child, a woman, a peasant, etc. In general, in all civil codes of Western Europe there are definitions on the effect of error taken from Roman law: the Prussian law speaks in more detail about this subject and the French law speaks most moderately (does not mention the difference between erreur de droit and er. de fait). These rules require careful interpretation when applied to practice, because they are based on general conclusions from Roman law, which are not always correct. But even where there are no direct definitions in the positive law, it must be assumed that a mistake can serve as a reason for the destruction of a contract or the cancellation of its consequences, when there is no doubt that it related to an essential subject, the consideration of which determined the will of the parties when concluding the contract. Of the new codes, only in Italian the law decided to recognize the effect of errors about law (Art. 1109). “A misconception about law destroys a contract only in the case where it was the sole or main reason for the transaction.” This rule turned out, however, to be extremely difficult to apply in practice. Our law says that all methods of acquiring rights are only recognized as valid when they are established on the basis of unforced arbitrariness and consent (Article 700). Freedom of agreement in a contract is violated by coercion and forgery (Article 701 of the Civil Code): here the negative agent is also error, but not accidental, but caused by the arbitrary, deceptive action of the other party. Deception, forgery, fraud are criminal offenses (Clause Punishment Art. 1665–1680, 1690–1693); It is obvious that a crime in no case can serve in favor of the person guilty of committing it, that an agreement based on forgery or deception cannot have legal force, and that the offender is also responsible for the consequences of deception or forgery. Our laws on contracts do not at all contain general provisions on the effects of error and misconception. Only about spiritual wills it is said that orders made with an obvious mistake in person or property are invalid (Article 1026) 7 . However, since by the very essence of the case it is impossible to deny the significance of an important error in contractual relations, our judicial practice takes it into account, as can be seen from the examples. When both parties disagree on the understanding of certain terms of the contract, the court will have to determine their normal meaning according to the literal and internal meaning of the contract. One of the parties does not have the right to refer to an erroneous understanding of its obligation defined by the contract, and on this basis justify its violation or non-fulfillment of the obligation; She does not have the right to refer to the ambiguity of the verbal meaning of the agreement in her justification. That's what Cass said too. Dep. Senate in decision. 1876, N 394. In this case, the purchase order stipulated that the deed of sale should be completed by September 23, and the draft deed of sale was signed on the 23rd. The Chamber excused the faulty party from the penalty on the ground that it may have been mistaken as to the time limit. If both parties had the same consciousness about the meaning of the condition, then even if it later turned out to be erroneous, it should be recognized as binding for them, since it expresses the will and intention of both parties. The state-owned land was taken by the peasant on a quitrent basis for three years, but was soon transferred by the renter, with the consent of the state chamber, to another person with whom the contract was rewritten by the chamber; it mistakenly put 12 years instead of a three-year period. The Senate decided to leave the contract in force, despite the error, according to the rule on the exact execution of contracts with the treasury (Sb. Sen. Resolution I, No. 68). Medvedev sold Anisimov a 4% metal ticket worth 300 rubles. without a coupon. It turned out that such a ticket without a coupon has no meaning. The court recognized that both parties, unaware of this and thinking of concluding a transaction for real value, concluded it for an imaginary value, and therefore decided to destroy the sale. The Senate justified this reasoning as consistent with Articles 1516 and 1518, since there was such an error in the basis of the transaction, upon discovery of which the transaction turned out to be invalid and unenforceable from its initial moment due to the lack of the subject of the contract (Cass. decision 1875, N 858). For the case of destruction of a sale due to an error regarding the essential qualities of the thing sold, see Cass. decide 1873, N 1450. A painting by the artist Murillo was sold, which later turned out, according to experts, to be a painting not by this artist. The Senate decided that the purchase and sale was based on an error recognized by both parties and certified by knowledgeable people, upon the discovery of which the transaction itself turned out to be, from the moment of its preparation, invalid and unable to be carried out due to the lack of the subject of the contract. A similar question arose in St. Petersburg. District Court in 1874, in the case of Gross and Akhochinsky about a painting bought for a painting by Grez, which later turned out to be, according to experts, only a bad copy. The Blessig trading house, according to a broker's note, sold 3,000 pounds of foreign malt to Durdin on September 13, 1876 at 1 ruble. 10 kopecks for a pound, but a few days later he refused the conditions, citing an error regarding the cost, since he acted on the basis of a letter from a Breslau correspondent offering the remainder of the malt at a price of 2000 centners; but on September 14, I received a telegraphic notification from the same correspondent that it was an error showing 2000 instead of 1000, which corresponds to the actual market price on the spot. Durdin, on the contrary, demanded strict execution of the contract. The Commercial Court, based on the brokers' certification of the actual prices of malt on the market, recognized in the case an obvious error in an essential subject. But in the final decision of the case in the Senate, although it was recognized, in accordance with Article 700, the destructive effect of an essential error, at the same time it was accepted that if the error of the party was that it incorrectly determined the price of the item, such error does not relate to the subject of the transaction, for the value of the thing is not its essential property, but random, changing due to various circumstances and personal considerations of the parties (2 General. Collected. Sen., 7 Sept. 1879). Gr. On May 20, 1872, Adlerberg gave Lyaski an order to retain 100,000 rubles at his expense. shares of an international bank for their upcoming issue. To this Lyaski replied on May 23 that he would carry out the order to buy for 100,000 rubles. shares at the time and price of their issue. Meanwhile, back in April of that year, an international bank issued an order to issue shares not by subscription, but through their introduction on stock exchanges, as a result of which all shares were transferred from the bank to the Austrian credit society, and the first issue price was set at 150 rubles. for St. Petersburg. This resolution of the bank's shareholders was published in newspapers back in April of the same year. In execution of the order, Lyasky notified gr. Adlerberg, which was purchased for him for 100,000 rubles. shares from an Austrian credit company at the announced price of 150 rubles. Adlerberg did not object to this, he used his shares stored in the bank and received a dividend on them on the bank's current accounts, and in the first months the shares rose in price, and in September they began to fall. But after 11/2 years after accepting the shares, gr. Adlerberg sued Lyaska for the destruction of the deal, proving that he was misled, because he expressed his intention to hold the shares at the issue price of the bank itself, and they were purchased for him at the exchange price, therefore he asked to recover from Lyaska the difference between the issue price of the shares and the one at which they were purchased. But the mistake in the present case was recognized as inexcusable, since the customer at the time of the order could have known with certainty that there would be no direct issue of shares by subscription and that all of them were assigned to the credit company. Then it was up to him, at the first notice of the price of the shares, to refuse to purchase them; but he accepted them without objection and used them for a year and a half (decision 1 of the General Meeting of September 1878). Our laws mention coercion in the chapter on methods of acquiring rights to property. It says here (vv. 701–703): freedom of arbitrariness and consent is violated by coercion. Coercion occurs when someone, having been captured in the power of another, is forced to alienate property or enter into an obligation by force, by fear of present or future evil that may befall his person or property. In case of coercion, you should report it to devious people or the police on the same day as it happened, and then, no later than a week after that, ask for an investigation. By this rule, which is taken directly from the old code, which defined only the exceptional case of gross violence, the concept of coercion is overly constrained. The literal meaning of Art. 702 does not make it possible to connect with it the concept of moral coercion, no matter how clear it may be, and judicial practice further constrains the meaning of the article, recognizing that only coercion that is punishable by criminal law can be considered a violation of freedom in the commission of acts, and that the civil court must in such cases wait for a criminal verdict. One can hardly agree with the last conclusion. When a question arises in a civil court about the validity of an act forced by force, there is no reason to deny the civil court the right to decide this issue, since it concerns a civil basis, independently and independently of prosecution for a crime. Regarding what is stated in Art. 703. The seven-day period raises the question: is it possible, if it is missed, to prove coercion in civil proceedings and on this basis demand recognition of the act as invalid? Court. Cass practice. Dep. The Senate has already decided this issue in the affirmative, which is completely consistent with both the essence of the matter and the historical significance of Art. 251. X Ch. Code, which related to the order of the previous investigative and criminal process. Behind all this, however, the concept of coercion under Art. 702 includes not just fear of present or future evil, but at the same time also violent action, and therefore it is impossible to base the opinion of those who believe it is possible to expand the meaning of this article, including in it the concept of moral coercion, or so-called, on the law. indirect coercion. Others also include under the concept of coercion a transaction in which the creditor, taking advantage of the extreme need or dangerous position of the debtor, raises his demand to the point of excessiveness, to which the debtor is forced to submit. To allow coercion in such cases would be incompatible with either the precise concept of coercion or the firmness of civil transactions (see the discussion on this subject in the St. Petersburg Legal Society J. Gr. Prava 1877, No. 6). According to Art. 703–705 (Articles 704 and 705 in the 1887 edition are shown replaced by the corresponding articles of the Code and the Charter on Punishments) Cass. Dep. The Senate (dec. 1876, N 398) finds that the law does not mention the consequences of missing the deadline for filing a statement of coercion. There is no deadline under criminal laws (1686–1689 Code), therefore, according to the general rule, Art. 158. Legally, prosecution in cases of this kind can be initiated before the statute of limitations expires. So, the seven-day period does not have decisive significance in civil claims for coercion, because a civil claim, according to the interpretation of the Senate (for the destruction of an act), can only be based on such coercion that is punishable by criminal law. Cases of moral pressure when issuing an obligation, not fitting the criteria of a crime, do not contain a reason to recognize acts as invalid (cf. Cass. decision 1876, No. 582). This reasoning of the Senate is explained by the case to which it relates and in which the court attached too broad a meaning to moral compulsion. The court brought under this concept the agreement between the railway and the shipper, in which the management abdicated responsibility for the safety of goods sent not in hermetically sealed premises. Similar reasoning in Cass. decide 1878, N 154. Our civil law considers a violation of freedom of arbitrariness and consent in the acquisition of rights to property (Article 700–703) only such coercion that is punishable by criminal law. Consequently, a civil court can begin a claim for damages from such coercion not before the end of criminal proceedings (Cass. decision 1868, No. 785). Chapter five. Interpretation of obligations § 16. Interpretation of the contract. – General rules of interpretation under Roman law and Russian legislation. The agreement must not only be simultaneous, but at the same time complete and perfect. But, speaking about the completeness of the agreement, it is necessary to distinguish the essential parts from the non-essential parts in the contract. You can be content with the completeness of the essential parts of the contract, and in this sense all the side regulations, definitions, for example, the manner of execution can be called not essential. Just like the law, so too, an agreement between private individuals is not able to embrace in its letter all the details and consequences arising from the agreement and determine all the particulars. And therefore, confusion can easily arise about the real meaning of the contract: then and here, just as when there is doubt about the meaning of the law, it is necessary to restore in the dead letter the living meaning of the agreement of the will, which is expressed in the contract; what is needed is an interpretation of the contract, provided in the event of a dispute by the judiciary. For this interpretation, due to the variety of contracts and external expressions of will, it is very difficult to establish general rules, however, some guiding principles, borrowed from Roman jurists, are adopted in all legislation. These rules are all guidelines, but it is quite difficult to consider them absolutely mandatory. Just as it is not typical for a positive law to indicate mandatory rules, for example. human thinking, or obligatory techniques for the technique of art - it is also not characteristic of it to prescribe unconditional rules of interpretation for a judge, for interpretation is a mental process, it is the same process of conclusion from the known to the unknown, in which the mental activity of the judicial rank and the moral law of the judge consist. The placement of such rules in the law has the same meaning as the formal theory of evidence had in the past: the law, which did not dare to give the judge complete freedom of judgment, bound him with formal rules. Now the court has gained freedom in discussing evidence, but the rules for interpreting contracts remain in law. It is noteworthy, however, that failure to comply with these rules is not considered, for example, in France, as a reason for reversing a court decision. The first rule is this. Where the parties agree among themselves in the meaning of the expression of the contract, the court itself does not have the right to look for a different meaning: it can only begin to interpret those speeches about which there is a dispute and disagreement between the parties. When an ambiguous expression is encountered, it should be given a meaning in which the action to which it refers could be more conveniently performed: it is assumed that the parties intend to facilitate, and not to complicate, the execution of the contract. Ambiguous expressions are interpreted in the sense that most closely matches the essence of the agreement. – The custom of the locality where the contract is concluded is taken into account when clarifying unclear or ambiguous terms and expressions. When interpreting speeches grammatically, one should not look for a special meaning in words, when the general meaning, according to general usage, is sufficient. Other things, which are silent in the contract, go without saying, when it may be assumed to be necessary by law, by justice, by custom, by the way they usually act in such cases: such, for example, are the terms of rent, refusal, payments, commonly used in one area or another, a measure of interest, etc. All terms of the contract are usually interpreted in mutual connection, applying to the essence of the whole act. It is assumed that the will of the contracting parties relates only to what they might have had in mind when concluding the contract, and not to what was not intended. For example, a house and books were left to me in a will. I enter into an agreement with the heir, who undertakes to satisfy me; By concluding a deal with him for money, I announce that I then renounce all my rights to the bequeathed property. After that, another will of the same person is opened, by which he assigns me more diamonds: it is obvious that the previous transaction does not extend to this property. The following rule is of particular importance. In case of doubt about the expression of the contract and the impossibility of explaining it from the content of the act itself, the ambiguous expression is interpreted in favor of the one who has undertaken to give or perform something. At first glance, this rule seems strange and is quite difficult to understand without explanation. Otherwise, the literal application of this rule would be impossible when the contract is bilateral, and both parties are mutually obligated to give or perform, or when it comes, for example, to an obscure and ambiguous act presented by the debtor as evidence of payment under a loan letter. When expressions in a contract allow for different interpretations, then one of the interpretations, therefore one or another decision, will be in favor of one or the other party, and therefore, to the detriment or disadvantage of the enemy party. On which side is there an advantage, on what disadvantage, when there is no means to determine the true meaning of the expression based on the content of the agreement? Roman jurists answer this: in case of stipulation, the disadvantage falls on the creditor; in case of sale and rental, the disadvantage falls on the seller and on the lessee. This rule is based on the following general consideration. Every contract must contain complete agreement. But before an agreement, negotiations are carried out, with one party offering the other its terms, and the other either accepting these conditions, or rejecting or changing and offering its own. If this is the position of the parties and there is ambiguity in the proposed conditions under which the agreement was made, then the proposing party can most likely be considered the culprit of this ambiguity: she could have done this out of cunning or negligence, while it depended on her to determine the condition with greater accuracy. The essence of the stipulation was precisely a simple offer on the one hand and acceptance on the other (spondesne? spon-deo). In the stipulation, this action was related to the strict form of the contract: other types did not have such a definite form. When selling and renting, it is natural to assume an offer on the part of the seller and the owner: this person may know better both his thing and all its accessories; it proposes, therefore it must also be responsible for the ambiguity of the proposal. But in these and other agreements, this position of the parties can change: the proposal can be on the other side, and from which side in the contract the activity is visible, the proposal is visible, the disadvantage of interpretation passes to that side, and on which side the passive role of the recipient appears, the benefit passes to that side. The pandects give the following case: the buyer of an estate demanded that the slave Stichus be sold with the estate together: this was decided, and then it turned out that there were several slaves of this name on the estate. It would be necessary to interpret the contract in favor of the seller against the buyer, since determining activity is visible on his part. In our legislation, since 1830, similar general rules for the interpretation of contracts have appeared. They appear to be taken directly from French legislation. Contracts must be explained according to their exact reason (1536) and, above all, according to their verbal meaning (1538). And when the verbal meaning presents important doubts, then contracts must be explained according to their intention and good conscience, i.e. which should be understood from the normal essence of the transaction and assuming the good faith intention of the parties, without hidden thoughts. In this case, the following is observed: ambiguous words are expressed in the mind most consistent with the essence of the main subject. It is not blamed when a word or expression is omitted that is generally used in contracts and therefore goes without saying. Vague articles are explained according to those that are doubtful, and in general according to the rationale of the entire agreement. When the subject is not precisely defined by the contract, but there is a legal definition of the subject, then it should be explained by law or custom, if there is no law. Finally, when, on the basis of all these rules, it is still not possible to clearly interpret the contract and there is equal confusion on both sides, then its force is expressed more in favor of the one who has undertaken to give or perform something, out of respect that it depended on the other party to determine the subject with greater accuracy (Article 1539). The basis for determining the true meaning of the will of the parties, as expressed in the agreement, is solely the agreement itself. In case of confusion, interpretation is allowed according to the rule of Art. 1539. But it is impossible to accept testimony in the manual to resolve a dispute about the literal meaning of the contract (Cass. decision 1867, N 208). Interpretation of the contract according to the rule of Art. 1539 permitted only where the literal meaning is considered unclear, insufficient or ambiguous; therefore, when the court applies Article 1538, there is no longer room for the application of Art. 1539 (Cass. decision 1867, N 221). What are the secondary circumstances mentioned in Article 1536? The law does not directly define, but it is clear from the text that the incidental circumstance is contrary to the exact reason of the contract. Therefore, when deciding whether the contract has been fulfilled, whether the contract has been violated, or whether the party is at fault, it is impossible to take into account circumstances that, in essence of the contractual relationship, are not related to the right or obligation of the party (Cf. Cass. decision 1867, No. 191). Example. An apartment was rented on the condition that the tenant does not have the right to leave it before the deadline, and in case of leaving, he must pay for the entire time before the deadline. The tenant moved out, and subsequently defended himself against the claim by the fact that there was dampness in the apartment and it became impossible to live in it without harm to health. Is this a secondary circumstance - dampness? Otherwise: is it possible to admit that due to dampness, the defendant could, without violating his duty, leave the apartment? In a similar case, the Senate (Cass. decision 1867, N 143) recognized that it was possible. In general, to correctly resolve the issue, it is necessary to judge: 1) the essence of any relationship under a rental agreement: whether the owner of the property is obliged in any case to provide the tenant with quiet and completely satisfactory use of the property, according to its type and economic purpose; 2) how the will of the parties was determined in the text of the contract: in which direction is the assumption about the harm of silence (Art. 1539 d.); 3) what kind of dampness there was - was it such that further stay in the apartment became absolutely impossible; 4) what did the dampness depend on - on the apartment itself or on actions related to the will of the owner or tenant? The tenant assumed the obligation, in the event of a fire on the rented estate, to pay the owner the due amount. Discussing the claim that arose in this regard, the court based its decision on the consideration of whose fault the fire occurred. This was a collateral circumstance, because the obligation was established by the contract regardless of guilt (Cass. decision 1872, No. 349). A loan letter was issued for a period. But at the same time, a separate condition was concluded, by which the creditor undertook not to collect either capital or interest during the life of the debtor, and the debtor, in the event of expiration of the statute of limitations, undertook to renew the loan letter. When the loan letter was presented for collection during the life of the debtor, the court refused to collect on the basis of a separate condition. This is not a secondary circumstance, but the exact force of the contract (Cass. decision 1868, No. 29). When a court explains a contract according to its verbal meaning and precise reason, the judgment must be based solely on the expressions of the contract itself. Therefore, the Senate in 1868 (N 850) overturned the decision in which the court explained the deed of sale according to the terms of the sale record and recognized the forest on the estate as excluded from sale, although such an exception was not mentioned in the deed of sale. But when, due to the ambiguity of the literal meaning, the contract is interpreted according to intention and good conscience, the court has the right to take into account any documents presented by the parties, which can explain the purpose and intention of the parties when concluding the contract, according to the circumstances preceding or accompanying it. On this basis, in 1874 (No. 573), the court was justified in interpreting the bill of sale according to the terms of the sales record. The sold estate turned out to have a lease agreement with a third party. This agreement was not mentioned in the deed of sale, but in the sales note it was said that the land was being sold free of lease. On this basis, the seller is recognized as obliged to satisfy the buyer for the grain collected for his benefit by the tenant (see. still 1874, N 625). An explanation of the deed of sale through a sales record is possible when the court, after a cumulative discussion of all the circumstances of the case, comes to the conclusion that when making the deed, the parties did not intend to change the meaning and conditions of the sale and that no new agreements were made between them on this subject (Cass. decision 1874, No. 573; 1877, No. 131). In the Grokholskaya case (2nd General Collection. September 10, 1876), it was recognized, based on the sales note with the deed of sale on the issue of a penalty, that the last act did not cancel the first, but that both complement each other. Significant confusion arises about the material subject of the contract and about its accessories, since this is often the subject of a dispute between the parties: what has someone undertaken to transfer or deliver for use to whom, and whether what has been transferred in size and value corresponds to the contractual understanding of the parties. These confusions have to be resolved according to the rule of Article 1539, i.e. based on the agreement in its entirety, to determine the will and intentions of the parties. For example, three plots of forest were sold for felling and it was determined how many dessiatines were included according to such and such a plan. One plot, which according to the plan showed 109 dessiatines, turned out to be, according to actual measurements, no more than 88 dessiatines: a demand arose for the return of the money paid according to the calculation and for compensation for losses. It was necessary to decide what exactly was the subject of the transaction in the minds of the parties: an entire plot or a certain number of acres in the plot. The plaintiff's justification is that he did not see the plan when purchasing and only checked the forest several years after the purchase. The court acquitted the defendant, recognizing that, within the meaning of the contract, it was not the forest in number and measure that was sold, but the plot according to the plan. It was up to him to demand a plan before signing the contract and check it or protect himself with the condition that the seller is liable for the missing quantity (cf. Cass. decision 1867, No. 22). Interpretation according to custom, for example, when when selling timber for felling, the thickness of the log is indicated, but it is not explained whether it is calculated by the upper or lower cut, then a general custom or in a given area can be adopted to resolve the confusion. In the village of Magdenko, regarding a penalty under a contract, it was necessary to decide whether the owner of the estate, on the basis of the contract, had the right to exclude the tenant from using some of its parts. The defendant owner justified himself by saying that the lease extended only to 2,550 des. on the estate. It was necessary to clarify the difference of opinion about the meaning of the contract, on the basis of Art. 1539. The reasoning about this was as follows. Although the total number of acres of land in the estate received for rent was stated at 2550 dessiatines, it was not stipulated that the tenant does not have the right to extend his ownership by more than 2550 dessiatines; execution of the contract in this last sense would have been impossible, because in the contract there was no demarcation of a certain area, namely in 2550 dessiatinas, and, according to the meaning of the contract, a whole estate was received for rent, consisting of a collection of different lands and economic establishments, in its entirety; Moreover, the agreement itself provided for the final determination of the amount of land belonging to the leasehold to be followed by the redemption of the peasant plot. Definitive exceptions were made from the rental use of the estate in the agreement itself, and thereby it was indicated that everything else, except for these exceptions, should be included in the rental ownership. These exceptions applied to peasant plots and sub-church land, to houses and estates; Moreover, the owner of the estate negotiated for himself the supply from the estate of life supplies and fodder in oats and hay in a certain quantity, as well as the possession, use and disposal of fruit trees, i.e. “transplanting them, tinting them and using fruits.” Finally, the tenant took upon herself the payment of zemstvo duties for the whole estate. All of the above leads to the undoubted conclusion that the subject of the lease was the entire Magdalinovka estate, and not 2,550 dessiatines. as part of this estate, and that this amount was indicated in the contract only as an approximate figure, and not in the sense that the tenant can only 2550 des. to extend one's possession (Mn. State Sov. 1878). According to the village of Zhdanovich (Mn. State Sov. 1874) State. Sov. reasoned that the conditions for collecting a penalty, as a fine for non-fulfillment, especially require an accurate definition of the literal meaning of the contract, without extending it. Therefore, when in one clause of the contract there is a penalty for certain violations, and in another clause, where other actions are discussed, the penalty is not mentioned, then the effect of the first clause, by analogy, cannot be extended to the last. In general, when doubt is raised about the exact conditions under which the penalty is expected to be collected, this doubt, by virtue of Art. 1539, should be interpreted in favor of the party liable to the penalty, since it depended on the enemy to determine the subject more precisely. In the contract for the supply of firewood, it was stipulated that when producing on site (by July 1), logs of such and such a measure should be used in the masonry and the sawn firewood should be placed in half-plants of such and such a measure, the entire quantity must be delivered by the deadline of October 1, and upon delivery, the contractor undertakes that each half-plant should be of a certain measure, assuming a certain concession and draft; finally, in a special clause it is said: if, by virtue of this condition, I do not deliver the appointed quantity, then I undertake to pay such and such a penalty. The plaintiff for the penalty argued that it was subject to recovery even in the case where each individual load of firewood produced by July 1 did not correspond to the measure determined for each half-plant. But the Senate recognized that the penalty requires a strict and non-exclusive interpretation. The clause in which it is established shows that it is due for failure to display the quantity assigned for sale by the deadline; of course, the completeness of the entire mass of firewood, and not the perfection of each of the 6000 individual parts. Whether the entire amount of firewood was produced could be ascertained only upon delivery itself, and the deficiency in some parts could be replenished with a surplus in others. The plaintiffs' claim relates to a time when actual delivery had not yet begun. Therefore, the claim was denied (decided by the Moscow General Meeting of September 1858 for the village of Kulagina). The contract stipulates that hired money must be paid for each third in advance, but if within a certain period of time a third of the payment is not made, then a penalty is considered. A dispute arose about when the penalty occurs, on the first day set for paying a third in advance, or on the last day of the whole third? The court reasoned that in general it is more natural to assume the possibility of payment for a whole third, that nothing in the contract contradicts this assumption, and that the previous payments under the contract for a third were accepted unquestioningly and did not raise claims for penalties (Cass. decision 1867, No. 146). The lease agreement does not specify payment terms. But doubt on this subject is eliminated by the fact that, according to the inscriptions on the contract, actual payments were made in thirds in advance without objection; therefore, this was the intention of the parties (Sb. Sen. decide. I, No. 6). The contract must be executed according to its exact meaning, i.e. performance must be the same as determined by agreement of the parties. Change on this subject depends solely on the agreement of the parties. If the contract is not fulfilled or violated, then the guilty party is liable to the right, according to the terms of the contract, or for losses caused by an action contrary to the contract. The court, when resolving a dispute about a contract, has the right to interpret its unclear terms, but does not have the right to deliberately bring them into a new form, changed even as a result of events that were unforeseen or independent of the will of the parties. If a reduction or increase in payment or obligation lying under an agreement on a party is expected, then this can follow only by virtue of the terms of the agreement, or according to the principles specified in the law, but not according to the reasoning of the court alone. In this sense, Kass took place. decide 1869, N 1191. The estate with the brewery was leased, and the rent was set for everything in one piece. During the lease, the plant burned down, and the tenant demanded a corresponding change in the rent for the amount shown to him. The court, without placing blame for the fire on either side, decided to recognize the plaintiff's right to a rent reduction. The Senate decided that this decision introduced a new condition into the contract, which was not in the contract (cf. Cass. decision of 1870, No. 149 and 1534). Chapter six. Change in obligations § 17. Change in existing obligations. – General reasons for changes in rights and obligations under the contract. – Derogation from rights and assignment. – Violation of duty, guilt. – The concept of attention and care and responsibility. – Deceleration and its signs. – Responsibility for delay. It may happen that an established, established obligation, without being destroyed, undergoes a change, so that the former obligation takes on a new direction, a new content, a new meaning, different from those that it had at its initial origin. This happens primarily at the will of the persons participating in the obligation: they may wish to make a change, an addition to the obligation, so that what emerges from this is not a new, special obligation, but only expands, is constrained, otherwise the content of the previous one is determined. The obligation itself may contain such conditions under which the party is given, in accordance with a random event, to give one or another meaning to the obligation or to exempt himself from one or another obligation. The party that has the right to claim under the contract may reduce the extent or method of its claim, or renounce it altogether: this depends on the unilateral expression of will, if, along with the reduction of the claim, the rights of the other party do not change. Such an expression of will can be expressed either in writing, in order to determine the further relationship under the contract, or in action regarding the execution of what is committed by the guilty party. In the latter case, it is up to the court to determine, based on the meaning and significance of the action, whether it can be valid as a determination of the further relationship between the parties. Our law contains Art. 1547. Zach. Citizen says: if the party having the right to demand performance voluntarily renounces its right in the whole agreement or in part, then the validity of the agreement in whole or in part is terminated. But this concession is invalid if it is made to the detriment of a third party. Unilateral or mutual renunciation of rights arising from an agreement, expressed in the form of a written act, must also be written; simple silence about a right, failure to present a claim about it, acquires the force that destroys the right only under the law of limitation (Cass. decision 1867, No. 440). On this basis, the failure of the tenant of the apartment to declare within five years that one room was not provided to him under the contract is not recognized as a renunciation of the right. The refusal of the counterparty, upon the occurrence of a case foreseen by the contract (for example, in case of late payment) of his right to destroy the contract before the expiration of the term, is essentially nothing more than consent to the continuation of the same unterminated contract. Therefore, and since such consent is not associated with a change in the contract, a special written act is not required to certify it (Cass. decision 1878, No. 45). A renunciation of the right under an obligation is considered to be filing a claim in an amount less than what would rightfully be due. This renunciation is covered irrevocably by the legal force of the decision on such a claim (Cass. decision 1875, N 857). When an agreement is concluded with the issuance of a deposit, then its voluntary return does not serve as a sign of the destruction of the agreement, and receiving it back does not in itself mean a renunciation of the rights under the agreement (Cass. decision 1870, No. 223). – Failure to protest or announce a defect of the obligated person under the contract does not in itself serve as a sign of renunciation of the right and does not restrict the right to claim satisfaction for the defect (Cass. decision 1875, No. 156). – Acceptance of payment after the deadline does not mean a renunciation of the right to demand it on time and satisfaction for the malfunction (Cass. decision 1872, N 588; 1875, N 254). – It does not serve as an excuse for a person who fails to make a periodic payment on an obligation on time that in previous terms payments were accepted from him after the due date, without objection or protest: this failure by the other party to exercise the rights for the previous time does not constitute either a modification of the contract or a renunciation of the right (decision Sar. Pal. in Cass. decision 1878, N 170, 183). From an existing obligation and the relations arising from it, new obligations and relations may arise as a result of the free actions of one or the other party, by which the obligation or normal position to which the party is entitled by virtue of the obligation is violated. A violation of a right or an illegal action may be the cause of an obligation that did not previously exist. Everyone has his own legal sphere in which he can demand the inviolability of his person and his property. Whoever arbitrarily touched this sphere or by action violated the legal dominance of the owner in it is guilty, bears responsibility for his action and through this action enters into an obligatory relationship with the one whose right was violated by him. This is how obligations are formed from actions that form the subject of a special presentation (see at the end of the book). But regardless of this, each existing agreement presupposes a set of special rights and special obligations under this agreement. By entering into an agreement with another person, I create for myself a special legal position in relation to a certain subject of the agreement; By connecting my will with someone else’s, I gain the right to demand a certain object, a certain action in a certain direction, and accordingly, I assume a duty. As soon as the other party, bound to me by the agreement, takes an action not in accordance with the agreement, not in accordance with its essence, not in accordance with my right arising from the agreement, this will be a violation, an unlawful action. This may create a new obligation for the guilty party. For example, I rented a house and undertake to return it, clean it at the end of the lease, pay rent, etc.; but I ruined it, tore the wallpaper, broke through the wall, got damp, etc. Hence the obligation to compensate for the loss and correct the damage. A violation raises the question of imputation, which in the civil sense leads to compensation for harm and loss, according to the extent of guilt. Guilt comes from a lack of due attention to one’s own duties and to the rights of others. Attention here receives a legal meaning, and therefore lawyers have long turned to the analysis of this concept and tried to determine, in the legal sense, the shades of both attention or care, and guilt from inattention to what is happening. Attention is usually determined by two measures. One attention is that which can be assumed from experience that every reasonable person has regarding his affairs and property (diligentia in abstracto, quasi diligens pater familias); the other is that which turns out to be in relation to one’s own affairs, one’s property, to the one who in this case must answer in relation to someone else’s (diligentia in concreto, quam quis suis rebus adhibere solet). The first measure is normal, objective; the latter is a hesitant, personal measure and requires from a given person at least the same care for someone else’s as he applied to his own. In connection with this division, the measure of guilt was also established. From the opinions and provisions scattered in the sources of Roman law, former jurists usually derived three categories of guilt: grave, light or minor, and the lightest (culpa lata, levis, levissima). Responsibility for guilt was determined, according to Ulpian's rule, as follows. Where the agreement tends to benefit the creditor, the debtor is obliged to take care of his rights and property no more than they take care of his own, and therefore is responsible only for grave guilt. Where the contract tends to benefit both parties (sale, rental, etc.), there the debtor is obliged to take care of the subject of execution with great economic zeal, and therefore is responsible for minor faults. Where the agreement tends to benefit the debtor (for example, a loan), there he is obliged to take care of the property with all possible care, even more than the zeal of a master, and therefore is liable to answer for even the smallest guilt. This formal theory led in practice to many difficulties: in practice it is impossible to separate with a clear line the signs of one guilt from the signs of another. That is why it has recently been rejected by both science and legislation. The threefold division of guilt was still retained in the Prussian code; the Austrian code (Article 1294), without establishing categories of guilt, speaks simply of guilt arising either from unpardonable ignorance, or from lack of attention, or from a lack of zeal (Fleisses). The French code also did not accept the Roman division of guilt, although it sometimes mentions important guilt (fautre grave), however, in a simple rather than formal sense. French law obliges everyone to treat the subject of the contract in good faith, i.e. no less concern for someone else’s as for one’s own (this generally means both zeal and guilt in concrete); then the general rule on contracts (Article 1137) states: whatever the contract, i.e. whether it tends to benefit one party or both parties, everyone who is in charge of preserving a thing is obliged to take care of it, as is characteristic of a good owner (tous les soins d'un bon pére famille, therefore, diligentia and culpa in abstracto). This obligation - added in the article - is more or less extensive, depending on the nature of some contracts: indeed, in others, care for a thing is required more than the owner's (such as, for example, the obligation of someone who has accepted an order or a special assignment for money). But in addition to an illegal action, a violation that gives a new type of obligation can also be inaction, and evasion from action, from fulfillment. This is the so-called Säumnis, Verzug, mora, demeure - delay, evasion, retention. Any obligation must be fulfilled within a certain time, determined either by the subject and nature of the fulfillment, or by the will of the parties. The one in whose favor the execution is intended has the right to expect that it will follow on time, because otherwise he suffers damage to his interest. But the person obligated to perform, being released from the obligation by performance, has the right to expect that there will be no delay on the other side in accepting and recognizing the performance: otherwise, the obligated person will also be subject to damage. This is the meaning of delay: on the one hand in execution (mora solvendi), on the other hand in acceptance (m. accipiendi). Not every late performance is associated with delay in the legal sense. You can be late without guilt, but there is no delay without guilt. Delay is always associated with guilt on the part of the one from whom it came, for it presupposes consciousness, and, moreover, a mutual one, of the obligation to carry out execution at a certain time. Delay refers to a positive action, and therefore, when the fulfillment of a contract does not consist in action, but in omission or omission (in patiendo), then there can be no delay in non-performance. Delay refers exclusively to time, and not to the object or manner of performance: when in an obligation the manner of performance is identified with time, so that performance takes on meaning at only one certain moment (for example, the obligation to deliver a passenger to the railway right before the departure of such and such a train), then delay in performance merges with the failure to fulfill the obligation and has no separate meaning. Delay in execution in mutual contracts may occur on both sides. The necessary signs of deceleration are as follows: 1) The mandatory period must come. 2) It is the obligated person who must be guilty of withholding performance, and he alone must be guilty. 3) There must be an undoubted consciousness of the obligated person that his obligation has come to be fulfilled. For this, on the part of the demanding person, the creditor, a personal action must be performed, by which the debtor is clearly brought into such consciousness, i.e. there must be a demand for fulfillment, an invitation to fulfill (interpellatio, Mahnung, sommation). It must be declared at the proper time, in the proper place, to the proper person. It is assumed that at the moment when fulfillment occurs, it is not the debtor who follows the creditor, but the creditor who follows the debtor. This is the general assumption (mora fieri intelligitur non ex re, sed ex persona). However, it would be unfair to apply it to those cases in which, either by special agreement of the parties, or by the nature of mandatory performance, the arrival of a deadline, in itself, should prompt the obligated person to immediate and undoubted performance (dies interpellat pro homine; mora fit ex re). The first of these two provisions took the form of a general rule in classical Roman law; the latter in German law. In perpetual obligations the soundness of the Roman rule is undoubted; but the question of what should be the general sign of delay in urgent obligations is still one of the controversial ones. The latest German legislation generally allows that when the time of performance is precisely indicated in the contract, then the debtor, without waiting for the requirement, must fulfill it himself, and if he does not fulfill it on time, then he exposes himself to the consequences of delay. On the contrary, French law, retaining the ancient view of French novelists, recognizes that delay on the part of the obligated person begins only from the moment when the person who has the right to demand has invited him to perform through a public act, i.e. or formal somma-tion through a bailiff, notary, or through another appropriate act (demand en justice, assignment, citation en conciliation. Code civ. 1139). Few exceptions to this rule are allowed - for obligations of strictly action (1145, 1302, 1153, 1378, 1379, 1653, 1657, 1846 Art. Code civ.). On the contrary, the Italian code deviates from the Roman view, decreeing (Art. 1223) that in obligations - to give or to fulfill, dies interpellat pro homine; but when the period expires after the death of the debtor, delay for the heirs begins only upon filing a claim. Delay is associated with guilt, but there may also be cases of innocent and therefore irresponsible delay. These are cases where, after delay, the demanding person entered into a transaction with the guilty person, which covered the consequences of the delay; when the delay of one party is balanced in the subject of execution by the skill of the other (for example, in accepting the sold thing); when there was an unconditional impossibility of fulfillment, dependent on an external force majeure. This last category includes deferments and excuses provided by law or the government in exceptional cases (for example, in military circumstances) to certain individuals and classes (military personnel during a campaign, etc. Term: moratorium). The main effect of delay is that with it is associated responsibility for all its material consequences. If the subject of the action is a thing that should have been accepted or given, then this thing remains the responsibility, in the hands of the one on whose side the delay is. Fear for the incident and its consequences remains with the perpetrator (periculum in mora, peril en la demeure). For example, if the thing was destroyed, died, burned, etc. after the appointed time, when the person having the right should have accepted it, but did not accept it, then this loss is borne by the person guilty of delay, if he cannot prove that the person in whose hands the thing remained was guilty of its loss or destruction, or that the thing would have perished in any case regardless of the delay. If the thing remained in the hands of the obligated person and this person is guilty of delay, then he is obliged to compensate for the loss. The obligation, in all its value, despite the destruction of the object, remains intact (perpetuatur obligatio). In general, when something happens to a thing: change, damage, and costs are needed to preserve it or correct it, the party guilty of delay is responsible for everything. The person guilty of delay must be responsible for all its consequences, i.e. compensate the other party for all loss of interest or value of damage caused by delaying the event. He is responsible for all increments of the thing and the value of its use, for the entire time of retention after the term. This is where the so-called slowdown percentages, representing the value of using monetary capital (see above about these percentages). When determining the value of the reward, the offender is usually responsible for the increase in price since the delay. According to Roman law, the person guilty of delay was deprived of the right to choose the thing when it was presented to him by contract; in bilateral agreements, the one against whom the delay was inflicted had the opportunity, if he wanted, to renounce the agreement; But in the latest legislation, both of these rules are either not adopted at all, or are significantly softened. In order to determine in advance, in a round sum, losses from delay, the parties resort to a special agreement on penalties. This type of contract will be discussed specifically in its own place. Delay in acceptance is the fault of the one who has the right to execution. To admit this guilt, it is also required, on the part of the obligated person, to offer performance or an invitation to action necessary for performance (for example, to appear, to pay, to exchange, to accept), and evasion on the other side. In general, when a party can be accused of evasion, it depends in each given case on consideration of the circumstances. The consequences of delay in this sense are similar to those previously mentioned: fear, liability for losses and costs. Our legislation does not speak at all about the meaning, signs and effect of delay; it speaks about this subject only in relation to some obligations, such as: borrowed ones, in which delay is combined with delay, without requiring other signs, and regarding the detention of property in the hands of an illegal owner. Here, delay for a bona fide owner begins from the time the demand for the return of property is made, or from the time he learns about the irregularity of his possession, and for an unscrupulous owner from the moment possession begins (see Volume I of the course, § 21). For simple bills, delay is combined with delay (Ust. Bill. 106), for transferable bills with a protest, regarding %, and with presentation for collection, regarding other costs (Ust. Bill. 73, 118). A creditor seeking a contractual penalty, without seeking compulsion to fulfill an obligation, must prove that he demanded performance from the debtor, and then performance did not follow (Cass. decision 1871, No. 854). In this case, the tenant of the house sought a penalty from the owner for failure to deliver the rented premises to him on time. There is no reason to refuse to collect a legal penalty under open-ended loan letters, since in them the deadline for fulfillment is recognized as the presentation of a demand for execution, therefore, the delay constitutes evasion of execution of this requirement (Cass. decision 1873, No. 299). The use of the right under the contract and the demand from the other party to fulfill the obligation incumbent on it depends on the will of the one who has the right and the demand, unless the contract specifically stipulated that the obligated party is forced to act by the mere occurrence of a deadline. Therefore, there is generally no basis for blaming the guilty party for a penalty due to delay on its part in proper execution, if the other party did not make a demand for execution (Cass. decision 1873, No. 887). In this case, under a settlement transaction, one person agreed to pay the other 10 thousand rubles. debt, after two months, with a penalty, and it was not positively expressed that the penalty occurs by itself upon expiration of the period. In dec. 1879 No. 40 The Senate narrows its views to the question of whether, in order to collect a penalty, it is necessary to certify that the creditor, regardless of the delay in the obligation, has already approached the debtor with a demand for performance. In the decision on the village of Leikin, this was recognized as necessary; but in later decisions the Senate came to the conclusion that omission of a protest or announcement of a debtor’s fault, except in cases expressly indicated in the law, is not considered a waiver of the creditor’s rights. The decision of 1875, No. 872 expressly states that the right to demand a penalty arises from delay in performance, regardless of the right to demand the performance itself under the contract. When a judge has made an installment plan for a debtor, and this has been announced to him, then by virtue of this announcement the debtor undertakes to pay on time, without waiting for an enforcement notice or demand from the bailiff (Cass. decision 1874, No. 655). The receiver of the cash deposit died before the safe receipt was presented. The transferor's claim was made to the heirs, but they refused to fulfill it before presenting them with a safe receipt. Subsequently, the plaintiff demanded from them interest on the amount of the deposit from the time of demand; but he was refused because the receiver himself was not present, and the heirs cannot be blamed for not paying before presentation; without guilt, there is no reason to impose interest on them, because to collect interest on deposits, the passage of time is not enough, and, in addition, personal fault or illegal evasion of the obligated person is required (decision of the Moscow General Meeting of 1864 on the Valuevs). To Cass. decide 1876 ​​No. 394 clarifies: it cannot be recognized that a person who has the right to demand performance under a contract should, upon the arrival of the agreed period, announce his readiness to perform those actions that may be required to provide the other party with the opportunity to begin fulfilling the contract. This readiness, until the contrary is proven, is assumed by itself, and the ignorance of the person obligated under the contract about the readiness of the other party cannot be considered a legal excuse for non-fulfillment on the other side. In this case, the court (whose decision was being reviewed), justifying the party in not issuing the bill of sale by the appointed time, reasoned that the other party, in order to preserve its right to a penalty, should have demanded that the enemy appear before the notary to draw up the bill of sale. The law does not bind the presentation of a loan obligation to the debtor to a specific form, and therefore this presentation can be proven by all sorts of events and documents (Cass. decision 1874, No. 621). Chapter seven. Termination and repayment of obligations § 18. Termination of obligations. – Execution. – Place and time of execution. - Term. – Obligation to clean or responsibility for defects of the item. – Claim for equalization of disadvantages. The most natural way to terminate an obligation is to fulfill it on the part that has undertaken to fulfill it. The essence of the obligation is that something dependent on the free action of the party must be accomplished, something unknown must become known, an accomplished event, something posited in the future must appear in the present: this goal is achieved precisely by fulfillment. The parties have this goal in mind when entering into an agreement; therefore, with the achievement of this goal, the obligation ceases. Thus, a gift is accomplished by the transfer of what was given; loan, deposit, borrowing - return, transfer back of what was taken; order, power of attorney - by performing an action that was the subject of the order; exchange, purchase - transfer of a thing and payment for it; rental – provision of quiet use of property and payment of money for it, etc. The law provides all possible freedom in execution and constrains it as little as possible. Performance can be carried out not only by the person directly obligated, but also by a third party in cases where the identity of the obligated person does not matter in the contract. For example, when it comes to money, quantities, execution can be performed by a third party; but when the person matters in the contract and in execution, for example, when hiring personally, when ordering a thing to a well-known master, etc., the demanding person may refuse to accept the thing or action from a third party. Performance in the general order must be made to the person who, according to the contract, has the right to demand performance, or, what is the same, to his representative. Such performance completely relieves the obligated person from his obligation. Performance must be done exactly as specified in the contract, in the proper place and at the proper time. Determining the place of performance of a contract may refer to both the person who has the right to demand and the person obligated to perform; in which place the former can demand performance and has the right to force performance, in such a place the latter is obliged to voluntarily carry out performance to satisfy the demand. If this subject is not defined in the contract, it is determined according to the essence of the case and the circumstances. Many actions, by their essence, relate to a certain space and can only be performed in it, so that along with the place they would change their meaning. These are, for example, the transfer of real estate, construction, work in a certain place. But there are many other actions that can be performed indifferently in any locality without losing their significance, for example, manual work, transfer of movables and especially cash payments. It is difficult to establish a general legal rule on this subject: every object of execution, every action, transfer of this or that thing, has a special economic significance, and with this property, as well as with the custom established for this or that activity, is often connected a natural assumption about the place of action or execution. For example, wine in barrels is purchased at the place of production: naturally, the buyer goes to the place to receive it, but there may be a custom in industry that the seller delivers the goods to the buyer. A stroller was purchased from a master - naturally, the master delivers it to the customer, but there may be a different custom. However, the laws also contain general rules on this subject. Thus, according to French law, when performance relates to a thing materially known and determined (corps certain et déterminé), it must be done where the thing is at the conclusion of the contract; otherwise, at the place of residence of the person obligated to perform, who in any case bears the costs of execution (Articles 1247, 1248). According to Prussian law, the transfer of a thing is based on the place of residence of the demanding person at the time of conclusion of the contract, and the action is based on the place of residence of the obligated person. Performance must follow at the appropriate time, which is determined by the contract or appears from it. The contract may stipulate a certain time within which execution is expected (for example, within three weeks, from Easter to Ascension, etc.); in this case, the guilty party performs on any day of this period, and the other party can, by its demand, delay it only on the last day of this period. Or one urgent day may be assigned on which execution is expected. It is assumed that this period is a benefit to the debtor; it ensures the debtor that he will not be required to perform earlier; therefore (if it cannot be concluded from the contract that performance is overdue for the benefit of both parties), the debtor is free to perform the performance before the due date. This is the assumption of Roman law; The French law (1187) agrees with it; but Prussian law takes the opposite view and does not allow the debtor to perform ahead of schedule without the consent of the other party. When the time of execution is specified indefinitely (for example, at the first opportunity, at an opportunity, at the appropriate time, etc.), then, in the event of a dispute, the court will decide when the obligation to perform began. In any case, the time of execution is assumed to be convenient, consistent with the nature and type of action, with nature and custom. The contract may not at all define the period from which the right to demand performance arises. It is then up to the party entitled to demand performance whenever he pleases. Russian law stipulates that contracts must be executed according to their exact reason, without respect for secondary circumstances and without regard to any persons (1536). The terms of execution are determined by the will of the parties, as far as they are not contrary to the laws (1530). The method of execution of a contract depends on the properties of those actions that, in the essence of the contractual relationship, constitute its belonging: accordingly, the responsibility of the obligated party is not the same. Yes, in Cass. decide 1873 N 235 rightly indicates the difference in execution in different types of