ВТорой отдел. Особенная часть учения о договорах и обязательствах

§ 39. Classification of contracts in certain types. – Roman classification. – System of Prussian law, French and Austrian code. – Russian arch system. – The system of the present presentation. It is not easy to come up with a completely correct classification of individual contracts of obligations, especially in the diversity of them that appears in the current development of economic life, from which new types arise, in accordance with new needs. None of the existing systems, adopted either in legislation or in legal doctrines, can be considered established as sufficient. The doctrine of Roman law, in pandects, divides obligations into three categories. The first includes contracts that satisfy the economic needs of the handling and acquisition of things, namely: firstly: unilateral contracts associated with the transfer of a thing from one person to another or aimed at an acquisitive transfer (loan, condition, i.e. non-contractual duty to return something, for example cond. indebiti, ob injustam causam, etc.; valuation contract, i.e. transfer of a thing in order to get the thing back or its price; giving more for transportation; alimentary obligation; obligation for a dowry); further - unilateral obligations, with which, however, the responsibility of the creditor is connected, carried out in the so-called reverse demand (actio contraria) of the debtor (this includes: loan - commodatum, pledge, deposit, assignment, dealing with affairs without instructions - negotiorum gestio); property management, which has the property of public service: cura bonorum and guardianship. Secondly, this category includes mutual obligations, namely: barter, purchase and sale, rental of property, partnership. The second category includes obligations arising from illegal actions - ex delicto. The third category includes obligations aimed at preventing harm or loss. Some of them arise from unilateral actions or are caused by the condition and position of the property. These are: the duty to ensure that harm is threatened by the relative position of the property, for example, a house in danger of falling (damni infecti cautio), a water structure or water pipe (aquae pluviae arcendae actio), a proposed structure (operis ovi nuntiatio), the duty to declare or present a thing, the inspection of which is necessary (actio ad exhibendum), etc. Others arise from mutual agreement - intercession and guarantee. The Prussian Zemstvo Code adopted a very artificial and discordant system. Liabilities are grouped in relation to ownership. The first group consists of contracts aimed at the direct acquisition of property rights; they are followed by contracts involving acquisition through third parties; finally, contracts aimed at maintaining, protecting and securing property rights. This system, rather than collecting various species, rather scatters them; so, for example, a partnership agreement relates to common property in the Prussian system; rental of property - to property rights; the insurance clause is classified under commercial law. The French Code also does not provide a correct and harmonious classification of slander. In the general system of the code, obligations and contracts are assigned to the third book: on various methods of acquiring property. The third title of this book contains general rules about contracts. The fourth title contains rules on obligations arising without agreement, the so-called quasi-contracts (this includes: guardianship, inheritance, management of inheritance, common ownership, management of a business without instructions, payment by mistake without a debt), and illegal or reprehensible actions (delits and quasi-de-lits). Then the following titles (5–18) contain, without a special system, obligations arising from contracts: prenuptial agreement, purchase and sale, barter, rental, partnership, loan, deposit and sequestration, risky agreements: gambling, mortgage and life annuity; order, guarantee, settlement transaction, manual pledge; finally, provision of privileges and mortgages. rent is separated from a number of contracts, and insurance is classified as a commercial code. The Austrian Code adopts a very special division of rights. The first part of the book contains personal rights with the inclusion of family rights; the second part contains the rights to things (Sachenrechte) and is divided into two sections. the first includes purely real rights (dingliche R.), the second - contracts of obligation, called personal property rights (Persönliche Sachenrechte, i.e. rights to a thing that have a connection with a person); in this section, after the general principles and provisions, certain types of obligations are placed in the following order: rent, deposit, loan and borrowing, order, barter and sale, rental of property, personal rental, partnership agreement and combination of property; property agreements in the event of marriage; risky contracts and obligations from illegal actions. Invoice rights are classified as real rights. Then the system is completed by the third part, which rather disorganizes the so-called general provisions on personal property rights, among other things on the strengthening, modification and termination of rights; This includes the rules on surety and partly on bail. In the system of Russian civil laws, obligations under contracts constitute the content of the fourth book of Part 1 of the X volume of St. However, the second book of the same book, “On the procedure for acquiring and strengthening rights to property in general,” in the second section “On the essence and scope of various rights to property” concludes a separate chapter (6 descriptive articles) on the right to obligations, in addition, a special chapter on remuneration for damages and losses incurred, among other things, from illegal actions and actions involving with harm. The third book, “On the procedure for acquiring and strengthening rights to property, features” contains: donation, row entry, barter and purchase and sale (see volume 1 of the course, § 39–45). Then, in the fourth book itself, following the extremely meager content of the general articles (Articles 1528–1553), the second section contains the main forms of securing contracts: surety, liquidated damages, pledge and mortgage. Other types of obligations fall into two categories. The first (Section III) collects “obligations under contracts for property,” namely: sale, rental of property, contracting and delivery, borrowing and lending, deposits, partnership and insurance. The second (Section IV) includes obligations that are called especially personal, namely: personal employment and power of attorney. There is a need for some kind of system in reviewing contracts, some kind of grouping. It is hardly possible to correctly arrange them according to their legal origin or their formal characteristics. It is rightly noted (especially by Danquart Förster) that it is easiest and most understandable to classify slander according to economic principles. The general purpose of all contracts is to supplement the economic power of one person with the power of another person, binding his will with an obligation. Looking at different types of contracts, we notice that in some, the subject of the obligation is the transfer of a thing (ad dare) from one person to another, and then, either for acquisition into ownership, or for temporary use. from the first group of contracts. – Other obligations are subject to the initiation of the direction of activity (ad facere) of one person in favor of another person for a specific economic purpose. Here is another group of agreements. Finally, new obligations are aimed at ensuring rights and interests in property. from the third group of contracts. All the main types of contracts can be fairly freely classified into these three categories. So, the further presentation of the special part of our teaching is divided into two groups: obligations under contracts and obligations arising from unilateral action. The first group includes, firstly: contracts aimed at alienating property, or providing it for temporary use and enjoyment, and at a certain price or as a gift: both have the meaning of exchange or, in special cases, gift. These include: a) donation, barter, purchase and sale, and sale; b) lending and borrowing, hiring or renting. – Donation, barter, purchase and sale are related in the system of our presentation to patrimonial rights, therefore the 1st part of this course. Secondly, contracts that are subject to actions and labor of persons, or their joint activities in one enterprise. These include: a) personal loan, contract and delivery, deposit, trust order; b) partnership society. Thirdly, contracts that are subject to security: a) other contracts or general methods of security, which we classify as the general part); b) interests of real value - this includes insurance; c) interests of imaginary security - this includes games and bets or mortgages. Both of them have the meaning of agreements about the untrue and accidental. In the system of civil laws of the Baltic provinces, the types of obligations are combined in the following order. 1) Obligations to return the loan taken and the return demand of what was paid without reason, loan, assignment or recarium, deposit and sequestration, pledge). 2) Contracts of paid alienation of purchase and sale, barter, publishing contract, life annuity, supply). ) Use agreements (rent and rental of various kinds, personal hire, contracting, transportation). 4) Requirements arising from the communication of rights (partnership). ) Contracts based on risk (game, lottery, bet, insurance). 6) requirements from the management of other people's affairs (authorization and power of attorney, advice, recommendation, appraised sale, management without instructions). 7) Deeds of gift. 8) Surety. 9) Claims arising from illegal actions and damage to property; requirement to show things. This presentation refers primarily, but not exclusively, to the concepts, objects and forms of so-called civil law. The area of ​​so-called commercial law is usually the subject of special treatment and special study. But the subjects of trade law are so closely related and intertwined with the subjects and concepts of civil law, it is very difficult, speaking about one, not to touch on the other at the same time; It is often necessary, in order to fully explain the concept of the establishment of civil law, to consider it in connection with the forms that the same establishment has taken in the field of trade relations. Therefore, in this presentation, wherever it seemed necessary, and to the extent required, the subjects of commercial law are mentioned. § 40. The concept of reselling according to the system of our code. – Sales record of real estate. – The meaning of the term. – Prohibition to take possession of the sold property. – Deposit receipt. In all legislation, purchase and sale are classified as contracts. In our system, the bill of sale is removed from contracts and is classified as a means of acquiring ownership. When compiling a code of laws, Speransky had in mind the idea that a sales agreement was significantly different from a bill of sale. “The bill of sale,” he says, “has never been considered an obligation: it is a traditio symbolica; it does not produce a lawsuit (actio), and the process on it does not belong to the lawsuit processes, but to patrimonial or serf processes (vindicatio).” In Roman law, a sale is a contract by which one party undertakes to transfer property (a thing) to another for a price that the other party undertakes to pay. All other legislation agrees with this definition. Therefore, there the sale first of all produces an obligation, and then transfers the property through transfer. But according to the idea of ​​our law, sale is an action by which one party transfers something to another for a certain price. The expression of this action, regarding immovable property, is the deed of sale. Here the sale transfers property and at the same time produces proof, the effect of which extends to the future. Movable property is sold without deeds, and the transfer is made by delivery (Art. 534, 1510). Thus, in our legal system, a sale is different from a contract to sell. The bill of sale is the final act, there is the transfer itself, and the agreement to sell precedes it, and the bill of sale expresses its result - the transfer of property from one person to another; a sign of this transition is the deed of sale, so that by issuing it and transferring the right, a verbal or written agreement preceding it and separate from it is fulfilled. It goes without saying, however, that even with the transfer of ownership, any relationship between the seller and the buyer does not end. A contractual relationship arises between them, subsequent to the sale and arising from the sale transfer, but this relationship follows the transfer of property, and does not aim at the transfer itself (cf. 1st part of the course, § 39 et seq.). In our country, the contract for the sale is especially called the sale, and in this form is included in the system of obligations (Law. Civil., 1679–1690). By virtue of this agreement, one party undertakes to sell (i.e., actually transfer ownership, reassign) the property to the other party, by the appointed date and for a known price. According to the law, only property owned by the seller by right of ownership can be sold (1389 Art. Civil Code). And since a re-sale is only an obligation to sell and transfer, there is no reason to extend the said restriction to a re-sale. So, there is no obstacle to the sale of property that does not yet belong to the seller himself, or, in a particular case, property in which an inheritance has just opened for the seller, but which has not yet been confirmed for him and has not passed into his possession (cf. decision of Sen. for the village of Raltsevich in Zh. M. Yu. April 1862). The term and price constitute a necessary part of a written real estate contract, which is called a sales note. It is written in compliance with the rules on stamp duty (Zak. Civil. 715) and is certified by serfs in those areas where notarial regulations have not been put into effect, without collecting serf duties. An agreement for the sale of movable property is also written in compliance with the regulations on stamp duty and is certified where the Notarial Regulations have not been introduced, at brokerage offices or in a public place. Special types of sales that have commercial significance (eg broker's note) are combined with special simplified forms. Our law pays special attention to the sales record of real estate, in fiscal types, in order to prevent the transfer of real estate into the possession of buyers without making a deed of sale, i.e. without paying serf taxes. In addition, in the past it was intended to prevent the transfer of populated real estate to the disposal of persons who did not have the right to own peasants. – So, the law prohibits access to the possession of an immovable estate on the basis of one sale deed, without making a deed of sale on it, and for violation of this prohibition it subjects both parties to a fine (1684). The period indicated in the sales record is of decisive importance: upon its expiration, the obligation to transfer or reassign the estate is destroyed; the buyer, by virtue of the sale, does not acquire a property right to the estate, but only receives the right to demand from the seller satisfaction for the loss or the agreed payment of a fine. This satisfaction is expressed in the fulfillment of the condition of a penalty or a deposit, usually placed in the sales record. This condition in many cases constitutes the real essence of the contract, hiding behind only the form of purchase or delivery; in this form, the transaction takes on the character of a game or a calculation for raising and lowering prices, and when a certain amount is given in advance to the seller, it takes on the value of a surplus loan. In the past, it was customary, under the guise of sales conditions, to carry out the actual transfer of possession of estates, and in the very conditions the buyer was given the right to take possession before the deed of sale was completed. Conditions of this kind were not considered illegal; it was only prescribed (Manifesto of November 24, 1821) to collect duties from them, as if with a bill of sale, returning them when the condition is destroyed and the bill of sale does not take place. Moreover, it was confirmed (Uk. 1810 and 1823) not to make such entries on estates that are under prohibition. But in 1826 it was strictly forbidden to take possession of an estate under a sales order before the deed of sale was completed. However, violations of this rule continued, so that in 1854 a one-year period was set for the completion of deeds of sale on all such estates, with the fact that after this period the sale was destroyed, and the estates were taken into custody, with the collection of a fine. A replacement for the sales record is a home receipt for the deposit (Law Civil Code 1685–1689), i.e. a condition on the execution of a deed of sale for the sold estate, or on the completion of a formal sale record. This receipt remains valid for the period specified in it or, if the period is not assigned, for a year. It loses its force after the expiration of the term, and the person guilty of non-fulfillment is responsible for the deposit (see about the deposit § 36). The condition of re-sale, especially of re-sale of movables, has similar forms in purchase and sale, on the one hand, and in delivery, on the other hand. And since our law, neither in individual articles nor in the system, does not present firm signs for distinguishing between these types - signs that are clear enough for each case, judicial practice often encounters difficulties in explaining and justifying decisions on this subject. Execution under the purchase agreement consists, on the one hand, in the issuance of a deed of sale for the estate (with the removal of all obstacles depending on the seller or related to the legal status of the estate), and on the other hand, in the acceptance of the deed and estate and in the payment of the agreed amount for the estate. The distribution of these responsibilities between the parties becomes more complicated when, in completing the deed, difficulties arise due to the debts lying on the estate and when the elimination of these difficulties is partly taken upon by the buyer, or when payments for the estate are combined with a credit transaction. Refusal - on one side or the other - constitutes a violation of the contract and imposes liability on the guilty party, which is expressed either in a penalty, when it is stipulated in the contract, or in compensation for losses. However, neither one nor the other party, due to the nature of the action, can be forced either to execute or accept the bill of sale. The seller cannot be forced, against his will, to issue a bill of sale, and the execution of a bill of sale cannot be replaced by the issuance of one from the government (cf. decision 5 in J. M. Yu. October 1859). Even if the buyer, without reason, refused to purchase the estate, it cannot be established forcibly, i.e. force him to accept the estate and receive a deed of sale. In a similar case (according to the villages of Iversena and Naryshkina, Moscow. General Collection. September 1854), the Senate decided: to allow the guardians of the buyer’s estate to accept, in accordance with the agreement, a serfdom deed for the sold house and to pay the seller the agreed money: but it is obvious that the only part of such a decision that can be enforced is to collect the sale price from the buyer. The essence of selling. If you are confused about whether a transaction should be classified as a sale or a resale, it is not enough to dwell on one literal expression: sold or resold. Sold means the same thing as sold, depending on the circumstances of the case, namely, when the seller himself does not yet have possession of the sold thing or when he sells not as an individual thing, but as a quantity. Both during the sale and during the resale, if the thing has not yet been transferred into the possession of the buyer, the seller cannot be forced to necessarily transfer the thing itself or its value to the buyer, forced only because he has undertaken to transfer the thing: he can be forced, by the force of the contract, only to return what he received freely for the thing from the buyer, or to compensate for losses incurred by the buyer of the thing from the seller’s failure to fulfill the contract. In resolving such cases, Russian practice is hampered by the special significance of sale as a strengthening in our legislation (cf. Cass. decision 1867, No. 72). It is not a sale when property is sold that is not actually in the possession of the seller, but has to be purchased by him on time from other persons (flaxseed, Cass. decision 1870, N 1381). Sale may also refer to unspecified property (Cass. decision 1875, No. 462). But in the decision of the same year (N 366) it is hardly true that you can only sell your property; therefore, a subscription by which one promised to sell to another the estate of a third party that had not yet been acquired by the first, cannot be recognized as a record of sale. During a sale and purchase, determining the period within which the sold item must come into the possession of the buyer does not change the nature of the transaction and does not give it the significance of a resale (Cass. decision 1870, N 1190; 1202). Prince Lubomirski gave his son a power of attorney to sell the estate, enter into terms on the price, make deeds of sale and receive money. The son, on the basis of this power of attorney, issued two, one after the other, sales notes for the same estate to different persons, receiving money from each in advance. According to both records, execution of deeds of sale turned out to be impossible. Then the heirs of the principal, disputing the second entry, argued that, in essence of the act, the attorney did not have the right, having sold the estate to one person, to then sell it to another; therefore, the second entry is optional for the principal and he is not guilty of returning the money shown to have been paid in advance to the attorney. However, the decision recognized that our law does not prohibit the sale of one property several times. The essence of the sale is that a personal agreement is established between the parties, with an obligation to sell certain property; but the right of ownership is not established by this act, and therefore the owner of the estate, under his own responsibility, is not constrained in making several sales transactions on the estate at his own discretion (Mn. State Council. 1879 on the village of Lyubomirsky and Postnikov). Delay is not allowed on a sales note regarding the obligation to complete a deed of sale. If you need to set a new deadline, then you need to make a new entry (Sb. Sen. decide. III, 840; Zak. Gr. 1682). The transfer of rights under a sales record is not allowed, even with the consent of both parties: for this it is necessary to rewrite the record itself (Sb. Sen. decision III, No. 840). In the case of Gorenkina and Zubov, the Senate recognized that if the law does not require the guardian to seek permission from the Governing Senate for the actual sale of the estate of a minor, then on the other hand it is not possible to allow that the validity of the sale by the guardian of the real estate of a minor is not made dependent by law on any other conditions. Such conditions, in the opinion of the Senate, are: 1) the Senate’s permission to sell already existed at the time of the sale, and 2) subsequent permission, but when this is stipulated in the sale record (Cass. decision 1881, No. 124). On the question: from what time does the right to claim arise for the contracting parties under an agreement for the sale of real estate in the case when the contract does not specify a deadline for execution, Citizen. Cass. Dep. admitted that, in view of Art. 692 and 1549 t. X part 1, when there is no deadline for completing the deed of sale in the sales record, the right to claim arises from the moment of the demand to complete the purchase and sale of real estate (Cass. decision. 1891, March 20, No. 35). Chapter two. Loan, borrowing and rent § 41. Essence of the loan agreement. - Using things. - Lack of money. - Term. – Responsibility of the receiver. - Excellent possession. – Loan according to Russian law. – Difference from loan. In a loan or maintenance agreement, one party grants the other the use of the thing. The use of a thing (usus, uti) means the use of its service properties to satisfy the corresponding needs of one’s household. This does not include the productive capacity of a thing, i.e. its property is to serve as an instrument for the production of new things and values, and therefore the use of a thing does not yet contain the right to its fruits and increase and to wield the thing for profit: - this already applies to the full use of the thing (ususfructus, uti-frui. See Vol. I course, § 31). The latter right, in its entirety, constitutes the subject of the lease; first, i.e. the direct use of a thing is the subject of a loan (commodatum, utendum dare, pret á usage, Leihe). When a thing is given with the right to extract profit from it and enjoy its fruits, it will no longer be a loan in the proper sense; in a loan, all increments, fruits, profits belong to the owner of the thing. The loan is assumed to be a gratuitous agreement. The lender (preteur, Anleiher) does a favor to the person being lent (emprunteur, Leiher), who acquires the right to use the thing according to its properties and purpose, without violating its economic integrity (salva substantia), and is obliged to return it to the owner. It follows from this that the subject of a loan cannot be things consumed for the purpose of consumption, since in a loan a thing cannot be consumed and the same thing (in specie) must be returned, and not a similar thing, in kind and quantity (in genere). Coins, banknotes, grain, etc., can be the subject of a loan, but not for consumption, but for use, for example, for display in a shop for display, etc. According to the nature of the loan, its subject can also be real estate; for example, letting someone live in your apartment during your absence means giving it away on loan. The continued use of the thing on loan is limited either to a certain period or to the performance of the action that the thing must serve under the contract (for example, a stroller is given to go to such and such a place and back); or the owner gives himself the right to demand the thing when he needs it. Earlier than agreed, neither the owner, in the strict sense, has the right to demand the return of the thing, nor the one who took it has the right to demand its return. The item must be returned in the condition in which it was received, without flaws; expenses that might be required for its maintenance are the responsibility of the one who used it, whether they are in connection with the very use of the thing (for example, feeding livestock, lubricating the crew), or constitute a consequence of use (repairing something broken); extraordinary expenses that might be required, regardless of use, to preserve the thing, can be charged to the owner’s account. In general, having received a thing for free, the borrower is obliged to take care of it and, moreover, with special diligence; If he does not take care of his own things, then he must take care of someone else’s things, given to him as a favor, and is responsible for any damage due to negligence. Of course, he is not responsible for an event that he could not foresee and in which he was not guilty. Using a thing for something other than what, by its nature, it should serve and what it was given for, as well as transferring it to a third party for use, is a violation of the contract and serves as a legal reason for the owner of the thing to demand immediate return. A loan is similar to a deposit in that the subject of both is a special thing that must be returned in kind, and not in kind: both of them are assumed to be gratuitous agreements. Only in a deposit the thing is given not for use, but for preservation, and therefore its use is a violation of the contract: here the loan is assumed not on the part of the owner of the thing, who gives it, but on the part of the receiver, who takes it, and therefore the former has no right to demand from the latter special, enhanced care for the thing (as in a loan). In Roman law, it was known that something similar to a loan, but significantly different from it, was the so-called precarious possession and use of property or some of its accessories, depending on the will of the owner (precarium). The owner gives his thing to another person, without transferring it to him as full ownership, but also without expressing in advance the intention to demand it back, however, with the understanding that if it is needed (beyond expectations), it must be returned back. Some jurists even exclude precarium from the list of contracts and see in it a state of ownership voluntarily ceded by a unilateral act (Dankwardt. Ihering Jahrb. B. XIV). And now one can imagine a similar state, although precarious law does not find a special definition for itself in most modern legislation. Examples of suitable cases. Ivan has two hours. Peter says: why do you need two things - give me one watch. “No,” Ivan answers, “I don’t want to give them as a gift, - perhaps take one for yourself, maybe I won’t need them at all, but if I need them, I’ll take them from you.” - A neighbor asks a neighbor: let me build a lattice on your wall and let it grow ivy: let it be an easement. The neighbor replies: I cannot allow an easement, but perhaps let your ivy hang on my wall; Only if it makes me uncomfortable later should you take it off. We have, under the few general articles on loans, quotations from the Code; but in essence, the editors of the Code took from the Code only the name of the loan, drawing up its definition, with features distinctive from a loan, according to the latest foreign codes. In 2064 art. Zach. Citizen A loan is an agreement by virtue of which one person cedes to another the right to use his movable property under the condition of returning it in the same condition and form in which it was given, without any compensation for use. This definition does not have the proper accuracy due to the inaccuracy of our very terms: use, use, indifferently given in our law, which does not know the formal difference between the foreign terms usage, usufruit. Our law, while presupposing use in a loan, does not limit it to a defining feature, and therefore the use of profit from a thing taken on loan can hardly be recognized by us as directly contradicting the contractual relationship, since in fact, or by the nature of the thing, it is consistent with the obligation to return the thing in the same condition in which it was given. Our law specifies only one distinguishing feature of a loan from a loan - gratuitousness (note to Art. 2064). But from the obligation to return the same property it follows that the subject of the loan cannot be property intended for consumption, therefore subject to return not in its particularity, but in its kind. The subject of the loan is only movable property. Our law does not exclude the possibility of lending banknotes, with the return of the same units; approx. by 2064 Art. refers to a loan as the return to use of money for a fee. It does not follow from this, of course, that a loan letter for money without interest should be considered a loan. Money, by its nature, is a subject of circulation and spending, therefore, when money is given back without indicating the essence of the contract, a loan should be assumed, not a loan; but when the contract indicates a use that excludes waste and gratuitousness, it can be considered a loan. So, for example, a bank note can be given free of charge to be used as collateral for contracts. 2067 art. indicates that if the method of use of the loaned property is not defined in the agreement, then the one who took it on loan must use it in accordance with its purpose. Whoever took property on loan is obliged to take care of it and is responsible for negligence (2068). Our law does not determine to what extent zeal should extend. Zeal is the opposite of simply negligence. Therefore, if a thing deteriorates by its nature from its very use, this damage, as well as accidental damage independent of the will, is not blamed (cf. Cass. decision 1881, No. 90). 273 art. X ch. The Code speaks of a dress given on loan and spoiled due to negligence: in this case, the dress remains with the one who spoiled it, and the owner is satisfied with the money. From this rule, written especially about dress, the Code made a mechanically general rule for all loan items (Art. 2068). The damage may be insignificant or insignificant, and the thing can be corrected to its previous form: in this case, it would seem that it should be accepted back in kind. However, according to the meaning of our law, the owner of the thing, no matter in what condition it is offered to him, after the damage has been corrected, may refuse to accept it and demand compensation in money. Article 2066, obviously, was inserted into the article on the loan only due to a misunderstanding, because in the decree of 1834, from which it was borrowed, the expression loan was used, completely inaccurately. This decree refers to the transfer of unnecessary provisions from the treasury into loan transactions for consumption. There is no specific form for loan agreements. According to 1531 and 1700 Art. Zach. Citizen one might think that these agreements can be concluded verbally. This is what happens for the most part: this is natural, because a loan presupposes a close relationship and mutual trust. § 42. Loan. – The essence of a loan and the difference from a loan. – Transfer of value or currency. – Value offset. – Limitation of personal ability to enter into loans. – Meaning of the basis of debt. This is an agreement to return the quantity taken for consumption. The material property of a loan is precisely that its subject is not a special thing, but a quantity. The law calls the subject of loan things consumed in quantity (les choses, qui peuvent se consommer, verbrauchbare Sachen, vertretbare Sachen). This includes, for example, grain bread, wine, oil, cloth, linen, etc., and finally, and especially, money. Russian law refers exclusively to money in a loan. The property of a loan will be revealed more clearly by comparing it with a loan. In a loan, a thing is taken for such use that it is not exhausted or destroyed. The purpose of the loan is precisely exhaustive use, or consumption. He who gives a thing on loan does not cease to be its owner and call it his own, transferring only the use and enjoyment of the thing into the hands of others. The lender parts with the thing completely, cedes all his property rights, acquiring, in return, the right under the obligation, a personal claim from the debtor. (Mutuum – ex meo tuum.) It is true that alienation of property does not constitute the legal essence of a loan, and a loan should rather be likened to the rental of property than to alienation. But such is the property of the property constituting the subject of the loan that it cannot be preserved intact and retain the sign of a property right; here the use of a thing consists precisely in consumption, and the debtor, having received money on loan, becomes its free owner, obliging himself to return (not the same thing as in a loan, but only the same quantity) a thing completely identical in genere with the one he accepted. Whoever took a loan is not responsible for its destruction from accidental and unforeseen circumstances. On the contrary, the lender does not care about any accidents, and the borrower’s obligation does not decrease in any way. Whatever happens to the borrowed money, he is obliged to return it, and is responsible for what he has taken with all his property. Here the subject of the obligation is not a species, not a special thing subject to destruction, but a genus that does not perish. Genera non pereunt. The loan is essentially free of charge and does not imply remuneration. A loan may be gratuitous, but if it contains a provision for remuneration, it does not cease to be a loan. In a money loan, such a condition, by the nature of the subject, is even assumed, since the use of money always has a certain value in the money market, expressed as interest; therefore, when there is no direct expression of the will of gift, it is natural to assume that it is not without reason that this use of capital was ceded by one person to another for a certain time. The owner of the thing given on loan, without losing contact with it, can, in case of need, demand his thing earlier than the deadline. And the lender lost contact with the thing he lent; his connection was established under an agreement only with the person of the borrower; therefore, only by agreement, only after the deadline has arrived does he have the right to demand the return of what was taken. According to the latest concepts, a loan does not belong to the so-called real contracts, i.e. its binding force is considered to be based not on action, but on the agreement of the parties (non ex re, sed ex consensu). However, a loan involves the transfer of a sum of money from the lender to the debtor. The essence of a loan is the return of what was borrowed; therefore, the obligation to repay exists under the condition of prior transfer. True, it is possible, regardless of the loan obligation, an obligation to conclude a loan (pactum de mutuo dando), when, for example, someone undertakes to issue a loan letter by such and such a deadline or to lend by such and such a deadline, to present 1000 rubles for a loan. This will be a special kind of agreement, but not a loan, and on the basis of it you cannot demand the recovery of 1000 rubles. from someone who did not submit money for a loan on time or did not issue a loan letter on time; Will it be possible to demand remuneration for violation of an obligation, i.e. for a loss if it occurred directly from an unfulfilled calculation for execution. The concept of transfer of value is expanded by the fact that, instead of it, it is allowed, when concluding a loan, to simply exchange or offset the value formed from previous relationships, recognition of a previous debt. So, for example, when during mutual settlements between two persons (when dividing property, in payment for work, for a service, etc.) it turns out that, in order to equalize relations, one person must pay the other a certain amount; then, instead of a cash payment, the latter makes a loan to the former, and the former, recognizing himself as indebted, gives this recognition the form of a borrowed obligation: thus, an indefinite demand turns into a definitive obligation, in number, measure and duration, or the previous obligation receives another, more definitive, by agreement of the parties, form (update). One way or another, the basis of the loan is the transfer or offset of currency. So, it is possible and common to issue a loan letter for things, goods, products, etc. transferred in cash, but the purpose of the transaction in this case is supposed to be a loan, i.e. crediting the value of transferred items. For transactions of this kind, i.e. with the transfer of things or goods, some legislation looks suspiciously as a cover for excess turnover. So, it happened and partly happens in custom, especially between persons engaged in trade, that one party entrusts the other party with things for sale, and the receiver of the things, calculating the approximate value of the things that can be sold, issues a loan letter for this amount to the owner of the things, in the form of security. (Such transactions in the Middle Ages were known as contractus mohatrae.) Prussian law and, following its example, Austrian law do not recognize as a loan such transactions in which currency was received not with money, but, instead of money, with things, goods, or even credit papers. In such cases, the receiver is obliged to return the same things that he received, or their true monetary value in the form of remuneration. As a general rule, everyone can only dispose of their own property, therefore, they can only lend out their own money. The question is: when it turns out that someone else’s money was loaned, is such a loan destroyed at the request of the true owner? The law generally answers in the negative. In a loan, money is transferred to the debtor as his property, at his complete disposal for consumption, and when the debtor has spent it, it cannot be demanded back from him before the loan expires. The true owner can, having proven his right, take over a loan letter in his name, but cannot extract his money from the hands of the debtor if the debtor entered into the loan in good faith; it is a different matter if the debtor knew at the time of concluding the loan that the money given to him did not belong to the lender. Personal ability to borrow is subject to restrictions. The most famous of them is the restriction of minors and those under someone else's authority. It is usually based on Roman law - Senatus consultum Macedonianum; he gave debtors who were under parental authority the right to object to collection of obligations issued from them. The rule of this law is reflected, although unequally, in the newest laws: weakest in the French law, where the debtor is exempt from liability for an obligation given in minority, since it serves to his harm or damage, but is obliged to answer for everything that served to his benefit or enrichment, which he took advantage of. On the contrary, according to Prussian law, the obligations of children under authority, without its consent, are recognized as invalid. In addition, Prussian law establishes special restrictions and formalities in loans for certain corporations and societies, for students, military personnel, members of the royal family, etc. According to Roman law, it was required for a loan document to be fully valid that it must contain a causa debendi, i.e. the basis of the debt would be shown - from what exactly it stems (donandi causa, solvendi causa, credendi causa). Where this meaning was not present (cautio indiscreta), the document served as incomplete evidence, and the creditor, in the event of a dispute, had to prove where exactly the debt originated. This concept has passed into new legislation, and as a result, it is customary, in order to avoid misunderstandings, to indicate on the document that the money or currency of the debt has been received. French law does not require this formality, without, however, eliminating the possibility for the debtor to prove that the debt is imaginary or false, without basis. But Prussian and Austrian law does not require this designation. On loan performance, i.e. about payment, see above. § 43. Russian loan law. - Its subject. - Lack of money. - Debt is forbidden. – Personal loan restrictions. - Act of loan. - Term. - Transfer. - IOU. - Check. - Loan offices. – Procedure for collection of debt obligations. The rules of the Russian loan law are taken from the bankruptcy statute, the subject of which was exclusively monetary transactions; This is why our Code understands a loan as a monetary transaction only. However, in the special rules of 1822 and 1835 on loans from Siberian inhabitants and foreigners (vol. II Pol. Foreigners, art. 38, note 11) it is said that the loan is made in money or things included in the price; Moreover, money loans include the lending of goods, the purchase of timber, grain, livestock, etc., with a loan for supplies. – The trade charter (387) mentions the borrowing of supplies at sea. We consider the actual transfer, or lending, of monetary value to be an essential part of a loan. A loan in which there was no such transfer or offset is called non-cash and is considered void (2014). However, our law does not require that the loan letter indicate the receipt of money; in its formula it means only: borrowed and undertake to pay. The law says that loan letters issued in lieu of cash payment for work, services, goods and products, as well as to satisfy penalties arising from contracts, are not considered non-monetary (2017; cf. Art. 568). So, lack of money should recognize the proven absence of any offset, any debt relationship between the parties, when the act does not contain any real value at all. But just as it is not absolutely required that, when concluding a loan, a sum of money should be transferred in cash from the creditor to the debtor, it becomes clear from this how difficult it can be to prove the lack of money in a loan letter. The previous agreement, in pursuance of which the loan letter is issued, could have been verbal. So, for example, I promised my daughter that I would give her property as a dowry and, instead, I issue a loan letter; promised the servant that I would give him 1000 rubles. as a reward for long service and, instead, I issue a loan letter, not having cash at that time. Disputants often try to prove that the lender could not have had money at the time of the loan, that he was poor, in need, and himself borrowed from others; but this proof does not lead to the goal, because it is impossible to prove the absolute impossibility of having money or a credit claim at a given moment (cf. Mn. State Council on the village of Taneyeva, Legal Vestn. 1867, No. 2). Disputes about the lack of money of serf loan letters are not allowed; but with the introduction of the notarial position there is hardly any room left for the commission of this kind of act. In the Chernigov and Poltava provinces, disputes about lack of money are not accepted at all (it must be understood - acts drawn up within these provinces). Art. 2016. So, in the sense of the law itself, the limits of the dispute about the lack of money of a loan act are significantly constrained: it is necessary to prove that, by the will and intention of the parties, the issuance of a loan letter was not connected with any offset of the value previously formed, or with any actual debt. Cases of this kind may occur, for example, when a loan letter is drawn up between the parties not for the sake of a debt, but for the sake of securing other agreements, so that its value serves instead of a penalty or an insurance premium. In this case, the value of the act turns out to be imaginary, short-lived and has no meaning before the law. The law points to another case of lack of money combined with forgery, i.e. with the malicious intent of the parties to deceive a third party who did not participate in the agreement. This case may occur in case of insolvency, when an unpaid debtor, wanting to appropriate for himself part of the mass of property that constitutes the property of the creditors, agrees with an outsider to give it to him without money, i.e. fraudulently, the loan deeds are inflated, so that they can be submitted to the competition on a par with the deeds of genuine creditors. This is how an imaginary and, moreover, false value is formed, which the law rejects. Such a deceitful lender is not only deprived of the right to satisfaction from the masses, but is also subject to liability under criminal laws (2014; Constitution of the Court. Trade. 581–585; Code of Punishments, Art. 1690 et seq.). There are also debts, although not non-monetary, but not recognized by law because the purpose or motive of the debt is recognized as immoral. This especially applies to a gambling debt, when it is proven that it occurred as a result of a game (i.e. between a loser and a winner) or was incurred from a game or for a game (i.e. money was borrowed from a third party before or after a game, as a result of a loss) and, moreover, with the knowledge of the lender about the purpose of the loan, such a debt is invalidated (2014, 2019 art. see Cass. decision 1869 city, N 969). This law is one of the dead or not practical regulations. There can be no moral benefit from it either, because it is not able to keep anyone from either the game or the transaction of the game; It is extremely difficult to prove the origin of a debt from gambling, and therefore the law only brings harm by showing unscrupulous debtors a way to evade collection and drag out the case. Moreover, not every game is recognized as illegal and immoral: the law itself allows permitted games, therefore there is no reason to reject the value generated from such a game. In the Boguslavsky case, the Senate recognized that when collecting on a bill, a dispute by the drawer about the invalidity of the bill, as issued as a result of a card game, or as a result of a game, can be admitted against the first acquirer, and since this dispute does not arise from bill law, then only against those of the subsequent purchasers of the bill who were aware of the circumstances surrounding the issuance of it (Cass. decision 1884, No. 79). Strong drinks should not be sold on credit, but always for cash, from places of crushing sale; so, a debt of this kind must be recognized as illegal (Vol. V, ed. 1893, Establishment of Pitein., Art. 580). Our law constrains and limits some loans either by the nature of the persons participating in the loan or by their mutual relationship. An official participating in an investigative case cannot take a loan from the accused or other affected persons. Such an act is considered illegal; however, from a comparison of articles 2025 Zak. Civil, 428 and 373 Code. Order. It does not appear that it is recognized as invalid in any case. Expression 428 art. “depending on the circumstances of the case” gives reason to conclude that civil punishment (i.e., collection of a debt amount as a fine from an imaginary lender) occurs in a transaction only if malicious intent is detected. Officials in those places where government contracts are concluded are prohibited from entering into debt obligations with the contractors during the contract, as well as the wives of officials (Pol. Kazen. Subd., Art. 11, note; 43 note 2). Treasurers (not simple income-expenditure clerks) of public places (as well as their wives and children) can lend money only with the permission of their superiors, surrounded by strict formalities, according to special permissive certificates. Debtors on these loans are constrained in paying before the due date by special obligations in relation to the department in which the lender is employed (Articles 2048, 2049). In order to protect some foreigners (Kalmyks, etc.) from extortion and oppression by local officials and merchants, special restrictive rules were established regarding loans made by them (vol. II, ed. 1892, Pol. Foreigners, art. 448; art. 38 app. II). Direct evidence of a loan is usually a written loan obligation, although the law does not generally exclude the possibility of proving a loan by all established means in court, through facts that undoubtedly indicate the existence of a loan. For the Chernigov and Poltava provinces there is a special rule, by virtue of which verbal loans are recognized as mandatory before the law only up to 12 rubles. (Art. 2032). The act of borrowing is called a loan letter. Although its form is attached to articles of the law, it does not have a strict mandatory meaning for domestic acts: the word occupied is essential in it, indicating the type and property of the obligation. A loan letter can be, without losing its force, a simple household deed, or drawn up in person, or written, where the Notarial Regulations have not been introduced, in serf affairs, signed by at least two witnesses. The deed, having been written at home, is borrowed from a notary, from a broker, or from serfs, within the prescribed period (seven days for city residents, a month for county residents), is written down word by word in a book and returned with an inscription to the borrower; if for some reason it does not take place, then it must be submitted for destruction within seven days from the issuance of the note. A loan letter that is not presented on time does not have a reliable number, and therefore, in the event of the debtor’s insolvency, it gives way to his other manifested obligations, and is satisfied only from the balances of the debtor’s cash property, and interest is due only from the time of submission for collection. In addition, for an undisclosed loan letter, a penalty of 3% is not due (2033–2039 and appendix I to Article 708, Article 143). The loan is usually accompanied by a condition regarding interest for the use of capital; Therefore, in a loan letter it is usually written: borrowed for such and such interest. But where this condition is not stated, there is no reason to demand interest for the entire agreed time of use; Of course, after the expiration of the period, or, in an indefinite period, from the time of the demand, the capital remains with the debtor without the consent of the lender, and therefore for all this time there is every reason to demand a percentage of delay. For information on percentages and the procedure for calculating them, see above. The loan is usually made for a period specified in the agreement itself; but it can also be indefinite, until required. In the first case, the delay begins with the expiration of the deadline; in the latter case – from the time the demand was submitted. With the expiration of the term, the loan letter can, by new agreement of the parties, be rewritten, i.e. replaced by a new act, or a postponement may be made, i.e. the period for using the capital is extended by a unilateral act of the lender, i.e. an inscription on the obligation, or a statement to the public office where the acts are located, or a special receipt for the deferment; but even in the last two cases, an inscription on the act itself must be made by the office or the lender. If the lender, without fulfilling this, transferred the loan deed to a third party, then the debtor, in any case, is not obliged to pay before the new deadline for the deferment given to him (2040–2044). The loan letter usually contains a clear and simple requirement, constituting a value, more or less determinative, in the property of the lender. Therefore, the unilateral transfer of such a demand is permitted without difficulty by our law. The lender can transfer his right, both before the due date and after the due date, to any person who pays him money instead of the debtor, i.e. can sell a loan letter. This transfer involves some risk for the acquirer, who cannot always be sure of the borrower’s solvency at the time of collection, and the transfer is made without recourse to the transferor, i.e. the acquirer no longer has the right to turn to him when he does not receive satisfaction from the debtor. Therefore, the sales value of a loan letter upon transfer may decrease according to the wealth of the debtor and the risk of the acquirer. In addition, when transferring before the due date, interest is usually taken into account (see § 10 above). The transfer is usually made through the lender's inscription on the loan letter, and this inscription is certified in the same manner as is decreed regarding loan letters, and with the same consequences of failure to appear (2058–2060, 2063 and appendix I to Article 708, Article 143). However, in addition to the inscription, the transfer can be proven in court by other facts and acts certifying the transfer. Loan performance consists of payment. About this, see § 20 above. In any debt recognized by a certain amount, there are some properties of a loan, but there are not yet all its essential features. From the moment one person recognizes such a debt, he puts himself under the obligation to give or pay, therefore, the removal of this payment and leaving the value in the hands of the debtor depends on the will of the other party who has the demand; this value in the hands of the debtor is considered to be someone else’s. This other side can be called the general name of the creditor, but the relationship of his will to the conscious debt can only be passive, and not active. It becomes active only to the extent that the will of the creditor enters into an agreement with the debtor to leave monetary value in his hands for a period or until demand: in this case, the relationship has all the qualities of a loan. A loan always contains the direct intention of one party - to provide the use of capital, and the other - to give it back in due time. On the contrary, a debt can be formed from a variety of relationships and, at the moment of its origin, the intention of the creditor to leave in his hands the value recognized in the debt may not be at all involved in the consciousness of the debtor. From debt relations, our civil law mentions the account. An invoice is the meaning of a monetary payment due from one person to another for delivered or collected things, products, goods, for work, services, etc. Here one party explains to the other how much he owes. The law classifies bills signed by the debtor as household debt; but the bill should not exceed 150 rubles. and within six months must be presented for collection or converted into a formal loan obligation. However, judicial practice explains that failure to comply with these rules matters only in the event of the debtor’s insolvency, depriving the creditor of the right to equal satisfaction with others (Articles 2045–2047, Cass. Decision 1867, No. 338). In 1879, rules were issued on the procedure for maintaining loan offices for small loans against mortgages. These cash offices are opened only with the permission of the government, which gives its persons, based on personal conviction of trustworthiness, for five years. All loans and mortgages must be recorded in a cord book of mortgages issued to the cashier from the city government and subject to audit, and the amount of the loan, growth and payment for storing the mortgage must be indicated. The pawnbroker is given a ticket cut from the book. The increase is paid when the loan is repaid, and in case of arrears it is calculated on the day of sale of the mortgage. When the mortgage is redeemed, a receipt is issued indicating the amount of debt and all payments (Vol. XIV ed. 1890, Establishment of Warning Prest., Art. 249–259). A debt obligation, and specifically a manifest or publicly committed one, is assigned everywhere an executive order of collection, by virtue of which such an act, equipped with an executive inscription or order, may, without a lawsuit and without a trial, be directly subject to enforcement through an executive official or a bailiff. And in our old procedure there existed, and still exists where new judicial statutes have not been introduced, a procedure for indisputable collection of debt obligations through the police, at a written or verbal request, with the presentation of an authentic act. The police immediately summons the defendant, and meanwhile, according to the act of serfdom or appearance, they can immediately enforce recovery by prohibition or arrest. An actual penalty can be carried out by a police verdict, and for the defendant’s failure to appear within the prescribed period, or upon his appearance and consideration of objections; however, not all of the defendant’s objections stop the police penalty, but only some specified in the law, but the party has the right to file a complaint in court or initiate a judicial proceeding against the police verdict (Rule. October 11, 1865). New statutes of the court. citizen did not accept this procedure: any collection of a debt obligation must go through the court, in compliance with an abbreviated procedure and short deadlines, and, according to acts of appearance, preliminary securing of claims and preliminary execution of decisions is allowed (Ust. Gr. Court. 351, 352, 395, 737). This production is associated with significant slowness and extremely weakens the executive power of debt acts, as a result of which the question of introducing an executive procedure for debt collection has already been raised (see Journal of Civil and Angular Law 1877, No. 2). This issue was resolved only recently by the Opinion of the State Council on December 29, 1889 on the production of court cases subordinate to zemstvo chiefs and city judges. This opinion establishes the rules on forced execution for deeds of serfdom, notarial and certified ones, and among them for acts of payment of money, which is that, at the request of the debtor, a resolution on forced execution is made on the deed by the zemstvo chief or city judge, and then the execution itself is carried out according to the rules for executing the decisions of zemstvo chiefs and city judges (Articles 141–160). The procedure for collections on bills of exchange is particularly strict due to bill of exchange law. Collection of bills, and upon the introduction of new judicial statutes, was carried out by an indisputable executive order through the police; only recently (1874–1877) was it transferred in St. Petersburg, Moscow and Odessa to commercial courts, which act on these cases in special bill departments in an abbreviated manner, taking strict measures of immediate security and eliminating objections that, by law, do not stop collection. Collection is ensured, in addition to general methods, by prohibition of travel and personal arrest. The most effective security for bill collections during the production of these by the police is the personal detention to which the debtor is subjected before collection from the property (Art. Bill. 105, appendix). This rule remained in force even with the general abolition of personal detention in 1879. In areas where, under the new judicial statutes, there are no commercial courts, bill collections are made through the magistrate court, zemstvo chiefs and city judges (up to 300 rubles), and also district members (from 300 to 600 rubles) in a shortened claim procedure, or through a general court of the first degree, and in the Arkhangelsk province, some counties of the Vologda and in the Turkestan region through justices of the peace in an indisputable manner on any amount (Constitution of Promissory Note 103–105). The essence of lending and lending. An essential feature of a loan is the obligation to repay capital; but neither the interest condition nor the term condition are essential (Cass. decision 1877, No. 281). A loan includes the giving of winning tickets for numbers for presentation as collateral, with the obligation to return those same tickets, even with the required interest (Cass. Resolution 1872, No. 124). From dec. Cass. 1873, N 1626, it is clear that the Senate does not allow loans in consumable things (alcohol), but does not dare to bring the agreement on the use of such things under the form of a loan, since according to the law, the subject of the loan is exclusively money. However, without denying such a deal, the Senate apparently considers it a kind of deal. – Internal loan tickets were given, without remuneration, and for a certain use, as collateral in the bank, with the condition of returning the same tickets by the due date. This agreement was recognized as a loan, not a loan (Cass. decision 1870, N 721). – The Law (2012 Art.) uses the word loan to mean all types of debt obligations (?), including loans against bills of exchange. Therefore, it is recognized that someone authorized by a power of attorney to issue loan obligations can also issue bills (Cass. Resolution 1875, No. 275). It seems that the conclusion is overly generalized in this decision: not every debt obligation comes from a loan and not all bills are connected to a loan. The concept of a credit is much broader than the concept of a loan, and in the present case it is necessary to distinguish whether the issuance of a bill of exchange was connected with a loan. – A receipt was issued by the groom to the bride to receive 2,400 rubles from her. on the occasion of marriage, with the understanding that if the marriage does not take place, the money must be returned. There is no loan here and the possession of the money was under an agreement, therefore, in the case of reverse recovery, interest is calculated not from the day the money was taken, but from the day on which it became known that the marriage would not take place (2 Sat. Sen. Resolution V, No. 1157). A loan of money, even without interest, cannot be considered a loan, because the money is given for maintenance and can be returned in another form, although with the same value (Cass. decision 1877, No. 140; 1876, No. 294). Assumptions. The presence of a loan obligation in the hands of the debtor can be recognized as evidence of payment according to the circumstances of the case, the discussion of which depends on the court. In this case, the court recognized as evidence of payment the presence of the agreement in the guardianship (of the debtor's heirs) among the paid acts. In the same case, there was an objection that Art. 2050 Zach. Citizen refers only to debt obligations, and not to contracts of other kinds, in which the parties assume mutual obligations. The Senate rejects this objection, since in this case the agreement, although mutual, at the time of its execution by guardianship, had the meaning of only a debt obligation (Cass. decision 1878, No. 223; cf. 1868, No. 579). The presence of a debt instrument in the hands of the borrower when he, as a guardian of a minor creditor, represented his person and managed his affairs (Cass. decision 1869, No. 269) is not recognized as evidence of payment and repayment. Only according to the circumstances of the case, and not in itself, can a torn loan letter serve as evidence of payment when it is in the hands of the creditor (Cass. decision 1871, No. 1140). The proof of the claim under the contract is the act submitted for collection. With the deed being in the hands and power of the claimant, there is an assumption that the contract is valid and enforceable. And when the contract, after completion, was not transferred to the creditor at all, or, after transfer, was returned from him to the other party, this assumption disappears, and the person claiming under this act is also obliged to prove that despite the return of the act, it remained in force (Cass. decision 1872, No. 443). The endorsements on the bill of exchange, although indicating payment, do not in themselves certify the validity of payment and the transfer of rights under the bill, until the bills themselves are transferred and remain in the hands of the bill holder; until the actual transfer, he still retains ownership of the bill and can destroy the inscription itself (Cass. decision 1877, No. 126). A promissory note written on one half-sheet of stamp paper was refuted on the grounds that it was a torn document and that payment could be indicated on another half-sheet. This objection was not accepted (Cass. decision 1869, N 535). Receipt and invoice. Debt obligations include all kinds of notes, receipts and certificates of amounts to be received, even if the deadline has not been set. This is, for example, a register of amounts received at the expense of the plaintiff signed by the defendant; This is a certificate of a business entity or economy, certifying that the plaintiff can receive such and such an amount for the products supplied (Cass. decision 1874, No. 221). The account contains the meaning of objects taken on credit for a known price, or amounts remaining in debt - addressed by the creditor to the person who is considered obligated to pay. The account contains the consciousness of the creditor, addressed to the debtor in order to cause on his part an acknowledgment of the debt. So, by recognition of the debtor, the invoice turns into a debt document, according to which, under certain conditions, payment can be demanded and collection can be made. The preparer and presenter of the invoice is usually the creditor, although there may be cases in which the debtor himself draws up the invoice, according to his own consciousness and, presenting it to the creditor, expects him to recognize the invoice in the data and conditions shown on it. In both cases, the account refers to the consciousness of rights and obligations associated with the debt on the loan. A receipt or receipt certifying an action or performance in one form or another has a completely different meaning, for example. accepting money, things, goods, performing work, etc. Such a receipt, if it does not indicate which obligation it relates to, does not in itself imply a consciousness of duty. It certifies only the event; and the legal or binding significance for another person of this event can be determined only by consideration, in connection with other events or actions and obligations. Therefore, hardly thoroughly in Cass. decide 1876, N 479, a receipt for receiving things, issued by their receiver and presented by the deliverer as proof of debt for those things, is equivalent to an invoice. Another decision of 1877, No. 182, 183, in which such a receipt is given the same importance as an invoice - a receipt for the receipt of things, is also hardly correct. In one case, the court incorrectly accepted an invoice as an invoice, which in itself does not at all serve as evidence of the debt (Cass. decision 1877, No. 322). Missing the six-month deadline in the submission for collection of an invoice does not deprive it of its validity at all, but only deprives it of the right to equal satisfaction in case of insolvency (Cass. decision 1867, No. 338; 1874, No. 751). In the case of Gehrke and Mangold, the mandatory meaning of an invoice presented by one of the partners of the enterprise, the manager, other partners, and signed by them was discussed. State Sov. admitted that this account cannot have the meaning of an unconditionally obligatory debt act. It only means that those who signed it recognized the state of affairs indicated in it at the moment as correct and in agreement with reality, but does not mean that they were obliged to immediately and certainly pay this bill (Practical St. Petersburg Cass. Sen. 1874, No. 31). Collection by copy of the loan letter. In practice, confusion still arises regarding the question of whether recovery can be made on a copy of a loan obligation? This question was of particular importance in the previous procedure of indisputable recovery, when it was necessary to determine which acts are considered indisputable and subject to execution through the police, and in the previous procedure of judicial proceedings, when it was necessary to determine: is it possible to recognize a copy of a loan obligation as formal evidence of a debt - in the hands of the creditor? It is obvious that with our existing procedure for the execution and certification of acts, the assumption of payment is connected with the finding of an original loan letter in the hands of the creditor, and not a copy. A copy of a loan obligation is nothing more than a certification or repetition of its contents, but cannot replace the main loan document in terms of its exacting force. The very content of the main document is certified by a copy only on the date when the copy is made. The text of the contract, as it is written in the books, regarding its composition, must be considered unchanged, and the copy fully authenticates it; but then the contents of the document, from the moment it is placed in the hands of the lender, may change in accordance with the change in the relations of the parties regarding the loan. In the loan deed, notes may be made about transfers, about protests, and finally about payment and payments. So, a copy generally cannot serve as a substitute for a loan obligation, in the sense of a credit act, for collection thereunder. The Code of Laws includes a rule (Law. Civil. Art. 2012, note; Law. Court. Civil., Art. 432 p. 2) that recovery based on a copy is made only if the plaintiff presents evidence of the defendant’s deliberate destruction of the original obligation. This rule often caused confusion in practice. This rule is borrowed from High. approved Mn. State Sov. 1875 (P.S.Z. N 30429) in the private case of Karachinsky, in which the plaintiff tried to prove, but did not prove, that the original loan deed was deliberately destroyed by the debtor himself. This is the basis for the opinion expressed by some that the above law should be applied exclusively to such cases, i.e. to those cases in which the plaintiff proves the intentional destruction of the act by the defendant. This opinion cannot, however, serve as a basis for a shy interpretation of an article of law, which undoubtedly states a general rule. But this general rule necessarily changes in its meaning since the civil court received the right to freely discuss all the evidence presented and make its decision based on their general consideration (Ust. Gr. Sud., Art. 456–459). In this sense, one can hardly object to the following reasoning of Gr. Cass. Dep. for the village of Tupalova (Cass. decision 1869, N 145): 831 art. Zach. Citizen (according to the 1857 edition; in the 1887 edition, corresponding to the note to Article 2012) it does not at all matter that the plaintiff, who presents a copy of the loan obligation and does not prove the destruction of the original by the defendant, is certainly deprived of satisfaction: depending on the circumstances of the case and the evidence presented, the court can award recovery based on a copy of the loan obligation. And in previous judicial practice there were decisions (Sb. Sen. decisions I, N 360 and 560; II, N 346), which awarded recovery on copies, when the original acts were already under consideration by the court and were presented by the defendant, but were destroyed or lost during the proceedings. The loan letter, having been presented for collection, was lost in the zemstvo court before it was presented to the debtor. The Senate recognized that without an original document and without presenting it to the defendant, recovery is impossible (decided in J. M. Yu. 1861, No. 4). In the Gudim Levkovich case, the claim was made based on copies of serf loan letters. The originals were in the hands of the lender, but after his death they were not found and there was an assumption that he himself could have destroyed them. The debtor testified that on the day of the creditor’s death he was with him and remained in debt to him, but refused to pay, by virtue of Art. 831. Zach. Citizen and 749 art. 2 parts X. t. (in the 1892 edition of the Law. Sudopr. Civil. this article, as relating to the court in form, is shown cancelled). According to the final decision, recovery was denied on the basis of the above articles (2 General Meeting of Sen., March 24, 1878). An extract from the notary book cannot, in the event of collection, replace the original lost bill of exchange (2 Sat. Sep. Resolution IV, No. 875). In the village of Kozlovskaya and the book. Saltykov was recovered from a copy of the loan letter, on the basis of the French code adopted in the Kingdom of Poland. By force 1334 and 1335 Art. Napoleonic Code, if the original document exists, then the copy serves as proof of what is contained in the document; if the original document does not exist, then the copies have the force of evidence with the following division. The main statements (grosses), or first statements, have the same force as the original. The second extracts (secondes grosses, sec. expeditions), made by order of the court in the presence of the parties, upon summoning them in the established order, have the same force (according to the local ritual, the original of the act (minute) remains in the book, in the place where it was made, and is replaced in the hands of the parties by the first extract - grosse). In this case, the main statement in the hands of the lender, Kozlovskaya, was lost, according to her testimony, by accident, and she asked for a second statement, issued to her by the court, upon the summons of the debtor, due to his failure to appear. The debtor objected to this statement that it does not replace the original, and that the assumption of the existence of a debt cannot be connected with it. According to French law, one could argue that the second statement cannot be a complete replacement for the main one in the present case, since obtaining the second statement requires a summons from the debtor, and a summons from the prince. Saltykova was made in Warsaw at the place of residence he chose during the execution of the act, Warsaw, while his actual stay was in Moscow; but it was certified that the second statement was issued in accordance with the procedure adopted in the Kingdom of Poland, and therefore a penalty was awarded on it (Mn. State Council. 1878). A copy of the bill. Collection on a copy of a loan letter should not be confused with collection on a bill of exchange in case of its loss (Article 90 et seq. Establishment of the Bill). A bill of exchange has a very special property, presupposing a known settlement relationship between the parties involved, and payment on a bill of exchange that is lost is in no way a payment on a copy of the obligation. On the other hand, in a proceeding for the loss of a bill of exchange, the original instrument is presumed to exist, and the whole purpose of this proceeding is to prevent payment into the hands of someone other than the claimant of the loss who can present the original bill of exchange for payment. A similar question arose in the Tartakovsky case (1st General Meeting of September, November 9, 1879). Tartakovsky's bill of exchange addressed to Gerasimov reached the bank and was protested for non-payment in the absence of the drawer; the bank's attorney declared it accidentally lost; then, taking from the notary's books a copy of the bill, recorded regarding the protest, he began to collect on this copy, on the basis of Art. 641. Est. Bargain. (corresponding to Article 99 of the Establishment of the Bill of Exchange). The drawer declared that he was not due under such a bill. Lack of money loan letter. The lack of money of a debt act, i.e. the discrepancy between its content and reality can be proven by testimony (Cass. decision 1868, No. 745). The lack of money of a loan in the sense of the law occurs where, by the very essence of the transaction, a transfer of value was intended, but was not actually completed, or an invalid currency was transferred, for example, a check on an account that had already been closed, or when it was intended to transfer the currency subsequently, but the loan act was submitted for collection before the transfer. But there can be no talk of lack of money where the loan letter in itself represents a value into which a previously existing debt or obligatory relationship has been converted. In this sense, a loan letter can legitimately serve as an expression and form of a gift (Cass. decision 1875, N 473). Loan letters issued for services, work, previous debt, etc. are not considered non-cash. There is no reason to admit, regarding the presentation of such an act, a dispute about the insufficiency of the basis from which the debt arose, for example: about the dishonest performance of the service, about the poor quality of products and goods, for the debtor’s reasoning about all this must precede the issuance of the obligation, with which the consciousness of the debt is connected (Cass. decision. 1873, No. 130). The law does not require that the issuance of a loan letter be made simultaneously with the issuance of money. It is possible to put a previous debt into the form of an act (Cass. decision 1872, N 474). Within the meaning of 2014 and 2017 Art. Zach. Civil, a dispute about the lack of money of a loan letter is invalid if the arguments and evidence are of such a kind that they do not exclude the possibility of the origin of the loan letter instead of payment or satisfaction of a debt (2 Sat. Sen. Resolution III, No. 521, 633). The conclusions in a dispute about lack of money, that the debtor did not need money, that the creditor due to poverty did not have money, that the debtor did not have money in his estate, are unfounded and, according to the law, do not constitute evidence of the lack of money of the loan letter (Sb. Sen. decision I, 495). A loan letter does not come into force until it is transferred by the giver into the hands of the receiver. Therefore, a loan letter found in the property of the debtor, without having previously been issued to the lender, can be recognized as non-monetary (Sb. Sen. Resolution I, No. 59). In the case of Manvelov and Bochechkarov, the lack of money of the loan letter was proven by a receipt simultaneously issued from the creditor to the debtor. In this receipt, the creditor Manvelov explained that the loan letter for 10,000 rubles. given to him by Bochechkarov under an agreement with him in case of payment by him, Manvelov, from his own money, according to the debt documents of Bochechkarov’s wife; if he does so, he will have the right to demand the return of the amount spent on the loan letter only when he delivers the debt documents with payment inscriptions to Bochechkarova; If payment on account of the loan letter is not made, then he is obliged to return it back, as if it were without money. – In the case of Volzhina and Babanina (Moscow Obshch. Sobr. Sep. 1855), in a dispute about the lack of money of a receipt for 50,000 rubles, the testimony of one of the witnesses who signed it that only 3,600 rubles were transferred with him was not considered sufficient to recognize the lack of money, since receiving part of the money with a witness did not eliminate the possibility of receiving the rest of the money at another time. In the decision in the Prishmantova case (2 Sat. Sen. decision V, No. 1261) it was recognized that a dispute about the lack of money in the assignment of loan letters is not allowed, since this assignment constitutes a transfer of movable property. But Cass. Dep. reasons: just as the lack of money of a loan letter is proven, it is also possible to prove the lack of money of an endorsement, for example, that the transfer was not made into ownership, but only as a guarantee, to collect a debt in favor of the creditor (Cass. decision 1876, No. 410). – When a loan letter, with an inscription of transfer on it, remained in the hands of the transmitter, without being handed over to the person in whose name the transfer was written, the inscription does not prevent one from proving that the transfer did not take place (Cass. decision 1876, No. 382). Cashlessness of the bill. If a dispute about the lack of money of a bill due to non-receipt of currency can be allowed, then in any case - only against the original purchaser of the bill, and not against the one to whom it reached through the inscription (Cass. Resolution 1872, No. 1299; Practical Cass. Sen. 1875, No. 1). And in Cass. decide N 1315 it is generally recognized that a dispute about the lack of money of a bill of exchange is not allowed by trade law; only a claim for damages from delays in the issuance of currency is allowed, and in case of insolvency of the debtor (1961 Ordinance of Trade, corresponding to Article 582 of the Ordinance of the Court of Trade, ed. 1893), a dispute on the part of the competition about non-cash bills issued to burden the mass is allowed. To Cass. decide 1875, No. 143 The Senate comes to the conclusion that current laws do not prohibit a dispute about the lack of money of a bill or the non-receipt of currency. In dec. 1871, N 724, withdrawn on the basis of Art. 549. Est. Bargain. ed. 1857, resp. Art. 9 Set Vekseln., ed. 1893 that an objection to non-receipt of currency must be supported by written evidence. The designation in the bill itself of a currency other than that for which the bill was actually issued does not serve as a basis for recognizing the bill as non-monetary, unless the court recognized that the currency was received by the debtor (Cass. decision 1875, No. 187). If, instead of currency, a bill of exchange is issued for services, then there is no reason to recognize it as non-monetary (Cass. decision 1875, No. 187). In addition to money and goods, any item of debt, no matter what it may be, can serve as currency under a bill, if only the parties to the agreement recognized it as such (Cass. Resolution 1871, No. 564; Practical Cass. Sen. 1875, No. 3). Within the meaning of Art. 549 Est. Bargain. (corresponding to Article 9 of the Establishment of the Bill of Exchange) from the moment of transfer of the bill of exchange, the currency is considered issued from the acquirer, unless there is a special agreement to that effect in the brokerage book. Therefore, the lack of money of a bill cannot be proven by witnesses (Cass. decision 1878, No. 24). Rule 542 Art. Est. Bargain. ed. 1857 (corresponding note to Article 2 of the Establishment of the Bill), which prohibits the use of blanks instead of bills, does not prevent the recognition as valid of a bill that was initially in the hands of the holder in the form of a blank, but was subsequently supplemented with text deliberately for both parties, with their mutual consent (Cass. decision 1874, No. 131). A bill of exchange is non-cash or non-currency in the case when the opening of collection on the bill was made in connection with a special condition that did not materialize. Such a case occurred in the Zefirova case (2 Sat. Sen. Resolution V, No. 1231). Maslov gave her a bill for 45,000 upon sight, and she then gave him a signature that she undertakes to demand payment from him on this bill no earlier than a month after he received the concession for the railway; the concession was refused. At the very issuance of the bill, the holder of the bill gave the drawer a receipt stating that he did not give her money when issuing this bill, but undertakes to deliver it in a month. When this receipt is in the hands of the debtor, when a dispute is raised about the lack of money of the bill, the holder of the bill was obliged to prove that the money was delivered to him, and since he did not prove this, the bill was recognized as bankrupt (Sb. Sen. decision III, 1003). – The bill, as it turned out later, was issued to the accuser accused of theft, as part of a settlement deal; and despite this, the accused was brought to trial and imprisoned, the court, upon presenting this bill for collection, rejected it for lack of money. But the Senate reasoned that the bill could actually have a debt value, since with the commission of a misdemeanor or crime there is associated not only criminal, but also civil liability for its consequences; therefore, regardless of the criminal penalty, the issuance of a bill of exchange could represent compensation for harm and loss (Cass. decision 1872, No. 535). Ivan provided Peter with a certificate of pledge for use, and Peter, to ensure the integrity of the pledge, gave him a bill of exchange in an equivalent amount, with the understanding that if the pledge was returned on time, he would receive the bill back, and otherwise the bill would come into full force. The Senate recognized, in view of Article 1530, that such a security agreement does not contain anything illegal (Cass. decision 1872, No. 665). § 44. Agreements on maintenance and permanent income. – Lifetime annuity. – Russian tickets for continuous income. – Bodmera and borrowing supplies at sea. Agreements on maintenance and permanent income (Rente, Rentenkauf). This is the place to mention a special type of contract, which is very common abroad, although it is almost uncommon here. This is the right to rent, i.e. the right to demand annual monetary income and payments from a known person, indefinitely, for life or for a certain period. The right to rent is of ancient origin and has long been known in two forms - rent from capital (r. constituée) and from real estate (r. fonciere). The first type was a common means of circumventing prohibitive interest laws in the Middle Ages. The loan agreement was hidden under the guise of an agreement on the alienation of capital, with the right of redemption. Rent of the second kind was accomplished by the alienation of property, in return for which the rights were acquired to demand a certain annual income or contribution (arrèrage) from any person who would be the owner of that estate; So, the right to rent of this kind was in rem, connected with the entry of the deed into the land register, and the responsibility for payment lay not on the person, but on the estate. It was possible to be freed from this duty not through redemption, which was not allowed, but only through leaving the estate or transferring it to another owner (Dereliction, déguérpissement). An agreement of this kind, also very common in the Middle Ages, corresponded to the state of the economy of that time and the needs of credit: the economy was primitive, i.e. not monetary, and the main value of real estate consisted in the internal productivity of soil and land, which was not subject to accurate and constant accounting; and, on the other hand, the pecuniary personal creditor was not secured in the collection of his debt from the heirs in the event of the death of the debtor. Subsequently, the credit was established on other grounds. The importance of monetary capital and movable property has increased. Most real estate headed for mobilization. Nowadays, a loan is approved primarily on personal trust and confidence in the methods of collection, and in real estate it seeks only additional security; mortgages came into general use. Despite all this, it cannot be said that land rent has already lost all its former significance. For many, it has an advantage over a mortgage: the lender is more secure in it, the debtor is calm that capital will not be required from him. Therefore, this type of contract still remains in some legislations (France, Italy, Holland, Saxony); but the essence of this kind of rent has changed in that it is allowed to be redeemed, with advance notice, since according to the new principles of law, property should not be burdened with eternal and continuous duties. According to French law, this annuity is considered a personal and not a property right, and the right of redemption cannot be limited beyond a 30-year period. In general, the right to annuity (usually classified as an agreement on the wrong and accidental) is presented in two forms - perpetual and fixed-term annuity. In a continuous or perpetual annuity, one person transfers capital to another, acquiring the right to demand an annual income or interest on this capital: similar to a loan, but the difference is that the creditor has no right to demand payment of the capital, but the debtor has the right to return the capital whenever he pleases, and thereby free himself from liability (r. perpétuelle). The redemption of the annuity depends solely on the debtor (non in obligatione, sed in facultate solutionis): the debtor can, however, by agreement, be deprived of this right, but no longer than for a certain period - 10 years according to French law. In a life or fixed-term annuity (r. viagére), the creditor acquires the right, during the term or upon his death, to claim income or interest on the capital; but in this case, before the deadline, the creditor has no right to demand the return of the capital, and the debtor has no right to demand its return. Lifetime annuity is established by agreement upon alienation of capital, movable or real estate. This alienation is assumed ahead of time or is carried out at the very conclusion of the contract: a transaction of this kind is usually associated with risk and a calculation of probability, which is why it mostly belongs to the category of agreements about the untrue and accidental (France, Austria, Prussia), and the very amount of the annuity is determined by the calculation of probability. Nowadays contracts of this kind are rarely concluded between individuals; Their form is usually either a mutual capital insurance contract or a policy of an insurance company. Moreover, life or fixed-term annuity is established in the form of a gift or gratuitous gift, through a deed of gift or testamentary deed. Our legislation does not have a special category for an annuity agreement and does not mention it. However, according to the general rule 1528 and 1530 art. Zach. Citizen, it is possible for us to conclude a similar agreement - however, it is unlikely in relation to real estate. Land rent presupposes alienation, and the alienation of real estate requires us to complete a deed of serfdom in unconditional force, and the return of the estate to the previous owner is accomplished only by a new sale and a new deed. We can also mention the form of agreement we have with the government, a similar annuity agreement: I mean the obligations of the State Commission to repay debts and continuously profitable 4% tickets. The private individual gives the government his capital for an indefinite period, so that the government is left to pay or not pay the capital, but produces only an annual continuous income, in the form of interest on the capital. These capitals are entered into the state debt book and are not subject to sequestration for the debts of the ticket holder. And the creditor-investor, in general terms (i.e., as if there were no special conditions), cannot be forced to receive the capital back. This right (i.e. the ticket) can be transferred by written signature and be inherited. Interest is paid within a certain period of time, twice a year (Constitution of Credit, Section II, Articles 61–146, Section III, Articles 29–59, etc.). The regulation on continuously profitable and state 5% tickets was published in 1859 (P.S.Z., N 34243, 34852; 1865, N 42106). According to the first, in view of the creditors, the redemption was stipulated in 20 years; according to the latter, a method of periodic repayment through circulation is established. In 1894, it was decided that loans from public institutions, private credit institutions, industrial and commercial companies, made through the issuance of interest-bearing securities redeemable in circulation, are subject, with the permission of the Ministry. Finance, early repayment. A special type of loan is a loan for the sake of maritime accidents or bodmerei (Bodmerei, contrat á la grosse, bottomry, from the foreign word bodem, i.e. keel, in the sense that the ship serves as both the basis and security for the loan). The Bodmer loan is made in view of a known sea passage, and payment is expected only in the event of a safe passage to the destination; otherwise, i.e. In case of accidental loss of the ship and cargo, the right to pay the borrowed money is lost. For this risk, the lender negotiates increased interest or a premium. So, a bodmer loan is associated with a special risk and is analogous to insurance, and therefore is usually classified as an agreement on the untrue and accidental. Bodmer loan is made, in extreme cases, for the necessary corrections and repairs along the way, for long-distance shipping companies, but most often and most commonly - to cover unforeseen costs required along the way, for the safe completion of the voyage. – The ship with all the gear and cargo usually serves as collateral for the loan; in exceptional cases, the security applies to one cargo or a certain part of it. The act of loan is a bodmer letter, or a sea bill (cambium maritimum); it is drawn up, at the request of the creditor, in several samples and can be written to the bearer or to the order. The payment deadline for this is a few days after arrival at the place, and the claim has the advantage of being satisfied from the pledged property, but only from what is pledged (unless there was a deviation from the proposed flight on the way). When the flight did not take place at all, the return of the premium is allowed, just as in insurance. In Russian laws (Ust. Torg., 381–386) there are rules, very incomplete and insufficient, about the Bodmer loan. They were taken from the old Charter of 1781 and have remained since then without change, which turns out to be necessary and was taken into account when revising the Commercial Charter 19. A loan secured by a ship or cargo, or part of the goods, is permitted in cases of extreme necessity, i.e. when there is a shortage of vital supplies on the way, when the ship has suffered damage or the gear has become incapable of sailing, and when, moreover, there is neither cash nor letters of credit. We have no special rules regarding satisfaction under bodmer letters: collections are made according to the general rules on mortgages. When a shipowner pledges goods, the owner of the goods is not exempt from paying freight charges; but the shipowner answers him in any case for the goods, to the extent of the price for which they could be sold at their destination. Moreover, in our laws (Constitution of Trade. 387–390) there are rules about the borrowing of supplies at sea, in case of extreme need, by one shipowner from another, when meeting on the way. This loan, in extreme cases, can be forced or violent, but only to the extent of real need, in measure and weight, with the issuance and acceptance of a written act, which should be declared at the first port at the customs office. Chapter three. Property rental § 45. Property rental agreement. - Its subject. - Payment. – Relationship between the parties. - Responsibility of the owner. - Transfer. – Maintenance of property. - Obligations of the hirer and his rights. – Subblocking. – Emphyteutic use and perpetual rental. – Rights of refusal. – The meaning of ownership in renting and its relationship to property rights. - Statute of limitation. – Resumption of hiring. – Protecting the hirer and owner with a special process. – Relation of hiring to usufruct. - Land lease. – Rules of lease agreements. - Hiring for use, kolonat. - Renting livestock. In a rental agreement, the use of property or a personal service, or work is ceded for a certain fee, therefore this agreement is of an exchange nature and is likened to a purchase and sale. The subject is property (rei locatio) or personal service and work (operarum locatio), or a set of works and property for the whole enterprise (operis conductio); an exchange occurs, and the purpose of the contract is not direct (as in a purchase) possession of the subject of the transaction, but the satisfaction of a certain economic interest, through the use of property, or through personal actions, works and services. All these types of hiring were united by the Romans under the general name locatio, conductio. The direct use of a thing for one’s needs (usus, uti) differs from the full use of the entire productive power of a thing, with the extraction and appropriation of its fruits and products (usus fructus, uti, frui. See Part I of the course, § 31). In accordance with this difference, they differ in the rental of property - simple rental (Miethe) from rent or lease (Pacht). The economic and legal significance of hiring also differs according to the type of property serving as the subject of hiring. Thus, French law distinguishes, in special categories, the rental of household premises and movables (bail à loyer), the rental of land and agricultural holdings (bail à ferme), and the rental of livestock (bail à cheptel). The subject of the lease is known, specific property, not only one’s own, but also someone else’s (entrusted for economic management and disposal); Not only material property can serve, but also right, if it, by its nature, is capable of separate use or enjoyment. Property that is not capable of separate use cannot be the subject of rental; for example, easements that inseparably belong to property, individual rights in the closest sense that cannot be separated from the person (usus, habitatio), collateral rights, since it, in its essence, contains not use, but disposal and alienation. Things that, by their nature, are consumed and intended for consumption (for example, wine, bread, etc.) cannot be hired, unless they are taken for exhibition and display, ad pompam et ostentationem. The compensation for rent is its known price or rent (Miethzins, Pachtzins, prix du louage). It is determined either by money or by a certain share of the fruits and products of property; in the latter case, the renter usually enters into a comradely relationship with the owner of the thing, agreeing with him on a division. Relations of the parties. The contract is carried out primarily by the actual transfer from the owner (locator, Vermiether, Verpächter, bailleur) to the lessee (conductor, Miether, Pächter, preneur) of the property leased. With this transfer, the tenant's ownership of the property begins. The demand for transfer is personal, not real, and therefore, if before the transfer the owner of the property had changed due to the transfer of ownership (except for inheritance, in which the continuation of personality is recognized), then the renter can no longer demand transfer from the new owner, but addresses his claim to the person with whom he had an agreement. The property must be transferred in economic integrity, corresponding to its economic essence, purpose and interest of use and special conditions, if they are agreed upon. Direct use, as well as economic use, presupposes the complete suitability of the property for one or another purpose. Exactly what properties, accessories and devices are necessary for this or that type of use are determined by the conditions of the local economy, custom, etc., but in some cases (for example, for residential rental, for farm rental) it is also determined by law. Other property is surrendered with household equipment (with livestock, establishments, tools, etc.), others are surrendered as is (German difference - mit Anschlag and auf Pausch und Bogen), and the definition of legal relations between the parties depends on this. In any case, it is necessary that the property being rented can serve in good condition for the purpose for which it is hired. Otherwise, the hirer has the right not to accept it and terminate the contract. Then, upon delivery, the owner is obliged to maintain the property in good condition, for the same purpose, with appropriate amendments and repairs, at the request of the tenant, answering him for hidden defects and defects that may subsequently be discovered in the property to the detriment of use 20. The owner is responsible (unless specified in the rent) for all duties and payments falling on the property. In all this, the owner must cleanse the hirer. He is also responsible for the quiet, in the legal sense, use of the property, i.e. clears it of participants, since the owner’s rights to the property are subject to dispute (see about clearing the 1st part of the course, § 40). Accidental destruction of entire property falls on the owner and relieves the hirer of responsibilities, and private destruction can serve as a reason for a corresponding reduction in payment or for the complete destruction of the contract, if the agreed use is impossible. The tenant is obliged to pay the agreed rent to the owner on time; payment is assumed for performance that has already been carried out, therefore not in advance, but at the end of the term. Justice, moreover, requires an equalization of values, in accordance with the calculation of interest that was made at the conclusion of the contract, and therefore the law allows: firstly, deductions from payments (Nachlass) for defects and damage to use that were independent of the tenant and occurred due to malfunctions in the property; secondly, a general reduction in rent (Erlassung, remission) for a decrease in the profitability of agricultural property independent of the tenant. The tenant is obliged to use the property and use it in accordance with its economic purpose, and in any case, in accordance with the content and terms of the contract. So, for example, a horse hired for riding cannot be turned into a water carrier; Garden soil cannot be plowed for grain sowing, etc. Confusions and disputes during performance are resolved, if the contract is unclear, by custom and assumption. For example, when an apartment is obviously occupied by a shoemaker, you cannot have a claim that a shoemaker’s workshop is open in it. The tenant is obliged to use the property economically, i.e. like a good master, without exhausting him, without neglect and with due care. He is responsible for any damage and death caused by his own guilt and negligence. The rights and obligations of the parties under the rental agreement are transferred to the heirs. Unilateral transfer under a contract is a different matter: legislation does not understand this right in the same way. Prussian law prohibits a tenant from transferring his right of hire to another person without the consent of the owner; French law allows transfer if there is no prohibition in the contract. In general, when this new relationship is established, it is called subhire, sublocation (sublocatio, sous-louage). There is another difference in it. The original tenant can either allow a third party (sous-louer) to use the rented property, and in this case he himself becomes an observer of the actions of his tenant and is responsible for him; or he can completely transfer, cede his right, putting a third party in his place (céder le bail): in this case, the owner of the property has to deal directly with a new person. In both cases, although not in exactly the same way, a dual relationship is formed between both the tenant and the second tenant, firstly, to the first or main tenant, and secondly, to the owner of the property. The first tenant can be recognized as having withdrawn from the contract only in the case when the owner, upon leaving, enters into a new contract with another tenant. If the owner only agreed to the transfer or did not contradict it, then the first tenant is not free to the owner in responsibility for the actions of his tenant; he is directly responsible for the actions of the henchman, although the second tenant is a responsible person to the owner, and the henchman is also not entirely free from responsibility to the owner; however, the tenant does not have a direct claim to hire the owner of the property if he did not enter into a direct agreement with him. The alienation of one use and enjoyment of property cannot be decisive: in this case it would be identified with the alienation of an entire patrimonial right. Therefore, a tenancy agreement, whether fixed-term or indefinite, is generally subject to termination. In Western states, historically, types of hereditary use of land or dependent ownership were formed; these rights, where they still exist and are not permitted by redemption, usually belong to the category of real rights. Of the latest legislation, few allow the establishment of such rights again, by agreement, since transactions on long-term or continuous (emphyteutic) use can restrict the freedom of the parties and bind the rights of full ownership. The main legal form of this relationship was the ancient Roman and then Byzantine form of the emphyteutic contract, by virtue of which the owner of the land (usually the state), who owned the dominium directum in it, handed over the land for hereditary possession and use to another person, providing him with the so-called dominium utile in it, due to a certain quitrent. Subsequently, among the peoples of both the Germanic and Roman tribes, under the influence of both this old form and the newly emerged feudal relations, a form of dependent ownership was formed in subordination to the supreme right of property, on the basis of a contract; it consisted almost everywhere in connection with personal submission and with a relationship of personal service or loyalty. With the subsequent transformations in the personal relations of the classes, this form of ownership also underwent changes: dependent rights sought to turn into independent ones, and quitrent ownership into property rights. Therefore, in new legislation this form either disappears altogether or remains in a modified form of a purely civil relationship. However, it is still of no small importance where, according to the economic conditions of the region, it is also profitable to distribute empty and poorly cultivated lands on an emphyteutic basis: it is used mostly by the state for lands that constitute state property. This form is still in use in Portugal, Denmark (Arvefoeste), Holland (Beklemrecht), Italy (especially in the former Tuscan region) and Sicily, where there is a lot of uncultivated land. Therefore, the new Italian code contains, among its treaties, detailed rules on the emphyteutic contract. Its content is the assignment of land for indefinite or temporary use, for a certain rent, with the obligation to cultivate and improve the land. The subject of the assignment is the full right to use all accessories of the property and the bowels of the earth: this right, as a property right, is at the disposal of the owner, i.e. can be bequeathed and transferred freely. It is resolved, through the fault of the owner, by non-payment of rent for two years and non-compliance with the conditions for cultivating the land. Moreover, in order to open the way to the liberation of property from this bifurcation of patrimonial rights, the law allows the owner to redeem property from the emphyteutic owner at any time, by capitalizing the quitrent. Austrian legislation also leaves in the category of contractual rights of hereditary use of land (Erbpacht und Erbzinsvertrag), allowing unilateral transfer of use from one hereditary owner to another (Cesb. 1140). A fixed-term contract is terminated with the expiration of the last term or with the occurrence of the event whose use is limited. Indefinite hiring generally continues until the will to end it is declared on one side or the other; therefore, in general, its continuation, with the continued use of the renter, does not require a positive agreement of the parties. An exception is established by some legislation (France) for agricultural leases, the validity of which, without a specified period, is assumed, depending on the nature of the property and its use, only for the duration of the entire economic turnover (for example: for one year of harvest, for three years with a three-field farm, etc.); and then a new continuation agreement is required. So, an indefinite lease in general can be terminated, at the will of one or the other party, by a statement of refusal (Kündigung, congé), however, with the precaution required by the equalization of interests in the contract. It consists in the fact that the refusal of one party must be declared to the other party in advance, i.e. within the period usually determined by law, if it is not specified in the contract (six months, three months, at a certain time of the year, etc., depending on the economic nature of the lease); and until the end of the term the contract continues in its previous form. In exceptional cases, for special reasons, a refusal may occur earlier than the deadline stipulated in the contract. These reasons are indicated in the law; but even in these cases there is a rule about a timely declaration of refusal. Prussian law, which is especially replete with definitions on this subject, gives the right of refusal in many cases, such as: when alienating property by a court verdict; regarding the death of the hirer (not the owner); if necessary, major alterations and corrections to property that are incompatible with deceased use; in the event of circumstances beyond the will of the tenant that do not allow the tenant to continue use; on the occasion of major damage to property, etc. – In general, the following are considered legitimate reasons for refusal: abuse of use (i.e. use that does not meet the conditions) on the part of the tenant and non-compliance with the terms of the contract on one side or the other, for example: penalty for rent (according to Prussian law, non-payment for two terms). Is the rental agreement terminated with the alienation of ownership of the property, i.e. with a change of owner? This issue is not addressed by all legislation in the same way, as described in detail in the 1st part of the course, § 44. Lease is an agreement on the transfer not only of use, but also of ownership of property, since in essence of lease, use is impossible without ownership. This possession of the renter, of course, is not the same as the possession of the owner, which does not end with the rental of property, for in both cases the spiritual content of the possession (animus) is not the same. The owner owns it for himself, with a consciousness of ownership; the renter also owns for himself, with the consciousness of the right to ownership; but his possession, although dependent, is nevertheless firm and inviolable within its borders. We find something similar, but even more definitive, in the historical types of dependent, feudal limited ownership, from which the current type of tenancy agreement has degenerated with the economic development of society. So, to determine the essence of hiring, a personal contractual principle alone is not enough. In hiring, this principle is connected, essentially, with the patrimonial principle of ownership. This connection must be borne in mind for the correct definition of the relationship arising from employment. It is necessary to recognize that the renter owns the property provided to him by the owner of the property, with the right to use and full enjoyment, for which the renter undertakes to make the agreed (wage) payment to the owner and, upon expiration of the term, return the property to him substantially intact. This meaning of ownership in renting becomes especially important when faced with the patrimonial right of the new owner, as a result of the transfer of ownership of the property to another person - and specifically in immovable property, since in movable property the owner of the thing, who leased it, is deprived of material possession of it, and the renter receives full and exclusive material power over the thing. The above issue was decided by Roman law unconditionally against the hirer. Roman law recognized in renting only a personal obligation between the owner and the renter, not allowing ownership in the person of the latter: this personal obligation could in no case be transferred with the transfer of ownership to the new owner, and thereby the connection of the renter with the hired property was severed. Prussian law, on the contrary, recognizes the transfer of the obligation to the new owner and leaves the rental agreement concluded with the previous owner in full force. Austrian law adheres to the Roman theory, but at the same time recognizes the conditional ownership of the tenant of the right to hire; and therefore, although it does not deny the continuation of this ownership after the transfer of ownership to the new owner, it does not transfer obligatory personal relations for hire to this successor, so that the tenant remains to demand the execution of the contract, i.e. security for the free use of property from the person with whom he entered into an agreement. According to Austrian law, rental contracts are transferred to the new owner only in the case when they, at the time of the transfer, were listed on the property in the land register. French law, although it recognizes the right of the tenant only as a personal right, however, protects it in the interests of the economy and industry: the tenant, who has already entered into actual use of the property, before its transfer to the new owner, cannot be removed from using it by virtue of the contract. But just as in other cases the new owner may suffer from this, who did not know when purchasing the estate about the rental agreements on it, according to which sometimes the hired money was taken several years in advance, the law determines the period (18 years), after which the agreements concluded by the previous owner and the previous payments (3 years) are optional for the new owner, if they were not listed in the mortgage book during the transfer of the property. The effect of limitation on a lease agreement cannot be as decisive as in other agreements. A claim for separate payments for a period of time is, without a doubt, extinguished by prescription; but the effect of the contract and the lease claim connected with it, in its essence, is not extinguished by prescription, even if the rent was not made at all, as long as the rental property continues, without other grounds. Upon expiration of the rental period, the contract may be renewed by a new definitive agreement of the parties, expressed positively; but even in the absence of such an agreement, the law recognizes the power of silent continuation of the lease (tacite reconduction), when even after the expiration of the term, the tenant remains in quiet use of the property, without objection or refusal from the owner. How much time is required for such quiet enjoyment so that it can serve as an indication of the continuation of the contract depends either on the legal definition or on the judicial assumption. But when this assumption is accepted, it is still necessary to determine for what period the validity of the contract extended in this way extends. In any case, a continued contract is considered without a term and, therefore, can be terminated by refusal on a general basis. The rental agreement is very important in the national economy, and therefore legislation carefully tries to give the relations arising from it all possible definition and credit power. The actual ownership of the hired property serves to protect the interests of the renter; The owner’s interests consist in the proper satisfaction of all payments due from the renter. To secure it, the law grants him the right of pledge on the movables that make up the tenant’s household in the leased property, even on his own things located in that property, on the fruits removed and even not yet removed, and provides a way to preliminarily secure upcoming collections by arresting the said things, in a special form of process (Arrestprocess). The French law on the rental of residential premises, protecting mainly the householder, indicates to him the indispensable security in the movables located in the tenant's apartment, even giving the right to refuse the tenant from the apartment before the deadline if there is not enough movable property for this security, and to prosecute both the tenant and third parties for deliberately removing things from the apartment. - But in agricultural leases, the same law, for the same purpose, obliges the tenant to supply the farm with sufficient inventory and to establish proper warehouses for fruits, which also serve as security for the owner. In case of delay in payment for at least one day, the owner, having presented a written demand to the tenant, has the right, 24 hours after that, to seize his movable property, fruits and supplies on the estate. Tenancy establishes temporary and dependent ownership of property and in this sense it has some external similarity with certain types of patrimonial ownership, for example. with usufruct or lifelong or temporary possession. The difference between one and the other, however, is significant, and it will not be useless to take a closer look at it, which will serve to explain the essential properties of hiring itself. Usufruct is established not only by contract, but