personal hiring, namely in the hiring of a doctor and in the hiring of an attorney. In the last agreement, the principal cedes his will to the attorney in petitioning the case and in performing side actions on it, in accordance with the discretion of the attorney: the activity of the attorney depends entirely on his will, within the limits of authority. On the contrary, the activity of a doctor in fulfilling contractual obligations must necessarily be caused by the will of another person who has agreed with him, who is not deprived of the right to apply to the benefits of other doctors. From this it is concluded that in the first case, the attorney has the right to remuneration, since he made a valid petition in the case, and in the latter case, the doctor has the right to the agreed remuneration for the entire time, even if he was not invited for advice; if other doctors were invited, then this cannot yet serve as a sign of termination of contractual relations with the doctor hired for a term. When a contract establishes a period, a claim cannot arise at all before its expiration. In the same way, when the contract sets a period during which the contract must be completed, then before the expiration of this period the contract cannot be terminated without the mutual consent of the parties, and there cannot be a unilateral refusal to perform. Wed. 2238 art. about hiring a servant. The designation of the period from which the right to demand performance begins is not a necessary attribute of each contract. There may be contracts without such a period, for example, a deposit, an open-ended loan. Here the creditor has the right to demand performance at any moment. The deadline can be set such that with its onset the right to demand performance arises (to deliver things by such and such a date, to pay money), or such that with its expiration the expected validity of the contract ends, the condition established by the contract ceases (the house is rented for five years). See above in § 2. When performance consists of the transfer or delivery of a thing or property, justice requires that this property, in its internal qualities, correspond to the purpose of acquisition, which constitutes the content of the contract. This is where the obligation to clean up arises upon the execution of the contract, i.e. responsibility of the transferor of property for his performance. This responsibility should not be confused with that which generally arises from guilt or deception, when, for example, the defects of a thing were hidden or the thing was deliberately given worse than agreed upon. Regardless of the participation of the will, the transferor is responsible for the property in accordance with the essence of the contractual relationship on which the transfer is based. This responsibility is twofold: one for the shortcomings of a thing, the other for the correct possession of it by right of ownership (in the proper sense, patrimonial cleansing, which was discussed at length in the 1st part of the course, regarding patrimonial rights). Both rights are not based on the same beginning and differ significantly both in content and purpose; however, legislation either mixes them into one institution (Austrian, Prussian law), or distinguishes them (French law). Responsibility for the defects of a thing, as an institution of law, originates from Roman law; it was initially established in the case of purchase, sale and exchange by aedile edicts, and the means for exercising the right were claims to reduce the price paid (action quanti minoris s. aestimatoria) and to return the thing with the destruction of the transaction (action redhibitoria). This institution received significant development in the doctrine of Roman law and subsequently passed on the same principles into the latest legislation. The claim for the removal of defects in the transferred property does not depend on the fault of the transferor, since the fault itself serves as a special basis for a special claim for compensation. The basis for a claim for clearance is misconception or ignorance of defects in the property when the contract was made. These defects are assumed to exist at the moment of transfer of property, and not to arise thereafter. These shortcomings must relate to the qualities of the property, and to those qualities that seem to exist in accordance with the purpose and content of the contract; in this sense, quality can include weight (for example, the weight of grain bread) and size, but quantity alone does not. Either the average normal quality of the thing or the quality specifically determined in the contract by the will and intention of the parties is taken into account. A claim of this type is allowed in all mutual agreements aimed at transferring property into ownership or use (sale, barter, rental), but is not allowed in gratuitous or gift agreements and where the subject of the agreement is an action and not a transfer. The purpose and implementation of the claim is either to correct and replenish the deficiency in the transferred property, or, if this is impossible, to equalize values, i.e. at the choice of the plaintiff, either a reduction in the price paid for the property in comparison with its actual value with that which was in mind at the conclusion of the contract, and the return of what turns out to be transferred - or the destruction of the transaction, and on the one hand the property is returned, and on the other hand the money paid for it, with a corresponding calculation in percentages, fruits, increments, costs, etc. For claims of this kind, a special, shortened limitation period is usually established. Cleaning of this kind, in the sense of a special establishment, is not known in Russian legislation. For clearance on the occasion of sale, see Part 1 of the course: patrimonial rights, § 46. § 19. Evasion of execution. – The right to refuse performance due to the other party’s fault. – Impossibility of performance due to external circumstances. – Mutual refusal to perform. When the time comes for execution, if there is no reason to recognize the contract itself as invalid, the party obligated to perform must perform it, has no right to refuse or evade execution, and if he evades, he is guilty of non-fulfillment and may be forced to perform or at the same time be subject to fines. There are, however, cases in which a party may refuse to perform. In unilateral obligations, performance is assumed on only one side; in bilateral - execution on one side corresponds to execution on the other side, and the question may arise to what extent one depends on the other, in what connection one is with the other. The simplest type is one in which both actions are performed simultaneously, one merges with the other - these are barter contracts for the transfer of a thing. In other cases, according to the nature and meaning of the contract, the action of one party must precede the action of the other party (such, for example, a lease, in which, according to the nature of the relationship, the use of property must first be provided, and then the agreed payment for use follows). Many legislations state the following general rule: in mutual bilateral obligations, a party has the right to refuse to fulfill its obligation when the other party does not fulfill its obligation. One party does not have the right to demand performance when it itself has not fulfilled the obligation it has assumed according to the right. Our legislation does not express such a general rule. But there is no doubt that in our country it must be applied in practice, in accordance with the circumstances of the case. It is obvious that when the essence of the contract consists in the exchange of two actions, one completely corresponding to the other, then this rule should be applied. (The seller does not issue a deed of sale to the buyer under the purchase agreement, because he has not received money from him for the property. In the case of an exchange, one party refuses to transfer the thing to the other, because the latter has not yet transferred to her another, corresponding thing.) But there may be a different attitude of the parties under the terms of the contract. I have undertaken to supply firewood to the house for a certain price within a year, and I refuse to deliver because before the delivery they did not give me part of the money. If there was no provision for payment of money in advance, I have no right to refuse; if it was, I have the right. If, after betting for several times, I did not receive any money at all, then I have the right to stop further delivery, depending on the conditions. If, for example, the contract says that 5 rubles are paid. for each delivered fathom of firewood as it is delivered, then, having delivered several fathoms, I have the right to stop when I have not been paid for the amount delivered before. I committed to installing firewood by the 1st of every month. I put 10 fathoms on February 1, 10 fathoms on March 1 and received nothing. By April 1, they demand from me another 10 fathoms. I demand money. Here the question arises: do I have the right to demand at this time. It turns out that I have. The deadline for the other side’s demand is coming, but the deadline for my demand has long come. The condition could be of this kind. I undertake to supply firewood as soon as required, and no matter how much is required, and to receive payment by January 1st. In February they demanded 5 fathoms from me, in March 1000 fathoms, in April they demanded 300, in May they demand the same amount, but I did not receive the money and, knowing that my counterparty was upset in his affairs, I refuse to bet more before he pays for everything that has already been delivered. I don't have the right to do this. My counterparty has the right under the contract to demand whenever he pleases, but I have the right to demand only by January 1st. If on January 1 I am not paid for everything that was delivered during the year, then I will have the right to refuse further performance of the contract. Therefore, in order for one party at a given moment to have the right to refuse to fulfill the demand of the opposing party, it is necessary that she herself has a demand equivalent to the one she is refusing: so that the deadline for her demand comes, just as it came for the demand of the opposing party. In particular, our law mentions such cases only regarding the execution of contracts with the treasury. In Art. 216 Pol. Kazen. Other Among the reasons that release the supplier or contractor from all liability and the execution of the contract itself is “failure to fulfill the contract on the part of the treasury.” But this reason, among others, can be respected only with the permission of the supreme government (Pol. Excavation. Civil. 456, 459). When it is proven that the failure of a private person occurred due to non-receipt of money or agreed upon distributions from the treasury, it does not subject him to any liability. Within the meaning of Article 570, the fulfillment by one of the parties of an accepted obligation, despite the failure of the other party to fulfill its obligation, does not exempt the latter from satisfaction in everything supplied under the contract (Cass. decision 1876, No. 192). The question of the right to refuse to perform a contract is not resolved by the simple application of a general rule; the decision depends on the properties of the contract, on the content of the terms, on the subject of execution. In mutual contracts there are mutual performances, some preceding, others subsequent, connected in such a way that performance on one side would not make sense on the main subject of the contract, without corresponding performance on the other side. For example, when the subject of the contract is the transfer of property or the provision of quiet enjoyment of property, it is natural that the party that has not achieved the transfer is not obliged to pay for what it did not receive, since payment is assumed under the indispensable condition of transfer (not being associated at the will of the parties with a special credit relationship). A personal hire agreement is associated with the right of refusal under certain conditions on the part of the employer or the hired person, and if a party has exercised this right legally, the other party has no right, despite this, to demand the same performance, which would have continued if there had been no refusal (cf. Cass. decide 1871, N 946; 1872, N 211). In mutual obligations there are fulfillments of such a kind that some are prior, and others are subsequent, and the latter are conditioned by the former; in this case, failure by one party to perform in full or in part, or disagree with the condition, does not oblige the other party to perform the subsequent action on its part. On this basis, it is recognized that the employer can refuse to pay the hired person and let him go when the latter turned out to be incapable of the work for which he was hired, or performed it carelessly, to the detriment of the employer (Cass. decision 1874, No. 103). When the terms of the contract were in such mutual dependence that the failure of one party to fulfill its obligation makes it impossible for the other party to fulfill its obligation, then, in the event of mutual complaints about non-fulfillment, it is necessary to distinguish whose performance should have essentially preceded the contract, so that fulfillment by the other party was possible. Therefore, it is recognized that the seller did not have the opportunity to pay the purchase amount and proceed with the execution of the deed, when, according to the condition, the number of payments was determined by the calculation of debts, which the other party had to submit, but did not submit (Sb. Sen. decision III, No. 1111). The rule that a violation of an obligation by one party does not give the other party the right to consider itself free from the contract does not apply to a property rental agreement. With the termination for the tenant, without his fault, of the opportunity to use the subject of the contract (the maintenance of which was the responsibility of the owner), the tenant is not obliged to pay hired money for this subject. On this basis, the tenant of the apartment, which turned out to be completely unfit for habitation, was released from the contract before the deadline (Cass. decision 1877, No. 45). The above decision explains that the employer can consider his obligation to have ceased when the property becomes unusable, even without the fault of the owner, for a reason beyond his control. It is up to the tenant to use or not to use the rented property, for which he is in any case obliged to pay; but if he did not use it because he encountered an obstacle from the owner, then he is not guilty of paying. On this basis, the tenant is exempt from paying for the mill, which burned down while in the owner’s possession and was not rebuilt by the owner, which is why the tenant did not take possession (Cass. decision 1874, No. 275). In bilateral contracts, the rights of one party to receive payment depend on the delivery of the agreed item for it, so that in the absence of it, payment cannot be demanded, and what is received must be returned (Cass. decision 1875, N 146). On this basis, the payment for the premises was demanded back, which the tenant did not actually receive from the owner. The timber carrier under the contract demanded compensation from the other side for the failure to deliver the full amount of logs and supply them to the outside. He was refused because he also did not fulfill his obligation to first secure the entire operation with a pledge on his estate (2 Sat. Sen. decision III, No. 570). When a contract for the sale of timber for felling was in effect, violation of it on the part of the seller by premature seizure of forest materials gave the other party the right to seek damages, but did not relieve it of the obligation to pay money for the timber on time according to the condition (2 Sat. Sen. Resolution V, 1153). According to existing trade customs accepted in commercial courts, the buyer or counterparty, having accepted part of the goods delivered to him and using them, does not have the right to refuse payment for the quantity of goods delivered and handed over to him. The justification for such a refusal is not a reference to faulty performance in the whole operation of the obligation assumed by the other party, unless the contract had a special resolution on this subject (decision 2 of the General Meeting of September 11, 1876, according to the villages of Henleya and Plemyannikov). Failure to fulfill the conditions by one party may release the other party when, within the meaning of the contract, it is precisely established that the right is granted to one party precisely as a consequence of the obligation it has assumed (Cass. decision 1878, No. 154). In claims arising from non-performance under a contract, it is enough for the plaintiff to prove his right to demand performance, and the defendant is obliged to prove that performance has occurred (Cass. decision 1877, No. 145). According to Art. 1522 failure to pay money for purchased movable property does not entail the destruction of the sales contract itself, but only results in the recovery of the agreed amount. Also, property sold and accepted by the buyer cannot be recognized as the property of the seller, even if it has not yet been paid for (Cass. decision 1867, No. 282; 1874, No. 561). The concept of guilt and responsibility for non-fulfillment is eliminated when the cause of non-fulfillment was an external circumstance that did not depend on personal will and made fulfillment physically or legally impossible. Of course, such impossibility must relate to the subject of performance (must be objective), and not only to the personal circumstances of the obligor. Our law also does not express a general rule in this sense, but only applies it to some cases. In Art. 261 Pol. Kazen. Other Among the reasons that exempt a government contractor are the following: enemy invasion of those places where the contract has been agreed upon or where delivery or transportation is to be made; seizure of things by the enemy; their extermination at the will of the government in special circumstances, etc.; pestilence; the destruction of the cargo by the will of God. According to Art. 1687–1689 Zak. Citizen failure to comply with the deposit receipt, i.e. failure to complete a purchase agreement or a bill of sale is not charged when the cause is the circumstances named in the last of the above articles (deprivation of liberty, cessation of communications during an infection, in wartime, etc., illness, etc.). However, one cannot help but admit in the absence of a positive law that external circumstances that make the execution of a contract absolutely impossible are positively exempt from execution. The application of this rule should be completely fair. Let's imagine that both parties have made a commitment. One side had the opportunity to do its part and did it, although partially, while there was still time, and when the time came for the other side to do what they wanted, it turned out to be an insurmountable obstacle, an absolute impossibility. It would be unfair to release the latter from execution, leaving in force the execution done by the first, and the benefit that resulted from it for the other party who did not fulfill its obligation; in this case, it will be necessary to recognize the contract itself as destroyed by the impossibility of mutual fulfillment, but at the same time restore the events in their previous form, in which they were before the conclusion of the contract and, having freed one party from execution, at the same time destroy the performance performed by the other party, force the first party to return to the other the benefit that it received from the performance made for free. In 1854, Mavro bought 1,500 quarters of wheat from Mangubi at 22 rubles. for a quarter, for sending abroad. Mangubi undertook to produce wheat in Evpatoria by February 15, 1854, taking upon himself all the costs of delivering it to the ship by means of transport boats, and before that he agreed to keep it for free in his store. Mavro undertook to give a deposit of 6,500 rubles in advance, and paid; in case of failure to deliver on time, he allowed himself to buy wheat at Mangubi’s expense. On February 15, Mangubi produced wheat, but on February 18, the highest order was received to prohibit the export of grain from the ports. The boats with bread could not be taken to the ship. Mangubi began to demand that the wheat be accepted and the rest of the money paid to him. The condition, he explained, does not say that the grain is bought for export abroad, and the buyer can send it to one of the Russian ports. But according to the circumstances of the case, i.e. Based on the nature of Mavro’s trade and the purpose of the chartered ship, it was recognized that the grain was purchased specifically for foreign trade. Hence, in the decision of the Senate (8th Dep. September 29, 1854), it was concluded that the condition was destroyed for reasons and circumstances that did not depend on the will of the parties, and the destruction of the condition should have the consequence of restoring both the seller and the buyer to the position that was before the conclusion of the condition, i.e. the buyer must keep his money, and the seller his goods. On this basis, it is necessary to demand back from Mangubi the deposit he received, without holding any party responsible for the loss. Otherwise it was decided General. Collection Another similar case of the Senate was Mangubi Traboti, in 1855 (J.M.Yu. 1861, No. 3). Mangubi pledged to deliver 2,000 units to Yevpatoria by January 20, 1854. rye, store it in his store and, upon the arrival of the ship from Traboti, load it into his account and fear, and Traboti undertook to pay him the money on time and paid 8,700 rubles in advance. Mangubi delivered the rye on time and folded it, but Traboti began to refuse to accept it following the subsequent ban on foreign export. It was received in Odessa on February 18, but Traboti had the right to accept rye from January 20. In this case, the Senate did not recognize the prohibition as a reason to destroy the treaty, since the treaty did not say for what purpose the rye was purchased, and Mangubi was not obliged to know whether it was intended for abroad or for inland ports. – So, the subsequent accident should be taken personally by Truboti. It is necessary to collect the rest of the money from him and even the payment for storing bread in Mangubi stores. The destruction or destruction of the subject of the contract (for example, the burning of a rented building) makes the exact execution of the contract impossible, but does not terminate the obligatory relationship of the parties, since it expires from the contract (Cass. decision 1874, No. 518). Bykhovsky, under a contract with the military department, in 1864 withdrew the right of drinking trade at the Shostensky gunpowder factory for 12 years, and in 1868 a law was passed that ordered not to allow drinking trade at this factory within two miles. Bykhovsky, having lost his rights, demanded compensation for losses. It was supposed to deny him this by force of Article 684, since the right under the contract ceased at the request of the law, but it was decided otherwise (Mn. State Council, 1872) for the following reasons. The counterparty undertook to the treasury to build trading establishments according to the plan, which would have to go to the treasury on time, and in the cost of capital he meant 12 years of use. In addition, there was a special circumstance in the case: the artillery department itself, which had entered into contracts and undertook to provide the counterparty with quiet enjoyment, filed a petition for a general prohibitory measure to be taken in its interest. Consequences of execution. Failure to fulfill a contract does not terminate its validity and binding force, unless it turns out that non-performance tends to destroy the very subject of the contract or makes it impossible to achieve the purpose for which the contract was concluded (Cass. decision 1875, No. 274, 326). Thus, a homeowner who rented out an apartment to one person and then let another into it does not have the right to claim the former for non-payment of rent. The execution of a contract consists of the very action that constitutes the subject and purpose of the contract. Breach of contract consists of failure or incomplete performance at the specified time and place. On the contrary, orders preparatory to this action, although they are associated with the interest of the other party and therefore increase or decrease the likelihood of fulfillment, do not, however, provide, if not foreseen in the contract, a legal reason for the other party to intervene or to object to non-fulfillment. In this sense, for example, the lender cannot have a legal claim against the debtor for wasting his property before the payment deadline; the customer does not have the right to charge the contractor with a violation of the contract for not bothering to find workers before the start of work (cf. Cass. decision 1867, No. 401). When the contract itself establishes a special method of verification between the parties of actions for the execution thereof and the actions took place in the order as agreed, then verification by inspection should serve as proof of execution (Cass. decision 1875, No. 713). In this case, firewood was sold for a log house and it was decided to stack it in the log house and, having counted it from the owner, release it in the prescribed measure of fathoms. During the execution of this verification, a dispute arose between the parties in the calculation, and the court ordered an inspection - not of the stacked firewood, but of the chopped area. Acceptance of performance under a contract does not in any way deprive the accepting party of the right to prove that the performance does not correspond to the condition (for example, that the delivery or work is of inadequate quality and was not done on time) and to demand satisfaction for it (Cass. decision 1875, No. 709). If the party in whose favor the execution of an action was established on the other side, renounced the right to demand this enforcement action due to delay in execution, this does not deprive it of the right to demand compensation for damages from non-performance (Cass. decision 1876, No. 221). When Kobyzev bought a house in 1873, he gave the Lifanovs an obligation to provide them with premises of a certain size in that house until their death. Not using this premises, the Lifanovs in 1875 began to look for money from it, which they would have to pay for such premises for 10 years. This claim was rejected, since it does not contain a demand for the fulfillment of an obligation or for compensation for losses already incurred, but a demand for the replacement of one obligation with another, although, in the opinion of the plaintiffs, equivalent, but unforeseen and unspecified in the act on which the claim is based (Cass. decision 1879, No. 13). Failure to fulfill the contract by both parties in some cases may have the meaning of a mutual waiver of rights and obligations under the contract, and can be interpreted in the sense of a mutual agreement to destroy the contract, i.e. on the cancellation of further implementation thereof. Such an outcome of the contractual relationship does not, however, eliminate mutual responsibility for the consequences of the previously existing relations between the parties, for actions, inactions and delays in the execution of the contract, unless the parties had agreed to positively destroy the previous relationship with all its consequences. A contract can be destroyed by mutual consent, but this requires a conscious, direct and mutual agreement. Such an agreement cannot be recognized in the case where, in litigation, in court, each party, from its own point of view and in its own exclusive interest, proves, under the circumstances it shows, the nullity of the agreement (Cass. decision 1868, No. 393). There is no law that would unconditionally recognize a contract as void for the sole reason that it was left without execution, if such a consequence is not stipulated in the contract, or if the parties, after concluding the contract, did not agree to leave it without execution (Cass. decision 1867, No. 529; 1877, No. 276). Violation of the contract by one party does not give the other party the right to consider the contract terminated (Cass. decision 1870, No. 238). In this case, the owner of the estate, who leased it to one person, then considered himself entitled to give it to another before the deadline, because the first tenant, contrary to the condition, transferred the lease to a stranger. Ivan undertook to supply firewood to Peter; Having received the money in advance, he supplied part of the firewood as agreed and notified Peter, but Peter did not appear for acceptance and refused to accept it. For this, Ivan asks for the destruction of the condition. The condition can be canceled only because Peter refused it, but a settlement must be made in the overpaid money. According to the village of Bogdanova in 1873 (2nd Sat. Sen. Resolution V, No. 1021), the Senate reasoned that although the agreement stipulates the right to destroy the agreement for late payments, when the party receiving payments accepted them several times in arrears, it thereby confirmed the validity of the agreement, and no longer has the right to demand its destruction (taking away the leased property) for subsequent delays. The Senate derives this reasoning from Article 1547, which allows one to waive one’s right under a contract, and from Article 1550, which states that when the debtor pays after the deadline and the execution of the contract continues, then the validity of it is confirmed. (Cass. decision 1869, N 1195). According to the sales record, it is recognized that both parties are to blame for the failure to complete the deed, and so the contract, weakened by mutual non-fulfillment, loses its force, and the deposit received by one party must be returned. § 20. Monetary execution or payment. – Who should be paid? – Who is obliged and has the right to pay. – Payment from a third party. – Payment in installments. – Receipt for payment and other evidence of it. – Signs and assumptions about payment. – The ratio of payment to known debt. – Payment and payment according to Russian law. – Evidence of payment. – Current account. The most common and common method of execution is payment, i.e. reimbursement of the monetary value of an obligation to pay it off. Since the payment produces a release from the obligation, it acquires the meaning of a legal action. Therefore, the essential accessories of the payment have legal significance. It is necessary, firstly, to be aware of to whom, into whose hands the actual payment must be made. The creditor, his legal successor or representative must be paid. The receiver must be a person capable of performing a legal action, i.e. to acceptance that extinguishes the obligation. Therefore, in payment, for example, a legal entity must look for someone who is considered its legal representative in the performance of obligations; therefore, payment into the hands of the insolvent debtor does not in itself extinguish the evidence. The wife, since the law restricts her from freely disposing of property affairs, cannot perform a reliable legal act in accepting payment without the assistance of the subject authoritative person. Payment into the hands of a minor does not have a decisive effect. Secondly. Whoever pays must be capable of performing a legal act. An insolvent debtor does not have the right to pay his separate debt through personal communication with the creditor. A minor, having paid his debt, of course, frees himself from the debt, but if he paid not to his benefit, for example, before the due date or more than he should have, the capital itself or the difference in capital or in interest against the due date may be demanded back from the creditor. In addition to the debtor himself, a third, extraneous person interested in payment can pay for it, due to a special legal relationship to the debtor in this case, for example, a guarantor or a joint debtor: in this case, having paid, in order to protect himself in advance from being held liable for the debt, such a payer takes over the claim he paid from the creditor, and takes his place. Or a third party who is not directly interested in the matter pays, pays without instructions, at his own discretion. In such cases, although the debt is repaid, the third party thereby becomes in a special relationship with the debtor. Legislation distinguishes with what intention and under what type of payment was made. It could be made with the intention of a gift - to pay a debt for another; in this case, payment will be without the right to repayment. Where no gift purpose is apparent, payment may be made to the benefit of the debtor, in the name of the debtor. It does not follow from this that such a payer becomes the successor of the creditor and takes over the claim from him; but such a payer, in any case, has the right to demand compensation from the debtor not as a creditor, but for the fact that he paid for the debtor, taking on his business, for the sake of his interest, and the debtor will have the right to refute his intervention or the debt paid by him, just as he would refute that debt against his original creditor. Finally, a third party may make a payment with the consent of the creditor in his own interest in order to buy the obligation from the creditor and take his place. The purpose of the payment is to repay the obligation. This repayment is accomplished by the fact that the paid amount becomes the property of the creditor; and in order for it to become his property, it is necessary that it leave the property of the debtor paying him. So, the creditor does not have the right to accept in payment of his claim an amount that obviously does not belong to the debtor: in this case, the acceptor is responsible for this amount to the one whose property it was, and his own claim is considered outstanding. Satisfaction with payment in due time is assumed to be complete and complete, therefore the creditor in any case has the right to demand at once everything that is due to him in full. It is up to him to accept only a certain part of the payment from the debtor when the debtor cannot or does not want to pay everything in full, but the creditor cannot be forced to accept part (except in cases of mandatory installment payment) if he does not agree to split the performance. Even if he accepted payment of part of the debt, this does not in itself entail any extension of the debtor’s term in the remaining parts. Each person may have many different and different demands, obligations and payments, and payment itself is a mechanical action, the transfer of money from hand to hand. In order to give this action legal significance, it is necessary to define it legally, i.e. establish a definitive connection between it and a known obligation for which it serves as repayment. The means for this is a receipt for payment, which serves both as proof of action and as a legal act certifying the repayment of the obligation. That is why reliable proof of payment can only be written: witnesses can only be trusted in what they saw and heard. They could see only one action - a simple transfer, and what legal significance did it have, for what purpose was it done - in this, except in rare cases, it is difficult to believe the impression and presentation of witnesses who can only express their opinion about what the action meant or what the conversations that took place related to. Receipt (quittance, Quittung, apocha) is the simplest of written evidence; but sometimes the law limits its force to its formal conditions. Thus, in Roman law, a receipt received evidentiary force not before the expiration of 30 days from the time of issue - the period within which the creditor could still object to his non-receipt of money under the issued receipt (exc. ​​non numeratae pecuniae). The latest legislation does not accept this embarrassing formality, although it does not exclude the possibility of the above objection; Nowadays, the receipt receives the force of evidence from the time of issue. Only Prussian law retained the remainder of the Roman rule in the article allowing, within three months, under certain circumstances, to refute a payment receipt by oath. When there is no direct receipt for payment of the debt, other reliable or probable signs of its repayment may be accepted as evidence. The law allows for some assumptions, firstly, that the debt is repaid; secondly, about which obligation or part of the obligation the payment and repayment relate to. In the first subject, the signs are: the return of the debt document to the debtor, in general its being in the hands of the debtor; being in the hands, at least of the creditor, in a damaged form, for example, crossed out, torn, cut, if there is no reason to conclude that this damage occurred accidentally or without the knowledge of the owner of the paper. This last feature is considered the most reliable in bills, according to custom. Any assumption has only conditional force; those. it can be refuted by contrary evidence. French law (2271–2275) assumes certain types of debt obligations to be paid, therefore extinguished, when there has been no request for recovery since the opening of the right of action in them. This is considered (hardly reasonably) to be a statute of limitations, which varies according to the type of obligations (one year or six months); in any case, the validity of these terms is based on a special assumption, which the creditor is given the opportunity to refute, if he wishes, in the easiest way, i.e. oath. When payments are made on time, periodic or sequential, distinguished only by time, but not by quality and reason, it is natural to assume that the one who paid for the later date has already paid what was due on the previous date; This assumption applies to those cases where there is a receipt for a later payment, without the reservation that there was no payment on the previous dates. But the rule about this assumption is not the same everywhere. In Roman law, it was allowed only for tax payments to the treasury and not otherwise than with proof of payments for three consecutive periods. In Austria, an assumption is allowed on the basis of at least one later payment only. In Prussia, one receipt is not enough; it is necessary that there be two separate ones, for two consecutive payment terms. However, a special relationship exists in debts for the collection of goods and things on current accounts, usually paid on known terms (in shops, pharmacies, bakeries, etc.): here, any later payments are already certified by all previous payments. To which of the debts between the same persons should payment be attributed when there is no clear evidence of this in the payment act itself? (Credit, imputation of payment. Imputation du paiement.) This issue receives practical importance in many cases. The following main reasons for its solution are given by individual legislation (Pr. Ldr. 1, 16, § 149–159; Oest. g. buch, 1415, 1416, 1427; Code Civ. 1253–1256). To resolve the doubt, at least a unilateral indication of the debt to which the payment relates can serve, if there is no direct refutation on the other side. – When payment in a certain sense is indicated (offset) by the debtor and accepted by the creditor or demanded by the creditor and made by the debtor, then there is no room for doubt. – Where it is presented, the payment is considered to be of equal interest to one and the other party, on the assumption that it is most desirable for the debtor to pay off his most painful debt first, and for the creditor to receive the claim that is the least reliable, the least secured. So, when in doubt about what the debtor’s intention was, it should be understood that he wanted to pay off a debt already demanded in court before an unclaimed one, an overdue one before an unoverdue one, a clear debt before an unclear one, etc. The interest goes ahead of the capital, and therefore, if the creditor objects, he is not forced to offset the payment against the capital amount when the interest remains in debt. When a receipt is given without reservation, in full payment of the capital sum, it can be assumed (Austr.) that interest has already been paid. According to Russian law, payment of the whole amount differs from payment of part of it. It is assumed, in the event of final payment, that the loan deed will be returned to the debtor. A receipt on the loan act itself is recognized as evidence of payment for a loan, even if this act remains in the hands of the lender: it can be made at any place in the act. This evidence is not weakened by the fact that another sample was left in the hands of the lender, if the act was drawn up in two samples (Law. Civil. 2050–2052, Cross. Institution. App. 2 to 31 Art. § 23; Establishment of the Court. Trade. 273 on receipt in trade books). A torn loan letter in itself does not serve as evidence of payment, but only raises the assumption of payment in favor of the debtor when it is in his hands; then the creditor is left to prove the contrary (Const. Court. Trade. 249; Law. Civil. 2053). The law says that this evidence is usually accepted in the Commercial Court; but in courts of general order this circumstance should also have the force of assumption. Such an assumption must also be combined with the fact that the borrowed instrument is in the hands of the debtor, even if it has not been torn: and here, of necessity, the creditor has to certify that the borrowed instrument has left his possession regardless of his will and without repaying the debt. If the torn act ended up in the hands of the creditor (our law does not mention this case), this circumstance in itself, of course, does not serve as evidence of payment, but can be taken into account by the court in connection with other circumstances indicating the repayment of the debt (for example, with other acts, letters of the deceased creditor, etc.). The payment inscription on the act is replaced by a separate payment receipt signed by the debtor; it constitutes direct evidence when it clearly indicates under what obligation the payment was made, so that there can be no doubt about its identity (Article 2054; Ord. Court. Trade. 280); otherwise, this identity must still be proven by a document. For collections on borrowed letters and bill collections, in particular, proof of payment is accepted as proof of presence (Law. Court. Civil, Art. 605; Establishment of Bill. Art. 105, appendix: Art. 3, clause 2). The laws of the Baltic provinces (3534) adopted the Roman exc. non numeratae pecuniae. In addition, the law mentions relative or conditional evidence of payment, which is not valid for a decision on payment, but for sending the case to court and for suspending collection by indisputable or executive order. In this sense, collection stops when documents are presented that are torn, cut or torn, without certification that this happened by accident, without the will of the claimant; when, according to acts (except for bills and letters of borrowing), the defendant presents two witnesses to payment (Law. Court. Civil., Art. 605). In Art. 276 Set. Court. Bargain. mention is made of the tags maintained by exchange workers, cab drivers and other receivers and suppliers of goods. Payment must be made on time. Before the due date, neither the debtor is obliged to pay, nor the creditor has the right to demand or be obliged to accept payment. About a bill of exchange, our law (Ust. Vekseln. 68–70) says that by mutual agreement you can pay before the due date, even with an incomplete inscription, only at your own peril; and at the maturity of the bill, the holder of the bill cannot refuse to accept payment in payment by raising a protest in the remaining part. According to the law on loan offices (Law Civil Code, Art. 1663, note 1, appendix: Art. 5), the borrower can repay the loan before the payment deadline, with an increase of at least 1/2 month. There are such obligations in which payment is specified “if possible”. It is quite difficult to give such a condition a certain legal meaning. How to understand opportunity? If we understand it in the sense of the debtor’s personal consideration of the economic possibility of paying the debt, then the obligation loses its coercive meaning altogether; if it is desirable to preserve it, then it is impossible to determine a decisive, immediate measure of the possibility of paying the debt (opportunity without embarrassment), since any incentive collection through the sale of the debtor’s property presupposes the impossibility of obtaining a voluntary payment from him from his cash. So, it seems fair to admit that when the origin and reason for it are not indicated in the obligation, the condition “if possible” is either of a gift nature or contains the meaning of the personal discretion of the debtor (optional obligation). If the obligation contains a clear consciousness of a previous debt, then it would be fairer to leave the consideration of possibility not to the debtor, but to the creditor, and not to allow the debtor to object to the impossibility, when there are still ways to satisfy the debt from his property. Therefore, it is hardly fair for a decision in which the plaintiff is left to prove the possibility of payment on the part of the debtor (the state of his affairs in which payment is possible) in such an obligation: “I owe N such and such an amount, which I undertake to pay if possible” (Cass. decision 1878, No. 31). To whom the payment is due. It is up to the debtor, when paying a note of loan, to ensure that the deed is in the hands of the person to whom he is paying and has not been transferred to another person. If the debtor did not take this precaution, then he does not have the right, when demanding payment under the same act from another person to whom it was transferred, to refer to the payment he made to the first lender after the transfer of the loan letter (Cass. decision 1874, No. 484). Payment of a loan obligation into the hands of a third party, even a bailiff or trusted servant of the creditor, is considered to be actual repayment of the debt only in the case when this person was authorized to accept money or payments - unless it had been proven in this case that the money was actually transferred to the creditor and accepted by him in satisfaction of that obligation (Cass. decision 1868, No. 640; 1876, No. 194). The payer under the contract is not obligated and does not have the right to arbitrarily withhold payment or part of it to satisfy third parties who have a claim against the recipient, and the recipient has the right not to accept such payments to offset his claim (Cass. decision 1869, No. 808). In this case, the artel, counting on the member leaving it, withheld his money from the tax to satisfy his creditors. Payment into the hands of a third party, and not into the hands of the creditor himself, is assigned to the duty of the debtor when, by order of the subject authority (635, 636 Articles of the Constitution of the Gr. Court.), for penalties falling on the creditor, a seizure is imposed on the amounts due to him. In this case, the debtor, upon presentation of a bailiff's demand with a writ of execution against the creditor, becomes the defendant for all payments that he would have made directly to the creditor; he is already obliged to pay them to the bailiff or to the subject court, and with this payment he repays his debt as if he had paid the creditor himself. However, in this case, the debtor must be careful and ensure that a genuine obligation is presented to him: otherwise, payment may sometimes not lead to repayment of the debt. A genuine obligation could be transferred by the creditor into other hands, and if it belongs to the list of freely negotiable obligations (for example, a bill), then the debtor, having paid the bailiff, may be forced to pay a second time to any bearer of the bill (cf. Cass. decision 1874, N 825). Contribution of the purchase price for a public sale not to the public place that carried out the auction, but directly to the creditor himself, at whose claim the estate was sold, does not violate the law on sale (Cass. decision 1875, No. 995; 1878, No. 149). Payment for the debtor. One payment under a loan letter for a debtor by an outsider does not give him the right to collect this money from the debtor, if there is no endorsement (Cass. decision 1869, No. 245; 1870, No. 1397). Receipts and proof of payment. A payment receipt with a clear indication of which obligation it relates to serves the debtor as a legal objection not only against the first lender, by whom the receipt was issued, but also against his successor upon transfer of the loan deed (Zh. M. Yu. 1863, No. 10). The payment receipt is completely replaced by a receipt, which the bailiff issues on the basis of Art. 957. Est. Gr. Court. the person against whom the executed decision was made (Cass. decision 1874, No. 578). Payment of money under an obligation cannot be proven by witnesses, but execution by other actions other than payment is possible (Cass. decision 1867, No. 140; 1874, No. 555). Even without a payment receipt, official papers of public places and officials (in this case, the accounts of the court guardianship) who carried out the collection can be recognized as evidence of payment (Cass. decision 1873, No. 667; 1875, No. 557). In the village of Lazutina (Cass. decision 1876, No. 542) there was a complaint that the court accepted post office receipts as evidence of payment of the bill. The Senate reasoned that the court could recognize payment as proven on the basis of documents other than the payment receipt if it finds that they relate to the obligation for which payment is being proven. Depending on the circumstances of the case (for example, when the debt instrument was in the hands of the lender), a payment inscription on the instrument itself, made not by the creditor, but by the debtor himself, can be accepted as evidence of payment. This is possible in cases where payment is proven not in the interests of the debtor, but in the interests of the creditor, for example, when the deadline for payment is important as a circumstance that interrupts the limitation period (Cass. decision 1868, No. 718; 1878, No. 229). Although the sales record indicates the receipt of money in advance upon completion of the sale, the fact that the record itself is in the hands of the buyer does not in itself, without a special receipt, serve as proof of the actual payment of the deposit (Cass. decision 1874, No. 56). It is unlikely that this decision really requires a special receipt, i.e. the obligation to prove payment rests with the buyer; It is hardly correct and the money paid in advance is called a deposit. A one-sided inscription of the lender himself cannot serve as proof of the last payment on an obligation (in the event of a limitation objection) (Cass. decision 1875, No. 341). Various persons who previously unquestioningly paid interest and annuates on the amounts they owed to the Catholic churches and clergy (in the western provinces) began to evade payments from 1842, i.e. from the time those fund sums were transferred to the treasury: such evasions are usually justified by the destruction of statute of limitations obligations. To refute these disputes, the treasury will have to prove the actual interest payments made in previous years. In the hands of the creditor, they serve as a substitute for counter-receipts, marks of payments in visits and income books of churches and monasteries: such evidence is considered sufficient. See Mn. State Sov. 1865, according to d. gr. Kossakovsky. Payment of mortgage and deed. Payment on a mortgage has its own characteristics, specified in Art. 1649, but one can hardly agree with Cass. decide 1868, No. 304, as if the formalities of payment of a mortgage have nothing to do with the execution of simple borrowed obligations. On the contrary, the essence of payment - release from debt - is the same in both cases, and if under a mortgage it can be proven, regardless of compliance with the form, that the lender has received full satisfaction, then the secondary collection of the debt becomes here, as well as under the loan letter, an injustice. Payment under a mortgage, as well as under a loan letter, not to the creditor himself or his legal representative, but to an outsider, on faith, can be declared invalid if there is no certification that the money reached the creditor as satisfaction of the debt under the obligation. To Cass. decide 1871, N 390, the possibility of private payments of mortgages with the receipt of payment receipts is recognized. An inscription on the mortgage about receipt of all money in full is necessary only for presentation to a public office and the removal of the prohibition; but private receipts may also be accepted as proof of payment and payments under the mortgage (Cass. Resolution 1878, No. 95). When selling a mortgaged estate at a public auction before the term of the mortgage (for other claims), the terms of the mortgage do not change and the debt on it can be transferred to the buyer (1884, 1185 Art. Est. Gr. Court.). But when in this case the buyer, not wanting to assume the debt, deposits the amount in court, and the mortgagee agrees to accept it, then the pledge agreement is changed by common consent, and the mortgage debt is extinguished by payment (Cass. decision 1878, No. 248). In dec. Moscow General Collection Sep. 1853, in the case of Yushkova and Kiseleva, it was recognized that the mere indication in the bill of sale of receipt of the entire sales amount does not serve as evidence of actual payment until the bill of sale has not yet been transferred from the seller to the buyer, although no special acts are required to certify payment under the bill of sale. Payment on a bill. The payer of a bill is obliged to pay to any person to whom the bill legally belongs by inscription, and has no right to refer to his settlements with the bill holder (Cass. decision 1876, No. 580). A payment made by the drawer on a bill held by a third party without the endorsement of the first bill holder is made to the wrong holder and is invalid in the interest of the person who legally owns the bill (Cass. Resolution 1875, No. 185). Who is the correct holder of the bill according to the inscription, about this see § 30. Payment under the bill must be made to the holder or successor according to the correct inscription; payment to a third party who presented the bill is invalid if it turns out that the bill did not belong to the bearer. Dec. Senate in the Kubarev case. J. M. Yu. 1864, N 3. Wed. Cass. decide 1878, N 280, on the right of a third party who paid a bill of exchange at the Bank. Within the meaning of Articles 611 and 651. Est. Bargain. ed. 1857 (corresponding to Articles 69 and 105, appendix Article 3 of the Establishment of the Bill of Exchange, ed. 1893) payment on a bill of exchange can be proven either by the payer’s inscription on the bill of exchange, or by a certificate of a public office about payment or payment on that very bill of exchange. The intermediary paying for honor is obliged to make a similar inscription, in accordance with Article 592. (corresponding to Article 51 of the Constitution of the Bill of Exchange, edition of 1893). This rule does not exclude, however, the possibility of proving payment on a bill of exchange with a separate receipt, if only it indicates to which and whose bill it relates (2 Sat. Sen. Resolution V, No. 1167). A bill of exchange is proof of a debt in favor of the one in whose hands it is; therefore, its presence in the hands of the drawer serves as proof of payment, unless it turned out that it was lost and reached his hands incorrectly (Cass. decision 1875, No. 68). Using a loan letter, you can prove payment, even if there was no payment receipt and the loan letter was not in the hands of the debtor. But according to a bill, the drawer is obliged to pay anyone from whom it is presented, and therefore must, upon payment, require from the holder a bill with a payment inscription; otherwise, he is obliged to answer to every bill holder, even if he has already settled with one of the intermediary signers (Cass. decision 1875, No. 140; 1878, No. 96). Settlement of payments. The question of which particular obligation the payment receipt relates to can be resolved not only by the content of the receipt itself, but also by consideration of other circumstances of the case (Cass. decision 1876, No. 159). According to the laws on mortgages (1554, 1642, 1649; 1650, 1653 Legislative Civil; 159 and 187 Not. Pol. and 39 and 101 Temp. Right. Notar.), transactions of this kind are invalid, according to which the pledge holder would assign to himself the right to secure with a pledge deed not initially, but any subsequent debt of the mortgagor, not secured by the execution of a new mortgage, and would attribute the receipt of payment under the mortgage deed to the repayment of a subsequent debt, considering the mortgage unpaid in relation to the debt that was originally made on it (Cass. decision. 1877, No. 137. Reasoning of the Chamber, not rejected by the Senate). Instead of cash payment, other methods can be used that profitably replace it where, with the development of industry and trade and with the multiplication of transactions, frequent and varied exchanges of values ​​occur between persons who are in frequent or constant mutual relations. In addition to transfers and offsets of various kinds, which have already been mentioned, we should especially point out the institution of a current account (contro corrente, compte courant) that is used in our time, the prototype of which many see in the economy of ancient Rome, in the form of the so-called. codes accepti et expensi. Between persons who are in a trusting relationship with each other, when one has to handle someone else’s money, and sometimes spend his own on someone else’s business, there is a mutual account; but it does not yet have the meaning of a current account, because its subject is other people's money, converted for a specific use in the interest of another person. A current account is opened as follows. Two persons who are in a permanent relationship with each other regarding property, involving a number of successive transactions, agree among themselves that everything that for a certain period of time will follow one in payment from the other, the latter keeps for himself, recording it as his debt, and applies at his own discretion to his affairs. Thus, one gives to another on credit all subsequent receipts from him, and the other debits himself each time for the amount of this loan. A relationship of this kind can be mutual, i.e. each party to the current account can be both a debtor and a creditor, or a loan is opened on only one side (as, for example, in the relationship between a merchant and a banker); it can exist between trading and non-trading people. The establishment of a current account has been little developed by positive legislation, although all commercial codes mention it. But it is highly developed in the science of commercial law and in judicial doctrine. A distinctive property of the current account is that it is made up of many property transactions, varied in content, but none of these transactions included in it is separated from it and has no special meaning in the legal sense. All of them, or more correctly, all of their results, expressed in the figure of debit and credit, constitute one solid mass as part of the current account, and for none of them the creditor has a separate claim, until the periodic liquidation of the account; none of them can serve as the basis for a claim and, therefore, does not matter in the calculation of limitation. The loan that forms the basis of the current account represents a certain value, the price of the loan, expressed as interest, which, however, should not be confused with ordinary interest, which is part of the loan and expresses the value of the use of capital. Borrowing and credit are not exactly the same thing, and although loans may be part of a current account, not every debt on it comes from a loan. So, from the minute when a certain debit figure appears in the current account with the entry of a new item, a certain percentage begins flowing to this figure, by agreement of the parties, expressing the price or interest of the loan. In addition, mutual settlements may include the inclusion of the so-called. provisions for credit actions (recouv-rement, Eincassirung) at the expense of the correspondent; may also include accounting (escompte) of values ​​accepted at the expense of an earlier date. Each item in the current account contains the consciousness of a known figure of the debt value. This entire mass of articles is subject to general liquidation only at the end of the agreed period (for example, after a year, after 1/2 of a year, after three months). At this moment the flow of the account stops (Saldirt, Saldo), and the account is concluded, i.e. mutual offset of debts and claims is carried out; but before this minute, separate tests are not allowed for individual articles. The result of the calculation is the whole balance, the net amount of debt and claims. The final settlement is communicated to the other party for the knowledge and approval with the usual, expressed or implied clause S. E. et O., i.e. Sauf erreur et omission; this means that an error (of course, accounting or arithmetic) is not counted. Upon conclusion of the account, when there is no decision to terminate it, the account is opened again between the same persons for the next period, and, moreover, the received figures for the loan and debt are transferred to the new account, adding everything that was due in the previous period as interest for using the loan, etc., and this entire amount is capitalized again. The Russian trade charter mentions the current account only in descriptive articles about merchant (office) books, the maintenance of which is mandatory for traders. 