also by will and constituent act. Hiring can only be by agreement. Usufruct can be compensated, but for the most part it is gratuitous or gift. There can be no free hiring. Usufruct is a lifelong right. The rights and obligations of the parties under the rental agreement are transferred to the heirs. Usufruct is a patrimonial right combined with a patrimonial transfer, and the transferor-owner only provides the property at the free disposal of the user; in the lease agreement, the owner, upon transfer, undertakes to positively ensure the tenant continuous (singulis momentis), quiet and complete economic use of the property. So, in the event of the destruction of property, the usufruct user bears its consequences without being released from the obligations assumed; in rental - the destruction of property falls on the owner; the hirer is obliged to bear responsibility and pay only for what and insofar as he actually uses it. In usufruct, the owner is not obliged to take care of maintaining the property in proper order, and the user is not obliged to return it in the same form as he received it (as long as it is intact); in hiring, both the owner and the hirer bear this responsibility. The establishment of usufruct is associated with the alienation of patrimonial rights, and therefore is possible only for the owner; Not only the owner, but also the manager or economic manager can rent out property. Usufruct is a patrimonial and immovable right; rental use is a right under an obligation and relates to movable property. Among the different types of hiring, the most important is the hiring of land and established farms for rural industry. This subject has received special attention from legislation, which seems to be most developed and complete in those states where agriculture has achieved the greatest development. In defining the relations arising from this hiring, other legislations (especially Prussian) are replete with rules; others leave much room for the action of custom, which has a predominant importance in affairs of this kind, arising from the various methods and needs of local economy. Thus, in other places, the general type of property leased out is an established farm, with a rounded economic district and establishment; in others it is an arable field. Meadow land, vegetable garden, orchard, vineyard, etc. Each land presupposes its own economy of production, its own conditions of economic exploitation, combined with the preservation of the productive power of the property. All these differences are reflected in custom and often in legislation, in relation to the main goal of any rule - a fair equalization of interests between the parties involved in the contract. In other places, farming is carried out mostly by tenants who rent farms and lands from large owners; in others, for the most part, the owners themselves manage their small plots. In other places, settled, regular farming is carried out on an annual basis, with the help of permanent workers; in others, the land is plowed and sown, and the harvest is reaped by newcomers or moving workers. All this is reflected in legal forms. The terms of hiring depend in each locality on custom, on the type of land or farm. They are generally proportional to the duration of economic crop rotation in one or another economic system. Long-term leases are avoided when there is reason to fear depletion of the soil or its damage, and therefore the terms are longer when the land is allocated for arable farming, and shorter when it is allocated for gardening, winemaking, etc. – Other legislation defines a deadline beyond which a real estate lease agreement cannot extend, since otherwise a long-term lease would, in essence, mean the transfer of patrimonial rights through a personal contract. Thus, Italian law prohibits the rental of real estate for more than 30 years, allowing only to give houses for housing for life: an exception is allowed only for wild and inconvenient lands that can be given for plowing for a hundred-year period. As a general rule, the owner of the property must maintain it in such a condition as to provide the tenant with the agreed use. But this duty of the owner and the corresponding duty of the hirer are modified according to local economic custom. So, in some places the owner supplies the hirer with complete household equipment, livestock, sometimes even seeds for sowing; in others, on the contrary, the hirer himself usually equips his farm; in other places, the renter is required to provide special maintenance in the form of a cash deposit; in others, it is not required at all or the collateral is economic movable property. When the tenant begins to use the property, it is necessary, in view of future calculations, to determine exactly the composition and position of the property or farm being rented out - for which there are more readily available methods where the plots are demarcated and the cadastre system is in effect; but in many places there is a custom - at the very time of delivery of the property, to describe it and put it in the price through two or three intermediaries chosen by the parties. The inventory of an estate, according to Prussian law, must contain a detailed description of all movable property belonging to the household (dead inventory, live inventory [livestock]), income and expenses and mutual obligations, and serves as the main basis for subsequent calculations, in which there may be either a decrease (minus inventarium) or an increase in things in quantity and quality (plus inventarium and superinventarium), and when the property is surrendered without inventory, as is (Pacht ohne Anschlag, Pacht in Pausch und Bogen), then it is assumed to be accepted with everything that is needed for the economy. The agricultural integrity and productivity of the property is assumed to be continuous, and therefore, upon termination of the lease, it must be handed over to the owner or a new tenant with everything that, at a given moment of economic turnover on the estate, is necessary for the unhindered continuation of economic productive activity. This raises the questions: what of the estate’s supplies, from stocks and seeds or fruits, from straw, fertilizer, etc., does the departing tenant have the right to take with him and what should he leave on the estate. These issues are decided by custom, if not determined by law. The owner is afraid for the integrity of the property; the owner is responsible to the tenant for the agreed opportunity to use, for the essential qualities of the property necessary for use. But fear for the actual productivity of use, for the fruits collected and harvested from the property, for the benefits of use - cannot lie with the owner. It lies solely with the hirer. So, it would seem that whether the renter has collected and profited from the hired property, whether a lot or not, the owner is not liable to be held accountable to him for his deceived expectations. However, almost all legislation allows, for the sake of justice, the right of the tenant to demand from the owner a proportionate reduction in payment or quitrent, when, at the conclusion of the economic transaction, it turns out that, due to extraordinary events independent of the will, the tenant has lost the entire harvest or a significant part of it, so that he has nothing to help the owner with money for the annual quitrent. This right is established more extensively in other legislations, while in others it is limited within narrow limits. The Prussian law expands it excessively: external adversities that befell the economy, such as drought, hail, fire and flood, loss of livestock, damage from locusts and other insects, etc., are recognized as the reason for reducing the payment; The reason is considered to be the death of not only standing fruits, but also those collected in reserves. Moreover, in addition to a general or per-unit reduction in payment, a private reduction is also allowed when it is not the whole farm that suffers from adversity, but one economic item. In all these cases, the tenant is obliged to prove his right by submitting a detailed economic report, with a detailed identification of all items of income and expense specified in the law on the estate. The final conclusion should be an amount that does not reach the annual rent paid to the owner. This is the Prussian rule; but cases of its application are quite rare, because contracts are very often drawn up with a waiver of the right to reduce payment; In addition, in practice, renters protect themselves from adversity with special insurance contracts. French law allows such a right without consideration of the amount of labor payment and does not take into account the monetary value of the income. The basis for reducing the payment is damage in the amount of fruit, at least half of the normal harvest, resulting from an accident (cas fortuit). Requirements of this kind are subject to satisfaction only in connection with the entire continuation of hiring for all fixed-term years, in the general account of the income of the entire hiring operation. Remuneration is not allowed either for individual items of farming or for the destruction of fruits already collected. The rental of land and economic establishments acquires special significance when payment for use is determined by a certain share of the fruits and products collected from the land (colonat partiaire, bail à métairie, mezzadria). In this case, the owner enters, so to speak, into a share with the hirer: the relationship between the parties is similar to a partnership. Therefore, in this type of hiring, losses and damages fall on both parties and cannot serve as a reason for remuneration or a reduction in duty. This form of hiring is used especially in those places where, with little development of economic industry, neither the owners nor the tenants have sufficient monetary capital and do not have a large supply of tools for rural industry. Developed industry seeks freedom and independence in action, which cannot be found in a colony, because here the owner has to monitor the household of his tenant and check his work. Agreements of this kind are commonly used in France, Portugal, and especially in Spain. The terms of the transaction are not the same, according to local custom: the land is leased from half, from a third, from a fourth and a fifth of the fruits. In other cases, the owner is not obliged to supply anything to the hirer who cultivates the land with his own means; in others, it supplies the hirer with seeds for sowing to account for the harvest and with farm supplies. The laws on this treaty are generally sparse in definitions, except for the Italian code, which has a whole large chapter on colonata. According to Italian law, the colonata is supposed to be hired from half: accordingly, the seeds for sowing come from the owner in half. The hirer cannot sell his works without the consent of the owner and must notify him in advance when he begins to harvest or collect fruits, so that the owner can supervise the collection. There is no deadline in this agreement, and refusal can occur only at the end of the business year. Upon the death of the tenant, the contract terminates at the end of the current financial year. A special type of rental agreement is the rental of livestock (France, Belgium, Italy, bail à cheptel) for the farm. The owner of the herd gives it to the tenant for economic care, so that all profits, as well as losses, from growth and wool are divided equally between the parties, but the right to labor, milk and manure belongs exclusively to the tenant. The normal contract period is three years, and at the end the cattle must be returned to the owner intact, in quantity and quality. In addition to this type (cheptel simple), there is a half lease (cheptel à moitié), in which both parties share their livestock in half, forming a partnership. Finally, a similar agreement on the delivery of the owner's livestock for the use of a hirer is combined with a farm agreement (cheptel donné au fermier). § 46. General rules of employment under Russian law. – Hiring deadline. – Personal restrictions. – Form of agreement. - Price. – Space of use. – The right of ownership in the lease and its affiliation. – Transfer of hire. – Performance of the contract and termination. – Restriction of hiring in mortgaged estates. – Hiring from the building. – General note about the law of land tenancy. Russian law is extremely sparse in general definitions of hiring, and those that it contains look random and fragmentary. This paucity in the legal development of the internal content of hiring is explained by the state of our agriculture and industry, still primitive in many places, and very undeveloped in others. The most ancient regulations of our law on hiring relate to the hiring of land by peasants, for the most part to satisfy the essential, and not the industrial needs of everyday life, and are in connection with an economy that has not yet risen to the level of money, with an extreme diversity in the market value of rural products, and sometimes with a complete absence of a market. Therefore, to this day, many difficulties are encountered in practice in resolving legal issues arising from hiring. On the other hand, our legislation suffers from the abundance and variety of private regulations on the hiring of, mainly state-owned and public property, and special attention was paid to the formal side of the matter. The definition of tenancy (which is not in the law) can be derived (Cass. decision 1868, No. 248) as follows: an agreement in which one party provides the use of its property to the other party for a certain period and for a certain remuneration. So, the essential elements of the contract are the term and the rent. Other accessories depend on the special conditions between the parties (Article 1691) and, in some places, on custom, based on justice and therefore expressing its effect not in judicial verdicts on disputes about the right, but in mutual transactions and concessions with voluntary execution. This is how, in practice, confusion about what the owner of the property is obliged to do in terms of maintaining it in order is resolved (although there is no indication of this in the law). Thus, in addition to the law, in fairness, a reduction in rent is made in case of loss to the tenant due to accidental disasters (for example, when the tenant who rented the garden had no fruit at all due to crop failure). The deadline for hiring was determined by law at first only for lands given from the treasury and from state-owned people in quitrent; but in 1824, in connection with one private case, it was recognized that between private individuals the period of rental of real estate should be no more than 12 years. This prohibitive rule was included in the Code of Laws (Article 1692). The decree does not explain for what purpose this restriction was established. Various goals can be assumed: preventing restrictions in the right to dispose of property for the owner himself and his heirs, preventing frivolous and wasteful returns, tantamount to alienation of property rights and destroying the value of the property in the hands of a conscientious buyer; finally, the protection of government interest from damage in serf duties for actual sales. But there are other interests that require protection - the interests of industry and economy. For serious and long-term industrial operations that require the expenditure of significant capital, confidence in the quiet, long-term use of the hired property is necessary, because, otherwise, no one will dare to undertake anything significant on it. In view of these interests, in 1855 it is allowed to lease acquired empty lands for a period of more than 12 years, even up to 30 years, for the establishment of factories and factories (1693 Art., ancestral lands are excluded, of course, in the sense of protecting the value of the estate for the legal heirs). The same benefit exists for empty lands given for the construction of dachas at a 25-verst distance from both capitals. Since 1861, former landowners were allowed to lease out vacant lands for up to 36 years (1693). Appanage lands can be leased for the same 36-year period (1693). In the Yalta district, since 1874, it is allowed to rent out real estate for periods of up to 90 years (1693). In 1885, the Minister of State Property was granted petitions for the lease of private lands for the purpose of developing minerals for periods longer than allowed to be submitted through the Committee of Ministers for the Highest Permission (1693). Nomadic societies in the regions of Akmola, Semipalatinsk, Semirechensk, Ural and Turgai are allowed to rent out land in winter camps for up to 30 years to persons of Russian origin for agriculture, for factories, plants, mills, etc. (Law. Civil., Art. 1693 Note 2 to Cont. 1895). The owner or manager, acting under a power of attorney, within its limits, has the right to rent out property (Constitution of Torg., 323 et seq.). Persons limited in the right of ownership are also limited in the right to hire. These restrictions are established either in the direct interest of the state, or in the interest of other persons having the right of succession or security in the same estate. Thus, owners of estates granted primordial rights in the western provinces are allowed to rent out spare lands for a period of no more than six years (504 Legislative Civil Code). The owner for life (spouse), when he gives the estate for rent, can receive rent not in advance, but only after the expiration of a year (Article 5377), and in general the right of a fixed-term or lifelong owner is limited to the period of his own ownership, unless the agreement is concluded with the consent of the owner: guardians have the right to enter into such agreements for a period until the minor reaches 17 years of age, otherwise such an agreement is not obligatory (16921). Monasteries and churches can lease out land and real estate belonging to them, on a general basis, for a period of up to 12 years, according to the consideration of the Consistory, with the approval of the bishop, who, however, disposes of his own monastery (IX, 384, 389, 405. Ordinance. Spiritual Cons. 112, 132, 145). Moreover, it is prohibited to establish trading establishments on monastic lands, and to place drinking establishments and taverns in church houses (IX, 384, 389, 405. Establishment of Spiritual Cons. 112, 132, 145). – On the rental of lands belonging to R. Catholic. and Lute. Spirit. installed see Set. In. Confession Art. 119, 607, 808. – On the lease of lands owned by the clergy in the Western and South-Western Gubernia. – IX adj. to Art. 411, § 28, 30 et seq. The owners of free pharmacies, when renting them out, are limited by the obligation to inform the medical authorities about this in order to inspect the pharmacy when it is transferred to another person (Ust. Vrach. ed. 1892, art. 556). Officials of the excise department are prohibited from leasing distilleries in the province where they are in service (Vol. V, ed. 1893, Establishment of Pitein., Art. 13). In general, the lease of distilleries is permitted only to persons who have the right to the distillery industry (ibid., Art. 118, 119). The law restricts the right to be a hired worker to Jews. They can rent quitrent articles and establishments only under formal contracts. They (as well as persons of Polish origin) are completely prohibited from leasing estates acquired in the western provinces under the loan law of 1864, or even individual lands in these estates (Article 1699 of the Civil Code). Outside their places of permanent residence, Jews cannot rent government-issued quitrents and nowhere can they rent articles associated with the fragmentary sale of drinks. Est. Arr. ed. 1893, art. 27; Est. Kazen. Name ed. 1893, art. 35 and adj. to note 3 to art. 2: art. 18.IX. 961. Jews cannot be tenants of gold mines (see Ust. Gorn., ed. 1893, art. 435). For the restriction of Jews in leasing distilleries, see Akt. Est. ed. 1893. The Law of 1882 prohibited the certification in the name of Jews of lease contracts for real estate located outside the boundaries of cities and towns (IX, 959, note 4, according to Prod. 1890). A contract for the lease of movable property may be concluded verbally. But an agreement on the lease of real estate, as well as seagoing and river vessels, is drawn up in writing and certified by a notary. In this case, the reliability of the date on which the contract was made is of particular importance. Agreements on the rental of urban buildings and land plots in the city or in general in an urban settlement, for example, a town (Cass. decision 1885 N 61), are drawn up in writing or verbally, at the discretion and mutual trust of the parties (Articles 1700–1703). Rental agreements between peasants for land with landowners, among themselves and with outsiders, for no more than three years for any amount, and for periods up to 12 years for no more than 300 rubles, can be concluded verbally, with entry, at the request of the parties, into the book of the volost government (Article 1700). The content and space of use depends on the agreement of the parties. Regarding immovables, the law speaks of separate ownership; The law does not mention separate use of immovable property, using this term only in relation to movable property (Articles 514, 535). Separate ownership constitutes in itself a special right, the scope and urgency of which are determined by the very act by which it is established. About use (in movables) it is said that it is complete, when all the products of property and the income from it belong to the owner; incomplete when some of them are not provided to him (Article 536). And since under this article a reference is made to Book IV on obligations, it is necessary, despite the inscription of a group of articles on use (534–540), to recognize that they also apply to the use of real estate. In general, it is assumed that the property is given for such use as is appropriate for its purpose and the nature of the lease. So, for example, agriculture is leased out or for economic exploitation; this does not mean that the hirer has the right to develop ore or minerals in the bowels of the earth, unless a special right to do so is expressed. A garden is rented, which means it cannot be plowed up or used for meadow farming or pasture. The law does not mention the provision of rent by the tenant's property. But, it seems, there is no obstacle to imposing a prohibition on the estate at the request of both parties. There is an indirect indication of this in the 1861 law on the lease of landowners' lands (Article 5). In practice, it is most common to provide a lease agreement with a penalty. The agreement on the hiring price is left to the parties. In most cases it is determined by personal discretion; But there are properties in which, depending on the state of local industry and the local market, the average rental price of one or another is formed according to its quality. The most important thing for the economy is the rent for land or land rent. But in rental agreements, the rental price is not always determined by money. In many localities, when the cash economy is scarce, due to the difficulty of selling rural products, when there is a shortage and improper distribution of labor, etc., we use the method of renting out land from the floor, i.e. for half or another part of the harvest (from the third, fourth sheaf or shock), or for working out an agreed amount of land in favor of the owner; sometimes the rental price is based partly on money, partly on labor, partly on various kinds of services, duties and supplies (the payment of a certain amount of food) from the hirer to the owner. From the lease agreement arises not only the right of use, but also the right of ownership, as a necessary condition for the lease; Of course, possession in this case will not be independent, but dependent, separate (Articles 514, 535). Therefore, the tenant of the property, although he does not have ownership rights to it, is not deprived of the right to sue for the protection of his temporary possession, for the aversion of harm and for compensation for losses caused by the intervention and actions of a third party. One can judge differently if we adhere to the Roman concept of ownership: in this case, it must be recognized that, by virtue of the contract, the protection of the tenant from interlopers who violate his quiet enjoyment lies with the owner-owner and, since it relates to possession, constitutes the exclusive property right. But such reasoning is hardly applicable to Russia and is hardly consistent with the spirit and essence of Russian law. And our judicial practice generally assigns a claim for possession to the tenant (cf. Cass. decision 1869, N 745, 849; 1871 N 600). True, there are also opposite solutions. Thus, by the decision of 1870 N 1627 it is recognized that temporary use of property, by assignment from the owner, does not give the right to a claim to restore the violated use in the manner specified in paragraph 4 of paragraph 29 of Art. Est. Gr. Court.; but this decision is in no way consistent with others, which recognized the right of a temporary and dependent owner under a lease agreement to sue for the restoration of violated possession. However, it seems fair to admit, in the sense of paragraph 4 of Article 29. Est. Gr. Court, that the right of action for possession belongs to the tenant only in relation to third parties, and not in relation to the owner himself. Ownership in one's own name, in the form of property, possession of property as one's own thing, is protected unconditionally and against any intervenor by an action for the protection of possession. But it is impossible to admit the same about the possession of a renter, for it is not an independent state, but a derivative, dependent one, since the owner, in his very possession, recognizes it as temporary, conditional, and dependent. Therefore, the relationship of such an owner to the participants is not the same. If this possession is violated by a third party, for example, by the seizure of a neighbor, the owner can oppose him with the simple fact of his possession, and thereby repel the violation. If in this case the intervenor begins to prove his special patrimonial right to the property, directing it against the patrimonial rights of the owner (from whom the tenant received possession), the actual owner-tenant does not care about this, since the owner himself would not care about this if he had to ask for protection of possession. For this reason, the magistrate's court is allowed to take these cases under its jurisdiction. On the contrary, if the tenant asks for protection of possession against his owner or against a person who has acquired a patrimonial right to the estate from the owner, then it is no longer enough for the plaintiff to certify only his possession, which, by its nature and according to the plaintiff’s consciousness, is not independent, but dependent. The plaintiff must present the title of his possession and certify that, by virtue of this title, the owner or the owner’s successor did not have the right to violate or take away his possession of the whole property or part of it before the deadline. Consequently, the court cannot, due to the nature of ownership and relationship, do without verifying the right to ownership, and in this case the case turns out to be beyond the jurisdiction of the magistrates’ judicial rulings (cf. Cass. decision 1870, No. 1254). There is a direct article on tenants of state-owned estates (individuals and companies that own the property of state-owned departments on the right of use) - 1314 of the Constitution. Gr. Court, granting them the right to sue for the restoration of violated possession. According to the charters of insurance companies, the tenant or renter can give up the rented property, but only for the duration of the lease, and receives insurance compensation only to the extent that he himself is responsible to the owner for fire losses (Russian Page General. 1876, § 53, 54, Establishment; Commercial Page General. 1870). The right to transfer tenancy is not in itself implied. Naturally, the owner of property cannot entrust everyone with the economic use of it, combined with economic disposal. Therefore, one cannot but recognize the right of the owner to reject the unilateral transfer of the lease to another person and in this case demand the destruction of the lease; the original hirer is not relieved of responsibility for the consequences of such a transfer. Tenancy involves the personal and direct use of property for the purposes for which it is intended to serve. But every property can serve different purposes. One is the economic use of property, the other is its conversion into speculative, industrial or commercial circulation. The latter in itself is not assumed in the rental, but requires a special agreement or permission from the owner. So, for example, renting out a horse or carriage does not authorize the hirer to use the horse as a carriage or to make a living by renting out the carriage. The tenant of an apartment in a house cannot, without an agreement with the owner, trade in it, i.e. let residents in for little things, or set up an overnight shelter in it. The tenant of an estate can rent it for a special business or profiteering, which consists of distributing land in small plots for maintenance to third parties; but if there is no consent of the owner, it is impossible to recognize this trade, which is often very harmful to the economic integrity of the estate, as a rental property. Quite items belonging to the estate, which constitute the economic income of the estate, are a different matter: giving them to third parties for maintenance is, without a doubt, the rights of the renter. Regarding the execution of the contract, the law says that the owner does not have the right to refuse the hirer before the deadline, and the hirer does not have the right to refuse to hire (Article 1705). However, even without a direct legal definition, judicial practice necessarily recognizes the right of refusal in contracts written without a deadline, and the right to silently continue the contract. Regarding movable property rented, it is said that if it is damaged, it is given to the tenant, and he is obliged to pay the owner the price of that property, as assessed by outside knowledgeable people (Article 1708). This rule is taken literally from the Code of 1649, which primarily refers to damage to horses. Without a doubt, it does not exclude the possibility of correcting and repairing what is damaged if the thing can be restored to its original form. Upon expiration of the term, the employment is terminated; Our law does not speak about the silent continuation of hiring, but judicial practice allows the continuation of rental relations when the rent is accepted for a new term by the owner of the property. The employment relationship does not end with the death of the persons involved, but passes to the heirs. The sale and general alienation of hired property also does not in itself terminate the hired relationship, as explained in more detail elsewhere (Part 1 of the course, § 44). Is the tenancy terminated with the unconditional recognition of the illegality of the master's possession, i.e. When is property recognized by a court verdict as the legal property of another person? This question has a close connection with the general question of the effect of the sale of an estate on the rental agreements of the previous owner. Both there and here there is no basis in our law to apply the strict principles of Roman law and to destroy lease agreements passing with the estate, although, without a doubt, the former illegal owner is guilty, in any case, of satisfying the new one for all rental payments received by him and passing beyond the line of his possession. Of course, the effect of the note to Art. should also be applied to cases of this kind. 195 Pol. Collection Citizen and 1099 art. Est. Gr. Court. In the case of forced alienation of property for state and public needs, the validity of lease agreements on it, of course, must terminate, and in this case there is hardly any reason for the tenant to seek compensation from the owner for the loss, unless there was a special condition between him and the owner. Our laws on remuneration do not contain any regulation in this case. Is the tenant of the land responsible for taxes and duties on the land? According to our laws, this question should be answered in the negative. Whatever the mutual conditions on this subject may be between the landowner and the tenant, the government penalty, since it is established on the land, falls directly on the land, and therefore on the owner of the land. In this sense, there is rule 14 et seq. for tax collections. Art. V vol., ed. 1893, Const. Straight. Tax. The land tax is applied to the income from the estate, and therefore to the rent, as to the property of the owner, and in case of shortage, to the land. By force 1 p. adj. to 55 Art. Est. Earth Pov., zemstvo land tax falls on the land, regardless of whose ownership it is. Accordingly, it was decided by the State. Sov. (October 1877) Kuroyedov’s case, about the zemstvo tax on land, which in 1775 was given to the peasants for 90 years, with them receiving a small payment in advance for the entire time. The owner argued that all the essential contents of the patrimonial right were transferred to the tenants, and therefore they should be responsible for the duties on the land. A power of attorney agreement for the provision of property as collateral for someone else’s contracts has some analogy with the rental of property. Here, the subject of the contract is not essentially the right to use, but the right to dispose of property, since the pledge, in the event of a contractor’s malfunction, can be turned into sale. Therefore, the content of such an agreement does not correspond to the essential property of the lease, in which only the right to use the property is ceded, while preserving its essence and without any right to disposal. Receiving rental money in advance on estates leased for a long period of time may serve to the detriment of the buyers of the estate or third parties whose rights are secured on the same estate or who must receive satisfaction of their claims from it. Therefore, it is established: lease contracts concluded with the receipt of money in advance for more than a year are considered valid (relative to third parties) only in the case when they are certified, with the imposition of a prohibition on the estate (which discloses the rental right lying on the estate). Art. 1703. Owners of estates mortgaged (both in private hands and in banks) are not deprived of the legal opportunity to lease them out; but when selling an estate to satisfy a mortgage, this circumstance, i.e. the existence of a lease for several years, constraining the buyer, reduces, to the detriment of the mortgagee, the value of the estate. In this case, if the lease agreements are concluded after the prohibition imposed on the estate under the mortgage, the lease is terminated (Pol. Recovery Civil., Art. 195, note). In general, in case of recovery from estates leased to the Court. The charters stipulate that lease agreements, which will be concluded after the owner receives a summons to foreclose on that estate, can be destroyed at the request of the claimant, or the one who buys the estate at public auction (Constitution of the Civil Court, art. 1099, 1100. Compare Cass. decision 1881 N 99 and the 1st part of this course, § 70). The 1861 law on the lease of manorial lands states that payments made by the tenant to the owner more than two years in advance, if the estate is then put on public sale or awarded to another, may be declared invalid by the lenders or the new owners (1703, note). One type of hiring is hiring from a line-up. 1697 art. says that courtyards, shops, mills and other places intended for business establishments can be rented out or maintenance from the building, at the expense of the renter, so that he will use the built building for an agreed number of years, and after the end of the period, everything built would become the property of the owner. 1706 art. Zach. Citizen although it apparently refers to hiring from the line, it essentially does not apply to it. Dec. State Sov. (1824 P.S.Z. N 29974), from which this article is inaccurately extracted, did not mean renting from the building at all, but renting the bishop's courtyard, and the text of the decision, as well as the text of the article itself, contradicts the concept of hiring from the building, for it talks about the costs of correcting a building that was on rented land, and even about amendments that could violate the integrity of the building. This article of the law is relevant only in the issue of settlements between the owner and the tenant, when the lease contract is terminated earlier, regardless of the will of the parties. A special type of rental agreement, which, however, is related to the contract, is an agreement on the construction of premises for government offices, prisons and other buildings of the Ministry of Internal Affairs, for renting them out to the government. The legislation issued on this subject defines this agreement in the following terms. The Ministers of the Interior, Communications and Finance, by mutual agreement, are allowed to assign to private individuals the construction of buildings for public places, prisons, etc., according to the approved plan, and the treasury provides, in case of need, an allowance by issuing a certain amount in advance against a reliable deposit. After construction, the building is accepted for rent from the builder for a period of up to 30 years, for a certain annual fee. During the tenancy, repairs of the building are the responsibility of the owner (Ust. Stroit., 123 and approx. according to Prod. 1886). According to the general meaning of these rules, it should be concluded that a building constructed in this way remains the property of the builder even after the lease ends. The builder of such buildings must be recognized as their owner from the time of their construction and acceptance, and the treasury is considered a tenant, and therefore the owner’s responsibilities include taxes and duties falling on real estate (cf. Mn. State Council in April 1877, according to Vulfa). Russian legislation on land rental still has a lot of work to do in its further development in proportion to the development of economic conditions for rental. These conditions, in different regions of Russia, are extremely diverse: hence the difficulty of bringing them under one general measure. In Western Europe, the concept of the economic, productive essence of property, of accessories for use, of tools and methods of production, of improvements and enhancements, etc. has long been revealed in its entirety, has come into consciousness and in connection with definitive value. Here in Russia, the concepts of all this have not yet been clarified, and much that in the West can be easily taken into account and determined by number, measure and price, in our country is not accessible to precise accounting and definition. Moreover, our agriculture, for many reasons, among other things, climatic conditions, poverty of the market, poverty of capital, industrial enterprise, technical knowledge, etc., is absolutely not suitable for the conditions under which hiring legislation was formed and developed in the West. Land lease agreements do not have the same meaning in our country that they have in the West. Nevertheless, our rental area is expanding every year, although not in the sense of farming, but mainly in the sense of renting fields for arable land, and usually what is meant is not so much the strengthening of internal development in terms of quality (intensive farming), but rather its expansion in space in terms of quantity (extensive farming); however, the lease agreement urgently requires new definitions from our legislation to protect the interests of both private and public. If an excessive abundance of legal definitions sometimes causes harm and has a constraining effect on civil relations, then, on the other hand, the poverty of definitions can serve to harm interests that require guidance and protection in the law. So, for example: when the content of a rental agreement is determined solely by the will and desire of the parties, this leads to the multiplication of dark, unclear, ambiguous transactions, through which a clever and cunning industrialist, a land buyer, a crafty agent - an intermediary between the landowner and the tenant - can, without difficulty, deceive poor, inexperienced and illiterate tenants with combinations of conditions that are supposedly beneficial to them. There are many examples of this, especially on our outskirts, where a whole class of people has formed who make a living by giving away lands to their own and foreign settlers. The interests of the owner also require security: our law does not indicate this security either in the works of the land or in the movable property of the renter. Determining hiring deadlines is a subject of no small national importance. A long-term lease, which binds the right of ownership, transfers its essential maintenance to the temporary owner of the land, while the owner, by law, retains all the burdens and duties that lie on the property. Meanwhile, the acquisition and transfer of property rights is incomparably more difficult than the acquisition of lease rights to land, which is available to persons of all classes, all social status and all nationalities. So, under favorable conditions, land ownership in the region may turn out to be the property of persons who essentially do not own and have little wealth, although they are responsible to the state, and actual ownership is in the hands of people who are alien to the interests of the country and are not responsible to the state for the burdens and duties lying on the land. The task of the law is to reconcile in this case the interests of the state with the interests of property, capital and rural industry. The essence of hiring. Is the giving of land for cultivation half-and-half or from the third sheaf (from the hoard) a lease of property or an agreement of personal tenancy or partnership? Resolving this issue is important in cases where the lease agreement prohibits the sublease of land. In a similar case, the Odessa Chamber recognized such a transaction as a lease and a violation of the contract. The Senate left this issue without resolution (Cass. decision 1875, No. 35). The lease of property transfers the use of it, not the right of ownership. Therefore, the condition of selling the forest for felling, with the provision of use of pasture and mowing in it, was incorrectly included in the lease (Cass. Resolution 1867, No. 158). Deadline and continuation. The distinctive features of a property rental agreement are the term and the rent. Without a term, use would qualify as a patrimonial right, and without payment, the agreement would be a loan (Cass. decision 1868, No. 248). Both state-owned and private estates can be leased only for a period, and not indefinitely (Cass. decision 1876, N 350). Silence on the part of the owner of the rented property (i.e., failure to demand return after the expiration of the term or failure to notify about the termination of the contract) does not serve as a sign of consent to continue the contract: it takes away the meaning of unauthorized permission from the owner of the renter, and can serve as a basis for the continuation of the previous relationship, but only until the owner demands the return of the property (Cass. decision 1873, No. 693). Imprisonment and destruction. The law does not prohibit members of the church clergy from renting out the church lands they use to generate income (Cass. decision 1870, No. 1374). There is no reason to demand the destruction of the lease agreement when any of the essential accessories of the property has lost its existence (Cass. decision 1870, N 1533); but the rental agreement is terminated if the leased property is destroyed as a result of an accident or due to the fault of the lessor, tenant or third parties, since the rental agreement always presupposes the existence of the leased property (Cass. decision 1881, No. 82). To Cass. decide 1876, N 591, - a case of the Chisinau police leasing private property for arrears in permanent service. There are special rules on the lease of land by Old Believers in the Western and Belarusian provinces (see Collected Uzak. 1876, No. 614; 1877, No. 1142). Refusal. Cass. decide 1873, No. 1141. The court decided that refusal to rent an apartment is evident only in such an action by the tenant, from which it is clear that he refused to fulfill the obligations assumed under the contract. Therefore, when a tenant allows another person to live in the apartment in his place, without relinquishing his obligations under the contract to the owner of the house, this is not considered abandonment of the apartment. The Senate upheld this reasoning. Cleaning from the owner. The owner’s duty is to provide the tenant with actual use of the property: therefore, it should not have such shortcomings as a result of which its use becomes harmful or impossible, but on the contrary, it must correspond to the purpose, and such shortcomings do not constitute a secondary circumstance. These are the dampness in the apartment and the cold, making it uninhabitable (Cass. decision 1877, N 134). When, upon handing over the estate to a government tenant, the buildings turned out to be dilapidated and the income shown by the inventory turned out to be even less, then the treasury has no right to demand that the tenant reconstruct the dilapidated buildings at his own expense (Sb. Sen. Resolution I, 311). The tenant, having not received 600 morgas of spring sowing and 200 morgas of winter crops according to the terms and having lost the use of hayfields, has the right to demand compensation from the owner for losses, based on the average of modern harvests and at reference prices (Sb. Sen. Resolution I, 551). There is no reason to expel a tenant from the apartment before the deadline for stopping the payment of rent, when this stop occurred due to a violation of the contract on the part of the owner, i.e. for the taking away by the owner of the attic and the glacier, which were part of the apartment (Sb. Sen. Resolution III, 1060). The impossibility of using the rented premises (it was flooded with water and then turned out to be damp) exempts from rent (2 Sat. Sen. Resolution VI, No. 944; Cass. Resolution. 1876, No. 364; 1872, No. 343). Payment. (Cass. decision 1876, N 120). From the essence of the lease agreement it does not follow that the tenant must pay the owner all the money for the term of the lease, even if the use of the property ceases before that period. This depends on the specific terms of the contract. – The obligation of the tenant to pay for the rental of property until the end of the term, even if he left it earlier, is itself assumed (Cass. decision 1876, N 472). – The plaintiff has the obligation to prove the existence of a debt for the apartment when the claim is brought after the tenant has left the apartment; on the contrary, when it is presented against a tenant still remaining in the apartment, the latter must prove that the money was paid by him (Cass. decision 1872, No. 846; 1875, No. 458). Payment in advance. The right of the parties to change the terms of the contract by mutual agreement is completely free, since this change does not violate the rights of third parties - of course, the rights that exist at the moment of the change. Therefore, one can hardly agree with Cass’s judgment. decide 1875, No. 467, “that a voluntary agreement between the former owner and the tenant for the urgent payment of rental money, extending beyond the time when the estate has not yet transferred to a third party, does not apply to the new acquirer.” In this case, the owner of the estate, sold at public auction, received rent from the tenant for two years at a time, in modification of the original condition of payment for a year. This receipt followed long before the delivery of the summons to the owner to foreclose on the estate and sell it. There is a reason to make him liable to the buyer for the excess rental money received, but is there a reason to place this responsibility not on him, but on the tenant, recognizing that the excess payment is not obligatory for the new owner? It’s unlikely, because the tenant, by making the payment (if there was no malicious intent to harm a third party), was dealing with the sovereign owner and did not violate anyone’s interests. If the lease agreement is concluded without the conditions and formalities specified in Art. 1703. Zach. Civil, but on the general basis of periodic payments, then nothing prevents the parties from subsequently agreeing to pay rent for several years in advance, but in this case only when the owner’s patrimonial right in the property is exclusive and inseparable, and is not limited by any right of a third party. Otherwise, the tenant is exposed to the danger that extra-urgent payments, at the request of the patrimonial successor or co-owner, or the claimant secured on the estate, may be declared invalid. For a similar case, see 2 Sat. Sep. decide III, N 484. – Art. 1703 applies only to such contracts in which it is agreed to receive more than a year's rent in advance at the very conclusion of the contract. This does not include the condition of receiving money during the rental period, as needed, for the costs of maintaining the property in order (Cass. decision 1873, N 1579). – Failure to comply, when concluding a lease agreement, with the rules of Art. 1703. does not make it invalid for the counterparties themselves. This rule was established exclusively in the interests of third parties, therefore, only for violation of this interest and in proportion to it, the contract can be declared invalid (Cass. decision 1876, No. 11). Art. 1703 on lease agreements also applies to urban buildings that can be rented verbally (Cass. Resolution 1876, No. 11. See also Coll. Sen. Resolution II, 498). Transfers and transition. Kislovsky leased the estate for three years to Schneierson, allowing him to transfer the rental articles in parts as quitrent maintenance to other persons, but so that Schneierson himself remained the main responsible person to the owner. Schneierson left the lease ahead of schedule, but earlier gave the mill from the estate as a quitrent to Khana Ginsburg. Upon Schneerson's exit, Kislovsky demanded the destruction of Ginsburg's lease, since Schneerson's own lease rights had ceased. It is recognized that, by virtue of Art. 514. Zach. Citizen, Schneierson could lease the estate only with the accepted restrictions; therefore, with his departure, Ginsburg’s right in relation to the estate ceased (2 General. Collection. September 15, 1876). To Cass. decide 1888, No. 666 denies the right of a tenant to transfer an apartment rented in a house to a third party without the consent of the homeowner, on the grounds that the transfer of the premises constitutes an accessory to the ownership of the house and includes the right of separate ownership. The right of leasehold ownership, acquired under an agreement not from the owner, but from the tenant, asserted on the lease right of this latter, can be protected against himself, under the agreement, but not against the owner of the land. Therefore, when the tenant, according to the agreement with the owner, renounced the leased possession before his term and the term of his tenants who rented the land from him, without agreeing for them to continue possession, their possession ceases, for they must cede the right of ownership of the land: they remain the right of action against the one from whom they rented the land for damages for failure to fulfill the contract (Cass. decision. 1876, No. 190). Separate tenancy. The right of rental maintenance is combined with the right of separate ownership, and not just separate use; therefore, the rental owner is protected in his possession until the term and during the transfer of the leased estate upon sale to another owner (Cass. decision 1868, N 771). An agreement on the lease of property establishes the right to ownership, the right of personal claim, but ownership itself begins only with the exercise of this right, i.e. upon taking possession. Therefore, when the owner of the leased property sold it to another person before the tenant took possession of the lease, or when he leased it to another tenant before the lease right of the first was exercised, the offended person can demand satisfaction from the one who violated his contract with him, but cannot demand the exercise of his right against a third party who did not participate in the contract. In this sense, Kass took place. decide 1878, N 234. The tenant of the house leased the apartment to the tenant, starting in July 1875, and in January of the same year he himself transferred his rental right to a third party, who refused to fulfill the contract of his predecessor with the tenant and provide possession to the latter. The hirer relied on Articles 514 and 521. Zach. Citizens, but the Senate decided that in these articles there is a right separated by agreement that has already been realized in reality. – By force 521 art. Zach. Citizen For the new acquirer of the estate, only those lease agreements of the previous owner that have already been carried out by the transfer of leasehold ownership can be considered binding. An agreement concluded in November 1874 does not meet this condition, so that the transfer of leasehold ownership takes place in 1875, and in December 1874 the owner sells the estate (Cass. decision 1877, No. 83). – The tenant (tenant) of an estate has the right to defend his possession against third parties in the event of a violation thereof (Cass. decision. 1875, N 426), but not against the undisputed owner of the leased estate: in the latter case, the subject of the claim would not be possession, but the very essence of the agreement (Cass. decide 1874, N 474). Every temporary, fixed-term or lifelong owner owns and uses the property exclusively and independently of a third party; but with the termination of this possession, no agreement between the temporary owner and an outsider regarding property owned on a fixed-term basis can be considered binding on the owner of this property if concluded without the participation of the latter. Likewise, the agreement of a lifelong owner to lease property from the moment of his death is terminated. An exception to this rule is made only for the lifelong owner under the will of the deceased spouse, on the basis of the law of 1862. According to this law, the lifelong owner can lease the estate for no more than the longest total lease term, and with payment only for each year after its expiration, and not in advance. Agreements concluded on this basis are binding. According to the village of Lubenskogo (Cass. decision 1877, No. 28), the tenant, referring to his illegal removal from the lease, asked the magistrate’s court to restore the violated possession, and the court decided to restore possession of the mill. There was a complaint about this that claims for the restoration of disturbed possession could be made under clause 4 of clause 29 of Art. Est. Gr. Court. presented only by the person who owned it as an owner. The Senate reasoned: although the claim and the decision used the expression: restore possession, the essence of the claim was whether the defendants had the right to remove the plaintiff from possession of the mill on the basis of a proven failure in the payment of rent money. In a building lease agreement, the tenant, with the construction of the buildings, does not acquire ownership of them, but only temporary use (Cass. decision 1869, No. 583). To Cass. decide 1872, No. 992, it is recognized that property agreements have equal effect both for the obligor and for his heirs. Therefore, the lease right, which consists in the possession and use of property, remains in full force even after the death of the owner of the estate in relation to his heirs, and the tenant has the right to continue possession and use. An inventory and transfer of such an estate for storage (at least to the tenant himself) due to the death of the owner would inevitably entail, contrary to the law, a restriction of the tenant’s rights under the contract. Renting a common property. A co-owner in a common estate may lease his part to a third party, without the consent of the other co-owners, only if there is an agreement between the co-participants regarding the actual distribution of the parts of the common estate between them; in the absence of an agreement defining the procedure for ownership and use of the common estate, the consent of the other partners is required for one of the co-participants to give his part for rental maintenance to an outsider (Cass. Resolution 1886, No. 69). The reasoning is incomprehensible, because in the absence of an agreement regarding the parts in the common estate and with the consent of the co-owners to rent a part, how can a part of one of them be leased when it is not determined? What part of the common undivided estate would the tenant use in this case? § 47. Special types of hiring. – Contribution to the maintenance of quitrent articles from the treasury and various departments. – Ways of giving and mutual relationships. – Agreement on the settlement of foreigners, colonists and Russian settlers. – Contribution to the maintenance of gold mines. In our country, the transfer of state property and property belonging to state and public institutions to private individuals for maintenance, on the basis of special charters and rules, is of very important economic importance. This part, connected with government and public interests, is developed by our legislation with particular detail, in many different decrees. The first place belongs to the so-called state quitrent articles, for which there is a special charter in 1 part VIII volume of the Holy Order. They belong to state property in the strict sense and are under the management of the Ministry of Agriculture and State Property, which is obliged to take care of their multiplication, the economic structure and the distribution of quitrents. This includes vacant lands, established manors, fisheries, mills, factories, distilleries, quarries and mines, peat bogs, gardens, carriages, buildings, lands and industries in forest cottages, etc. Local management of them belongs to the local management of State Property in the provinces. They are given into maintenance for a period of no more than 24 years, at a public auction, to which those interested are invited by publications, so that new contracts can be concluded six months before the expiration of the old ones. The auctions are carried out either in the provincial city, in a special mixed presence, or in the district police department, or in the volost boards. Bidders are required to provide a deposit in the amount of a six-month rent and a special deposit (1/3 of the valuation) to ensure the serviceability of the building; in other cases, a guarantee is allowed. For peasant societies and for individual peasants, benefits are allowed, i.e. Instead of a pledge, a secular and separate guarantee is accepted. Deadlines are counted from January 1. The quitrent item remains with the one who gives more at the auction, with the approval (as the total quitrent amount is 5–10–30 thousand and above) of the local government, special presence, Minister, Senate. Then, the place that conducted the auction enters into a written contract with the tenant, which details the conditions and manner of use, etc. - During use, the condition of the property is annually certified by an official. The due money is paid six months in advance, and for late payment after the grace days a penalty and a fine are imposed, the property is taken away and put into a new auction, although before the first publication the former owner can still retain it on the same basis, putting the debt in order. At the end of the period, the property is handed back according to the inventory and assessment, with damage being replenished from the collateral; buildings erected by the owner must be demolished (Constitution of Rev. Ed. 1893, Art. 1–79). After the expiration of the return period, quitrent items for new auctions are renegotiated, with an increase in quitrent in the event of an improvement or increase in prices. But some articles are given for an indefinite or non-renewable maintenance, either forever (by special Highest commands), or until the occurrence of a certain event, with the payment of an indispensable quitrent. In addition, the law specifies many different ways of giving away lands and plots without bidding for rent or for permanent, eternal and hereditary quitrent use. According to the economic conditions of our fatherland in many localities, the direct interest of the state is to attract those wishing to develop, build and populate empty and wild lands with the most favorable conditions for the distribution of plots for private individuals, without bidding and without collateral, for a small fee, and sometimes without payment at all, and with the provision of a strong right to hereditary use, as long as the development conditions under which the land is given are fulfilled. These include: distribution of land in Eastern Siberia for arable farming and haymaking for 40-year periods; leasing adjacent areas to railway companies for excavation of construction material; distribution of plots near capitals for the construction of dachas (Constitution of obrochn. ed. 1893, Art. 19, note, adj.; 56); distribution of lands on a 12-year lease to retired officials, for 24 years to Transcaucasian nobles, etc.; transfer of forest plots of the specific department for development, for 48 years, to peasants (Pol. Udeln. Krest., according to Prod. 1864 to IX Vol. App. Art. 126). When an obrochnaya article remains not auctioned to anyone, it can be given by the local government to a private individual for a certain fee or to the administration with a report (Constitution of obrochn. ed. 1893, art. 51). Quit-rent articles, arranged and described, constitute a special fund in state property, replenished with new articles as they are formed and organized. But, in addition, in order to promote industry, it was decided to give generally free government lands to private people for the establishment of various economic institutions, such as gardens, plantations, mills, factories, bee apiaries, etc. These lands are distributed for periods of up to 24 years or longer, up to 99 years, or even for hereditary use - from the payment of quitrent, with a pledge, or even without a pledge, when the lands are inconvenient and did not bring income to the treasury. Anyone wishing to establish an institution on this basis must submit a petition and state their conditions. This request is satisfied without bidding, if there is no one willing to participate in the bidding (Articles 2, 5, 11 et seq. appended to Article 23 and Articles 112 and 113 of the Establishment of the Agricultural Economics Edition of 1893). Regardless of the quitrent articles in the composition of state property, in the northwestern, southwestern and Baltic provinces there is a whole class of established state estates, which are in temporary ownership, management or contractual quitrent maintenance by private individuals. There is a special legal provision regarding the maintenance of these estates by tenants or administrators, placed in the Charter of State Estates, 1 part VIII volume of the Holy Order. This statute, whose provisions are largely borrowed from previous Polish and Swedish legislation, represents, perhaps for this very reason, the most developed part of our rental law, in its special form. By contractual law, these estates are surrendered either without auction, to the administration, or through auction, for rent, in both cases with a pledge. The basis for the surrender is a detailed description of the estate, compiled in a regulatory system through officials and called inventory. The law defines in detail the duties of the temporary owner and his rights regarding the economic disposal of the estate, as well as the benefits that he can demand from the treasury. He can give away individual quitrent items in the estate for maintenance to other persons, but subletting the entire estate is prohibited and leads to the confiscation of the estate. He returns the cattle surrendered with the estate in the same condition, and generally returns the estate in the same number, kindness, measure and weight. He cannot demand remuneration for improvements, but the law specifies in detail what expenses on the estate made by the administrator are accepted into the treasury account. A reduction in payment is allowed only for losses from the enemy and pestilence. The current law establishes special rules on the transfer of public Bashkir lands to the court; on the transfer to the maintenance of Cossack lands and military and public lands (Constitution of Cossack Village, Art. 14 et seq. 36, 188, 394, 404, 426, 430, 443, 477, 486, 498, 511, 522, 524, 544, 556, 564, 587. Appendix to 147. See also Collected Decree of 1877, No. 512, 717, on the lease of free military lands on the Don). Special rules have been established regarding the giving of various trades as quitrents from Siberian foreigners and Mezen Samoyeds (vol. II, ed. 1892, Pol. Foreigners, art. 38, appendix III). Special rules are established for the rental of fair premises (Constitution of Trade, appendix to Art. 600, Art. 43 et seq.). Quit-rent articles (treasury) do not belong only to the department of the Ministry of Agriculture and State Property: each Ministry, each government agency may have in its management a certain fund of real estate assigned to it, which it disposes of economically; Free property, lands, establishments and other quitrent items are often allocated from it, which are given, on a general basis, as quitrent maintenance and generate income that is included in the budget of the relevant Ministry. So, for example, the Artillery Department has weapons and gunpowder factories; Engineering - houses, buildings, lands at fortresses and barracks; Marine - buildings, gardens, lands, shops. There are quitrent articles at the Department of Non-Salary Fees, at the Mining Department, at the Ministry of Communications, etc. For special regulations on conditions with owners for the development of gold and ore deposits, see Constitution. Horn. ed. 1893, art. 424, 432 et seq. On the transfer to the maintenance of state-owned salt springs. Horn. ed. 1893, art. 620, 625. On the contribution to the maintenance of the Caspian fisheries and seal industries (Constitution of Village Economics, ed. 1893, Art. 492 et seq.). On the lease of the right to sell drinks on peasant lands in the Vistula provinces (Vol. V, ed. 1893, Establishment of Excise Tax, Art. 595, appendix). Quit agreement. When auctioning off government quitrents, a formal agreement must be concluded. If it does not exist, a private person cannot be obligated to fulfill the conditions that must be established by the contract. One auction, in which the maintenance of the tavern remained with a private individual, cannot serve as a basis either for the transfer of property into rental ownership, or for the collection of rent: the signature on the conditions only explains that the conditions have been announced, but does not mean the acceptance of obligations. Before the conclusion of the contract, everyone has the right to refuse the withdrawn lease, leaving a deposit to replenish the loss of the treasury, and the retention of the deposit constitutes the only penalty for refusal (2 Sat. Sen. decide. I, No. 37). The Treasury Chamber, concluding an agreement with private individuals on the provision of quitrent articles, does not enter into obligatory relations without prior approval of the conditions by the subject authorities, who are recognized as the counterparty, and the Treasury Chamber is nothing more than an intermediary place; therefore, not being a direct counterparty itself, it has no right either to refuse the requirement to perform under the contract, or to release the other party from part of the obligations assigned to it (Cass. decision 1873, No. 1623). Damages were awarded to the carrier under the contract with the Duma, on the basis that the original transportation rate was subsequently reduced with the establishment of a new rate (Sb. Sen. decision I, N 188, 344). Of particular importance in Russia is the agreement on the settlement of foreign immigrants on proprietary lands. In the old days, in the 17th and even in the 18th centuries, it was the custom to invite settlers of one’s own and others to empty lands, attracting them with benefits. This was called settling a settlement or settlement: an action of a contractual nature, which, according to the customs and laws of that time, led for the most part to the enslavement of the settled people to the owner of the land. In the second half of the 18th century, the Russian government, as is known, began on a large scale to colonize the steppes and outlying areas with foreign immigrants, establishing a whole system of settling them on state lands, under the leadership and with significant assistance from state guardianship. At the same time, precisely in 1765, the way was opened for the settlement of foreigners on private lands, in Ingria alone (Petersburg province); but this path, under the then dominance of serfdom, was unreliable. In 1804 the first decree was issued on the settlement of foreign immigrants on proprietary lands under agreements; it was followed by a second decree in 1817, which more closely defined the details and forms of this agreement; it remains to this day, in its main features, a general guide on this subject (Const. Col. 510–529); however, the entire current charter on the colonies, with the liberation of the colonists from the tutelage of the Ministry of Agriculture and State Property, is now being revised. In treaties of this kind, our legislation had to satisfy special conditions for the protection of special interests. People coming to settle on foreign land had to be protected by the owner from arbitrary refusal and deportation, which could plunge entire masses of the population into complete ruin and extreme poverty; It was necessary to protect them, at the time of serfdom, from personal dependence and from the establishment of enslaving relations; on the other hand, the owner had to be provided with legal means to protect his interests, of which the main one was the acquisition of ready-made labor for cultivating the land. Landowners and other landowners were given the power of government (in the person of first the Minister of Internal Affairs, and then the Minister of State Property), when concluding agreements, to extract colonists from abroad. To do this, you must inform the Ministry of the settlement conditions proposed by the owners: i.e. the amount and location of land, terms of use, benefits and benefits for settlers, and expected duties. Then, agreements concluded with the settlers, upon review and appearance at the appropriate public place, must be submitted for approval to the Minister. The term of the conditions is specified in the law for no longer than 20 years. Personal work required of settlers, as well as monetary payments, must be precisely specified. The right of the colonists under this condition remains unviolated when the estate is transferred to another person by inheritance or by deed of transfer. The right to freely move to other lands is allowed to the settler upon fulfillment of all obligations to the owner (Article 522). This rule of 1804, no doubt, had to change in its original meaning, with a change in the spirit of serf relations, and especially since the general emancipation of the peasants. It is impossible to assume in this respect, just as in personal tenancy, the inseparability of the personal connection of subordination between the owner and the settler. A settler who has not fulfilled all his obligations remains, without a doubt, in personal debt to the owner, but is not considered attached to his place of residence and economy. Similar rules were established in 1819 for immigrants from outside the Asian border settling in the Transcaucasian region; only there is no deadline for the conditions, and the conclusion of the conditions is allowed only with the permission of the local authorities (Constitution Col. 530–542). The rules on the settlement of German colonists in the Transcaucasian region published in 1850 are much more detailed and definitive (543–577). The lands allocated for settlement must be in single ownership, and the plots are designated in kind and then demarcated. Remuneration for use is assigned either by works, or by a monetary rent, or by a part of the works; but in the quitrent for the first two years there is a benefit. In case of crop failure and disasters, only installment rent is given. For the building, fencing and heating, timber from the owner's nearest dachas is supplied free of charge. The payment of the quitrent in the total amount for everyone or with distribution for each family depends on the condition. Splitting of family plots is not permitted. Excluded from use are materials extracted from the ground for the construction of industrial establishments: this requires a special agreement; however, it is said about mineral ores that settlers have the right to only half the income from them if they want to develop them. Transfer to other lands before the deadline is allowed only with the consent of the owner, unless the settler introduces another householder for himself. – In this law, along with the longest contract period (30 years), we also find the shortest – 15 years. There must be a warning one year in advance for a new agreement. The transition is expected after the harvest or in the next 1/2 year after the expiration of the term. For newly built farms by settlers that cannot be demolished, a reward is due from the owner, except for houses with outbuildings. Then, in 1860, as a way to increase the agricultural population of Crimea, after the exit of the Tatars, rules were published (November 8) on the procedure for settling owned lands in Crimea by foreigners and Russian settlers from other provinces, under contracts with local landowners. These rules, in the main reasons, are similar to the general provisions of the Charter of the Colonies; but the invitation of foreign settlers is supposed to be done without any government agency; contracts for a period of up to 20 years are also certified in accordance with the established procedure, and the settlers are subject to local administration and management common to all classes. Russian immigrants must be dismissed from their previous societies; contracts with them must be concluded, for the first time, for no longer than 10 years. Similar rules were issued in 1861 (P.S.Z. N 37760) for the hiring of foreign workers, with their installation on the owner's lands, upon their acceptance of Russian citizenship. Agreements of this kind can be concluded for no longer than 20 years, with proper certification. In the appendix to Art. 322 Vol. IX contains rules on the conditions of the owners of cities and towns of the Bessarabian province with local residents settling in those places, on the use of quitrent articles and on the fees and duties with which they are subject. For a long time, we have had a special, historically formed class of ladles in the Vologda province, i.e. free people who lived on state-owned and privately owned lands from generation to generation, under agreements with the owners, for half the grain harvest. The condition of these people, in order to protect them from owner oppression, was determined by the Regulations of December 31, 1827 (840–868, Art. IX Vol.). In 1876, the further effect of this provision for the future was canceled, and the way was opened for the ladles left without land to move to state-owned lands, and the previous conditions of ladles with landowners were left in force only until the expiration of the terms (Mn. Gos. Sov. 1876). Contribution to the maintenance of gold mines (Ust. Mining ed. 1863, vol. VII). Gold mines on government and cabinet lands are provided to private gold miners for temporary use, pending the production of gold in them. This use is granted only to those persons who by law have the right to gold mining, after preliminary exploration and application of the mine, through the allotment of space and special storage areas, for a special rent. A certificate is issued for the mine, and an annual fee of 15 kopecks is charged for its use. per linear fathom. The right to a mine can be transferred only by an appearance or a notarial deed, copies of which are submitted to the relevant departments. Mines declared, but not allocated or selected, are given for development, at public auction, in the main local department of private gold mining, through sealed advertisements, with the presentation of deposits. Chapter Four. Personal hire § 48. Personal hiring. - Its various types. – Types of rent. – Protection of personal freedom by terms of service. - Hiring servants and the Prussian law on this subject. - French law. The subject of the contract here is personal labor, personal work and service: it constitutes (together with knowledge and art) the property of a working person, which is rented out for the use of the employer. Depending on the nature of the work or service, the personal attitude of the employer towards the hired person is not the same. In other cases, the purpose of hiring is personal service in the house, with the performance of work or assignments of all kinds related to daily household life and management; further, people are hired for certain technical, craft, factory, etc. work. Here the hirer becomes the owner, and the hirer becomes a servant or worker. The immediate purpose of hiring is precisely the personal activity of the worker under the instructions and under the supervision of the owner. In other cases, the immediate purpose of hiring is the acquisition of a famous product, work or thing produced by the labor and art of a worker, technician, or artist. Here the employer is the customer, and the person hired undertakes to fulfill the order according to the terms of the contract and at the will of the customer, although regardless of his supervision of the work. This is hiring without personal subordination; its highest types, allowing for a completely free, independent attitude, are types of hiring for mental work, for example, hiring a doctor, lawyer, teacher, etc. The conditions of such hiring may even include a certain subordination - of the one who was not hired to the employer, but on the contrary - of the employer to the one hired 21). The location of all these types in the system of employment legislation is not the same. Prussian law includes in one category (Dienstmiethe und Werkverdingung) all types of labor, technical, factory, etc. hiring and ordering, even contracting and supply, as well as hiring in the so-called liberal professions; Only the hiring of domestic servants is excluded from the general system. The Austrian Code (entgeltliche Verträge über Dienstleistungen) follows a similar order; but he classifies the conditions for the assignment of publishing rights to the same category. French law contains in one chapter three types of personal employment: hiring of servants and workers, hiring for the transportation of people and heavy loads, and contracting out work. But the first type of hiring includes only workers in the strict sense of the word, hired for urgent payment (salaire, gages) and not for piece work, which is classified as a contract: people of liberal professions do not qualify; however, judicial practice brings it under the terms of agreements between the theater director and artists. An indispensable element of any hire is rent, i.e. remuneration for work; Now, after the abolition of slavery and all serfdom, compulsory labor, a person’s personal labor enters the realm of property rights only insofar as it is included in the price: this does not, however, exclude the possibility of including not only money in rent, but also other property, for example. maintenance, premises, supply of things and supplies, etc. The rent can be fixed or on an installment basis, i.e. for a certain period of work or service (weatherly, monthly, daily, etc.), or individually, for each item worked, or by agreement for a certain ordered product or work. In higher types of hiring, which require spiritual activity or involve spiritual participation in the matter, the payment takes on the value of a fee, i.e. from part of the remuneration made; and this concept in some official professions (for example, in the lawyer, in the medical profession) is sometimes protected so strictly that it is considered indecent and inconsistent with the honor of the profession to demand compensation by lawsuit and court when it seems meager, or when it is refused voluntarily. In relations arising from personal employment, legislation primarily protects personal freedom from unconditional subordination. Therefore, open-ended or lifelong contracts are not allowed, at least in those types of employment in which labor is hired on a fixed-term basis for continuous service or use. You cannot purchase a person’s personal labor, you can only hire him, and in such a way that neither one nor the other party is forced against his will to continue the personal connection coupled with subordination. The right of refusal is allowed at any time, of course, with liability for damage resulting to one party from the premature refusal of the other. The refusal of one party to fulfill the terms of the contract gives the other party an unconditional and irresponsible right to demand the destruction of the contract. There is a very special treatment that comes from hiring domestic servants. With domestic cohabitation and continuous personal communication with the owner and his family, domestic servants form part of the house: the household, with the official relations of the persons composing it, necessarily requires order, and order is impossible without submission, on the one hand, and the authority that has the right to order, on the other hand. At the same time, personal relationships in the house presuppose, on the one hand, trust, on the other hand, fidelity, on the one hand, the care of the authorities for the people under their control, on the other hand, caring and respectful performance of the position. With these properties, the relationship of servants to masters, although originating from a contract, goes beyond the scope of contract law into the area of ​​domestic or family relations. For this reason, some legislation (for example, Prussian, Austrian) does not at all place the contract with a servant in the system of contracts in the general code of civil laws, but defines its ownership and the relations arising from it in a special statute, partly adjacent to family law, partly to police law (Gesindeordnung, Gesinderecht). Prussian law defines in great detail the methods of concluding a contract, the meaning of the deposit, the terms of the servants' entry and leave, and mutual obligations, with the intention of protecting the fair interests of both parties. Servants are charged with the duty of faithful and careful performance of their duties for all members of the family, with liability for any harm resulting from negligence - deduction from rent or death. Servants must be respectful; the master's treatment of her must be attentive, but at the same time the law very prudently takes into account the peculiarities of relationships in common cohabitation, and regarding servants, the general concept of insult is constrained: servants are not given the right of civil action for insult and dishonor due to reproachful words and abuse (Scheltworte), or even unimportant insults by action (geringe Thätligkeiten) on the part of the owners. The court, of course, must distinguish in the underlying case what is unimportant and what is important. The owners are obliged to accept the servants at the appointed time and support them; in case of illness, if the illness occurred during service, they are obliged to treat the servants before the end of their service period and after it. The terms of service, when there are no conditions, are determined by law - three months in the city, a year in the countryside. Refusal is completely free and does not oblige you to anything after the expiration of the service period; otherwise, it must be given with a warning, and when the servant leaves for reasons beyond the control of the owner, he is paid only for the time he has earned; if it is the fault of the owner or the owner, without the fault of the servant, lets her go ahead of schedule, then he is obliged to satisfy her with pay and maintenance for the current quarter of the year (or for a month when the rental is monthly). On the occasion of the death of a servant, her heirs have the right to everything they deserve until the day of their last illness. In the event of the death of the owner, the servant retains the right to pay and maintenance for the current quarter of the year. When leaving, the servant has the right to demand a certificate from the owner, who is responsible for the accuracy of the certificate, on the one hand, to the servant, and on the other, to the next employer. The French law on the employment of servants and workers consists of only two articles. Details of their application are left to judicial interpretation. French law jealously protects the personal freedom of the hired person, but shows less concern for protecting his interests during the contract. Thus, in an open-ended lease, each party is free to refuse whenever it pleases, without any liability, as long as there is a warning about the refusal within a period that depends on local custom (8-15 days). Until 1868, in French law, to protect the interests of the owner, there was a particularly harsh rule: to unconditionally believe the owner’s testimony when, during a verbal rental, a dispute arose about the rent and former payments; at the same time, the law did not allow servants to refer to witnesses. § 49. General rules for personal hiring under Russian law. – History and origin of current laws. – Place of personal hiring in the contract system. – Entering into a contract. – Personal restrictions. – Hiring terms. – Rule about passports. - Row board. - Makings. – Legal fees. - Form. - Responsibilities of the owner and employees. – Termination of the contract. – Certification. Hiring people into service or work has been a common phenomenon in Russia since ancient times; but the dominant form of this agreement was a residential contract for fixed-term years and indentured servitude, and the reason for the transaction was usually extreme need, which forced people to pledge their personal labor and personal freedom for debt. Therefore, such records usually led to the establishment of servitude, and in general, according to the spirit of the old times (17th and partly 18th tables), whenever one person pledged his person in relation to another to serve, when the latter received the right to dispose of the person of the first, hence the concept of ownership of a person by a person certainly arose. When indentured servitude was abolished in the 18th century, audits were introduced, which at first served as a convenient means of strengthening people behind the landowners. Given the prevailing importance of serfdom and forced labor in the state, all work tended more or less to this type of relationship; Some of the most free servants consisted mostly of serfs who belonged to others, and the settlement of relations arising from free hiring did not require complex definitions of the mutual rights and obligations of the parties. This is the reason why our law is so poor in general rules regarding personal employment. But it is replete with charters and regulations on special types of hiring workers to meet special state and government needs. At the end of the 17th century, with the establishment of the urban class or middle rank of people, the legislation of the Imp. Catherine II, free handicraft work received an artificial organization in the structure of workshops, and it was necessary to determine the relationship of masters and customers to apprentices and workers. When the Code of Laws was first published, personal hiring was given a place in the system of so-called personal contracts in particular, and the chapter relating to this subject was composed of decrees issued for various cases. It remains to this day in the same incomplete and fragmentary form, although with the liberation of the peasants personal hiring has acquired exceptional importance in our economy, and every year the need for a more precise definition of the relations arising from it is felt more strongly. Along with the publication of the peasant regulations, rules were issued on the hiring of rural workers, which also turned out to be insufficient and therefore were replaced by others for most of the areas of the Empire; then special rules were established regarding factory hiring, etc.; but these rules, as well as other regulations on special types of employment, are located in different volumes of the Code of Laws. There are very few general rules about hiring. Personal hiring, as defined by the law (Article 2201), can be: 1) for household services; 2) for agricultural, handicraft and factory work, trade and other trades; 3) in general for the performance of all kinds of work and positions not prohibited by law. Entering into a personal rental agreement depends on the personal agreement of the parties: forced rental is not allowed at all; neither the parents of children nor the husbands of their wives can give out rent without their consent. Personal power has been deprived of this right since the liberation of the peasants. An exception still remains in the law only regarding tax-paying peasant societies, which, being obliged by mutual guarantee for serviceability, both general and for each of their members, can give the defaulter himself or one of the members of his family (belonging to the same tax unit according to the internal layout) - to outside earnings, in the same or in a neighboring district, with the condition - the money earned is turned into the worldly treasury (Common Cross. Pol., Art. 188). With free work of the lower ranks of the company, the assignment of people to work under a contract depends, as far as can be judged by the meaning of the Regulations. Rotn. Household (P.S.Z. 1878 N 58069), from the company commander. Minors (in mining plants under 18 years of age) children cannot be hired without the consent of their parents and guardians, as well as wives without the consent of their husbands 22 . It is stated in the law about lower military ranks (Ust. Zem. Pov. 328) that it is not prohibited for them, in those places where they have apartments, to be hired for work that does not remove them from their quarters and except for the time following their service assignments. Employers are prohibited from hiring and keeping people without legal qualifications (Articles 2202–2204). Jews were completely forbidden to keep Christians for permanent domestic services; but this restriction has been abolished since 1887; According to the new law, they and all non-Christians in general are prohibited only from interfering with those hired in the celebration of Sundays and holidays and in the performance of other religious duties (Const. Pres. Ed. 1890, Art. 88). Jewish housekeepers can only be in Jewish establishments (Vol. V, ed. 1893, Excise Regulations, Art. 424). To protect personal freedom from bondage and procurement, it was decided that a personal rental agreement must certainly be fixed-term, and, moreover, for no longer than five years (Article 2214). We find this five-year period back in the Code of 1649, for residential records given by taxable people to non-taxable people; but then the purpose of establishing a period was not to protect personal freedom, but the state right to tax people in the sovereign's tax. A new goal for the term emerged already in the second half of the 18th century. So, conditions for hiring people for a period of more than five years are considered illegal, even in the case when they are concluded without a term, in advance, but for an amount that the total amount of payments exceeds the five-year calculation. The period of employment of Siberian inhabitants in Siberia should be no longer than one year (vol. II, ed. 1892, Pol. Foreigners, art. 38, appendix I: art. 8, 37); The period of employment for gold mining is determined for the Siberian inhabitants of peasants and townsfolk, when hiring for the trades of the Amur and Primorsky regions and the Olekma system, up to two years, and for the trades of other areas no longer than a year, for peasants and townspeople of other parts of the Empire generally up to seven years. The same rules that are established for Siberian peasants and townspeople regarding the term apply to exiled settlers (Ust. Mining ed. 1893, art. 664, 693, note), and for the Sakhalin mines - up to seven years (ibid., art. 709). On the other hand, the terms of employment are constrained by the rules on passports: an agreement concluded for a period longer than specified by the passport or type is invalid by law (2216). When concluding a condition on personal hire, there is always a series, that is, a condition on the price or a series of payments. It must be indicated or agreed upon in the contract. This payment can be either money, or interest on profits (when managing property), or even things, maintenance, etc. The latter kind of condition can sometimes lead to abuse and harassment on the part of the employer, and therefore is prohibited in other cases (for example, when hiring factory workers. Constitution of Industry, ed. 1893, art. 99). Distillers, in order to prevent corruption, are prohibited from paying workers at factories instead of money with vodka (2218–2222). 2223 art. says that the person hired has the right to demand housing and maintenance from the owner only if a special condition is made about this in the contract. Such a rule, in a general sense, is not applicable to many types of employment, which by their very essence involve joint residence or premises at the work establishment itself, and therefore the literal application of the article in practice may be impossible. This article presents one of many examples of the mechanical treatment of the compilers of the Code of Zak. with decrees, when selecting them for articles in the system of arrangement of parts of the Code. This article, placed in the general rules, is extracted from the guild charter of 1799 (Chapter XVI, § 18), which says exclusively about the clerk or housekeeper that he must make a written agreement with the owner on salary, on time, on housing and maintenance, without which he should not collect anything from the owner. The employment contract is always assumed to be for compensation; but if there is no direct and precise agreement on the price, the contract itself, without a doubt, does not lose its force; in the case of a demand for payment or remuneration for what is deserved, or what is done or worked out, it is impossible to refuse satisfaction for work or a product turned in favor of another person by condition and having value. In this case, it is necessary to determine this value fairly; the plaintiff must prove, if possible, either a certain measure of his expectation based on the promise or obligation of the defendant, or the actual value of his labor and work. The dispute on this subject is resolved by the craft council (Law. Civil., 2220; Constitution of Industry, edition 1893, art. 332, appendix, art. 7). When hiring, some part of the payment can be given in advance, in the form of a deposit, which is used especially when hiring workers, especially when they are hired at their places of residence in the waste industry; Moreover, hirers or contractors usually try to bind them with a deposit at a time when the peasants need money to pay duties and for other needs. This method often turns out to be embarrassing either for the workers themselves, who, having received money in advance, are bound by a condition concluded at a time of extreme need, and do not have the means to free themselves from work by returning the money received in advance; or, which happens even more often, for the hirers themselves, since at the time the condition is fulfilled, the wages may fall and the hirers remain at a loss, or it may rise, and then people are lured away by other hirers, when it is inconvenient or impossible to force them to fulfill the previous transaction, or to return the deposits. The amount of the deposit is determined by law in some cases, as shown below. For some works and products, a fee is established by law, to which the law does not attach the same importance in different cases. Many of the rates established in the past, although still in law, have already lost their meaning. Thus, according to the Charter on Guilds of 1799, the craft assembly is obliged to set a payment from the guild master to apprentices and apprentices once a year, and there is also a rule in the law that the payment according to the condition should not be higher and not lower than that determined by the verdict of the craft gathering once a year (Article 2221). For work fees, see § 23. Regardless of the stipulated payment for some emergency work, factories sometimes rely on so-called advance money. In gold mining, special remuneration is used for so-called prospecting work (Ust. Mining, ed. 1893, art. 666, clause 3). The determination of the hiring price also depends on the measure of labor, according to the terms of the contract. There is another type of hiring for a term or for a certain period of time, for work of any or a certain kind; other hire is piecework, i.e. to perform a certain type of work (for example: plowing, mowing, harvesting so many acres); sometimes both measures are combined together, and the rent is determined by the piece measure. With piecework, the conditions are more favorable for the worker, because it depends on him to work as much work as possible in a certain period of time, and then the amount of payment depends not on time, but on the tension of activity, which to a certain extent is in his power. Moreover, if there is a lot of work and it happens during the busy season (when it is impossible to wait, for example, when harvesting grain), then demand is often higher than supply, and the setting of prices depends on the workers more than on the owners. Hence - in many cases what happens with price fluctuations - is the instability of obligations, when an exorbitant rise in prices for piece work in busy times creates an extremely tempting bait for workers who were previously committed for a period of time, and encourages them to leave a less profitable business for a more profitable one. Form. A personal hire agreement is generally supposed to be written, with appearance and a note in the book of a notary or broker. However, there are many exceptions to this rule. Servants and working people can be hired verbally using only the passports presented from them. Guild foremen can take work by verbal agreement (Articles 2224, 2226, 2228, Constitution of Industry, 1893 edition, Article 424). However, with the new procedure of legal proceedings there is no claim that could not be accepted in court, and its outcome depends on the evidence presented to the court and on the verbal competition. The law specifies the following responsibilities for the owner. He must treat people fairly and meekly, with good deeds, demand from them only the agreed work and pay them regularly. The one hired must be faithful, obedient and respectful to the owner and his family, and have good behavior; when performing work, he must take care of the owner’s interests, being responsible for losses from negligence; without the owner's knowledge, he must not take someone else's work. If he has nothing to pay for the loss or the money taken in advance, he must earn his debt (2229–2234, 2239). Before the deadline, he does not have the right to leave without permission, and the owner does not have the right to arbitrarily release him; both of them are understood, of course, not in the sense of the absolute impossibility of breaking the contract, but in the sense that, in the event of departure or vacation ahead of schedule, the party that violated the contract is liable to the other party for the loss. The loss to the hirer is determined by the rent for unused time; however, we do not have a positive rule about this in the law, and therefore the determination of damage in each given case depends on the meaning of the contract and on the circumstances of the case. The death of the owner gives the hired person the right to leave the service before the deadline, unless the condition stipulates that it also applies to the owner’s heirs. This rule is discussed in Art. 2238. It should be noted that it was taken in the Code of Laws from the Code of Art. 1649, and in the Code a similar rule was adopted to protect hirelings from securing the children of the original hirers. Certification of people released from service exists by law only in the Chernigov and Poltava provinces. An employee there cannot leave the owner without receiving a certificate from him. If the owner refuses to issue a certificate without a good reason, then a police certificate is issued instead (Article 2247). § 50. Special types of personal hiring. – Craft hire. – Commitment to training. – Work to order. – Hiring clerks and housekeepers. – Hiring rural workers and servants. – Hiring lower military ranks. – Hiring factory and factory workers. - Hiring for gold mines. – Hiring shipbuilders, watermen and ship workers; pilots, crewmen. Craft rental agreement (Constitution of Industry, ed. 1893, art. 387 et seq.). According to the rules of the guild system, still in force, only a recognized master of the craft can keep apprentices and apprentices; but must not accept non-resident or foreign apprentices without permission from the workshop. This right is also granted to the master’s widow, if she continues her husband’s craft. The master and the apprentice must have an agreement on the time of hire and payment. Neither he can leave before the deadline, nor the master can drive him away, for fear of a penalty. The apprentice must work for the master according to the skill of his workshop, and not in any other way, and must not take work without the master’s knowledge. He must be obedient and respectful to the owner and his family. Each apprentice has a book issued by the guild council, in which the master is obliged to note upon departure an assessment of his knowledge and behavior. He has no right to leave without a certificate. Complaints about unfair and offensive certification are dealt with by the guild and general craft councils. Agreement on the provision of vocational training (Const. Industrial, Art. 417 et seq.; Law Civil. 2203, 2224, 2230, 2237). This agreement is concluded between the master and the person who has the right to send young children to education (parents, guardians, orphanages), and sometimes the student himself, if he has left childhood. It is written in front of two witnesses and certified by a craft broker or an ordinary notary. Agree on time, content and training of the student. The apprentice must study the craft for no more than five and no less than three years. If a student taken for a term turns out to be stupid, incapable or weak in strength, then after six months the master must notify the person who apprenticed him. However, before the deadline, the master does not have the right to expel the student without legal reasons stated to the workshop management. In the event of the death of a master, the student remains with his widow if she continues her craft and has a skilled apprentice; otherwise, he can, inform management, go to another master. After three years, the master must give the student a written certificate of his knowledge and behavior, and then the student has the right to leave the master. The sending of boys to a shop or merchant's office (as clerks and clerks), for training in trade and office work, is governed by the law on the hiring of merchant clerks and shopkeepers (Constitution of Trade Ed. 1893, Articles 37, 38). For boys under 15 years of age, guarantees are not accepted and have no legal effect. In a contract of donation for education, it is usually assumed that, on the one hand, there is a person receiving, on the other hand, a person giving for education, and the will of the person given for education, most of the time a minor, remains without participation. But such cases are possible and occur in practice, in which the person who goes to study with a master or owner participates in the agreement on his own behalf. In 1893, correctional shelters were given permission to send minors who had been in the shelter for at least a year until they turned 18 to study and work with masters. – Shelters may, with their consent, employ 18-year-olds under contracts for periods no longer than they reach the age of majority. Agreement on craft work by order (Constitution of Industrial Ed. 1893, Art. 425 et seq.; Law Civil. 2217, 2220). This includes ordering all kinds of products that require both craft labor and technical knowledge and art, as well as artistry in the highest sense. Our laws on contracts of this kind refer only to craft work in connection with the guild structure. Conditions for this subject can also be concluded verbally with the workshop foremen. A special benefit (exemption from stamp duty) is provided to the written conditions of the manufacturers with the peasants, who are given yarn at home for weaving various kinds of products. The law makes no distinction as to what material the product is made from: material provided by the customer or supplied by the craftsman. So, this circumstance in itself cannot serve as a sign of the difference between an order and a contract. The law obliges a craftsman to produce work that is good according to his craft. Its price depends on agreement, and the shop management is prohibited from setting the price of the work. But in case of dispute about the period, weight, measure, fineness and quality of the work, administrative norms established by the craft council are used for verification. Working days are considered to be 6 days of the week, excluding holidays. Craft working hours are from 6 am to 6 pm, with the exception of 1/2 hour for breakfast and 11/2 hour for lunch and rest. Complaints against artisans for poor work, damage, delays, etc. must be brought to the craft council in advance. The proceedings of the council on these complaints - regarding customers - are only conciliatory, and do not prevent them from seeking legal action within 2 weeks thereafter; For the artisans themselves, the decision of the council is mandatory. But with the introduction of a new judicial system, the effect of this rule is limited to those localities in which new Judicial Statutes have not yet been introduced (Article 332). Agreement on the hiring of merchant clerks and shopkeepers (Constitution of Trade, ed. 1893, art. 6 – 38). The provision of this agreement, based primarily on the Customs Charter of 1755 and the Charter of 1789 on workshops (which provides for a special workshop for shopkeepers), has long been outdated and turns out to be insufficient. Clerks and housekeepers are accepted under written contracts, concluded with the appearance of a broker or notary, with or without a guarantee. The regulation on duties for the right to trade on February 9, 1865 established the mandatory conclusion of written contracts with 1st class clerks. This rule is adopted, of course, in the form of eliminating disputes; but in practice it was found inconvenient and embarrassing, as was repeatedly stated by the merchants. If the contract does not mention anything about regular payment and maintenance, then a demand for these items is not allowed. “The inmates also include the boys who are sent to the shop to learn the trade. In general, the law does not differentiate between housekeepers and clerks. Both trade on the orders of the owner, at his expense and for his benefit; only about the minor inmate it is said that he cannot be trusted to respond to goods worth more than 30 rubles. A salesman, when trading with one owner, must not take other people's goods and manage other people's affairs, and has no right to trade his goods in the name of the owner. He must trade at the price assigned to him by the owner. For violation of orders and for actions to the detriment and loss of the owner, he is responsible to the owner and, moreover, in the latter case, is subject to penalties specifically specified in the Code. Order. The owner is responsible for the actions of the clerk within the limits of the assignment given to him. The bailiff is obliged to account for everything to the owner, and at the end of the year he must pay him off. About the deadline for calculating Art. 29 says this: “the period for settlements between masters and clerks and clerks with masters is one year, after the period of service has passed.” If during this period they do not mutually disagree, then they lose the right to claim for any disputes that may subsequently (i.e. after this period) arise between them. – To give a report to the owner from the clerk for each year of service, a month is due after the year has passed. If he does not give a report within this period without legitimate reasons (for example, due to illness, etc.), then the owner is accused of everything pointed at him. According to the village of Putilov, the Senate decided that the one-year period was established specifically for the settlement of the clerk with the owner. If a settlement is made within this period, but satisfaction is not received, and a certain claim has been formed based on the settlement, then a claim on this claim can be filed within 10 years (Practical PB. Cass. Sen. 1874, No. 20). If the clerk, missing a month after the deadline for payment under the contract, does not demand the deserved money from the owner, then he loses the right of action. After completing the service, the owner must give the clerk a certificate, without which he cannot be accepted into the same position by another owner. In Excise Tax. Est. (Vol. V, ed. 1893, Art. 424, 493 et ​​seq., 573, 612) there are special rules for hiring clerks and housekeepers. They must be at least 21 years of age. Those under investigation or trial for crimes subject to loss of rights, expelled or removed from society, under police supervision by court verdicts, convicted of knowingly accepting stolen property as pawn or in exchange, cannot be housekeepers and clerks - for a period of five years from the date of conviction; convicted for the second time for offenses provided for in Articles 612 and 613. Pete. Est. and for the third time for the offenses provided for in Art. 615 – within three years from the time of conviction, as well as the wives and unseparated members of the family of such people. In addition to the named categories of persons, officials of the volost and village administration, chairmen and members of the drinking establishments, clerks of peace intermediaries, church wardens, as well as wives and unseparated members of the families of all mentioned officials are not allowed to be clerks and housekeepers. In addition, district officials in charge of drinking affairs may not allow as clerks and clerks all those from whom one cannot expect to conduct trade that is correct and consistent with the interests of morality. Jews can only be inmates in institutions of their fellow believers. Agreement on the hiring of rural workers and servants (Regulations of the Cred. Institution appendix to Article 31, etc. XII, Part 2, Pol. Hiring. Rural Workers, edition 1893). Rules Gender. Cross. Institution established during the liberation of peasants in 1861 to facilitate rural hiring. Their main features are as follows. Simplified form of contract. It can be verbal and proven by witnesses, or written. Written form: a note of a verbal agreement in the book of the volost government; a written agreement on plain paper, witnessed by the volost government, by an intermediary, by a notary, and finally - a work book signed by the parties. The contract can be concluded either with an individual worker, or with an entire artel, which is represented by an elected one. In the latter case, security may be accepted - mutual guarantee of an artel or rural society. Contracts can be concluded without a term, for a period or for a certain work until its end. Establishment of a workbook for the accuracy of calculations in mutual relations. These books, on forms, are issued from the volost boards with a five-kopeck fee. They indicate the worker’s nickname, place of registration, etc., and notes are made about the time of entry and dismissal, and, if desired, about the terms of employment. The worker (except for those hired within a 30-verst distance from their place of residence) must have such a book and present it to the employer, and the employer issues the worker a pay slip in which the terms of employment, issuance, fines, etc. are entered. When a worker leaves, he signs on the pay slip and receives the book back. The work book, as a form of concluding an agreement, did not come into common use; where it was introduced, they did not find convenience or benefit in it. The book was signed by one party - the employer; not containing a noticeable guarantee for the parties, it seemed like an unnecessary formality, and at the same time required expense and waste of time; it was not obligatory by law. As a result, the work book did not take root in practice, and in many localities another way of concluding contracts was developed, without fees for paper, namely: concluding conditions in the volost government, with its certification and seal. These conditions are concluded either in the board itself, with a note in the book and with the issuance of a copy to the parties, or at home, in the employer’s office, after which the condition is certified in the board, and the original remains with the parties. Establishing mutual penalties for malfunctions if they are not specified in the contract. A fine from the worker for absenteeism in the amount of double daily wages, in place of the existing one. Fine from the owner for failure to pay. Upon a worker’s complaint, during the hiring period, the owner is given a period (up to seven days) for payment, and for late payment a penalty of 1/2% per day is due. For the owner's delay in paying for the worker's leave, he is entitled to double daily wages, according to the local rate. Rules on refusal and termination of the contract. When the contract is without a term, it can be terminated or refused, with two weeks notice to the other party. If refused without prior notice, the owner must pay wages two weeks in advance. Contracts for a period, and in general of any kind, are terminated at any time by the death of a worker, by his conscription into military service or by personal detention. Finally, the reasons for termination of the contract by court are the following: constant negligence of the worker; refusal to perform on condition; carelessness with fire; rudeness and impudent actions; beatings and ill-treatment by the owner; faulty board and bad content. In addition, there are reasons for refusal, permitted with the permission of the court, but with advance notice, namely: the need for the worker to return home due to unforeseen circumstances, for example, due to the death or military service of a family member; employee getting married; unexpected, due to an accident, cessation of work. Special jurisdiction with a special procedure for production. Disputes are left to peace mediators (at a cost of up to 500 rubles) and district peace congresses. The mediator’s decisions are final in the amount of up to 30 rubles, as well as on issues of payment and allowance, compulsion to work and collection of fines - when there is no dispute about mutual rights (?). Negligence damages cases are subject to the same department. The judge is allowed to set deadlines for payment and determine the average local daily wage for calculating the fine. The rules laid down for most of the Empire were replaced by the Regulations on Employment for Rural Work issued in 1886. Based on this provision, employment contracts can be concluded with individual workers, with entire families and artels. Agreements can be verbal, without any formalities, or written; but persons wishing to enjoy special advantages in the execution of employment contracts are allowed to conclude them using special contract and pay slips. Contract sheets are issued from volost boards and city public administrations for a fee of 5 kopecks. in favor of the office of those places in which the sheets are prepared, with a note about the issuance of each sheet in a special book and with a note about the issuance in the form of the recipient. The terms of the agreement are entered on the contract sheet and signed by the parties or by one employer if the employee is illiterate. The conditions written on the contract sheet are certified with the collection of a five-kopeck fee in those places from which the contract sheet was issued, and are entered in the original terms into the contract book. Until appearance, the contract does not have the force of a contract concluded under a contract sheet. The employer issues a payslip to the worker hired under a contract sheet, on which a copy of the contract is entered; this sheet is submitted for certification at the same time as the contract sheet; it includes all payments to the worker in money, things or supplies, as well as deductions and fines. To prevent employers from concluding contracts with such workers who are already hired, the contract book is available to everyone to review and obtain certificates from it. Upon termination of the contract, the contract sheet with a note to this effect is returned to the worker, and the pay sheet is returned to the employer. Special advantages for the execution of contracts concluded in the form of contract sheets lie in the right of the employer to demand the worker from any other employers, whom he can prosecute criminally if they accepted such a worker, knowing about his contract with another, in addition to collecting damages, and in the right to demand the bringing of a worker who did not show up or left without permission through the police. Therefore, with regard to the regulations on the conditions of employment for rural work, on the obligations of employers and workers and on the execution of the contract, these regulations constitute a development in application to rural hiring of the general rules contained in the Law. Civil, with only a few changes. Thus, open-ended