606 art. for the first category of trade, it names, among others, a book of accounts (contocourant or riscontro) for opening current accounts for each debtor and lender, and 607 and 608, for other categories of trade, a book of accounts for a similar meaning: when, how much and for what one owes oneself and to whom, and who owes him. It is obvious, however, that such a book in its legal meaning does not correspond to the above description of a current account between two persons. A current account (conto corrente) establishes a relationship between two persons, one of whom makes a loan to the other and accepts receipts for it. From these relations a debt is formed, but the drawing up of a current account on the part of the participant conducting the calculation is a unilateral action, optional for the accomplice, who becomes obligated according to it only as a result of the acceptance of such an account presented to him, and the recognized result completely pays off all individual items of the account, which can no longer be the subject of special requirements (Cass. decision 1870, No. 1012; 1876, No. 215). The current account, before its approval by the final calculation, is nothing more than a proposal to complete the calculation according to the data entered into it, therefore it does not serve in itself as an unconditional proof of debt (Cass. decision 1870, N 1012). § 21. Coin unit of payment. – The equation of value when one unit is replaced by another. – The concept of legal, metal and exchange value. – Resolutions of foreign and Russian legislation on the equalization of value in payments. Execution receives special significance when it consists of payment of sums of money. Money, as a quantity, allows for a complete equalization of values ​​and a complete replacement of one item with another; but the monetary unit is not the same. It can consist of different materials (gold, silver, copper, banknotes, etc.) and varies by place and time in the type and division of the coin. In any case, it is essential that the subject of payment be a value equal to that which served as the subject of the obligation. But in the application of this rule, confusion may arise regarding the extent to which the freedom of the guilty person (debtor) in choosing a coin unit for payment extends and under what conditions one unit is replaced by another. Value is usually expressed in the normal monetary unit adopted in one or another state. The question is: does the debtor have the right to pay in foreign coin? The law answers: it has the right, then only when, according to the laws of the state, one or another foreign coin is assigned the legal value of a current coin, it is given a legal course for circulation in domestic markets. Otherwise, the other party has the right to refuse acceptance of payment. In addition to the state current coin and the paper coin representing it, which has a mandatory exchange rate, small change coins (Scheidemünze, billon) are usually introduced into circulation. It contains a significant admixture of base metal and therefore serves as an imaginary, and not a genuine, representative of metallic value. Therefore, the law usually allows for the mandatory acceptance of small coins for payment only in small quantities (for example, in Prussia no more than 1/6 of a thaler). The possibility of replacing one unit with another during payment is completely eliminated when the contract does not allow it due to its special property, i.e. when the essential purpose and subject of the contract is not value, but precisely one or another monetary unit; for example, those agreements the subject of which is a coin as a commodity (agreements on the supply of a coin, on the exchange of one type for another) or as a separate thing, removed from circulation (agreements on the return of a coin for safekeeping). The equalization of value when replacing one unit with another is made based on differences in price. The value of the coin, of course, is not the same. First of all, it is legal or nominal, the one that state law has assigned to one or another monetary unit and its various divisions. This value hides another, more significant and serving as the basis of the first, namely metallic: the value of the metal that is contained in the test coin, abstracted from the ligature. This value may decrease from arbitrary deterioration of the coin in state production or from random reasons (for example, from erasure, cutting of the coin). Finally, regardless of the two named, there is also the most significant value of the coin, namely the exchange or exchange value, which depends on the changing price of precious metals in comparison with other items of purchase and sale. Due to various reasons (multiplying or decreasing the metal, trade balance, etc.), the relative price of the metal changes, i.e. It is not always possible to buy the same amount of another good for a certain amount of silver or gold. Along with this change, the value of the coin also changes in its main and essential function, i.e. as instruments of exchange. In ordinary transactions between private individuals, for ordinary periods, we mean exclusively the nominal value of the coin, both at the conclusion of the transaction and during execution, but in special cases, when significant time passes between the conclusion or establishment of an obligation and its fulfillment, during which the nominal value either completely loses its legal value (with a change in the coin unit), or changes it in comparison with the metal and exchange value, difficulties arise in the fulfillment of the obligation and there is a need for an equalization of values, for in all justice, the one who receives should receive no less than what he gave. The most accurate indicator of the true value should be the exchange rate, the relative price of the coin, but this rule is not always accepted as a positive law. So, for example, in French law (Code civ. 1895), the nominal price of a coin serves as the only and unconditional measure for payment under a contractual obligation (som-me numérique pretée dans les espéces ayant cours au moment du payement). According to Austrian law (988, 989), a change in the nominal value of a coin does not produce any change in payment; Only in the event of a change in the metal value or withdrawal of the coin from circulation is the payment made equal to the normal metal value of the coin. According to Prussian law, if during the interval between the establishment of the obligation and the actual payment there has been a change in the monetary unit or its metallic value, this change should not be to the advantage or disadvantage of either party, but an adjustment is made in relation to the exchange value of the day on which the obligation arose (cf. Savigny. Oblig. R. § 46 and Förster Theorie u. Praxis d. pr. R. § 91). – Payment in paper money depends on the agreement of the parties. Credit papers to bearer are also accepted only by agreement, and, moreover, if they were the subject of an obligation, they are received as payment at a nominal price, without considering the difference in exchange rate 8 . According to Russian law, the silver ruble has been considered the monetary unit since 1810, the metal value of which in a silver ruble is 4 gold. 21 shares (Const. Monet., edition 1893, art. 3). Its exchange value, as is known, has fallen significantly since that time, but despite this, the ruble remains the indispensable legal measure of accounts in its nominal value, all acts and agreements are written in silver rubles, and according to the meaning of the regulations relating to this subject, this value remains without any change in payments (Law. Civil. Art. 1540; Establishment of Monet., ed. 1893 g., art. 23). The paper ruble, which is now almost exclusively in circulation among us, must, therefore, be received in payment at its nominal value, unless, of course, at the very conclusion of the contract, payment in metal ruble was not agreed upon: a condition to which, it seems, there is no legal obstacle (on the bill for rubles and banknotes, decision Cass. 1876, No. 230). So, the unit of payment is the silver ruble. Payment in gold (or other coin) is optional for the creditor, but depends on his consent, and, of course, it is assumed that the value is equal to the normal price of the silver ruble. Only recently, by the law of May 8, 1895 (Collected Uzak. N 573), it is allowed to conclude any written transactions for Russian gold coins and make payments for them with the same coin in the amount specified in the transaction or with credit tickets at the rate for gold on the day of payment, and in case of a dispute about the rate - at the last average rate of transactions of the St. Petersburg Exchange received on the spot. Gold coins are also accepted for government payments at the price announced by the Ministry of Finance. – Silver and copper coins are also in circulation at nominal value (Articles 13 and 15 of the Monetary Code) and are accepted into the treasury at this price for any amount, but in payments between private individuals the mandatory acceptance is limited to three rubles each time; therefore, beyond the shown measure, payment in small change can only be by mutual agreement (ibid., Art. 20). When making payments, private individuals have the right to refuse to accept coins that have been sawed off, cut off, or generally deliberately damaged: this rule follows from Art. 24 Set. Monetn., which prohibits accepting in government payments coins that have been cut, sawn, or generally damaged intentionally. A foreign coin of high standard can be used for internal payments, by mutual agreement of the parties, but not otherwise than according to the value specified in the law (Civil Law, Art. 1542). When satisfaction is made in credit securities and bonds having exchange value instead of cash, their price is taken into account on the day of payment at the exchange rate. Coupons are accepted for payment only as those for which the % flow began (see page 255). Payment on a foreign bill, if it contains a foreign coin, must be made in Russian money at the bill rate, which will be at the place of actual payment on the urgent day or on the first exchange day (Ust. Vekseln. 71). When requesting the opposite, the difference in exchange rate is taken into account; it is determined, upon demand from the drawer, by the exchange rate of the place where the original bill for payment was designated for payment to the place from which it was issued; and when required from the signer, at the rate of the place where the original bill was sent by him or where it was written, to the place where he should have been paid (Const. Bill. 113, 114). According to the contract of 1825, the city gave away a courtyard space with an annual quitrent payment of 5 rubles. a walking coin. In 1870, the Duma raised the question: what should be understood by a running coin. The petitioner argued that it should be calculated according to the value that the assignation ruble had in 1825; but the Senate decided to calculate the payment according to the legal unit of monetary circulation established since 1839, i.e. silver rubles. The final decision recognized that the cess should be collected in the amount in which it was collected before the issue was raised (1 General Meeting, September 25, 1874). § 22. Depositing payment at a business location. – In what cases is it allowed, how and where is it produced? - Russian regulations. It is very important for the creditor to receive satisfaction from the debtor in due time; but it may be no less important for the debtor to untie the obligation in a timely manner and satisfy his creditor. So, in this subject the interests of both sides can converge; in fact, they very often diverge, and not only in terms of the debtor’s evasion from satisfying the obligation, but also in terms of the creditor’s evasion from satisfaction. In this case, the conscientious debtor suffers, since in his hands and on his responsibility the value or thing constituting the subject of execution remains longer than the due date, and he remains longer than expected in his property and in credit under the weight of an obligation or duty, sometimes very burdensome and unprofitable. In such cases, the law gives the debtor a means to free himself from this oppression and clear himself of the obligation despite the creditor’s evasion: this means is to allow the official payment amount or the material object of performance to be made, pending acceptance by the creditor (among the Romans, obsignatio, consignation, gerichtliche Hinterlegung). To prevent the debtor from dishonest goals, this contribution is subject to special conditions. In any case, it is required that the obligation be fully open for fulfillment upon the arrival of a term, condition, etc., and that the contribution be full, corresponding to fulfillment in its entirety. French law absolutely requires that the official contribution be preceded by a formal invitation to the creditor (through the bailiff) to accept payment and execution in general, and, moreover, not an empty and unfounded invitation, but with a real offer to him of a finished value or a finished item (offre réelle). If the creditor refuses to accept this invitation or does not appear when summoned, or, having appeared, raises disrespectful objections, the court authorizes the debtor to make a contribution (the place for the contribution in France is special official institutions - caisses de consignation, existing in any district court district). A contribution made on this basis takes the place of payment, namely: it eliminates collection on the part of the creditor, stops the increase in interest, transfers the value of the debt to the fear and responsibility of the creditor and turns production costs onto him. However, such a contribution also acquires the significance of an irrevocable action and makes a decisive repayment of the debt only upon its acceptance by the creditor. The rule of the Prussian (as well as Austrian) law is somewhat more extensive and simpler than the French one: the contribution is allowed in cases where there are obstacles in the person of the creditor to accepting the performance that do not depend on his will, for example, when he himself is not present or due to death, legal incapacity and other reasons there are no legal representatives and authorized representatives. No prior invitation is required, but objections are permitted and allowed by the court. The contribution is accepted by the court at the place of execution; it is irrevocable and serves as a perfect substitute for payment and execution. Its subject may also be real estate. According to our law, contributions are allowed only for the execution of loan acts. In 2055 art. Zach. Citizen it is said: if, due to the absence of the lender or for some other circumstance, the payment cannot be made either to him or to his attorney, then the borrower, when the due date comes, presents the borrowed amount to the court according to its ownership and receives a receipt from it. – This rule, which is very favorable for the debtor, leaves ample room for the court to consider those circumstances due to which payment cannot be made to the lender himself. There is no reason to attach close meaning to the expression: absence, so that the absence of the lender or his authorized representative at the time of payment, at the debtor’s place of residence, can be a legal reason for the contribution (see Cass. decision 1869, No. 1199). – Payment, without a doubt, is assumed in the law only in full, and therefore it is impossible to bring private payment under this law at the sole discretion of the debtor (if there was no installment plan); but any payment, by virtue of the contract, is periodic (for example, payment of interest) or urgent, when the due date comes, it falls within the scope of the article. – From considerations of Art. 2055. with others placed in the same department (2050–2056), it follows that the contribution is attributed the full effect of the payment. Art. 2055, which allows the debtor to pay in court, can be applied to all transactions and obligations regarding execution for which no special rules are established (Cass. decision 1874, No. 302; 1869, No. 1199); 1872 in decision. N 773 clarifies that this article cannot have a similar application to contracting and supply, for which there are special rules in Art. 1737–1745, since no public office is obliged to take charge of prepared materials or goods. When executing a contract for the rental of property, the payer, not finding the owner on site when the payment was due, deposited the money with the volost government. The court recognized this contribution as valid, since the agreement did not define the procedure for the contribution, and the payer was forced, in order to avoid missing out, to deposit the money at the nearest administrative location (Cass. decision 1868, No. 105). In 1868, interpreting Balk’s contract with Tsetlin on the issue of penalties, the Senate recognized that the first violator of the forest felling contract was Tsetlin’s buyer. It was deduced from the condition that it was not the seller who had to come for urgent payments, but the buyer, when the deadline came, had to deliver them to her. The place of payment should be recognized as the location of the subject of the contract and the place of residence of Balk, i.e. her estate. Tsetlin contributed money to the police station of another province, while 2055 art. indicates to bring it to the judicial place, which has jurisdiction over the subject of the contract. Therefore, Tsetlin was awarded a penalty for violation of the contract, and it was terminated, since the contract stipulated that for late payment both the money paid and the timber that had not yet been exported should be recognized as the property of the saleswoman (1st General Collection. September 28, 1873). By the decision of the Senate in 1868 (2 Sat. Sen. Resolution II, N 422) it was recognized as correct and in agreement with Art. 2055. payment of money for the apartment, upon refusal of the landlord and the police, to the Deanery Office. According to Article 2055, the absence of the lender is not recognized as the only reason for making an urgent payment to the court: there is no reason not to include the absence of the payer from the lender’s place of residence as one of these reasons (Cass. decision 1869, N 1199). It should be added that in order to correctly resolve the issue, it is necessary to understand in each given case: in what place, by nature or by the terms of the contract, the obligation to pay and accept payment is assumed 2055 Art. Zach. Citizen refers to cases where the debtor cannot pay the creditor himself, regardless of the will of the parties, and does not apply to those cases when the debtor could find the creditor on the day of the deadline and brought him money, but the creditor refused to accept it. By law, making payment to the court protects the debtor from liability for delay, but it does not follow from this that the debtor, who did not take advantage of this right, would necessarily be subject to a penalty and could not prove the lender’s evasion of the payment offered to him on time (Cass. decision. 1874, No. 684). 2055 Art. Zach. Citizen means the actual impossibility of making a payment to the creditor due to the impossibility of communication; but when the creditor, being in good standing, evades acceptance, the debtor can, by depositing money not to the court, but at least to the police, thereby prove his serviceability and the lender’s evasion (Cass. decision 1877, No. 28; cf. 1874, No. 684). The payment of payment to the court in such a case is considered to be fulfillment under the contract only when it is made specifically for this purpose for transfer by ownership; but when money is contributed as security, with a request to hold it until the end of the case, then the contribution is not enforceable (2 Sat. Sen. decision V, No. 1264). According to the village of Petrova (Cass. decision 1876, N 583), the buyer, at the time of making the deed, contributed part of the purchase money not to the seller himself, but to the senior notary, to pay off for this amount the prohibition lying on the estate and not shown in the sales record. In such circumstances, payment, although not into the hands of the seller as agreed, is recognized as legally made and not in breach of the contract. In the case of 1651 and 2055 art. a notary cannot replace a judicial seat (Cass. decision 1872, N 777). A contribution to certify readiness for payment should be distinguished from a contribution repaying a debt. In the Falinskaya case (Cass. decision 1875, No. 835), the money was paid by the debtor at the place of execution under the contract to the notary on the due date associated with the penalty, and the tenant was invited to appear for acceptance. The question arose about the validity of such a contribution. It is recognized that the money was brought to the notary not for the purpose of transferring it, but as proof that the money was ready for payment on time. This cannot be seen as a violation of Art. 65. notarial position: the notary could in this case act as a private person, whom one party entrusted to accept the money and notify the other party of its availability. But the delivery of money to a notary, in the absence of legal permission for notaries to accept money for safekeeping, can only have the consequence that the further receipt of this money to the creditor remains the responsibility of the debtor, but does not give the creditor the right to refuse to accept the money simply because it was brought not to the court, but to the notary. § 23. Replacement of one performance with another. - Replacement of a thing at its price. – Determination of price upon return. – Russian law regarding the return of property to the rightful owner. – Cases of this replacement in Russian law. One day this obligation must be fulfilled. When voluntary execution does not follow, there may be forced execution, contrary to the good will and free action of the guilty person. But not all actions to which the guilty party has committed allow this replacement of voluntary performance with forced performance in the very essence of performance (in re). So, for example, it is impossible to force a person to transfer property that constitutes a special thing, in its identity, if he refuses the transfer at the last minute. It is impossible to force a person to issue an obligation or to enter into an agreement (in the so-called pacta de contrahendo) when he refuses at the last minute. This would mean violating his will. That is why court sentences made in this sense are recognized as invalid (for example, Cass. decision 1873, No. 217). This does not mean, however, that due to the impossibility of execution in kind, due to the evasion of the party, the value of this execution disappears. It is expressed in damages from evasion or in the interest of performance, compensation for which the subject party may seek specifically from the person who violated his obligation. According to the rule on freedom of agreement, no one can be forced to renew a previous contract, even if the latter contained a condition for renewal (Sb. Sen. Resolution III, 1015). It is impossible to oblige anyone against their will to conclude a transaction or to issue an obligation, and the decision, in this sense, is invalid (Cass. decision 1874, No. 880; 1876, No. 197). Is it possible to force, by promise, to transfer, in the form of a gift, property that requires a deed of gift to be transferred? The Senate (Cass. decision 1869, No. 451) replies that it is impossible regarding the redemption certificate, since its transfer can only be made by deed of gift. But when compulsory execution is possible and cannot be carried out in kind, then a penalty based on valuation serves as a replacement for the thing or action: satisfaction is made at the price of the object or at the value that the execution should have. Sometimes direct execution consists of transferring a sum of money, but there is no money, but there is a thing that can serve as a substitute for money payment. This replacement can occur either by mutual agreement of the parties or without consent, for the creditor in any case has the right to demand such a replacement when performance cannot be done in kind according to the exact meaning of the contract. We have this rule in full force. When replacing a thing with its price, this price is determined either by mutual agreement, or by an assessment and determination of the court (about an unscrupulous owner - Zak. Civil., Art. 612, 618, 620, about a bona fide owner - ibid., 634, 637; about luggage - 2109), at reference prices (Articles 671, 673). – Valuation in necessary cases is carried out - by sworn pricers, by appointment of the court (Article 675), by knowledgeable people appointed by the court and acting as an arbitration tribunal (Article 634; Law Court. Civil. 717), by the craft board (Article 2220; Constitution of Industry, Art. 332, appendix: Art. 5), by the court in enforcement proceedings (Const. Gr. Sud., Art. 896 et seq.). See articles on remuneration for missing and damaged goods - in hiring, loan, contract, deposit - 1707, 1708, 2068, 2105, 2109; Lay down Order. 492. But the value of objects generally changes. An object may not have the same value: when it was still in the hands of the obligated person, when the time came to fulfill the obligation by transferring the thing, when the action from which the obligation arose was completed, when the decision to satisfy was made. It is obvious that the amount of payment for an item may be more or less profitable or unprofitable for one or the other party, depending on what point in time is taken for assessment. Usually, the value that the thing would have had at the moment when it had to be given away or delivered in kind is taken into account. This rule is the fairest, but sometimes the law deviates from it either to avoid extensive research, or out of condescension towards the obligated person, or to protect the person demanding it. So, for example, an illegal, unscrupulous owner, when returning an estate to the legal owner, is obliged to pay him for agricultural tools and other objects belonging to the estate, machines, household utensils, etc., sold or taken out of the estate and not returned with it, stolen or sold livestock, for timber used for transfer, gift or sale, for everything destroyed or damaged, of which it is not possible to restore it to its previous form, even for livestock that died from infection, if precautions against it were not taken, for all products of the rural and factory industry received as income from the estate (613, 615, 618, 620, 642). When collecting all this, the prices that existed during the illegal possession of the estate are determined, and if the legal owner wants to receive more, he is obliged to prove that these items had a higher price at the time when they were taken out, destroyed, sold, etc. by the unscrupulous owner (621). A bona fide owner is not subject to collection of income, but is collected from him for everything that, regardless of income, is destroyed, damaged, donated, etc., from items that reduce the price of the estate. Here the law simply says “according to the valuation” (634) and, probably, refers to the valuation of the minute of return of the estate, without mentioning the right of the person requiring to prove that at the moment of extermination the price was higher. In the case of appropriation of someone else's property, the appropriator returns it exactly in the form in which it was at the time of the theft, or must pay for it at the prices existing at the time of the decision or existing at the time of the theft, depending on how the legal owner will demand. The same is said about the person guilty of destruction or damage to property. Therefore, the choice of the moment for the assessment is left to the requester, depending on which assessment is more profitable for him (671, 673). In general, cases of replacing property and even personal execution with a monetary penalty are very diverse and often occur. It depends on the discretion of the court - if necessary, determine the amount of recovery where an assessment of the thing or work can be made, for example. when it comes to repairs and amendments. In such cases, the commercial court is authorized to appoint an additional oath and, moreover, determine the extreme limit of the quantity beyond which the assessment should not extend (Const. Court. Trade. 306). On the other hand, monetary execution can be replaced by real execution. This case occurs when fulfilling obligations for money or in general during monetary penalties. Execution, when performed involuntarily and not by mutual agreement to submit to the claim, but compulsorily, usually consists in the fact that the government turns to the property of the debtor, turns it into money through public sale and already satisfies the demanding person with this money. But, under certain certain conditions, sometimes here, too, a substitute for monetary satisfaction is the surrender of the debtor’s estate to the demanding person for a claim or in payment of an assessment claim. This should include the giving of the mortgaged property under an overdue mortgage to the mortgagee for use until the debt is satisfied, instead of interest; Zach. Court. Citizen 615. Then the mortgaged estate in an amount equal to the amount of the debt according to the assessment is assigned for sale (ibid., Art. 624). If no one willing to bargain comes to the first auction and re-auction, then the estate, at the request of the mortgagee, is given to him in a claim, for his final satisfaction (Pol. Recovery Civil., Art. 308, 309, 326. Wed. Establishment Gr. Court. 1187, 1068). When a debt is secured by a mortgage of movable property, then, upon delay and presentation for collection of the obligation, if the debtor does not appear at the appointed time or, having appeared, cedes the mortgaged property for payment, then it, at the request of the lender, is given to him in a lawsuit, unless other creditors of the same debtor demanded that the mortgage be put on sale (Law. Court. Civil. 632 et seq.). For obligations not secured by collateral, the debtor's described and assessed property is designated for sale. If there are no people willing to come to the auction or only one appears, then the persons at whose claim the sale was appointed are given the opportunity to retain the estate for themselves according to the valuation, and when they wish for a new auction, then if it fails, they are already obliged to accept the estate according to the valuation: they have this right at secondary auctions, when a price was offered below the valuation (Pol. Recovery Civil., Art. 305, 307, 310. Cf. Cont. Gr. Court. 1171–1175, 1182). When an estate is sold under treasury foreclosure, then in the event of failure of the auction, it is granted with the permission of the subject authorities to turn it over to the treasury for assessment (Pol. Foreclosure. Civil., Art. 317, 320, 323). When selling movable property, the plaintiffs also have a preferential right to retain the thing according to the valuation, when at the first auction there were no takers or the price was given below the valuation, or at the second auction at the last announced price (Regulations. Recovery. Civil., Art. 364 et seq. Wed. Est. Gr. Court. 1062–1070). There is a case in which, according to the direct rule of the law, a monetary penalty is replaced by personal work or living in work. When a worker, having taken a regular payment in advance from the owner, falls ill or owes him for loss and damage to things, he undertakes to earn from him a period commensurate with the debt when he is unable to pay him (Civil Law 2239). The replacement of monetary penalties with personal detention, allowed by previous laws (2 parts X t. 1436; Est. Gr. Court. 1223), was abolished in 1879. On the replacement of unworked peasant days at the legal rate with cash arrears, see Local. Great Russian Floor. Art. 192 et seq., 253; Maloross. 245; selection of the site - Velikoross. 265; Maloross. 254; return on earnings – Local. Great Russian 261, 262, 264. Cf. Floor. Off 129, 133. The replacement of monetary duty with material or labor is allowed under the conditions of no more than three years (Local Great Russia 171, 172). On replacing payment with a deduction from the ship's servant's salary - Const. Bargain. 269. Wine merchants are prohibited from reprimanding and paying in wine instead of money (Const. Pit., ed. 1393, art. 580, 611). General Floor. Cross. 51, 78, 58 clauses 7 and 11, 84 clauses 3 and 7. Pol. Off 127, 129. The right to return the earnings of faulty payers of redemption payments, with the conclusion of contracts about this, belongs exclusively to the rural society (and not to the elder or the intermediary individually), and can be exercised only through the verdicts of volost and village assemblies (Cass. decision 1873, N 470). When foreclosure on redemption interest-bearing securities, the creditor is given the choice to either accept them at nominal (and not exchange) price, or refuse to accept and foreclose on other property (Pol. Vyk. 109). Rules 1084–1089 art. Est. Gr. Court. on the foreclosure of the debtor’s pension remain in force in relation to the debtor declared insolvent (Cass. decision 1875, No. 17). A replacement for execution may be the issuance of a new deed of debt in repayment of the previous one, i.e. renewal of the obligation (see Sat. Sen. decide. I, 122). Appendix to § 23. On the value of property. – The concept of price. - A measure of value. – Price category. – Methods of assessment. – Taxes on various items and fees for remuneration for labor. – Weights and measures. The content of any civil law is essentially economic; its purpose is economic. An object of possession or a thing becomes a subject of right, since its possession is connected with benefit or with material interest for the owner. The extent of this interest depends on the use for which the thing, by its nature, serves. The use of a thing determines its value. But the concept of usage is relative. The attitude towards the person of the owner determines, first of all, the value of the direct use of the thing (Gebrauchswerth), depending on what it serves, what needs the thing satisfies for its owner. But when the concept of a thing is abstracted from its actual owner, its value is determined by the sum of the needs to satisfy which it can serve for all other owners, in accordance with its economic quality. To determine its value, it is necessary to take into account the extent to which it is capable, by its nature and special properties, of serving anyone for a certain use, passing comfortably from hand to hand without changing; it is also necessary to figure out how many similar things are in circulation in that place, convenient for acquisition, etc.; consideration of such data determines the market or exchange value of a thing. So, this value depends on many different local, temporary and accidental circumstances. Other things that previously had significant value lose it later because previous needs have changed or disappeared altogether, and vice versa. When there are more things of a certain kind in circulation than there is demand for them, i.e. above the need, things fall in price, and vice versa. A thing may completely lose its value when there is no demand for it in that place, and it is difficult or impossible to transfer it to another place where there is demand. So, the exchange value of things depends on the state of the market, and therefore, with the development of market circulation, when it is easy and convenient to acquire a needed thing at any time for a certain price, value is completely identified with the thing and the things themselves become values, so that the right to a certain thing receives a certain value. The more definitive this value is, the more complete, in terms of the property of the object and the right itself, is the possession and use of the thing; if it is not complete, limited or not entirely clear, then its value is not so definitive. The most definitive thing is full ownership; possession in itself has no value, apart from the right to own; The right to a pledge, to a mortgage, is all the more determinative in its value, the more it represents reliable security, i.e. the more certain the calculation is for its speedy and complete implementation, finally, the right to act, the right under an obligation, the right to sue, are in any case less valuable than a property right. The yardstick for determining the value of things is money, and the indicators for evaluation are the usefulness of a thing and its ability to be exchanged. But the dignity of a thing is not determined by the same measure of its use. Considerations about what a thing can serve and what it is worth on the market, i.e. for all consumers in general, lead to the determination of only a general, market price; but not all consumers have the same need for the same thing and ask for it for the same need. The same thing for some consumers satisfies more complex, more subtle and urgent needs than for others. The determination of the special value that a thing has in a certain person or in a certain class of consumers depends on this difference. In addition, there are things that have dignity and value exclusively for their owner, completely independent of the market price, satisfying his special needs, accidental, mental, moral or imaginary, inextricably linked with his personality. Such dignity of a thing, depending solely on personal consciousness, cannot be determined by an external (objective) standard and therefore has no legal significance at all, in the sense of civil law, although other legislation includes it in the category of values ​​(prix d'affection, Affektionspreis). Market prices are usually reduced to the categories of high, low and average prices. Although the value of a thing is determined by its price, in many cases with perfect accuracy, so that it is convenient to acquire a similar thing for a certain price, it is impossible to accept as a general rule that the price of a thing serves as its substitute (pretium succedit in locum rei). When it is necessary to restore the right to a thing by a patrimonial claim about it, the will of the defendant, who is obliged to present the thing to the plaintiff, does not depend on the replacement of the thing itself with its monetary value. The price of a thing can serve in such cases only as a reward if the thing itself does not appear in kind or its representation in kind becomes impossible. The value of property in civil cases is determined by an assessment made according to the procedure specified in the law (Ust. Gr. Sud., Art. 1000–1008, 1117–1127). Special rules of assessment are mentioned: for mutual insurance (Pol. Mutual Insurance, ed. 1886); for remuneration regarding the construction of roads (Ust. Put. Commun. 796), in general for property going to the treasury (Law. Civil); for the redemption of peasant lands (Pol. Vyk. 11 et seq. 65); for an assessment of peasant estates, see General. and Local Cross. Floor. Estimation of losses when fields were destroyed by troops (Article 419 and notes 1 and 2, according to Prod. 1890, Establishment of Land Policy). Judicial assessment through knowledgeable people (Ust. Court. Torg., 336). Valuation of goods sold on the stock exchange through auctioneers (Article 592, Appendix I: Article 122 et seq. Establishment of Trade). Valuation for the sale of goods at customs (Customs Statute 1892, Art. 1676). City property assessment for public tax assessment; assessment of property for zemstvo taxation (Cont. 1890, Special App. Establishment of Zemstvo Prov., Art. 10). Evaluation of yasak and junk (fur skins) T. V, ed. 1893, Const. Straight. Tax., Art. 565, 607. See Pol. Foreigner T. II, ed. 1892, art. 330–359. Evaluation of forest products when exported from state-owned forests (Ust. Forestry, ed. 1893, art. 321). Valuation for collection of serf duties from acts (Const. Poshl. T. V, ed. 1893, Art. 1, 208–212, etc.) Valuation of estates and lands when sold for government arrears (T. V, ed. 1893, Cont. Straight. Tax., Art. 25). Assessment of the profitability of estates during regulation (Constitution of the Kazen. Im., ed. 1893, Art. 5, appendix: Art. 23, 91 et seq.). For an assessment of the profitability of land based on the amount of quitrent in the charter, see Cass. decide 1875, N 36. To satisfy the economic needs of the treasury, when drawing up estimates and concluding agreements on government procurement, contracts and supplies, etc., approximate prices are established administratively and reference market prices are taken into account. The so-called established prices are set in each locality (district and province) for bread of all kinds and fodder, born in that place, for coolies, sacks, for day labor of man and horse, for ships and barges and for the cost of loading, rafting and transportation. The period for determining these prices is monthly from September to May. Their determination is entrusted to the local leader, police officer and head with vowels, and in the second instance - to the governor, with the participation of similar named officials and merchants. Prices approved in this way are recognized as established: they differentiate the complex price from the average, and the latter is considered the legal price for government purchases (Ust. Nar. Prod. ed. 1892, art. 93, 102, 103, 104,138, 141). Regardless of the established prices, in some provinces the police are required to keep records of trade prices for food items, compile general statements for the district and submit them to the provincial authorities within a certain time frame (Ust. Nar. Prod. 140). The duty of the City Duma (and, according to the new establishment, City Councils) is entrusted with collecting and reporting to whomever should (also for procurement estimates and control verification) reference prices for food items, as well as for other procurement items, such as: building materials, commissariat items, transportation of heavy loads, etc. (Temporary Law of the Zemsk. Institution, art. 25). Trading prices for goods existing on the exchange. They are collected through stockbrokers, delivered (once or twice a week) to the goofbroker and serve to compile a price list, which is published. Est. Bargain. 592, adj. I, art. 115, 116; adj. IV; Art. 65; Est. There. ed. 1892, art. 1678. In the same way, information about the exchange rate is collected. The law also mentions free prices (compared to those established and determined by regular competition and auction), estimated prices, for bidding according to estimates, procurement prices (for farms, procurement by the state department), sales prices (determined for sale from the treasury, for example, for salt), contract prices, derived from the general calculation under the contract (for example, the Establishment of Postal Service, Art. 232). In particular, you can also indicate the prices of shares and credit securities determined for their acceptance as collateral by the treasury (Pol. Treasury. Sub., Art. 77). In many cases, the law establishes: 1. Taxes on the price of various items, such as: Pharmacy, above which it is prohibited to sell medicines from free pharmacies. It is changed by the authority of the Minister of the Interior upon consideration by the medical council (Constitution of Doctors, ed. 1892, art. 541–543, 550, 551). Taxes in cities for baked bread and meat, published from time to time (Const. Prod. ed. 1892, 127, 138; Establishment Nak. 29, 173). Tax on food supplies for persons kept in quarantine (Constitution of Doctors, 1892, Art. 921). Tax on bread, gunpowder and lead in Siberia, etc. (Const. Prod. ed. 1892, 281 et seq., 308 et seq. 321). Tax on forest materials and forest products from state-owned dachas (Constitution of Forestry Ed. 1893, Articles 223, 226 et seq.) Tax to remunerate owners for road materials selected from the estate (Constitution of Put. Communications 556, 795). The rate of remuneration for the weeding of fields and meadows by other people’s animals, established by the world congress (Pol. Cross. Institution. App. to 31 Art. § 2 and 3). Tariffs for the transportation of passengers and luggage by rail, see below, § 52. Tax on gold for payment of customs duties (see Statute there). 2. Labor remuneration rates, such as: The rate of remuneration paid to doctors from low-income people (Constitution of Doctors, ed. 1892, Art. 149. Code of Laws. 876). Rate of payment to pilots for escorting vessels (Inst. Route. Communications 298, 305, 308. Inst. Trade. 318). Courtage fee for brokers, adjusters and auctioneers (Const. Torg. 644; appendix I to article 592, art. 111, 121, 130, 154, 162, 179, 194; 600, appendix I, article 91). Fees for notaries, bailiffs and sworn attorneys (see § 59). Remuneration to consuls for commission for incoming ships (Const. Consul., Art. 24). Fee for taking over baggage during navigation on the rapids (Statutory Route Message 143). The amount of daily work for men and women, summer and winter, to fulfill peasant compulsory service, is determined for each province by the so-called assigned position, which is approved by the provincial presence in charge of peasant affairs. He also determines the assessment of working days for every three years (Local. Great Russian Pol. 192, 214, 220, 231. - For the determination of working days, see Little Russian. Local. Pol. 195; ibid., Art. 251 on the backlog tax for arrears of work; see about this Cass. decision. 1867, N 167. The number of working hours in a day is determined 217 Art. Great Russian. To determine the price of work when drawing up construction projects and estimates for structures, a special time limit issued in 1843 is used (Construction Regulations 127, 135, both according to Prod. 1886). Weights and measures used in Russia are described in 651 et seq. Art. Est. Bargain. Wed. adj. to Art. 20 notes, vol. II, General. Institution Gub., ed. 1892, art. 39 (about the normal measure of firewood, see Ust. Zemsk. Pov. 365, 392). In circulation, samples are used that are verified with a stamp in the presence of the Treasury Chamber, with the invitation of experts, and in St. Petersburg - in the City Council, with an official of the Treasury Chamber and an assayer. Reconciliations and markings can be carried out both in county towns and in city governments (Constitution of Trade 687–689). Normal samples are stored in St. Petersburg in a special fireproof building, the supervision of which is entrusted to the Department of Trade and Manufactures (Organization of Trade. 658, 659, 662, 663); copies of samples are kept under the jurisdiction of the Treasury Chambers, in cash storerooms behind a seal (Constitution of Trade. 660). Supervision over the use of legal weights and measures belongs to the police, and verification belongs to trade deputations (Constitution of Trade 697, 698). Products made of precious metals are subject to testing and branding (Industrial Regulations 509 et seq.). See also note. 1 to st. 661 Set. Bargain. on the sale of grain bread by weight or by measure. In 1893, new rules were issued for the depot of standard weights and measures. § 24. Replacement of one demand with another opposite one (compensation). - The basis for this replacement and the legal conditions for it. – Uniformity of requirements. - Their ratio by number. – Effect of insolvency to substitute. – The demands are incommensurable. – No need for replacement. One of the most common types of replacement in execution is the replacement of one requirement with another corresponding requirement, or the so-called compensation (compensatio, compensantion), the replacement of a debt with a claim, as our legislation is not entirely accurate in other places. When, on my part, an obligation is presented for collection that is recognized as indisputable, but upon collection it turns out that my debtor has a claim against me, in the same or another place, subject to collection, of exactly the same or greater amount, then, of course, there is no need to actually collect in my favor. As much as he owes me, I owe him as much, therefore, one thing is repaid by another. I'm charging 1000 rubles. from Ivan, but Ivan also collects 1000 rubles from me. We're even. I collect 1,500 rubles from Ivan, and he charges 2,000 from me; my claim is still being paid off, and his is being paid off for 1,500 rubles. and I still have 500 rubles left, which I actually have to pay him. Of course, the collection could have been carried out in reality, but the whole procedure with its troubles and expenses would have been in vain, since it would have been followed by a return collection of the same amount. Replacement serves to eliminate this wasteful production. Melius est non solvere quam solutum repetere. But this replacement, this repayment of one demand by another can only take place when both demands at the moment of collection have exactly the same force, when they are homogeneous in the subject of collection, both are subject to implementation to the same extent and degree, and both are indisputable, not subject to doubt. A clear demand cannot be satisfied by an unclear one. Let us assume that I am collecting on a loan letter, which is already overdue and has already been recognized as indisputable, as subject to execution, by the verdict of the subject authority. The debtor confronts him with his loan letter to me, but one that has not yet come due. Of course, there can be no replacement here. On my part - an indisputable demand, subject to unconditional execution immediately, hic et nunc, on his part - my obligation, according to which the right of action, demands, let alone execution, cannot yet be realized. Someday his term will expire, someday he will present it for collection, and even then, it may happen that I will file a dispute, and his demand will be moot. I may have a clear, unconditional demand (for example, on a bill of exchange, on a loan letter), and my debtor has a demand under an agreement with conditions, for violation of a condition, for a penalty in action, therefore, subject to further analysis and discussion: obviously, there can be no replacement here (liguidi cum illiquido non fit compensatio). The debtor counters my demand, which is indisputable, with his demand against me, which consists of a dispute and judicial review. Such a demand in itself cannot in any way be accepted as a replacement for mine. If the court, considering the case on his claim, finds it necessary to require security from me, then I can submit my indisputable claim as security; but by this my collection will only be suspended, and not extinguished. Replacement can take place only when, and at his request, a verdict of the court appears, which has entered into final legal force. Substitution can only take place between homogeneous requirements, precisely when both requirements relate to quantity. Neither of the two creditors can be forced to receive something other than the one that should be given to him. Replacement is possible when on both sides the subject of the debt is a sum of money or quantity of the same category. For example, I borrowed 2 bags of flour from you, and at another time you borrowed 3 bags from me; replacement is possible. But where the grain merchant took 2 boxes of wine from the wine seller, and he took 4 bags of flour, it is difficult to allow a replacement without mutual agreement, unless these obligations will be converted into money at known market prices. (Under this last condition, the French law allows for replacement.) And when one of the two requirements has an individual, definite thing as its subject, and the other does not, replacement is absolutely impossible. For example, my friend’s father bequeathed to me his trotter Swan, and my father bequeathed to my friend any horse from his herd: between both of us, replacement on this subject is impossible. In general, when replacing, there is no need for both demands to be identical in amount: the smaller penalty, in its entirety, is repaid in the larger one. – There is no need for the number of individual claims on both sides to be the same: one claim can replace several, and in case of doubt, repayment is distributed according to the rules of offset (see above). There is no need (on which, however, not all legislations agree) for the place of payment for collection on both sides to be the same: the difference in interest that arises from this can be taken into account separately, but does not prevent replacement. There is also no need for the grounds of the demands to be the same: as long as in the final result both demands are indisputable and reduced to recovery in the same denominator. There are, however, cases when, even under all the above conditions, replacement is not allowed. Substitution requires that both claims be collectible. But here's what might happen. I submit a loan letter from an insolvent debtor for collection, and he has a claim against me for an overdue loan letter. My claim is subject to collection, because all claims submitted against an insolvent person, even if the deadlines have not yet arrived, are subject to collection. With all this, there cannot be a replacement between our demands: in this case it would be unfair. When a recovery is made from an insolvent person, all his creditors for simple borrowed obligations receive satisfaction not in full, but according to the calculation of how much is due per ruble, in one proportion. So, if one of the creditors, himself wealthy, in repayment of the amount to which his claim extends, could set off the entire amount that he himself owes, this would mean that in fact he is completely satisfied, while everyone else would only receive a certain dividend. Such a privilege would be arbitrary and unfair. Below it will be shown that Russian legislation follows a different rule. Many laws, following the example of Rome, protect some requirements from replacement. These are: the claim of property forcibly taken away or appropriated (according to the rule: spoliatus ante omnia restituen-dus), the claim of a thing given for safekeeping or on loan; Substitution is not allowed in the case of mortgage and bill claims transferred to another person, when the claim of this successor is opposed by the debt of the transferor, the original creditor (Ivan gave Peter a bill on Fedor, and when Peter collects from Fedor, Fedor submits his claim on Ivan in replacement); on the other hand, the right to submit in return – claims acquired by transfer, for example, a claim against an insolvent debtor acquired after the opening of the competition, is limited. (Peter is among the creditors of the insolvent Ivan; and Fyodor owes Ivan, and in order to become one of his creditors, he acquires Peter’s claim.) In Rome, the right of substitution only little by little was freed from the legal and procedural formalities that had previously constrained it, and was declared free, which is expressed in Justinian’s legislation by the word: ipso jure, i.e. without any special formalities. This expression, misunderstood by the compilers of the French code, led to the inclusion in it (Article 1290) of the following rule: replacement is carried out by the completely unified force of law, even regardless of the consciousness of the debtor. It is obvious, however, that such a replacement effect can only be explained by the repayment of mutual claims arising from one bilateral transaction. Therefore, this rule (not strictly observed by French judicial practice) is not accepted in most other legislation, and in the Prussian law it is precisely expressed that replacement occurs upon request and that anyone is free to refuse replacement. Our legislation does not have general rules on replacement; however, there is no doubt that it is permitted under the essential conditions indicated above. Only in special cases does our law mention replacement. So, in Art. 605, paragraph 2 b Law. Court. Citizen it is said: collection under loan letters stops when the debtor submits a decision of the court that payment under the deed should be used to satisfy the debtor’s claims against the lender. In case of commercial insolvency, when the same person represents both the lender and the debtor, then the replacement of the debt with a claim is allowed in full, amount against amount (Const. Court. Trade. 587). Palauzov bought tobacco from Bogosov, on condition of payment in cash five days after receipt, but instead of money, he presented his claim against Bogosov on promissory notes at sight and receipt. The Senate (Moscow General Sobr. 1865) recognized that P. had the right to do so if his demand was equivalent and unambiguous, equally clear and open to collection (Law. Court. Civil. 605, corresponding to Article 78, ed. 1857; Constitution of the Court. Trade. 587, corresponding to Article 1966 of the Constitution of Trade. ed. 1857). Both demands are indisputable and open to collection, for Palauzov’s demand is based on simple bills that do not require prior acceptance: their entry into delay did not even depend on the daily deadline, but the obligation to pay was opened upon presentation, for which no special ceremony was required. B. could evade payment only by arguing, which he did not present. So, in this case, replacement was possible. On the contrary, a promissory note does not belong to the number of acts whose form is strictly determined by law and to which strict force is assigned; therefore, the requirement for it before presentation to the debtor and recognition could not be considered clear in the same way as the opposite requirement. The buyer of an estate at a public auction does not have the right to present as a deposit, instead of cash, all or part of his debt claims against the one whose estate is being sold (Ust. Gr. Court 1161, 1166, 1176, 1177). In 1352 Art. Zach. Court. Citizen ed. 1876 ​​(corresponding to Art. 296 Pol. Collection. Civil ed. 1892) states that a lender taking part in an auction can, instead of cash, contribute, both in the deposit and in the purchase amount, those debt obligations for the satisfaction of which the estate was put on sale. But in Ort. Gr. Court. such a right of the lender is not fully retained, and Art. 1166 Set. Gr. Court. gives him the right only in relation to the purchase amount. If this were allowed regarding the deposit, then the rule of Art. 1176 would become impossible. about the loss of the deposit for a penalty, as well as rule 1177 art. (Cass. decision 1877, N 299). 1966 Art. Bargain. Est. (corresponding to Article 58 of the Establishment of the Court. Trade Edition of 1893) allows the replacement of a debt with a claim in competition only when the same person represents both the creditor and the debtor. In such a situation, there may be a debtor of an insolvent person, who at the same time has a debt claim against him, even if this claim was acquired by him by transfer from another person: but it is necessary that this transfer be made before, and not after the declaration of insolvency by the court (Cass. decision 1878, No. 286). Between the insolvent and the creditor, it is impossible to set it off, because it is necessary that the claims be made specifically for the set-off ruble for ruble (decision of the Saratov District Court in the Kozhevnikov case (Cass. decision 1878, No. 5). § 25. Termination of obligations through a new contract. – Contract renewal. – Signs and consequences. – Termination of the contract by condition. - Peace deal. - Compromise. – Russian law of settlement agreement. The contract can be terminated by a unilateral act of will - refusal of a claim, forgiveness of a debt, termination of a claim, etc. This action, for which there is no general definite form, has the meaning of either consciousness or donation, and in the latter case serves as a gift act, subject to the law of the gift. An agreement can be terminated by a new agreement, with the aim of destroying the old one and concluding a new one instead (novatio, novation, Umschaffung), and the parties remain the same. With a change in the entire subject of the contract, either a change occurs in both parties, or in the person of one debtor (delegatio, expromissio). Examples: in the previous agreement, Ivan was supposed to supply 1000 quarters of bread, but the parties agreed to destroy this obligation and instead, taking into account the relations between themselves, profit and loss of interests, they decided to write that Ivan owed 5000 rubles by such and such a period. Or: Ivan owes Peter 1000 rubles; Peter agrees to destroy this obligation so that Fyodor will instead give him an obligation for 1000 rubles. The essence of innovation is that the cancellation of a previous obligation is not separated from the establishment of a new one, but both are accomplished in one act of mutual will. In this case, the previous obligation is destroyed with all consequences, accessories, etc.; It is only permissible, by special agreement, to transfer the right of pledge or security with the seniority assigned to it - from the previous obligation to the new one. Innovation, in its force, is not presupposed in itself, but must be unquestionably expressed, so that there is a clear intention to destroy the previous agreement with the establishment of a new one (animus novandi). Roman law required a positive expression of this will, but modern legislation requires only that it be clearly revealed from the act or the circumstances surrounding its commission. There is no innovation when only private terms or accessories of the contract are subject to change, for example, payment terms, interest conditions, security conditions, etc. In general, it is rightly noted about this institution (Förster, § 97) that in the new legislation it has lost its former meaning and there is hardly any practical need to value it in the sense of a separate legal institution. The contract itself that establishes the obligation may contain conditions for its termination. Between them, the so-called is of particular importance. lex commissoria, when the right of one party to performance is declared in advance destroyed (commissum), in case this party does not perform in due time and by itself the performance expected of it (for example, does not pay money for purchased property on time, etc.). Among the agreements on the termination or modification of a previous contractual relationship, a settlement deal (transaction, Vergleich) deserves special attention: the parties, through mutual concessions, transform previous, controversial or unclear and dubious relations into a new agreement. Its purpose, as French law puts it, is to end a dispute that has arisen or to prevent a dispute that may arise. So, since an agreement of this kind is caused by previous ambiguity, which could tend to the benefit or detriment of one or the other party, then the means to agreement in a world transaction are usually mutual concessions (not only unilateral awareness of an opposing right or the abandonment of one’s right). By this property, a settlement agreement differs from a court verdict (which determines only the right from an objective point of view), but corresponds to it in that it aims to end the uncertainty about the law. Due to the importance of such an agreement combined with concessions, the law surrounds it with formalities that stimulate a serious decision of the will (French law certainly requires a written act), and allows it only where the parties have the fullness of the decisive and controlling will and the subject itself is completely free to dispose of. As a result, the authority for a settlement transaction by proxy must be specific and clearly expressed; settlements of minors require the approval of the upper guardianship authority. The personal relations of the spouses, the criminal consequences of a crime and misdemeanor are not subject to change, the expected rights to inheritance do not allow disposition in a settlement transaction. A settlement deal on a subject decided by a final (non-appealable) court verdict is not valid if the parties did not know about the verdict that had already taken place at that time; if it was known to them, then mutual concessions of interests during its implementation depend on them. A special type of settlement deal is a compromise, or an agreement on arbitration of a dispute through a private intermediary, to the decision of which the parties are obliged to submit. Thus, the parties give the mediator’s decision in advance the force of a voluntary agreement on law. It follows that an agreement of this kind cannot completely freely extend to all subjects of civil law and that the proceedings of intermediaries, which constitute a substitute for a proper court, must take place in some order that protects the impartiality of the decision. In ancient Roman law, agreements of this kind were free, and in order to prevent objections to the verdict of the mediators, the parties bound each other with a monetary penalty (compromissa pecunia, from which the name of the compromise comes). But since the time of Justinian, these agreements have been subject to legal restrictions, and compromise has entered more and more into the realm of procedural legislation. Our law does not have any special rules about drawing up a new contract to replace the old one. As a general rule, the parties may, by mutual consent, terminate the contract at any time. When a party who has the right to demand performance under a contract voluntarily renounces his right in whole or in part, then the validity of the contract in whole or in part is terminated, as long as the subject of the assignment is not the rights of a third party who did not participate in the contract (Articles 1545, 1547). Our law does not prohibit conditions for terminating the contract in the event of non-fulfillment by the other party, and conditions of this kind occur in practice. 1585 Art. expressly allows for the possibility of termination of the contract with the payment of a penalty, in the sense of a fine for non-fulfillment. A settlement agreement may follow between the parties to end disputes about the law, both in litigation already begun and outside of litigation. In litigation, it can follow through a settlement petition, which is submitted by both parties jointly or separately (from the settlement petition, which presupposes a joint will, it is necessary to distinguish unilateral requests to terminate the ongoing case on the part of the plaintiff). In support of the peace petitions, the litigants are interrogated, and then the case is considered resolved without the right to renew the same claim. A settlement agreement can also follow in the presence of the court, in words, with the drawing up of a protocol. Certification of the completed peace in any case is required in writing (Law. Court. Civil., Art. 661–666; Establishment. Gr. Court. 70, 71, 1360–1366; Cass. decision. 1870, N 552). Peace is permitted in every state of affairs. In dismissing the case on this basis, there may be no question of the conditions under which the reconciliation took place. These conditions are expressed in a peace deal or a special act of reconciliation. A peace deal can be concluded in any state of affairs, therefore, after a decision has been made, it may not be between all persons sympathizing on each side, but only between some of them. This transaction is carried out independently of the court, in the form of a deed submitted for certification by a notary or a justice of the peace (if property is transferred into ownership, then the deed is made by a senior notary). As a result of this act, the case is terminated forever (Law. Court. Civil. 666; Establishment Gr. Court. 1357–1366; Notar. Pol. 158). A settlement agreement creates a new contractual agreement between the litigants, destroying the previous agreement, which cannot be restored (Cass. decision 1875, No. 894). Therefore, a settlement agreement is executed not as a court decision, but in general like all contracts, and the dispute arising under it is the subject of new judicial proceedings. Behind it all, however, is Cass. Dep. The Senate (1870, N 1679) recognized that the incorrect interpretation of a settlement agreement, as tantamount to a court verdict, may serve as a reason for the cancellation of the decision. The right of the attorney to terminate the case amicably is not generally assumed, but must be specifically explained in the power of attorney (Ust. Gr. Court. 250). It is also assumed by general power of attorney only in the magistrate’s court (Article 48), of course, for the purpose of the law to favor reconciliation in these courts. However, Cass. Dep. Senate (1871, d. Chervonetsky) explained that in the magistrate’s court this right of the attorney extends to the controversial state of the case, until the decision, since the decision creates a new right, the assignment of which requires a new authority. A minor cannot enter into amicable transactions, and it is hardly possible under our law to allow a guardian to make concessions for him, even with the permission of the guardianship (Law. Court. Civil. 687, 710; Establishment. Gr. Court. 