contracts are allowed, which can be terminated by each party at any time, with advance notice only to the other party of at least two weeks, and fixed-term contracts, no more than six years; the condition of survival is not allowed for a period of more than a year; it is prohibited to enter into contracts, the execution of which must begin a year or more after the conclusion of the contract; the transfer of rights and obligations under the contract to the heirs is established; cases of deductions from wages and cases when an employer can refuse a worker and when a worker has the right to leave the owner, etc. are accurately indicated. There are special rules about hiring Siberian inhabitants of different classes and Mezen Samoyeds (vol. II, ed. 1892, Pol. Foreigners, art. 38, appendix I). In 1878 (Collected Uzak., N 762) the Highest was published. approved Regulations on company management, which contain (§ 110–121) the rules on the release of lower ranks for free work during free time from service, with the permission of their superiors. Work can be done not only within the boundaries of the location of the parts, but also outside it. The search for work is done by the company commander. Work must not be harmful to health. On his behalf, contracts are concluded with employers. He is also given the right to petition for disputes and wrangles arising from the contract. Workers come to work in pairs. Daytime work is defined as no more than 10 hours a day. The pay is determined for each person in the party, even for those who, without working personally, supervise only the economy or order in the party. Payment is determined on an installment basis or on a per-hour basis. The payment of money is made to the company commander or senior in the party and is distributed into three parts, of which one goes to the company’s artel amount, the other is distributed to the hands of the party, and the third goes to the division of the whole company. Hiring factory workers (Const. Industrial, ed. 1893, art. 86–156; Code of Penalties, art. 1352–1359 and Cont. 1895, art. 13581, 13582, 13583, 13592). Special rules regarding this agreement, published in 1886, were initially established for both capitals, but were subsequently extended to other provinces, localities and significant factories, as well as to private mining factories and mines, with the exception of gold mines. Their peculiarity is that well-ordered people are prohibited from leaving work in establishments until the expiration of the contract period or until the end of the work for which the worker was hired, and when hired for an indefinite period - without warning the owner two weeks in advance of the intention to terminate the contract, and it is not allowed to demand an increase in pay before the deadline; and the owner does not have the right to lower it before the deadline. When hiring, the factory or factory management is obliged to require the presentation of a residence permit, which, if the worker lives in an apartment set up at the factory or factory, is given for safekeeping to the manager of the factory or plant; the form is returned to the worker upon termination of the contract. The owner can dismiss the worker earlier than the deadline, for malfunction - due to absence from work for more than three days in a row without a good reason, - insolence and for bad behavior, if it threatens the property interests of the factory or the personal safety of someone from among the factory management, as well as due to the discovery of a contagious disease in the worker, and, finally, due to being brought to investigation and trial for a crime for which punishment is not less than prison. The worker may demand termination of the contract when he does not receive payment on time, as well as due to beatings, serious insults and general ill-treatment of the owner, his family or persons entrusted with supervising the workers, due to violation of conditions regarding food and accommodation, work harmful to health, and the death or compulsory entry into military service of one of the worker’s family members. The owners do not have the right to force workers to pay in coupons, symbols, goods and supplies instead of money; for violation a fine of 50 to 300 rubles is imposed. Wages must be paid at least once a month for a period of more than a month, and at least twice a month for employment for an indefinite period; for failure to comply with this, a special reward may be awarded in favor of the worker. When issuing payment, it is prohibited to make deductions for the payment of the worker’s debts unless writs of execution are presented; debts do not include payments for money given in advance and for food from factory stores. To cover debts under writs of execution and for money received in advance, no more than a third from a single worker and no more than a quarter from a family worker are withheld at each payment. According to the same calculation, taxes and other fees are collected from wages (Constitution of Industry, Art. 100, additional, according to Prod. 1895). Employment contracts can be concluded by issuing pay books to workers, which set out the terms of employment and note all settlements with workers and penalties for absenteeism and faulty work. The owner is obliged to keep a special book for accounts with the workers. In addition, at the factory, in all workshops, general rules about the order established in the establishment must be posted. In addition to these general rules for factory hiring, special rules have been established for areas with significant development of factory industry. These rules represent a more detailed development of the general regulations set out above, and the supervision of their implementation by the owners or managers of factories and workers is entrusted to the provincial presence in factory affairs and factory inspectors, who approve the internal rules of the factories. To maintain order in factories, the manager is authorized to impose monetary penalties on workers by his own authority for faulty work, absenteeism and violation of order - according to report cards, indicating the amount of the penalty. These reports are approved by the factory inspection and are displayed in all workshops. The penalty is applied to the creation of a special capital for the provision of benefits to sick and disabled workers. For violating the rules regarding the hiring of workers, for illegally charging them wages, etc., factory managers are subject to monetary fines, which are converted into the same capital. For violation of the rules of employment by employers and workers and for stopping work due to a strike in order to force employers to increase wages or change the terms of employment before the expiration of the term, criminal liability is imposed, which consists mainly of monetary penalties and imprisonment, more or less long. The hiring of minors in factories and factories is subject to special conditions; namely: those under 12 years of age are completely prohibited from being allowed to work, and minors from 12 to 15 years of age are prohibited from working more than eight hours a day and more than six hours in a row if this is necessary for the type of production, and the total duration of their work should not exceed six hours; Moreover, minors are completely prohibited from being allowed to work that is exhausting or harmful to health. The definition of such work is left to the agreement of the Ministers of Finance and Internal Affairs. Minors from 12 to 15 years old are allowed to engage in work on Sundays and highly solemn days, on which work is carried out by adults, but not otherwise than with the permission of the presence on factory affairs, and where there is none - the head of the province or region or the mayor (110, note 3, according to Cont. 1895). Factory owners are obliged to provide child workers who have not completed at least a one-class public school course with the opportunity to attend school for at least three hours daily. For the work of adolescents (from 15 to 17 years old) and women, for whom night work is prohibited in cotton, linen, flax spinning, flax weaving and woolen factories, and mixed fabric factories, hours are established during which they cannot be put to work (from 9 pm to 5 am) except with the special permission of the presence on factory affairs or the governor, where there is no presence. In the provinces of the Kingdom of Poland, women are prohibited from engaging in underground work in mines, mines and quarries. For violating the rules on the work of minors, teenagers and women, managers of factories, factories and craft establishments are subject to criminal liability (arrest or monetary penalties). Code 14041 and Law. April 24, 1894, II. With the general liberation of the working population assigned to factories, rules were issued for hiring people at state-owned mining factories, at private factories and at the Nikolaev Railway plant (Regulations Rural State. X, XII, XIII). The essence of these rules is that those entering factory work, under hired and voluntary conditions, are divided into artisans (technicians) and artisans who do not technical, but auxiliary work. Both of them can be hired individually, by artels and societies, as well as by contract. The terms are concluded for a period of no longer than three years, with the right of refusal, but subject to three months or one month in advance (on the part of the workers). Children under 12 years of age are not accepted into mining and smelting work. Minors under 15 years of age are used for work no longer than 8 hours a day, only during the day and only on the surface of the mines; the same rule applies to women. The conditions are written on plain paper and certified in the volost boards (for state-owned factories - in the local mining public administration). At each state-owned plant, normal or fundamental conditions are established to determine the relationship of the plant to the workers. Upon conclusion of the terms, the employer (factory management) issues each person a workbook in which calculations are kept. Hiring workers for gold and platinum mines (Const. Mining ed. 1893, Art. 661, appendix according to Prod. 1895). Private gold and platinum mines are allowed to hire workers, both Russian and foreigners; Moreover, the wives of those hired are also recognized as workers when they take on factory work. Contracts can be concluded with individuals, with families and artels, as well as with several workers who do not form artels; in the latter case, it is allowed to conclude one contract when workers are hired for similar work. Conditions regarding the employment of wives may be included in husbands' contracts. Hire is made either by formal contracts or by verbal terms; but workers can be hired for the Siberian fields only under contracts submitted for certification. The contracts must indicate detailed terms of employment, namely: the trade for which the worker is hired, the term, the amount of the deposit, the number of working hours, wages, payment terms, the number of days off from work, conditions for the worker’s accommodation and food, the amount of deductions from earnings, conditions for food during the journey, etc. The rental period should not exceed a total of five years, except for Siberian peasants and townspeople, for whom shorter terms are established. It is prohibited to enter into such agreements, the execution of which must begin a year or more after their conclusion. It is prohibited to include in contracts a clause on the transfer of workers to another employer. The employer may assume the payment of taxes, duties and arrears of the worker. The worker is obliged to show up for work on time, except for reasons recognized as valid (deprivation of liberty, cessation of communications, ruin from an accident, illness, etc.). Upon arrival, workers are given a pay book in which the terms of employment are stated. A special book is kept for accounts with workers in the field management. The treatment and provision of sick workers is at the expense of the industrialist, and for a serious injury received during work, the industrialist must compensate the worker or his family with triple wages for the entire period of employment, and for a lung injury he must cure without making a deduction from the rent. When the fishery passes into other hands, the rights and obligations of the previous owner under the lease agreements are transferred to the new one. The reasons for refusing a worker before the deadline are clearly stated. They consist, among other things, in the worker’s failure to show up for work for more than three days in a row, inability to do mining work and laziness. Workers are given the right to demand termination of the contract in court if they or members of the family who provided their livelihood are called up for military service, as well as for reasons for which the contract may be terminated by rural workers. For absenteeism and violation of order, the work manager is authorized to impose penalties on workers, determined in a special report card; These penalties, as well as penalties from mine managers, for violations specified in the law, for example. for the detention of workers without established contracts, are contributed to the capital intended for the provision of benefits to sick and crippled mining workers. According to the same rules, exiled settlers are hired for Siberian crafts, but the period of employment should not exceed that established for Siberian peasants and townspeople, and the payment of taxes, duties and arrears for them necessarily passes to the head of the fishery. Contract for hiring a shipbuilder, i.e. a person to whom the owner of a seaworthy vessel entrusts the management of the vessel en route (Ordinance of Trade, ed. 1893, art. 216 et seq.). By law, this agreement must be written, made in accordance with the provisions of the Note. Parts, and where it is not put into effect - through a note from the broker in his book. It indicates the terms of the agreement, the amount of payment or benefits provided to the shipowner (cargo reward, interest on freight money), and the scope of rights granted to him; The general rights and responsibilities of the shipowner to operate the ship are determined by law. However, as long as the shipbuilder is at the place of residence of the owner or his authorized correspondent, he has no right to either make expenses for repairing the ship, or agree to undertake the journey without their knowledge and consent. The shipowner is obliged to keep a correct account of all expenses and profits and, after completing each journey, to give an account to the owner and present him with books and receipts before receiving payment. For disorder and malfunction, the owner can dismiss him and can buy his share if he was a participant in the cargo. The shipbuilder is responsible for damage and loss from his malfunction not only to the owner, but also to third parties; but the owner is also responsible for it, in case of its insolvency, but not more than the price of the entire ship with freight money for the voyage. Hiring ship servants (with a specific position) and watermen (workers). (Const. Torg., ed. 1893, art. 256–314). A shipbuilder is considered a hirer, i.e. a person who controls a ship on behalf of the owner. The employment contract must be written. It indicates who is hired for what position, where the ship is going, to what place and along what route, for what payment and in what time frame. But the owners of Russian coastal ships can, instead of a special contract, issue pay slips to the people they hire, indicating the conditions, signed by them, and are required to keep a general pay book. A written agreement is drawn up in two forms and is an established procedure. The shipowner must always have the contract document with him. Upon signing it, the hired person will certainly be given a deposit, i.e. share of payment determined by law. Upon receipt of the deposit, the person hired must report for duty within three days; but as long as the ship is not yet ready to sail, he can withdraw from the contract by returning the deposit. In the event of illness or death of the shipowner, the servant can lag behind the contract only until the ship begins to load. The law defines the duties of a hired minister while serving on the road. Unauthorized abandonment of the ship exposes him to deprivation of all property left on the ship and liability for loss in overpayment to another in his place. The servants can express their displeasure against the shipbuilder at the port - to the Russian police, or abroad - to the Russian consul. A ship's servant cannot demand dismissal, even if the period has passed, until the ship has arrived at the port, unloaded and moored, or ballast has been re-laid. Upon dismissal, he is satisfied with the entire payment and can demand an increase when the path has been increased. The pay to the servants is included in the freight money; They share with the shipowner the fear for the ship and goods, “so if the ship or goods burn or are destroyed before settlement with the watermen, then their payment immediately disappears.” For the inability of a servant, the shipbuilder can, having proved it in court, withhold his pay, but in the event of illness, wounds, or injury in service, the shipbuilder is obliged to treat and reward the servant; and if the ship is sold in a foreign country, he is obliged to send servants home at the expense of the owner. Agreements on the hiring of shipworkers on inland waters (Const. Put. Communications. 315–317, both according to Prod. 1893, 318–321, 323, 324, 326–329, 330, according to Prod. 1893, 331, 333, both according to the same Prod. 334, 335, 337–355, 356 according to Cont. 1893, 357, 458 according to Cont. 1893, 459, 460, 512; 159). The rules for this agreement are contained in the Charter of Communications. They were established in 1836 and are aimed at ensuring, on the one hand, the fair interests of ship workers, whom the law itself calls, “without any doubt, the poorest class of people in the state”; on the other hand, the interests of the owners and shipping from delays in transit due to evasion and escape of workers. The law refers to the difference between lock navigation systems, on which a particularly strict procedure is observed in the passage of ships through the locks, and navigation in the free waters of the empire (Article 317 of the Prod. 1893), where caravans go from the place of loading to the places of transshipment or unloading. Further, on lock waters, the law distinguishes between gang workers, who are hired at intermediate points and, having reached a certain place, disembark from the ships, and indigenous workers, who are hired for the entire journey, from the place of loading to the place of unloading of the ship. Finally, the law distinguishes between two more methods of hiring: herd and fragmentation. In the first case, the intermediary between the owner and the ship workers is the supplier or contracted foreman, who, from the winter, hires workers and barge haulers one by one in the villages and then delivers them to the owner on time, obliging them with deposits (in case of failure to appear, the possibility of forcing them to appear through the police is open, Art. 459). In the latter case, the contract is concluded through a personal agreement between the owner and each of the ship workers. On lock systems, the relationship between shipowners and workers is determined by the so-called ship's notebook. These notebooks are prepared in local district transport departments and sent throughout the district to supply shipowners with them; each is checked against the sheets and sealed by the head of the course, in two copies. It contains the names of all people hired on the ship (pilots, water handlers, end-steers, horse guides, barge haulers, etc.); then in the columns it is indicated: to where or for how long who contracted, personally or through a contractor, for what price, with grub or without grub, with what deposit, how much will be withheld from whom until settlement, for delivery on the return journey, with whom special contracts were concluded. This also refers to offenses and penalties, escapes, retirement due to death and illness. This notebook serves for others - instead of the contract itself, and for everyone - as a mark of relationships along the way. On lock waters, notebooks are also required, but on free waters, workers are instead provided with pay sheets (according to the form of Ord. Torg. 258), with reference to the place and time of the conclusion of the contract (cf. Cass. decide 1870, N 1170). Thus, the shipworkers hired for the journey constitute a huge group. The government ensures its passport interests regarding it with strict rules on the roll call of people before departure and on the verification of passports. And to ensure order in payments and discipline, all workers hired in a caravan or on ships and rafts of one owner constitute a common artel, with further division into separate artels for ships and rafts, and each chooses a senior clerk. The artel is bound by mutual responsibility, so it is responsible to the owner for the money taken in the event of the worker’s escape. Any monetary profit and loss of the artel is allocated equally to all employees on the ships. The loss consists of fines or deductions (for the sick, for runaways, etc.) and from money withheld according to the calculation from the regular pay and deposit, for distribution to the workers at the end of their service on the way back. The profit consists, in addition to regular payment, from payment, according to the law (Ust. Put. Commun. 106, 107), for idle days and for lost days due to the owner’s absence. Some modifications of these rules have been established for the hiring of pilots, horse guides and ship workers on the Volga and according to the Vyshnevolotsk system (Establishment of the Way. Commun. Art. 104 et seq., 116 through Cont. 1893 et ​​seq., 161 et seq.). Special rules on contracts with pilots, and, moreover, separately on maritime ones (Ust. Torg., ed. 1893, 315–322), and separately on river ones, on different shipping systems (Ust. Put. Commun. 269 et seq.). The hiring agreement is concluded in writing for the transportation of the vessel to a known place. Pilots on river systems are under the authority of the Communications Routes Administration, are certified in knowledge and skill and are enrolled in the required set and in excess of the set. For escorting and launching ships they receive a certain fee, which is approved for several years by the Minister of Communications. The pilot must not leave the ship on which he has hired, and is responsible for the consequences of his instructions, since the ship's master or helmsman listened to him and did not contradict him. When hiring a crew for Russian seagoing vessels, skippers, by law, should be hired exclusively by Russians, and at least 3/4 of the sailors should be Russian (Constitution of Trade 190). However, an exception to this general rule has been temporarily allowed: navigators and skippers, as well as sailors, can also be foreigners without limiting the number (Constitution of Trade 190, note). In Const. Bargain. (89–104) special rules are placed on the hiring of exchange artel workers, by agreement with the artel. The essence of the contract. Art. 2227 Zach. Citizen refers to personal hiring as the acceptance by a guild master of work related to his craft, but not all such work constitutes the subject of personal hiring. The work of a craftsman through his workers and from his own material refers in some cases to personal hiring, and in others to contracting and supply (Cass. decision 1875, N 537). Personal hiring presupposes personal labor or service, not excluding the possibility for a master to produce work with his own workers and from his own material, but does not presuppose an entire enterprise. On the contrary, the distinctive feature of contracting and delivery is that a whole enterprise is assumed here (Cass. decision 1875, N 537). Term. The term of personal employment by law cannot extend beyond five years, but it does not follow from this that conditions without a term or with its extension beyond the law are considered completely invalid (Cass. decision 1869, No. 888). It must be assumed that they are invalid only insofar as they restrict the freedom of the hired person to leave his service. People with passports must be employed for no longer than the expiration date of their passports (2216). For foreigners, these are not their foreign passports, but those temporary ones that are issued to them by the Russian government (Cass. Resolution 1874, No. 674). A personal rental agreement for a period exceeding a passport is invalid, even if it contained a condition regarding the expiration of the passport (Cass. decision 1872, No. 10). The determination of the period of study in the range from three to five years (147 Est. Rem., corresponding to Art. 419 Est. Industrial) is provided by mutual agreement, and a student assigned for a period of more than three years does not have the right to leave the master earlier, even if he has received a certificate on the basis of Art. 151. (corresponding to Article 423 of the Constitution of Industry). Parents, having the right to send their children to education without their consent, are considered in this case to be an agreeing party and are responsible for violation of the conditions by the children (Cass. decision 1878, No. 86). Refusal. The legal reason for workers leaving work (refusal to fulfill a contract) is extreme need, when the owner or contractor does not deliver food to them (Cass. decision 1873, N 430). Pay. Failure to define the rental price in the contract does not deprive the person hired of the right to remuneration according to the assessment of labor (Cass. decision 1877, No. 144). The dismissal by the employer of a person hired ahead of schedule, without a legal reason, obliges the former to satisfy the latter with a salary or payment on time (Cass. decision 1875, No. 933). And with the existence of rule 550–552 art. Doctor. Est. (corresponding to Art. 149–151 of the Statute of Medical Ed. 1892) on payment to doctors, when there was no written agreement between the doctor and the patient and a dispute arises, the court can establish the due fee according to the circumstances of each individual case, guided by the general spirit and meaning of the laws (Cass. Dec. 1878, No. 84). Healed When, under a personal hire agreement, workers take money from the owner in advance, on account of future work, this money is considered borrowed and, in the event of a claim, the recovery of money should be awarded, and not payment alive. Having lived, by virtue of Art. 2239, occurs only in the case when the worker does not have something to pay with (Cass. decision 1873, N 930). Under a personal employment agreement, there is no reason to force workers who left work ahead of schedule to continue serving for the agreed time after the deadline has passed, regardless of monetary penalties, unless there is an express provision in the contract itself. This is how it was reasoned in a private case, and it was recognized that Art. 82. Right on the hiring of workers applies only to government, public and state work (Cass. decision 1876, N 195). Clerk and owner. The rules for determining the relationship between masters and clerks apply equally to both clerks who are employees and those who trade by proxy (Cass. Resolution 1870, No. 1244). In the case of Meisner regarding the recovery from Dorfner of the agreed payment for managing the office, on the clerk's right, 4 Dep. Senate, in 1874, considering 711, 713 and 718 art. Est. Bargain. (corresponding to Articles 29, 31 and 35 of the Constitution of the Trade Edition of 1893), reasoned that those defined in Art. 711 and 713, monthly and annual terms must be calculated from the day the term of service has passed, i.e. from the date of termination of the contract concluded with the customer; as for the period specified in Art. 718, then, in the absence of a direct indication, as was done in previous articles, that it should be calculated from the day the term of service has passed, the application of such a calculation procedure to it would be contrary to both the literal content of Article 718 and the precise reason contained in the resolution. This conclusion is confirmed by the following considerations: the settlement of the owner with the clerk, in relation to the last money deserved, constitutes one of the parts of the general settlement that arises between them after the clerk ends his service and the period for which is set by law at one year; and therefore, limiting the right of the bailiff to bring a claim for remuneration with deserved money to a shorter period would seem inconsistent, since such a claim, if brought before the end of settlements, would seem premature in other cases. As a result of this, the word “term” placed in Article 718 in the expression “without missing a month” should be recognized as referring to the period set for the settlement between the owner and the clerk, and not to the period of service; and therefore it should be concluded that the right to claim deserved money, according to the law, is limited for the bailiff to a month, counting this from the date of expiration of the one-year period for settlements with the owner. Vsepod was brought to this discussion. complaint, but the matter is over peacefully. Three years after the clerk’s dismissal, the owner, according to the reports submitted by the clerk, asked to recover from him the money remaining in his hands. The court recognized that the rule on the one-year period does not apply to this claim, since the claim is not about forcing a calculation and not about demanding a report, but about collecting a certain amount on the basis of the submitted reports. But the Senate recognized that the submission of a report, as a unilateral action, is not equivalent to a calculation requiring mutual participation, and therefore the submission of a report by the clerk does not relieve the owner from complying with the annual deadline in the calculation (Cass. decision 1878, No. 27). The sole duty of the clerk to protect the owner’s benefits does not give the latter the right to recover from him losses incurred from the sale of goods on credit, if the clerk was authorized to do so (Cass. decision 1871, No. 635). Revision of personal employment laws. For a radical revision of our current laws on personal employment, a Commission was established in 1870, chaired by Adjutant General Ignatiev, which developed a draft law, and then, after drawing up the draft, it was subjected to a new consideration in another Commission, chaired by Senior Secretary Valuev, and, finally, in the united departments of State. Council (in 1876). The commissions developed three systematic projects: on the hiring of workers, on the hiring of servants and on admission to training. In the final result, it was considered best to limit the publication of new rules on hiring only to rural, construction and factory work. The main features of the draft rules are: the assumption of open-ended contracts, with the right of unilateral refusal in advance; certification of the employment transaction with a work book or acceptance and retention of a passport; the responsibility of the new employer to the previous one for accepting a worker without a book; use of pay sheets with the workbook; establishing special responsibilities of the employer for the maintenance and treatment of workers; determination of liability and deductions for absenteeism, when there is no special provision regarding this in the contract; establishing liability for non-appearance and unauthorized departure of workers and the right to compulsorily return them to work; determination of legal reasons for unilateral termination of the contract on both sides. One of the most important issues to be resolved in the new legislation is the issue of the work book. Many people recognize it as necessary to rule that for all types of employment, when concluding contracts, both written and verbal, the person being hired is obliged to present, and the employer to demand from him, a work book; exception, i.e. Hiring without a book can be allowed only for agricultural work by the day, piece work and shares, as well as for emergency work on railways and waterways, if these or those are carried out by people from the villages closest to the employer’s farm or adjacent to those routes. The implementation of this rule on the part of both employers and those hired is supposed to be protected by the obligation of the employer, who accepted a worker without requesting a book, to reward the owner with whom it was left for all losses caused by the unauthorized departure of the worker, or to pay, instead, a penalty. It is objected to such an assumption, on the other hand, that such a measure cannot be put into general execution. It is completely inapplicable to piecework (share, assigned, etc.) and would be accompanied by extreme difficulties when applied to day labor. With the piecework method of producing work, the employee alienates only part of his labor necessary to complete the work entrusted to him, and therefore has the right, at the same time, to take on and perform several similar works from different owners. Requiring him to present a work book when concluding a contract for such work would deprive him of the opportunity to derive from his work all the benefits that it can actually bring; but this would be inconsistent with the nature of piecework and would cause unremunerated and completely unnecessary losses to the worker. Meanwhile, in practice, piecework seems to be the most productive for both parties and requires encouragement rather than constraint. It is even less possible to apply such a measure to day labor. So, it would be necessary, without attaching a mandatory significance to the work book, to assign legal advantages to it. In this case, both employers and those hired will themselves begin to willingly resort to it to further protect their interests, and so little by little, by force of circumstances, it will enter into life and receive proper application in it. If the work book is not given any advantages in comparison with other forms of concluding employment contracts, then its very establishment will be devoid of a solid foundation, and then, no matter how strict compulsory measures are defined in the law for introducing it into popular use, it will never actually receive practical significance. The best proof of the validity of this view can be the work book, legalized in our country by the Temporary Rules for the hiring of rural workers and servants, approved by the Highest on April 1, 1863. Despite the fact that its presentation to the employer upon entering work or service is mandatory by virtue of this legalization, it, according to the certification of almost all knowledgeable persons, has not yet come into general use, and precisely because it does not contain any special provisions for the parties participating in the contract. Another controversial issue relates to the proposed rule, by virtue of which contracts concluded for a period of more than one year can be terminated, at the request of one party, at the expiration of the first and each of the following years, only if the other party gives notice two months before the end of the year that they do not wish to continue the contract of employment. Some are inclined to recognize such a rule as incompatible with the firmness of the contractual relationship. To ensure the fidelity of the contract for the employment of workers and to prevent unauthorized absences from work and transfer to other owners, many consider it a useful measure to return workers who left without permission to the employers from whom they left ahead of schedule, or without finishing work. On the other hand, such a measure is considered harmful, since it could lead to the forcible consolidation of personal labor, and does not achieve the goal, since the person returned by force cannot be a good worker. Many of the above assumptions were included, as shown above, in the Regulations on Hiring for Rural Work of 1886, and thus constitute the law currently in force. Chapter five. Contracting, supply and transportation § 51. Contract and delivery. – General concepts. – Definition of our law. - The right to enter into a contract. – Form of agreement. – Trade law. - Responsibility. In Roman law, locatio, conductio operarum corresponded to personal hiring in our generally accepted sense: the subject of the contract was work, a service, primarily, and not a specific thing or product that should be the result of the work. Payment is made for the period of work, regardless of the production of the thing for which the work is intended. The one who hires out his labor is called a locator, and the one who hires is called a conductor. Along with this agreement, another, locatio conductio operis, relates to our order and contract. This is a contract in which the subject is the production of the thing or product itself through work, and payment is made for the thing delivered or finished; Moreover, the hired owner of the work (conductor) undertakes to deliver it as and in the form as agreed, being responsible for the shortcomings to the employer or customer (locator operis). This concept is met in the French code by an agreement on estimates, bidding or contracts (entreprise d'ouvrages par suite de devis ou marchés), i.e. an agreement in which an entrepreneur, contractor, builder undertakes to finish a product or build a building from his own material, or from material belonging to the customer, for a known price; This price is called prix fait, because it is based not on the amount of labor alone, but on the amount of the thing or product, and can be determined by means of an accurate estimate with a price (devis). The French law on this subject consists of only six articles, and regulations on government contracts and supplies (travaux publics, fournitures etc.) are not contained in the civil code, but are assigned to other parts of the legislation. Our law devotes a separate chapter to contracting with delivery, separating this type of contract completely from personal hiring, which is classified as so-called personal contracts in a completely different book X t., and classifies the order as personal hiring. Our law deals with contracting primarily in the types of state economy, due to the importance of this contract for meeting state needs, and therefore only nine articles relate to contracts between private individuals. In a contract or supply, according to the definition of the law (1737), one of the parties undertakes the obligation to carry out an undertaking or deliver a certain kind of thing with their dependents, and the other - to make a monetary payment for this. The subject of contracting and delivery can be any kind of enterprise, such as: 1) construction, repair, etc. of buildings, and performance of all kinds of work; 2) supply of materials, supplies and things; 3) transportation of people and heavy loads. The expression “at his own expense”, used in the law, can cause confusion in cases where the contractor must operate, at least in part, with the materials and means of the owner; practice usually interprets this expression in a broad sense. Without a doubt, when a contractor does everything he does in an enterprise, he does it on demand and at the expense of the owner, he no longer appears as a contractor, but as a commission agent or a hired work manager, manager; but issuing sums of money to him in advance or delivering materials, if included in the overall calculation of the contract, does not prevent the entire operation from being a contract. Another feature that is not directly specified in the law is more important - independence in the activities of the contractor. The owner, without a doubt, cannot be deprived of the right to supervise the progress of work: but any control on his part is aimed at protecting his interest and preventing misunderstandings and quarrels in the final payment; in essence of the relationship, the owner has no right to interfere with the contractor’s orders and direct the operation. Upon completion of the work, he has the right to demand that everything be handed over to him in the form, condition and quality as agreed - or, otherwise, he can refuse to accept it and demand exact execution (1744). The right to enter into contracts for the supply of goods or for an item requiring trading activity is in connection with compliance with the rules on trade: the contractor in this case must have a trade certificate to the extent of the amount for which the contract is taken. Notaries were charged with the duty of observing compliance with this rule during the execution of contract agreements (1740, 1743). However, not every contract and not every delivery constitutes a trading enterprise (cf. Cass. decision 1879, No. 44). According to the Regulations on Duties for the right to trade, trade is divided into wholesale, retail and petty. All its births are carried out either on certificates and tickets, subject to duty, or duty-free and free. The law specifies the types of free trade (trade in grain, construction of ships, etc.); but entering into obligations with the treasury and private individuals for the supply of goods and contracts is considered a trade action when these agreements are submitted for appearance (V vol., ed. 1893, Establishment of Direct Tax., Art. 214, paragraph 11). – Trade rights are certified by taking a trade certificate. It can be merchant or commercial; in addition, the maintenance of each commercial or industrial establishment requires the taking of a special ticket, and with each trade certificate it is necessary to take at least one such ticket, but persons who take a trade certificate only for the withdrawal of a contract are excluded from this, if it does not require trade or industrial establishments. Trade certificates are issued for the first or second guild. The first gives the right to trade and take contracts throughout the empire and for any amount; the latter limits this right only to the county for which the certificate was taken and to the amount of 15 thousand rubles. Landowners and rural residents can accept the supply of products from their farm without obtaining trade certificates (Vol. V, ed. 1893, Establishment of Direct Tax, Art. 216, paragraph 1). The contract and delivery agreement must be written and notarized. The conclusion of an agreement is sometimes preceded, even between private individuals, by bidding, with a call and the presentation of an estimate or a list of conditions. But the use of this method depends solely on the will of private individuals, and the legal significance of the formalities associated with such auctions is very vague, since all our legal regulations on auctions relate exclusively to contracts of the treasury or various government and public institutions using state law. By virtue of Art. 1745, “urban and rural lay societies, diocesan authorities, monasteries, churches and all other public institutions” are subject to the general procedure for concluding contracts between private individuals. They can conclude, on this basis, agreements, to the extent of the power granted to each of them, or with the permission of those authorities to whom they are subordinate. – Satisfaction of zemstvo needs is provided to the economic orders of zemstvo administrations, according to the instructions of zemstvo assemblies. Bidding for contracts is carried out in the district or provincial government, which approves them and concludes contracts binding on the entire zemstvo (vol. II, ed. 1892, Pol. Zemsk. Uchr., art. 6, appendix: art. 22–25). Similarly, and subordinate to the city duma, the city government for city economic affairs operates (vol. II, ed. 1892, City Pol., art. 140, note, appendix: art. 21, 22). Then it remains not entirely clear whether the special rules regarding zemstvo contracts, established on this subject in the charter on zemstvo duties, remain in force (in the Continuations of the Holy Law, these articles are not repealed, and the new edition of the Establishment of Zemstvo. Pov. still expected). The essence and characteristics of a contract. Our law presents difficulties in classifying individual work contracts under one or another category. So, for example, it is not easy to establish a definitive line between a personal rental agreement, on the one hand, and an agreement for the supply or rental of property, on the other. All efforts on this subject by the interpreting court are frustrated by the vagueness of the law itself. So, for example, the Senate (Cass. decision 1869, N 408), distinguishing personal hiring from supply, identifies personal service combined with personal dependence as a distinctive feature of the first. But is it possible to establish yourself on this basis when the law classifies the order of work to an artisan as personal hiring? The Senate considers the hiring of individual carts for transportation to the hiring of movable property. But is it possible to dwell on this definition when, along with the cart, a driver is hired (as almost always happens) to accompany him on the journey and for work? Meanwhile, classifying a contract into one category or another is of practical importance in determining legal relations and responsibility. Thus, in the latter case of transportation, the Senate reasons that the driver’s liability for harm and loss does not fit the rules of Articles 2233 and 2234. on personal hiring, but is determined by the general rules on remuneration. However, it cannot be denied that in the above case there is a special relationship between personal trust and personal commission. According to Cass. Sep. (1868, N 788) the distinctive feature of the delivery is as follows. Between the conclusion and execution of the contract, a period is assumed in which the legal relations of the parties to the items of delivery remain the same. The object is not a known given property, but only an assumed one, by type and quality. This is hardly a distinctive property, since the same thing can be found in sales on credit and in resale. – A distinctive feature of a supply contract is that its subject is not any known property (?), as in the case of sale and purchase, but only an assumed one, with an explanation of only one quality and dignity of the things intended for delivery, and that between the conclusion and execution of the contract a certain period of time is assumed, during which the legal relations of the buyer to the items of delivery remain in the same position as they were before the conclusion of the contract (Cass. decision 1876, No. 158). – Payment in advance of the agreed money in a supply agreement does not change the properties of this agreement and does not serve as a sign of purchase and sale. Receiving money in advance is not hampered by the fact that the delivery is carried out at the expense of the supplier (Cass. decision 1875, No. 374). - Cass. decide 1878, No. 158. The decision of the Chamber was canceled because it recognized the agreement as a contract without establishing, based on its scope, value, complexity and other characteristics, whether the counterparty took upon itself the execution of the enterprise. – A contract or supply should not include an agreement not about an enterprise, but about the processing of things (leather dressing), through manual or factory work (Cass. decision 1874, N 792). It is not delivery when the contract states that so-and-so bought the wool and is obliged to accept it himself at the seller’s farm (Cass. Resolution 1874, No. 859). The obligation to transport a certain amount of grain from one place to another, although with the invitation of two comrades to help divide labor, does not yet constitute a contract (Cass. decision 1876, No. 455). There was a reason to recognize as a contract a contract for the transportation of heavy loads, when drivers are hired to carry timber on their horses from the city to the railway line for at least 100 carts, and payment is supposed to be made upon completion of the entire transportation (Cass. decision 1870, N 921). What type of contracts does the sale of standing grain or future harvest made in spring refer to? Many are inclined to classify it as delivery, since the sale is subject to a known specific thing that belongs to the seller by right of ownership. Hardly thoroughly (cf. Krasnoselskaya village, 2 General Meetings of September, November 10, 1878). Losses. Under a private contract, the railroad builders made an estimate of several hundred thousand on the contractor and, having retained his deposits, demanded recovery. The contractor demanded that the management first submit a detailed calculation of the money received, the work and the mutual fulfillment of obligations, but the management refused this, citing the fact that the rule on giving a general calculation applies only to government contracts. The Senate decided that although the mandatory issuance of calculations, in formal force, is established only for government contracts, in this case, according to the circumstances of the case, the court had the right to recognize the presentation of such calculations as necessary for the correct resolution of the case (Cass. decision 1877, No. 26). The city sought damages from the contractor for slow construction. According to the contract, it was necessary to collect a fine for slowness and remove him from the contract. The fine was collected, but the city did not exercise the right of elimination, therefore it can no longer recover damages for slowness (Mn. State Council. 1871; 2 Sat. Sen. decision IV, No. 834). § 52. Freight agreement. – Transportation by rail. – Responsibility of the carrier. It seems that it would be most correct to include in this same group of obligations the so-called freight agreement - on the transportation of goods and luggage (Frachtkontract, Contr. de voituriers par terre et eau, Affrêtement, Charter party). With the recent facilitated and intensified movement of goods and things between remote areas, by sea and by rail, the contract of transportation, or freight, has become especially important. The relations that arise regarding it are also defined in legislation, usually in commercial codes, of which the newest - the German Commercial Code - is a wonderful example of general definitions related to this subject. The contract does not have a binding form, but, if necessary, is concluded in the form of a freight condition (Frachtbrief). The main importance is given to the necessary, in addition to this condition or in connection with it, transmitting and identification documents, such as: bills of lading and receipts (bill of lading, lettre de cargaison, Ladeschein, Conossement). The carrier is responsible for timely delivery, except for those cases in which the delay did not depend on him - unless he assumed special responsibility, with a penalty. But he is unconditionally responsible for the integrity of things accepted for shipment, except in cases of loss and damage that depended on force majeure, or on the sender’s fault (bad packaging not detected upon receipt), and on the natural properties of the sent things. Responsible for the loss of valuables and papers only in the case when they were specifically declared upon shipment. When assessing damages in the case of loss and damage, the ordinary trading value of the goods at the place and time of delivery at the end of the journey is taken into account. The carrier is unconditionally responsible for any fault of his agents, and is inseparably responsible for those previous and subsequent carriers from whom the cargo was delivered to him and to whom the cargo is delivered from him. In general, the sender (if there was no bill of lading) is considered the owner of the cargo until the carrier delivers a receipt to the addressee at the place of receipt. If money for transportation is received at the place of delivery, then, until payment is made, the cargo serves as security. The recipient is obliged to verify the integrity of the cargo upon acceptance, and if it was not immediately possible to verify this, then a short period of time is allowed for filing a further claim. Equally, the carrier’s right to ensure payment with cargo lasts no longer than three days after delivery of the cargo to the recipient. When there is a bill of lading, it serves as a bearer deed evidencing not ownership of the cargo, but the right to take delivery of the cargo and dispose of it. It does not in itself replace the freight contract, but represents, on the one hand, a receipt for acceptance of the cargo, and on the other, an obligation to deliver it. This act can be freely transmitted by inscription and serves as the subject of circulation. Like a bill of exchange, it can be written in several copies, of which one, for example, remains with the shipowner, another is put into circulation, the third is sent to the destination of the cargo, and the right to accept it belongs to the one who received the last inscription on the copy that was in circulation. The carrier hands it over to whomever it should be upon presentation of the last two samples. The sender retains the right to change the original destination; for example, if he learns about the insolvency of the one to whom he assigns acceptance of the cargo on credit, he can send an order to the shipowner in advance (for example, by telegraph) not to release the cargo or to release it only for cash payment (droit de suite, right of stoppage in transitu). These general rules apply, with significant, however, additions, to the transportation of goods by rail. The railways have the property that they, in essence, enjoy, on their own line, a monopoly of transportation, and in this situation could, with complete freedom of action, impose extremely restrictive conditions on senders, completely removing or extremely limiting the overall responsibility for the correctness of delivery. That is why legislation everywhere takes care to reasonably limit this arbitrariness of railways to certain limits, within which railway departments are left to be guided by their own rules and impose their own special conditions on shippers, without violating general legislative provisions. In general, the relations of railroads to shippers are determined by regulations and provisions that constitute, so to speak, the middle ground between law and contract, since these provisions are considered and approved either by the legislative or the highest government authority. The contract of carriage is considered concluded upon acceptance of the cargo and the affixing of a stamp to the consignment note. The amount of freight is determined by tariffs at prices set in accordance with the weight and measure, the amount of driving force, the space occupied in the cars, the quality and value of the goods, not exceeding the extreme limit established by the highest administration; and these tariffs, announced generally, are mandatory - until changed in accordance with the established procedure - for the railway. But regardless of whether the positive law determines that the railway does not have the right to refuse to accept the cargo, as soon as it is presented in the manner required by the regulations and corresponds to the means of the railway (for refusal there are huge fines in English law); must send cargo in order of presentation and delivery, under no circumstances allowing preference for some senders over others; should not accept goods earlier than they could be sent. The rules regarding railway liability for the integrity of cargo are very important. Railways are allowed to set an extreme limit of their liability (not exceeding a certain amount) for such cargo that is subject to damage or loss on the road (however, the sender is allowed to indicate in the declaration the real value of the cargo or the interest in proper delivery); but this norm (see German Trade Code 426, 427) does not have a decisive meaning, and the sender is not deprived of the right to prove in court the true value of the cargo when damage or loss occurred due to the fault or negligence of the railway administration and its agents. When the cargo crosses several paths connected to each other by transmission communication, the liability between them is, of course, not joint and several, but generally falls on the first path of reception and on the last path of delivery, and the middle paths are responsible only for the damage that occurs on their line. In 1878, an attempt was made to establish general rules for international transportation by rail, for which a conference of representatives of railway departments from 9 countries, including Russia, met in Bern. At this congress, by general agreement, a draft international convention was developed, in which the following rules are notable. The freight charge, if not collected upon delivery of the goods, is taken from the recipient, and the sender can put payment of its value on the goods, in which case the railway assumes a commission for payment of the tariff. Before handing over the consignment note to the recipient, the sender has the right to reverse or change the destination by order from the departure station. The road has a mortgage on the cargo for the amount of its recoveries. In case of loss, damage or delay, the railway department conducts an investigation and determination of losses, with the participation of experts. The recipient has the right to refuse, even after delivery of the invoice, to accept the goods and pay money until his request for certification of defects is fulfilled. The road that received the goods is responsible throughout the entire journey until the goods are released; but each of the other roads becomes involved in the agreement. The claim may be brought, at the owner's choice, either against the first road, or against the last, or against the one on which the damage occurred. The road that has paid the reward has the right to claim back from other roads, depending on their guilt. Liability is eliminated when the loss occurred due to the fault of the owner or the nature of the cargo, or due to force majeure. If the item is not delivered within 30 days, it is considered lost. The amount of remuneration is calculated based on the trade value of the goods at the place of issue; but railroads may offer special rates to the public, fixing the highest limit on the value which the sender is permitted to declare on the bill of lading. The interest of delay can be assessed in advance, in the form of a penalty, but in general the railway is responsible for the loss of delay unless it proves that it could not eliminate the delay despite all the care of a zealous driver. Remuneration for delay can be awarded in the amount of 1/4 to the full amount of the carriage charge (the latter in case of malicious intent or important omission). Claims for damage are settled for a period of one year. Court decisions receive international force (see the draft international convention on the transport of goods, etc. St. Petersburg, 1879). In accordance with the general principles outlined for the transportation of goods by rail in foreign laws, rules for the transportation of goods were established in the General Charter of Russian Railways, approved in 1885 (Vol. XII, Part I, ed. 1886). Railways are obliged to accept any cargo permitted for transportation, even if it could not be sent on the day of import to the station; in this case, the day of dispatch must be indicated on the waybill, and for storage of cargo in certain cases, the railway is allowed to collect a certain fee per pood. Loads must be sent in sequence, except for those for which special rules have been established or the dispatch of which out of sequence is required by public interest, or necessary to satisfy public needs (the designation of goods, in both of these cases, belongs to the railway board), or is established by government orders (Art. 49 of Cont. 1893, 50 of the same Cont. 51). The goods are sent either to the name of a specific person, who is indicated on the invoice, or to the bearer of a duplicate of the invoice. The invoice and duplicate serve as evidence of the mutual rights and obligations of the parties involved in the contract of carriage. The sender is responsible for the accuracy of the information he received in the delivery note. The contract is considered concluded from the time the cargo, together with the consignment note, is accepted for shipment. The carriage charge is determined by the tariff and rules on additional fees; In addition to this fee and charges, railways do not have the right to collect other payments from senders. Excesses are returned to the sender with interest of one per month, and those unclaimed are returned to the treasury within a year (54 et seq., 135). The cargo is issued to the person named in the consignment note, or to the bearer of a duplicate when the recipient is not named. Before accepting the cargo, the destination station is obliged to store it free of charge for a certain time, and after this time - for a fee determined by the council for railway affairs, but in any case, after 30 days from the date of arrival of the cargo, the sender is notified about the unaccepted cargo, published three times in local city and provincial gazettes, and in the event of failure of the sender or recipient within three months from the date of the last publication - the cargo is sold with public auction, and the money proceeds from the sale, withholding payments due to the road, are deposited for incremental interest in a state credit institution. Money not received within one year from the date of the last publication is applied to the pension or auxiliary fund of the railway (40, 90). For losses caused as a result of non-acceptance of cargo, violation of the queue, non-delivery, loss or damage, the railway is obliged to compensate the sender in the last three cases in the amount of the loss actually incurred by him, and in the first two in a certain amount, namely, in the case of an incorrect refusal to accept - for every 25 pounds gross - in the amount of the triple daily fee of the dray driver, if the sender does not wish to seek losses in the general manner, and for violation of the queue is obliged pay, for each day, five times the fee collected on the basis of the rules on additional fees established for the storage of goods after the expiration of the grace period for their acceptance (100–103). Remuneration for loss or damage to cargo, the price of which is declared in the invoice, is made in the amount of the declared price, if the premium specified in the tariff was paid in favor of the road (108). The railway is liable for delays in delivery only if it does not prove that it could not eliminate the delay, despite taking all measures that fall under the responsibility of a serviceable driver. Remuneration for delay is based on 5% of the carriage charge for each day overdue, even if the delay did not cause losses; the remuneration should, however, not exceed the entire carriage charge (110). Claims for compensation are extinguished within a year, calculated for damage to the cargo or loss of part of it - from the day of delivery of the cargo, for complete loss or delay in delivery - from the day the delivery period expires, for the return of overages - from the day of final payment of the carriage charge. The running of the one-year limitation period is not suspended for minors and in general for persons under guardianship (135–137). Agreement on the hiring of ships and vessels for cargo (Constitution of Trade. 323–361). The owner of the ship introduces himself as a shipbuilder or shipowner, i.e. the person entrusted with the management of the ship (Article 216). He releases the ship for cargo with the consent of the owner. The employment agreement is called a Charter party and is concluded in writing, with appearance, in two forms. Its essential component is the condition of a penalty for non-fulfillment of the contract and for downtime, not exceeding the amount specified in the law. The shipowner is responsible for accepting the cargo on time according to the cargo list, which is drawn up in several samples, signed by each other, and serves as a document for both the shipowner and the receiver of the goods. The accepted cargo comes under the responsibility of the shipowner from the moment the ship's hoists are placed on it. The shipowner is responsible for the serviceability of the vessel and delivery and must hand it over to the right person on the spot. The tenant is obliged to deliver the goods according to the conditions, on time, with proper cleaning, and to pay for empty space on the ship, if its cargo has not reached the conditional measure and the space has not been filled with other cargo. He has the right to assign his condition to another person. The charters of shipping companies contain rules according to which the companies are allowed to sell luggage at public auction, after publication in the statements, if the receivers of the luggage do not appear to receive it, or refuse, or do not pay the transportation price. The society is satisfied from the proceeds, and the rest is given to the owner or entered into a credit institution for circulation from interest and issued to the owner at his request (361, note). Hiring horses to pull ships with cargo. The owners of the ships are required to enter into a written agreement (domestic) with the owners of the horses, which must set out the terms of employment and the duties of the drivers, so that they must not leave the ships and drive the horses aside for the night (Collected Uzak. 1878, No. 664. Rules for navigation, § 121). Contract of carriage. 1000 tbsp. Est. Bargain. (corresponding to Article 323 of the Establishment of Trade, edition of 1893) the charter agreement is to hire ships for cargo. This concept does not correspond to the agreement on towing the sender’s ships loaded with his own goods (2 Sat. Sen. Resolution V, No. 1279). But in the Byrd case, in 1850, State. Sov. reasoned that the cargo, since shipping began and steamships began to take other ships in tow, could be carried in two ways: on the ship and overboard it. In the latter case, when the towed ship is not able to move without a steamer, it and its luggage constitute one mass, and this mass is the cargo of the steamer. In the case of Borisovsky State. Sov. (1865) denied the plaintiffs compensation from the company of the original establishment of transport for goods sent through the company's office without insurance, stolen on the road by cab drivers. This conclusion is based on the Supremely approved charter of the company, in which the company is excluded from liability for uninsured luggage (J. M. Yu. 1865, No. 7). In the case of the "Engine" company with the "Shipping and Trade" company, arose, on the application of 1755 and 1775 Art. Est. Bargain. (corresponding to Articles 393 and 395 of the Constitutional Court. Trade Edition of 1893), the question of what should be understood by the word: freight cases - claims either exclusively about freight money or freight charges, or in general all disputes arising under transportation contracts? The Senate (1st General Meeting October 31, 1878) decided, in accordance with 1234 (corresponding to Articles 545, 552 of the Constitution of Trade, edition of 1893) and 1302 Art. Est. Bargain. (corresponding to Article 45 of the Constitution of the Court of Trade, edition of 1893), which should be taken into account all disputes arising from the transportation of luggage both by ship and by land. There is a similar question in the Rusanov case (General Meeting, September 8, 1880). The Society for Transporting Luggage took things from the Ministry of the Navy for transportation and delivery to Astrakhan, to uniform stores, according to a receipt. Items were received damaged and were not insured. The contract consisted of one receipt, which stated that the sender of uninsured items does not have the right to demand liability from the company for any losses or damages. On this basis, and as the damage occurred in transit, the company denied responsibility. But as it turned out, the company arbitrarily transferred the transportation of things to another company “Caucasus and Mercury”, and delivered them not where it was supposed to, but to the material yard of the company “K. and M.”, even without notifying the Maritime Ministry of the transfer, it was recognized on the basis of 1994 (corresponding to Article 222 of the Pol. Treasury. Contract., edition of 1887) and 1547 Art. that society is obliged to answer for damage to things according to the assessment (Mn. State Council. 1872). According to the charter of the luggage transportation company, the receipt handed over by the office to the sender is a document constituting an agreement between him and the company on the conditions of shipment. The company issues a road certificate to the driver, stating the terms of delivery between the driver and the company. Cass. decide 1876, N 575 it was recognized: 1) that 683 art. Zach. Citizen the liability of the railway is determined for an accident that occurs not only with passengers, but also with workers or employees, and not only on a passenger, but also on a working and any other train; 2) that the personal negligence of the victim does not yet serve as a reason to eliminate the liability of the railway, when the cause of the misfortune was not exclusively, but in combination with the disorder that depended on the management of the railway. 2 Sat. Sep. dec., I, N 170. A reward was awarded to the railway company for goods that burned on the way due to failure to take precautions against fire. A receipt from the railway department for accepting luggage, with special conditions indicated in it regarding the extent of compensation for loss, does not eliminate the effect of the general rule of Art. 683. Zach. Civil., and is optional for the sender, if these conditions were not specifically presented to him, since they do not have the general force of law (Cass. decision 1875, N 484, 882). But in the same year, No. 287, the Senate spoke in the opposite sense. Shilov sought 500 rubles from the Ryazan railway company. reward for the missing luggage, at the actual value of 7 pounds of fine cloth, sent to Saratov. The defendant made an excuse, firstly, by the fact that, in addition to the Ryazan one, three more roads were involved in the transportation; and, secondly, the tariff. The first objection was recognized as unfounded, since the receiver was the Ryazan road; but the remuneration was awarded according to the tariff. But the Senate decided that in order to exempt someone from the general obligation imposed by Articles 673 and 685, a law must be passed. The rules for the carriage of goods approved by the Minister are not the law and cannot deprive individuals of their rights under the law. And the Minister is authorized only to approve the tariff of freight charges, but not to change the legal responsibility of the company (Cass. decision 1878, No. 247; see the same 1873, No. 376). Merchant Stern sought compensation from the Odessa Railway Company for the loss of uninsured luggage based on the actual value of the goods, a certified invoice and a tobacco shop account. The court awarded him remuneration only according to the tariff, 5 rubles. per pound, judging that the satisfaction of value is not consistent with the concession, the charter and the agreement, in the form of an invoice, concluded when sending the cargo by Stern’s servant. The Senate decided that the tariff determined only the payment for the transportation of passengers and luggage, and not responsibility for lost luggage, and that Stern, instructing the servant to send the goods, did not authorize him to conclude any contract with the railway company (Cass. decision 1877, N 370). The responsibility of the postal department for parcels and valuables lost in the mail was determined by Art. 354, 358, 360 Post. Established, and since 1870 the Minister of Internal Affairs has been given the right to arrange the procedure for postal dispatches with his own instructions. In the Achenbach case, decided. General Collection Sep. It is recognized that the loss of things that made up the luggage of those traveling in a postal carriage lies with the responsibility of the postal department, since, due to the nature of the packing, the passengers themselves cannot monitor the integrity of their luggage, but postal employees must monitor it. This liability is not eliminated by the fact that the luggage was not insured. Insurance provides against the expected danger, and its absence does not eliminate liability under the general law (684 Art. Civil Code). Therefore, the plaintiff was awarded compensation at the price shown by him and not disputed by the postal department (J.M.Yu. 1863, No. 12). § 53. Contract agreement with the treasury. – History of contract legislation. – Who has the right to enter into contracts. – Personal restrictions. – General accessories. - Benefits from the treasury. – Provision and its different methods. – Pledge and guarantee. – Procedure for concluding an agreement. – Wholesale and fragmentation contracting. - Trades. – Sealed advertisements. – Mixed method. – Approval of the contract. - Contract without bidding. The contract and supply agreement with the treasury has received detailed development in our legislation, especially from the formal side. Although contracting deals and operations have been in use in our country since ancient times and constituted a common instrument of industry, they have gained particular importance in state economy and legislation since the time of Peter the Great, with the development of military and naval institutions and with the increase in the material needs of the state that required satisfaction. All legislation of the 18th and first half of the 19th century is filled with decrees and decrees on this subject. Its main foundations were, and to some extent still serve, the Charter and Regulations of the Chamber Board, Admiralty Regulations, instructions to General Kriegs-Commissar (1719–1723–1731), Regulations of the Provision Board of 1758, Regulations of the Admiralty Board of 1765, Decree on Contracts of 1784 and on pledges of 1790, the Charter of 1802 on provisions and the Regulations of 1830 on contracts and supplies. From all these provisions, the Holy Order was compiled during the publication. Vol. X chapter on contracts, in the 1887 edition. allocated to a special provision on government contracts and supplies, and in the Code of Military Regulations a special complex legislation was formed, the last act of which was the Highest approved regulation of the Military Council on procurement for the military department (Code of Military Regulations, book XVIII), published in 1875. For maritime contracts, there are special instructions in the regulations on the management of the maritime department (1867, Collected Uzak. N 542). All this legislation expresses, on the one hand, concern for protecting government interests from losses and abuses - rules and formalities, on the other hand, ensuring government needs by attracting private enterprise to the contracting business, facilitating its methods with benefits and benefits, and allowing small businesses to compete with large capitalists in the contracting business. According to the military department, a rule has been expressed “that the terms of the contract should give the opportunity to participate in it mainly to indigenous producers, as well as to as many persons as possible” (Pol. Military. Procurement. 24). In the laws on government contracts, it is necessary to distinguish rules that contain one guideline for government departments to protect the interests of the treasury, from such rules that assign a certain right to a person. So, for example, according to Art. 1620. (corresponding to Art. 71 Pol. Treasury. Other) the treasury administration only has the right not to accept a pledge that does not sufficiently provide the treasury for the rest of the time from the date of presentation of the power of attorney, but is not necessarily obliged to do this under fear of the invalidity of the entire supply agreement and its non-bindingness for the legislator (Cass. decision. 1877, No. 327). The law first of all defines in detail who has the right to enter into contracts with the treasury. The main condition for this is the acquisition of trading rights (see above) according to a certificate. Whose certificate for the amount is insufficient, after the auction a subscription is taken that he will make additional contributions in the amount of the accepted obligation. To facilitate supplies to some charities, trade certificates are not required from their contractors. From landowners and peasants, who are granted free trade in the products of their own economy, a subscription is taken during the contract that the things being contracted belong precisely to this category (Pol. Kazen. Subd., art. 2, 4; vol. V, ed. 1893, Establishment of Direct Tax., see 216, clause 1, note 2). The contractor can be a partnership, but so that it is formed before the auction, and not during the auction. If the partnership was formed after the auction, then the contract, in any case, is considered to be the same person for whom it was approved by the auction (Pol. Kazen. Sub. 3). The contractor can also be an estate or local society, in certain cases. The local noble society of a province or district or several districts is allowed to take out contracts for the supply of provisions for the troops quartered in that province, through commissioners who are elected by two-thirds of the landowners who were in the assembly, with the provision of a loan up to a certain amount. The contract is concluded with such an authorized person, and those who signed the authority are considered responsible persons (Pol. Kazen. Subd., Art. 80, adj.). Similarly, contracts for zemstvo duties are given to the local nobility (Zemm. Pov. 131). Bourgeois and peasants are allowed, on preferential terms, to maintain postal stations, carriages and horses for the police; moreover, if they have a guarantee from the company, then they are not obliged to take trade certificates (Pol. Kazen. Subd., Art. 5, 80, paragraph 3). Cossacks, within the boundaries of their army’s settlement, are allowed, on preferential terms, to supply grain for the troops or in general for the items of their industry (Pol. Kazen. Podr., art. 30, 80, clause 5; vol. V, ed. 1893, Establishment of Direct Tax., art. 379–381). The master is allowed to take out contracts as much as he has enough labor in his workshop (Constitution of Industry, ed. 1893, art. 397). Foreigners who are not members of the guild are only allowed to supply products from their factories and factories (Pol. Kazen. Podr., Art. 4, note 2). The following are subject to restrictions in contract law: 1) Jews, because they are cramped in their place of residence; these constraints, however, almost lost their significance with the relief of the registration of Jews in the 1st guild. 2) Persons found, by a court verdict, to be in default under previous contracts with the treasury are not allowed to take up contracts. According to the military department, faulty contractors who have allowed other people's pledges or guarantors to be collected, or who have not fulfilled official business, are excluded from bidding. Their names are announced throughout the department by order of the Military Council (Pol. Military. Zagot. 30, 31). 3) It is prohibited for officials, as well as members elected from the merchants of those places in which state-owned enterprises or trades are carried out, to enter into contracts both in their own name and in the name of their wives (Pol. Treasury. Sub., Art. 7, 10, 11 and note). The contract for the contract and supply is concluded either on behalf of the state treasury by those government places and persons to whom it is granted, or on behalf of public institutions by their governing bodies, in view of the power granted to each. There are many definitions and instructions for all this in the charters of various institutions and departments. In the province, the main place for awarding contracts is the treasury chamber. Often, for this purpose, a common presence is drawn up in it with other institutions to which the subject of the agreement concerns. Then, according to special statutes - in the Department of Communications - the place of bidding for contracts is the district administration; for the military department, which has its own special huge economy, - the district administration (Pol. Kazen. Subdr., Articles 12, 13; Establishment of Zemsk. Pov., Articles 104, 108; Establishment of Construction, Article 145 according to Prod. 1893; City Regulations, edition of 1892, Art. 140, note, appendix: art. 22). In general, on this subject, special limits of power and authority are established in each department. Bidding is carried out for smaller amounts and for smaller operations at the lower or middle level of management, for larger and more important ones at another; finally, the ratification or final approval of the treaty belongs, depending on its amount, to one or another of the highest governing bodies. The general rule about the terms of the contract is that they should be beneficial for the treasury and should not tend to relieve contractors from public burdens, i.e. established duties (Pol. Kazen. Subd., Art. 14). The contract must clearly define the subject of the contract. The subject may be, as described in Art. 16. Floor. Kazen. Other 1) Supply of all kinds of things. 2) Transportation of heavy loads. 3) Construction and earthworks. 4) Maintenance of mail and correction of other zemstvo duties. The law specifies in detail what accessories of execution and what qualities of things and works must be precisely specified in the contract. Contracts must be written in Russian weights and measures. During transportation, special attention is paid to identifying fear along the way. When delivering things, normal samples must be approved in advance, sealed and signed, in triplicate, of which one remains at the office, the other with the contractor, and the third with the receiver. The longest contract periods are defined: for delivery 2 years, except in extreme cases; for work 4 years and for zemstvo duties 5 years (Pol. Kazen. Podr., Art. 25; Establishment of Zemsk. Duties, Art. 123). These terms can, if necessary, be increased only with the permission of the highest authorities. In addition, in private charters, according to the nature of individual transactions, special deadlines are established (for example, Postal Regulations 153 according to Prod. 1893). Among the conditions, the condition on benefits from the treasury to contractors is especially important. The first place among the benefits is occupied by the so-called deposit, in the sense not of security, but of an advance or loan issue, constituting a certain share of the contractual payment. Its size extends, as a general rule, no more than half of the annual contract amount, or in special cases no more than a third (Pol. Treasury. Sub., Art. 28–31, 36). These deposits are secured by special pledges, ruble for ruble. These deposits are released as the deposits are offset during the execution of the contract. There is no interest on earnest money, even if the contractor fails. Earnest money corresponds to cash loans issued to the contractor also on security, in some cases (for example, to the owners of free post offices. Postal Charter, Art. 212 to Cont. 1893). Then, by agreement, assistance can be provided to the contractor with materials, supplies, tools, etc. (for example, the release of gunpowder for explosions during work), the appointment of knowledgeable people and technicians, military workers; allocation of space for warehouses, etc. (Pol. Kazen. Subd., Art. 32 et seq.). Benefits also include the issuance of part of the money in advance for work that is not completely completed, according to preliminary evidence, which will be discussed below (Pol. Kazen. Podr., Art. 188). Security is an indispensable part of the contract. It consists of a pledge, sometimes a surety; only in rare cases, when, due to the nature of the operation, failure to complete it on time does not entail a government loss, it is allowed to allow contracts without collateral, with one penalty (Pol. Treasury. Sub., Art. 40). The pledges ensure: 1) satisfaction of the needs that the contract must serve in the event of a malfunction; 2) deposits and loans; 3) a penalty, when it is included in the condition (for military departments). The subject of the pledge is real estate, according to pledge certificates; credit papers and monetary values, and in other cases things and materials constituting the subject of the contract. Liens can be submitted either by the contractor's own or by others entrusted to him. The total amount of the deposit is considered to be the third part of the contractual amount, calculated in total for the entire duration of the operation. But, in particular, exceptions are allowed from this general rule: the highest authorities are allowed, depending on the circumstances and need, to reduce this measure of collateral, for the initial security at the auction, to a tenth; in other cases, middle authorities are also allowed to reduce it to a fifth (Pol. Kazen. Sub., Art. 39–43). Liens are released as the contractor fulfills the accepted obligation, but only in the event of a malfunction of the contractor and, moreover, in compliance with the known proportionality specified in the law with both the amount of the deposit and the unfulfilled part of the operation. For obligations for several years, pledges commensurate with the annual amount can be released only in the last year (Pol. Kazen. Subd., Art. 42). The pledge is responsible for failure not only in the execution of the concluded contract, but also at the auction, when the one who retained the contract refuses, and this will result in losses for the treasury (Pol. Treasury. Sub., Art. 115). Contracts of noble societies are secured by all the free real estate of local landowners who were in the assembly and signed the authorization (Pol. Treasury. Sub., Art. 80, adj.). Instead of a pledge, guarantees are allowed in some cases, namely: when taking out a contract by peasants or townspeople, a circular guarantee from society. These are the cases mentioned in the law of contract cancellation by coachmen and peasants for the maintenance of postal stations (Pol. Kazen. Podr., Art. 80, paragraph 3); Cossacks under local contracts (Pol. Kazen. Subdr., art. 30, 80 p. 5; vol. V, ed. 1893, Establishment of Direct Tax., art. 379–381); The military department accepts, on a special basis, guarantors for merchants, peasants and townspeople. See § 38. In cases where contractors with a bond enter into competition with persons representing by law sureties, full competition is allowed, and the bond does not give any advantage over the surety (Pol. Kazen. Subd., Art. 113). With a pledge and surety, there may also be a penalty condition. See § 35. Procedure for concluding an agreement. Conditions. Bargaining Before concluding a contract, the subject places and persons must determine the extent and number of the needs to be satisfied by the contract, namely: draw up a plan and estimate for the construction, determine the quality of materials, things, supplies, with the choice of samples, and inform the existing trade and legally established prices. When considering the overall value of the contract, we mean the size of the loan opened to that department for a certain use according to the allocation. Then conditions (conditions) must be drawn up on all the details of the contract, so that upon conclusion all that remains is to insert into it the accepted prices and pledges (Pol. Kazen. Subd., Art. 91–93). In those departments where homogeneous needs are constantly satisfied through contracts (for example, in the military, naval, etc.), these conditions receive a permanent form of a predetermined form of contract (cf. Pol. Kazen. Subd., Art. 131). According to the military department, for the preparation of permanent items, plans are drawn up in the district departments, approved by the Military Council, and general construction assumptions. For preparations made without plans, the conditions are approved by the authorities to the extent of power (Pos. Military. Procurement, 4–13). When drawing up a plan, careful consideration is given to prices, wholesale and retail according to estimates (estimated), prices of the latest procurement, modern reference prices, opened by the direct order of the decisive authorities. The extreme limit of conditions is the so-called secret prices. The contract can be wholesale, for the entire enterprise in its entirety, or fragmented, with the division of the entire work, where possible, into sections that can be contracted out to different persons. The adoption of one or another type depends on the personal discretion of the subject departments, depending on what is more convenient and cheaper. But it is not prohibited from one type, if it was not successful at the auction, to move on to another (Pol. Kazen. Podr., art. 94, 110). Depending on the nature of the operation and the convenience and benefit of government administration, the terms of settlements that serve as the basis for concluding a contract and for the bidding system change. So, for example, in the provinces of the empire, postal stations are handed over to maintenance through bidding, at which, in competition between the bidders, the contractors themselves declare the amount of additional payment to be made to the postal owners in addition to the income received in their favor, which is formed from the payment for the transportation of mail, relays and travelers. On the contrary, in the provinces of the former Kingdom of Poland a different calculation is used. The amount of allowance or additional payment for postal stations is determined by the government, based on the needs of the station facilities and the existing prices for them; the amount of income of stations is determined according to information from station books, and obtained by comparing the station’s income with the indicated standards for maintaining post horses, constitutes the amount of allowance or surcharge that is subject to payment to postal owners. The contract is awarded through auction. A call to auction is made through the local provincial government, depending on the nature and size of the operation, by police notification on the spot, in the city and county (up to 300 rubles), publication in the provincial gazettes (over 300 rubles) and in the capital's gazettes (over 7500 rubles). Publications are made in good time (the military department three weeks in advance), with a brief description of the subject and indicating where and on what day the bargaining will take place (Pol. Kazen. Podr., Art. 97). According to the military department it is observed: 1) so that in adjacent provinces auctions are not scheduled at the same time, so that one person has the opportunity to be at auction in several places; 2) so that in each individual place auctions are scheduled, if possible, simultaneously for all items necessary for that place (Pol. Military Law. 12). Those wishing to come to the auction submit a request, with payment of stamp duty, for admission to the auction, and must present their passports and deposits. For bargaining, a presence is formed in the composition specified in the laws. The act of bargaining is a trading sheet, on which the names of those trading and the offered prices are written down until the price drop stops. According to the military department, for construction work, a method of bargaining is used by means of a percentage reduction from the cost of all contract items (Polish Military Law 34). Three days later, the rebidding takes place in the same manner, with the admission of new persons. If those willing do not show up, or if only one person shows up, the rebidding turns into bargaining. If bargaining is unsuccessful, new calls may be made or other measures may be taken (commercial and commission methods for the military department). The contract is left to the one who gave the last price; according to the military department, if the announced prices are equal, preference is given to the direct manufacturer of supplies and products (Pol. Military Law. 56). A subscription is taken from the one who announced the last price, which obliges him, but does not yet completely oblige the other party, since the auction may not yet be approved by the highest authorities (Pol. Kazen. Podr., Art. 99–116; Establishment of Zemsk. Pov., Art. 121–134). There is another way of bargaining, through sealed advertisements. This method is used, at the discretion of the authorities, in cases where simple contracts extend to significant amounts, for example. for a mass of factory products of the same kind. Sometimes in auctions of this kind only limited competition is allowed between breeders and craftsmen known to be trustworthy (Pol. Military Zag., Art. 33). On the contrary, in small contracts and in those where the working classes and small industrialists directly participate, it is indicated to adhere to the method of ordinary tenders. Publications invite those who wish - not only for a day, but also for a certain hour - to send, according to the announced conditions, advertisements sealed in packages. In the advertisement, the person wishing to indicate his conditions, his name and residence, and attaches pledges, and at the time of bargaining he must appear or find an authorized person (since, in case of failure to appear, the enterprise remaining for him can be given to another at the expense of his pledges). Packages with advertisements are accepted only before the start of the auction; at the auction they are printed out, and the competition takes place only by advertisements, and verbal offers are not allowed. Announced prices are of decisive importance, even if there is only one announcement. But the official regulator of the matter is a secret package sent from the highest authorities with the meaning, from the treasury, of the price, higher or lower than which, due to the nature of the matter, the auction cannot be approved. At the end of the auction, this secret package is opened, and if the price indicated in it does not diverge from the last price, the auction is concluded and a protocol is drawn up on the announcement of the contract at the last price. This result can be canceled only due to non-compliance with the order in the auction or the cancellation of the contract itself (Pol. Kazen. Subd., Art. 141–170). Sometimes a third, mixed method of bargaining is used - oral and through sealed advertisements. With this method, the auction is opened with the traders in cash, and advertisements received before the day of the auction are opened only after the end of the re-auction, but after their opening, verbal offers are not allowed. Whose offer is more profitable will be retained; but in the case of equality of prices, the advantage is given to the cash merchant (Pol. Kazen. Subd., Art. 171–177. Establishment of the Land. Pov. 121). The final conclusion of the contract does not yet coincide with the end of the auction. The result of the auction also requires verification and approval of the subject authorities, to whom this right is entrusted by law. According to the general rule (Pol. Kazen. Subdr., Art. 118), the right of superiors is limited to varying degrees by the amount of the contract. Thus, the Treasury Chambers and equal places have the right to approve contracts up to 5,000 rubles; Governors, provincial and district departments - up to 10,000 rubles; Ministers - up to 30,000 rubles; Senate (1st Department) - for any amount. But from this general rule, numerous exceptions have been established, depending on the nature of the affairs, authorities and departments (see, for example, the Establishment of the Zemsk. Pov., Articles 125, 126; the Establishment of the Monetary Edition of 1893, Article 31, etc.). So, for example, the Minister of Transport and the Minister of Internal Affairs (via telegraphs) approve contracts for any amount; in other cases, this right is also granted to Governors. Different departments have special distributions of power and special sizes for approving contracts. In addition, there is a general rule that the boss, having received permission to carry out a business in an economic way for a certain amount, can, when he recognizes it is more profitable to carry it out by contract, approve the contract within the limits of this amount (Pol. Kazen. Sub. 129). In addition to direct approval, the boss, within the limits of his amount, can give the subordinate the authority to approve the contract (Pol. Kazen. Subd., Art. 137). Approval must be preceded by verification: whether the legal order and rules established to ensure the treasury have been observed; are the conditions satisfactory? contract prices are not higher than average reference prices (Pol. Kazen. Subd., Art. 138, 139). In addition, the law allows the authorities to refuse to approve the contract at their own discretion if they are convinced that the prices are unprofitable for the treasury (Pol. Kazen. Sub., Art. 126). Upon receipt of permission, within seven days (the War Department in two weeks upon approval), a written agreement must be concluded with the contractor, with payment of stamp duty. It is signed on the part of the treasury by the first member or head of the place and does not require further appearance. But when it is concluded not by a public office, but by a commission agent, then it is subject to appearance by notarial order (Pol. Kazen. Other, art. 127 et seq.). A contractor who fails to conclude a contract on time is subject to payment of the agreed penalty or liability for damages. An agreement concluded in this form is considered firm and inviolable, even if it turns out to be unprofitable for the treasury; in this case, the guilty officials must be held accountable for the loss (Pol. Kazen. Subd., Art. 178, 179). In addition to the formal contract, in some cases mandatory subscriptions without bidding may be given; but they are given only the temporary or conditional meaning of a contract; for the contractor himself, in any case, they are obligatory; however, regarding subscriptions for small needs it is said that they are not allowed for amounts over 900 rubles. (Pol. Kazen. Subd., Art. 180, 181). When the contract does not say about the right of transfer, then in the event of transfer, in the event of a malfunction, the original counterparty is not exempt from liability to the treasury (Pol. Treasury. Sub., Art. 222). Of course, this does not eliminate the possibility of transferring a contract with the consent of the subject government department; in this case, the former contractor withdraws from the contract. § 54. Execution of government contracts. - Change. - Welcome. – Payment by receipts. – Malfunction and penalties for it. - Penalty. - Postponement. – Exculpatory reasons. – Procedure for collection and complaints. – Mixed contract agreement. – Commercial and commission method. Execution of the contract consists, on the one hand, in the presentation and delivery of established things, works, etc., on time and in the proper place; on the other hand - in reception. The fulfillment of the delivery is considered from the day of delivery of supplies or things to the agreed place, and transportation - from the day of presentation of the things where it was agreed to deliver them (Pol. Treasury. Sub., Art. 185). Items must be suitable according to the conditions. Presenting things at the delivery site before the deadline, if they are delivered after the deadline, relieves the contractor of a fine, but the fear remains with him until delivery. Receivers are appointed for reception, and its identification is a receipt issued in the form, with reference to a note in the entry book; Moreover, the receiver informs his superiors about the issuance of the receipt or to the place where the payment is due (Pol. Kazen. Sub., Art. 186, 187). Moreover, for general reporting on execution, government offices and persons maintain accounting notebooks in the form, which indicate what should have been done under the contract and when to do it, and what was done and when. From these notebooks, at the end of the operation, a general calculation is compiled, issued to the contractor (Pol. Kazen. Podr., 201 et seq.). Payment of money is made upon presentation of receipts, with the retention of a proportionate part to cover the deposit (Pol. Treasury. Sub., Art. 188). According to the Department of Communications, it is allowed, even before presenting receipts, to issue money in advance according to so-called preliminary certificates, for parts of work that are not yet completely completed, when the contractor has already made material preparations for them, which must be, for each work separately, verified and indicated in the certificate. This benefit is allowed only for significant contracts (over a year and 10 thousand rubles), to assist contractors in the upcoming expenditure of capital for work. The certificate indicates the amount of work under the contract and according to the trade price list, but the contractor is given only 75% of this amount, with proportionate repayment of deposits. In order to keep all payments inviolable for the contractor, as long as they can still serve as a fund for the smooth completion of the operation, it was decided: until the final settlement with the contractor, no deduction is allowed from the money following him for the collection of his other debts, government or private (Pol. Kazen. Podr., Art. 192). Failure of the contractor for a period of time exposes him to: 1) the collection of a fine of 1/2% per month from the amount that the overdue items and work cost at the contract price, or from the freight charge; for wholesale work, from the amount by which the contractor turned out to be defective, calculating the value of the work according to the estimated purpose, with a decrease in interest in proportion to the difference between the estimated and contract price. There is a special rule in the military department. This fine is collected from the date of expiration of the delivery period (even if a delay has been given) and continues until the obligation is fulfilled, until the entire fine amounts to 6%. It is counted by the number of days; assuming 30 days in a month (Pol. Kazen. Podr., art. 87–90). 2) Recovering the deposit money. 3) Recovery of the treasury loss from the transfer upon purchase or hire at the expense of it, due to its malfunction, or loss resulting from damage to things during transportation, is equal to the insurance against the treasury of the contractor's collateral. If the treasury manages, due to the contractor’s malfunction, to satisfy its needs at a profit against the prices agreed with him, then this acquisition turns into its favor. Under the same contract, it is allowed, in settlements with the contractor, to replace transfer on one item with savings on another; but under different contracts of one contractor such a replacement is not allowed (Pol. Kazen. Subd., Art. 208, 209). When a contract stipulates a penalty, it, depending on the condition, serves as compensation for losses. According to the military department, there is a rule that the penalty must correspond to the loss from non-fulfillment of the contract: here the liability of the pledges is limited to those items for which they were accepted; then, neither the pledges nor the contractor’s property are recovered from the treasury’s losses due to the contractor’s malfunction, who, having paid the full penalty, is released from fulfilling the accepted obligation (Pol. Military Zag., 23, 79). The penalty is always collected without interest (89). But in addition to penalties secured by collateral, there may also be unsecured penalties, in exceptional cases: they fall on all the property of the contractor (ibid., 82–84). A contractor who is out of order for a period of time may, after presenting valid reasons, ask for a deferment: the place that has entered into a contract with him may, according to the circumstances, give him a deferment of one to two months, depending on how much time remains for the deposit; and for a longer period he requests permission from his superiors (Pol. Kazen. Podr., art. 193; vol. VIII, part 1, ed. 1893, Establishment of Obrochn., art. 18). Regardless of the delay, the contractor is allowed to present, within a month after the deadline, evidence of the legitimate reasons that prevented execution on time. It consists of a certificate issued by local authorities, designated in Articles 212 and 213. The legitimate reasons given are twofold. Some release you from all responsibility and from the execution of the contract itself. These are: 1) circumstances that constitute an irresistible force, namely military, death from a storm, etc., pestilence, government orders; 2) failure to fulfill the contract on the part of the treasury. Other reasons that exempt you from fines and interest are flood, fire, independent stopover, bad weather, storm, etc., i.e. obstacles, although not unconditionally effective, were impossible to overcome. In those and other cases, liberation depends only on the highest authorities (Pol. Kazen. Sub., Art. 215 et seq.). Recovery under the contract is addressed primarily to the contractor himself, i.e. on his own pledges and on other estate subject to prohibition; and if there is a shortage, it turns to other people’s pledges and guarantors (Pol. Kazen. Subd. 220, 221). The treasury assumes the fulfillment of the contract, in the event of a contractor's failure, at the expense of him and his deposits; but he has the right to supervise all these orders and propose, in order to reduce his damage, ways to more advantageously fulfill the contract (Pol. Kazen. Subd., Art. 196). So, pledgors and guarantors are in relation, on the one hand, to the contractor, whose actions oblige them, and on the other hand, to the treasury. In the event of a deferment given to the contractor and consistent with the term of the pledges, the pledgers are notified (Pol. Kazen. Podr., Art. 193). In the event of the death of the contractor (due to the refusal of the heirs) or his personal arrest, or in the event of his elimination due to a malfunction, the mortgagors and guarantors are notified by an on-site announcement or publication, with the right to request, within four months, that the contract remain with them; without taking advantage of this right, they cannot object to the calculation, although, however, the treasury does not hesitate, in case of emergency, to act on the account of the pledges even before the expiration of this period (Pol. Treasury. Other, art. 194 et seq.). A special procedure has been established to resolve complaints and resolve disputes between the contractor and the government department. During the proceedings for the execution of the contract, in case of improper actions, harassment and slowness, contractors are instructed to bring complaints to their superiors immediately (within eight days), without waiting for the final payment. Upon issuance of the final payment, the authorities accept objections to it and then make a final conclusion, which is given the right to appeal to the top authorities within a six-month period. Then, against the decision of the higher authorities, it is allowed to bring complaints, in the same executive order, to the 1st Department. Senate, by which the matter is finally resolved. The participation of the court in cases of this kind was eliminated until the publication of new judicial statutes, which opened the way for the contractor to litigate with the treasury. After the final payment is issued, he is given the choice of one of two things: either complain to his superiors in the same manner as before about the actions of the treasury officials, or file a lawsuit against the treasury; but a six-month period was assigned for filing a claim (Pol. Kazen. Subdr., Art. 204; Pol. Recovery. Civil., Art. 439, 440, 455, 460. - Establishment of the Gr. Court. 1,300 et seq. - Resolution. General. Collection. Cass. Dep. Sen. 1869, No. 20). A contract agreement is sometimes presented not in a pure form, but in a mixed form, when a business transaction includes, in addition to an agreement on remuneration for a supply or work, a transaction of a different kind that can have independent significance. So, for example, an allowance to the contractor, in one form or another, has the appearance of a secondary, insignificant condition, when its purpose is only an advance or assistance to the contractor; but in some cases this benefit is expanded to the provision of property for maintenance or rent, with the obligation of the tenant to satisfy the need with the productive power of this property. This is, for example, the rental of a printing house belonging to a government institution, with the obligation to carry out all printing work for the needs of the institution, free of charge or for a fee, which includes the benefits acquired by the tenant in general from the printing productivity in the institution. Here the contract is combined with: on the one hand, a provision for benefits to the contractor, on the other hand, the lease of property for contracting purposes. If the bidding is unsuccessful, the treasury chooses other methods to satisfy its needs. One of these methods is the commercial method of procurement, in which the execution of the operation is entrusted to the official, with his voluntary consent. This voluntary consent gives the act the meaning of an agreement or transaction, as a result of which it should be mentioned here. The operation is carried out at predetermined prices expressing its entire cost. These prices are determined by the administration, which manages with the participation of an official, and are approved according to the established procedure. The treasury provides this official with a free choice of means to fulfill the obligation he has assumed, releasing to him the assigned amount in advance, in full or in parts, and providing benefits specified in the law; and he is obliged to report and is responsible, within the limits of the conditions, for the integrity of the amounts and for the correct execution (Pol. Military. Zagot. 95–109). In contrast to the commercial method, the commission method is used, in which the official acts on official orders, and procurement is carried out not at certain prices, but within the prescribed norm (ibid., 110 et seq.). Government contract. Conclusion of an agreement. Securing the contract with a penalty, pledge, etc. depends on their agreement and voluntary conditions, but is not obligatory for them, and a contract correctly concluded, without security, does not lose its force (Cass. decision 1875, No. 849). The Senate unconditionally extends this provision to agreements with the treasury on contracts, etc. However, if the law positively does not allow, in the interests of the treasury, such an agreement without security, then one can ask: does the treasury management body that has concluded such an agreement not exceed its legal authority, and does not the treasury therefore have the right to reject the binding nature of such an agreement? - To Cass. decide 1877, N 141, it is recognized that the selection of subscriptions, according to the force of 1867 Art. Zach. Citizen (114 Pol. Kazen. Ed. according to the 1887 edition), it is mandatory at contract auctions, and therefore the Duma, without taking away the contractor’s signature that the contract remains with him, did not have the right to use his pledge to replenish the loss when it turned out that he had not started delivery. – Based on the completed tender, the contract becomes valid only if it is fully consistent with the conditions; it is impossible to force the bargaining entity to accept changes in the terms of the conditions (cf. Mn. Gos. Sov. 1872, according to Jacobi. 2 Sat. Sen. decisions IV, 755, 761). A verbal agreement on work related to a contract cannot be allowed, therefore, when there was no formal contract, no subscription, no work order, no receipt for their acceptance, then the demand for payment for such work is not satisfied (2 Sat. Sen. Resolution V, No. 1046). – In the village of Fechner (2nd Sat. Sep. Resolution V, N 1074) the contract was awarded, contrary to the law, without bidding and the contract was concluded for an amount exceeding the authority of the provincial authorities. However, on the basics. 1537 art. Zach. Civil, the contract, although with official damage, was left in force. Change of conditions. Wholesale contracting, without taking into account workers and materials, differs from stock contracting. During the execution of work and under a wholesale contract, it may happen that the treasury finds it necessary to change the types, size or quality of the structure, and an increase or decrease in supply requirements should follow. For this purpose, a condition is included in the contract regarding the corresponding additional remuneration for the contractor or a deduction from the wholesale payment. But when there has been no change in the type, size and quality of the structure, then a simple reduction in the estimate does not serve as a basis for a deduction from the wholesale payment (2 Sat. Sen. Resolution V, No. 1071). For additional work carried out, although without tendering and without the formal conclusion of a new contract, the contractor is entitled to a delay interest, although not in full 1% per month, but in any case to the extent of 6% (2 Sat. Sen. Resolution I, No. 27). Cognard took over the supply of cloth of various colors to the treasury; during the validity of this contract, when there were 40,000 arshins of white cloth in the treasury, he was asked to take them for dyeing, counting this amount against the total supply. This agreement took place in the form of a subscription. Subsequently, due to Cognard's malfunction, Gromov, who entrusted him with his deposits, eliminated them from liability by the fact that they were entrusted for the supply of cloth, and not for dyeing. Gromov was refused, because it was recognized that Cognard’s subscription was not an independent agreement, but a change, insignificant, and, moreover, facilitating, of the supply agreement in its execution (Mn. State Sov. 1874). Malfunction. Liens for government contracts can legally be withheld until the final approval of the settlement with the contractor, because until that time it is impossible to judge whether he has fulfilled his duties properly; when the pledges are returned, there is no legal basis for placing interest on them during the retention period (Mn. Gos. Sov. 1864 according to the village of Korfa in Zh.M. Yu. 1864, No. 11). – In the Sievers case, the contractor was found to be faulty even before the deadline appointed for delivery, for a fault in the preliminary preparation on site of the delivery items, which was imposed on him by one of the clauses of the contract. Mn. State Sov. in J. M. Yu. 1862, No. 3. - In decision. 1859 (Sb. Sen. Resolution I, 620) The Senate recognizes that the treasury, having failed to fulfill the contract on its part (by failure to deliver samples, delay in acceptance, etc.), can no longer enter into consideration of whether the contractor on his part had the opportunity to fulfill it, much less charge a penalty for it, and moreover, when, despite such failure by the treasury, the contractor fulfilled most of the obligations assumed obligations. - In the village Brukhatova on the execution of the contract for the supply of courier horses, it was recognized that the treasury had deviated from the contract (keeping the horses longer than the deadline); and therefore justice requires that the contractor not be subject to a fine for inaccurate execution of the contract on his part; otherwise, the application of the contract would be deprived of that reciprocity of rights and obligations, which constitutes the essence and purpose of contracts (2 Sat. Sen. decision V, No. 1050). – Merchant Zon was released from responsibility for the malfunction in the maintenance of postal stations in Crimea, due to exceptional circumstances, due to the sudden eviction from Crimea of ​​a huge number of Tatars and Nogais who made up the labor force of the region, and due to the extreme, resulting increase in prices for fodder and all needs (Mn. State Council. 1875). Liability for loss. According to the force of 1868 art. Zach. Citizen (115 Pol. Kazen. Subd. according to the 1887 edition) the liability of a person who signed the acceptance of a government contract and subsequently refused to complete the contract is not limited to its pledge: he is liable for losses and other property if the pledge is not enough to replenish them (Cass. decision. 1875, N 780). The loss to the treasury imposed under clause 3 of 1980 art. (208 Pol. Kazen. Subd. according to the 1887 edition) to a defective contractor, extends not only to purchase or hire, but, by the same token, to those cases in which the treasury resorts to all methods of procurement permitted by law under the terms, subscriptions and contract agreements with other persons (Cass. decision 1871, N 1265). The contractor's responsibility for the incorrect execution of the work and for shortcomings in them occurs (unless the contrary is established in the contract) only during their production and only until the work is finally accepted into the treasury (2 Sat. Sen. Resolution I, 85). The loss for holding in the treasury pledges for contracts and supplies must, according to the circumstances, be proven in reality and in quantity in each given case. It is not expressed as a percentage, because interest is due only for the retention of money capital (2 Sat. Sen. Resolution I, No. 42). Dec. according to the village of Smita (Sb. Sen. decision III, No. 883) the claim for damages for non-delivery of coal according to a broker's note was denied, due to the impossibility of discharging it in wartime. Refused for the following reasons: the contract did not stipulate a penalty, and the amount sought does not represent a direct loss, but the difference in the contract price with the selling price of coal at the place of delivery, therefore representing an accidental profit, therefore, a special type of penalty. Deposits, penalties, interest. According to the general law (Pol. Kazen. Subdr., Art. 36), which applies to all government contracts and deliveries in general, no interest is due at all on loans (deposits) issued from the treasury as an allowance in the performance of government enterprises, even if the recipient of them became defective under the contract and the deposit money remained with him upon termination of the contract, and the loan itself is recovered from the contractor, from the collateral presented by him, at a time, upon presentation to the contractor of the final settlement for the completed enterprise. As an exception to this general rule, in approx. to 123 art. Est. Page according to Cont. 1893 established that the payment of loans issued to private individuals during the construction at their own expense of prisons and public places and other government premises, for the purpose of putting them into use for 30 years, should be made by an annual deduction from the rent for the building, with interest due, based on the calculation of a 28-year loan, according to the rules on loans from former banking institutions. Is it legal in the contractor’s contract with the treasury to include a condition that interest is payable on deposits not paid within a month from the date of payment demand? 