1368); but when, based on the content of a settlement transaction, it can be concluded that there is no assignment of rights to property, but only an acquisition, then such a transaction could, it seems, be approved by guardianship (Law. Civil. 286). I say: it seems, since our law does not express a direct and clear principle on this subject. A minor over 17 years of age who has a guardian may, with his consent, by force 220 Art. Zach. Citizen enter into amicable transactions (see § 5). The subject of a settlement agreement cannot generally be objects on which contracts are not allowed (Law. Civil. 1529) and, moreover, state, government, public interests (Law. Court. Civil., Art. 710, Establishment of the Civil. Court. 1368). There is no reason to exclude items of civil compensation for the consequences of a misdemeanor or crime from the scope of a settlement agreement. A settlement between an insolvent person and creditors is permitted only upon the opening of insolvency, in a general meeting of lenders, for a majority of 3/4 of the recognized claims and with the approval of the court. Proposals for a transaction can come from either the debtor himself or from a third party, with the consent of the debtor. The transaction may take place before the end of the proceedings and the insolvency ruling. She ends the competition with all its consequences as if it had not happened at all. Then the satisfaction of the creditors is made on the basis of this transaction, and the property acquired by the debtor after the transaction can be used to satisfy only his new debts made after the agreement (Const. Court. Trade. 634–638; Cass. decision. 1876, N 267 and 424). Settlement transactions do not destroy those claims that were not submitted to the competition (638, approx.). The rules on the preparation of arbitration records and arbitration proceedings constitute the subject of legal proceedings (Const. Gr. Court. 1367–1400). Examples: In the agreement of 1870, Ivan undertook to issue loan letters to Peter for 400 rubles. and make payments on them of 50 rubles. per year. In 1872, he issued him letters of borrowing for this amount, but without the condition of payment in installments. The question arises: after the issuance of these loan deeds, does the first agreement remain valid? In December 1866, Ivan, having a penalty against Peter, postponed it until February 1, 1867 with a penalty of 300 rubles. for delay. Due to the delay, collection was resumed, but another condition was met, according to which Ivan, having received part of the debt, deferred the rest with the guarantee of a third party, and no mention was made of the penalty. If this second condition is a new contract, then Ivan already loses the right to a penalty. Kobylin, having sold the land to Zhedrinsky, received 5,000 rubles as a deposit. and issued an earnest receipt, in which the deadline for the deed of sale was set at September 15. After that, they concluded a condition in which the deposit was mentioned as an amount in payment for the land, and the deadline for the deed was set to October 20. The deed of sale was completed on October 28. A claim for a deposit for late payment followed. The court recognized that the deposit receipt with all its effect no longer exists and was replaced by the subsequent condition, therefore there can be no talk of collecting the deposit in the form of a fine (Cass. decision 1868, No. 723). When one party in the performance entrusted to it allowed a change and incompleteness, and the other party, without objecting, made a corresponding change in the corresponding performance and was not refuted by the opposing party, from this we can conclude that the parties, even without a new written agreement, actually changed the original conditions of performance and cannot therefore extend mutual claims to each other (Sb. Sen. Resolution I, 292). Is it possible to conclude a modification of a contract without a direct agreement based solely on the action of the party? The Senate argues that it is impossible (Cass. decision 1870, N 1669). In this case, the party, having the right under the contract to use two ferries, was content with one and made a demand for the other when its delivery was impossible. Receipts from creditors for receipt of urgent payment with clauses containing a change in the original terms of the contract, even if they were accepted by the payer as evidence of payment, do not yet serve as evidence of the payer’s consent to the clauses placed in them and to the corresponding change in the terms of the contract. Payment receipts, by their purpose, do not constitute an independent agreement, but are acts certifying execution under the agreement (Cass. decision 1869, No. 1289). Do the conditions of the sales record remain valid even after the deed of sale has been completed, in the relations between the parties after the transfer of the estate to the new owner has already taken place? A back-sale agreement is only a preliminary agreement, and a purchase and sale is an independent contract that requires a new agreement, since the seller cannot be forced to execute a deed of sale by virtue of the back-of-sale record. So, if a penalty for failure to fulfill the conditions is placed in the sales record, but this penalty is no longer mentioned in the deed of sale, then the previous condition on the penalty should be recognized as having already lost its force. This was the case in the village of Bekhtevoy. In 1857, she sold the inhabited estate to the Kashira merchant's wife, obliging, among other things, in writing to transfer her peasants, upon completion of the deed of sale, to another land; and for failure to comply with all conditions of the recording, a penalty is imposed. The deed of sale contains a condition regarding the transfer of peasants, but no mention is made of the penalty; Bekhteva did not transfer all the peasants, but gave them vacation pay, as a result of which the buyer demanded a penalty from her (2 General. Collection. September 6 October 1872). The right to property is finally strengthened and determined by the deed of sale, and therefore this right cannot be derived from the preliminary and temporary condition of sale preceding the deed of sale (Cass. decision 1868, N 850). But it does not follow from this that from the moment the deed of sale is executed, all other conditions that could have been included in the agreement preceding the deed of sale, and which, without relating to the right of ownership, refer to various other circumstances regarding the execution of the deed of sale, for example, about installment payment, the consequences of shortcomings in the estate, etc., fall by themselves. The deed of sale can destroy them not due to the fact that it is a later and final act, but by virtue of its very content (1875, N 874. Wed. 1868, N 254). Changes in obligations are often encountered in practice under government contracts that are complex and lengthy, due to unforeseen temporary and local circumstances. But these particular changes are allowed in practice not in the manner and form established for contracts, but in the form of subscriptions, and often without subscription, due to the factual and indisputable execution by the parties of the changes adopted against the original contract. If one of the parties allowed changes in the conditions, and the other, having been notified in a timely manner, did not object and voluntarily fulfilled the agreement with the changes, then this clearly and indisputably expressed its consent (2 Sat. Sen. Resolution I, No. 26, 27). A deferment of the execution of the contract, given to the treasury contractor after it turned out to be faulty, means that a new agreement has taken place and that the treasury has waived, by virtue of Article 1547, the right to recognize the contract as definitively violated and from the penalty that could have been applied to the pledges entrusted to him in the event of a contractor’s fault. Therefore, from the time of the deferment, these pledges (within the limits of the urgent collateral power of attorney) no longer ensure the recovery canceled by the deferment, but an agreement on the fulfillment of the obligations assumed by the contractor by the newly appointed deadline (Mn. Gos. Sov. 1873 in the Luxenburg case). § 26. Unilateral withdrawal from the contract. – In what cases is it allowed? – The right to demand termination of the contract for extreme inconsistency in value. – Termination of the contract for accidental reasons. – Impossibility of execution. – Repayment of claims in hereditary succession. – Termination of personal obligations by death. The validity of the contract continues as long as it is established by the will of the parties - it may be indefinite, not defined in time, it may depend on the final completion of the action that constitutes the subject and purpose of the contract (for example, transfer of property, execution of an order, delivery, etc.). Moreover, any contract that is not limited to a specific action or a specific period does not exclude the possibility of refusal on one side or the other, the possibility of terminating the contract (Kündigung). There are no property contracts that bind you for life. Otherwise, without waiting for the end of the obligatory relationship, the party wants to immediately free himself, stop the action or performance on his part; otherwise, he wants to immediately demand final execution from the other side. It is clear, however, that refusal is associated with responsibility, that it should not be violated - the trust of the other party in the strength of the obligation and the interests connected with this trust. Thus, if payment for an action is received in advance for a certain period of time, then before its expiration, refusal will be a violation of the contract. Thus, when renting property, in personal hiring, in powers of attorney, in a partnership, etc., untimely refusal under some circumstances can lead to a loss and initiate a claim for remuneration. Sometimes, even with fixed-term contracts, a demand for performance may arise earlier than the deadline, when it turns out that performance will no longer be possible, for example, in the event of the debtor’s insolvency. Finally, due to the special nature of some contracts (for example, personal hiring), the law allows, under certain conditions, one or the other party to demand its immediate termination. The right to demand termination of the contract differs from refusal in the above sense. It is permitted only under the condition that the parties agree on this right in advance (pactum displicentiae, in diem addictio), and, moreover, only within a certain period. Prussian law allows the judge to determine, in necessary cases, until what time such a claim could be made. Roman law allowed the seller to demand back the sold property when it turned out that the contract price was half the actual price of the property. This privilege, in practice, little by little began to be extended to other types of transactions: first to transactions on objects subject to precise valuation, and, finally, to the buyer himself, when it turned out that he had paid half the actual price of the property (laesio enormis, laesio ultra dimidium). The opposite party was given the right to supplement the deficiency if it wanted to give the transaction full force. This right is the most extensive among the newest ones in Austrian legislation; but when concluding a contract, the parties are left to decide that they deprive themselves of this right. French law allows this right only when selling real estate, only in favor of the seller, and in this case only when the loss extends not to half, but to 7/12 of the actual value, but at the same time allows the buyer to retain the full force of the transaction, raising the price to 9/10 of the real price, therefore, forgives him 1/10. In case of familial divisions of inherited property, the participant is allowed to ask for the destruction of the division if he is offended by 1/4 of his present share. Prussian legislation, on the contrary, grants this privilege not to the seller, but to the buyer. Our legislation does not allow such a right. The validity of an obligation also terminates due to accidental reasons: from the impossibility of carrying out performance, which does not depend on the fault of the person, and from the accidental combination in one person of the right to demand performance with the obligation to fulfill - for the same obligation (confusio). This happens in hereditary succession, by law or by will (as well as in the transfer of all property by gift - donation universelle, where this form exists), when the debtor is the heir of his creditor or the creditor is the heir of the debtor, or one person is the heir both after the creditor and after the debtor. Acceptance of an inheritance with an inventory (benefic. inventory) prevents the merger, since in this case the inheritance does not merge with the person of the heir (see about this in the 2nd part of the course, § 48). This merger (or: coincidence), in the true sense, does not extinguish the obligation, but only makes its fulfillment impossible, because the property of the debtor and creditor merges together and absorbs the obligation in itself. If the inheritance is complete, then the repayment is complete; if the inheritance is incomplete, then the repayment is incomplete. A. is the debtor of B. 4000 rubles. and, dying, bequeaths to him all his estate, worth, let’s say, 40,000 rubles. Half of this estate is ancestral, and the will regarding him is invalid: this estate goes by law to the brother of the deceased, G. In this case, although B. received an inheritance for 20,000 rubles, not all of his claim is paid off in the inheritance accepted under the will, but in proportion to the accepted part, i.e. half, and G. pays him the other half. On the contrary, when B. owes A. 4000 rubles. and inherits half of his estate by law, then he is liable to the other heir for half of his debt; but if B. received the entire estate by will and the will was destroyed in favor of the legal heir G. only regarding the family estate, then B. no longer owes anything to anyone, for he inherits all of A.’s acquired estate, and A.’s claim on B. belongs to the acquired one. When the main obligation is extinguished through a merger, the dependent obligation is extinguished along with it; on the contrary, when a separately dependent obligation is extinguished, then the main obligation remains in force. For example, I owe B. 1000 rubles. behind the guarantee of D. I inherit after B. My debt is extinguished, and at the same time the obligation of my guarantor is extinguished. I owe B. for the guarantee of his nephew G. B. dies; he is succeeded by G. His guarantee is terminated, for he, as a guarantor, would have to answer to himself. But my commitment remains in full force. Finally, all personal obligations are terminated by the death of the obligated person (Civil Law 1544). With the death of the person entitled to the right, the tenant, our personal rental agreement is terminated if it was concluded in the name of one owner without extension to heirs (2238). This also includes: the right to lifelong maintenance; lifelong ownership arising from a contract and will; power of attorney and instructions; the right (not yet declared) to seek compensation for personal injury and insult (Const. Nak. Mir. Court. 130). Termination of a contract due to the destruction of its subject matter. The law specifies cases of giving away property for preservation (Article 2105) and of partnership in the purchase or construction of a ship (Article 182). The rental of property, for example, a building, is terminated if it is destroyed due to a fire, and even if the house was built again by the same owner, the tenant has no right to demand an apartment in it on the basis of a previous contract. In this sense, see Sat. Sep. decide I, N 31. In dec. Cass. 1869, No. 1191, it was recognized that after the burning of the leased plant, the object in relation to which the contract was concluded ceased to exist and the contract itself, as a result, had to be terminated as a whole, and the court had to determine the appropriate amount of remuneration. § 27. Effect of limitation on obligations. – Extinguishment of the right to claim. - Beginning of calculation of limitation. – Opening the right to claim. – Calculation of limitation periods in fixed-term and open-ended contracts, during periodic execution, for principal and dependent obligations. – The limitation period is an acknowledgment of the debt. - Resolutions of Russian law on this subject. In all the above cases, the obligation itself, the legal relationship in its essence, is terminated, the very basis of the requirement and obligation is destroyed. But there may be cases when, regardless of the essence of the obligation itself, the right to claim under the obligation, the right to demand satisfaction under it, is extinguished. This comes from the action of time, prescription. Prescription is generally spoken of where we are talking about the properties of possession. It is also explained there that one should not confuse prescription of possession, which turns it into ownership, with prescription, which extinguishes the right to claim. This latter limitation must now be explained in connection with the law of obligation. Under what conditions is the right of action for obligations extinguished by limitation? What is required for this repayment? First of all, we note that it is not the right under the obligation itself that is extinguished in its essence: it does not depend on time. The right to demand performance is extinguished (as a result, it is the same, but the idea is not the same). Therefore, it is necessary that this right arise, appear in reality, become a real, real right, capable of implementation, and not just be a future right, a possible right - in potentia. What is not there yet, there can be no talk of repaying it. And the emergence of such a right does not always coincide with the moment of concluding an agreement or issuing an obligation. A contract may be associated with a term or a condition: then, at the very conclusion of the contract, a legal bond immediately arises between both parties, which they cannot break without a new agreement, and in this sense, each party has the right to the will or action of the other party, in which that other party has bound itself. But at this moment, each side can say to itself: I can remain calm until this or that event occurs, a deadline comes, a condition comes: then I will have the right to act, then I will have the right to immediately demand execution. As soon as this moment comes, the party can say to itself: I have the right to demand execution right now. Thus, the contract contains the following important points: 1) the right to expect performance, 2) the right to demand performance, 3) the very presentation of the demand for performance. The power of prescription is based on the assumption that the person who had the right to demand did not exercise this right for a certain time, therefore does not want to exercise it at all, or has already achieved the goal of his right in another way, bypassing the demand from the authorities. This assumption is possible only if the law is feasible. Therefore, prescription can begin only from the time when such a right arose: not earlier, because previously there was only the right to count on fulfillment, there was a calm state of expectation, so natural that this expectation, this silence cannot be blamed on a silent person: one cannot accuse him of inaction when he did not yet have the right to act - and not later, for precisely from the moment a person receives the right to act, to demand, he bears responsibility for his inaction and silence. Another question: when exactly does this right to demand performance under a contract arise? and what causes it? It arises as a result of a breach of contract or, in general, as a result of such a breach by which the action is brought. I am the owner of property: a third party violates my quiet possession, invades the area of ​​my right, or causes harm to my property or my person by his action. From the moment this action was completed, I have the right to demand satisfaction for myself. Therefore, from this very moment the period of limitation begins for me, by which my claim is extinguished. But it should be noted that the starting point of this limitation is determined regardless of the circumstances relating to the personality of the victim of the violation: the right of action is based on the very action of the violator and arises along with this action. Therefore, even if this action remained unknown to the person who suffered the violation for a long time, the statute of limitations will still be counted from the minute of the violation, and not from the minute when it came to the attention of the victim. (There are exceptions, but they are subject to special considerations.) I entered into an agreement with another person, for example, I loaned him money for a period. The deadline comes: the debtor brings me money. Here – the fulfillment of the contract, there is no violation. The deadline comes: the debtor does not show up with the money. Here on his part there is a violation of the contract: he did not fulfill the contract, he made me wait. From this moment my right begins to demand. This is clear, as long as the concept of violation by the force of the contract itself is associated with a known condition, period or clear sign, when the party has granted itself the right to demand only upon the occurrence of a certain event of a certain time. But when there is no such clear sign, doubt arises. Namely: it often happens that under a contract a party grants himself the right to demand performance whenever he pleases, at his own discretion, for example, with an open-ended loan, with a deposit - on demand, with an open-ended loan, etc. It is clear that here the right of claim arises at the moment the contract is completed; but it is also obvious that at this moment, until the person who has the right has not yet demanded performance, there can be no talk of a violation on the part of the party obligated to perform. The question now is: from what exact minute in such contracts does the limitation period begin, extinguishing the right of claim: from the very minute when the contract was concluded and the right to demand performance arose, or from the minute when a violation of the contract occurred, i.e. When is the demand for fulfillment made? This issue is one of the most controversial in civil law, and different lawyers resolve it differently. Some 9 believe that one should not wait for a violation in all those cases where it is up to the discretion of the party to present a claim at any minute, starting from the minute the contract is concluded, and therefore the limitation period begins from this last minute. Others, including Savigny (Sist. V. 282, 292) prove that a person entitled to a contractual right can be charged for silence during the limitation period no other than from the time when the demand was presented and the concept of a violation arose. It seems that this latter opinion is more fundamental. Indeed, in any prescription, negligence of the claim is assumed. Is it possible to admit the concept of negligence when leaving a thing in free use or storage with an obligated person arises from the essence of the contract itself, when the thing is given precisely on this condition: keep it, use it calmly until I need it, until I demand it? And in contracts of another kind, after the term, the thing may still remain in the hands of the obligor with the consent of the creditor, but this will be by agreement, by the forbearance of the creditor, but here the thing remains with the debtor not only by the will of the creditor, but also by the essence of the contract. Here, therefore, the running of prescription does not begin with the conclusion of an agreement or the transfer of a thing: as long as there is no reason for a demand, there is no violation. And the reason for the demand here is the determined will of the creditor - to demand his thing back: as soon as this will is declared, the violation begins, the limitation period begins. There are cases when the debtor undertakes to satisfy the obligation no later than the specified period, at the first demand or invitation (for example, a bill, a loan letter, three months after presentation): this is done to protect the debtor so that the demand does not take him by surprise, so that he has time to gather his strength and prepare for execution. In this case, the period of limitation begins only after the expiration of this period. Sometimes it happens that an agreement on the use of a thing is written, although without a term, but indicating the special purpose of use; for example, I entrust a bank note as collateral for the supply of rails for the Saratov railway or lend a tarantass to go to Tiflis and back. In this case, it is possible to determine when the contract ends and the right of claim arises, with the completion of the purpose, with the end of delivery, with the return from Tiflis. From this time, therefore, the passage of time will begin. It remains to be said how the limitation period under contracts is calculated in cases where the execution of the contract consists of actions that are periodically repeated or renewed. These periodic actions relate either to an additional obligation, depending on the main one, or in themselves constitute the essence of the main obligation, for example. 1) interest on a loan for 10 years, 2) monthly delivery for 10 years. Let's take the first case first. Here we may be talking about the repayment by limitation of a claim for the main obligation and for dependent obligations in particular. Let us first imagine a contract concluded for a certain time, with the obligation to make an annual payment or pay interest - for example, a loan with interest for 10 years or renting land for 10 years with an annual rent. Here, at least during the entire 10-year period, annual payments were not made and there was no demand for performance of the dependent obligation, the right to demand performance of the main obligation, i.e., does not in any way depend on this. the return of money or property, because before the due date the main obligation could in no case be demanded to be fulfilled. The limitation period for the main obligation begins from the minute the right to this main claim became available. But this right can extend beyond the initial period, when, for example. the debtor keeps the money even after the 10-year loan term has expired, and the creditor continues to accept interest from him: by this the creditor shows that he is renewing the contract with the debtor and renewing it for an indefinite period of time, depending on his will. In this case, the limitation period for the creditor begins from the time for which interest was last paid to him. Hence, sometimes the need arises for the creditor to prove that the interest was paid to him or the dependent obligation was fulfilled by the debtor no earlier than a certain time, i.e. that he, the creditor, has not lost the right to sue for the entire obligation by prescription. Usually, receipts for payment of interest on a loan, etc. are considered important for the debtor, who proves payment for such and such a period, and therefore are kept by the debtor. But in the present case, for the debtor, who wants to prove that the creditor has lost his right of action by prescription, it is necessary to certify that he is the debtor and has not paid the money, and for the creditor it is important to certify that he received payment no earlier than such and such a time. In this case, the creditor, when issuing a receipt to the debtor for payment of interest, may demand a counter-receipt from him; but usually creditors, when receiving payment, do not foresee in the future the need to prove that there is no statute of limitations, and therefore almost no one demands such documents. And they may be needed, for example, when both parties or one of them do not have a clear understanding of the time of payments. Peter issued Ivan a loan letter for three years in 1840. In 1843 the term passed; but Ivan did not submit a loan letter for collection and did not demand payment of capital, but continued to receive interest on the loan annually. This was the case, for example, until 1850. Every year Peter received receipts from Ivan for the payment of interest, and these documents were kept by the debtor Peter, and Ivan, content with receiving the money, did not bother to demand from Peter that each time he mark the payment of interest on the original loan letter: who cares about this? But in 1851 both died: the creditor Ivan and the debtor Peter. There are children left: Ivan has Sergei, who has the right to demand, and the debtor has a son, Fedor, who is obliged to pay. But after the death of the counterparties, the loan letter lay dormant for several years, buried in the creditor’s papers; The debtor's son Fyodor did not know about his father's debt and did not care to pay either capital or interest. Finally, six years later, in 1857, Sergei finds this loan letter and brings it to Fedor for collection. Fedor sees an opportunity to get rid of the payment and, noting that the act was written in 1840. for three years, his term ended in 1843, that from that time until 1857 14 years passed without presentation for collection, proves that the loan letter has lost its force. This is unfair, because the payment of interest on this letter, proving the renewal of the obligation, was made for the last time in 1850, only seven years before the submission for collection. But who knows? The only evidence of interest payment is in the hands of the debtor and he hides it, and the creditor does not have counter-receipts. The second case is the repayment by prescription of a dependent, additional claim separately. When a claim under the main obligation, for example, a capital claim, is extinguished by prescription, then, of course, the dependent claims are also extinguished, for example, claims for interest. But the repayment of dependent obligations can occur regardless of the claim on the main obligation. For example, I leased a house for 12 years in 1840. For the first year I received rent; for the second in 1842 and for the third in 1843 I did not receive, but for 1844, etc. continued to receive. In 1852, the contract expired. In 1854 I demand that I be paid rent for 1842 and 1843. I have no right. My claim has already been extinguished by statute of limitations. According to the same rule, the right to demand a separate action is extinguished when the periodic performance of these actions constituted the very essence of the contract. An example is in the delivery. In order for the right of action to be decisively extinguished by prescription, it is necessary that for a certain period of time the person who has the right to demand remains in a calm state of silence, inaction - does not demand, leaves his right unused. Connected with this, as stated above, is the assumption of negligence of the rightful person and, moreover, the assumption that, in all likelihood, the subject of the demand was fulfilled when the creditor did not demand satisfaction for so long. This calm state is interrupted, this assumption is destroyed by the following events: 1) By recognition of the debt on the part of the obligor, so that from the time of this recognition a new period of limitation begins for the one who has the right to demand. If the debtor is aware of the debt, it follows that the creditor cannot yet be accused of neglecting his right, and it cannot be assumed that the claim has been repaid. But such consciousness must be expressed not just in words, but in the form of legal action. This would be, for example, the issuance of a new act of debt by the debtor, the payment of interest on an obligation, the payment of part of the capital, the establishment of a pledge or guarantee for the same obligation, etc. Neither a unilateral reminder to the debtor of the debt by the creditor, nor the transfer of rights under the obligation to a third party, if the debtor himself did not take part in these actions, has such significance. 2) The calm state is interrupted by the actual, formal presentation of a claim or demand. According to Russian law, an agreement is terminated if 10 years have elapsed from the period appointed for its termination, and the agreement has not been submitted for collection (Law Civil. 1549; Establishment Vekseln. 94, 95). When this law existed, a doubt arose: how to calculate the limitation period for obligations written without a deadline, on demand or upon presentation. This issue was resolved by law in 1862. Zemstvo limitation on debt obligations of an indefinite period and issued on demand is supposed to be considered from the day such an obligation is presented for collection. Moreover, the death of the borrower is recognized as the definite beginning of the limitation period for such acts: if since the time of his death there has been no collection at all under the act, then his heirs are released from liability (Civil Law 1259, note; 1549). This law is recognized as new, and therefore its force does not usually extend to cases that preceded its promulgation: before the publication of this law, it is assumed, apparently, that the statute of limitations should have been considered from the time such acts were written (cf. Civil Law 2123 and note). When enacting this law, the legislation did not express the general principle from which the new resolution follows. It may be for this reason that safe receipts written without a deadline, on demand, are not subject to the above-mentioned rule for perpetual acts. For the prescription of safe receipts, a special rule was established by the law of 1860 (cf. Cass. decision 1867, No. 97). Receipts for safekeeping are not subject to limitation during the entire life of the receiver. Upon his death, his heirs are obliged, within six months from the opening of the inheritance, to call the transferor of the deposit through publication in the statements, and in this case the transferor is obliged to present a safe receipt within six months from publication; otherwise, it loses the right to recover. Also, the heirs of the giver must call the receiver at the same time; otherwise, they lose the right to sue, and if they have made a challenge, ten years of limitation is considered for them from the date of the last publication. Regarding receipts issued before the promulgation of this law, it is said that they are subject to general statutes of limitations, and the period is counted from the day they were written or from the day of any action on them (of course, if such an action took place) (Civil Law 2113, note). The passage of time is interrupted. 1) Fulfillment, awareness and confirmation of debt on the part of the debtor. Art. 1550 states that in cases where the debtor pays part of the debt, and the counterparty fulfills part of the assumed obligation after the appointed time, thereby confirming the validity of the obligations issued, the beginning of limitation is considered to be the first day after the day on which the later payment or fulfillment of the obligation was made, if there is evidence that the payment or fulfillment of the obligation was actually made before the expiration of the limitation period (law of 1845). 2) Submission of an obligation for collection or initiation of a claim. One announcement of the right on the part of the creditor, without the assistance of the debtor, is not enough (Civil Law 1549; appendix to the note to Art. 694, Art. 1 and note 1). But both the claim submitted for collection and the claim initiated in court are also subject to the statute of limitations, when there has been no circulation in public places for 10 years from the time the obligation for collection was presented (see about this in the book: Judicial Manual, Art. 63 et seq.). The beginning of the calculation of limitation. The law on the calculation of the limitation period for open-ended obligations from the date of presentation constitutes a new rule and does not apply to obligations committed before its publication; therefore, the prescription for them is calculated from the time of writing (see Shishmarev’s case - 2 General. Collections. September 26, 1873; the same in Cass. decision 1868, No. 97); but in 1877 it was recognized that the new statute of limitations for unlimited obligations also applies to those for which, at the time of promulgation of the law, the statute of limitations had not expired from the time of issuance (Cass. decision 1877, No. 302). The house was collateral, insured by the government department, and the responsibility to renew the insurance lay with the officials of that department; but they omitted insurance, and the house, before being sold for arrears under the contract, burned in 1865, uninsured. Then, in 1868, a provision was made by the Committee of Ministers on the addition of arrears, imposing liability on those responsible for the omission of insurance. When the treasury brought a claim about this, it turned out that a long time had passed since the fire; but the plaintiff argued that the limitation period should be counted from 1868, when the government department could for the first time determine the amount of loss and the identity of the perpetrators. However, the first calculation was recognized as correct - from the fire, as from the moment when the claim that constituted the subject of the claim arose and could be presented in court (Cass. decision 1879, No. 60). In dec. Cass. 1873, No. 1253, it is recognized that the rule on calculating the limitation period for open-ended obligations applies only to those of them that establish the obligation to pay at the request of the creditor. The case was about a receipt stating that vodka had been sold and a deposit of 25 rubles had been received. The claim was for the return of the deposit. For this claim, the limitation period was correctly calculated from the day the receipt was issued, since the plaintiff’s right to the purchased goods arose on the day of issue and from the same time the retention of the goods, which violated this right, began, and therefore the right to claim arose. Rule 220 Art. Part 2 of X Vol. (corresponding to Art. 1259, note and 1549 of the Civil Code) on limitation of time-limited obligations means obligations formed from a loan, or in general debt payable on demand: limitation is considered with their presentation for collection. Receipts that serve as evidence of debt do not fit this rule, for example, this one: I still owe Ivan 300 rubles for sheepskin, for which I give this receipt (Cass. decision 1872, N 1175). To such reasoning, one can object that such a receipt also expresses a sense of duty. With debt comes the obligation to pay. There is no deadline, so you must pay when requested. Therefore, in essence, the same principle of limitation applies to this relationship. While the days of deferment following the period specified in the bill have not yet expired (608 of the Establishment of Trade; corresponding to Article 66 of the Establishment of the Bill of Exchange, 1893), the bill still retains the force of the bill of exchange and the payer has the legal right not to pay until the expiration of the days of waiting, and the right of compulsory collection has not yet arisen. Therefore, the 10-year limitation period for collection of a bill should not be calculated from the date of delay, but after the days of delay or waiting have passed (Cass. decision 1878, No. 217). When an amount is sought that is made up of money received at different times by the defendant and subject to transfer to the plaintiff, then when calculating the limitation period, each of the receipts is taken to be the beginning (Cass. decision 1875, No. 64). The limitation period for a claim for violation of a sales record is supposed to be calculated from the date designated in the record itself as the period for execution of the deed, and not from the date of the seller’s refusal to execute the deed (Cass. decision 1875, No. 71). When the termination of collection proceedings, even with the return of documents, had the meaning of postponing collection until the occurrence of a known, expected event (until the end of the dispute about the debtor’s land), without implying a refusal or denying the claim on the part of the creditor, then this termination should not be considered the destruction of the claim and is not blamed on the plaintiff when calculating the limitation period for this claim (Cass. decision 1879, No. 52). In 1862, Myasnikov filed a lawsuit against fellow gold miners for permission to share profits from mining since 1852. The defendants made excuses that they had been doing this for a long time. This objection is considered valid for the following reasons. The limitation period is calculated from the occurrence of the grounds for filing a claim. The reason seems to be a violation of rights with the onset of the deadline. Petitioner explains that the company last received money from the mine in 1851; therefore, by not searching since that time, he missed the date. But Mr. The Council (Mn. in the Sidorov case of 1874) decided that the partnership agreement did not stipulate a deadline at all, upon the occurrence of which the partners would have the right to demand performance. This right was supposed to be unlimited, and its implementation depended on the success of business operations, which were not carried out by all partners, but were entrusted to one of them. In these circumstances, the limitation period began not before, within the meaning of the contract, the right to demand one or another performance was opened and a violation of contract law was committed. The subject of the claim is participation in the profits of the operation. According to contractual relations, any operation that had the significance of an economic order did not in itself constitute either a violation of the shareholder’s rights to net profit or a reason to bring a claim for net profit. Therefore, neither the applications for the mines to be discovered, nor any kind of issuance and receipt for the development of them constituted a violation of Myasnikov’s rights to net profit. Regarding these rights, the first action requiring his participation could only be the first division of the first net profit from the mine between the remaining shareholders. Receiving a loan from the bank for the first waste of gold had no such significance, especially since, according to the meaning of the agreement itself, from the first receipt it was also necessary to eliminate production costs in order to determine the net profit. The net profit could be determined, and its first division could follow, in any case, no earlier than the receipt of the first payment for the extracted gold from the mint (Article 2558 VII Vol. Code. Const. Gorn.) 10, therefore, before this period there is no legal basis for applying the statute of limitations to Myasnikov’s claim to the net profit from the mined gold. It is clear from the case that the first settlement for the company’s gold was approved at the Mint on February 4, 1852, and the first petition for participation in profits was sent by Myasnikov to the court on September 15, 1861, therefore the statute of limitations has not expired. By Lyarsky's power of attorney, Bakhcheev bought houses for him and, with his money, completed deeds of serfdom in his own name in 1846. After him, his wife disposed of the houses, recognizing Lyarsky's rights, but finally began to dispose of the houses as her own property. In 1871, Lyarsky’s heir filed a claim against her for the return of the capital used to buy houses. The court recognized that the statute of limitations had expired, considering that the violation of the right giving rise to the claim occurred during the purchase of houses in 1846. This would be fair if the purchase of houses by the Bakhcheevs in their own name was presented as an abuse and violation of the power of attorney. But as it turned out in the case that the purchase of houses by the Bakhcheevs followed precisely by agreement with Lyarsky, although in the interest of the latter, the Senate considered the refusal of Bakhcheev’s widow from the obligatory relationship to Lyarsky to be the beginning of the violation, and therefore recognized the statute of limitations as not expired (Cass. decision 1875, No. 822; cf. 1877, No. 304). In 1842, by order of the government, land was selected for state needs, and the owner was supposed to be satisfied with other land. But this assumption did not come true, and the owners agreed to receive money for the land instead, for which they did not stop petitioning. However, the money was not given to them until 1878, and they also asked for interest on the entire amount since the confiscation of the land. This demand was rejected by the government for a long time, since the owners began to ask for interest payments only in the last 10 years before 1875; therefore, it is as if the owners have the right to receive interest only since 1875. This objection is unfounded. Interest in this case constitutes an indivisible property of capital, therefore, as long as the right to claim for capital is not lost, it is not lost to claim for interest: the issuance of interest without recognizing the right to a certain amount of capital is unthinkable. This is interest on capital retention. It’s a different matter if there were interest rates under the contract. Then interest for a certain period of time could, by virtue of a contractual relationship, constitute the subject of a separate claim for each separate period of use, which would be repaid by a separate prescription. Based on Art. 2277 According to the Napoleonic Code in force in the Kingdom of Poland, the right to all periodic payments is extinguished five years ago. According to settlements with contractors of the former Polish government, the Russian government issued liquidation certificates in 1826 that were interest-free and had no current value. They were accepted as payment of taxes and, at the request of the owners, could be sold to the treasury at a set price and under a special agreement with the treasury. And since, by virtue of the decree of 1809, they should have been issued with interest, the government, in agreement with the owners, included interest in the capital, however, only at the special request of the owner, but periodic flow of interest on these securities was not allowed. The owner of such a certificate, handing it over to the treasury in 1873, also declared the right to receive interest since 1812; but the Ministry of Finance refused to allow him to do so, based on the cited Article 2277, and allowed the accrual of interest on the liquidation certificate only from 1868. We recognize this refusal as unfounded because, according to the liquidation certificates, no procedure was established for the payment of annual interest, and the owner of the certificate did not even have the right to demand them on a periodic basis. However, according to the final decision (1 General Meeting September 21, 1877, D. Kaufman), the plaintiff’s solicitation was denied, not because he missed the statute of limitations, but because the Minister of Finance had the right to set the price for securities of this kind at his own discretion, and it depended on the owner to accept or not accept it. According to separate records, the brothers agreed to pay their sister 1,000 rubles. upon marriage or whenever he wishes. She died without asking for money. For her heirs, the statute of limitations for this money can only begin with her death, and not with the time of making a separate entry (Cass. decision 1868, No. 891). In a contract case with the treasury, the court incorrectly accepted as the beginning of the calculation of limitation the period specified in the contract for the contractor to perform the accepted work, because this last period, in case of non-fulfillment of the work, gave the treasury the right to act in accordance with the terms of the contract and the instructions of the law, at the expense of the contractor, and during all that time the contract continued. Therefore, the deadline for completing the work by the contractor himself, determined in the contract, could not be accepted as the expiration date of the contract. And the issuance of a settlement by the treasury to the contractor cannot be considered the expiration date of the contract, for the issuance of a settlement is an order that is completely dependent on the treasury and constitutes the consequences of the termination of the contract (Cass. decision 1874, No. 858). In 1853, Ivan issued a debt document to his niece Marya, and in 1855 he bequeathed all his movable and immovable estate to her, and in 1856 he died. According to this will, Anna united in her person both the creditor and the debtor under the debt document. But the will was contested, and at the end of the litigation in 1866, the will regarding the real estate was destroyed. Then Anna, in 1867, presented her debt document for collection from the heirs, who objected to this claim by limitation. The question arises: should the duration of the litigation be counted as prescription, while the question of who will be recognized as the heir to the estate has not yet been resolved (1 General Collection, September 1877, d. Glasko). Decision 2 General. Collection Sep. 1852 in the villages of Burenina and Zhukova it was recognized that the limitation period for a bill written upon presentation, but not presented and not protested within 12 months, is considered based on. 494 and 531 art. Est. Torg., ed. 1842 (corresponding to Articles 94 and 95 of the Constitution of the Bill of Exchange, edition of 1893) from the day on which it comes into force, i.e. per day from its writing, and not after the expiration of 12 months, for this latter relates only to the retention of the bill of exchange; otherwise, a bill of exchange that was not protested at all could receive an advantage in terms of prescription over a bill of exchange that was protested earlier than 12 months. And by the decision of 4 Dep. The Senate of 1862 in the village of Tupitsina recognized that when calculating the limitation period for bills of exchange written on presentation and having lost their bill of exchange force, it is impossible to count within the period of those 12 months during which the bill retains the force of bill of exchange law. But according to Vsepod. complaint General Collection The Senate (in 1877) recognized that the limitation period is generally calculated from the date of the onset of the right to demand execution, therefore, by virtue of Articles 599, 600, 606, 608. Est. Bargain. (corresponding to Articles 57, 58, 64, 66 of the Establishment of the Bill of Exchange) the prescription of bills written upon presentation is calculated: transferable bills, from the date of presentation for acceptance, and simple bills, in which there is no acceptance, from the date of writing or issuance. The zemstvo limitation period for a bill of exchange written at sight (636 of the Statute of Trade; corresponding to Art. 74 of the Statute of the Bill) should be counted not from the time of issuance, but from the expiration of 12 months after issuance (Cass. Resolution 1873, No. 155). Action of limitation. When the creditor is insolvent, for missing a special deadline for filing claims against the debtor, in bankruptcy proceedings. (Const. Torg. 1981; corresponding article 602 of the Ust. Court. Torg.), loses the right to satisfaction from the competition - the right to recover it from the guarantor does not depend on this and remains inviolable (Cass. decision 1875, N 819). Break. Presentation of obligations for collection in an indisputable manner interrupts the limitation period. From the time of the court decision granting the right to bring a claim, a new limitation period begins again (Cass. decision 1875, No. 286). Filing a claim or seeking the protection of the authorities in an unlawful manner does not interrupt the statute of limitations, for example, filing a criminal claim that was subject to civil court (Cass. Dec. 1868, No. 376). The claim for which the case is declared beyond jurisdiction does not interrupt the statute of limitations (Cass. decision 1876, No. 436). When a case is recognized as not subject to indisputable proceedings, the time for presenting an obligation for collection should be counted not from a request to the police, but from the filing of a claim in court (Cass. decision 1875, No. 87). It is not considered a simple announcement of the presentation of a loan letter in an indisputable manner to the police, for the sake of interrupting the limitation period, but so that the actual collection on it will begin only upon filing a special petition to that effect (Sb. Sen. decision I, 408). When the legal proceedings for collection continued in the case and the initial demand was satisfied, there is no legal reason to blame the plaintiff for 10 years of delay in the case simply because he did not submit written requests from time to time (Cass. decision 1874, No. 382). When the filing of a claim is connected with a special period (for example, a claim against a guarantor - 1558, paragraph 4), then the statement of claim to the police does not lose its significance, even if by virtue of the rules on the transition from the old judicial order to the new, police proceedings were terminated with the right to initiate a claim in the judicial place (Cass. decision 1875, N 819). As soon as one of the parties began, within or after the deadline, before the expiration of the limitation period, to fulfill the accepted obligation, then this action interrupts the course of limitation, and its beginning should be considered the time when the fulfillment of the contract ceased, because only from that time did the right of claim arise for the other party. According to the post-sale transaction, the seller undertook to complete the deed of sale for a period and, without missing it, initiated proceedings for the execution of the deed of sale; it continued well beyond the deadline, but the bill of sale did not take place. The buyer began to demand the money paid back, and the question arose about the limitation period for this claim, whether to count it from the due date or from the time of the seller’s decisive refusal. The latter was decided (Cass. decision 1874, N 305). On the issue of the destruction of a debt obligation by prescription, it was necessary to prove that interest was paid on the obligation without interruption of the limitation period. A break in payments was shown from 1830 to 1841. State. Sov., having seen from the case that there was a payment of interest for 1841, recognized it as undoubted that such payment was also received for previous years, because it is impossible to allow that the interest presented in 1842 were counted for 1841, if such had been paid for 1840, 1839 and other years (Mn. Gos. Sov. 1865 g., according to d. gr. Kossakovsky). Based on Art. 637 Est. Bargain. (corresponding to Article 95 of the Establishment of the Bill of Exchange) a fixed-term bill loses its validity as a bill of exchange when, within two years of delay, it is not presented for collection with a protest. If we take this period as a special limitation period, then shouldn’t the rule of Art. 220 be applied to it? 2 parts X t. (corresponding to Article 1550 of the Civil Code), due to which payment of an obligation interrupts the limitation period? In the affirmative sense, this issue was resolved by 2 General. Collection Senate in 1878 in the village of Goldenbach. A contrary conclusion to this, says the Senate, would lead to the fact that bill holders, for fear of losing their bill of exchange rights, would be deprived of the opportunity to enter into installment payment transactions with their debtors. An inscription on payment made on an obligation by a third party, and not by the hand of the debtor, does not interrupt the limitation period, unless the authenticity of that payment is otherwise proven (Cass. decision 1871, No. 1122). The limitation period is interrupted by the payment inscription not only of the debtor himself, but also by the inscription of the public office and even of a third party, if it is proven that he made such an inscription with the will and consent of the debtor (Cass. decision 1877, No. 242). Chapter eight. Relaxation of obligation § 28. Weakening the force of an obligation in performance. - Postponement. – Installment at the discretion of the court. – External defects that weaken the force of the obligation. – Leniency towards the debtor’s condition. – Assignment of property to lenders. – About Russian mediation commissions and administrations. – Effect of insolvency and competition claims. Regardless of the termination of the obligation, its effect may be weakened. This weakening can occur either by agreement of the parties, or, under certain conditions, by force of law and by order of authority. By agreement of the parties, a postponement may follow. When the previous obligation is completely replaced by another, in which the most favorable conditions for the debtor are assigned regarding the term, this will be a complete renewal, a complete replacement of the obligation. But when the obligation remains in force, but with the consent of the creditor or the rightful person the deadline for fulfillment is postponed, this will be a postponement. Our law speaks about deferment in relation to loans. The period for which the loan letter is given may subsequently be extended until its expiration without replacing this loan letter with a new act. Such a deferment can be done in different ways: either by the lender’s inscription on the loan letter, or by submitting a request to the place where the debt instrument is located (for example, in court proceedings), or by a special receipt for the deferment, but by issuing such a receipt, the lender undertakes to make an inscription on the loan letter. In the same manner, open-ended loan letters can be converted into urgent ones. Such a deferment is mandatory for the lender and his heirs (2040–2042, 2044). There is no doubt that for other obligations and agreements, except for a loan, deferment is always possible according to the general rule of Art. 1547. It is done either through a mutual additional agreement, or through a unilateral subscription of the person entitled to the right, or by filing a petition with the court where the collection case is being carried out. In the case of a government contract, supply or agreement on the content of quitrent items, it is allowed for a private individual - the counterparty, who has become faulty for a period of time, to ask for a deferment. The place or person who has entered into an agreement with him may, if circumstances allow, make a deferment of one to two months, depending on how much time remains for the pledge, but for a longer period he must seek permission from his superiors. However, the counterparty does not get rid of the fine (1578; Pol. Kazen. Sub. 193, 913, 214). A deferment of payment can be made in a special act (Cass. decision 1872, N 651), but does not necessarily require the drawing up of a special act, and if it turns out to be doubtful, the court can recognize it as proven. There is no reason to admit (as the Senate admits in one decision of Sat. Sen. Resolution III, 923) that under loan letters alone it is allowed to make deferments without replacing the obligation itself. 2044 Art. applies to all obligations of debt significance (Cass. decision 1873, N 1172). When a special receipt for deferment under a loan letter is given, and the lender did not make an inscription about this on the loan obligation itself, this circumstance does not invalidate the receipt. The establishment of a period depends on the will of the parties; it can also be determined by the death of one of the parties (Cass. decision 1868, N 429). The issue of allowing delays under a contract without drawing up a new contract and a new act has fiscal significance; for the continuation of the contract by means of delays may serve as a means of avoiding the payment of duties and the use of stamp paper. There is a special rule on this subject regarding outpost agreements (T. V, ed. 1893, Establishment of Duties, Art. 215; Civil Code of the Baltic Gubernia, Art. 1505, 1508, 1509, 1531, etc.) Receiving % in advance has the meaning of deferment (decided in Legal Vestn. 1872, N 6 and Cass. decision 1876, N 395); but the receipt by the creditor, even after the due date, of payment of part of the debt with the issuance of a receipt does not yet mean a deferment of the debt (Cass. decision 1872, No. 398). The payment by the tenant to a third party of the money due to that person from the owner of the property cannot be considered acceptance of payment (for hire) for a new term and tacit consent to continue the contract (Cass. decision 1870, No. 401). The creditor's consent to collect money from the debtor in parts, through a deduction from the salary, is an undoubted postponement of the simultaneous payment of the debt in full (Cass. decision 1871, No. 314). Mn. State Sov. 1872, in the case of Shumlyansky, it was recognized that the holder of the bill, having suspended the enforcement collection from the drawer by allowing him to leave St. Petersburg, does not have the right to continue the same collection, in the same executive order, from the signers, because 1) he himself deferred his satisfaction on the bill, 2) the signers did not participate in this postponement and should not be subject to adverse consequences this one. 542 art. Zach. Court. Citizen and 485 art. Est. Bargain. mention the installment plan made by creditors to the debtor in case of non-payment, to prevent his formal insolvency and to allow lenders to take part in the management of his affairs. Roman law allowed the possibility of deferring debts even without agreement of creditors, at the discretion of the court, with the approval of the supreme authority (moratorium, litterae respirationis). The purpose of such a deferment was supposed to give the debtor the opportunity to recover, and it was allowed in such a case when the debtor could certify that he had fallen into non-payment without his fault: such a deferment could not last longer than five years. In German law, a similar deferment (Anstandsbrief) depended on the supreme power, 11 but new legislation gives the court the right to defer, in some cases, a monetary debt. Thus, Prussian law allows a debtor to ask the court for a deferment if he secures his debt and undertakes to pay it within a year. Some penalties (for example, bills of exchange, alimony, etc.) are not subject to this deferment. It is given in any case out of respect for the narrow circumstances of the debtor and can be canceled if his situation improves or other penalties are imposed on him. French law also authorizes the court to defer collection for a moderate period and determine the period of collection for open-ended obligations. Our law did not give such a right to the court until the publication of judicial statutes in 1864 (except for a special case - regarding state peasants in 939, art. 2, part X, ed. 1857) In the new Constitution. Gr. Court. (Articles 136, 137) the right to install payment of the awarded penalty is granted only to the magistrate’s court, in the event that the accused party does not have the cash to pay the awarded amount; but the debtor is deprived of this benefit when, even after the installment plan has been made, he fails to pay. For installments, according to the force of 136 art. Est. Gr. Court, it is not absolutely required that when the decision is executed, the debtor does not have cash to collect (Cass. decision 1775, No. 463); the law does not mean the minute of execution, but the minute of the decision. In this case, the personal condition of the defendant is taken into account, and not the general condition of the known area or the general burden of penalties (Cass. decision 1875, No. 630). The basis of the installment plan, based on 136 art. Est. Gr. Court, insufficiency of funds cannot serve when the defendant has movable and immovable property (Cass. decision 1874, No. 36). In case of judicial installment payment, its relation to the amount of the awarded penalty must be taken into account; otherwise, the very essence of the decision may be weakened by installments (Cass. decision 1871, N 1110). In this case, the recovery is 298 rubles. suspended by the magistrate for 298 months. The effect of obligations is weakened by law due to certain defects in the form and accessories, for example, undeclared acts are deprived of the right to satisfaction on an equal basis with those manifested in the event of the debtor’s insolvency, bills for missed deadlines and other formalities lose the force of bill law, etc. The loss of the bill of exchange does not have, in addition to those positively specified in the law, any other consequences, except for the collection procedure itself, i.e. exceptions to the strict measures specified in Art. 650–684. Est. Bargain. (corresponding to Articles 104, 105 and appendix, 106–111 of the Constitution of the Bill of Exchange of 1893). So, the relationship of the persons who participated in the bill before the loss of the bill of exchange, according to their mutual responsibility, remains valid even after the bill has been transformed into a simple obligation (Cass. decision 1874, No. 84. 