1st Dep. The Senate, according to the villages of Nilus and Gurari, on November 25, 1875 decided that it was legal and did not violate Art. 1831. Zach. Citizen (36 Pol. Kazen. Mod. according to the 1887 edition), because interest on deposits is not calculated either during the validity of the contract or after the termination of its validity, and this condition became valid only after the final payment was presented to the contractor, when the collected deposit was already turned into a certain debt of the contractor to the treasury. In the same sense it was decided. 1 General Collection Sep. 1878 Established in 144 Art. 2 parts X volume (according to the 1892 edition, Article 457 Pol. Collection. Civil.) penalties under contracts with the treasury presuppose the existence of a correctly drawn up contract; and when previously (or regardless of the formal agreement) various items were delivered to the treasury by a private individual, then, when calculating for delay or non-fulfillment, the loss is satisfied not according to the indicated amount, but on a general basis, and interest is calculated for the retention of capital on the basis of Articles 72 and 641. 2 parts X volume (according to the 1892 edition, Articles 364, 365, 602, notes of the Law Court. Civil) (Cass. decision 1874, N 298). 144 art. 2 parts X t. (Article 457 Pol. Collection. Civil.) gives the contractor the right to collect 1% per month for delay in issuing receipts for the amounts for accepted items. It does not apply to cases of withholding money that occurs not because of slowness, but for other reasons, such as: to satisfy collections, to replenish deposit money, etc., even if such withholding was subsequently recognized as incorrect. Incorrect retention gives the right to compensation for the loss (Cass. decision 1876, N 218). The calculation must be issued to the contractor in any case, even if it turns out to be faulty (2 Sat. Sen. Resolution IV, No. 763). The final payment for the contract is a conclusion from the settlement notebooks, therefore, it can be issued in the form of a settlement notebook (Cass. Resolution 1877, No. 94). Receipt. The contractor's right to interest for delay in issuing money (according to Article 144, Part 2, Vol. X of the 1857 edition, and according to the 1892 edition, Article 457 Pol. Collection. Civil.) is in connection with the receipt of receipts, the issuance of which the contractor must demand in time, and complain about failure to issue on time; Interest is calculated not from the completion of work, but from the presentation of receipts. If he did not receive a receipt, but was content with receiving an act of inspection of the work, he loses the right to the indicated interest (2 Sat. Sen. Resolution III, No. 469). Without receipts, compensation for delay can only be awarded on the general basis of the rules on compensation for damages (ibid., N 498). Complaint. The mortgagors for contracts, who did not assume the responsibilities of the counterparty and were not notified at all of the occurrence of an event in which these responsibilities could be transferred to them, are not subject to the deadlines established for direct contractors for filing a complaint with their superiors, from the time of presentation of settlements (Cass. decision 1876, No. 408). Appendix to the fifth chapter. Publishing agreement. Among certain types of contracts, German legislation includes a publishing contract (Verlagsvertrag). In Germany, it acquired particular significance due to the special development of book publishing and trading there. A special large class of publishers has emerged - booksellers, through whom authors publish their works and put them into circulation on the book market. As a result, the publishing contract, in its content, approaches the contract and is usually placed in connection with this category of contracts (Preuss. Landr., I, 11 § 996–1024; Oesterr. bürg. Gsb. Verträge über Dienstleistungen). A contract of this kind requires written form; it is usually compensated in one direction or the other, for there may be cases of payment to the publisher from the author, when the latter wants to publish his work, and the former, taking on the labor and costs, does not expect profit. The amount and type of royalty (royalty, number of donated copies, share of net profit, etc.) depend on mutual conditions. The subject of the agreement is the right of publication and distribution for sale, which is exclusive in nature; but this is not, in essence, connected with the transfer of copyright and the power to change or alter the text. So, the right under this agreement is temporary and limited. The law defines the author’s obligations - to deliver the manuscript in a timely manner with the right to waive the condition, and it is already required that the author himself, within a period of time (one year), does not begin publication; on the other hand, the publisher has the right to withdraw from the contract in case of delay on the part of the author or significant changes in the text and volume of the work. The publisher undertakes to publish it in a timely and correct manner and diligently distribute it on the market. The law limits the author's rights to a new edition of the same work, after an agreement with the publisher, in which the number of copies could be determined or left undetermined. A simple repetition of the text in an edition of the same format (Auflage) differs from an edition with changes and additions to the text, and with external changes (Ausgabe): in the latter case, a new edition necessarily requires a new transaction. The rights of the author under the publishing agreement are transferred to his heirs (with some restrictions under other legislation, Austrian - 1169); but unilateral transfer of rights under this contract by the publisher is not permitted. The book business is a special, highly developed branch of the trading industry, which in Germany is divided into three departments. Publishing (Verlagshandel), which does not concern the direct trade in books: this trade (Sortimentshandel) is in the hands of individual industrialists - bookselling firms, which receive books from publishers in batches, taking on the shipping and return of books and taking advantage of the concession of a certain percentage of the price (25-35%) for the sale. This operation is also accompanied by commission business (Commissionshandel), carried out through commission agents whom bookselling companies maintain - for Northern Germany in Leipzig, and for Southern Germany - in Stuttgart and who are in direct contact with publishers. In the code of civil laws of the Baltic provinces, a separate chapter is devoted to the publication agreement (Articles 3981–3994), the main features of which are collected from German law: the quotations say that all articles are based on common law. In the Russian system of contracts there are no regulations on the publishing contract: in the sense, as indicated above, Russian legislation has not developed it. In civil laws ed. 1887, inseparably with articles on the right of literary and artistic property, there are also articles mentioning the conditions for the assignment of this right to booksellers and publishers. Contracts of this kind, within the meaning of the law, have an exchange property, sales or concessions. The author may sell or assign his right to a third party, and this assignment, by condition, may be more or less complete, urgent or limited. Conditions of this kind are drawn up according to the rules of the Notarial Regulations, and where they are not introduced, they are presented to the broker, but they can also be made at home and concluded in words (Civil Law, Article 420, note 2, appendix, Articles 3 and 4; Cass. Resolution 1867, No. 42; 1869, No. 178). The author can sell the right to just one edition of his book, or to several editions, or to all editions unconditionally, and it is up to the contracting parties to determine who owns the rights to the subsequent edition and how long after the first edition the second one may appear. The unlimited right of the author to publish a second edition of his book, when the right to the first edition is assigned to another person, could serve to the detriment of this latter, since another edition could appear on sale at the author’s expense, while the first, acquired by another person, has not yet been sold out. – To protect in this case persons who acquired the right to publish from the author, Art. 3 was introduced. appendices approx. 2 to art. 420 Zak. Citizen, that the rights to the second edition of a book should be the result of preliminary agreements between the author (translator, publisher) and the bookseller. If there is no written agreement between them, then the author, or his heir, may print the book in a second edition after five years have passed from the date of issuance of a ticket from the censorship allowing the publication thereof. According to the literal meaning of this article, a bookseller, within the prescribed five-year period, would have reason to oppose the publication of a second edition by the author, even if the entire first edition had already been sold out. It is obvious that such an application of the law would not correspond to its main purpose and would excessively restrict copyright; but authors must keep this contingency in mind when assigning the rights to the first edition to booksellers. However, the law authorizes, and regardless of any conditions, to print a book in a second edition if at least two thirds have been changed or added to it, or when the book has been given a completely different form, so that it can be considered a new work (ibid., Art. 5). More details about this in the 1st part of the course, § 77 and 78. § 55. General concepts of luggage. – The luggage is free and necessary, according to Russian law. – Who can enter into a deposit agreement. – Proof of luggage. – Safety receipt. – When written evidence is not required. – Responsibilities of the receiver. - The luggage is in a locked room. - Waste. – Responsibility of the receiver. – Return of luggage in case of insolvency. – Calling the heirs of the receiver and the transferor. - Luggage in hotels. Individual things constitute the subject of a loan when they are given for free use or use; and when given free of charge for safekeeping, they constitute an item of luggage (depositum, depot, Verwah-rungsvertrag). In the first case, the giver, by transferring the thing free of charge, does a service to the receiver; in the latter, the receiver, by gratuitous acceptance, does a service to the giver. It is true that even in a loan a thing is taken in order to save it and return it; but the deposit, when accepted with the right to use the thing, ceases to be a deposit and takes on the property of a loan, for use is not joint with the deposit (only French law allows for the combination of both). In a loan, the term serves to limit the acceptor (you cannot demand a thing before the term); in luggage - to the fence of the giver (the item cannot be returned before the deadline). The concept of guilt is also different in both cases; in a loan, the receiver must take special care to preserve the thing (quasi bonus p. familias); in luggage - must take care of it as much as of his own things. In addition to voluntary luggage, there is also a necessary one (depot neces-saire, depositum miserabile) in extreme cases of disaster, for example, in case of fire, flood, shipwreck, etc. It does not require documentary evidence; The same category sometimes includes the giving of things for safekeeping by travelers in a hotel or on a ship during the journey (receptum); According to French law, bringing things into a hotel (except valuables) in itself constitutes luggage, for which the owner is responsible, unless the guest was guilty of negligence. The transfer of the disputed property to a third party for safekeeping by both parties until the end of the dispute is especially called sequestration (sequestratio, sequestre) and also belongs to the number of contracts. The subject of sequestration can also be immovable, while simple luggage applies only to movable property. Our legislation on luggage was finally formed in 1846 in a provision drawn up under the obvious influence of French law. In our case, deposits can be divided into free, which is made by free choice and consent, and necessary, which is made in cases that cannot be delayed and do not always allow a choice to be made by the person to whom the property is entrusted for safekeeping. Luggage can be made by the owner of the thing himself, or, instead of the owner, by another person, by proxy or with the consent of the owner (2100). If another thing is given for safekeeping without the knowledge and consent of the owner, the real owner of the thing, having proven its ownership, may demand its return immediately, regardless of the agreement. Whoever accepts a knowingly stolen thing for safekeeping violates trust and becomes a deceiver (Code of Punishment, Art. 12, 124). If the receiver finds out that the item is stolen or illegally obtained, he is obliged to inform the nearest superiors, with the presentation of the luggage itself (2108). The obliging parties must be capable of entering into a contract; These only persons can accept for safekeeping; in addition, monks and monasteries are prohibited from accepting luggage (2101). French law generally recognizes that the ability to enter into a contract is necessarily required only from the obligated person and that if the party receiving the right is alone incapable, this does not make the contract invalid. We do not have such a general rule, but regarding deposits our law expresses it, borrowing a rule from the French law: when property is accepted for storage by a person who does not have the right to be bound by contracts, then the contract is invalid: the depositor has no right to demand the thing back unless he proves that at the time of the deposit he did not know about the incapacity of the acceptor; on the contrary, if the receiver, capable of entering into a contract, took the thing on behalf of an incapable person, then the contract is valid (2102). Proof of luggage. An agreement is made either by a written act, or by the transfer of a thing with a receipt, or without a receipt (2104). Therefore, I can demand the luggage from the receiver, without necessarily being obliged to present a document as evidence: but if the defendant-receiver refuses, says that he did not accept it, then the plaintiff must present a receipt from the receiver during the trial. A special form has been established for this so-called safety receipt. It must be written and signed by the receiver from beginning to end, and it must indicate what exactly has been accepted for safekeeping. If the money is in tickets, then their numbers must be indicated, and when in specie, then its type and year of minting, with the amount shown in words. This designation serves as a sign that what was given is not a quantity that belongs to the loan and is subject to expenditure, but a special thing that is subject to storage and return in its entirety. Due to the receiver's inability to read or write or due to illness, the receipt must be written for him and signed by an authorized person, who must indicate that he is doing this at the request of the receiver. In this case, there must be two or three witnesses who sign, and it must be indicated that they were personally present when the act was drawn up. The signature of the subscriber and witnesses is certified in accordance with the established procedure (2111). Therefore, in a free deposit, written proof is certainly required. So, the act of luggage is connected with an exact and strict form, compliance with which is absolutely mandatory. If this form is not followed (for example, there is no precise and separate designation of banknotes), then the deposit is considered unproven. The question arises: shouldn’t it be possible, in such cases, to see in the acceptor’s signature the consciousness of the debt for the loan? It is hardly possible to give a positive answer to this. Although in practice the deposit very often serves as a cover for a loan, it is impossible to assume this hidden purpose in all cases. There is no internal analogy between a deposit and a loan; on the contrary, the goals of both agreements are completely different, and to derive this analogy from the mere similarity of external features, i.e. It would be completely unfounded that the subject of the deposit shows a sum of money that also serves as the subject of the loan. So, a receipt for money, recognized as invalid in the sense of being safe, does not in itself, due to the signature of the receiver, serve as evidence of the debt. In order to recognize a debt under such a receipt, special evidence is required on the part of the defendant, according to the circumstances of the case, that the security receipt was drawn up instead of a loan obligation. In this case, the receipt, as a promissory note, is subject to the collection of stamp duties and other duties with a fine, and in case of insolvency is placed in the last category (2114). Written evidence of the luggage is not required when it was impossible to make a receipt for the luggage under special circumstances, e.g. during a fire, flood, wreck, etc., when military ranks give away their belongings, on the occasion of a sudden departure for service, to the owners who had them in their apartment; in luggage for trade and, in general, according to merchant custom - by people of the trading class among themselves and with outsiders (2112). When the luggage is of this kind, it is allowed to prove it with witnesses and all other evidence. In areas where Judicial Statutes have not been introduced, if the case comes to the oath, then the plaintiff is at least obliged to prove first that he was in exactly the above circumstances and that the defendant was in the place where the deposit took place. An oath of this kind can only be required from a living receiver, and not from his heirs (2113). The main responsibilities of the receiver are: 1) Use the same efforts to save things from damage, loss, loss and theft as you do with your own property. He is responsible for negligence, but not responsible for accident and violence, even if it was proven that he could save things, only with a significant loss of his own property. But the receiver is responsible for everything when he is guilty of delay, i.e. when loss, etc., followed the refusal of the first demand for return (2105). But if the thing is not there, how can one verify the truth of the receiver’s testimony that it was destroyed in this particular way and not in another? It is necessary that the receiver, after the incident of abduction, immediately submit a report and that it be proven on his part that this incident did not result from negligence on his part. Then he is released from responsibility. In areas where Judicial Statutes have not yet been introduced, even here the plaintiff has the right to demand a confirmatory oath from him (2106, 2117). 2) The receiver must not use the property (unless there was permission from the giver: but in this case it will be a loan, not a deposit). But the receiver has the right to demand remuneration, according to the content of the contract, when this was stated or when saving the property required costs. Without an agreement on this, the receiver has the right to demand remuneration only when the costs arise from an event unforeseen during the delivery. Revision 2107 Art. not entirely clear due to grammatical incorrectness; It is difficult to judge what the connection between the words repeated three times at the beginning of the article is. From the grammatical meaning, it can be understood that the deposit agreement could contain a condition regarding remuneration for storage. But, in essence, the deposit agreement is gratuitous; if it contains a condition about payment for storage, then, in essence, there will be an agreement not about luggage, but about hiring. When things have been accepted behind lock or seal, the receiver should not open or examine them. If this is done, then the receiver is obliged to satisfy for everything that was not according to the testimony of the sender, confirmed in areas where Judicial Statutes have not yet been introduced, by an oath, as well as for everything damaged during the opening of the luggage (2107). 3) The receiver must return intact the very property that he took upon first demand (2105); return to the giver himself, his heir, or a person authorized by the owner to receive the deposit (2108, 2110). All increments and fruits of a thing, since they constitute property (425, 671), follow along with the thing to its owner. The receiver is not responsible for damage to the item if it was not his fault. Those who do not return, upon first demand, are guilty of delay, and therefore are obliged to pay for all losses from the detention, and if the deposit consisted of money, then the indicated interest, from the date of filing the petition in court (2115). If the case goes to court due to the receiver’s evasion, then he pays the plaintiff legal costs and 10% in favor of charitable institutions (2116). There is no special civil rule about what to do when the property is sold or alienated by the receiver. But if the heir of the receiver, out of ignorance, sells the thing or uses it for his own needs, then he is obliged to return the money received or pay according to the assessment (2109). The deposit agreement is based on trust. Someone else's property is entrusted for safekeeping; therefore, when the receiver treats her not as a stranger, but as his own property, then he abuses the trust. Therefore, when the receiver spends on himself an item or value entrusted to him, or gives it to other persons for use, he is guilty of appropriating someone else’s property without the consent of the owner or of embezzling the property of the entrusted person and can be prosecuted for this in a criminal court, by virtue of Art. 1682, 1704 Lay. Order. and 5 clauses 174 and 177 of the Constitution. Mandate, imposition. World. Court. The law does not say whether the giver has the right to demand his property, alienated by the receiver, in kind from those in whose hands it is. It seems not, according to the rule on movable things, if the thing was purchased in good faith. This is the French rule. The owner of the deposit may claim his property from the mass of the receiver's property even when it has been subject to inventory, in the event of its insolvency or for some other recovery, but for this he must provide reliable evidence that the property was entrusted to the receiver solely for safekeeping; and the creditors of the insolvent may raise objections to the validity of the deposit. Therefore, in the event of the insolvency of the receiver, the right of the transferor becomes conditional, because he is entrusted with the obligation to prove a circumstance that is difficult to prove; the presentation of one receipt may be considered insufficient (Law. Civil., 2119). And when the giver himself becomes insolvent and all his property is subject to an inventory and arrest for collection, the receiver is obliged to announce the deposit before the expiration of the competitive deadline for summoning, or immediately upon receipt of information about the general arrest (2120). By concealing the luggage deliberately, he becomes guilty of deception, and even in the case where he is not guilty of intent, but only of negligence, he is subject to the collection of 20% of the value of the luggage in the form of a fine (2122). Only proven insurmountable obstacles can relieve him of this penalty (2123). The opinion of the State Council of 1860 (Article 2113 of the Civil Code) established the rule on calling receivers and transferors of property according to safe receipts in the following sense. In general, it is believed that the receiver is obliged to return what was accepted while he is alive, regardless of how long ago it was. But when he died, his heirs, in order to protect their right, are obliged, before entering into the inheritance, within six months from the date of its opening, to call the transferors according to the receipts of the deceased patrimonial owner. If they did not do this or, having done so, entered into the inheritance before the expiration of the deadline for appearing on summons, then they are obliged to answer according to the safe receipts presented. From here it seems to be concluded that if the heirs have complied with the law on summons, they can still, in view of the preserved receipts, refuse to accept the inheritance, and whoever, when summoned, does not present receipts within six months, loses the right to recovery. The heirs of the giver for safekeeping, who left behind a safe receipt, are obliged to make a similar challenge to the receiver; If they do not do so, they will be deprived of the right to sue on receipts, and those who made the challenge will renew the statute of limitations for this claim from the time of the last challenge. See Cass. decide 1867, N 160; 1869, N 909, 1032; 1875, N 489. Our law says about luggage in a hotel: persons staying in tavern establishments can, by mutual agreement with the owner, give him sums of money or their things for safekeeping, with a receipt, sealed, or simply, according to the account of money and the valuation of things. In the first case, the owner is responsible only for the integrity of the packages and seals, and in the latter - for the amount of the amount and for the integrity of things (2124). - From this it is clear that our law does not look at luggage of this kind as necessary, for it requires a receipt; French law understands such luggage differently; he allows it to be proven by witnesses, and even recognizes any placement of a traveler’s belongings in a hotel (apport des effets) as luggage. There is no reason to include the delivery of things and documents for storage to officials, such as notaries, consuls (Notar. Pol., Art. 26; Ust. Consul., Art. 135 et seq.), in hospitals, quarantines, etc., as contractual luggage. The essence of luggage. A deposit is a special agreement on the acceptance of property for safekeeping, with the obligation to return it. This concept does not fit, for example, a receipt from the groom confirming the acceptance of property from his parents as part of the dowry (Cass. decision 1870, No. 308). – The deposit does not include a transaction about the transfer of things for premises and storage, with remuneration for the costs of both (Cass. decision 1870, N 325). – The law on deposits refers to things, money and acts, and not to animate objects, for example, animals. Therefore, the agreement on donation for the preservation of beehives was not included in the deposit (Cass. decision. 1875, No. 982; on the acceptance of a heifer for feeding - 1873, No. 1577). – When the receiver of the luggage is given the opportunity to use the property accepted for safekeeping and return not the same things, but their value, then the agreement loses the meaning of the luggage (Cass. decision 1873, No. 602). – There is no reason to deny the legal possibility of urgent conditions on the deposit: the contract does not lose force because of this, although, depending on the circumstances, the condition on the return of the deposit on time may be considered optional for the transferor (Cass. decision 1869, N 1237). – The landlord sought compensation from the tenant for the fact that, after he left the apartment, it remained occupied by his things and property and that storing everything was worth the cost. This claim was recognized as a claim not for luggage, but for stale property (Cass. decision 1870, No. 1321). – The Senate does not distinguish an agreement on the transfer of things for saving (Cass. decision 1869, N 106) from luggage, obviously giving the word saving the same meaning as the word preservation. However, one cannot help but distinguish the giving of things for saving when this saving, due to the nature of the thing (fur), requires special protective methods, techniques and costs. This will be an agreement of a special kind, paid, adjacent to a special trade - to accept things for savings. – There is nothing illegal in connecting the condition of luggage with a contract of sale, for example, when, when selling movables, the sold items are left in the custody of the seller, pending demand (Cass. decision 1876, No. 298). – Case of deposit in the hands of a third party – Cass. decide 1873, N 1448. – When signing the deed of sale, 100 rubles were underpaid from the purchase price; by agreement of the parties, this money was transferred with a receipt to a third party, so that, upon issuance of the bill of sale, it would give it to the seller. Money was taken in tickets or bonds, with the obligation to repay. If it is an act of lending, then the same value must be returned, i.e. what the tickets cost at the rate at the time they were transferred for loan. If this is an act of luggage, then the same tickets or, in their absence, their value at the exchange rate, should be returned at the time of return. Deposit instead of loan. If the safe receipt turns out to be invalid in form, in the sense of an obligation to deposit, and the things indicated in it were not found in kind by the receiver, then there is no evidence of the luggage; but it does not follow from this that such a receipt serves as evidence of a loan: the existence of a loan, under the guise of a deposit, must still be proven (Cass. decision 1869, No. 95). – For the evidentiary value of a safe receipt, the law requires such conditions that are not at all necessary in debt obligations. Therefore, Mr. Sov. according to the village of Shishmareva (1871) recognized that a safe receipt, even if it does not satisfy all the conditions required by Article 2111, can be recognized as a debt obligation if it is proven that it was drawn up instead of a loan obligation. – Failure to comply with Form 2111 Art. does not deprive it of the force of a loan deed if collection on it is made as under a loan deed, and the court is satisfied that the receipt was issued instead of a loan letter and a loan was made on it (Cass. decision 1875, No. 539). In this case, the ticket numbers indicated on the receipt turned out to be non-existent (see also 2 Sat. Sen. decision II, No. 332). In the village of Annenkova, the Senate (2 Sat. Sen. Resolution V, No. 1227) recognized the safekeeping receipt as issued instead of a promissory note, on the basis that the tickets of the guardianship council given for safekeeping were provided with blank inscriptions. – The safe receipt contains credit notes, the numbers of which, as it turned out, were not put into circulation at all. Therefore, the receipt, in the sense of being safe, was declared invalid; but at the same time, it is deduced from this - hardly fundamentally - that the receipt was issued in the sense of a loan deed, and a penalty was awarded on it. Dec. General Collection Sep. 1865, in the village of Shamsheva. J.M.Yu. 1866, No. 6. – The safe receipt stated that if the receiver uses the money taken for safekeeping for his own needs, or ends his life without returning it, then the giver has the right to collect it with interest from the time of return. It was recognized that such a receipt, in its content, did not correspond to the deposit, but was a loan, and it was necessary to collect on it as if it were a loan (Mn. State Council, 1874, according to the village of Vaidvich). – In the village of Vysheslavtseva State. Sov. (1873) recognized the safe receipt as inconsistent with the legal essence of the deposit, because the receiver, in the event of non-return of the deposit, undertook to issue the transferor a power of attorney to receive a redemption loan for the estate into his ownership. Thus, a loan condition was connected to the luggage. – In the same decision, the objection based on the fact that the receipt inaccurately indicated the number of coins of each mintage was found unfounded. In 2111 art. there is no such requirement. Conditions for the validity of the receipt. Rule 2101 Art. Zach. The civil law prohibiting the acceptance of luggage by churches, monasteries and monks does not apply to bishops' houses. Therefore, there is no reason to recognize as illegal the safe receipt issued by the housekeeper of the bishop's house, although a monk, but acting on behalf of his economic position (Cass. decision 1878, No. 124). According to the village of Minakova (2 Sat. Sen. Resolution IV, No. 805) it is recognized that the law does not prohibit a lender who gives money as a mortgage on movable property to give this mortgage for safekeeping to the receiver. In this case, the receipt made by the borrower on the inventory of the property, accepting it for storage, serves as evidence of the deposit between persons of the trading class. Requirement 2111 Art. 1 part X t., so that the type of coin is indicated in the safe receipt, means not only the name of the metal from which it was minted, but also the meaning of the name or denomination of the coin (Cass. decision 1877, N 339; 1878, N 195; 1870, N 1504). – A safe receipt, in which only the metal of the coin with the year of mintage is named, without indicating the type of it according to its value, does not comply with the requirement of Art. 2111. Zach. Citizen and 66 art. Coin Est. (ed. 1857) (2 Sat. Sen. decision V, N 1150). Such tickets and coins, the signs of identity of which are not indicated in the receipt, cannot be recognized as deposited, according to rule 2111 of Art. (Cass. decision 1875, N 1082). – The court destroyed the safe receipt on the grounds that the denomination of the coin was indicated in some cases only by the amount, but in others it was not indicated. But the Senate recognized that the incorrect designation of some parts of the luggage does not deprive the act of force in relation to other parts that are designated correctly (Cass. decision 1873, N 1682). How to apply rule 2111 art. about writing a safe receipt in the hand of the receiver in cases where the luggage is accepted for safekeeping by two persons? The court declared it invalid, but the Senate overturned the decision, pointing to the rule allowing the court to determine the meaning of informal acts (Cass. decision 1875, N 959). According to the book Urusova (Mn. Gos. Sov. 1872), Chashnikov’s safe receipts were recognized as not included in the deeds of debt and invalid, because they ended up, after the death of the receiver, in his papers, and after his death they were transferred by the brother of the deceased into the hands of the persons designated by the transferors. Therefore, collection on them was denied, although Chashnikov mentioned these acts in his will. In addition, it is taken into account that the names and surnames of persons are indicated in the receipts without proper identification, since they are written in the name of the younger children of the prince. Urusova. Publication about calling the luggage receiver - in accordance with Art. 2108. according to Cont. (Art. 2113 according to the 1887 edition) - does not matter for such a person who himself has already realized his obligation to return the luggage (Cass. decision 1869, No. 832). – Rule 2108 art. – on publication based on preserved receipts – cannot be applied to those acts that the donor himself during his lifetime had already filed for collection (Cass. decision 1875, No. 280). – To emergency circumstances, which are mentioned in paragraph 1 of Art. 2112, does not include the daughter’s illness, her sudden arrest, or the sale of the estate at public auction (Cass. decision 1870, N 1116). A safe receipt, although not fully consistent with the formalities of Art. 2111. (written by another person), if only recognized as authentic by the defendant, can be recognized by the court as binding, according to rule 459 of Art. Est. Gr. Court. (Cass. decision 1875, N 886). – Writing a receipt not in the hand of the receiver is immaterial when the receiver does not unlock the luggage (Cass. decision 1875, N 1082). A notary's certification of a safe-deposit receipt cannot replace the signature of witnesses required by Art. 2111. (Cass. decision 1871, N 1128). In the Baushev case (Cass. decision 1876, N 546), the Senate recognized that 2111 art. Zach. Citizen does not interfere with the validity of the safe receipt, which was not written in the hand of the receiver. The article, listing the accessories of the receipt as complete evidence of the luggage, indicates the formalities in which the essential (description of the object of the luggage) must be distinguished from the rules on writing the act. These rules could be recognized as unconditional under the previous law on legal proceedings, which adhered to the system of formal evidence; but the new courts have more freedom in discussion, in view of Art. 458. Est. Gr. Court., on the force of a domestic act recognized by the opposing party, and 541 Art. This is confirmed by the note to Art. 2111. Zach. Citizen according to Cont. 1868 (this note was not included in the 1887 edition), which states that where judicial statutes are in force, the strength of written evidence is determined on the basis of these statutes. In the decision of 1879, No. 46, the Senate attaches even more decisiveness to Art. 2111 Zak. Citizen about the formalities of the safe receipt has exclusively procedural meaning and concludes that this meaning should have changed with the entry into force of the new citizens’ charter. Sudopr., which expanded the court’s right to determine the strength of evidence based on its internal content. This conclusion is further supported by a reference to what was added (by codification order) to Art. 2111. Note on Cont. 1868, that with the introduction of judicial statutes, the strength of written evidence is determined by the rules of the civil statute. legal proceedings. From here the Senate concludes that the deposit can be proven not only with a formal safe receipt, but also with all sorts of written evidence, for example, an informal receipt, private letters, etc. It is further deduced from this that the plaintiff, who has proven the fact of the deposit, but is not able to prove the individual characteristics of the thing deposited, is not deprived of his right for this one reason: refusing the plaintiff in this case would be a violation of the principle that no one can enrich yourself at someone else's expense. Based on these considerations, the Senate recognized the decision to refuse satisfaction on a receipt for 300 rubles, written without denomination and credit note numbers, as incorrect. It is difficult to fully agree with the reasoning behind this decision, which does not go further than the appearance of the case. There is hardly any reason to admit in general that all the rules on formalities, issued at different times for different reasons and collected in the X and other volumes of the Code of Laws, have exclusively procedural significance and should lose force according to the thought of the legislator, with the essence of civil relations and with the general economy of the whole law: to confuse them in the category of procedural formalities would be unfounded; It is necessary to prove for each form of the act in particular that its meaning is exclusively procedural. It is hardly possible to draw such a conclusion about Article 2111, which (together with other provisions of the decree of 1853 on safe receipts) obviously meant to distinguish the deposit from a number of other contracts and to separate it especially from the loan by precise formal characteristics. The essential question is: is it possible, without having the correct signs of the identity of the thing given as deposit, to recognize it (or its value) as someone else’s in the defendant’s property, and to recover for it as a deposit, on the basis of a receipt that does not satisfy the requirement of the law about the signs of this identity? We think that it is hardly possible, because in this case a claim for luggage would be confused with a claim for hire, which is inconsistent with the purpose of our law on luggage. In any case, the above decision is completely new and hardly the final word in our judicial practice. Execution. When the property given for safekeeping is not available to the receiver, who has been declared insolvent, recovery on the safe receipt is made in the form of remuneration for embezzlement, therefore, not otherwise than on an equal basis with other obligations of the insolvent person, not secured by a mortgage. Dec. Senate on the Pekarskaya case. J.M.Yu. 1865, No. 8. – In the event of the return of part of the money deposited, the receiver must indicate on the safe receipt itself, and the giver on the receipt, the number and mintage of coins, or the numbers of the returned tickets (Cass. decision. 1870, No. 809). – The luggage may be demanded back and in parts (Cass. decision 1870, N 1623). Chapter seven. Trust order. Power of attorney § 56. Roman Mandate. – Legislative definitions of assignment. - Its essence. – The concept of representation. – Special types of representation of necessary and fiduciary orders. - Order. – Recommendation. - Advice. - An order to pay. – Letter of credit. – Trade power of attorney. - Commission. – Brokers and forwarders. – Agreement on management of the estate. – Difference from a guarantee, from a partnership, from an order in someone else’s business. – Agreement of the evaluation commission. In Roman law, the name of mandate (mandatum) meant an agreement by virtue of which one person undertakes, free of charge, to carry out the work entrusted to him. The basis of this relationship was supposed to be a friendly disposition (ex officio et amicitia), as a result of which its main feature was considered gratuity, so that the agreed payment changed the property of the contract and turned it from an assignment into a personal hire. True, the possibility of remuneration for a service was also allowed, but only as an honorary gift (honorarium), and not in the sense of a condition of payment, as an influence for an action on the other hand. This distinctive feature of an assignment, in comparison with personal hiring, was, of course, insignificant. A significant sign of difference can be the mere concept of authorized representation, which is in the assignment and which is not in personal hiring. But personal representation in a contract was not allowed by Roman law; the strict Roman concept of contract did not recognize in it anything other than a direct personal relationship; an attorney, entering into a relationship with a third person, on behalf of his principal, could not establish a direct connection between the latter and the third person, but the rights acquired in his own person could only be transferred by a special act to the person of his principal. On the contrary, in the new law, representation is fully recognized and serves as a necessary tool for extending the legal activity of an individual beyond the limits of physical capabilities and direct personal relationships. In the Roman contract, the mandateholder acts for his principal, in his interest; in the new contract, the attorney acts not only for the principal, but also instead of him, represents his personality, acquires his rights and obliges him, i.e. introduces him into legal relations with other persons. When hiring or ordering, the purpose of the contract is to satisfy a personal need, to perform work, to manufacture or acquire a thing; here, although it can be said that the obligated person has accepted the assignment, this assignment relates personally to him and refers to the fruit of his personal activity: the hirer or customer enters into a relationship with him alone. On the contrary, when a person who does not have the opportunity to act directly needs to establish relationships with other persons regarding a matter, the necessary tool for this is representation, authority, or a trust order. In this case, the deed performed by the attorney becomes the deed of the principal himself, who is, in essence, the owner of this deed (dominus negotii) and the subject of the legal relations arising from it. Let us note the legal definitions of this agreement. Prussian: declaration of will, by which one person grants another the right to do a deed for him and instead of him. – Austrian: an agreement by virtue of which one person takes care of the matter entrusted to him on behalf of another person. French: an act by which one person gives another the power to do anything for him and in his name. A mandatory instruction can be given not only in the interest of the principal, but also in the interest of a third party, even in the interest of the person to whom the instruction is given. It is necessary to distinguish the concept of a trust order from related concepts. A trust order entrusts the chosen person with not just the commission of any action that has actual significance (give, take, take, pay, etc.), but precisely the commission of an action that has legal significance or is associated with the establishment of new legal relations for the trustee. True, there is not a single event that depends on the will, not a single action that could not have legal consequences; but in a trust deed what is meant, is included in the intention of the principal - the action of the will directed specifically towards legal goals, the need for a legal representative is foreseen, and the attorney is intended to serve not as a blind physical instrument of this or that movement, but as a conscious representative of the individual and an organ of personal will. There are relations of representation of the necessary, combined with power and subordination: they are not included in the circle of contractual powers. This is representation by position - state or even public. By virtue of an institution, an official acts as a representative of authority in a known circle or as a representative of the institution and its interests. – A guardian, in his position of national importance, serves as a representative of a minor or insane person and his interests; therefore, it obliges his personality with his legal actions and acquires rights for it. – In many cases, by necessity, a personal rental agreement establishes the personal power of the employer over hired workers, workers and servants. In this case, the owner receives the right to control the actions of the mercenary and servant, to order him. These orders relate to the performance of works and actions that do not have a conscious legal property, and therefore do not require representation, although actions performed under the order remain the responsibility of the owner who gave the order. - In a similar respect, there may be various kinds of bailiffs for economic supervision of property: there is no need to consider them as authorized representatives of the owner, although they have instructions from him to manage this or that part of the farm. Not every assignment requires representation, and when such trustees are required to certify their title and the economic right associated with it, this certification has the meaning of simple legitimation, but does not yet mean representation, in the legal meaning of this word. An order to perform this or that action or to perform this or that in relation to a third party may have the same legal meaning as an order. On the contrary, a recommendation (if it does not have special meaning in the sense of an order, for example, a recommendation for an open loan) does not itself have this property: its legal significance depends in any case on its content, subject and circumstances. When it is given solely in the interest of the person to whom it is addressed, it has the same meaning as advice, and to follow or not to follow the advice depends solely on the person to whom it is given; therefore, the advice, in essence, does not bind either side (in this sense the Prussian law is expressed), if, however, the adviser did not attach legal significance to the advice, binding himself with responsibility for its consequences. However, it cannot be denied that under some circumstances, the one who gave the advice may be responsible for its consequences (in any case, he is responsible for intent, for the conscious intention to cause with his advice consequences that are unfavorable or harmful for another person). Advice acquires special significance when it is given by a registered adviser called to give advice or opinions, for example, a notary, solicitor, expert: in this case, the responsibility of the adviser stems from a special relationship to the other party under the contract of agency or under another agreement. Its degree depends on the nature of the contract and on the circumstances of the case, and, of course, a gratuitous adviser, due to friendship and participation, is subject to less responsibility than an adviser and manager for payment according to the condition. In other cases, the assignment inscription has the meaning of an order to pay. This is, for example, the meaning of the so-called blank inscription (indossamentum) on bills. The bill of exchange itself is an order to pay, given from the drawer to the payer or addressee; it comes from previous calculations and relations between all these persons, and therefore is usually given in mutual or mutual interest, and always presupposes a known currency, i.e. The value of a loan that must be exchanged or covered by the expected payment. This right to receive payment, which belongs to the holder of the bill, can be transferred by him, and the transfer means an order: instead of me, pay so-and-so or pay the bearer. With any assignment of such a right, as is known, a guarantee for prompt payment is associated, as a result of which a special obligatory relationship arises, which constitutes the subject of bill of exchange law. A special type of order is a credit order, connected with the issuance of a letter of credit. It is addressed from a merchant or banker to another merchant or banker in favor of a third party to whom a letter of credit is issued to receive sums of money on credit to the person on whose behalf the letter is addressed. The currency of this loan consists either in the cash property that serves the lending person instead of collateral, or in the previous settlements of the lending person with the credited person (for example, in payment of a debt from the first to the last) and with the addressee - the payer. The relationship of the creditor to the payer, as a result of such an order (constituting a trade transaction), is assumed to be remunerative and does not end with the death of the person giving the order. The payer pays interest and deducts provisions, and puts the paid amount into the account of the lending person, and not into the account of the credited person, who is already settling with the person who credited him, in a reverse account. A letter of credit is not like a bill of exchange; the bill contains a real value inextricably associated with it, regardless of currency, so that its holder, having not received satisfaction from the payer, makes a return claim to the drawer; but the person being credited, if he does not receive money under the letter of credit, does not have a reverse claim under this act against the person lending: he has a claim against him only by virtue of the relationship that constituted the currency of the letter of credit; so, for example, if it was supposed to serve as compensation for a debt, it can collect the debt as unpaid; may demand the return of the deposit, may demand compensation for losses from failure to receive money on time, etc. Of particular importance in the trading world is a trade power of attorney, which is the most complete type of representation; it gives the right to carry out on behalf of the owner all his trade affairs in their entirety and to take credit on his behalf. In general, the greater or lesser expansion of these rights depends on the principal; but the German commercial code establishes these rights in the law itself, regardless of the will of the principal, and the German full commercial power of attorney (Procura) makes the attorney (Procurist) the full representative of the commercial personality of the owner or company, with all its rights, without exception, and to this extent he obliges the owner when he signs his company (per procura). Such a power of attorney becomes valid upon entry into the commercial register, and can be destroyed by the owner at any time; it remains valid even in the event of the death of the owner, until the order of the company. A special type of order in trade matters is a commission. A commission agreement is usually concluded with persons whose title, scope of action and legal relationship are predetermined by law. This agreement is supposed to be, of necessity, compensated, combined with the right of the commission agent to the so-called provisions. The commission is usually guaranteed by absent correspondents from another place (cash is processed through a broker). The commission agent acts in accordance with the wishes and instructions of his principal, in his interests, which he is obliged to observe and ensure; but, acting on his instructions, enters into transactions with third parties on his own behalf; may even satisfy the principal’s needs directly from his own funds and at his own expense (i.e., sell to himself or buy for himself), as long as the principal’s interests are respected. What he can gain within the limits of the extreme price assigned to him by the principal turns into profit not for him, but for the principal. When making a loan to third parties at his own discretion when executing an order, he is responsible for this loan to the principal; and when he takes upon himself a guarantee of faithful performance on the part of third parties, then for this he calculates interest on his provisions for fear (del credere). The commission agent's right to provisions is acquired upon completion of the operation entrusted to him, and in order to ensure provisions, he has the right to hold in his hands the things and goods of the principal on commission 23. A special type of commission agents are forwarders for sending, receiving and delivering goods (Spediteur, entrepreneur), and trade brokers (Mäclers, Sensalen, Courtiers), or intermediaries for concluding transactions between cash (and not from another place giving the order) merchants. This position is specialized in the person of a broker, who can no longer take on a commission and enter into trade transactions on his own behalf: the broker acts on behalf of those persons whom he brings together, and enters the concluded transactions in his book, an extract from which, signed by the parties mutually, serves as evidence of the transaction and its accessories. The broker's remuneration is based on the legal or usual amount of court money (Courtage, Maclergebühr, Sensorie), to which he acquires the right only after concluding the transaction and issuing statements. Regardless of the trust assignment, Prussian legislation (and only Prussian law) places a special category on the estate management agreement (Verwaltungsvertrag). Its peculiarity is seen in the fact that it combines the position of the receiver of property for safekeeping with the position of an authorized representative and someone hired for a position. In essence, the concept of managing an estate in itself corresponds to a certain economic function, and therefore, it would seem, there is no need to assign a special place to this type of assignment in the system of contracts; Beyond all this, however, the Prussian Code, true to its task of defining legal relations in detail, satisfies the practical needs of economic and legal life in this subject. Prussian law seeks to describe a certain range of activities within which the actions of the manager are binding on the owner. When accepting an estate with or without inventory, the manager is obliged to preserve it, extract all benefits from it, collect income, and is considered authorized for all legal actions associated with this obligation, including all protective claims on behalf of the owner (for example, claims for the protection of possession); then all his orders that go beyond the limits of the order existing in the estate become binding on the owner to the extent that they served to the actual benefit of the estate. The owner can eliminate him at any time; Likewise, he has the right to refuse management, unless he himself was hired for a term, therefore, by refusing before the term, he is responsible for violation of the contract. The manager owes his master detailed accounts, the approval of which is certified by a receipt or silent acknowledgment, within a special period of time to satisfy the owner's claim. A trust order should not, as sometimes happens, be confused with a guarantee. The guarantor is responsible for the serviceability of the direct counterparty, who enters into an obligation with his own person, is responsible, standing behind him, especially, and in case of emergency, without uniting himself with him and without intervening in his activities under the obligation. On the contrary, the principal is responsible for the attorney as for himself in his own business, and represents one person with him, so that everything done by the attorney under the power of attorney becomes, as it were, the action of the principal himself. A partnership relationship can also be associated with an assignment, when the principal gives it in the interest not only of himself, but also of his attorney, allowing him to participate or recognizing his participation in the entrusted matter. One should not be confused with the other: which relationship turns out to be predominant or main in the contract - trust or partnership - this depends on the content of the contract and the circumstances of the case. The case of disposition in someone else's business (actual representation) (negotiorum gestio, see below § 72) has some similarities with the contract of agency, but differs significantly from it in the very absence of commission, for in this case a third party takes on other people's affairs by itself, without commission; as a result, it acts at its own peril and at its own expense and can have a claim against the owner of the business only in the case of successful activity and benefits associated with it, while the attorney, in any case, acts at the fear of others and at the expense of the owner. In Roman law, the assignment of rights under an obligation, or claim, was made in the form of granting the right to sue through the authority to conduct the process in one’s own name. Such an attorney received, by virtue of a power of attorney, the right to dispose of the subject of the claim in his favor, and therefore was called procurator in rem suam. This form now has only historical significance, since the transfer of claims and debt documents is now carried out freely by inscriptions of