2 Coll. Sen. decision IV, 883). The property of solidarity established by Art. 634 is not violated by the loss of the bill of exchange. Est. Bargain. (corresponding to Article 92 of the Establishment of the Bill of Exchange, edition of 1893) (Cass. Resolution of 1875, No. 303). A bill of exchange that has lost the force of bill law becomes an ordinary obligation. It can be brought for collection only on the person who has obliged to pay (Cass. decision 1868, No. 123). There is no reason to equate it with obligations written on improper paper, and to assume interest on it only from the time the claim was filed (1 General Meeting, September 19, 1876). The cancellation of the bill of exchange due to the omission of a protest does not have a retroactive effect: the act at the moment of issuance is nevertheless considered a bill of exchange and therefore challenging it due to lack of money is not allowed by virtue of the bill of exchange law (Cass. decision 1873, N 1586; cf. also N 1692). In addition to the deferment mentioned above, there are cases when the effect of the obligation is weakened due to the personal circumstances of the debtor or in the interest of himself or in the interest of all his creditors. These cases are as follows. In Roman law, an institution arose by virtue of which the debtor could be forced to perform to the best of his ability (in id, quod facere potest), and in this case, when collecting, without taking away from him everything that he has, it was necessary to leave him a certain share for daily maintenance (ipsius ratio habenda est, ne egeat). This institution is called beneficium competentiae. It has not been transferred to the same completeness into the latest legislation. Benefits in recovery are given between spouses, between close relatives (who have mutual alimentary obligations; see Part 2 of the course, § 31), between partners; sometimes it is provided to soldiers, clergy, and officials of certain positions; sometimes depends on the nature of the recovery (for example, satisfaction for losses from illegal actions, satisfaction of alimentary obligations). This institution is most developed in Prussian legislation, least in French, which is content (Code procéd. civ. 592, 594) with listing essential items that are not subject to inventory for penalties, with the exception of certain penalties to which this benefit does not apply. In Russian law, regulations of the same nature are found in places. At the very beginning of commercial insolvency proceedings, the required amount from his property, as determined by the cash lenders, is allocated for the maintenance of the debtor and his family, with the approval of the commercial court. At the end of the proceedings, the general meeting of lenders of a debtor recognized as unfortunate may, judging by his behavior during the competition, provide in favor of him and his family such part of the property as it recognizes as good, and, moreover, all claims against him declared in the competition, even if not fully satisfied by the competition, are finally repaid (Const. Court. Trade. 523, 621. Similar rules for debtors of a non-commercial rank, see Zak. Court. Civil., Art. 521–528). In the rules on the inventory and sale of property for penalties, there are regulations that exclude from the inventory the necessary winter and summer clothing for the owner, his family and servants and, if he remains on the estate, the amount of supplies and fodder required for the month (Pol. Exec. Civil., Art. 120, note); manuscripts and books constituting the literary property of the debtor (Pol. Recovery. Civil. 354, Est. Gr. Court. 1040, 1041). When collecting from peasants and foreigners, it is necessary to assign for sale, if possible, such a part of the movable property so that the economy is not disrupted and agricultural and industrial activities do not stop; items necessary for the payment of taxes and maintenance are exempt from sale (Law. Court. Civil., Art. 811; Establishment of the Blag. Treasury. Village. Art. 389–391, 399; General. Pol. Cross., Art. 24, note 3, appendix according to Ext. 1890). These articles are not repealed by the publication of judicial statutes. For an explanation, see the decree in the Collection. Uzak. 1878 N 62. In 1893, preferential rules were issued for the provinces of the Kingdom of Poland on the procedure for selling peasant property to satisfy private demands. By force 973 and 974 art. Est. Gr. Court., some items of essential necessity and personal significance 12 are not subject to seizure from the debtor in any case, while others, which constitute necessary household or work equipment, are subject to seizure only for the lack of other property. Moreover, special resolutions exclude from seizure items of uniform and weapons of serving Cossacks (Poln. Sobr. Zak. 1876, N 55581). According to the law of the Baltic provinces (3518), when, when selling property for collection, a bona fide debtor may fall into insolvency, the creditor must be content, as an exception, with accepting another thing instead of money or transferring the claims belonging to the debtor to it. In Roman law there was an institution by virtue of which an unfortunate debtor could cede all his property to lenders, in order to avoid the grave consequences of insolvency, to their full satisfaction. This was called the assignment of all property, cessio bonorum. Of the new legislations, few retained a separate institution of this kind. It is retained in French law (cession des biens. Code civ. 1265; Code procéd. civ. 898) and exists either in the form of a voluntary transaction with the creditors of the debtor, who has not yet been declared insolvent, to transfer to them for satisfaction (datio in solutum) or liquidation of part or all of his property, or in the form of a judicial assignment, at the request of the debtor and regardless of the consent of his creditors. In the latter case, everything must be ceded without reserve, and the debtor must prove that he has fallen into decline due to a confluence of unfortunate circumstances and that he is threatened with personal detention. For such a concession, the debtor is also subject, to the extent of full satisfaction of the creditors, to liability for what he may acquire after such a concession. This institution does not extend to non-payment in commercial matters. In Russian legislation, this type of institution partially covered mediation commissions, which, according to the decree of 1827, were established for the debts of the owners of populated estates. The stated purpose of this institution is, on the one hand, to induce debtors who, due to some circumstances (and therefore, in good faith) are falling into decline, to discover their situation before falling into complete insolvency; on the other hand, to prevent, if possible, losses of lenders. The establishment of a commission must have the consent of at least half (by amount) of the lenders; then, at the request of the debtor, the Provincial Board authorizes its establishment, it accepts all the debtor’s property at its economic disposal and begins to satisfy the debts (Law. Court. Civil., Art. 535–545). The statute on commercial proceedings also allows, at the request of the majority of creditors, the establishment of similar administrations for extensive commercial and factory cases, in stock exchange cities, also to prevent insolvency (485–496). But the establishment of mediation commissions ceased to operate in the area of ​​​​new judicial institutions, however, regardless of general decisions, special administrations, commissions and guardianships are sometimes established, with the Highest permission, to sort out and satisfy debts on private estates (see Full. Collected Laws of 1876, N 55466). The establishment of debt administration undoubtedly implies a deferment of payments for the debtor's obligations and the obligation of each creditor to expect satisfaction on an equal basis with others. Therefore, such a debtor cannot be accused of delay in such an obligation, for which the period came after the establishment of the administration (Cass. decision 1875, No. 825). The essential purpose of the administration is to restore the affairs of the debtor, and the latter is not yet declared insolvent, and the mandatory distribution of debts into categories, according to the amount of satisfaction due, is provided only by competition (Cass. decision 1874, N 887). The effect of obligations is also weakened due to competition of rights on the same property. This happens when the debtor is insolvent, i.e. when it turns out that the entire mass of his property will be insufficient to fully satisfy his debts. Then the satisfaction of one debt to another only by accidental advance of time would be injustice, and therefore an equation is made between all demands. In insolvency it is impossible not to distinguish between decisive, insufficientia, when there is a decisive lack of property, and formal insolventia, when the debtor does not have the means to be regular in his payments and he stops them. Insolvency, of course, is legal in this latter sense, since stopping payments is accepted under certain conditions as a sign of actual insolvency. As soon as it is declared, the debtor’s property in its entirety becomes the property of his creditors, comes to the disposal first of the court and trustees appointed by the court, then elected by the creditors, who completely replace the personality of the debtor in both the active and passive parts of his property. All claims against the debtor must be combined in a general competition and be equalized in bankruptcy proceedings that are open to everyone (the explanation of which relates to the process). All must be declared by the due date and all become open to collection, regardless of the deadline, with the cessation of further interest flow. When all debts are finally settled, those that do not have a legal right to preferential and special satisfaction are satisfied according to proportionality (pro rata), i.e. how much will be necessary from the total amount of capital realized in the entire property of the debtor, so that one does not have an illegal advantage over the other. For this purpose, each legislation establishes several categories when satisfying the debts of an insolvent, of which each lower follows in satisfaction after the highest; and premises in the highest category are granted to privileged claims, both in rem (approved on a pledge) and personal. Above all are placed everywhere the demands that have a decisive and exclusive right to satisfaction (for example, arrears in taxes, funeral and medical expenses, salaries of servants and workers, etc.), and then there are secured demands and, finally, personal demands based on simple documents. Moreover, the competition does not include and specifically satisfies the claims of third parties regarding the right of ownership of their things and capital that ended up in the property of the debtor, and the claims of the creditors of the mass under the obligations of the bankruptcy administration. The system of this distribution of debts according to privileges and categories is not the same in different legislations, appearing to be more or less complex. In addition to the equalization of debts in general insolvency, cases are also possible when the equalization of certain debts falling on individual property or on a separate mass of property is carried out. So, for example, when executing court decisions, when the described and sold property must serve to satisfy several presented claims or when there are several successive mortgages on the property that serve as security for penalties, special procedural rules are established for the equalization of these claims and for the distribution of money among claimants, according to the right of seniority and, between equals, according to proportionality. (This operation is called collocation. Collocatio, ordre according to French law.) Sometimes, when dividing debts between a deceased patrimonial owner and the person who accepted the inheritance after him (see 2nd volume of the course, § 48), the inherited property constitutes one mass, of which only the debts of the deceased patrimonial owner are satisfied with the equation. According to the Russian law of commercial insolvency, with its announcement, the satisfaction of debts stops and the flow of interest stops; all creditors of the insolvent are called upon to present their claims within the prescribed period, which, at the end of the proceedings, are reviewed in a competition and in a general meeting of lenders. Debts secured by a pledge, in accordance with the special property of our pledge law (see Volume I of the course, § 70), are satisfied without division and competition from the pledged property. Then, when drawing up the calculation for satisfaction, all debts are indicated to be divided into four categories. The first includes privileged claims, which are satisfied first of all and in full. This includes church money, government arrears, capital of minors, salaries of servants and workers for six months (before insolvency) and debts to suppliers of household supplies for four months, to hotel keepers, for apartments, etc. for six months, money underpaid to workers for the building, freight, courtage to brokers for one year and debts for managing the mass; To satisfy proportionality, all undisputed personal debts are included in the second category, with the addition of % on the day of insolvency, while disputed ones are included in the third category; and to the fourth - debts under undisclosed and informal documents, satisfied only from the remainder of full satisfaction under the previous categories (Constitution of Trade. Court. 598–603, 617, 618). The same procedure has been applied since 1868 to cases of insolvency of non-trade persons (Ust. Gr. Court. 223 and appendix III to note to art. 1400). Est. Gr. Court. (1214–1222) contains special rules on the distribution of the collected amount when it turns out to be insufficient to fully satisfy all claims brought for collection. This amount must be submitted to the local district court, which makes the distribution according to the calculation. The contract is not destroyed, but execution under it may be terminated due to the insolvency of the person guilty of execution. With the declaration of insolvency, the debtor is deprived of control over his property and the right to express his will in his affairs. The bankruptcy administration comes into its rights, which is authorized to continue the execution of those contracts that are recognized as beneficial for the debtor, and to stop the execution of the rest (Constitution of Court. Torg. 570, paragraph 3). So, performance under the contract can be the subject of a claim against the bankruptcy estate only for the time before the declaration of insolvency; further performance is not necessary for the competition. The creditor is not deprived of the right to seek damages as a result of early termination of the contract, but cannot demand performance thereunder. On this subject, see the judgment of the Senate in Cass. decide 1878, No. 238: in this case, a penalty was sought for non-payment of money under a lease agreement, the execution of which was refused by the bankruptcy administration. Persons who did not present their claims in the competition within the appointed time, if they did not miss the zemstvo prescription, are not completely deprived of the right to satisfaction from the insolvency property, according to the fourth category, and cannot in any way be satisfied in a larger amount against others who filed their claims in a timely manner and from other property, except for that which should go to the division between the lenders (Cass. decision. 1868, N 407; 1876, N 267; 1877, N 33, 92. Sb. Resolution III, 1030). A reduction in the collection of interest on undisclosed obligations is based only on the case of the debtor’s insolvency (decision of the Moscow General Assembly of September 1859 in the village of Kushakevich). Only in case of insolvency does a community of interest arise between all creditors in the debtor's property; otherwise, the creditor has no reason to object to the recovery awarded to another creditor in a special case (Cass. decision 1869, No. 547). Chapter Nine. Change of persons in obligations § 29. Transfer and transition of rights under obligations. – Roman construction of the right of transfer. – Facilitation of transfer by latest legislation. – Transfer inscription. Transfer restrictions. – Transfer action. – Responsibility of the transferor and rights of the acquirer. – Entry into creditor's right or subrogation. – Russian law of transmission. – Transfer of loan letters. – Transfer of claims to creditors. Roman jurists did not allow voluntary changes in persons bound by an obligatory relationship - they did not allow one person demanding an obligation to be replaced by another. Any obligatory relationship - so they reasoned - by its nature can only exist between known and definite persons. This attitude is necessarily personal. If one of the persons in this relationship leaves it, hides, or is destroyed, then the whole obligatory relationship must disappear. Put a third party in the place of the creditor - a new relationship is established, and the old one disappears: instead of the previous right, a new right appears. But this abstract theory, in all its purity, in all the rigor of the personal principle, even among the Romans turned out to be incompatible with the needs of real life. Not daring to deviate from the strict principle, Roman jurists came up with a means of circumventing it with the help of a procedural form. The creditor was not allowed to transfer his right under the contract, but he could grant the exercise of this right, a claim for this right to a third party, and, moreover, in such a way that this third party, acting as if by proxy of the original creditor, was not obliged to give him an account of his actions, and therefore was considered an attorney, as if in his own business, “procurator in rem suam.” The means for this was a special agreement between the creditor and a third party. The creditor authorizes him to pursue the debtor and at the same time frees him from reporting to himself. In this case, the creditor established the following formula for the judge: if it is true that Peter owes Ivan so much, order him to pay this amount to Fedor. Such tricks of thought are not in the spirit of the new law. Moreover, the concept of new European law on obligation is not entirely the same as the Roman one. Roman law exclusively dealt with the personal connection between known persons entering into an obligation. The new law tends to attach more importance to the content of the obligation and in every case seeks first of all to determine its material value, which it has, as a positive part of the property belonging to the creditor (credit), as a negative part (debit) in the property of the debtor. In accordance with this concept in modern law, if it turns out that the content of a demand or obligation is so inextricably linked with a person that it itself changes with a change, in this case the transfer violates the meaning of the obligation. If, on the contrary, it is of such a kind that a change in person does not change the content of the obligation, then the transfer is permitted without hindrance. In this case, no doubt, not only the right to claim, but in general the entire right to an obligation is alienated; the former creditor ceases to be a creditor, and a new one takes his place, without in any way violating or changing the obligatory relationship. Of course, this possibility of transfer can only be conceivable in relation to the creditor. The creditor can in many cases transfer, assign his right to another; when the demand is clear, unconditional, then for the debtor it makes no difference to whom he is obliged, for example, to pay a sum of money. But the right of transfer for the debtor is not so free. The debtor not only obliges, but also binds himself with a personal connection. If in other cases it is all the same for the debtor no matter who he performs the obligation to, then for the creditor it can never be all the same from whom he has to expect fulfillment of the obligation. Entering into an agreement with one debtor, he believed him, counted on his personality and, perhaps, does not believe at all in another person, does not count on her at all. So, the general rule everywhere is the possibility of transferring any rights that are not significantly related to the person (of the creditor). This opportunity is usually not deprived even of claims for property rights brought against a known person, rights limited by a condition or arising from a mutual agreement. Claims for injury are considered non-transferable (as long as they are not accompanied by material retribution or compensation in property); relations arising from a power of attorney and assignment (ex mandato), from a partnership, from personal employment - sometimes (as, for example, in Prussian law) from a lease agreement, the right to alimony. With regard to some contractual rights, considerable difficulties arise - deciding how much they are personal and transferable; This is, for example, the right to a penalty. Additional rights (for example, surety, pledge) are usually transferred together with the main right, and dependent or derivative claims (for example, interest) can be transferred separately, since they can be separated in collection from the main right (to capital). A sign of transfer is a reliable announcement by the original creditor of the transfer of his right to another person (cessio, transport de créance). Usually it is done in writing; but other legislation (Prussian) when transferring rights over 50 thalers or according to written acts, requires written certification, which is done by means of an inscription on the act itself. This inscription on the back of the deed receives special significance as an endorsement (indossamentum from the word dorsum, Italian dosso), and when this inscription is in blank form, i.e. contains one signature of the transmitter, it serves only as evidence of a verbal agreement and a sign of the completed transfer. According to French law, transfer is accomplished simply by delivery of a deed (remise du titre), but the law is silent on the form of transfer of unwritten claims. The transfer of rights recorded in the mortgage book is accomplished through correspondence and a notation in the same book. Unnamed deeds, payable to bearer, are transferred as movables from hand to hand. In all these cases, the transfer is assumed to be unilateral, so that for its validity it does not require notification of the other party participating in the contract (the debtor). The basis for the transfer is usually a previous agreement aimed at the exchange of values. Thus, a transfer can be made for money (i.e. the right to claim under an obligation is sold), to satisfy a debt, to equalize values ​​when dividing an inheritance, etc. The transfer can also be made for gift purposes. According to the traditions of Roman law, the transfer was subject to certain prohibitions and restrictions in law. This was the prohibition - ne potentiori cedatur - to make a transfer to such persons who, due to their personal relationship - power and order - to the debtor, could use the transferred right of collection for evil, for example. boss, guardian. To this day, Prussian law prohibits judges, solicitors and court officials from acquiring rights under obligations involving a dispute and jurisdiction of the court to which they belong. There is a similar prohibition in French law. Austrian law prohibits a solicitor from acquiring by transfer a claim in which he is an authorized intercessor. Another important prohibition was established in Roman law by the so-called Anastasian Law (lex Anastasiana), by virtue of which the acquirer could recover from the debtor no more than what he himself paid the transferor for transferring the claim; everything else not paid upon transfer was not subject to collection. The onus was placed on the acquiring plaintiff to prove how much he paid for the purchased claim. These restrictions, with the current economy of credit, turned out to be not a protection from abuse, but rather a reason for sneaking, embarrassing for the creditor, and as a result have lost their former meaning in the latest legislation: where traces of them still remain, there the usual formula “currency received” in the transfer note serves as a protection for the acquirer from a dispute, and the defendant, in any case, has the obligation to prove that the currency was not received or was received in less quantity. The French law (1699) retained a similar restriction for procedural rights, the transfer of which it generally does not favor. The defendant in the process, which was sold by the plaintiff to a third party, is allowed to be released from the claim by paying the acquirer the amount for which he acquired the process, with costs and interest. By virtue of the transfer, the acquirer enters into all the rights of the transferor under the obligation and assumes all responsible obligations. With the main or fundamental right, additional or dependent rights are also transferred to it, since they are still connected to the main one and cannot take place in the form of a separate claim. In general, security rights based on a guarantee, mortgage, pledge are transferred; rights of primacy and privileges are transferred, as long as they are connected with the essence, form or time of the obligation, and do not constitute the personal property of the transferor. The right to interest transfers from the time of transfer, unless specified in the terms of transfer and for the previous time; the right of action passes to the debtor for actions, delays and violations related to the fulfillment of the obligation, if due to the circumstances it cannot be recognized as a separate right. The transferor is responsible to the acquirer for the correctness and legal authenticity of the transferred right (nomen verum), i.e. for the fact that the right truly belongs to him and is fundamentally indisputable. So, in the event of a dispute over this right, the acquirer can invite the transferor to enter into litigation and defend itself as a third party, and then demand compensation from him for the lost value when the acquired right is recognized as illegal and invalid. Wed. in the 1st part of the course, § 40. But is the transferor responsible to the acquirer not only for the correctness of the transferred demand (nomen verum), but also for its material value (nomen bonum), i.e. for the solvency of the debtor for execution? Roman law, followed by French law, gives a negative answer: there is no liability in this, except as a result of fraud or in the transfer of bills of exchange, in which such liability is of course (with turnover on the transmitter or the top signer). On the contrary, in Prussia and Austria, the transferor replies to the acquirer that at the time of transfer the assigned right had the same value as was indicated in it (Austrian) or for which it was ceded (Prussian). Any further loss of value after the transfer is not the responsibility of the transferor. There is no liability when a mortgage claim or a claim that both parties know is false is transmitted. The position of the transferred debtor (debitor cessus) in general should not become either more advantageous or worse as a result of the transfer. The effect of the transfer begins for him from the minute when the transfer is declared or becomes known to him: until then, the law protects his conscientious actions, and therefore the fulfillment of the obligation made in the hands of the transferor is valid: hence the practical necessity for the acquirer to protect his exclusive right in relation to the debtor by means of a statement (denunciatio), in order to put him in direct relation with himself. But in any case, the debtor is allowed to protect himself from the acquirer with all those objections that he could raise against the transferor, the original creditor; on the contrary, since the position of the debtor cannot become worse as a result of the transfer than before, the new acquirer does not have the right to use in relation to him those personal legal advantages or privileges that the transferor did not have. Separate from transfer, French law understands the entry into the right of a creditor when paying a debt, through the so-called subrogation (subrogation, paiement avec subrogation. Code civ. 1249). When a third party, by agreement either with a creditor or with a debtor, pays a debt under an obligation for the latter, he is allowed to enter into the right of a creditor under this obligation. The obligation of the debtor to satisfy the person who paid for it from his own funds, of course, of course, could be derived from the special obligatory relationship that arises between the third person and the debtor as a result of the third person paying off the first debt. But, in this case, this debt, with all its accessories, advantages, privileges, etc., would be considered extinguished, disappearing altogether, and for a loan it is important that a third party, paying someone else’s debt, could retain with him the claim in accordance with the debt in its entire legal integrity. Hence the establishment of subrogation. This is a fictitious transfer, by virtue of which the obligation extinguished by a third party is not destroyed, but remains in force against the debtor in favor of the third party, the payer. In addition, all legislation recognizes, regardless of the transfer by agreement, the legal transfer of the right to an obligation due to payment made by a third party (nothwendige cession, subroutine de plein droit, subr. lègale). Here, the transfer of rights to the payer occurs by force of law, ipso jure, without the will of the former creditor. This transition is not made in all cases of such payment (this would be unfair in relation to the debtor and could give rise to abuse and malicious speculation), but in some specifically specified by law. Thus, one of the creditors occupying the lowest place can, having satisfied another, higher and privileged, take over for him: the purchaser of an estate encumbered with mortgages can, by paying off any claims from the purchase price or from his fund, take the place of the privileged creditors and thereby secure himself in case of further collections on the same estate; a joint debtor, having paid a joint and several obligation, becomes a creditor of his co-debtors; the guarantor, having paid for the debtor, becomes his creditor; the receiver of the inheritance according to the inventory (see 2nd volume of the course, § 36), if he wants to satisfy his creditors from his own funds, takes their place, etc. Finally, other legislation (for example, Prussian) also mentions forced transfer, i.e. on granting the claimant, in the form of satisfaction of his claim, the right to collect debts belonging to the debtor. In Russian law there are no general rules on the transfer of contractual rights, and the possibility of such transfer is not recognized as a general provision. This shortcoming is explained partly by the formation of our legislation in the form of separate provisions, partly by the lack of a clear practical need to establish a general rule for the transfer of obligations. This necessity becomes perceptible only at a certain degree of economic development, when the actions that constitute the subject of the obligation receive some determinative value, subject to accounting and monetary replacement. Then the right of claim under the contract receives the value of material value and itself becomes an instrument of exchange and credit. On the contrary, in our country, with the prevailing uncertainty of values, it has always been difficult to imagine and carry out the fulfillment of an obligation separately from the persons between whom it arose. So, in the current state of our legislation, it is impossible to derive from it a general provision about the possibility of transferring an obligation, and therefore it should be recognized where the law directly allows it for certain types of contracts, and denied where the law does not mention it. It is true that there are cases in which the law expressly denies the possibility of transfer; but from this we cannot yet conclude that the law intends to establish a prohibition as an exception; Moreover, this prohibition in some cases is explained by the special property of the act (for example, a mortgage) or the real need to express an exception in a whole circle of similar obligations. So, for example, while allowing the transfer of letters of borrowing, the law makes an exception for those who are secured by a mortgage. Our law does not allow the right of transfer in so-called personal obligations. By its nature, a personal rental agreement does not allow unilateral transfer. The owner cannot, without special conditions, transfer the right to work of the hired employee to his heir (Article 2238) 13; still less can one allow the possibility of such a transfer under an agreement with a third party. In a power of attorney agreement, the principal cannot, of course, transfer his right to a third party. The attorney also cannot transfer his rights and obligations to a third party if in this power of attorney this right is not granted to him (Law. Civil., Art. 2329; Law. Court. Civil. 48; Establishment Gr. Court. 250; Institution. Court. Establishment. 385). Among other types of contracts, the law specifically mentions the prohibition of transferring mortgages on real estate, as well as mortgages on movable property and house loan letters with a mortgage on movable property (1653, 1678). In explaining this rule, the Bankruptcy Charter of 1800 adds: “since the borrower entrusted his mortgage to the lender,” i.e. means the transfer of the mortgage and the establishment of a property right to the mortgage is a matter of personal trust. The word of the law prohibits unilateral transfer: the question is, is it then permissible, with the consent of the debtor of the mortgagor, to transfer the right with the same collateral? A mortgage on real estate in no case is subject, by its nature, to transfer by signature, like the same obligation; therefore, in the case of mutual agreement, a new agreement and a new act must be completed with the destruction of the previous one (see Volume I of the course, § 70). By virtue of the same principle, it seems that one should come to the same conclusion regarding the mortgage of movable property. It is said about the contract and supply with the treasury (Pol. Kazen. Sub. 222) that when it does not mention the right to transfer the contractor’s duties to another person, then in the event of such a transfer, the person who entered into the contract with the treasury is not relieved of liability. The lender has the right, before the due date and after the due date, at any time and in any state of affairs, to transfer letters of loan that are not secured by collateral to another (2058). Satisfaction with such a transfer is a transfer inscription, which is subject to certification on the same basis as loan letters (2059, 2060, 2063). Such a transfer is the sale of a loan letter; the successor pays the lender money for the debtor and, as a result, assumes all the rights of the creditor. This payment of the loan letter upon transfer is assumed; the law does not mention the possibility of a dispute over the lack of money of the transfer, but only allows for the presentation of the endorsement for destruction within 7 days from the scribe himself, therefore, before the document is actually transferred to the new owner (2058, appendix I to Article 708; Article 143). Thus, the acquirer himself becomes a creditor and receives the right to collect from the debtor, but this right belongs to him without recourse to the lender-signer (2058). This means that if the debtor turns out to be insolvent, then one cannot demand remuneration from the transferor, who, when transferring, does not in any way guarantee the trustworthiness of the debtor. However, if it turned out, for example, that the loan letter was false or had already been paid at the time of transfer, or had previously been transferred to another, or did not amount to the transfer of the signer’s property at the time of transfer, then there may be a turnover on the lender. Moreover, the law mentions the possibility of transmitting trade broker notes on the sale of goods by inscription. In this case, the buyer of the goods, the owner of the note, resells his right to the goods along with the note to a third party; in this case, it is allowed, by mutual agreement, to indicate in the inscription the condition that the resale is carried out without recourse to the reseller, i.e. without his responsibility for the material execution of the transferred transaction (Constitution of Trade. 634). By inscriptions, marine insurance policies can be transferred with the right for the bearer to receive payment from the insurer (ibid., 553). Conditions with the shipbuilder regarding the loading of goods (Constitution of Trade 356), life insurance policies can be transferred from one loader to another. Right of transfer. The right of unilateral transfer of contracts, essentially based on personal agreement and relationship, is not assumed in our law as a general property of any contract, but as an exception, allowed only for certain types of contract. Therefore, the transfer of the condition for the supply of grain with a penalty was declared invalid (Mn. State Council. 1874 for the village of Klevtsova. 2 Sat. Sen. decision V, N 1287). The contractor, who took upon himself the transportation of things, did not have the right to transfer the execution of the contract to a third party without the consent of the other party, and therefore was obliged to answer for non-fulfillment under the contract (Sb. Sen. decision I, 276). In general, from considerations of our laws it follows that there is no general prohibition in them to transfer conditions between two persons by a unilateral endorsement: the freedom of transfer expires from considerations 402, 418 and 541 of Art. Zach. Citizen that everyone is free to dispose of their property (Cass. decision 1876, No. 408). There is no prohibition to transfer promissory notes by signature (Cass. decision 1876, N 535); transfer safe receipts to other hands to receive luggage (1873, N 103). The transfer from the buyer of the sales condition for 10 thousand buckets of wine to a third party was recognized by the Senate as valid on the basis that such a transfer is not prohibited by law at all (2nd Coll. Sen. Resolution III, No. 523). Cass. decide 1876, No. 100, it is recognized that, by virtue of Article 570, the right to demand payment under an obligation can be transferred to another person without the participation of the other party obligated to pay. Exceptions to this general rule are listed in Art. 1509, 1653, 1678 and 1994 (corresponding to Art. 222 Pol. Treasury Subd.). On this basis, the transfer of the terms of remuneration for conducting the case was approved. When a contract stipulates that one party must agree to transfer the contract to a third party, what should this consent be expressed in? It consists, in essence of the act, in an affirmative response to the question proposed by the other party participating in the contract, and does not imply in itself an independent negotiation and transaction with a third party: in the latter case there would be no longer a transfer, but a renewal of the contract. Equally, it would hardly be fair to divide the act of consent into two separate parts, one of which involves a waiver of the relationship to the original counterparty, and the other consents to transfer this relationship to another person. When, at the very conclusion of the contract, the possibility of transfer was assumed, then consent to the transfer no longer implies a waiver of the right: here, if there is something to be waived, then it is the opportunity to protest and resist, but this refusal is essentially identical with consent; By agreeing to something, I give up my right to refuse and protest. Therefore, the reasoning in Cass is hardly thorough. decide 1876, No. 403, that the transfer of an apartment by the first tenant to a third party, with the consent of the landlord, presupposes on the part of this latter first a waiver of rights to the first tenant, then consent to the transfer of these rights, and that, as a result, such consent, according to the rule of Art. 1547, must be certified in writing. According to the village of Orlova-Davydov (2 Sat. Sen. Resolution III, No. 654), the Senate reasoned regarding the transfer of a rental contract that this transfer could be either without the consent of the owner, or with his consent, or with his participation. In the first case, the tenant-transferer remains in a binding relationship with the owner. In the second case, i.e. when the employer was generally authorized to transfer, the contract also remains unchanged. In the latter case, a new transaction arises and the first employer withdraws from the contract. Participation in this case was expressed by the owner’s special inscription on the agreement indicating his consent to transfer the lease to a third party. To pay off the rent debt, Butkovsky gave Churkina an obligation to pay her 20 rubles monthly. within two years. Before the deadline, Churkina conveyed this condition under the brokerage inscription to Sharbau. The decision of Moscow General Collection Sep. 1856, it was recognized that the essence of the agreement did not prevent the transfer, but it could be done only by one of the general methods of acquiring rights, and not by means of an endorsement, for this latter method constitutes a special advantage assigned only to certain types of borrowing and credit acts that enjoy special freedom of circulation. Broker's notes on exchange transactions are assigned to hand-to-hand circulation. Therefore, someone who has bought a product under a broker’s note for a period of time can, without waiting for the deadline, in the event of an increase in the exchange price of the product, transfer the note to other hands and receive in his favor the difference between the price at which the transaction was completed and the price on the exchange at the time of resale. And if the price of the goods decreases by the time of the transaction, the seller has the right to demand that the one who has the broker’s note in his hands, if he does not want to receive the goods, pays the difference resulting from the decrease in price (cf. Cass. decision 1876, N 499). A receipt indicating that one person received a deposit from another for the salt sold was transferred to a third party, who, based on this receipt, filed a claim for the return of the deposit for non-delivery of salt. There was an objection that the receipt could not be transferred to a third party, by virtue of Articles 569 and 2058. Zach. Citizen The court recognized and the Senate confirmed that in the present case there was a transfer of rights to movable property, therefore the receipt, as not belonging by nature to personal rights, could be transferred without the consent of the other party (Cass. decision 1877, No. 187). A registered share or share is not represented as independent property, but only as a written formal certification of a certain share of participation in the enterprise; its transfer, like any written act issued in the name, can be accomplished only in writing. It is carried out, according to accepted custom, through announcements, as well as transfer or form inscriptions, and the confirmation of ownership is put into final form by presenting an inscription to the board of the company for a note in the books and certification of the transfer by an inscription on the share itself (Cass. Resolution. 1878, No. 81). Transfer form. The blank inscription is the exclusive property of the bill; a loan letter is transferred according to a personal inscription, although its transfer, regardless of the inscription, can be proven by other acts (Cass. decision 1871, No. 192, 1001; 1874, No. 14, 772). The law does not establish a special form for endorsements on loan letters; it is only required that they be witnessed. Such an inscription on a loan letter was considered sufficient: this bill was transferred to so-and-so without recourse to me (Cass. decision 1874, No. 436). The law generally allows the transfer of household debt obligations that are not secured by a mortgage, and, moreover, without the special formalities of an endorsement, which are specified only for loan letters (Cass. decision 1869, No. 526; 1875, No. 195). The endorsement made by the office on a loan letter about the transfer of collection to a third party for payment thereof does not replace the legal transfer, and the right of a third party to collect from the debtor may, depending on the circumstances of the case, be recognized or rejected by the court (Cass. decision 1869, No. 245). Instead of a transfer note on the loan deed, the lender’s request for transfer, submitted to the public office where the loan letter on the case is located (2 Sat. Sen. Resolution V, No. 1169), can serve. Transfer action. The owner of a loan letter, upon transfer from the creditor, has the right to recover from the debtor and, in the event of its malfunction, cannot turn his claim to the transmitter to the creditor (Cass. decision. 1869, No. 175), unless the falsity of the obligation or another criminal act of the transmitter was discovered when committing or transferring the act (Mn. Gos. Sov., 1856, according to No. Rakhmanov), or invalidity due to violation of the law (Cass. decision 1873, N 1691). Upon transfer of the obligation, the new owner of the claim acquires, in any case, no more than the rights that belonged to the original creditor. Therefore, if in the person of the original creditor, due to his personal relationship with the debtor, the right of recovery was limited (for example, a wife had a recovery against her husband without the right to subject him to personal detention), then this limitation remains in the person of the successor by transfer (cf. Cass. decision 1873, N 1594). The lender, upon transfer of the loan letter, transfers all his rights to the debtor, therefore, if he received payments from the debtor before the transfer, and the loan document was transferred to him without a clause on payment, then he is obliged to clear his successor in all the debtor’s objections to payment and is responsible for losses (Cass. decision 1867, No. 392). The debtor under a loan obligation may present against any person to whom the debt instrument has been transferred all the objections that he has against the original creditor. In this sense, the payment receipt of the original creditor serves as proof of payment against all his successors (Cass. decision 1868, N 373). But this does not apply to a bill of exchange and, in general, to all bearer obligations. Here, whoever is the legal bearer of the instrument for payment, every debtor is obliged to pay, regardless of the objections that the original creditor has against. The previous was understood about the payments that were made before the transfer, and the following opinion was expressed about the payments after it. If the lender, after transferring the loan letter to a third party, accepts payment from the debtor with a receipt, then this receipt (as issued by a person who no longer had the right to receive payment) serves as evidence only as to who received the payment, and not as to a third party who did not participate in its issuance and acceptance (Cass. decision 1873, No. 485). If we admit the contrary, says the Senate, then the transfer permitted by law in the form of relief for the lender will have no meaning. A dispute has been brought against the loan letter, which has already passed into third hands through transfers, about its initial lack of money due to the circumstances of the mutual relations between the first creditor and the debtor. The Senate rejected this dispute, since the loan letter already belongs to such persons to whom the special conditions and transactions of the original creditor with third parties could not be known, and therefore are not obligatory for them (Sb. Sen. Resolution III, No. 886). When the performance of an obligation is secured under a special act by a penalty and the obligation is transferred to another person, but the penalty entry is not transferred, does the original creditor retain the right to collect a penalty for the debtor's fault? The Senate answers as follows (Cass. decision 1878, No. 83): if the transfer of the obligation occurred after the expiration of the payment period, then the original creditor managed to acquire the right to a penalty before the transfer and retains it with himself; if the transfer took place before the term of the obligation, then the original creditor is recognized as having renounced the right to a penalty. According to a home trade letter, Lysakovsky sold 1000 quarters of wheat to Kellner in Odessa, with delivery on time at a known price, and in case of a penalty, he undertook to return the deposit and compensate for the loss in the purchase of wheat at market prices. Kellner assigned this condition to Lengnich, and Lengnich to Novak, who, due to Lysakovsky's penalty, began a lawsuit for the execution of the contract, but Lysakovsky made an excuse by saying that he undertook not Novak, but Kelner. It is recognized that Lysakovsky’s letter does not relate to contracts that have a strict form and is subject to trade custom, and the commercial court certifies that the transfer of such letters is based on the trade custom existing in Odessa; in the letter itself, the transfer is not prohibited, and Lysakovsky could challenge it only in the case where, having fulfilled his duty, he himself did not receive money from Novak: then he would have the right to appeal to Kellner with a demand (decided by Moscow General Meeting, September 1858). Transfer of claims. In 1878, the Senate, discussing (Cass. decision No. 256) about the right to transfer claims, recognized that, in addition to their successive transfer by inheritance, the law does not exclude the possibility of transfer or assignment of claims, even separately, without relation to the existing estate, since a claim for the fulfillment of an obligation is in itself a value and debt property. But at the same time, the laws on the transfer of immovable estates and property rights and on the inalienability of personal rights should not be violated. The transfer of such a claim may also be allowed, which, although it arose from a relationship to real estate, has as its subject not the real rights to it, but monetary or other remuneration. When transferring a claim under these conditions, the consent of the other party involved in the litigation is not required. The consequence of transfer is the replacement of one litigant with another person, with the right to present the same arguments and objections. The transfer can be made either by means of a petition to the court signed by the transferor and the successor, or by means of a special deed of transfer. To Cass. decide 1871, No. 788, it is recognized that claims for rights arising from debt relations can, regardless of their origin and regardless of whether they are conditional and overdue, be assigned by transfer to other persons, except in cases where such transfer is expressly prohibited. And in our country, the transfer of a claim under an obligation can take place regardless of the will of those participating in it or the creditor, by force of law and by court ruling. The establishment of subrogation in its entirety is unknown to Russian legislation. With us, claims and obligations pass along with the inheritance (see Part 2 of the course, § 46–48), with the transfer of property rights to a separate estate (see Part 1 of the course, § 44, 47, 56, 60–62, etc.). The claim, since it contains material value and is part of the property in its positive part (cf. Volume I of the course, § 2), can serve as a means of satisfying penalties falling on the owner. In this sense, Art. 601 Zach. Court. Citizen says that the creditor receives satisfaction from the debtor’s legal claims on the treasury and private individuals. In the new Const. Gr. Court. (1071–1083, 631–640) the procedure for collection of capital and claims of the accused defendant by a bailiff, at the direction of the plaintiff, who is allowed to choose this method of collection, is defined in detail. The capital or movable property of the debtor held by a third party, or the amounts following from this to the debtor and time-based payments made to him by third parties according to the terms and conditions, is subject to arrest; For this purpose, they are presented with a writ of execution with a receipt, by virtue of which they undertake, under pain of the prescribed fine, to make further payments to the court by which the arrest was imposed. From this it is clear that enforcement can only be applied to claims that are indisputable and not subject to doubt. The same procedure applies to cash payments to the debtor from the treasury or public office. On credit cards, the court itself has the right to make, in the event of evasion by the debtor, the endorsements and credit papers to be presented where appropriate for transfer. Hereditary transition. Upon the death of the counterparty, his rights pass to the heirs not only by law, but also by will (of course, with the exception of purely personal contracts). In this case, the matter was about rent (Sb. Sen. decide. I, 568). The obligation borne by the deceased passes to the heirs in its entirety from the date of opening of the inheritance. The obligation to perform lies on them to the same extent as it lay on the deceased, and one should not think that it begins for them from the day the obligation was presented or from the demand addressed to them (Cass. decision 1868, No. 714). The creditor's right to claim against the debtor. The law allows the claimant to protect his interests in the execution of the decision on collection, to be present at enforcement actions, to make comments on the inventory, assessment and sale, and to participate in the verification of the calculation of the distribution of the collected amount among creditors (Cass. Resolution 1872, No. 302). A creditor of one of the heirs, if a division is made between them to his detriment, may bring a separate claim against the division (2 Sat. Sen. Resolution V, No. 1295); may be present during the inventory of property made to satisfy his claim, object and complain in the event of both the inventory and the auction; may, to protect his interest, challenge executive orders when foreclosure on the debtor’s estate by other persons (ibid., No. 1301). To Cass. decide 1879, No. 26, the question was raised: do the plaintiffs, Yagnitsky’s creditors, have the right to bring an independent claim against the bank’s office, the subject of which is: 1) recognizing the bank as owing a sum of money to Yagnitsky, 2) awarding this amount directly to them, Yagnitsky’s creditors? It is recognized that since Yagnitsky has not been declared insolvent, and the creditors do not have a power of attorney from him or other grounds to legally represent him in court, they do not have the right to bring a claim. Under the previous legal procedure, by force 70 Art. Zach. Court. Citizen (corresponding to Art. 601 of the Zak. Court. Civil. ed. 1892), the place that carried out the collection paid not only the property of the debtor, but also the legal claims of the latter on the treasury and private individuals to the satisfaction of the creditor, therefore the creditor received the right to petition for the execution of the debtor's collection on third parties for his personal satisfaction and in this regard could be considered the successor of the rights of his debtor; and therefore the collection of the debtor from third parties cannot be considered extinguished by statute of limitations when the creditor had timely circulation for this collection (Cass. decision 1878, No. 116). In the case of gr. Zavadovsky recognized that the creditors of a debtor who has not yet been declared insolvent do not have the right to take part in his litigation with third parties regarding property (decision Sen. in J. M. Yu. 1862, No. 5. The same recognition in decision 1 General. Collection. September 1874, in the case of Verderevsky, 2 Coll. Sen. decision V, 1214). Although the bankruptcy administration serves as a representative of all lenders, each of them, when he considers his interests insufficiently protected by this administration, regarding the recognition or refutation of claims received, is not deprived, by virtue of Articles 21 and 23. Est. Court., the right to defend their interests in court independently - not before, however, the Senate adds, just as the general meeting of lenders will confirm the decision of the competition (Cass. decision 1875, No. 843; 1878, No. 5). § 30. Registered debt securities subject to payment by order. – A bill of exchange and its special property, expressed in transfer and in relation to the signers. Sometimes in obligations it is indicated or included in their essence that the payment should be made to the creditor or to his order, to whomever he orders. Here, the original creditor is named in the obligation itself, but it is up to him to transfer the rights of receipt to a third party. The main representative of obligations of this kind is a bill of exchange. The bill assumes an unlimited possibility of change in the person of the creditor: whoever makes a claim on the bill will be the creditor, i.e. is entitled to payment. So, here the transfer of the deed and with it the right to recover is of particular importance. When transferring an ordinary obligation, although the right of collection under it in the name of the acquirer is alienated, the right of the transferor under this document is not completely destroyed and does not lose its significance for the debtor. On the contrary, the holder of a bill, when he transfers his bill of exchange right to a third party, alienates it altogether as a thing, his personal connection with the debtor (payer) is interrupted; and the payer is obliged to pay to every bearer of the bill, without requiring from him evidence of on what basis and even from whom the right of collection was transferred to him. Thus, the bill takes on the meaning of a representative of monetary value. Its purpose is to make monetary payment more convenient and reliable, to act like a banknote at a great distance and to attract to participation in the contract an arbitrary number of persons who did not participate in it at its conclusion. The convenience of a bill of exchange lies in the fact that it can be transferred using an inscription that does not require certification and even allows the person to whom it is transferred not to be identified. The writing of unnamed bills of exchange is prohibited (i.e., issuing blanks), but an unnamed transfer is permitted, and it serves the payer in lieu of an order to pay, without meaning or reason or interest (causae) for the transfer. In extreme cases only, when the question of forgery or malicious intent arises, in addition to the inscription, proof of correct acquisition is required. Thus, on the obligation itself there may be a consistent chain of creditors connected by transfers from each other, and the one who makes up the last link is the actual creditor at the moment of exercising the right under the obligation. Each inscription contains new security for the creditor, since all the inscription-transferrs, together with the drawer, are jointly and severally liable to the holder of the bill if he does not receive satisfaction from the payer at the time foreseen by the original creditor. This assumption of credit is inextricably linked to the timing of payment; therefore, the guarantee of each of the transmitters for the correct payment of the bill applies only to the time of payment agreed upon in the bill; therefore, the last holder of the bill, if he wants to observe the full force of this guarantee, must himself demand payment from the payer in advance, within the deadlines assigned for payment, then declare the non-payment with a protest in advance and notify the one of the signers to whom he makes his return demand on the unpaid bill; otherwise, i.e. in case of delay, the fear of the payer's insolvency lies with the holder of the bill. According to the old bill of exchange laws, the liability of the signers was only sequential, i.e. each of the bill holders could demand satisfaction only from his own signer, from whom the bill came to him, etc., but now, for simplicity and speed, the law allows the bill holder to address his demand to any of the signers of his choice, bypassing the latter. By virtue of this procedure, the bill, in addition to facilitating circulation, also provides its holder with enhanced security. Our law represents the same main features of bill law. The transfer of a bill, whether promissory or transferable, is effected by means of an inscription (indossamentum) on the reverse. The full inscription transfers the bill into ownership (it can be transferred not into ownership, but only with an order to receive money). The inscription can be personal indicating the person and order, number, receipt or offset of payment (currency), or it can be in blank form. The transfer can be made both upon presentation and even upon acceptance of the bill by the payer; but after an accepted bill is presented on time for payment, it cannot be transferred, except to receive money only. The signers are liable to the holder of the bill for payment in the same way as the drawer himself, even if the bill itself was declared invalid (for regardless of this, upon transfer it was assumed and counted as its actual value). But an inscription with the words without referring to me frees the inscription from responsibility. However, this responsibility remains only if the holder of the bill complies with the legal rules for presenting and protesting the bill. The holder of the bill has the right to demand satisfaction from any of the signers of his choice; but whom he once passed from the last inscriptions he can no longer contact (Const. Vekseln. 2, note; 15–55, 83). The property of free circulation, similar to that of a bill of exchange, is assigned to a marine insurance contract concluded in case of danger of sea transportation. The purpose of this act or policy and the scope of its action are much more limited than in a bill of exchange; but a policy, like a bill of exchange, operates over considerable distances and is of value that requires freedom of circulation and transfer. The policy is written in a known name, but it is usually assigned the right of transfer by inscription from hand to hand, so that the insurer is obliged to make payment to the bearer. This rule is also contained in our Article 553. Est. Bargain. Transfer of bill. Blank inscriptions on a bill of exchange are made by voluntary agreement and at one’s own risk (Art. Bill. 21). Therefore, due to impersonal transfer, the bill is considered to belong to the person in whose possession it is, unless it is proven that it was stolen. On this basis, it was refused to the holder of the bill, who declared, a year after the transfer, that the bill had been lost by him and was his property (2 Sat. Sen. Resolution V, No. 1165). The endorsement on the bill in full force of bill law is made on the reverse side (indossamentum). If it is made on the obverse side, then although it serves as proof of transfer, it is no longer valid as a bill of exchange (Cass. decision 1878, No. 35). There is no prohibition in the law from transferring a bill of exchange on a blank inscription that has lost the force of bill of exchange (Cass. decision 1874, No. 481). See on this issue “Legal. Vestn." 1871, May and August. – Upon presentation of a bill of exchange for collection, its transfer can only be for the purpose of receiving money, and not in the form of an endorsement under bill law. Before the bill is presented for collection, therefore, before the issue of the loss of the bill of exchange is resolved, the transfer can be made in accordance with the bill of exchange procedure, even if in the meantime an action or omission has occurred on which the loss of the bill of exchange depends (Cass. decision 1870, No. 1062). Decision 1 General Collection Sep. 1878, in the Ovsyannikov case, it was recognized that a bill of exchange, when not in free circulation (for example, during investigative proceedings), can be transferred by a notarial deed, without an inscription on the bill itself. – The law does not at all require that every bill holder put his own form on the bill when transferring it to other hands, if only this bill has the blank inscription of the first purchaser (ibid., cf. Cass. decision 1875, N 957). Cass decision. 1878, No. 280, it is recognized that a third party, having acquired all the bank’s rights under that bill as a result of payment of a bill of exchange from a bank, has the full right of collection thereon. With the extension of the bill of exchange to persons of all classes, everyone had the opportunity to purchase bills of exchange with full and endorsement inscriptions and receive them with guarantee inscriptions, even if the currency was received under the bill not in money, but in goods (Cass. Resolution 1869, No. 1014). The transfer of deeds of debt is carried out without any recourse to the transferor at all, i.e. the original creditor, on the contrary, the holder of a bill of exchange can foreclose on both the original holder of the bill and all the signers (Cass. decision 1868, No. 123). Any settlements between the holder of the bill and the original holder of the bill or the terms of special agreements not mentioned in the bill are binding only on the contracting parties and do not affect subsequent holders of the bill according to the correct inscriptions, and therefore cannot be the subject of an objection when they demand payment on the bill (Cass. decision 1874, No. 882). § 31. The concept of impersonal obligations. – Untitled or bearer papers. – Bonds, shares and tickets. - The origin of these acts. – Release them, withdrawal from circulation, transfer, free circulation, depreciation. - Lost papers. – Acts of this kind are according to Russian legislation. Freedom of transfer is closely related to the question of the significance of the individual in the obligation. So, at this point it is appropriate to mention a special kind of obligations that are impersonal or serve as representatives of value. The ordinary purpose of debt instruments is to serve as evidence of the existence of a debt. In this sense, Roman law meant them, and in this sense, the former law of Western peoples. Here the obligation exists in itself, and the act serves as a sign, proof of it. But with the recent development of social relations, such a view of debt acts has turned out to be insufficient. Credit became the main engine of transactions, and the concept of credit was defined much more precisely than before. If we understand a debt instrument only in the sense of evidence giving the right to collect, this is not enough. One word collection interferes with credit. For the purposes of credit, it is necessary to give the act the meaning of an unquestionable value, and as a value, introduce the act into rapid circulation, as a clear representative of value, just as money circulates: only in this form do acts fully satisfy the needs of credit. From these needs, in modern times, such acts have arisen that serve not simply as evidence of debt law, but at the same time and especially serve as representatives of monetary claims, so that the demand and the act merge into one, the demand is inextricably linked with the act, the act is a demand, and the demand is an act. Thus, the demand, which in its original meaning is a personal relationship, is materialized, becomes a thing that itself contains its value, regardless of personal relationships. In general, an obligation is inextricably linked with a person, so that even if a claim is transferred from one person to another, the obligation remains a trace of those persons to whom it previously belonged, so that the debtor can derive his objections to the transferred right from the relations that existed between him and the previous owners of this right. On the contrary, in the acts in question, the personal relationship between the debtor and the creditor, the personal obligation either completely disappears or receives a secondary, weak significance. The demand is connected with the act and with it becomes completely like a movable thing, which is transferred simply from person to person, without consideration of the individuals between whom it is addressed. The act becomes a thing and, as such, becomes the subject of real rights - property, possession. Some of these acts contain the meaning of the contract or obligation from which they arose and serve as an expression of the previous obligation (for example, a loan, insurance, lottery); others do not express at all from what agreement they arose, but express only on the one hand the right to demand, on the other - the obligation to transfer, to pay a certain value, without indicating where, from what transaction, from what agreement, from what action this right arose, this obligation (bill) arose. In the first, the act serves as the result, the form of the previous contract; in the latter, this form absorbs the contract and merges with it completely, indifferently. This order includes two main categories of debt securities. 1. Untitled debt papers Untitled or bearer papers Their distinctive quality is that in debt securities of this kind the face of the debtor is known and unchanged, and the face of the creditor is unknown and undesignated, so that the debtor undertakes to pay everyone who presents the paper, every bearer (porteur, Inhaber, holder). Here the identity of the creditor is not indicated with the intention, precisely in order to assign special fidelity and ease of handling to the obligation. It doesn’t matter who the creditor is, and therefore this kind of form applies only to such relations in which the identity of the creditor does not matter. It is clear that in this case there can be no question of formalities and evidence of transfer. The right to be a creditor here depends solely on the possession of the paper; whoever has it in his hands is the creditor. Thus, the paper serves here both as a symbol of the demand, because it expresses it directly in itself, and as an organ of the demand, because it ensures its implementation: and for all this you only need to own the paper, have it in your hands as your own thing. The types of these acts are very diverse. These include: 1. Government bonds are unnamed, written to bearer, as well as coupons of such securities. Their value is ensured by a government loan. They usually come from a state loan, and the state is a debtor in them. 2. Bonds and mortgage letters issued by land loan societies, where they exist. Such societies began in 1769 in Prussia, but now exist in many other places. The society consists of landowners of the whole district. Each of these landowners can demand that his property, according to known principles and rules adopted when the company was established, be valued, and for a certain share of this valuation of 1/2 or 2/3, for example, the company opens a loan to him. To do this, the company prepares a deed for a certain amount, the so-called bearer mortgage sheet, indicating the estate on which the loan is secured, and issues this sheet to the owner of the estate; from this moment on, the sheet serves as a representative of value to the extent of the loan being opened, and the owner disposes of this value at his own discretion. He turns, for example, to a capitalist and receives money from him as security for a loan expressed in a sheet. This person, therefore, becomes the lender and owner of the sheet - the bearer for whom the sheet is written. But his personal debtor will, in this case, not be the owner of the estate who received money from him, but the entire credit society, the entire corporation of landowners. From the treasury of this company he receives interest, and from it he also receives capital when he has to demand it. The property indicated in the mortgage sheet serves as collateral for it. The company, for its part, takes this capital and this interest from the owner of the estate, who is obliged to pay it in a timely manner, and if he does not pay it in, then the company enjoys the privilege, without resorting to the assistance of the authorities, to immediately, with its own power, take away the estate from him for its management and even, if necessary, put it on sale directly. 3. Untitled shares and bonds of industrial corporations, joint stock companies, etc. An industrial company is composed of sections of capital, and each participant receives a share for his capital, which serves as a representative of this capital. This includes only nameless bearer shares. These are, in the proper sense, not debt securities, but representatives of the capital invested in the company; the owner of such an act is not a creditor of the company, not a creditor, for example, of a railway company, but a co-owner in the property, and such shares do not bring interest associated with the use of capital lent, but a dividend from the profits of the enterprise. But the laws of movement of these shares are the same as the laws of movement of all untitled debt securities in general, and therefore it is necessary to mention them here. But it may happen that the capital collected through shares is not sufficient for the first time to put the enterprise into operation. To make up for this deficiency, the whole society goes into debt, borrows, and for this loan issues debt securities on its own behalf and under its credit, which are already called bonds. These bonds can also be unnamed, payable to bearer. In this case, the company is already a direct debtor of the bearer and pays him interest, not a dividend. See § 61 below. 4. This also includes lottery tickets, bills of lading or cargo receipts. Even entrance tickets for railways, steamships, etc. can be included here. To establish such an obligation, it is necessary, firstly, to issue a document, issue it (creation) on the part of the debtor and accept it on the part of the creditor. In the main sense, it is not a contract between debtor and creditor, since both mostly do not know each other and do not have direct communication with each other. But the will of the debtor was already expressed in the paper when it was issued, and the will of the creditor converges with it at the moment of acceptance. From a general point of view it seems that every private person should be free to issue such papers. But in reality this freedom is limited. Nameless papers are representatives of values. These values ​​are created artificially, through credit. Here, therefore, the creative power is not in the will of the person alone, but especially in the credit that is connected with it. And credit to one person is a precarious and deceptive matter. It is dangerous to trust him alone: ​​there may also be a lack of positive data on the part of the creditor to judge the strength of the loan. This is the first reason why the state assumes control over the issue of securities of this kind. Another reason is that the state itself primarily issues and creates artificial values, in the form of paper money, also nameless. And therefore, if too many nameless debt securities issued by private individuals appear on the money market, then they can have a strong effect on the value of government banknotes - so, the state does not allow everyone to issue nameless debt securities to bearer, but only to the extent that it can be safe for the state credit system, and to the extent that it is justified by the credit of the corporation issuing such securities. This is the reason why it is prohibited almost everywhere to issue unnamed bills payable to bearer. Regarding unnamed securities, the rule is usually accepted that as soon as they become registered, they go out of circulation and lose the possibility of free circulation. This transformation of the paper into a registered one can follow by agreement with the debtor, but then, on the same basis, the paper can again turn into an unnamed one. The transfer of such paper does not require, therefore, identification; it is accomplished without any legitimation, by one fact - in the transfer of ownership, as a movable thing. With the transfer of ownership, property also passes here. With possession necessarily comes all the consequences of ownership. The owner of the paper is not assumed to be only a creditor: he is a creditor in reality, and the creditor is at the same time the owner (cf. Cass. decision 1885, No. 27). One can, perhaps, prove the opposite, i.e. that the owner is not the owner; but how to prove this? and the person who, by correct, fair delivery, acquires such a paper from the one who stole it, will also be a creditor. These are the properties of ownership in one's own name. But simple retention, in someone else's name, will not be possession: such is the person to whom such a paper is given for safekeeping. – With the loss of possession as a result of a voluntary transfer, the right of ownership of such a paper is finally terminated, and an involuntary loss terminates it only when another person has not managed to assert his right through a bona fide acquisition. Like any thing, such paper can serve as collateral. It was said above that these papers are associated with special ease of handling and speed in exchanging money. Their credit depends on these properties. And therefore, as soon as the creditor with such a paper in his hand appears to the debtor, the debtor is obliged to satisfy any bearer when he presents it on his own behalf - without proceeding to verify his rights. Such verification is incompatible with the loan, even if there was a suspicion that the acquisition was incorrect. Only in such a case, when there is clear bad faith in the acquisition, does the debtor withhold payment. The debtor is not only obliged, but also has the right to pay any bearer. As soon as payment is made and the paper is taken back in its place, the obligation is extinguished, even if it later turns out that the bearer stole the paper from the real owner. The latter may demand a reward from the thief, but the paper can no longer be returned to him: once redeemed, it is canceled completely. On the other hand, one payment, by itself, without exchange for a document, does not extinguish the obligation (it is necessary that the paper itself loses its force), and if the debtor paid without taking away the document, then when it is presented again by another acquirer, he is obliged to pay again, although he may refuse a new payment to the very person to whom he has already paid once. Therefore, payments in installments must be noted on the act itself. – By the nature of this act, the debtor does not have the right to make such objections to the bearer that relate to the identity of the former owners, because here the former owners do not actually leave any trace. When the legal owner finds such a paper from someone else's illegal possession, he has a claim in rem, and not a personal claim, but here it is very difficult to prove ownership against the actual owner. Here it is necessary to prove: 1) the identity of a thing, an act; 2) the fact that it was in the possession of the plaintiff; 3) that it went to the actual owner in an incorrect, dishonest way. It was said above that the requirement for such an act is inextricably linked with the act itself, and therefore it would seem that in the event of destruction, extermination, or loss of the act, the consequences should be the same as, for example, what happens when a credit card is lost or destroyed. But the bearer deed is still a debt deed and, in the event of its destruction unpaid, it is clear that the debtor has not paid his debt and therefore, in the event of the accidental destruction of such a deed, the debt claim associated with it is not yet recognized as completely disappeared, but is given - for reasons of justice - the opportunity to restore it through the so-called. depreciation. In this case, the owner, who accidentally lost the paper, makes an announcement about this in front of the place that issued it, with the value N, and in addition, a public announcement in the statements. It may happen that a deed lost by one person came into the possession of another, in good faith or in bad faith. Then, if the act behind this N or the coupon is presented for payment, then the credit institution has the right to withhold payment. The question of the right to paper is resolved by the court. If the act is truly lost forever, then no one presents it, despite the public announcement. In this case, after the expiration of the due period, the assumption of depreciation of the deed is approved, the court declares it depreciated, and the debtor issues a new deed to the declarer for the same amount. This procedure serves to ensure that the debtor does not have to pay in two hands. We have in circulation a lot of debt securities, registered and unnamed, issued both by the state, its bank, and by private banks and companies, according to their charters. Some of them can only be registered, others only to bearer, others can be issued in both forms. Tickets of the state commission for the repayment of debts, personalized, with the possibility of transfer by transfer according to the books of the commission (Constitution of Credit. Section II, Art. 63, 78, 82–103). State continuous-income tickets (Established in 1859), personal and bearer. The first are transferred by personal signature or by transfer according to the books of the debt repayment commission. State five percent notes (Establishment of 1859), named and unnamed. The first ones can be transferred using a blank inscription with its appearance and in the case of such transfer they turn into nameless ones. State four-percent metal notes (Established in 1860), payable to bearer. Five percent domestic loan with winnings, to bearer. Tickets for cash deposits accepted by government, public and private banks. They are registered and transferred with translation according to the bank’s books. Mortgage sheets of land loan societies. They can be registered and to the bearer or only to the bearer. Personalized ones are transferred according to an inscription certified by the bank. Shares of joint stock companies. According to the general charter of these companies (Article 2160 of the Civil Code), they are allowed to issue only one type of shares - with a name. But subsequently, by the charters of new joint-stock companies since 1857, so many exceptions were made to this rule that it should already be considered invalid. Companies are allowed to issue registered or bearer shares, while other companies issue shares only to bearer. Registered shares are transferred by an inscription with a mark in the books of the board. – Temporary certificates issued in advance when subscribing to shares are personal and can be transferred only after payment for the first term. Bonds are also registered. In addition to joint stock companies, there are companies based on shares. The representative of the share is a share sheet, also registered. Its transfer is made simply by an inscription between the shareholders, and the transfer in the name of outsiders must be transferred according to the books, sometimes with the right of first refusal for other shareholders. For many of the above papers, the law and charters allow the right to depreciate or restore the sheet in the event of its loss or destruction. For this purpose, a special procedure is indicated for reporting loss, publishing and issuing a new sheet upon expiration of the required period after publication (18, 12 months, etc.). Depreciation is sometimes allowed not only for registered papers, but also for unnamed ones, under special conditions when they were destroyed due to unfortunate events, for example, fire, flood, etc. Rights of this kind are established for debt repayment commission tickets, for continuous-income, five percent, registered mortgage sheets, for tickets issued by private banks. A special rule was established regarding coupons (Vol. IX of the Constitution of Credit. Section II, appendix to Article 82, edition of 1893). The use in payments of such coupons, the payment period of which has not yet been clarified, and any transactions on coupons for which the flow of interest has not yet begun is prohibited. Interest-bearing securities with cut off coupons of such terms for which the flow of interest has not begun are not subject to free circulation. In 1893 An exception has been made to this rule for the payment of customs duties. In the case of Liberman St. Petersburg. The chamber judged on the coupons presented for payment from the shares of the community. The plane is that although payment for them must be made to every bearer, without examining his right; but this power of such papers does not force the debtor to pay even when the bearer’s bad faith possession is clearly revealed upon the very presentation of the paper for payment. In the present case, it was discovered that the coupon numbers presented were stolen (see Cass. decision 1871, No. 309). The decision of the Senate in the case of Prince. Golitsina recognized that tickets of state credit institutions constitute movable property in themselves, and the location of the value they represent is determined by the location of these tickets, and not the amounts for which they were issued. In the Blagodarev case, another decision recognized that when on the ticket itself, an unnamed order of public charity, there are no obstacles to its transfer from hand to hand, the contract concluded on this subject by the owner of the ticket with the obligation not to sell it to anyone could not be binding on third parties to whom that ticket reached, and did not serve as an obstacle to the order to issue money for the tickets (see Zh. M. Yu. 1859, November). From what time is the issue of shares considered completed? Decision 4 Dep. Senate on May 27, 1876, in the case of gr. Adlerberg answers: from the minute when they a) turned from a piece of paper into monetary value and b) when they became available to the public. These two points may not coincide. It happens that shares have not yet appeared on the stock exchange, but are already accepted as collateral, and in other cases the opposite happens. An essential condition for the recognition of shares as issued is their issuance from the institution in charge of the enterprise in exchange for the capital contributed to the enterprise: at this moment they receive trading value, and not upon entering the market or exchange, which may or may not follow. Any claim against the owners of tickets with blank inscriptions, when there is no dispute about forgery in the inscriptions themselves, shakes public credit and restricts the freedom of monetary circulation through these tickets (Sb. Sen. Resolution I, 452). Opinion State. Sov. May 17, 1865 establishes that state 5% tickets can be nameless, the ticket holder is recognized as their owner, and announcements of their loss are not accepted. Article 1512 is correctly applied to a winning ticket purchased not known to be stolen. Zach. Citizen (Cass. decision 1878, N 111). § 32. Change in the persons of the creditor and debtor. - Delegation. - Expromition. – Responsibility for other persons. – Cases of this kind are according to Russian law. A change in the persons of the creditor and debtor may occur as a result of a special contractual agreement of one or the other party with a third party, by virtue of which the third party assumes the right or responsibility, or participation in both. Contractual relations of this kind constitute the content of special institutions. The debtor can sometimes substitute another person in his place, placing liability on him, or the creditor can substitute another person in his place, transferring the claim or receipt of the debt to him. This is called in Roman law delegation (delegatio), or the transfer of a debt and claim from one person (delegans) to another who was not previously involved in the contract (delegatus - successor in performance or debt, delegatarius - successor in performance or duty, delegatarius - successor in claim). The delegation accepts the form of offset in fulfillment of the previous agreement; so, for example a third party assumes the debt instead of the direct debtor due to the fact that he himself is in debt to him and, in offset of this debt, transfers his debt to himself; a third party assumes the right of collection from the creditor due to the fact that he himself has a claim against this creditor and, in offset of this claim, transfers to himself the right of collection belonging to his debtor. Thus, through delegation, some relationships are extinguished and, in their place, others are established, with a change of persons. Delegation is an agreement between the creditor and the debtor, by virtue of which the debtor substitutes a third party in his place, from whom he must receive satisfaction for the obligation. But sometimes the creditor himself enters into an agreement with a third party that the third party assumes the debt for the original debtor. This agreement is possible without the participation of the debtor himself and in Roman law bears the special name of expromission (expromissio). Delegation is always associated with an exchange or set-off of previous obligations, while the purpose of expromission is solely to free the original debtor from an obligatory relationship with the creditor. Expromission, i.e. taking the place of the debtor constitutes only one type of the general concept of intercession for the debtor, interventio, and in the system of Roman law belonged to the so-called. intercessio privata (decisive intervention). In addition, joint intervention (interc. cumulativa) was also known, in which the debtor is not completely released from liability, but a third party begins to share responsibility with him to the creditor and thereby reinforces the debtor’s credit. This includes cases of suretyship, joining a third party to someone else's debt as a joint debtor (correus debendi) and securing someone else's debt with their own collateral (constitutum debiti alieni). The most important of these three types is surety, which will be discussed in more detail separately. And regardless of the contract, some persons, due to special personal relationships with the debtor or with the person guilty of the responsible action, are held accountable for it. In this sense, parents are responsible for their children, guardians for their pets, gentlemen for their servants, masters for their clerks, and believers for their attorneys. Responsibility of this kind, asserted on the special relationship of authority, trust, commission, served in Roman law as the basis for a special class of claims known as actiones adjectitiae qualitatis (this included: actio guod jussu, act. institoria, against the owner for acting on orders, de peculio and tributoria, against the father for the son, act. exercitoria, against the shipowner, act. de in rem verso, for actions in favor of the owner committed by a third party). According to our law, the following are subject to liability of this kind: parents, for harm and loss caused by young children (Civil Law 653, 686); for debts of unseparated children made with their consent or authority (184–187); guardians and guards for minors and the insane (654); masters and believers for the actions of servants and attorneys committed by order and instruction (687); concealers of the crime and those who knew about the criminal intent, but did not take measures against it (652, 654); society for its members, such as: for pilots (Put. Communications. 275; Establishment. Trade. 318, 320, 321). There are also indications of the responsibility of the supplier of ship workers for the people he supplies (Put. Communication 351); commercial court, for the inadequacy of the guarantee it accepted (Const. Court. Torg. 402). Within the limits of his legal duties for managing the estate, the guardian is not deprived of the right to enter into contractual relations with third parties in order to maintain and improve the estate, extract income from it, develop the economy, pay debts, and these agreements remain in force until the term, regardless of the existence or termination of guardianship. On the contrary, when the guardian’s agreement does not arise from the duties of managing the estate (in this case it was an agreement with the owner on behalf of a minor on the amount of a portion of his income), its obligation to manage it continues only as long as the guardianship exists (Cass. decision 1877, No. 332). In the Eastern case (Cass. decide. 1877, N 370), the goods, for the loss of which compensation was sought on the railroad, were sent by the owner through an employee, and the railroad management, objecting to the claim, argued that the invoice indicating responsibility for the tariff served as an agreement between the sender and the railroad, and the plaintiff argued that his employee was not authorized to conclude the contract. The Senate reasoned that the responsibility of the master for the servant, according to the force of Art. 687. Zach. Civil., occurs when the servant acted under orders and authority, and in the present case the servant was entrusted only with sending the goods without concluding a contract. A person employed in an office and sent on an errand cannot be considered a third party; and therefore the action performed by him on this assignment (acceptance of the forest under the contract), although without formal authorization, if it became known to the owner and was not refuted by him, is considered obligatory for the owner (2 Sat. Sen. Resolution I, No. 202). The relationship under a personal rental agreement between the owner and the mercenary imposes on the latter the obligation to be the representative of the owner, according to the instructions assigned to him (Cass. decision 1871, No. 602). Regardless of the formal power of attorney, there may be cases in which one person, being in an official relationship with another, takes, with his will and consent, an action to protect his interests and for the benefit of the entrusted property; in such cases, depending on the circumstances, the actions of the official, since it is clear that they were not arbitrary, but were approved by the consent or order of the owner and did not tend to harm him, can be recognized as mandatory for this latter. On managers, clerks and servants (Cass. decision 1870, N 635, 1384). By virtue of Art. 705 Est. Bargain. (corresponding to Article 24 of the Establishment of Trade, ed. 1893) the owner of the shop is subject, in relation to third parties, buyers, to liability for the clerk, although he does not have a formal power of attorney, if the clerk acted by virtue of the owner's permission, order, with his knowledge and will (Cass. decision 1870, No. 321). When it turns out that the owner (687 and 2235 art.) could not prevent the act that caused harm or loss, or that the losses were not caused by his order, then only the perpetrators themselves are held accountable (Cass. decision 1869, N 1073). A claim for damages due to neglect is civil and does not depend on the discovery of the person directly at fault (Cass. decision 1869, No. 1085). Responsibility for poisoning is placed not on the persons directly responsible for neglecting the livestock, but on the owner of that livestock (Cass. Resolution 1871, No. 529). In the Byrd case (J.M.Yu. 1862, No. 10), the skipper, who did not take measures to safely tow the ship, was found liable for losses incurred by the owner of the ship. But the tug belonged to Byrd, from whom it was hired, and the question arose in the case about Bird's responsibility for the skipper in the event of the latter's insolvency. The Minister of Justice denied this responsibility due to the fact that it was not mentioned in the domestic tenancy agreement and that no formal agreement was concluded. But Mr. Sov., by force of 802 and 803 art. Est. Bargain. (ed. 1857) placed the liability on Byrd no more than the price of the tug itself. For the actions of the waterman, from which losses resulted in a collision with another barge, he is liable within the meaning of Art. 687. the owner of the vessel, who gave him the assignment: he does not have the right to transfer responsibility from himself to the waterman himself (Sb. Sen. decision IV, No. 876). A craftsman who has accepted a thing from a private person for a nominal fee for alteration, repair, etc., is liable in the event of the loss of the thing by his worker or to strangers, if it turns out that the loss resulted from his negligence, negligence or imprudence (Cass. decision 1871, 1161). According to Art. 687 the owner of the hotel is not unconditionally liable for the theft, but since it is clear that the loss was due to the fault of his servants, who acted on his instructions and in accordance with his orders (Cass. decision 1871, No. 1048). But in the decision of 1874, No. 765, it is explained that this responsibility is of a kind and differs from responsibility for the omissions of servants. Appendix to the ninth chapter. General concepts about a bill of exchange (Wechsel, letter de change, bill of exchange). – Payments by offset. - Bill of exchange. - Its origin, bill custom and bill law. – Legal essence of a bill of exchange transaction. - Form. – Persons involved. - Bill of exchange. – Samples of bills of exchange. – Presentation and acceptance. – Protest of non-acceptance and non-payment. - Reverse requirement. - Mediators for honor. – Payment before the due date and accounting transaction. – Restoration of a lost bill. Promissory note and its differences. Between persons who have mutual business accounts in one place, payments can be made not in cash, but through the offset of mutual claims (scontratio), so that only a small part of the total amount remains to be supplemented in cash. Similarly, with greater benefit for the business (i.e., eliminating the hassle and costs of sending and transferring money), the same calculations are made between different more or less remote areas. The following example can serve to explain this operation: Ivan owes Peter 2000 rubles. Semyon owes Peter 5,000 rubles. Peter owes Ilya 6,000 rubles. Ilya owes Ivan 3,000 rubles. Total - 26,000 rubles. Ivan must give 6,000 rubles in two hands, and receive 3,000 from Ilya; instead, he transfers his demand to Semyon, instructing Ilya to give Semyon 3000 for him; then supplements Semyon with 1000 rubles in cash. and pays Peter 2000. Peter owes Ilya 6000, and has to receive 5000 from Semyon: so, he instructs Semyon to pay 5000 to Ilya, supplementing the last of his with the remaining 1000. But just as Ilya himself owes Semyon 7000, Semyon, instead of payment, will count 5000 as his debt and only pays the remaining 2000 in cash. Thus, to pay off debt accounts of 26,000, only 9,000 rubles were required. But it may be necessary even less if, for example. Peter, instead of receiving 2000 from Ivan, will receive only 1000, and will put the other 1000 to offset his debt to Ilya by transferring it to Ivan. Ivan will not have to pay it in cash, since Ilya himself owes him 3,000. In this way in large shopping centers, e.g. in London, payments for huge sums are made quickly and conveniently, using the smallest amount of cash. For this purpose, many commercial firms send their clerks at a certain hour every day to a bank special for such operations (clearing house). The clerk brings with him bills of exchange from other companies that fell due that day, and a settlement is made between relative bills of exchange, leading to the simplest result. Ivan in St. Petersburg has to receive 1000 from Peter in Odessa, and Semyon must also pay 1000. Instead of double transfer from one place to another, Ivan instructs his debtor in Odessa Peter to pay Semyon 1000 rubles. Another example: Ivan in Moscow has to receive 1000 from Peter in Odessa, but must pay Semyon in Moscow also at least 1000; but Semyon must pay the same amount to Nikolai in Odessa. In this case, Ivan, by agreement with Semyon, instructs Peter to pay 1000 to whomever Semyon orders. In this sense, a letter is written addressed to Peter and given to Semyon, and Semyon gives it to Nikolai, who receives money from Peter: thus, four persons settled their mutual claims for 1000 with one payment of this amount instead of four payments in cash. Another example: Ivan in Kharkov has to receive 1000 from Peter in Moscow, and he himself also owes 1000 to Semyon in Kharkov: Semyon, in turn, owes 1000 to Ilya in St. Petersburg. In this case, Semyon can make payment to his creditor Ilya for the letters of transfer received from Ivan to Peter in Moscow. But Ilya, without demanding cash payment from Peter, can use this letter to pay his creditor in Moscow, and transfers this transfer to Peter to him. But it may also happen that Fyodor, who lives in St. Petersburg, having the need to pay 1000 in Moscow, asks Ilya to give him a letter of transfer to Moscow. Or it may happen that Fedor, to whom the letter of transfer was assigned, transfers it (as payment) to his creditor in Kostroma Alexey, Alexey transfers it to his creditor in Saratov Kuzma, etc.; the latter, having Alexander’s creditor in Moscow, sends it to Alexander, to whom Peter pays the money. Thus, mutual claims between Ivan and Peter, Semyon, Ilya, Fedor, Alexey, Kuzma, Alexander, etc. are repaid by transfers instead of cash payments. Payment transfers of this kind themselves represent a convenient means of payment; but this means acquires special significance from the fact that with such transfers is connected the faithfulness of the calculation for receipt. In this case, the transfer of payment becomes like a paper token of value that has free circulation between traders. This is the meaning of the bill 14. Fidelity of payment is achieved by strict bill of exchange custom and is strengthened by strict bill of exchange law. Custom connects the concept of honor and wealth with the sure prompt payment of a bill; the law establishes strict liability for non-payment, not only property, but also personal. The one who, having a money transfer in his hands, transferred it to another person, is responsible not only to him, but also to everyone to whom the transfer goes through him, in the fidelity of payment; and the payer himself, i.e. the person to whom the transfer is written, if he has recognized his obligation to pay thereunder, is responsible for the urgent payment with his person and property. With such faithfulness of payment and collection, the bill becomes a sign of value capable of accounting; those. each time it passes from hand to hand, an exchange is made between the transmitter and the acquirer, an exchange of determinative value, which at a given moment can be calculated or taken into account based on the timing of payment and the identity of the payer. So, a bill of exchange can be not only an instrument of payment, but also a subject of price or sale. In the first case, the transferor of the bill does not intend to make any profit in the transfer; in the latter case, he can count on profit: hence the special kind of trade of bill bankers, in whose hands the bill becomes a commodity acquired (through accounting) for the sake of profit from such an operation. Bankers in different localities, by mutual agreement, issue bills of exchange to each other, which can be purchased by anyone who needs to transfer payment to a known place; Moreover, a certain percentage, or so-called provision, is charged for mediation. The banker opens a loan for some individuals, issuing them, as needed (prior to settlement), letters of transfer for payments in one or another area where these individuals do not have cash reserves. Origin of the bill. The bill originated from banking or exchange business. It dates back to the Middle Ages, as a means of solving difficulties arising from the extreme diversity and uncertainty of monetary values. At that time, coinage constituted a regalia, which, like all other regalia, was fragmented into countless private feudal rights and privileges. Each private power, vested with this right as fief, sought to use it for profit, in its possessions, raising the imaginary or statutory value of the issued coin. Land owners put into mandatory circulation a lot of thin, low-grade coins, which outside their possession were completely deprived of value or were accepted for a low price. Hence, it became extremely difficult for merchants when they had to make payments in someone else’s coin in a foreign city. In the absence of constant and correct trade communication, and with the dangers to which trade routes were exposed, trade exchange was facilitated only by the establishment of temporary trades or fairs in all significant cities, where caravans of merchants with goods and money gathered for exchange, under guard. Here merchants came to the aid of the traders, keeping a stock of current coins for exchange, and this trade soon turned out to be so profitable that it became the subject of special trade. In Italian trading markets, changing tables appeared (banca - hence banketarii - bankers, or cambsores, money changers, from the word cambiare - to change) with various kinds of coins required in trade. These money changers (the beginnings of modern banks) either belonged to the market, or came to it with a caravan of out-of-town merchants. And when the money changers of different cities entered into a credit agreement among themselves, it turned out to be possible, instead of difficult and dangerous transfers with money from one market to another, to exchange in writing, through offsets and transfers. This is the origin of the bill. A Genoese merchant, having bought silk somewhere in Pisa at a silk fair, must pay for it on the eve of the close of trading in Pisan money. Instead, he issues to the seller a letter with an order to the famous Genoese money changer (who is connected with the seller's Pisan money changer) to pay the seller (or his money changer) such and such an amount. Here is a type of bill of exchange. Or - a Genoese merchant needs to pay in Pisa in Pisan money for the purchased goods. He entrusts this to a money changer who is leaving with a caravan to Pisa, and gives him a written undertaking to pay him the corresponding amount in Genoa, in Genoese money with interest and provisions. Here is a sample promissory note. In the first case - a transfer or order to pay, in the latter case - an obligation to pay. Currency is represented – in the first case by a commodity, in the latter – by a coin. The persons involved in the bill are identified - the drawer, the holder, the payer. Little by little, the trade need added another person to them - the inscriber. A Pisan seller, having no relations with anyone in Genoa and not having the opportunity to go there himself, finds in Pisa a money changer or another merchant traveling to Genoa or having connections and relations there: he gives him his bill of exchange and writes on the back an order: instead of me, pay so-and-so. Naturally, at first such an inscription was nothing more than an endorsement or trust, but little by little it had to be expressed in a full endorsement, and the transfer itself was connected with the repayment of a debt, instead of a payment from the scribe to the purchaser of the bill. The spread of this bill form was greatly facilitated by the fact that church and civil laws, which did not recognize interest-bearing loans, recognized the bill transaction. A bill of exchange transaction received the form of an abstract obligation, in which a debt for a certain amount was represented as a clear and unconditional demand, regardless of any search for the motive of its origin. With the spread of the bill form, a custom-established law of bill relations was formed in shopping centers, with special jurisdiction and forms of strict and speedy collection. One custom serves to protect the law of exchange: centuries passed until its first written charter appeared in Bologna in 1569; in Germany, the first charter appeared in 1621. Since then, statutes on bills of exchange have appeared in all legislation, and an extensive and developed doctrine of bill law has emerged. One of the new acts of bill of exchange legislation is the all-German bill of exchange charter published in 1847. In Russia, the bill of exchange charter was published in 1729, and now the charter of 1832 is in force, which is supposed to be revised. See about this in Pachman: History of Codification, T. I, p. 251 and T. II, p. 275. Lawyers of old times argued a lot about which of the forms of obligation known in Roman law should include a bill of exchange: it was seen as a purchase and sale, a mandate or an order, a transaction for transfer or delivery, a guarantee, and, finally, a community. Rumors about the legal nature of the bill of exchange transaction have continued until our time and are not yet completely concluded. They were greatly advanced by the work of Einert published in 1839 (das Wechselrecht nach dem Bedürffnisse des XIX Jahrhunderts. Leipz.). This essay identifies three distinctive features of a bill of exchange transaction: 1) the decisive abstraction of the debt from its motivating cause; 2) the independence of the right belonging to each of the bill holders, expressed in the fact that against each of them objections relating personally to his predecessors in writing are invalid; 3) one-sided origin of the bill. According to the author, a bill obligation arises regardless of the exchange of values ​​and the contract by a unilateral act of the drawer. This last position is thoroughly refuted by authoritative writers in science (Thöl, Bluntschli, Renaud, Gerber). They rightly prove that the bill in no way constitutes an exception to the general contractual order. A bill of exchange is not a credit paper with a mandatory exchange rate. It serves the debtor as an instrument of payment, subject to the indispensable condition of acceptance by the creditor. Otherwise, the bill would remain a failed attempt, which is what happens when the drawer or payer becomes insolvent: then no one will accept the bill in payment. A bill, in the newest meaning, is an abstract formal obligation for money, established through writing, issuance and acceptance (see Dr. Felix Dahn. Handelsrechtliche Vortäge. Leipz. 1875). A written obligation to which promissory note is assigned must bear the name of a bill of exchange (this rule is not accepted everywhere, however; in England, for example, and in France it is not required). A bill written by transfer for payment to a third party is called transferable (gezogene, trassirte W., Tratte); a bill written for payment to the drawer himself is called simple (eigene, trockene W.). The bill can be written to a person living in the same place or in another place (Platzwechsel, Distancewechsel). French law understands a bill of exchange in the sense of a transfer given to another place (la lettre de change est tirée d'un lien à un autre). Persons participating in the bill. He who issues a bill with his signature is the drawer (Aussteller, Trassant, tireur), the one to whom it is delivered and by whom it is accepted, or to whom it is transferred and assigned, is the holder of the bill (Wechselnehmer or Remittent), for he has the right to present it to whomever is due for payment; the one to whom it is issued or addressed for payment is the payer (der Bezogene, Trassat, accepteur); the one who presents the bill of exchange for payment on the spot is the bearer (Vorzeiger, Präsentant, porteur). A bill of exchange does not require appearance when issued, but its validity as a bill of exchange depends on certain essential accessories; are as follows: the designation of the bill, the time of issue, the amount, the time of payment, the person to whom the payment should be made and who should pay, the place of payment and the signature. In addition, it is indicated in the bill - whether the currency was received, whether the bill was issued at one’s own expense or at someone else’s expense; whether a notification letter (avis) was sent to the payer. The due date for payment is indicated either by a calendar account, or upon presentation - in so many days (a vista, Sichtwechsel), or according to custom (Usowechsel), or at a fair. Legal grace days or so-called grace days are counted towards the deadline. According to custom, a bill signifies the receipt or offset of currency or value serving as the subject of exchange (currency received, currency in goods, currency on account, currency between us, etc.). The designation of currency is required by many legislations (French), but others (German) do not require this, suggesting the receipt or exchange of currency in any case. A bill of exchange can be issued in several samples, identical in content; but there may be a bill in one sample (Solawechsel). Each of several samples is marked with its number (prima, secunda, tertia, etc.); but they all represent one bill, and when one is paid, the rest are no longer valid. Therefore, in each sample it is written: pay my first, second, third, etc. bill according to this. – This reproduction of bill samples was established for the convenience of bill circulation and to ensure the bill against loss (for example, when sent to a distant land). One sample can be sent to the place of payment for presentation for acceptance through an authorized person (and a note can be made on it: acceptance for acceptance by such and such). Another sample, remaining with the holder of the bill, is put into circulation by him, i.e. follows the inscriptions from hand to hand. The last holder can then receive on the spot from the bearer the first sample with the inscription of acceptance on the due date. A bill of exchange necessarily requires acceptance, because it is written to a third party who did not directly participate in the transaction between the drawer and the holder of the bill, and this transaction becomes binding on the third party, the payer, only from the minute he confirms or accepts the transfer made to him. This is acceptance or acceptance, through an inscription. The time for presenting a bill of exchange is determined differently. Other legislation (Russian, Ust. Vekseln. 31) obliges the bill to be presented immediately upon receipt at the payer’s place of residence. In general, in urgent bills, the calendar day of the due date indicates when the bill should be presented for acceptance: it is obvious that the presentation of a bill after the deadline violates the essential condition of any bill of exchange transaction, for the mutual credit on which it is based, with the expectation of the values ​​held by the payer and the mutual solvency, is inextricably linked with strict adherence to deadlines. But in bills written for payment at sight, it seems necessary to determine the deadline for presentation: if it were not known and the bill, at the discretion of the holders, could remain in circulation for an indefinite time, this would pose a considerable danger both for the drawer and for any holder, with an increasing risk from the possible insolvency of both the payer and the previous signers. Therefore, the law determines the deadline for presenting such bills for acceptance (we have 12 months, in the German statute two years from the time of issue). Upon presentation, feedback on acceptance must be given immediately or within the required short period of time (24 hours). The payer is not necessarily obliged to accept the transfer made to him, but having accepted it, in whole or in part, he responds strictly in the sense of his response, i.e. obligated to pay the bill on time. When the bill is not accepted by the payer, this means that the assumption due to which an exchange of values ​​took place between the persons participating in the conclusion and transfer of the transaction was not realized; the exchange, therefore, was made for nothing, the original transaction is destroyed, and what cannot be reimbursed from the payer of the bill must be reimbursed to the last holder of the bill from the one with whom he dealt - or, anyway, from whomever it was from whom the bill was exchanged as a real value. The same consequence occurs in cases where the accepted bill was not paid on time. A bill holder who has been deceived in his calculation has the right to reclaim the latter and all previous signers. But in order to protect this right, it is necessary that he has in his hands direct and decisive confirmation that he did not miss anything in the statement of his demand and, having not received the expected satisfaction according to it, was deceived in the calculation. The certificate is the so-called protest. As soon as the bill is not accepted or not paid on time, the bearer makes a protest through a notary by means of a written act, which indicates that acceptance has not followed, and the amount of the debt with interest and costs is calculated. The protest must be made in advance, no further than the multiple period allowed by law, for the most part no later than the next day of delay. When the holder of the bill is late to protest the bill due to delay, the fear of non-payment passes to him if the payer meanwhile becomes insolvent, having been wealthy at the very date of the bill. By force of a protest in the non-acceptance of a bill or in the event of the insolvency of the one who accepted the bill, the holder of the bill acquires the right to demand from one of the signers or the drawer - security for payment for the period on that bill, and with the onset of the term (as well as upon a protest of non-payment) he receives the right of recourse against one of the previous holders of the bill whom he chooses, since all of them collectively respond to him in the correctness of payment. Having contacted one and not receiving payment, he protests and turns to the next, etc. According to the bill laws of the previous time, such a requirement could ascend in a sequential order from one inscriber to another previous one only in a row and without interruption, but the new statutes allow it to be addressed to anyone, bypassing intermediary inscribers (der spingende Regress), with the fact that all missed inscribers are already exempt from liability. In the event that the bill is not accepted by the designated payer, it may, in addition, indicate one or more persons to whom the holder of the bill can apply to accept the bill for the honor of the drawer or signer (intermediary for honor, interveniens, Ehrenacceptant). His liability is conditional: he is responsible in such a case when the direct payer does not make payment on time, and having paid, he has the right to demand satisfaction both from the one for whose honor he paid, and from all previous inscribers. Intermediaries can also be appointed in case of non-payment (payment for honor, Ehrenzahlung); The holder of the bill is in any case obliged to accept payment for honor offered to him by an outsider, even if not indicated on the bill. Payment on a bill of exchange can be made earlier than the due date, firstly, when a third party acquires the bill, accepting it for accounting (disconto), i.e. pay for it minus interest due on the amount before the due date 15; secondly, when the payer himself, having accepted the bill, offers to make payment on it ahead of time. By sheer severity, the payer in such cases pays at his own peril and the bearer also accepts payment at his own peril: this is directly expressed in many bill of exchange charters. For example, if a bill of exchange is presented for payment by a commission agent, crediting payments to the cash desk (in casso) to the account of the principal, and the commission agent, before settling with his principal, becomes insolvent, then the payer may be liable to the bill holder for the loss, due to the fact that he made the payment at his own risk ahead of time. In the event of loss of a bill of exchange, title must, of necessity, yield to the claims of the bill of exchange's credit. A demand for a bill of exchange is made only with the document in hand; So, to the fullest extent of the law, the one who loses the bill loses the claim at the same time. If the owner of the bill document encountered an obstacle in his claim from a third party, calling himself the true owner of the claim, on that very bill, then bill circulation would be deprived of the firm certainty that is necessary for it, and recovery, which is essentially clear and indisputable, would be complicated by the possibility of intricate and lengthy processes regarding the right to the bill. Nevertheless, the loss of a bill causes the owner his loss when a third party receives payment on the bill, and therefore bill charters provide such an owner, as an exception, with ways to avert the loss and to restore the direct relationship in which he stands on the lost bill to well-known persons who participated in that bill. These methods consist in preventing payment to a third party who can appear with the bill on the part of the payer, in restoring the document, or, if this is impossible, in providing the owner with the opportunity to exercise his right without the document. When the lost bill has already been accepted, the loser is given the power to declare the loss subject to begin the procedure for amortization of the bill and immediately notify the party involved in the bill. Then he has the right, at the time of payment, to demand it from the payer, with the latter’s security, in case a third party appears with the original document, while the court resolves the dispute between the claimant of the loss and the third-party bill holder, whether this latter can be recognized as a bona fide purchaser of the bill. Such a right is granted to the claimant of loss only against the payer who accepted the bill; but he does not have a contrary claim against the other participating persons, since he cannot present them with a genuine document of protest. If the lost bill has not yet been accepted, then the matter can be corrected by means of a duplicate (seconds, thirds, etc.); the claimant of the loss applies for it to his predecessor, and the latter to his, etc. Before the first drawer from whom the duplicate is received, the inscriptions on it are restored, and then the payer makes acceptance and payment without fear based on such a document. A promissory note is a direct debt obligation from one person to another, using the right of exchange. Many legislations (for example, French, English, Italian) allow only bills of exchange, but do not know simple ones. In its content, it represents a completely completed transaction between two persons, one of whom is the drawer (debtor, who is also the payer), and the other is the holder of the bill (creditor), in whose place, as in a bill of exchange, successors freely enter into blank inscriptions. And since here the payer is identical with the drawer, a promissory note does not require prior acceptance. Deferment of a promissory note is allowed freely while it is still in the hands of the first holder of the bill. A protest against non-payment of a promissory note is essential only in those cases where the bill has changed hands and non-payment may result in a contrary demand. With a promissory note, even if it has passed into other hands, payment can be freely made ahead of the due date; for there are no reasons preventing this, such as are encountered when paying a bill of exchange. Chapter ten. Validity of the agreement on a third party who did not participate in it § 33. Effect of the contract on a third party. – The rights of third parties defined in the contract, and establishing their connection with the contracting parties. It happens that an agreement between the parties establishes a condition in favor of a third party or assigns the obligation of performance to a third party who did not participate in this agreement by direct action of will and did not give either party the authority to act in its own person and on its own behalf when concluding the agreement. For example, Ivan agreed with Peter that Sergei would pay Peter such and such an amount, or, conversely, that Peter should pay Sergei, while Sergei did not participate in the agreement. Without a doubt, a duty of execution imposed on a third party, without his knowledge and will, is not obligatory for him, and a condition of this kind is invalid in relation to him. There is no confusion on this subject (cf. Savigny, Obl. R. II, 75). But if an obligation between the parties is established in favor of a third party who did not participate in the agreement, the question is: does the third party, as a result of such an agreement, acquire the right of action, the right to demand fulfillment of the obligation? Roman law answers this question in the negative, declaring such a condition void both in relation to the party obligated in favor of a third party and in relation to that third party. Such a decisive denial when applied to individual cases would be unfair, and therefore in practice deviations from it were allowed. The following position has been developed on this subject by common practice. A third party does not acquire rights of this kind under an agreement, coupled with burdens and obligations. But if only a right is granted to a third party, then he can acquire such a right together with the right of action thereunder. For this purpose, it is sufficient if a third party expresses his will and consent to accept this right by formal or informal action, and thereby joins the agreement establishing it. From this moment this right is firmly behind him and can even pass from him to his heirs, and until this moment the parties between whom the condition is concluded can change it at their own discretion, without violating the rights of a third party that he has not yet acquired. The first legislation in which this view of the relationship of a third party to a contract was expressed was Prussian. Saxon legislation subsequently expressed itself in the same sense, while others adhere to the principles of Roman law (alteri neminem stipulari posse), without denying, however, the possibility of establishing conditions in favor of a third party, so that the right of action belongs only to the one who established the condition. Our law does not contain any provisions on this subject. According to its general rule, the validity of the contract extends exclusively to the persons participating in it and their heirs; an amendment to a contract with the assignment of rights is considered invalid if done to the detriment of a third party (Articles 1543, 1547). However, cases of conditions in favor of third parties are often found in acts. When conditions of this kind have a gift-like quality, they can be subsumed under the general rule on donation, that the gift becomes irrevocable from the minute it is accepted, that the donee is allowed to refuse the gift assignment when it is combined with an aggravating condition (973-976). But conditions in favor of a third party may be based (causa) not only on the will of gift, but also on the consciousness and fulfillment of a previous obligation or existing obligation in relation to the third party, or on the transfer of a debt. It is obvious that in these cases, as well as in cases of gift property, the stipulation of a condition in favor of a third party in itself does not bind the counterparties irrevocably, and they are free to change this condition among themselves as they stipulated it, according to the general rule of Art. 1545. Zach. Civil, until the right of a third party, established by this agreement, has become an acquired right for him. Since when does it become acquired for him? The condition of gift is from the time of acceptance according to the rule of Art. 974. And the condition of any other property - in any case, from the time when a third party, having become aware of the right granted to him, begins to exercise it, i.e. makes a demand for performance to the one who is obligated to perform under the contract. In fact, does the person liable for performance under the contract have the right to object to such a requirement that the claimant, as a non-participant in the contract, does not have a personal right to claim? Such an objection would hardly be valid (of course, if the parties did not meanwhile change or destroy the conditions established between them). The guilty person assumed an obligation by the action of his free will and with a calculation, due to which the acceptance of the condition seemed interesting or beneficial to him, or profit and interest were provided to him under this condition, and the joint will of the parties affirmed the right to act or perform for the third party. At the same time, however, it cannot be denied that a third party from such an agreement should not tolerate the slightest diminution of his rights that existed before this agreement (unless he himself renounced them by subsequently positively expressing his will regarding the agreement), and his position cannot become less advantageous than it was before this agreement. I give examples that are more common. An estate is donated on the condition that the gifted person pays the due amount to a third party, or provides him with annual maintenance. It is obvious that from this act arises the right for a third party to demand execution, but if the third party, and regardless of this condition, would have by law the right to demand payments from the donor in an even larger amount, then he retains this demand completely, and if it is connected with the property that was the subject of the gift, then he can demand the destruction of the gift deed. – Parents divide the acquired property between their adult children and establish conditions in favor of minors who did not participate in the contract. In a settlement transaction, among the mutual conditions, it is necessary to pay the due amount to a third party. A third party, if this payment is based on his own independent demand, has the right not to obey this transaction and, in addition to it, turn his demand to the one to whom it essentially relates. A similar case may occur during the sale of an estate, when, for example, the buyer, taking into account the sale price, assumes payment of the seller’s personal debt to a third party. Most often, such cases occur during the division of an estate, when debts lying on the inherited estate are distributed among the heirs, in order to equalize the shares. Such a division, completed without the participation of the creditor, in no case can serve to his detriment or prejudice his rights. For the creditor it is far from all the same from whom and from what estate he has to demand satisfaction. According to the law, debts lie on the estate of the person by whom they were incurred, and the heirs are liable for the debts of the inheritance in proportion to the share that each received. So, if the distribution of debts between the heirs is unfavorable for the creditor and does not correspond to his legal rights, he has the right to refute the division, or, without being constrained by its terms, demand satisfaction from the entire inheritance: none of the heirs has the right to object to such a demand under the terms of the division. Based on these conditions, they can consider each other, and not the creditor of the deceased patrimonial owner (Law. Civil. 1259, 1547; Law. Court. Civil. 30). However, when the heir, who voluntarily accepted the obligation, himself wants to make a full settlement with the creditor according to it, the creditor does not have the right to refuse this settlement, i.e. from accepting payment. On the other hand, when it would be beneficial for the creditor to present his claim precisely to the one to whom it is referred by the terms of the division (for example, due to the insolvency of other heirs), there is no reason to deny him the right to sue, and the defendant has no reason to refer to the non-bindingness of the condition that he himself accepted. For all this, however, if the creditor did not receive full satisfaction from this person, he is not deprived of the right to turn to the other heirs, for the right of the creditor, who himself did not participate in the distribution of debts, should not suffer derogation as a result of this distribution. The right of a third party, who did not participate in the agreement, to perform under this agreement is, in any case, conditional and is asserted on his relationship to one of the parties, by virtue of which the condition in the agreement between them was decided in his favor. His obligation is also conditional, arising from the relationship to one of the parties (as, for example, the obligation of the payer in a bill of exchange). Therefore, a third party, encountering a refusal to fulfill it from the party from whom it is demanding it on the basis of its agreement with another person, must seek support for itself in the person by whom the condition was pronounced in favor of it. In 1853, Lavork transferred his participation in the farm-out until 1865 to the Podolskys, so that they would satisfy Lavork’s creditors, including Zhdanovich, under letters of loan for 1800 rubles. The Senate reasoned that Zhdanovich should have turned to the Podolskys and, in case of refusal to pay, demand satisfaction directly from the debtor through the loan letters (2 Sat. Sen. Resolution V, No. 1182). The question of the right of a third party to bring an independent claim under a contract in which he himself did not participate, but in which an obligation was established in his favor, is resolved, albeit indirectly, in Cass. decide 1873, N 1623. It is said: a third party, if his rights are positively stated in the contract (between two other persons), may demand the implementation of the contract in everything in which it concerns his interests, by an independent claim. In this case, the tax farmers of the oil fields, under an agreement with the treasury chamber, agreed to contribute part of the money annually to the benefit of the grenadier regiment, which had previously taken part in oil production. Lazarev, Danibegov and Barilusov were in a partnership company, and their agreement stipulated a condition in favor of the third party Sanasarov, that Lazarev should allocate to him the due share of his profits, in favor of the poor. Three years later, Lazarev left the company, causing a division with his comrades. Then Sanasarov began to seek from him his due share of the profits for the entire period of the company's trade. The main objection to the claim was that the plaintiff is a third party and does not have, on the basis of Articles 569 and 570. Zach. Civil, rights of action under a contract in which he was not personally involved. The Senate decided that the right of action belonged to it. The above articles show that someone who has not fulfilled his obligation under a contract can be forced to do so, but they do not say that the right to demand this compulsion depends solely on the counterparty (?) and that a third party in whose favor the rights have been negotiated, considering these rights to be violated, has no right to make such a demand. In granting a right to a third party, the incentive may be either the satisfaction of the third party under a previous obligation, or a gift intention. In this case, it depends on the third party to agree to acceptance, and from the time his consent is expressed, he is already a party to the contract and cannot, according to Article 1547, be deprived of his right at the unilateral request of the original counterparties (Cass. decision 1877, No. 372). Rodokonaki, according to a letter, sold Horni 3 tons of copper for 9 rubles. 60 kopecks, for a period. Gorny assigned the letter to Zak for 9 rubles. 78 kopecks, having received from him the difference in price of 555 rubles. Zak, having given 6 thousand rubles as a deposit according to Rodokonaki’s condition, handed over the letter to Malenberg for 11 rubles. 50 kopecks per pood, gave him a deposit of 3 thousand and was obliged to pay a penalty of 3 thousand rubles, which he had to pay and return the deposit when it turned out that Rodokonaki did not deliver the copper on time. Then Zach began to seek from Rodokonaki: 1) the return of the deposit given to him, 6 thousand rubles; 2) overpaid Horni 555 rubles; 3) the penalty paid to Malenberg was 3,000 rubles; 4) interest not received from the resale to Malenberg of 5145 rubles. The decision awarded him only the return of the deposit of 6,000 rubles. with interest and paid to Horni 555 rubles. with interest, but the rest was refused, since Rodokonaki did not participate in his terms with Malenberg; it was up to Zak himself to be liable for a penalty, and the amount of interest he lost is only guesswork and does not represent the actual losses incurred (decisions of the General Meeting of September 1865, J.M.Yu. 1866, No. 4). In the case of Khlebin and Yakovlev (Cass. decision 1878, No. 257), the Senate recognized that although the agreement is valid only for the parties involved (Articles 1528 and 569), it does not follow from this that a person who did not participate could not obtain certain rights on the basis of such an agreement. The parties can establish some rights in favor of third parties, and if a third party, by accepting what is agreed in his favor and fulfilling the conditions under which he has the right to take advantage of what has been agreed upon, expresses his consent to those obligations under the agreement that are established in his favor, then, of course, he receives the right to defend what was acquired in this way, and can, by virtue of Article 693, seek satisfaction on his behalf under such an agreement. Ivan agreed to pay Peter 400 rubles. penalties if Fedor does not clear his apartment for Peter by January 1. For the failure to rent out the apartment, Ivan paid Peter 400 rubles. and then began to exact them from Fedor. It is recognized that Fedor, who did not participate in the agreement on the penalty, is not obliged, even if he was guilty of the losses, to submit to the amount of them, which was expressed in the amount of the penalty between two other persons (Cass. decision 1871, No. 122; 1872, No. 386). Under an agreement on the alienation of property (sale of timber for felling), a third party cannot exercise his special rights to that property arising from a transaction with one of the counterparties (the buyer allowed a friend to join him), in which the other counterparty did not participate with his consent (Cass. decision 1872, No. 815). Chapter Eleven. Securing obligations § 34. Security of contracts. - Types of it. - Penalty. - Its meaning is twofold. – Penalty for malfunction and compensation of interest. – The relationship of the penalty to the further performance of the contract. At the core of every contract is the concept of mutual trust or credit. This concept includes, firstly, the calculation of the correct action of the subject public authority, the confidence that this authority will, in due time, quickly and impartially resolve any confusion and disputes that may arise and force the party evading it to fulfill the contract; secondly, trust in the individual, i.e. to the honesty and solvency of the payer or obligated person at the moment of execution. Not only the firmness of contracts, but also the very content of the terms and the use of certain types and forms of the contract depend on more or less certainty on these subjects. Greater or lesser sincerity in the relations of the parties among themselves and towards public power also depends on it. Where there is no trust or it is weak, the parties resort to indirect methods to protect themselves from risk; resort to fictitious or imaginary transactions, provide themselves with illegal risk premiums and excessive conditions. But even in the sphere of open and legal action, it is impossible to avoid the risk and calculation of accidents, which at the moment of execution may weaken him, or the natural inclination of the obligated person to evade execution or to weaken him when the time comes to perform and the execution turns out to be difficult. In this calculation, the person who owns the claim can provide himself with an additional agreement that increases the need for performance for the obligated party or brings to responsibility special, pre-arranged means and methods of performance. By this we mean, or to arouse in the party guilty of performance a special kind of fear for the malfunction and hopes for benefit from the serviceability, by establishing a penalty or bonus that is imposed for the malfunction or for delay in the execution of the contract (penalty and deposit); or – to hold a third party accountable for an executive action, so that with the help of his credit and his solvency the credit of the person directly obliged (guarantee) can be strengthened; or to approve a loan not on the obligated person, but on his property, specifically designated for this purpose (pledge and mortgage). In addition to those mentioned, there are, as usual, other ways to ensure serviceability. So, for example provision of transportation contracts through civilian cab drivers is done through the collection of passports from cab drivers until the delivery of the transport. Instead of passports, they are issued travel certificates from transport companies (cf., for example, the Establishment of the General Engine of 1869). Penalty. The subject of the contract and its main interest is the execution of the action for which the contract was concluded. It is assumed that the party awaiting execution is interested in ensuring that it follows in the form and time as agreed: to assume the contrary, i.e. to connect the interest of this party with non-fulfillment would mean giving the contract the wrong meaning and putting in it not the object that is indicated in it, but completely opposite ones. To ensure the performance specified in the contract, the penalty has a dual meaning, but in both senses it is necessarily connected with the interest of the very performance that is indicated in the contract. Firstly, it can be understood that the creditor wants, through a penalty or a pre-agreed monetary penalty, to ensure proper performance: the opposing party is forced to make great efforts to perform, since serviceability is combined, according to the condition of the penalty, with a serious disadvantage (this view of the penalty prevails in Savigny). Secondly, the creditor, realizing the disadvantage to himself and the loss from a possible malfunction or delay in performance, negotiates for himself from the other party a predetermined value of this loss or disadvantage. It is obvious that in this assumption, the interest determined by the penalty is special and corresponds not to the value and interest of the entire performance, which constitutes the subject of the main contract, but only to a malfunction in the performance that occurred at a certain moment, to an unjustified expectation of a malfunction 16. Therefore, it would be unfair to think that the penalty generally serves as compensation for the entire performance, as it was intended in the contract. According to the will and intention of the parties, there may be such an agreement between them that the obligated party is given the right at a given moment either to perform the subject action to the full force of the contract, or to exempt itself from execution and terminate the contract by paying a certain amount, which has the value of a fine or ransom; but this will be a special type of contract (multa poenitentialis, Reugeld, Wandelpön), going beyond the concept of a simple penalty. In this form, the penalty would serve (which is inconsistent with its main essence) not to strengthen, but to weaken the effect of the contract, because it would in advance provide the party evading performance with a means to decisively get rid of it. Nevertheless, agreements of this kind are usually classified as an agreement on penalties, constituting one of its types. It depends on the will and intention of the parties to give the penalty clause one or another special meaning, and in this case, determining the force of the clause depends on the interpretation of the contract. Based on the content of the contract, one can judge in what sense the penalty is stipulated, whether in the sense of a fine, forcing performance, or in the sense of compensation for the interest contained in the performance, or in the sense of a ransom, releasing from performance. For example, when the subject of the main contract is a monetary payment, and the penalty is insignificant in comparison with the whole amount, it is clear that it has the value of a penalty for delay. When the main matter is the transfer of an estate worth 100,000, and 100,000 is due for a penalty, it is natural to think that the intention was not simply to ensure the execution of penalties, but to ensure the interest of the transfer in case of non-fulfillment. When a neighbor promises me not to build a bathhouse in his garden, but to pay me 1000 for the penalty, it is natural to think that the payment of the penalty covers the entire claim, and then there is no longer any basis for demanding the demolition of the bathhouse. Failure to fulfill a contract may consist either in the absence or withholding of the entire performance, or, finally, in delay in performance, in delay. The contract on penalties may contain special conditions regarding the compliance of the penalty with these types of execution. It is obvious that if a penalty has the meaning of compensation for damage or disadvantage, then a particular failure cannot be equated with a failure as a whole, and therefore other laws (French, 1231) stipulate that it is up to the discretion of the court to reduce the penalty when the failure was only in part and not in whole. The penalty is expressed in a predetermined amount; it follows that in the collection of a penalty there is no difference in the extent of the penalty depending on the guilt or negligence of the responsible person; The calculation and recovery of damages cannot be combined with a penalty, and therefore does not depend on the choice of the person claiming - to look for a penalty, or instead to look for actual losses: only a penalty can be demanded. But the penalty covers losses only on the subject to which it is assigned within the meaning of the contract. When the demanding party is itself to blame for the fact that the performance did not follow or that the performance followed was defective and insufficient, in this case the requirement of a penalty for non-performance does not take place. Is it possible to demand both performance under the contract and penalties for non-performance? In Roman law, this issue was decided by the content of the contract, interpretation, and in case of doubt, it was assumed that either performance or a fine could be demanded. French legislation resolves the issue in the same sense. According to French law, when a penalty is imposed solely for non-performance, its collection and actual performance cannot be demanded together; in this case, the interest of fulfillment would be doubly required: one requirement is incompatible with the other. The creditor can demand either performance on the main subject of the contract, or the collection of a penalty, unless the contract stipulates that the penalty does not prevent performance. But if the penalty is imposed specifically for delay or delay, then you can demand a penalty and at the same time execution. French law distinguishes from a penalty (clause pénale, Art. 1226) the condition of payment of a certain amount for the loss (Art. 1152, forfait) from non-fulfillment of the contract; in the latter case, the creditor must be content with the agreed amount instead of performance on the subject of the main agreement. On the contrary, according to the meaning of Prussian and Austrian law, the guilty person is not exempted by paying a penalty from fulfilling the main subject of the obligation. But Prussian law says that if the creditor simply demands performance on the main subject of the contract, and, moreover, does not negotiate for himself the right to collect a penalty, then he is considered to have waived this last right. The question of whether there was actually a loss on the item with which the penalty is linked by condition should not, it seems, arise when a penalty is demanded; however, French practice allows objections of this kind to the claim (Dalloz. Repertoire. Obliga-tion. 1595). The law is silent about the extreme amount of the penalty, and the previous rules on this subject (Prussian, that the penalty should not exceed the actual interest by more than twice; Austrian, that on a loan the penalty should not exceed the legal interest) have been abolished in recent years. However, in Austrian law there is still a rule that allows the court to reduce the penalty when, in the judgment of knowledgeable people, it is excessive in comparison with the actual damage. § 35. Penalty under Russian law. – Legal and voluntary. – Penalty under contracts with the treasury. Our general rule regarding penalties is that they are collected regardless of penalties for failure to fulfill the contract itself. The contract remains in force even when the penalty is collected, unless the content of the contract had explained that it is terminated by payment of the penalty (1585). In general, the penalty is determined for a malfunction (1574). Therefore, in our case, a penalty is a type of penalty for a malfunction, and not compensation for losses, not providing for the consequences of non-fulfillment 17. In this view of penalties, our law does not entirely agree with the view of Western legislation. So, for example, in French law the main meaning of a penalty is to compensate for the damage that a party suffers from non-performance. That is why the combination of claims on the substance of the contract and for a penalty is not allowed at all (le principal et la peine. 1129 Code Napol.). With us, collection under a contract is carried out independently of the collection of a penalty, and a claim for damages from non-fulfillment may, depending on the circumstances, also take place regardless of the collection of a penalty (1585). For us, the penalty is determined either by the law itself, or by a special condition by mutual agreement of private individuals (1573). The legal penalty between private individuals is determined by borrowed obligations written for a period, without a mortgage and with a mortgage of movable property, for non-payment for a period, 3% at a time, of the entire amount of capital. Only loans secured by real estate are withdrawn from it (Law. Civil. 1575; Law. Court. Civil. 365, 602, note, 631; Pol. Recovery. Civil., Art. 451). So, loans from the treasury are not associated with a legal penalty. A penalty or penalty for malfunction is prescribed by law also for bills of exchange, when collection is carried out only by the police, at 2% not of the entire debt, but of the amount actually collected by police measures; when the case goes to a commercial court and a collection order is made by a commercial court, then 4% of the entire debt amount. This collection is made after all others. All this applies to simple bills. The law does not speak at all about penalties on bills of exchange (Ust. Vekseln. 109). From 385 art. Est. Bargain. we can conclude that under the Bodmer agreement there is also a legal penalty. The law also mentions a penalty (double premium) for a malfunction from the insurer in the marine insurance contract (Const. Torg. 587). Under contracts with the treasury, a faulty contractor or supplier is charged a penalty of 1/2% per month of the price of things determined by the contract, and from the carrier 1/2% of the freight charge, according to its amount. In no case should this fine exceed 6%. It is exacted regardless of the delay. A month is supposed to have 30 days. The holder of quitrent articles is subject to a penalty of 1/2% per month on arrears and a fine of the same amount, which should not exceed 6%. Collection of penalties and fines does not eliminate the collection of damages (Pol. Kazen. Subd. 87–90, 208; Establishment of Arr., ed. 1893, art. 71). For contracts and supplies in the military department, a penalty should be established. According to the law, it must correspond to the harm or loss that may result to the treasury from non-fulfillment of the contract; and therefore, in proportion to the risk, the amount of the penalty must be established. In any case, it should be no more than 25% and no less than 10% of the contract amount, and in wartime it can extend to a whole third of this amount (St. Military., Lent., Book XXIII, Pol. Military. Procurement. 23). To secure the penalty, special collateral is required (66–69, 77). There is no interest on the penalty (89), and since it serves in this case instead of compensation for the loss, then with the payment of the penalty the contractor is released from further performance under the contract (79). Its recovery is applied to the property of the contractor and to other people's pledges, and when there were no pledges, then to the guarantors (90). When there was no actual loss to the treasury from a defect, the penalty may be added, with the permission of the authority approving the contracts (92, 93). The collection of penalties goes to the treasury of the military department, while fines go to the state treasury (Pol. Treasury. Sub. 210). In general, under contracts with the treasury, when a contract or order relates to such items, the failure to deliver on time does not entail a government loss, then, although it is allowed not to require collateral, it is ordered to include a penalty in the contract in the amount that will be determined by mutual consent of the contracting parties (Pol. Kazen. Sub. 40). The rules on hiring rural workers (General Cross. Institution, appendix, art. 31) define a fine for workers for absenteeism - double daily wages, and a penalty for the employer for underpayment, 1/2% per day and double daily wages. The same essentially rules are established in the Regulations on Hiring for Rural Work (Vol. XII, Part 2, ed. 1893, Pol., Art. 45, 51). In private charters of industrial and commercial companies there are regulations on fines for malfunctions. These are, for example, fines from cab drivers for faulty delivery of luggage. Wed. Est. General Engine 1869. Fines from policyholders for defects in premium payments. Est. General Care 1873 According to the voluntary condition, it is generally allowed to include a penalty in the contract only in cases where it is not defined by law. Therefore, therefore, penalties cannot be established in borrowed obligations (1583). Is it possible to impose a penalty on a mortgage on real estate? Many believe that it is impossible, based on the fact that the law does not establish its penalty for mortgages (Zak. Civil. 1575), and also assuming that the law does not allow double security both through a pledge and through a penalty. But it's not fair. The law does not establish its own penalty: this does not mean that it prohibits it unconditionally by voluntary consent. The opposite follows from Art. 1583. Penalty is not at all prohibited in regular entries in case of marriage failure (1008). In other cases, the law positively prescribes the provision of a penalty in the contract. Regarding contracts with the treasury, this rule is contained in Art. 40. Floor. Kazen. Other, and with regard to contracts between private individuals, the law establishes such a rule for third parties or an agreement on the hiring of a ship for cargo (Constitution of Trade 329). However, the expression of this article must, more closely explained by the expression of the statute of 1781 “have to agree on a penalty,” hardly has a decisive meaning. In general, regarding a penalty by mutual agreement, the law does not determine beyond what measure it should not extend (1583). Only for the Chernigov and Poltava provinces it is said that the penalty cannot exceed the amount of the obligation itself (1584), and even for the third party - that the penalty on the part of the employer should not exceed the amount of carriage money and cargo remuneration to the shipowner; on the part of the shipowner should not exceed half of the cargo money and half of the cargo reward; and on the part of the participant in the ship, goods or cargo - half of his share or participation (Constitution of Trade. 330–332). The essence of penalties and hotel types. When fulfilling a condition of a penalty, it may be of practical importance to ask in what sense the condition is set: whether in the sense of remuneration for loss from faulty performance or in the sense of a penalty for evading performance. In the latter case, the concept of guilt on the part of the performer is assumed, in the first, the concept of guilt is unimportant. So, if, according to the content of the contract, the provision on a penalty can be interpreted in one sense or another exclusively, the application of the rule on a penalty in this case will depend on this. As an example, we can point to the Voitsekhovich case (Sen. 2 dept. 3 Dep. decision April 28, 1875). Voitsekhovich sold the land to Rembolovich for 1000 rubles, obliging to complete the deed upon receipt of full payment. The estate was indivisible between him and his brothers, but he did not foresee any obstacles to the division already approved by the guardianship. The contract states that it must be observed inviolably, under fear of a fine of 1,500 rubles. The entire purchase price was paid, but the deed was not completed, not through the fault of Voitsekhovich, but because the chamber did not approve the separate act. In these circumstances, Voitsekhovich offered the buyer to accept the purchase money back, but he, disagreeing, demanded a penalty. In this case, the condition of a penalty is apparently connected with a violation of the condition through the fault of the party, and has the meaning of a fine. Dec. Cass. 1875, No. 483 does not find anything illegal in the condition of a penalty for the destruction of a power of attorney before the end of the case, and recognizes that a penalty can be imposed for a violation of an obligation, regardless of whether the material benefit is directly connected or not with the action with which the penalty is associated under the contract. In the decision of 1868, N 789 Cass. Dep. The Senate admitted that under the agreement on the loan of collateral documents, the condition on the return of 74 thousand rubles, in the event of non-release of the collaterals during the grace month, in essence did not mean a penalty, but a reward for the value of the lost collaterals, therefore, when the collaterals are subsequently released, this amount is not subject to recovery. There are cases of conditional penalties, for example, to pay so much if the other party suffers losses. Here, in order to collect a penalty, it is necessary to prove that a loss of any kind has been incurred (Cass. decision 1879, No. 847). There are conditions in which it is assumed that the perpetrator of the violation must pay damages to the rightful person, without precise evidence, based on one testimony of the demanding party. Such a condition, due to its uncertainty, cannot be recognized as valid, because in its very essence it makes the measure of guilt and the measure of punishment dependent not on actual events and actions, but on personal arbitrariness (this is the so-called clause de voie parée, prohibited by French law). It is not necessary that a mortgage in arrears becomes the property of the lender instead of a penalty (Cass. decision 1868, No. 340). Complex penalty. A penalty is imposed either for delay and tardiness, or generally for faulty performance and for violation of the contract. The penalty is determined either by a known amount to be paid at once, in case of delay or delay in performance, or in the form of a periodically increasing fine for each period of time during which the delay continues, for example. for every week, for every day. In the latter case, the calculation of the penalty includes both increased liability and fear, and consideration of losses with each new delay in the expected performance. Laws cannot enter into these considerations and into the verification of interests that are associated for the parties with the correct execution (sometimes one day of delay causes enormous losses and initiates liability to third parties), and therefore it is difficult to limit the freedom of the parties to enter into such conditions, although this freedom often serves to oppress the debtor by a greedy creditor who has non-economic goals in mind; then, in essence, the penalty takes on primary significance in the contract, although in appearance it only serves as security for the main obligation. In view of this immoral meaning of complex penalties, the court in one case tried to establish such a view of the matter that where there is only one time limit and there can be a delay only once, there should be one penalty, and there cannot be many penalties for continued delay. However, the Senate did not agree with this view (Cass. decision 1872, No. 227), recognizing that the law does not establish any restrictions on this subject. In dec. Cass. 1873, No. 1332 and 1876, No. 509, it is expressed that the law does not prohibit the inclusion of a penalty in contracts in the form of periodic, overdue payments. In the Datsenko case, the Senate (2nd Sep. Resolution V, No. 2264), when discussing the collection of periodic penalties, recognized that the parties should not be responsible for such actions that do not depend on them. Therefore, the periodic penalty should be calculated by the plaintiff only on the day of filing a claim for its collection: otherwise, the guilty party would be responsible for both the slowness in legal proceedings and for the actions of the plaintiff to slow it down. Moreover, from the day the claim is filed, the relations of the counterparties also change, which become a mutual relationship of litigants, answering each other for the consequences of the process. So, the amount of the penalty calculated when the claim was filed must remain unchanged, and from that day onwards interest is calculated on this amount for the course of the litigation. By force 1585 Art. the penalty for violation of the contract is collected in the amount specified in the contract; but does not, like capital borrowed for a term, constitute a value capitalized from the time of delay. Therefore, from the time of the violation with which the penalty is associated, neither the right to collect it nor the flow of interest on it arises. The right to collect it arises from the time it is awarded, and from that time only interest is relied on for recovery (Cass. decision 1873, No. 539). Reasons for collecting a penalty. Can a legal dispute against the terms of a contract in itself be considered a violation of it and a sign of a penalty? It is necessary to distinguish on this issue: firstly, whether the contract stipulates a prohibition to bring a dispute, and, secondly, what subjects the dispute relates to. If the agreement does not contain a resolution on this, then challenging the legality of the entire agreement or some of its terms, arising from the right to appeal to the court granted to everyone, cannot be considered an illegal action, and the use of legal means of protection of rights can hardly be recognized, in itself, as a violation of private law. Anyone who brings a dispute becomes responsible to the enemy, and if the dispute turns out to be unfounded, he must compensate the enemy for costs and damages. If the contract specifically stipulates that anyone who turns to the court with a dispute against the contract or its terms must be recognized as a violator of the contract and guilty of a penalty, then this resolution, without a doubt, would have no legal meaning without relation to the essence of the dispute and its outcome. In the sense of such a condition, it should not be considered a violation of the contract that the dispute was raised at all, but rather the fact that the dispute was presented in a fanciful, empty manner, which turned out to be unfounded by a court decision. In this case, the party bringing the dispute, in addition to general liability for costs and damages, is subject, according to the terms of the contract, to special agreed liability for freely caused disturbance and interference in the implementation of the contract, i.e. payment of the penalty. There is nothing illegal in such a condition, and its purpose is completely clear. Therefore, in essence, the condition: if a dispute is raised, it should be understood in this sense: if a dispute is raised, and this dispute, according to a court decision, turns out to be unfounded. The widow of Mashkin and the brother of her deceased husband made a separate entry, by virtue of which the widow ceded her indicated part to Mashkin, and in return received lifelong possession of the estate of her deceased husband, so that upon her death this estate, with all its movable property, would pass to Mashkin. The recording stated: whoever does not resist it and violates it in any way will pay the other party 50,000 rubles. penalties. After Mashkina’s death, one of her heirs began a case in court, proving: 1) that the entire record was invalid; 2) that the movable property on Mashkina’s estate does not fall within its scope. He was denied both disputes, which gave rise to Mashkin’s reverse claim for a penalty. This claim was recognized as unfounded, since merely raising a dispute against the entire agreement or some of its terms does not in itself constitute a violation of this agreement, the content of which is limited to a positive definition of what the parties agreed to provide to each other (Mn. Gos. Sov. 1878). When a penalty is imposed for one method of performance (for example, cash payment), and performance is accepted in another method (by things), therefore the force and effect of the contract are changed by the very act of performance, then there is no reason to collect a penalty for a defect in performance (Sb. Sen. Resolution I, No. 113). When the contract positively expresses the condition for the payment of a penalty in case of violation of the contract, then there is no legal basis for conditioning the right to collect a penalty on a preliminary requirement for the execution of the contract (the case was about late rental payments) (Cass. decision 1878, No. 183). The condition for the sale of the estate was declared invalid due to the seller’s lack of the right to dispose of the estate and the invalidity of the power of attorney issued to him by his mother: nevertheless, it is necessary to collect a penalty from the seller according to the record, since the penalty is collected regardless of execution and since the seller could not have been unaware of the obstacle to the sale (Sb. Sen. decision I, No. 116). The court eliminated the penalty, reasoning that although the defendant’s actions (work to deepen water pipelines) took place, the action was not permitted by the terms, i.e. the construction of new routes for water did not take place, and questions about goals and intentions are alien to the field of civil law. The Senate, overturning this decision, decided that the chamber had adopted the wrong beginning, as if the goals and intentions of the parties did not matter in civil matters (Cass. decision 1875, N 885). According to Zhilinskaya’s promissory note, written for six months, her husband under a special condition undertook to pay the creditor a penalty if payment was not made on time. In a claim for a penalty, the question arose: should the payment deadline for a bill of exchange be considered to have occurred on the date stated on the bill of exchange, or on the last day of the deferment granted by law? The Senate (Cass. decision 1879, No. 29) decided that bills of exchange are generally assigned two terms by law: one written in the obligation, the other implied, or the period of protest for non-payment. A debtor who has not paid within the first of these terms cannot yet be considered in default, since with the expiration of the first term neither the creditor’s right to demand payment nor the debtor’s obligation to pay unconditionally arises, and by law, additional days of waiting or deferment are added to the period specified in the obligation, and the unconditional obligation to pay arises only on the last day of this deferment. The right of the drawer to make a claim to the debtor through a notary is not unconditional. According to the terms of the management of the estate and the petition, the principal is subject to a penalty if he destroys the power of attorney before the deadline. The court rejected the penalty both because of the meaning of the condition and because the law gave the principal the right to destroy the power of attorney at any time. The Senate decided that any action within the limits of its right, even if it resulted in a loss for another person, does not give him the right to demand compensation for this loss (Cass. decision 1872, N 1135). Acceptance of performance under a contract after the deadline does not deprive the right to collect a penalty for a defect and generally does not serve as a renunciation of rights associated with failure to fulfill the contract on time (Cass. decision 1871, No. 90, 249). The impossibility of performance resulting from the arbitrary action of the defendant, which served to the detriment of the plaintiff, does not exempt from the collection of a penalty (Cass. decision 1875, No. 547). In this case, the defendant justified himself by saying that he had destroyed the contract with a third party related to the fulfillment of his obligation. A defect that gives rise to the collection of a penalty is generally assumed only in relation to the performance of an obligation, and not to the use of a right. On this basis, the court's decision to collect a penalty from the counterparty was canceled because he, having been ready to receive money in payment on time, delayed accepting it (Cass. decision 1876, No. 513). The transfer of a contract does not yet mean a waiver of the contract, and therefore, where a penalty is imposed for refusal to fulfill a contract, there is no reason to collect it for the transfer (Moscow General Collection. September 1857, according to the village of Fokina). By simply transferring the counterparty does not break its connection with the other party, retaining responsibility for the consequences of the actions of its successor. Only in some cases is a decisive transfer without recourse allowed by law; but even in these cases it does not in any way imply refusal, since according to the law the possibility of transferring or assigning a claim is connected with the very form of the contract. There is no reason to collect a penalty for evasion of such an action or state, which should be considered illegal (Article 1529). So, for example, when a penalty is determined for unauthorized withdrawal from a partnership, and the partnership turns out to be invalid due to non-compliance with the rules on a trading house, then there is no basis for collecting a penalty. The relationship of the penalty to the main subject of the contract. Does a penalty have the meaning of an independent contract? Don't think. The penalty is always in connection with the main performance, with the goal of ensuring it, and therefore is directly dependent on it. It is unlikely that it loses this property only because the condition of the penalty is the subject of a separate act, and the condition of the action or performance with which the penalty is connected is established in another act. What is the significance of the separateness of acts if essentially both acts have an inseparable connection? To assign essential significance in this case to the individuality of acts would mean to give the form, completely inappropriately, the main meaning. It is obvious that where, by the nature of the main relationship, there is no penalty in execution, there can be no question of collection for the penalty. This is not the view of the Senate in Cass. decide 1867, No. 105. A separate act provides for a penalty for late payment of the mortgage, according to the period specified in the act of pledge. It subsequently turns out that the mortgage payment was deferred. The judgment of the Senate tends to the conclusion that the contract for a penalty must be enforceable in itself. – The condition of a penalty, which is essentially dependent and subordinate, may, according to the content of the contract, acquire the meaning of the main condition and have the purpose of binding the other party with fear, at a price inconsistent with the interest of the entire contract. For an example, see Cass. decide 1875, No. 620. In this case, the court recognized the contract as fictitious and invalid, and the Senate referred this reasoning to the merits of the case. The inclusion in the contract of a provision on penalties and, in general, on liability for non-fulfillment is optional and depends on the will of the parties. Therefore, regardless of such a condition, even if it did not exist, each party retains the right to demand compensation for violation or non-fulfillment of the contract (Cass. decision 1867, No. 511). The contractor undertook to build the house, starting work on April 15 and finishing by September 15; but, not being allowed to work on time, he sought a penalty from the employer. The court, having awarded a penalty, decided to oblige the contractor to then fulfill the contract. The Senate decided that the validity of the contract by the authority of the court cannot be extended beyond the contract period, and when the period has passed, the contractor cannot be forced to perform the work at another time, without a new contract (Cass. decision 1871, N 905). The penalty does not merge with the main obligation, and the collection of the penalty is separate. Therefore, there is no reason to believe that the collection of penalties on a mortgage is secured by the pledged property and is limited by its value (Cass. decision 1871, No. 231). Interest constitutes capital; the same cannot be said about a penalty, and therefore a claim for a penalty, both legalized and, even more so, agreed upon, can be brought separately from a claim for the recovery of capital or for performance of the main obligation (Cass. decision 1873, 1602). To Cass. decide 1878, No. 218 The Senate explains that the agreement on a penalty has an independent meaning and does not seem to be necessary, but an arbitrary and completely incidental condition, and therefore a penalty is not implied where it is not defined by the law itself. As a result, and since the broad interpretation of the power of attorney cannot be expanded beyond the limits to which one can in good conscience recognize the attorney as having been assigned the exact content of the authority, it cannot generally be recognized that the power of attorney for the management of an estate, with the lease, also includes the authority to conclude contracts with a penalty (Cass. decision 1878, No. 218). In the case of Wikart and Sobolev, the question arose: can a person who did not participate in the conclusion of a debt obligation, under a special condition with one of the counterparties, demand payment of a certain amount in the event of failure to fulfill the said obligation on time. This question was answered in the affirmative on the basis that the agreement between Vikart and Sobolev does not contain anything contrary to the law and the mere name of it as a forfeit receipt cannot deprive it of its independent meaning, although it was concluded regarding an obligation issued by a third party (Cass. decision 1890, No. 4). Legal penalties are due exclusively for borrowed obligations of private individuals and for obligations with the treasury (2 Coll. Sep. Resolution II, No. 430), and not in general for debt collections (1 General Coll. Sep. 1875 on the village of Petrova). By force 1574, 1575 and 1576 Art. Zach. Citizen (Art. 1576 corresponding to Art. 87 Pol. Kazen. Other edition 1887) a legal penalty is collected from the faulty contractor to the treasury; and in order to recover it from the treasury in favor of the contractor for late payments, the law does not mention this. Complaining about this, the contractor referred to Art. 641. 2 parts of X volume (ed. 1857), but he was refused (1 General Meeting of Sen. for the village of Brainina, November 29, 1876). The rule limiting the collection of a legal penalty in case of insolvency does not apply to a voluntary penalty (Cass. decision 1871, No. 159). According to the rules on hiring workers on April 1, 1863 (§ 19 and 20), a fine of 1/2 kopeck. is due for the tenant’s failure to satisfy the deadline set by the intermediary (§ 21), and double daily payment is determined, regardless of this penalty, for failure to satisfy the contract within the deadline (Cass. decision 1869, No. 40). Regardless of the penalty under the agreement, which may be included in the contract, the law establishes: a) In addition to it, if it is due, a fine of 1/2 kopeck. from a ruble per day, from the time of delay in payment of rent to workers; b) instead of it, if it is not due (and together with penalties of the first kind), double daily wages for the entire time until the final settlement. Cass. Dep. The Senate (Cass. decision. 1874, N 656) interprets, hardly correctly, that in order to protect the right to this recovery, workers must, according to the rule of § 19, first turn to the mediator and wait for him to assign the owner a new period, no more than seven days, for their satisfaction. Connection with other provisioning methods. Nothing prevents, in support of an agreement already secured in another way, from concluding a separate clause on penalties. The condition of a penalty, drawn up separately, may have independent meaning. This is expressed in solve. 1 General Collection Sep. 1874, in the Sheveleva case. Further, the decision expresses that a non-performable entry can retain its force, even if there is a change in the conditions of the original contract, and it cannot be said that any change in these conditions destroys the force of the non-performing entry. It is prohibited to include a special condition on a penalty in an agreement for which a penalty is established by law, but there is no prohibition from placing such a condition in a separate agreement, at least to secure an obligation with a legal penalty (bill, loan letter). (Cass. decision 1874 N 636; 1868, N 878; 1875, N 735. Sat. Sen. decision II, N 608). The condition of a voluntary penalty cannot be included only in such debt obligations that arose from borrowing money (Cass. decision 1872, N 1225; 1875, N 881). Just as a condition regarding the provision of a deposit is placed in the deposit receipt, a condition regarding a penalty cannot also be included in it (Cass. decision 1868, No. 347; 1877, No. 199). A simple promissory note, which does not require the collection of a legal penalty, may contain a provision for a voluntary penalty (Cass. decision 1877, No. 208). Securing contracts in several ways is not prohibited. Mortgage with penalty (Sb. Sen. decision I, 477). When a loan obligation is subject to a special contractual penalty for failure to pay on time, then the collection of it is incompatible with the collection of penalties and interest prescribed by law (Law. Court. Civil, ed. 1892, Art. 365, 602, note) (2 Sat. Sen. Resolution IV, No. 894). The condition of a penalty, as a contract, can, in turn, be secured by another condition of a penalty. The law does not prohibit this, even if both conditions were placed in the same act (Cass. decision 1874, No. 83). When collecting a legal penalty, should you also collect a contractual penalty? This question was raised in Mn. State Sov. 1853, in the village of Balashova, and then considered separately, and State. Sov. (Mn. November 11, 1853) agreed with the opinion of Ex. II Div., that the law does not allow voluntary penalties where they are determined by law; but having noticed that contractual contracts are often concluded in the treasury with a penalty of one and another kind, and the legal penalty is collected into the treasury, and the contractual one into the income of a special department, he ordered in this case to collect the contractual penalty and, having deducted the legal penalty from the amount, pay it to the treasury. Collection of a penalty does not eliminate the possibility of a further claim for damages from non-fulfillment of the contract. The law represents a penalty as a method of security: nowhere is it said that it serves as compensation for losses. The validity of the contract for a penalty does not terminate, therefore, non-fulfillment is still possible, and losses are also possible (Cass. decision 1869, No. 310). Passage to heirs. A penalty is not a personal obligation and is not related to the action of another person, but to the action or execution of the contract. Therefore, the heir of the obligated person does not have the right to excuse himself from the penalty on the grounds that he was not personally at fault, that the demand was not made to him personally, and that the extension of the penalty to the heirs was not mentioned in the contract. Wed. Cass. decide 1868, N 714; 1871, N 966. Mn. State Sov. 1878 in the Mashkin case. § 36. Deposit and its meaning. – The use of deposits in Russia. – Deposit upon sale. – At public auctions. - Under government contracts. The deposit (Arrha, Angeld, Draufgabe) serves, according to its original purpose, as a sign of a concluded or proposed transaction. It consists in the fact that one party transfers an item or a certain amount to the other in advance, as part of the transfer to be carried out in execution of the contract. Transfer to offset (Angeld) is usually assumed. In this sense (in the sense of Roman law), the deposit does not become the property of the recipient, but is subject to return upon execution of the transaction, or in the event that it does not take place. This value of the deposit changes somewhat when it is given specifically, not against the value constituting the payment under the contract, and becomes the property of the recipient; serving here as a sign of a transaction, it also serves as a security for it; if then the contract does not take place due to the fault of the party who accepted the deposit, then it must be returned even with interest and increment when required; if the one who gave the deposit is at fault, then he loses it; and if no one is at fault or both parties are at fault, the deposit is returned. This is how the deposit is understood in Prussian law; French law speaks of a deposit primarily in the case of a sale, and in this case the condition of the deposit is understood in the sense of compensation: if the contract is rejected, the one who gave the deposit loses it, and the one who accepted it returns it twice. Our legislation does not have general rules about a deposit as security for an agreement, but it speaks of a deposit in relation to various contracts, and at the same time the deposit is not assigned the same value. The deposit is mentioned in connection with the sale of movable property. This sale is usually carried out without deeds, with a single transfer of property and money for it. Here, the taking of a deposit by the seller is considered a sign of a completed contract, and therefore, in this sense, the seller is forced by the court to return the sold items. But when, as a result of a dispute about the quality of the things sold, the court finds that these things do not correspond to the conditions or samples, then the things are returned to the seller; therefore, the contract is terminated, and the seller, having taken the deposit, must only return it. Here the deposit does not have the properties of security or penalty (1513, 1518). A deposit or a deposit agreement upon the sale of real estate has a different meaning. The purchase agreement is concluded in the form of a purchase entry. At the same time, the law allows the parties to stipulate in the record the condition of the deposit paid in advance, but so that the parties immediately determine the consequences of such payment of the deposit in the event that the deed of sale does not take place (1681). But in addition to the pre-sale entry, the law also establishes the form of a special condition on the deposit to ensure a preliminary sale transaction that is not put into the form of a pre-sale entry. For this purpose, a so-called deposit receipt is drawn up. Its effect was limited, until 1877, to a six-week period. Before the expiration of this period, it was necessary either to make a bill of sale or sale note, or to present the note itself for collection. Due to the inconvenience of this short period and combined with the observance of its formalities, in 1877 it was decided (Mn. State Council. October 22, Poln. Sobr. Zak., N 57795) that the period in the deposit receipt can be set at any time, and if it is not assigned at all, then it is considered annual (Law. Civil. 1687). After its expiration, the seller, if he refuses to make a bill of sale or purchase record, must return the deposit to the buyer in double amount, and the buyer, if he refuses to purchase, only loses his deposit. The same consequences occur when, even without a direct refusal, the act will not be completed at the will of one or the other party. But when the act was not completed by mutual consent of the parties or it was impossible to complete it due to legal obstacle, then the condition is destroyed by the simple return of the deposit (1688, 1689). Here the deposit has the meaning of a penalty (pawned in advance). The deposit is of particular importance when selling at public auction. Testifying to the serious intention of the buyer to buy the estate, it at the same time has the meaning of ensuring consequences in the event of a possible penalty on the part of the buyer. The one who retained the estate at the auction and during the re-auction immediately contributes 1/10 of the announced price. Within 15 (new st. 7) days he must pay the remaining amount if the sale is approved. Otherwise, the deposit is not returned and is used to replenish the shortfall in collection, and if there is no need for it, it goes to the benefit of local public charity institutions (according to the new charter, it is added to the total amount received for the estate). Floor. Collection Gr. 282, 293, 295, 330; Est. Gr. Court. 1161, 1176. When selling movable property at auction, the buyer contributes at least 20% of the last price. The rest must be paid no later than 12 am the next day. If he does not pay, then the deposit is used to replenish the collection, and if there is no need for this, then it is transferred to the benefit of local public charity institutions (added to the total amount). When government property is sold at auction, the deposit in the latter case is unconditionally turned in favor of the treasury (Pol. Recovery. Civil. 373–375; Law. Civil. 1495; Pol. Treasury. Sub. 24, 227). A deposit has a very special significance in contracts between the treasury and private individuals on contracts, supplies, transportation, etc. Here the deposit is used in a sense that has nothing to do with security. This is a monetary assistance or allowance made by the treasury to the contractor by giving him in advance a certain part of the contract amount. This issuance is itself secured by a pledge (see contracts). Partly the same meaning, partly the meaning of security, has for us a deposit when concluding many small contracts, in which, on the one hand, there is an independent hirer or customer, on the other - a producer or worker, without capital: the latter needs some allowance in order to get up or equip for work, to acquire the necessary material, etc. 18; and the first one needs some material and at the same time moral support in fulfilling the condition or in a serious intention to fulfill it, and he wants to confuse the performer of the work. It also happens: the manufacturer needs to provide security for the customer’s serious intention to purchase what was ordered and he requires a deposit in order to retain it if the customer refuses his order. In this sense, the deposit serves as a method of concluding an agreement or as an essential accessory to contracts for personal employment, mainly for workers whom the employer engages, partly attracting, partly binding them by issuing in advance a certain part of the hired money. The law often mentions a deposit in the rules for hiring workers of various kinds. These are the makings of hiring workers for gold mines and mining operations (Ust. Mining ed. 1893, art. 666, 700, 907); ship servants (Ust. Torg. 265–268), ship workers (Ust. Put. Commun. 340), Siberian inhabitants and Mezen Samoyeds to work on ships (vol. II, ed. 1892, Pol. Foreigners, art. 38, appendix I: art. 22). See Pachman on deposit or taking: Common Law, I, p. 308. Deposit when submitting an advertisement for life insurance with an insurance company. Care (1873). If the company refuses to conclude the contract, it returns the deposit; If the policyholder does not pay the first insurance premium within the indicated period, he will lose the deposit. When the contract takes place, the deposit is credited to the premium. Our judicial practice expresses opinions that do not entirely agree on the meaning of a deposit in general. When, after receiving the deposit, the receiving party refused to fulfill the contract, then the other party, having the right to refuse the demand for performance, is not deprived of the right to demand the return of the deposit not covered by performance (Cass. decision 1874, No. 156; 1876, No. 368, 169). The loss of the deposit is established by law only for receipts for the deposit, but the effect of this law (1687 Art.) cannot be extended to sales records and various types of acts for which a certain amount is issued as a deposit. They are subject to execution on a general basis, and if they do not say about the loss of the deposit, then the subject party does not acquire the right to it, but can seek compensation for losses on a general basis (Cass. decision 1875, N 625, 30). In the same sense, V. took place. Mn. State Sov. in the Kozlova case (2 Sat. Sep. Resolution III, No. 520). In the decision of Cass. Dep. Senate 1877, No. 219, expressed somewhat more clearly the idea that not every receipt of money in advance has the legal meaning of a deposit, as a certain form of security for contracts (what legal meaning of a deposit is not explained), if this meaning is not stated. There is no reason to count this payment as a loss, since the damage actually incurred is considered a loss. When the deed of sale was not completed on time due to the inaction of both parties, then there is no reason to withhold the deposit and it must be returned (Cass. decision 1875, No. 794). But we can also point to decisions that took place in a different sense. In Mn. State Sov. 1853, in the Mizandarov case, it is expressed: judging by the regulations in Russian laws on the loss of deposits by buyers when selling estates by order of the government, it can be assumed that the intention of the legislator was, although this was not clearly expressed, to extend the same rule to sales transactions between private people. For this reason, the buyer who refuses to purchase is sentenced to forfeit the deposit. By deposit, the Senate argues (without generally touching on the rules on deposit receipts), it should mean the performance begun under the contract, at its very conclusion, by any party (it is not precisely said, because the deposit always consists of a monetary payment) with the aim of causing excitement for its further implementation. Therefore, it must be recognized that if the party that gave the deposit evades performance, the deposit remains in the hands of the party ready to fulfill the contract (2 Sat. Sen. Resolution III, No. 520). Receipt of a deposit in advance is not in all cases made for the purpose of security. And regardless of this purpose, any receipt in advance of a part of the sales amount is called a deposit, and in this case the deposit in the hands of the seller remains money received under the condition of the subsequent transfer of property; therefore, when it is discovered that this transfer did not take place solely due to the refusal or evasion of the seller, then leaving this money in his favor for free would be inconsistent with the general law of obligations (Articles 569 and 570). Cass. decide 1871, No. 539. In 1867 (Cass. decision No. 72), the Senate, discussing the deposit for the sale, although without a formal deposit receipt, recognized that, according to the general meaning of the laws, the buyer, in case of refusal to purchase the thing, is deprived of the deposit in favor of the seller. 513 art. does not deprive the buyer of the right to return the deposit when he has not received the purchased item (Cass. decision 1874, 685). If the sales condition is not fulfilled, the deposit must be returned to the buyer, and on the other hand, interest must be collected only from the time the demand for the return of the deposit is presented, since the possession of the money was, according to the condition, in good faith (2 Sat. Sen. decision III, 575). The deposit paid at a public auction is represented, in the event of a penalty, as a fine, which is added to the total amount received for the estate and goes to satisfy debts. It therefore constitutes the property of the mass of value, since it should serve as a means of repaying debts, but does not constitute the patrimonial property of the estate. So, when the auction did not take place, and the property, sold under a mortgage, was left to the mortgagee to repay his claim, he does not have the right to appropriate the deposit by the same right (Cass. decision 1875, No. 906). In 1866 Mn. State Sov. in the Gill case, it was recognized that due to the non-approval of the public sale within a year and nine months, according to which the house remained with him, there is no basis either to force him to purchase, or to withhold the deposit from him (2 Sat. Sen. decision I, No. 219). The deposit at the auction must be paid in full. Contributing it is not entirely equivalent to a complete non-payment of the whole and is subject to a fine if this incorrect action disrupts the further proceedings of the auction (Cass. decision 1877, No. 299). The deposit at a public auction must be at least 1/10 of the part, but it may be more: in this case, if the depositor fails, the entire amount contributed by him is subject to withholding. Instead of a deposit, the bargaining creditor can submit his claim for which the estate was assigned for sale, and in the event of a penalty, that claim is excluded from the account of debts (Cass. decision 1879, No. 6). § 37. Guarantee. – Establishing a guarantee. – Measure of liability of the guarantor. – Rights of guarantors. – Aggregate guarantee. - Objection of the guarantor. – Division of responsibility. – Reverse demand of the guarantor. A guarantor is a third party who, entering into an agreement between two parties, answers the creditor (the party awaiting performance) that the debtor (the guilty party) will fulfill his obligation, and undertakes, if he does not perform, to perform in his place. So, a guarantee is not an obligation independent in its subject matter, but an additional one, for it is always adjacent to the main thing and depends on it, shares its fate, ceases and decreases with its cessation and diminishment; however, it has its own special basis for responsibility. The guarantor does not share this responsibility with the debtor, does not agree with him (unless he has committed himself to this) and stands not next to him, but behind him. It is not even necessary for the debtor himself to participate of his own will in establishing the guarantee: the guarantor obliges himself not to him, but for him, to the creditor. A guarantee is supposed to be an act of goodwill towards the debtor, of free care for him; this does not exclude the possibility of such an agreement between the guarantor and the debtor, according to which the former negotiates a monetary payment or reward for the risk. The obligation of the guarantor is established by a direct, positive, written expression of will, and not indirectly or presumptively (for example, from the fact that I invited or persuaded a third party to lend money to the debtor, testifying to his solvency, it does not follow that I vouched for the debtor). The subject of a guarantee can be any action on property to which the direct debtor has committed, as long as this obligation is essentially legal and valid (if it is proven that the debt obligation is non-monetary and invalid, then the guarantee is also invalid). However, an obligation may be illegal and invalid personally for the debtor himself and, nevertheless, retains its force for the guarantor if he did not know about the personal property of the debtor, which constitutes a defect in the obligation; in this case, even though the debtor was personally released from liability, the guarantor directly becomes the person responsible for him: this is, for example, the obligation of a minor. The subject of liability of the guarantor is usually the same as the subject of liability for the debtor, although under special conditions it is possible to reduce the liability of the guarantor (for example, in terms of debt) in one capital, in one percent, or even increase it (for example, when in case of non-fulfillment I undertake to fulfill not only what the debtor himself has committed himself to, but even more, in the form of a reward or a fine); but in this latter case, the condition will contain, in addition to the guarantee, an obligation of a different kind. And when the subject of the guarantor’s responsibility, by its nature, is materially different from the subject of the debtor’s responsibility, then this case does not fit the law of surety. French law extends the liability of the guarantor for a debt not only to its ownership and interest, but even to damages from non-payment and to costs incurred by the creditor; However, the guarantor bears responsibility for the creditor's costs in a claim against the debtor only in the case when the creditor was promptly notified of this claim and could, therefore, offer the creditor payment for the debtor in order to avoid costs. While guaranteeing the debtor's serviceability, the guarantor is in any case liable only for his illegal malfunction, and not for any evasion of performance based on a legal reason. Only in this sense can a guarantee retain the property of an additional and dependent obligation. Of course, one can imagine an agreement in which a third party undertakes to pay unconditionally for the debtor, even if the latter’s obligation turns out to be invalid, but this kind of condition will no longer have the meaning of a guarantee, but an independent agreement between the creditor and the third party. So, when it comes to collection, the guarantor has the right to dispute the main obligation of the debtor and refute it with the same objections that the debtor himself could present (except for exclusively personal objections, for example, about being a minor, about being under guardianship, etc.); those. can prove the illegality of the obligation, its repayment by any legal means, etc. He does not lose the right to these objections, even if the debtor himself renounces them and acknowledges his debt unconditionally; He can lose this right only when he refuses, at the invitation of the debtor, to join him in the process with the creditor, as a third party. But in addition to all these objections, the guarantor can also declare his own personal ones, in his capacity as a guarantor, for example, the invalidity of his guarantee or its destruction due to personal relations with the creditor, etc. Securing the obligation is further strengthened by bringing several guarantors to responsibility: in this case, each of them is responsible for the entire debt, if they all obliged jointly, in one agreement. Guaranty for a guarantor is also allowed. Although the guarantor follows the debtor, the original law of suretyship among the Romans did not allow the objection on the part of the guarantor that the creditor should demand satisfaction from the debtor himself. This severity was softened under Justinian by introducing benefits for the guarantor, which were quite consistent with the essence of the guarantee. By virtue of this benefit (beneficium ordinis s. excussionis, benef. de discussion), the creditor, before contacting the guarantor, must contact the debtor directly. The meaning of this benefit, however, is not the same in all legislation. Prussian law allows a claim against the guarantor only in the case where the debtor, during the enforcement of the recovery from him, turned out to be truly unable to pay, i.e. It turned out that he had nothing to make such a recovery from. Before the actual non-payment of the debtor, the claim of the guarantor can be opened only with the establishment of a competition over the debtor or in his unknown absence. On the contrary, French law gives this benefit a less unconditional meaning. The creditor has the right, when the debtor has not satisfied it in a timely manner, to turn, bypassing the debtor, directly to the guarantor, while the guarantor has the right to postpone this demand and turn the creditor first to the debtor, in this case only when he can, moreover, indicate a certain and free estate of the debtor, and, moreover, undertakes to assist the creditor with material means to pursue the debtor. And the guarantor has the right to present such an objection only at the very beginning, at the first demand of the creditor addressed to him. This is called in French law discussion préalable des biens du débiteur. – Prussian law gives the guarantor the right of so-called provocation. It is obvious that the debtor cannot be equally able to pay at all times, and if the creditor misses a moment of his ability to pay with his demand, and then there is nothing to take from the debtor, then it would be unfair to hold one guarantor responsible for the failure of collection, in which the creditor is at fault. Therefore, it is important for the guarantor to monitor, in his own interest, the timeliness of the collection actions of the creditor himself, and if, upon the due date, the creditor delays collection, the guarantor has the right to demand that he begin collection immediately or otherwise release him from the guarantee. Another benefit provided to guarantors is the right to share responsibility. When several persons jointly undertake to guarantee one obligation, it is assumed that each of them guarantees in whole, and not in part, and each is responsible for everything (in solidum): this is the strengthened guarantee that the creditor wanted to provide himself with by involving several persons in the guarantee. The creditor, when the time comes, has the right to demand from each of the guarantors satisfaction in the entire obligation; but the guarantor is allowed to demand that the creditor first divide the responsibility equally between him and his comrades, and pay only his share for the first time, and pay the rest only in such a case when the other guarantors are unable to do so. This benefit, known as beneficium divisionis, was introduced into Roman law under the Emperor Hadrian and has been adopted into modern legislation. (However, the Prussian legislator did not accept it.) It disappears in such a case when this is stipulated in the guarantee itself or when the guarantor has undertaken jointly and severally with the debtor himself; French law even allows the guarantor to demand this division not only in his first objection, but in every state of the case. The guarantor who paid for the debtor has the right to demand satisfaction from him. The grounds for this right may not be the same. If the guarantor acted according to an agreement with the debtor and on his behalf or order, he obviously has the right to compensation for everything that he paid on someone else's behalf (actio mandati contraria). If he acted without the will of the debtor and did his work for him, then he also has grounds to demand from him the return of costs (actio negotiorum gestorum). Roman law initially allowed only these two grounds for inverse surety claims. Practical necessity subsequently forced the invention of the third and main basis for this claim, namely: the entry of the guarantor into the rights of a creditor under the obligation that was satisfied by the guarantor for the debtor. This is the so-called right of preferential transfer (beneficium cedendarum actionum, benefice de subrogation). The guarantor, having paid for the debtor, enters by force of law, without special transfer, into the right of the creditor to whom he paid, and can demand from him the return of everything paid and compensation for costs and damages that were caused by the debtor's fault. The claim passes to the guarantor in the same legal force and with all the advantages that the creditor had, and the debtor does not have the right to renew or raise against the guarantor all those objections to this claim that he unsuccessfully raised or failed to raise against the creditor. The guarantor can take advantage of all these rights to the extent that he himself acted without violating the rights of the debtor, connected with his relationship to the guarantor. For example, if the guarantor paid the creditor on the first demand without warning the debtor, the debtor may subsequently object to him that he should not have paid and that he would have proved the invalidity or extinguishment of the obligation if he had been notified of the collection in a timely manner; or may abdicate responsibility for the costs of collection and proceedings that took place without his knowledge. It is the right of the guarantor in relation to the debtor for whom he has guaranted that he may, for his own protection, bring the debtor to account for this claim, for, otherwise, the debtor could subsequently blame him for not notifying him of the collection process. In the event of the debtor's insolvency, the guarantor (who is obligated to answer fully to the creditor) can immediately and without waiting a deadline to join the ranks of the debtor's creditors in the competition. French law also grants the guarantor the following right: when an open-ended contract continues for more than 10 years, the guarantor can demand termination of his guarantee. § 38. Guarantee under Russian laws. – Simple and urgent. - Setting it up. – Liability of the guarantor in both cases. – Aggregate guarantors. – Termination of guarantee. – Reverse collection from the debtor. – Changing the obligation affects the surety. - Guarantee for a bill of exchange. – Guarantee under contracts with the treasury. – Circular guarantee. - Court guarantee. The main source of our laws on surety is still the Bankruptcy Charter of 1800, with an additional resolution of 1858. When issuing these general provisions, primarily letters of borrowing and monetary obligations were in mind. There is no doubt, however, that a guarantee can serve as security for all kinds of contractual actions that are subject to monetary valuation. Then, in different parts of the code of laws, there are separate rules on suretyship in connection with different types of contracts, especially for securing government penalties for contracts and supplies. All legally capable persons can enter into suretyship; monks and members of the white clergy are prohibited from being sureties (Law Civil. 1555, IX, 359, 379). The guarantee can be accepted either for part of the debt or for the entire amount. The latter is assumed; first, i.e. the restriction must be specifically stated in the contract; if it is not indicated, then of course there is responsibility for the entire debt. The guarantee can be accepted either simply in payment or in payment for a period. In the first case, the guarantor is responsible only that the creditor will sooner or later receive satisfaction. In the latter case - that satisfaction will follow exactly on time according to the obligation. One or another type of guarantee must be indicated in the inscription (1556, 1557, 1562). But if doubt arises, how is it resolved? The law does not say, but one must think that, just as it is said in Art. 1556, a guarantee for a period is a qualified obligation, it is a type, not a genus, and where there are no specific signs that the guarantor guarantees for a period, then the guarantee is considered simply in the payment of the amount (cf. 1539, paragraph 5). Rule 1557 art. It seems that it should be interpreted in the sense that the place or person where the act of guarantee is presented for certification has the right to demand that the act indicate exactly what strength the guarantee is given. Formula: for a period, of course in the strict sense; and therefore, if it were said, for example, “in case of failure to return on time,” it would only be a simple guarantee. Sometimes an inscription is made that combines both types, i.e. just in payment and on time. In this case, the liability of the guarantor is determined by the direction of the will of the creditor, depending on what he wanted to use. Thus, in one case (Cass. decision 1871, No. 386) it was decided that the guarantor is liable depending on whether the creditor presented his claim within a month or after it. The guarantee is made by the guarantor’s own signature on the obligation after the assault of the debtor. All conditions of the guarantee should be explained here. Such a guarantee upon the appearance of the deed must be recognized by the guarantor himself where the notarial provision has not been put into effect. The law establishes certain precautions in case the guarantor is illiterate. The one he trusts signs for him. But when such an act is presented for appearance, the signature of another person who is trusted must be certified in the established manner (Civil Law 1562). The consequences of both guarantees - simple and for a term - are not the same. In the first case, the guarantor is obliged to pay only from the moment when it turns out that it is absolutely impossible to collect from the direct debtor, that he has nothing to collect from. From this very moment the responsibility of the guarantor is decisively realized. The guarantor is liable only in the event of the debtor's insolvency. Insolvency, of course, here is not just a state of non-payment, not just an assumption that the debtor will not have enough property, but a decisive conviction that the debtor will have nothing left, and such a conviction can only be acquired by liquidating all the affairs of the insolvent. So, in order to subject the guarantor to foreclosure, it is necessary to wait until all the debtor’s wealth is exhausted: it is necessary that all the debtor’s property be subject to sale, and the proceeds be distributed among all lenders according to the established procedure. Only then can it turn out whether the debtor is able to satisfy the entire debt on his own, or only a certain part of it, and what part, or is absolutely unable to satisfy anything. Then the rest that is not collected from the debtor himself is collected from the guarantor (Law. Civil. 1558; Law. Court. Civil., Art. 510, paragraph 6, 512). In addition, the lender has the right to demand from the guarantor compensation for losses and expenses incurred in the collection from the direct debtor who turned out to be insolvent. From this it can be seen that our legislation is very lenient towards a simple guarantor and defines his liability weaker than, for example. French legislation. Before the debtor is completely insolvent, collection cannot be made from a simple guarantor, but the debt can be satisfied through a voluntary agreement between the lender and the guarantor. If the guarantor waits for the final liquidation of the affairs of the debtor for whom he vouched, then he may have to answer to the lender for losses and expenses. So, it may seem more convenient for him to satisfy the lender on the first demand or immediately upon the due date. So, before the specified minute, the lender, by his own will, cannot exercise the right to collect from the guarantor. He has only one enforceable right, the right of action in the future. However, he gets the opportunity to enforce this right on the estate of the guarantor and receives it from the minute the debtor’s time to pay the obligation has arrived. For this purpose, the lender, upon the due date, if he does not receive satisfaction from the debtor, informs the guarantor, asking if he agrees to make immediate payment. If he does not agree, the lender has the right to ask for a ban on the guarantor’s estate to secure a future claim. In this case, of course, the creditor must prove (for which notarizations serve): 1, that the debtor does not satisfy him, although he applied to him; 2, that he also applied to the guarantor, and the guarantor did not satisfy him. In a guarantee for a period, as soon as the debtor fails to pay on time, the guarantor is responsible to the lender for all capital and interest; but for this it is necessary that the lender value the deadline and not delay himself, i.e. would submit an obligation for collection no later than one month from the date of delay. If the monthly deadline is missed, then the guarantor is already exempt from paying both interest and capital (1560). When there are several joint guarantors for the payment of the debt and the debtor turns out to be insolvent, then the solidarity between them is assumed not to be unconditional, but conditional. From each of the guarantors, only that part of the debt is recovered, which, according to the number of persons guarantor, is due to his share; and only then, when one or more of these guarantors turn out to be insolvent, then the part of the debt falling on the insolvent is distributed among others (1558 clause 5). Here, therefore, everyone is still assumed to be responsible for everything that could not be recovered from the others. This rule is established in law only for simple guarantees (cf. Cass. decision 1868, No. 514). How should one judge the case of a cumulative fixed-term guarantee? It seems that it would be correct to apply to him the general rule of Art. 1548, that solidarity is not assumed, but must be established. The guarantee is terminated by execution, i.e. payment in full of all money to the lender for the debtor; those. The obligatory relationship between the guarantor and the lender is terminated. But at the same time, the guarantor has the right to reclaim the debtor. Everything that the guarantor has paid to the lender, he has the right to recover from the debtor, and when the latter is insolvent, he becomes one of his creditors and participates in the bankruptcy estate. The responsibility of the debtor to the guarantor for everything that the guarantor paid for him follows from the very essence of the guarantee agreement. Obviously, when I spent my money in someone else's interest, by agreement with the interested party, then, if there was no gift on my part, the one for whom I spent it is obliged to satisfy me. So, even if there were no such rule about the guarantor in our law, in any case, on the essence of the relationship, it would be impossible to deny the legality of reverse recovery from the debtor in favor of the guarantor. Meanwhile, our edition of Article 1561, containing not a general rule, but a particular case, leads others into bewilderment, which is completely unfounded. We do not have a general rule on repayment from the debtor at all, and in 1561 Art. it is said that the guarantor, having paid the debt, participates in the bankruptcy estate of the debtor and is satisfied in proportion to the others. The editors of the code of laws extracted this rule from the bankruptcy statute, where it stands in connection with other articles on bankruptcies, and in the code of laws it is placed in a place that does not at all correspond to its original purpose, i.e. in a series of articles on surety, but the editors did not bother to bring it into line with the general arrangement of all the articles in this chapter. Hence a misunderstanding arises, which can only be explained by the formalism of our practice. The question arises: if the debtor is not under bankruptcy, can recovery be made from him in favor of the guarantor? In one decision General. Collection Sep. (Sb. Sen. decision I, N 542) it is said that 1561 art. refers exclusively to a guarantee for a period; and in a simple guarantee there can be no participation of the guarantor in the competition, since recovery from the guarantor can only be made after the liquidation of the affairs of the debtor himself, i.e. at the end of the competition, would the guarantor pay the creditor voluntarily? In this reasoning, no attention is paid to the fact that the competitive satisfaction of the guarantor from the debtor's estate, in the event of his insolvency, is not an essential circumstance. There may or may not be a competition. The essential thing is that the debtor is responsible to the guarantor, and this responsibility does not change in essence in any way depending on whether the debtor turns out to be solvent or insolvent at the moment of collection. The guarantee ends with the termination of the obligation for which it served as security: as a dependent obligation, it follows the fate of the main one. So, it disappears when the main obligation is fulfilled by the debtor himself; when it turned out to be incorrect, illegal and destroyed by a court verdict; when repaid in one way or another at the will of the lender, for example, when the latter entered into an amicable transaction with the debtor (J. M. Yu. 1860. N XI. Court. Pract. IV). How does the surety respond to the fulfillment of the obligation? If there was a change in the obligation between the debtor and the creditor, without the participation of the guarantor, instead of the previous obligation for which the guarantor guaranteed, there was a new one for which he did not guarantee, and the old one disappeared; in relation to this new obligation, he is already a third party who did not participate, and therefore is not subject to liability. Our law does not speak about this, but it follows by itself. The effect of deferment is the same in a guarantee simple and given for a period. The guarantee is terminated and the guarantor is released from liability (1558 clause 4). A guarantee given for a period is terminated when the lender fails to submit a statement for collection within a month; In the same way, the liability of the guarantor in a simple guarantee is terminated when the lender does not begin collection of the obligation within six months of delay (1558 clause 4). A guarantee on a bill of exchange is made in two ways: firstly, the meaning on the bill itself. This designation can be made during the issuance of the bill, in the inscription on the bill or in the inscription on the bill about its acceptance; in this case, the guarantors are liable only in the event of the insolvency of the main participants and to the fullest extent of the law of exchange. Or, secondly, the guarantee is indicated not on the bill itself, but in a special act: then they are liable on the basis of the general procedure established for all obligations, i.e. not according to bill of exchange law (Ust. Vekseln. 93). But what kind of inconsistency is implied in the liability of the guarantor on a bill? Insolvency may be in the payment of such and such a bill, when no payment was received; there may be a general insolvency of a person and declared by recognition or by the state of the property (Const. Court. Torg. 498, 500); Finally, there may be unconditional or material insolvency, when the liquidation of all property turned out to be impossible for full satisfaction. The last inconsistency reveals, as we have seen, according to Citizens. Zak., recovery from a simple guarantor. This last inconsistency can hardly be understood in the collection of a bill from the guarantor: the guarantor is responsible, it is said in Art. 93. Est. Bill of exchange, to the fullest extent of bill of exchange law; and at 500 st. clause 1 Const. Court. Bargain. it is said that the debtor is declared insolvent when, during collection, due to the lack of collateral and surety, the collection will be directed to his property and it will be insufficient. Therefore, here the recovery from the guarantor precedes, in essence, the recovery from the property of the debtor himself. The law also mentions the guarantee of the reliability of a bill of exchange (del credere), when the bill of exchange is not acquired for oneself, but on behalf of another person who is the guarantor. In this case, the purchaser of the bill is responsible for it to the guarantor (Art. Bill. 29). Another case is indicated in Art. 82. the same Charter. In the event of a defect in the bill of exchange, the acceptor, when presenting it for payment, may demand from the drawer a guarantee that he will provide him with proof of the authenticity of the signatures for a period of time. The debtor under a bill is exempt from personal detention during the sale of movable property if he provides a guarantee while not leaving his place of residence, and when foreclosure on immovable property, the guarantee has this force only with the consent of the claimant (Art. Bill. 105, appendix: art. 6–8). With the spread of bill of exchange law to all classes, this right turned out to be bifurcated, because the concept of insolvency in payment for trade obligations does not coincide with the concept of non-trade insolvency. The strictness of bill law presupposes the possibility of quickly transferring collection from one of the persons obligated under the bill to another who is responsible for it. The guarantor, who signs the bill, thereby enters into the chain of persons participating in the bill to the fullest extent of bill law (Article 93 of the Establishment of the Bill). Therefore, it would seem that the distinction of the general civil law between simple in payment and urgent should not be applied to a bill of exchange guarantee at all, unless the guarantor on the bill signified his guarantee simply in payment. In this case, perhaps, one could assume that, as an exception, he determines his liability not according to bill of exchange law, but according to civil laws. But our judicial practice is inclined to a different view, hardly fundamentally. To Cass. decide 1876, No. 437, it is explained that as soon as a guarantee for a period is indicated on the bill of exchange, then when levying a penalty on the guarantor, it is necessary to be guided not by Art. 93. Est. Bill of exchange, and 1560 art. Zach. Citizen, and apply, among other things, the rule of a month for recovery from the guarantor. Special rules are established for guarantees under contracts with the treasury. According to agreements between the treasury and private individuals, in some cases, in order to facilitate the operation, people of non-capital status and tax class are allowed to accept a guarantee instead of the collateral that is usually required as security. This is allowed under some contracts, namely: on the supply of food for troops; on the maintenance of postal stations; about local work and supplies of peasant crafts; on the transportation of government heavy goods (Pol. Kazen. Other Art. 80 et seq.); on contracts for zemstvo duties (Ust. Zemsk. Pov. 562 according to Prod. 1890); on the content of quitrent articles and on the purchase of state-owned timber and forest materials by rural societies, partnerships of several householders and individual peasant householders (Ust. Rural Economic Ed. 1893, Article 23, appendix, Art. 13; Establishment Forestry Ed. 1893, Art. 229, note; Quit. Ed. 1893, article 29 and note 1893, article 629. This advantage is given under certain conditions to certain classes or departments. The nobility, when it enters into a contract as a whole provincial class; merchants - according to military departments; peasants, burghers and peasant societies, Cossacks. This guarantee is expressed in two ways. 1) The guarantor is a special person, separate from the one who enters into the contract, and, not participating in the main contract, adheres to him only as a guarantor. Thus, according to the military department, in certain cases a guarantee is allowed to ensure contract serviceability, deposits and agreed penalties. This is a guarantee for merchants in a penalty, up to a certain amount, from three trustworthy persons of the same guild as the contractor, certified by a certificate from the city government: such a guarantor must be free from another similar guarantee. On the same basis, guarantees from fellow villagers and neighbors are allowed for Cossacks, townspeople and peasants: it accepts a penalty and deposits, up to the required amount, with the distribution of a certain share (15–45 rubles) for each guarantor (Pol. Kazen. Sub. 80–81. Pol. Military. Procurement. 71, 72, 90). 2) It happens that persons entering into an agreement as a whole society, artel or corporation assume mutual responsibility for each other. Here the guarantee is combined with a joint and several obligation. In the event of the acquisition of land under a redemption agreement by a partnership of householders, an obligation of mutual guarantee is drawn up, certified by the volost government (Pol. Kazen. Subd. 7, 80, 81, 85. Vol. II, ed. 1892; Pol. Foreigners, art. 38, appendix II: art. 6 et seq.; Pol. Military. Procurement. 71, 72, 90; Pol. Vyk. 77, 83). The effect of this guarantee is not defined by law as positively as the effect of a guarantee between private individuals; There is no doubt, however, that financial responsibility is positively associated with it. What is the financial responsibility of the guarantors? In a circular obligation, responsibility lies directly with all those obligated, according to the force of the contract (Pol. Kazen. Subd. 224). And when the guarantor stands behind the obligated counterparty, the following rules are followed. If a private person who entered into an agreement with the treasury dies or is deprived of the rights of the estate, then the execution of the agreement passes to his heirs, and if they refuse the inheritance, to the mortgagors, and, finally, to the guarantors (Pol. Treasury. Sub. 191). If it is subject to arrest or due to a malfunction is prevented from being executed, then its liability may pass to the pledgors and guarantors (Pol. Treasury. Sub. 195). In any case, the recovery from the counterparty is applied first to his estate, and then to other people’s pledges and to the estate of the guarantor (Pol. Treasury. Sub. 220, 223; Pol. Military. Procurement. 90). The guarantors, under penalty of liability, are interested in the serviceability of the contractor, and therefore the law grants them, as well as the mortgagors, the right to fulfill the contract for the contractor in the event of his malfunction, arrest or death (if the heirs refuse). For this purpose, in general order, they are notified by an on-site announcement or publication, and within three months they can ask for the contract to remain with them, or indicate the vacant estate of a faulty contractor (194 et seq., 223); if they did not accept the contract, then they do not have the right to object to the calculation of the treasury (205). According to the military department, it is not necessary to call guarantors, and the transfer of a contract to them, if they apply, depends on the discretion of the authorities; Moreover, all the guarantors together represent one person before the treasury, are responsible for each other and act through one elected member from among themselves (Pol. Military. Procurement. 91). The guarantors are liable only in the amount in which their guarantee was accepted, but if, upon receipt of notification of the counterparty’s malfunction, they do not pay the collection amount within a month, then, after the month has passed, interest is also attached to it (225, 226). Guarantee for good behavior and service. There are special rules regarding guarantees for personal hire. Watchmen and workers are hired to provide security. The form of this authorization record is not determined by law. If during the watchman's watch the theft is committed by the owner, then the watchman is obliged to pay for it himself, and when he is unable, then the guarantor (1570). If someone who is hired to work, having committed theft from the owner, runs away, then the guarantor is obliged to find the fugitives within three terms and bring them to court; and if he doesn’t find it by the deadline, then pay the tenant 15 rubles, in any case, he satisfies the tenant for the stolen goods and for losses (1571, 1572). The law also mentions guarantees when hiring: merchant clerks and housekeepers (Ust. Torg. 6, 38), ship workers (Ust. Put. Commun. 337, 343, 351), rural workers. Floor. Cross. Institution adj. 31 art. § 5 (circular and public). In addition, the law mentions a guarantee for the exchange and sale of movable property, when there is doubt about the actual ownership of the property being exchanged or when the seller is an unknown or unreliable person. 1380, 1511. The law does not mention, however, what the responsibility of the guarantor should be when it turns out that the thing did not belong to the one who called himself its owner and sold it. If such property is purchased without guarantee and then turns out to be stolen, then the property is taken away from the buyer (1512). The buyer seeks remuneration from the seller, and if there was a guarantor, then, of course, the latter is liable for the seller. But when the seller is unknown, and there was no guarantor, then, therefore, the buyer, who himself missed the way to security, does not receive remuneration from anyone. The guarantee provides loans from the capital of rural industry in Southern Russia. Est. Sat down. Household ed. 1893, Art. 45, 49; from the cash register of the seal industry, in the same place. 522 et seq. (circular - three owners); issuance of bread from reserve stores and loans from reserve capital - Const. Nar. Cont. ed. 1892, art. 337, 345; loans for shipbuilding in the South Seas - Const. Bargain. 109, approx. A surety is also used as a means of securing civil claims. In a commercial court, the defendant is allowed to leave the city until the case is resolved if he secures the claim with a surety, or is required to guarantee his absence. Est. Court. Bargain. 188, 189. A surety is taken to secure a counterclaim, to reject the required prohibition on the estate, to reject personal detention (Const. Bill., Art. 105, app., Art. 7, 8; Establishment of the Court. Trade. 122, 123); to ensure execution of the decision in case of transfer (Const. Court. Trade. 398 et seq.). The guarantee is taken from the insolvent debtor while he is away from the city, when he is left free with the consent of the lenders (Const. Court. Trade. 503, 523). But the liability of guarantors to interested parties in all these cases is not determined by law. In the new Const. Gr. Court. the meaning of the guarantee is shown more clearly (Articles 641–652). A guarantee serves as one of the ways to secure a claim, and must be given for a certain amount from each of the guarantors, if there are several of them; given merely in payment or for a term; in any case, an urgent guarantee is expected. It is accepted by the court in person, by the signature of the guarantor, upon his appearance and questioning in court, or in the form of an affidavit, presented to the serfs, or to a notary. Insolvent proceedings regarding the acceptance of a guarantee are allowed; at the request of the plaintiff, the solvency of the guarantors is certified by the debtor of the awarded penalty, simple, in case of insufficient assets, and urgent, when the decision is executed by the debtor, immediately upon presentation of the summons. Since the decision on recovery has been made, the claimant’s demand to be secured by the estate of a guarantor is allowed. In the magistrate's court, at the request of the plaintiff, the defendant, who is temporarily staying in the area, may be required to provide a bond or guarantee from a reliable local resident in the event of an appeal against the decision (127). On cases of guarantee in the Constitution. Gr. Court. see also Art. 1043 and 1194. Establishing a guarantee. A guarantee is made to the creditor for the debtor, therefore there is an act in which the creditor must participate. Therefore, it is significantly different from a guarantee and constitutes an independent contract - an obligation given to the debtor to satisfy his debt and be responsible for it. Under such an obligation, liability is assumed exclusively to the debtor himself; the creditor cannot have a claim based on it. The very value of such an obligation relative to the debtor is not the same, and depends on the property of the currency underlying the agreement (for an example of such an obligation, see the case of Zadler and Molvo. 2 General. Collection. September 15, 1878). The surety agreement does not require joint participation of the creditor; it can be concluded between the borrower and the guarantor, and then it depends on the will of the lender to accept the guarantee offered to him by the borrower (Cass. decision 1873, N 1478). This reasoning of the Senate does not, however, resolve the question: should the guarantor already have in mind the existing obligation to which his guarantee relates, and will there really be a blind guarantee in case of certain types of obligations that may be concluded? The guarantee may be established in a separate act and not simultaneously with the commission of the main act; it can serve as security for any contract, even if this contract has already been secured in another way, for example, by a pledge (Cass. decision 1869, No. 522). One should distinguish from a suretyship obligations that are related to it, but not identical, in which responsibility for the debt is combined not with the general conditions of insolvency or delay, but with other circumstances, by special agreement of the parties. This is the case, for example. an obligation regarding the urgent debt of the craft meeting, to accept the payment of the debt to a certain extent and in sequence, if the collection’s coffers do not have the required amount for urgent payments (cf. Cass. decision 1873, No. 434). There is no reason to classify as a guarantee an obligation to a third party creditor to pay him money on a receipt, the term of which has already expired, by a new deadline (Cass. decision 1872, No. 158). It should be added: “if this obligation does not explain that the obligated person pays in the event of a new failure of the first debtor.” The wife issued a receipt to collect from her husband: “to secure the claim, I give the land that belongs to me, which, in the event of my husband’s failure to pay the said debt, I grant to be sold. The payment period is 2 months.” According to this receipt, as a special obligation, a recovery was awarded from the wife (Cass. decision 1871, No. 69). Someone took a pledged item (image) from the pawnee against a receipt to show it to the buyer and sell it for the shown amount, and wrote that he vouched for the integrity of the image. When collecting on this receipt, the court recognized it as an independent obligation, and not a guarantee: although the guarantee may be in a special act, a reference to the previous obligation of another person for which the guarantee is given is necessary (Cass. decision 1874, No. 2). In view of Article 1562, the court did not recognize such an obligation as a guarantee: I undertake to pay the rest under the condition of 2 thousand rubles if so-and-so does not pay. In this case, the partnership relationship that existed between the parties was taken into account (Cass. decision 1871, No. 673). A guarantee, in the sense it is understood in Articles 1558 and 1560, always refers to an obligation whose fulfillment is still expected in the future, i.e. for which the payment deadline has not yet passed. After the delay, the obligation to secure the debt loses the nature of a guarantee and becomes a new debt act on the assumption of payment of the debt (Cass. decision 1870, N 648). It is not entirely clear from this decision why such an act cannot be recognized as a guarantee at all, if it indicates a guarantee in the payment of such and such by such and such a deadline: this will be a guarantee no longer for the previous, overdue letter, but for a new period. In this case, there was no direct guarantee, since the deed says: I provide such and such with my property if you do not pay by the due date; but a simple subscription does not establish a real right to real estate; and the subscriber could get rid of the guarantee by saying that she gave an obligation for a certain property. When Rabinovich bought the house from Romanenko and Novoselov, some of Novoselov’s claims served as an obstacle. The buyer Rabinovich gave a fairy tale when completing the deed of sale that he would take upon himself the clearing of these claims, and at the same time Romanenko obliged Rabinovich with a special transaction that he would take upon himself the clearing of Rabinovich in these claims. As a result, one of them was subsequently sued by the court against Romanenko. It was objected to this decision that the said transaction is not a guarantee. But the Senate recognized that this decision does not contradict Article 1562, which allows for surety on different conditions (Cass. decision 1875, No. 855). The deposit agreement, in its essence, allows for a guarantee, in the sense of the guarantor providing remuneration for losses that may be incurred by the giver from the failure of the receiver to fulfill the obligation (2 Sat. Sen. Resolution III, No. 522). On the safe receipt, the brother of the receiver made an inscription that in the event of his death or waste of property, he undertakes to pay the giver. The defendant equated this inscription to a guarantee, but the Senate recognized that this was not a guarantee, but an obligation of a special kind (Cass. decision 1878, No. 28). The imposition of a prohibition on the estate of a guarantor during the establishment of a guarantee is not consistent with the essence of the guarantee; the prohibition itself serves as a type of security, and therefore would serve in this case as a special security for the guarantee itself (Sb. Sen. decision I, No. 374). Liability of the guarantor. For recovery from a non-urgent guarantor, a formal recognition of the general insolvency of the debtor is required (Cass. decision 1868, No. 609). Although, with the recognition of the debtor as insolvent, the flow of interest on the obligations ceases, but this does not apply to the guarantor for the debtor, who, subject to legal conditions, is responsible for him and in interest. The purpose of the guarantee is to protect the creditor from the consequences of the debtor’s insolvency (2 Coll. Sen. decision III, No. 635; cf. Cass. decision 1884, No. 58). In the decision of 1871 (2 Sat. Sen. Resolution IV, No. 831) it was recognized that with a fixed-term guarantee, the creditor, in order to protect his right, must, in accordance with Article 1560, submit a loan letter for collection, within a month, specifically to the guarantor. The Senate reasoned that those used in Bankr. The charter words on the debtor were excluded in St. Zak. and that the new version of the law had in mind the interests of the guarantor in a timely notification to him about the debtor's delinquency. Therefore, in this case, the creditor was refused, although the loan letter was submitted to the debtor without missing a month's deadline. – 1560 st. requires the presentation of an obligation with a fixed-term guarantee for collection not on the debtor, but on the guarantor (Cass. decision 1870, No. 516; 1877, No. 82). To Cass. decide 1879, No. 41, the question is posed: when determining the number of debts of an actually insolvent debtor, giving the creditor the right to seek immediate foreclosure on a non-urgent guarantor, should only those debts that have already been presented for collection be taken into account, or those that have not yet been presented, but the existence of which has been proven by the guarantor brought to justice? In the case, it was necessary to collect from the guarantor a bill of 1,000 rubles, since the debtor left no estate, and the guarantor pointed to another debt of his, which was not presented for collection in the amount of 2,000 rubles, and argued that since the total amount of debts was over 1,500 rubles, and the debtor was not formally declared insolvent, then collection from the guarantor was premature. The Senate decided that the existence of actually insolvent debts that were not presented for collection cannot be taken into account when determining the moment of liability of the guarantor. When it is indisputable that the debtor is actually insolvent and the amount of debts awarded or secured on his property does not reach the lower standard defined in 1858 Art. Est. Bargain. (corresponding to Article 479 of the Constitution of the Court of Trade, published in 1893), i.e. 1500 rubles, the creditor is recognized with the right, without a formal declaration of insolvency, to turn his claim to a simple guarantor. To Cass. decide 1870, No. 516, it is recognized that in the event of failure to pay on time on the part of the urgent guarantor, he is liable equally with the debtor himself, and the creditor has the right to recover directly from the guarantor, without turning to the debtor. This conclusion is drawn from Art. 1560, regardless of the text of Bankr. Charter, in which the expression is used: from the debtor. – An urgent guarantor is not deprived of the right (directly granted to a non-urgent one) to voluntarily pay the debt to the creditor for the debtor, without waiting for submission for collection, within a month of delay, and in this case receives the right to recover from the debtor (Cass. decision 1874, N 717). Sitnikov, having taken the house from Vasilyeva to present as collateral for contracts, undertook to answer her for recovery with his estate, and his wife signed as guarantor to this obligation. The court applied Article 1560 to this guarantee. Zach. Citizen, and since the obligation was submitted after a six-month period, released the guarantor from collection. But the Senate recognized that this law applies to debt obligations and cannot be applied to Sitnikova, and therefore found her liable in the event of her husband’s insolvency (1st General Collection. September 26, No. 74). If the validity of the main obligation is limited by time, then the guarantee for it is limited to liability for failure to fulfill the condition exclusively during this time (2 Sat. Sen. Resolution IV, No. 912). According to Grunau’s agreement with Blokhin, Steinbach and Muzhinsky, Blokhin gave Grunau 6,000 rubles. for factory production, and Steinbach and Muzhinsky vouched for Grunau so that, in the event of damage or failure to return the capital within a period of time (five years) in cash, or in the event of his insolvency or death, they must settle accounts with Blokhin at his first request. Subsequently, the guarantors, considering themselves to be urgent, refused responsibility by the fact that the claim was brought against them after a month had passed since the delay in the condition. The Senate (Moscow General Sobr. 1854) decided that the guarantee can be made either only in payment of the amount, or at the same time in payment of it for a period. The signature of the guarantors does not explain that their guarantee extends only for a period; On the contrary, it is said that they undertake in the event of insolvency or death of the debtor, upon the first demand, and in another paragraph it is said that after the expiration of a five-year period, Grunau is obliged to return 6,000 rubles to Blokhin, and in the event of failure to pay this money on time, Blokhin has the right to demand it from him to Grunau or from the guarantors. It depended on them, if they wanted to guarantee for a period, but no longer, to explain this with all certainty in their signature under the contract; the words used in the contract: “in case of failure to return on time” in the literal sense mean only the time from which the right to demand performance begins in any obligation, but do not indicate a special period until which this right can extend in the surety agreement; to understand these words differently and to give them the special meaning of a guarantee given for a period would mean spontaneously interpreting the literal meaning of the contract. For all these reasons, recognizing that the liability of the guarantors could be limited only to ten years ago, which was not missed on the part of the plaintiff, and that the month period established for an urgent guarantee cannot be applied to this case, the Senate ordered recovery from the guarantors. – It is possible to combine both types of guarantee in the surety signature, i.e. both urgent and indefinite. In this case, the liability of the guarantor is determined depending on whether the creditor presented his claim within a month or after it (Cass. decision 1871, No. 386). The guarantee given “for a period and according to the term” was recognized as valid, despite the failure to collect the deadline established by Art. 1560. (Cass. decision 1870, N 1343). The guarantor, having paid the debt, has the right to collect from the debtor everything that he paid, as well as interest until the day of his satisfaction (Cass. decision 1874, N 861). Eliminate liability. The guarantor is released from liability when the lender and the debtor have reached an amicable agreement (decided in J. M. Yu. 1860, November). According to a loan letter from Sergei Tolbugin, Janish was guaranteed payment by the debtor’s wife. Upon the death of the debtor, he became insolvent; but before the sale of the estate, his son Dmitry, having received an inheritance and after his uncle, entered into a deal with his father’s creditors, by virtue of which he was given his father’s estate and his father’s debts were spread over four years, with the assumption of responsibility for his entire estate. Then, when complete satisfaction could not be obtained in this way, Janisch asked to foreclose on the guarantor. The question arose: is the guarantee not completely eliminated by a settlement transaction, according to which, with the consent of the creditors, responsibility was transferred to another person and a new obligation of Dmitry Tolbugin arose, while the guarantee was not for him, but for his father. It would hardly have been more thorough to come to such a conclusion; however, according to the decision of Moscow. General Collection Sep. 1852, the guarantee was left in force, for the reason that the settlement agreement did not directly remove responsibility from the guarantor and that Dmitry Tolbugin, in any case, having accepted the estate by inheritance, was obliged to satisfy the debts that remained his father’s debts. Creditors who have agreed to conclude a settlement deal with an insolvent debtor no longer have the right to hold the guarantors liable, because, having changed the original terms of the loan, they also changed their attitude towards the guarantor; but whoever did not agree to the transaction remains in the same relationship with the guarantor, and this relationship cannot be changed by the will of third parties expressed in the transaction (Cass. decision 1869, No. 556). A creditor who, in the minority, has not expressed consent to an amicable settlement concluded by the majority with an insolvent debtor, retains the right to demand from the perpetual guarantor for the debtor the remaining debt not received under the transaction (Cass. decision 1871, No. 179). Обязательство поручителя всегда состоит в зависимости от главного и не может быть самостоятельно. Оно отпадает с изменением или отсрочкою обязательства, без согласия поручителя. Поручитель, обеспечивая платеж по обязательству, не ручается притом в законности и действительности самого долгового акта, и если основной долг, по недействительности акта, оказывается недействительным, то и поручительство ничтожно. In dec. Cass. 1869 г., N 504 признано недействительным поручительство на долговом акте, который остался не подписан самим должником (см. еще 1873 г., N 271), Поручительство недействительно, когда недействительно то главное условие, которое обеспечивается поручительством, разве бы поручитель именно принял на себя ответственность на случай такой недействительности, напр., поручился бы за должника, что он подлинно совершеннолетний (Касс. decision 1873, N 595). Cumulative and circular guarantee. Rule 1558 art. on the distribution of liability between guarantors applies to a guarantee not for a period of time: in a fixed-term guarantee, the liability of the guarantors is joint and several (Cass. decision 1868, No. 514). Liability by mutual responsibility is imposed, except in cases where it is determined by agreement, only in those cases for which it is positively stated in the law (Cass. decision 1875, No. 647). Members of an undivided peasant family are bound by mutual guarantee only for the payment of government and secular duties (188 Pol. Cross), and not private penalties (Cass. decision 1876, No. 204). Personal guarantee. The guarantor is responsible for what the debtor should be responsible for, but no more. На сем основании, поручитель по записи за несовершеннолетнего сидельца отвечает не более, как в 30 руб., коими ограничивается ответственность такого сидельца по силе 694 ст. Est. Bargain. (corresponding to Article 38 of the 1893 edition) (Cass. decision 1871, No. 92). The limits of the owner's trust in the housekeeper are limited in force by Art. 694. Est. Bargain. (изд. 1857 г.) 30 руб., должна быть ограничена и ответственность поручителя за несовершеннолетнего сидельца, так как произвольное расширение хозяином личного доверия к сидельцу не обязывает поручителя свыше той суммы, какую сам хозяин может взыскивать с сидельца (Касс. реш. 1878 г., N 66). Разделение поручительства на простое и срочное относится к обязательствам денежным, а не к ручательству по личным наймам и по отдаче в обучение. Отец, отдавая несовершеннолетнего внаем или в обучение, может в то же время и поручиться за него, причем обязательство придаточное соединяется с главным (Касс. реш. 1878 г., N 66). The guarantee for a bill (635 Art. of the Statute of Trade, ed. 1857, corresponding to Art. 93 of the Statute of the Bill, ed. 1893) is assumed to be unlimited, in case of insolvency of the debtor. If it is given on a bill for a period, then liability is determined not according to the bill of exchange charter, but according to general civil laws, therefore, regardless of insolvency (Cass. decision 1875, No. 797), and the liability of the guarantor is limited to a month, in accordance with Art. 1560. Zach. Citizen (Cass. decision 1875, No. 20). Should a guarantee on a bill written at sight be considered urgent? The petitioner argued that it should not, because the guarantor cannot know the day when his obligation to pay will come. The Senate rejected this reasoning, since in Art. 599. Est. Bargain. (corresponding to Article 57 of the Establishment of the Bill) it is determined that the payment period for such a bill is calculated on the day upon presentation (Cass. Resolution 1877, No. 82). The guarantor of the bill, in accordance with Art. 635. Est. Bargain. (ed. 1857; Article 93 of the Constitution of the Bill. ed. 1893), is obliged to answer according to it after even one announcement of the insolvency of the drawer, for this law, while indicating in general cases of such liability, then, like civil laws, does not define those moments of insolvency, with the occurrence of which liability on the bills would arise (Cass. decision 1877 city, N 369). The bill of exchange charter does not require that, in the event of non-payment by the drawer, the holder must, in order to protect the right to the guarantor, present the bill to him. Omission of a protest does not relieve the guarantor from all liability, but can only deprive this liability of the bill of exchange (Cass. decision 1875, No. 193). When a bill (due to failure to submit within two years) has lost the force of bill law, then the guarantee on it itself becomes unconditionally invalid, since the guarantor is liable according to the strictness of bill law (2 Sat. Sen. Resolution V, No. 1132). On the meaning of deferment on a bill of exchange regarding a guarantee, see Cass. decide 1870, N 1932. When discounting bills, banks, in accordance with their charters, may require special guarantees from local residents, and liability for such guarantees is transferred to the guarantor according to a special procedure determined by the bank’s charter. But such a guarantee must be special in relation to accounting and does not extend to the guarantors appearing on the bill itself (Cass. decision 1872, N 731). Note to the first section. General part of the right of claims under the law of the Baltic provinces The code of civil laws of the Baltic provinces contains an extensive presentation of a very developed general part of the doctrine of obligations. It is borrowed in almost all articles (except for some taken from local knightly, zemstvo, city and customary law), from Roman legislation and from pandects. It contains, however, in addition to the closest doctrine of contracts, and the doctrine of legal transactions in general, which is usually attributed in the scientific system to the general part of civil law. (Section I, about the subject and persons in a legal transaction, about the expression of will, about error, deception and coercion, about the form, about the place, time and about the calculation of terms, about the place of residence and absence, and about the interpretation of transactions.) Regarding the form of legal transactions, the local law is expressed as follows (Article 2993): with respect to the external form, no special rules are established, except in rare cases, and it depends on the arbitrariness of the parties. When the court is called upon to participate, this participation can be threefold: 1) by completing a transaction in the court itself, through it, with verification and control of the content and presentation of the act. This form is required for some acts, such as: those relating to persons under guardianship, for marriage and inheritance contracts; failure to comply with this form has destructive force in such cases; 2) judicial approval of the transaction with a note in the book (corroboration); it must certainly be done in the proper judicial place; failure to comply with this form does not destroy the transaction, but only delays the entry into force of real rights; 3) attestation of the transaction (Vidimatio), which is not obligatory for anyone, but aims to bring the act into full authenticity, turning it from domestic to public. With the introduction in the Baltic provinces of a judicial system common to the structure of the court in the Empire, and the provision on the notarial part, the execution of acts passed to notaries, and the correspondence of real estate transactions to the serf departments (1889 June 9, Collected Uzak. 674). The doctrine of legal transactions is placed in the fourth book of the Code “On the Law of Claims,” which also contains the doctrine of contracts. Hence, inevitable repetitions occur, since the law often returns to the same subjects in subsequent sections, in which it deals especially with obligations. It is Section II that contains the doctrine of contracts in general: the meaning and ownership of contracts, the legal capacity and determinacy of persons, representatives and the participation of third parties, agreement between those present and absent, conditions and terms, clearances and, again, the interpretation of contracts. This is followed by: obligations from unilateral - permitted (promise) and illegal actions, - the doctrine of guilt and delay (sections III and IV), the attitude of solidarity, reinforcement of claims (oath, deposit, penalty), security (detention in mortgage), collateral claims (interest, remuneration and calculation of loss); transfer of claims, termination (section X): this includes the doctrine of execution, payment, set-off, coincidence, settlement, judgment and limitation. In a broad sense, a creditor is a person who has a claim under any obligation; but the lender in the strict sense is called the lender, according to the loan act. In a broad sense, in our country, creditors are all persons who make any monetary claims or claims for property. In this sense, of course, the general meeting of creditors of an insolvent debtor (Const. Court. Trade, Art. 509, 526). According to the previous law, the colonist’s obligation given without the permission of his superiors was invalid. However, the Senate (Cass. Dec. 1874, No. 522) does not unconditionally recognize it as void when data are presented in the case leading to an undoubted conviction that the loan actually occurred and the borrowed amount is still in debt. To Cass. decide 1873, No. 1176 there is a case of a condition regarding the increase upon the return of foreign plants, which corresponds to interest on sums of money. In the same sense, powder and tide are used in simple life. To this day, a dispute continues in science between two teachings, of which one is given the name Erklärungstheorie, the other - Vernehmungstheorie. In the sense of the first, the contract is completed at the moment when the one who accepted the offer expressed his consent; in the sense of the latter - at the moment when this review came to the attention of the proposing party. German law adheres to the first theory; but this doctrine is condemned by many jurists as incorrect and inconsistent. See about this Dahn Handelsrechtliche Vortäge, page 58. To Cass. decide 1871, No. 114, Vradiy’s claim is presented, based on Sandor’s publication that he paid 500 rubles. to the one who invents a gas that can compare with the eternal candles of Sandor. The penalty was awarded, and the Senate found that there was no reason to deny the binding force of a newspaper advertisement expressing a positive obligation. In 72 Art. Est. Vekseln. It is said that if the payer, having forgotten about the acceptance of a bill in one sample, then, upon presentation of another sample, accepts this latter by mistake, then he is obliged to pay according to both samples. At 50 st. Zach. Court. Citizen it is said that the principal’s ignorance of personal obstacles to the appointment of his chosen attorney is not taken into account, and the actions performed by the attorney before the discovery of the defect remain in force. The closest information on this subject can be found in Savigny's articles Geld in Obligat. recht and in Goldschmit, Handelsrecht. Ton, Vangerov, Lenz, Winger, etc. A review and analysis of opinions can be found both in Savigny and in Förster - Preuss. Priv. Recht, § 57. In the 1893 edition this article is shown to be cancelled. In this sense, we issue general decrees in emergency circumstances. So, for example in 1876, due to the suspension of traffic on some railways, due to the war, failure to fulfill urgent transportation obligations resulting from force majeure was not to be blamed (Poln. Sobr. Zak. No. 56568). See also the decree of 1877 (Poln. Sobr. Zak. No. 57940) on the suspension of public sales of real estate estates in the Tauride province. This also includes private Imperial decrees on the suspension of the collection of private debts on the occasion of the establishment of guardianship departments and administrations. The law of the Baltic provinces (3512) indicates deferred letters given to individual debtors or classes in relation to several or all creditors by royal favor. In Livonia, the right of special deferment was granted to the governor-general. When recovering for debts, debt documents in the debtor's property in his name from third parties are not seized: in certain cases, payments may be seized on claims already presented from him (see about this Legal Vestn. 1871 No. 3, p. 92). In Const. Put. Message there is, however, Art. 116, according to Cont. 1893, allowing the owner of ship workers to transfer his rights over them to another owner who takes his place. In this presentation I limit myself to only general concepts about the bill of exchange transaction, without touching on the particulars and details of the Russian bill of exchange charter. Purchasing a bill of exchange can be a convenient means for a profitable transaction, i.e. to receive interest on capital lying unused. Living in Moscow, I receive from my debtor a bill of exchange for Moscow, in the amount of 6,000 rubles, accepted by the payer, but payable in another 60 days. Meanwhile, I need money, and I can get it against this bill today. Another person in Moscow, Ivan, having a free part of his capital, finds it beneficial in not having it lie idle with him for 60 days. In a transaction with me directly or through a broker, he buys this bill of exchange from me, minus interest for 60 days (by the due date), i.e. counting 6% - minus 60 rubles, and pays me only 5940 rubles. And since, upon the maturity date, he must receive the full amount of 6,000 rubles on this bill, then it still turns out that the capital is 5,940 rubles. was put into circulation for 60 days at 6%. This is called an accounting operation, which is profitably carried out especially for him by existing accounting offices and accounting banks. In this sense, the penalty does not combine the loss from non-performance, therefore not the replacement of performance, but the interest that was connected with the correctness of the performance and was violated by the malfunction. For example, counting on receiving a certain amount of wheat for a certain period of time, I expect to receive a certain profit on it and, due to the failure of the counterparty, I lose this profit or even suffer the loss of my property (when, counting on my counterparty, I entered into an obligation with another). The certificate of the party specifies an exceptional case when payment of a penalty exempts from execution of the contract (Constitution of Trade. 326). In our country, due to the poverty of capital and workers, the issuance of deposits and advances, for example, to workers and contractors who do not have working capital, becomes necessary in many cases in which there is no question of it on the foreign market. This is a sign of the primitive state of the market - and a great burden and inconvenience. This poses the greatest risk to production and ordering.