assignment or sale. In Roman law, there was a known agreement that was similar to a trust order, an agreement of an assessment commission - contractus aestimatoris. The owner of the thing entrusted it to another person for sale, meaning the extreme price, in order to receive either money for the thing or the thing itself back within the appointed time. Of the newest legislation, only Prussian law assigns a special category to this contract in its system (Trödelvertrag), classifying it, however, as an exchange contract and stipulating that upon expiration of the term the thing becomes the property of the receiver. However, when the contract does not specify a term or price, it relates to an order and not to a sale. § 57. General principles of trust orders. – Acts of authority. - What is it for? – Perceived or actual authority. – Personal ability of the attorney. – Space of power of attorney. – Duties of an attorney and responsibility to the principal. - The right of subrogation. – Reporting. – Attorney's fees and expenses. – Obligation for the principal of the actions of the attorney. – Cancellation of the power of attorney. – Termination by other means and the consequences of termination. The right of an attorney is based on an agreement with the principal, and the result of the agreement is an act of authority, mandate, order (procuratio). Thus, the contract of agency may precede the actual giving of the agency; but in most cases the agreement is made directly by the giving of an instruction on the one hand and the acceptance on the other; whether to accept or not to accept an order depends on the will of the one to whom it is given. For the validity of an order, there is no need at all for it to be expressed in a written act: a written act is necessary for the attorney for his external activities, as a certificate of authority to third parties; is also necessary as proof of the space and limits of the authority given to him, in case of misunderstandings that may arise. In the mutual relationship between the principal and the attorney, a simple letter serves as sufficient identification. The acceptance of an order even less requires a written response or certification: it is certified by the deed itself, i.e. actions indicating fulfillment of the contract or a serious intention to proceed with execution. These are the actual signs of tacit acceptance: they do not, however, include mere silence or the mere receipt of a deed of trust. In special cases only - when an order is given to a person who, by virtue of his rank, is obliged to accept and carry out orders of one kind or another (for example. solicitors, brokers, etc.), silence for some time can serve as a sign of acceptance or establish an assumption of acceptance of the order. The authority represents legal consciousness and expression of a phenomenon that occurs continuously in everyday life, i.e. economic activity, through executive and official persons serving as instruments of disposal, instructions and orders. Every economic action, no matter how small and ordinary, acquires legal significance as soon as the question of law and responsibility is raised about it. In such cases, on the part of third parties dealing with the person sent for execution, a misunderstanding may arise about what he is entrusted with, what he is authorized to do, and to what extent the performance he performs or perceives receives binding force on the one on whose behalf he is acting. In all these cases it is impossible to demand direct and positive certification and authority, and therefore certain external signs are usually considered sufficient evidence by which one can judge the authority to perform one or another action. These are cases of the so-called silent or mute authority (mandatum tacitum), which positive law (except Prussian) does not mention, but which are inevitable and very well known in practice. These are, for example, the cases specified in Prussian law. Some persons who are in a certain family, economic or official relationship (close relatives, co-owners, managers, waiters, etc.) have the right to act, in urgent need, on behalf of another person, according to the presumed authority (vermuthete Vollmacht), with timely notification of the subject person, whose silence serves as a sign of consent. Moreover, Prussian law indicates some external signs of accidental or actual authority. Anyone who comes to receive money for a creditor under an obligation or account with his receipt ready is authorized to receive money. But whoever comes on behalf of the creditor, having in his hands only an obligation or an invoice without a receipt, can still doubt the transfer of payment. To whomever movable property is transferred for sale, he can pay for it with confidence; but there is no reason to suppose that he is authorized to defer payment. But the authority to sell real estate does not yet certify that the same person is trusted to receive money for it. When a clerk sells goods in a shop, it is assumed that he can also be paid money for the purchase. An attorney is supposed to be a person legally capable of the activities assigned to him. This quality is of particular importance in the relationship of the principal to the attorney. The principal, having elected an incapable (for example, minor) attorney, chooses him at risk, without having the right to sue him in the event of a malfunction (French); but the attorney, upon fulfillment of the assignment, has the right of action against the principal (Prussian). As for third parties dealing with an attorney, they cannot be required to verify his ability, since, in essence, the attorney serves only as an intermediary for them; they enter into a direct relationship with the principal; therefore, having the right to evade an incapable attorney, they are not under any obligation to do so, and their relationship to the principal through the incapable attorney remains in full force. The power of attorney can be given privately, for one well-known matter, or general, for the management of all affairs. Its subject can be any matter not prohibited by law. Prussian law prohibits an attorney from taking on cases in which there may be a conflict of different interests, of which the same person serves as a representative; those. have an opposing interest in the principal’s business, or at the same time serve as an attorney in the opposing interest of another principal. Roman law, from its point of view, obliged the attorney entering into someone else's business to the greatest attentiveness and care: the attorney was responsible to the principal for the slightest negligence (pro omni culpa) more strictly than the receiver of the luggage. New legislation is more lenient on this subject. An attorney must act in someone else's business, as is typical of a good master, and his responsibility decreases when the service was gratuitous: in this case, one cannot demand more care from him than in his own business. It is assumed that the attorney acts not only in strict accordance with the authority, but also reasonably, for the best benefit of the principal; therefore, some deviation from the authority is not blamed on him if it was necessary due to the circumstances and brought benefits to the case. A power of attorney is assumed to be an act of trust in a known person, therefore it presupposes the personal activity of an attorney serving as a representative of the principal: in other cases, the property of the action entrusted to the attorney is such that it requires exclusively his personal activity of trust, based on his personal qualities, abilities and art. In general, when an attorney has to act through others, he is responsible to his principal for the consequences of their activities. But not every activity is connected with representation, and the attorney generally does not have the right to replace himself with another person as a representative, if the principal has not specifically granted him this right. In extreme cases, when the attorney himself cannot act, and inaction threatens to damage the case, and the attorney decides to voluntarily send another for himself, he takes full responsibility to the principal for the choice of a new figure and for the consequences of his actions. If the principal himself has granted him the right (substitution) of substitution at his discretion, he is responsible to the principal for a careless choice. In any case, the new attorney appointed by the original attorney is considered the attorney of the principal himself and is directly responsible to him for his actions. The attorney is obliged to give an account to his principal for everything that he has executed, spent and received, and everything acquired and received on the principal’s account is obliged to hand over to him with an answer for interest and increments from the minute he accepted it. Any benefit acquired from the business is considered the property of the principal, and the attorney does not appropriate anything from it. Austrian law prohibits attorneys from accepting, without the consent of the principal, gifts from third parties with whom they enter into transactions under a power of attorney. When several attorneys acting together were appointed for one case, Roman law bound them jointly and severally liable to the principal. Prussian and Austrian law adheres to the same view; but French law presupposes in this case a division of responsibility, unless the contract itself stipulated the contrary. When the contract is not gratuitous, the principal is obliged to pay the attorney the agreed remuneration. In many types of assignments, the subject of which are actions related to a trade or profession, a measure of remuneration accepted by custom or custom is assumed. This is the so-called provision of commission agents, merchants, bankers, brokers (courtage), usually calculated as a certain percentage of the value of one or another transaction: this amount is sometimes increased when the commission agent or intermediary takes upon himself the guarantee for the value and reliability of the loans acquired through his loans (del credere). The attorney, even if he sacrificed his time and labor free of charge, is not obliged to sacrifice his property in favor of the principal, and therefore everything that he has spent on someone else’s business and that constitutes damage to it must be returned to him with interest or compensated for the inevitable loss: this responsibility lies with the principal, regardless of the consequences of the attorney’s activities. To ensure such requirements, some legislation (Prussian) gives the attorney the right to retain things and amounts in his hands. The accidental loss of the attorney during the performance of what was entrusted to him remains, according to Roman law, his responsibility, and according to the latest legislation, the responsibility of the principal. The limits of the attorney's power are indicated in the power of attorney document. It can be either general, for all affairs of the principal, or private, for one matter or subject, or limited. The authority can be designated in general terms, but there are some actions for which the authority is not assumed by itself, but must be specifically designated, such as, for example: alienation and pledge of property, entering into loans, filing claims, submitting controversial cases to an arbitration court, etc. When an attorney acts within the limits of authority on behalf of his principal, any relationship he has with a third party becomes the relationship of his principal and obliges the latter directly. But a transaction concluded by an attorney on his own behalf (even for matters entrusted to him) only obliges him in relation to a third party. A transaction concluded by an attorney in excess of his authority is not binding on the principal, unless the principal subsequently approved it with his consent (ratihabitio mandato aequiparatur). Consent is due under Austrian law when the principal has benefited from the transaction or action of the attorney. This consent releases the attorney from liability to the principal, but does not have a retroactive effect on rights acquired by third parties. And when consent is not forthcoming, the action of the attorney remains his responsibility both to the principal and to third parties who entered into the transaction, even if the limits of the power of attorney were hidden from them. It is up to the principal to take back and destroy his trust at any time: he is not bound by any condition in this right, although he may be responsible for its violation, i.e. for termination of the power of attorney earlier than it was established. With the destruction of the power of attorney, the attorney is obliged to cease his activities without having the right to do so; if he continues it for the benefit of the principal, then he no longer acts as his representative, but as a zealot for someone else’s business without a power of attorney (negotiorum gestor). And the attorney also has the right to refuse the power of attorney at any time, although he is responsible to the principal if he did not warn him in time and left the case without handing it over properly. Leaving court cases requires special precautions to ensure the interests of the principal. The destroyed act of authority must be returned to the principal. The power of attorney is terminated by the death of one or the other party. There may, however, be cases in which a power of attorney is given to a well-known person, and upon his death - to his heir. There may also be an order of this kind that is supposed to be executed upon the death of the testator (for example, to erect a monument). According to Prussian law, the death of the principal does not unconditionally terminate the right of the attorney in commercial matters and in matters of judicial petition. Other reasons for terminating a power of attorney are the arrival of one or the other party in a state of legal incapacity and insolvency. It is important to determine the minute of actual termination of authority between the parties involved in the agreement and in relation to third parties. For the attorney, the power terminates from the minute when he becomes aware of the will of the principal to terminate or, in general, the event that terminates the power of attorney. All actions of the attorney, performed by him under the power of attorney until this moment, remain at the responsibility and fear of the principal, and everything that he does after this minute, he does at his own risk and responsibility. Likewise, the attorney can consider himself free from the obligation only from the moment when his refusal is brought to the attention of the principal and the principal has the opportunity to replace him. With respect to third parties, the power of attorney terminates when they learn about the event that destroyed it. Until then, transactions concluded by them with an attorney in the name of the principal are binding on the latter. § 58. Russian law on power of attorney. – The right to give a power of attorney. - The right to be an attorney. – Believing letter. – Certificate of trust in the messenger. – Commissioners from societies. – Contents of a general and private power of attorney. - The right of subrogation. – Judicial powers. – The relationship of the attorney to the principal. – Liability of the principal regarding third parties. – Approval of the attorney’s actions. – Termination of power of attorney. – Cancellation and its consequences. – The principal’s right to independent activity. In Russian legislation, the concept of representation remained, until recently, without any development, although representation, i.e. the obligatory activity of one instead of another was a daily phenomenon of ancient life. Under the dominance of family and patrimonial power in civil life, the most common representation was necessary or by order - to go about the business instead of so-and-so. The concept of a power of attorney as a letter of faith, i.e. exclusively formal, required definitions already in the 18th century, and the most important definitions were caused by the need to certify the authority and limits of power of attorneys in relation to state and government institutions where attorneys were supposed to act, and to prevent possible, under the guise of authority, appropriation and transfer of rights of the upper class. Therefore, when compiling the Code of Laws from old decrees, materials were mostly only used to determine the external accessories of authority, and in the system of contracts a chapter was formed not on the contract of agency, but “on powers of attorney and letters of trust.” The right to give a power of attorney (i.e., to perform a legal act through an authorized person) belongs to anyone who can enter into contracts. Estates of persons (the law here names noble, urban, rural, diocesan and monastic authorities) can give powers of attorney only for those matters that can be carried out by them through authorized representatives (Articles 2291–2293). The subject of a power of attorney can only be actions that do not require physical presence and participation (2293). So, for example, an attorney cannot take an oath in place of the principal (Const. Court. Trade. 30). All those who are not prohibited from entering into contracts can be attorneys (2294). Moreover, monks are prohibited from being attorneys even for the affairs of diocesan authorities and monasteries, although, however, the law distinguishes entrusted assignments or orders from authorities and public places from a power of attorney, as an agreement (Civil. 2292. IX v. 359). A person of the white clergy cannot be an attorney for other people's affairs, except for the affairs of the spiritual department, or for wives, children and pets (IX, 379, 460). But in order for an attorney, beyond his general ability, to be capable of performing those actions that he undertakes for another, there is no such rule in the laws. Only persons authorized by a power of attorney in trade matters, as well as in commission, forwarding and brokerage matters, must themselves have trade rights and take clerk’s certificates in their name (Vol. V, ed. 1893, Establishment of Direct Tax., Art. 214, paragraph 2, 275–287; Establishment of Trade. 47). Not everyone can be an attorney in court: the law determines what negative qualities prevent one from being an attorney in court (Law. Court. Civil. 49; Establishment of the Gr. Court., 45, 246), what qualities are required to become a sworn attorney (Constituent Court. Inst. 354 et seq.); then, since 1874, for attorneys in general courts and in the magistrate’s court, a special qualification has been established through permitting certificates issued by the court: only close relatives, accomplices and estate managers are exempt from it (Ust. Court. Ust., art. 4061–40619). Judicial practice gives these restrictions, if possible, a broad interpretation (see, for example, on the rights of the manager Cass. decision 1878, No. 284). Some persons, due to their rank, are prohibited from taking a power of attorney for certain matters: for example, officials serving in Siberia and members of their families cannot be attorneys for mining and gold mining (2296, according to Prod. 1895). Similar prohibitions regarding officials of Com. Redeem debts - art. 2318. Members of the white clergy do not have the right, at their own discretion, to begin and conduct business related to the churches they belong to; in this case they act only as representatives of the local diocesan administration (Cass. decision 1877, No. 246). Those excluded from service cannot be attorneys. They do not fit this rule, within the meaning of Art. 65. Code, removed from service by court (Cass. decision 1876, N 333). Jews cannot be agents for contracts and supplies in all those places where they themselves are not allowed to act in this way (Pol. Kazen. Subd., Art. 7, note). There is no obstacle to authorizing several attorneys for the same matter (cf. Constitutional Court. Constitution 391). The law does not mention their mutual relationship with each other and with the principal. Only in peasant cases does the conciliator have a rule in law that if two attorneys are appointed, they must act jointly. An attorney who did not participate in the actions of his comrade does not have the right to subsequently challenge his actions (Pol. Cross. Institution 37). Under a joint power of attorney (Article 2325), attorneys can only act together. On this basis, the request to cancel the decision, signed by only one of the two attorneys, was declared invalid, while the other of the signatories was illiterate (Cass. decision 1876, No. 327). A power of attorney can be given for a term or indefinitely. The power of attorney to receive a pension and salary is valid for only one year (2306). A letter of trust serves as a deed of power of attorney. In general, this is a personal act and is written in compliance with the rules on stamp duty; appears in a public place or before a notary; powers of attorney issued by rural societies and peasant associations can be certified in volost boards (2308, note). The power of attorney is submitted for personal appearance or with interrogation of the principal at home. When appearing, there must certainly be evidence of the authenticity of the will and signature of the principal or authorization for a third party to sign (2308–2311). When a power of attorney is given to several persons collectively, so that one cannot act without the other, it is written on one sheet; but each attorney, if authorized to act separately, must also have a special power of attorney (2325). In any power of attorney it must be explained that the principal in everything that will be done in accordance with this letter believes the attorney and will not argue or contradict (2307). Article 2325 concerns the procedure for making letters of trust addressed to several persons and provides for two cases: whether the authority is given so that all the trustees act only jointly, or whether it is intended to grant each of them the right to act separately and independently of the others. In the first case, attorneys can be authorized by one act, in the second, a special power of attorney is made in the name of each. This rule does not, however, have unconditional significance and should not be understood in the sense that any deviation from the specified procedure for making a power of attorney is absolutely prohibited by law. It provides only for the case when the act itself, given in the name of several persons, does not mention the rights of each individual. In this case, it is assumed, within the meaning of the law, that all attorneys represent inseparably one person and can only act jointly, and therefore, in the event of the death of one of them, the power of attorney must be considered terminated; but if allowing each of several attorneys to act separately and independently of the others undoubtedly follows from the meaning of a power of attorney, even if issued in the name of several persons, then the attorney cannot lose this right even in the event of the death of any of the persons authorized by the same power of attorney (Cass. decision 1884, No. 88). Trade powers of attorney are certified by a notary, and where there are no notary offices or notarial regulations have not been introduced - by a justice of the peace, and where regulations on zemstvo chiefs have been introduced - by a city judge and a county member, if the city is included in the site itself; in the same places where there are neither notaries nor justices of the peace - in police departments (Constitution of Trade. 51 and approx.). To facilitate certain actions, the simplest form of authority given to them is allowed. Thus, trusting letters for existence during land surveying are attested by private people (International Law Ed. 1893, Art. 263); powers of attorney to receive maintenance are certified by superiors and written on plain paper if the amount intended for issue is no more than 100 rubles. (Const. Civil Service, 585 to Cont. 1890). Powers of attorney to go to the magistrate's court or to a magistrate's mediator are evidenced by the applicant's statement to the judge, verbal or written (Ust. Gr. Court. 46; Pol. Cross. Institution., 38); the authority of a sworn attorney in court can be certified by the police, a notary or a justice of the peace, or by a mutual verbal statement to the court (ibid., 248). The power of attorney from the peasants to the former landowner to petition for deeds is certified on plain paper by a peace mediator (General Cross. Pol. 27). Our law combines in one category, under the name of a power of attorney, all kinds of instructions to one person to perform this or that action on his behalf. It is obvious, however, that the activity of a person sent for one or another matter, or execution, consisting of one simple action, is not the same in importance as the position of a person authorized to take a consistent series of actions or manage and act constantly in the interest and on behalf of the principal. Only such an actor is in the full sense a representative of the individual. If to certify powers of this last kind a certain form of a letter of faith is required, then for numerous and varied orders of the first kind the use of this form would be impossible. In these cases, certification of the rights of the messenger is usually accepted by a third party, depending on the circumstances of the case and relationships, or on faith, or on some signs and assumptions, or on a simple credential inscription of the person from whom the messenger comes. This is how we release goods from stores, this is how we pay the invoice sent from the store, etc. For some of these actions, our law specifies a simplified form for the certificate of trust. Thus, for post offices, as places of government administration, a form of power of attorney has been established by which parcels, letters and money are accepted - an inscription on the summons, certified by the police or the authorities, or general permission given by the post office to a well-known person to send trusted people for correspondence (Law. Civil. 2317; Establishment of Post. 130 and note 2 to Article 190 under Cont. 1890). The signature of a petition for the illiterate also constitutes a special type of trust order, which is especially used in our country. The law only requires that such an order be given to the subscriber personally (2322), indicating, according to judicial statutes, why the petitioner himself did not sign the petition (Ust. Gr. Court. 260). Incorrectly, some public places still require a police ID in these cases, and the Senate (Gr. Cass. decision January 22, 1876, d. Tomakhushenov) explained that this is not required by law. In fact, the trust for the signature under the serfdom deed is certified by witnesses (Law of Civil. 708 app. I; art. 67, 73). At appearances, this is certified by the police (ibid., Art. 119). Certification of a signature for another person on household acts is not required by law as a formality, although in some decisions the Senate has interpreted that a police identification is required on the basis of Art. 921 and 882 (Article 73 of Appendix I, to Article 708 of the Civil Code according to the 1887 edition, Cass. decision of 1872, No. 80. See § 8 above). To certify a trust to sign a will, special formalities are required (see Vol. 2 of this course). To submit petitions to public places, authority is given simply by an inscription on the petition itself (Law. Civil. 2321; Law. Court. Civil. 42). On the trust to receive a deed from serfdom, see Zak. Citizen Art. 708, adj. I, art. 50. The law also mentions a letter of trust for the sale of shares - Art. 2168 Zak. Citizen Authority. In this presentation there is no talk about those representatives who are considered authorized in other people’s affairs by virtue of their title and the associated duties (for example, guardians, partly executors), or by virtue of an order and an assignment assigned by their superiors. In cases where government departments seek and answer in court not through the debtor in the service of a person, but through attorneys, by voluntary agreement (Ust. Gr. Court. 1285), the relationship of the attorney is determined by the general contractual law of power of attorney. Then class societies - noble, urban, rural - are represented either by representatives from among themselves, in the order of class government by public verdict, or by authorization from public administration (Law. Civil. 2323; Constituent Court. Constitution 3891; General. Cross. Pol. 24; Pol. Vyk. 80; Pol. Cross. Institution. 38), or attorneys under a contract. The same should be said about zemstvo and city institutions. Sometimes the question arises about the form of authority given by various public institutions. So, for example, in one case, the Senate (Cass. decision. May 13, 1869, according to the village of Romanovsky Bank) recognized that the city public bank authorizes applicants, even from among its own, only by a letter of faith, completed in the general order. One can hardly agree with this opinion. Any public institution whose charter is approved by the government, having a legal personality with public significance, cannot but differ from private societies or partnerships, although, on the other hand, it also differs from government institutions. Having the indisputable right to elect an authorized representative from among itself for its protection (this right hardly requires special recognition in each individual charter), such an institution can directly authorize its representative; and, having in its institution methods and forms of production with the official meaning of reliable acts (such as: acts of government, journals, minutes, seals, etc.), it has at its disposal quite sufficient means for the official certification of the powers given in this case. Such a certificate can be properly recognized as insufficient only when it is given to a third party who does not belong to the institution. Representation, as an institution of civil law, should not be confused with the concept by virtue of which an estate-based public administration body is considered a representative of an entire society or estate. However, 628 art. Est. Foreign Confession It is expressed about Lutheran church councils, colleges and conventions that these institutions act as authorized representatives on behalf of the parish, and for matters of special importance, they receive a special power of attorney from it. Authority from society. A legal petition on the part of the company must be made through an attorney chosen from among individuals, and not through the board itself, as a collegial institution, unless the board is specifically authorized to do so by the charter of the company (Cass. Resolution 1877, No. 153). A claim on behalf of the Duma can be brought by a member of it by order of the city government, without a verdict or formal power of attorney from the company or the city government (Cass. decision 1874, No. 168). When the authorized representative of a city society is an official of the local city government, there is no reason to require a notarized power of attorney from him, but written authority or an order given by the city government is sufficient (Cass. decision 1877, No. 198). In the Milioti case (Cass. decision 1868, No. 424), a dispute arises whether the architect Semenov can be considered an authorized agent for the acceptance of property at risk simply because he was provided with instructions from the direct attorneys of the insurance company signed by them and printed blank receipts? The decision recognized that the general law regarding the issuance of a letter of trust is not repealed for an insurance company, the charter of which does not contain exceptions on this subject. The scope of rights granted to the attorney is determined by the content of the letter of faith. Everything done by the attorney on the basis of a power of attorney, even if it was to the detriment of the principal, remains in force for the principal (Article 2326); therefore, what is done by the attorney beyond his authority remains his responsibility and is not obligatory for the principal. A power of attorney can be given general - for all cases, and special - for one case, or for the performance of one integral action (for example, to sell an estate, receive money and issue a bill of sale), full and limited. When a doubt arises as to whether the attorney was granted the right to take one or another action, it is resolved by interpreting the trusting letter according to the general rule of Articles 1538 and 1539. Whatever the full power of attorney, there are actions that are of such decisive importance that the authority to do so is not automatically assumed, but must be clearly provided in the power of attorney. Our law indicates such items only in relation to procedural actions. So, in 317 Art. Zach. Court. Citizen it is said about the procedure of the previous written court that the attorney can transfer the case on appeal only in the case when this right is granted to him; Moreover, it was added that without a special power of attorney, only attorneys acting in accordance with the duties of their rank (i.e., official) are considered authorized to do so. With the publication of the new judicial charter, sworn attorneys were introduced in the courts, acting in accordance with the duties of their title, and the law, without defining in detail what their procedural rights to act on behalf of the principal consisted of, confirmed for them the effect of the general law that the scope of the rights of an attorney is determined by a power of attorney (Ukrainian Court. Ust. 390, 391, 399). It is more clearly defined which actions in court require a positively expressed, special authority: bringing an appeal, requesting the cancellation of a decision, ending the case amicably, presenting a dispute about forgery or responding to such a dispute, selecting intermediaries for arbitration and transfer of trust (Ust. Gr. Court. 250; Ust. Court. Trade. 223). Attorneys in the magistrate's court (always having reconciliation in mind) are given, and without special authority, to end the case of their principal with peace (Ust. Gr. Court. 48). The right of subrogation is not assumed at all and must be positively presented. The transfer is always made by a special act, with a note on the main power of attorney (Civil Law 2329). The person accepting the goods at the customs office, authorized by the owner of the goods, can give his own authority to carry out customs proceedings (Const. Torg. 56). Acceptance of a bill of exchange for the honor of the drawer or one of the signers does not apply to the rights of an attorney under a general power of attorney (Art. Bill. 52). Interpretation. The attorney's rights space. When discussing the power of a power of attorney, one must keep in mind the economic significance of the action or transaction for which the authority is given. It applies to all those actions that, according to the economic significance of the operation, are included in it, unless the principal has made an exception for certain actions. On this basis, the owner was found responsible for the obligations of the estate manager for the work or supply of supplies necessary for the economic management of the property (Cass. decision 1874, No. 781). Non-trade actions of an attorney are valid if carried out within the framework of a non-trade power of attorney, at least due to the general nature of the known order or matter and it was necessary to give not such a power of attorney, but a trade one (Cass. decision 1879, No. 44). Any power of attorney is, of course, valid in the force of such expressions, which are placed in Article 2307, and the omission of these expressions does not deprive the power of attorney of legal force (Cass. decision 1870, N 1039). Bibikova entrusted Roslavlev with her estates for complete management and disposal, with the right to collect income and lease out establishments. State Sov. (January 4, 1850) admitted that, under this power of attorney, Roslavlev had the right to enter into an agreement for the supply of wheat from the estate, since income from the estate could not be derived from grain except from the sale of cash or with delivery for a period of time, he could receive a deposit and impose a penalty, since the penalty is the usual guarantee of the merchant in the serviceability of the delivery, partly paid with a deposit. Mn. State Sov. 1872 in the village of Shilovskaya, it was recognized that the manager of the estate, who had the power of attorney to sell the forest for felling, exceeded his authority by concluding a contract that allowed him to dig up 300 trees with roots, because this is a business operation that involves replacing forestry with another purpose. According to the village of Bulgakov (Cass. decision 1876, No. 484), the estate manager entered into a condition with a third party for the sale of merino sheep. In the dispute over the fulfillment of this condition, it was objected that this general power of attorney did not give the right to sell sheep from the estate. The Chamber decided that Bulgakov authorized the attorney not only to accept the estates for management, but also to dispose of these estates at his discretion; This granted the right to both buy everything necessary for the estates, and exchange agricultural products for money or extract income from them, which, without a doubt, should have applied to merino sheep, since they constitute one of the economic products subject, among others, to sale for income. Moreover, the case shows that the manager always used this right without objection. The Senate related these considerations to the merits of the matter and to the interpretation of acts. In dec. Cass. 1869, No. 979, it was recognized that the estate manager, by giving, without positive authority in a power of attorney from the owner, the quitrent articles of the estate for long-term lease, exceeded his right and cannot refer to subsequent reviews of the owner about his consent. – It is difficult to agree with reasoning in this form. In this case, the owner, after the surrender, in a private letter to the manager and in a response to the police, recognized the manager’s right to dispose of the rental items at his discretion and, in addition, he himself received payment from the tenant. In such circumstances, the decision of the chamber, which found the owner liable under the lease contract, seems more correct. According to the village of Figleva (2 Sat. Sen. Resolution III, No. 669), the Senate recognized that the right of complete economic disposal granted to the attorney does not include the sale of timber for felling from the estate, although in the same power of attorney the same person is granted to sell the land on the estate for a peasant allotment. The decision of the Senate on the village of Saveshnikova (2 Sat. Sen. Resolution II, 386) recognized that the manager of the shipping property, authorized to dispose as an owner and enter into contracts and deliveries, secured by the shipping property, had the right to issue documents with an obligation to pay and to pay debts from the shipping property. The attorney was authorized to purchase estates with the execution of deeds of sale. Having bargained for the estate, he gave the seller 6,000 rubles in advance, but then the deed of sale did not take place and difficulty was encountered in returning the deposit. Collection of the deposit is directed to the attorney. It is recognized that the price of property is paid in due time (Article 1521) and the attorney was not authorized to issue money in advance; but could, on the occasion of the sale, issue a deposit in the sense of security, against a deposit receipt (2 Sat. Sen. decision V, No. 1259). The authority given to sell the estate and to make deeds of sale does not contain the right to make pre-sale conditions, records of the deposit, etc., because such agreements preceding the sale, not directly related to the purchase itself, constitute the subject of a special agreement; and according to the law, purchase and sale is classified as a method of acquiring rights to property, and the sale record is classified as contracts (2 Sat. Sen. Resolution V, No. 1158). The correctness of this view is very doubtful, for every sale comes from an agreement and concludes an agreement in its essence. One can only argue about the right of the attorney to oblige his principal with special conditions to ensure the sale. A clerk who is in charge of the owner's trading establishment and is not authorized by a general power of attorney from him does not have the right to accept money on behalf of the owner and thereby oblige him (Cass. decision 1875, No. 818). In the village of Durnovo (Sb. Sen. Resolution I, 477) the Senate recognized the attorney authorized to make loans with the security of the estate, the right to enter into conditions of a penalty. In Mn. State Sov. 1850, according to the villages of Golitsyn and Zubova, it is expressed that the attorney authorized to enter into supply agreements thereby received the right to include a penalty clause in these agreements. In the decision of 1874 on the village of Friedland (2 Sat. Sen. decision V, No. 1279), the Senate recognized that the power of attorney to enter into various types of transactions and contracts for the transportation of goods itself also includes the right to be obliged to pay a penalty as part of the same agreement. On the contrary, Cass. Dep. The Senate recognizes that securing a contract does not constitute an essential element of any contractual agreement and requires a special determination of the will. Therefore, the authority to conclude an agreement does not in itself imply the authority to include a penalty clause in it (Cass. decision 1871, No. 161, 175, 322). In the same sense, of course, the condition of the deposit as security, in the sense of a deposit receipt. N 171. The principal is not liable for a penalty under a contract when the power of attorney does not give the right to enter into contracts with a penalty (Shilovsky village, 1 General. Collection. September 15, 1874). Our law, having in mind primarily the formal side of the power of attorney, pays little attention to the essence of the legal relations arising as a result of the trust order. The only thing that is said about the duties of an attorney is that he should not go beyond the limits of the power of attorney (1326). There is no doubt, however, that in addition to this negative obligation, our law necessarily presupposes positive ones. They can be determined more closely by agreement of the parties, in a special condition, which signifies the essence of the order and to which the issuance of a power of attorney is adjacent, as an action that serves as the beginning of execution on the one hand. They can be defined in the trusting letter itself, as the basis of an order from the principal to the attorney; in this case, acceptance of the power of attorney and the instructions associated with it means the attorney’s consent to the conditions specified in the power of attorney. In any case, there is no doubt that the attorney, having accepted the assignment, is obliged to complete the work he has undertaken, or to act in the interests of the principal in good faith and carefully as long as the power of attorney continues. Although the only article of our Code on the liability of an attorney for losses from his negligence (2327) refers to the Chernigov and Poltava provinces, this in no way excludes the indispensable and necessary liability of attorneys in all other parts of the empire. The attorney is responsible for the consequences of his actions at least within the limits specified in Articles 569, 574 and 684–689 Art. Zach. Citizen Having in his hands not his own, but someone else’s business of trust, he is undoubtedly obliged to give his principal an account of his actions and the property at his disposal; compulsion to give a report is made easier for the principal by the new form established for claims of this kind in judicial statutes (Ust. Gr. Court. 896–923). The attorney is undoubtedly responsible for important omissions in the choice of his agents and attorneys, if he was authorized to transfer the trust. The principal, by virtue of Art. 2326, is responsible, in relation to third parties, for all actions of the attorney committed within the scope of authority, but not for anything in which the attorney acted arbitrarily, much less for actions that have the nature of a crime or misdemeanor (Art. 2328). By strength 687 and 2235 art. masters (owners) and trustees are generally responsible for harm and losses caused by their servants (customers, officials) and attorneys during the execution of orders, in accordance with the orders or authority given to them. Our law does not mention the significance of the subsequent approval by the principal of the actions and orders of the attorney that did not fully fit the basic authority (ratihabitio); but there is no doubt that such a statement should also be valid among us, at least between the attorney and his principal, but cannot in any way have retroactive effect for third parties and shake the rights they have already acquired as a result of one or another action or omission on the part of the attorney. As an example, we can refer to a fairly common case in our procedural proceedings. The attorney brings an appeal on behalf of his principal, and doubt is raised as to whether his right to bring an appeal extends. This doubt may lead to the recognition of the appeal as invalid: but if, in the meantime, the principal declares to the court that he recognizes and confirms the action of his attorney, then there is no reason to refuse to recognize the action performed by the attorney as legal. However, if such a statement was not made before the expiration of the appeal period, and the opposing party seeks its return, citing lack of authority, then the subsequent statement of the principal, made after the expiration of the period, no longer has a retroactive effect and does not affect the procedural right already acquired by the opponent in court as a result of the initial error or omission. If the attorney has performed, without any hindrance or objection from the court or the other party, such actions that he was not expressly authorized by the power of attorney, and the principal subsequently clearly confirmed these actions before the court or outside the court, then these actions remain in force and should not be destroyed either at the discretion of the court or at the (untimely) direction and motion of the opposing party. This rule is indicated by justice: there is no reason to destroy the judicial action of the attorney when it turns out that it is in agreement with the will of the principal and is recognized by the principal as his own. The opposing side has every right to verify the authority of the enemy in every action. If she did not take advantage of this right in a timely manner, then she cannot have a claim to carry out a judicial action in the interest of the principal and in accordance with his will. Moreover, everywhere, precisely in the form of justice, the principal is recognized as having the right to subsequently approve the actions performed by the attorney, as long as the rights of third parties are not violated. The procedural right of the other party was not violated in any way, even if it had the opportunity to object at one time and did not object. If this right of objection is allowed unlimitedly in any state of affairs, then real injustice can result. An unscrupulous party can prepare a trap for a conscientious one, allowing without protest a whole series of legal actions by its attorney in order to then destroy everything at once. In Zak. Court. Citizen (Article 50) there is such a rule: if someone, not being aware of the obstacle to this or that person being an attorney, entrusted him with a petition in his own case, then this is not blamed on him, and the case, which began according to the papers filed by such an attorney, does not stop, but, if legal obstacles are discovered, the agent is obliged to replace the previous attorney with another. With us, the principal, despite the silence of the law, is responsible to the attorney for all his costs and losses in executing the order; for this is a loss for an attorney in someone else’s business, and it is incongruous with the essence of the assignment for a stranger to carry out someone else’s business at his own expense, acting not on his own, but on someone else’s behalf. The principal is obliged to pay the attorney and for his work, insofar as this is agreed between them or insofar as the attorney’s work, if not assumed to be gratuitous, can be given a fair assessment. The power of attorney is terminated (2330): 1) execution of the order; 2) the expiration of the term, if the power of attorney is valid; but the term does not cease with the expiration of the prescription; 3) death of the principal or attorney, deprivation of all rights of the estate or special rights, recognition of one of the participants as insane, insolvent or missing. According to the new Ordinance. Gr. Court., in the event of the death of an attorney, the proceedings are suspended (255) until he is replaced by a new attorney or the opposing party requests a summons. The statute does not speak about the death of the principal, but when applied to the rule of Art. 251 Set. Court. and 2334 Zak. Citizen, it must be concluded that until the attorney receives news of this, the actions legally committed by him in court remain in force. In the case of the Dolgopolovs and Neplyuev, the Senate recognized that a power of attorney issued to an attorney by several persons appears to be a separate authority from each of them; the attorney under such a power of attorney can take separate actions for one or the other of the principals, and therefore, after the death of one of them, the power of attorney terminates only in relation to the authority given by the deceased (Cass. decision 1881, No. 1; cf. Cass. decision 1881, No. 78). 4. By destroying the power of attorney, which the principal has the right to do whenever he pleases (Constituent Court. Constitution 399, Law Court. Civil. 43). The destruction of a power of attorney in general is an arbitrary act, and the will of the principal is accomplished, and in relation to him personally, it is confirmed by any undoubted sign of a decisive order, such as: a letter, the withdrawal of a deed of trust, the issuance of a new power of attorney to another person, etc. But in order for the destruction of the power of attorney to be considered completely obligatory for the other party, for third parties and for public places, it is necessary to make it known to those who should. Our law does not exclude any kind of action by which this announcement can be made (for example, a notarial statement, etc. cf. Cass. decision 1881, No. 112), but establishes a general form of announcement about the destruction of a power of attorney, which should have a general and unconditional effect on all relations (2331, 2332 art. Leg. Civil; 251 Establishment Gr. Court), namely: a petition for the destruction of a power of attorney is submitted to the judicial place where the attorney is authorized to act, but if the authority is not limited by place, then to any court or chamber. The court makes a decision on the destruction of the power of attorney, reports this to the place where it was made, and publishes it three times either in local provincial gazettes, or in senate announcements and metropolitan gazettes. In any case, the principal may demand, personally or through the police or the provincial government, from the attorney the return of the destroyed letter of trust. 5. Refusal by the attorney, to which the attorney has the right at any time (under responsibility for the consequences of sudden refusal). The law obliges the attorney to notify the principal of his intention (the word used in the law: intention, and not decision, indicates the obligation of timely notification) with the return of the power of attorney and to announce to the public office in which he acted, indicating the place of residence of the principal (2333 Civil Code). The new Constitution speaks about court attorneys. Gr. Court. (252–254): when refusing, the attorney, in the absence of the principal, is obliged to notify him of his refusal so far in advance that the principal has time to replace him; moreover, along with sending the refusal to the out-of-town principal, he is obliged to notify the court about this. And the court assigns the attorney a period of time, until the expiration of which he is not free from his duties. In extreme cases, the chairman of the court may replace such an attorney temporarily, as a juror, by his appointment. Having refused on one side, the attorney has no right to switch sides in the same case. According to the general rule (Article 2334 of the Civil Code), acts performed by an attorney and his other actions under a power of attorney before he receives news of its termination, or before receiving on the spot publication of the destruction, are recognized as legal; and all transactions made after this publication are considered invalid. Based on Art. 2334 Zach. Citizen transactions made by an attorney on behalf of the principal with someone are invalid in two cases, namely when the transaction was concluded after receiving at the attorney’s place of residence a publication about the destruction of the power of attorney, or when, based on the evidence presented, it is established that the persons who entered into the transaction, i.e. the attorney and the person with whom he entered into the transaction were, despite not receiving the publication, aware of the destruction of the power of attorney (Cass. decision 1881, No. 78). The principal, even after issuing a power of attorney, having the full opportunity to revoke it at any time, is not deprived of the full opportunity to act himself on the same subject on which he authorized the attorney to act. Since he has every right to guide the attorney with his instructions and orders, he can himself, in his own person, enter into the matter for which he has authorized the attorney. But by entering into it and taking its place, he thereby, at that moment and in this action, either denies or replaces this authority. Such an action of the principal is in his will, for by issuing the power of attorney, he did not sacrifice anything and did not limit himself in anything; - but it remains the responsibility of the principal both to the attorney and to third parties. Although by issuing a power of attorney, the principal does not, therefore, assume a specific obligation, but nevertheless binds himself with the responsibility associated with a legal action, according to its nature. In this case, by issuing a power of attorney, the principal transfers the credit of his personality to the attorney, and certifies to third parties that any transaction concluded with the attorney will be as firm as if he, the principal, had entered into it with them. And just as in any transaction the unity of the actor and the unity of will are necessarily presupposed, without which the transaction is unthinkable, it is obvious that the principal, if he himself violates this unity by dividing his will in two persons - in his own person and in the person of his attorney - becomes responsible for the consequences of such a split and the resulting misunderstandings and errors. To protect himself from this responsibility, the principal must, whenever he wants to act himself, warn his attorney (who does not have the right to decisively oppose this) and, in appropriate cases, third parties about it in advance. The law does not establish a positive rule in this sense, but it follows from the essence of trust relationships. Only in Prussian law there is such an article that if the principal did not notify the attorney about his negotiations, then the transaction concluded on behalf of his attorney remains in force, even if it was concluded later than the one that the principal himself, directly, concluded on the same subject. There is an article in our laws (542 Art. I Part X Vol.) that raises misunderstandings. This is one of the general articles composed during the compilation of the Code of Laws regarding the placement of particular rules in a well-known system. Since these rules were extracted from decrees issued and decisions adopted at different times and for various reasons in particular cases, there were often inconsistencies and contradictions between individual articles when it was necessary to extract general characteristics from them in order to bring them into the system, and the generalization of these characteristics sometimes came out artificial and incorrect. Thus, according to the System of the Code of Laws, it was assumed, in the presentation of patrimonial rights, having defined the signs of full and incomplete property rights, with its component parts, possession, use and disposal, then to determine the cases in which these components are presented in a form separate from the property right. This is how the VI department was formed. Chapter 2 section 2, book. 2, 1 hour X volume, entitled: on the right of disposal, separate from the right of ownership, in 2 articles, one of which states: the right of disposal can only be separated from the right of ownership, either by law, as a result of the imposition of a prohibition and sequestration, or by power of attorney given from one owner to another. So, the article compares two completely different cases in essence: the authority given under an agreement to dispose of an estate, in the general and very broad sense of an economic disposal, and the recognition as inalienable of an estate that should serve as security for collections, and moreover, both cases are brought under the category of a special legal state in which the right of disposal becomes a special right, separate from the right of ownership. This concept does not apply to any of the cases, especially to the issuance of a power of attorney. The decrees of 1816 and 1817 summarized in the quotation. chosen arbitrarily and do not contain the slightest indication of such a right, and in none of the decrees of previous times can such an indication be found; therefore, there is no reason to admit that our law deliberately establishes such a rule that the principal, having authorized someone to dispose of his property, thereby separates from himself the right of disposal and is therefore deprived of it. There is no such rule in any legislation, and it would contradict in its essence the basic concept of representation by proxy, in which the attorney is only an instrument of the principal, and not an independent owner of the right granted and allocated to him. Meanwhile, on the basis of Article 542, opinions are sometimes expressed that tend to recognize such a right. So, for example, the Moscow Law Society (see. Legal Bulletin, 1871, April) on the basis of such considerations concluded that of two deeds of sale executed on the same day by the owner of the estate and his attorney for the same estate, the latter should remain in force unconditionally, precisely on the basis of Art. 542. Does sub-entrustment mean that the principal has completely eliminated his personal action on the assignment, entrusting it to another person? Cass. Dep. The Senate answers no (1875, N 862). A transfer of entrustment can be considered the final execution of an order only (i.e., depending on the circumstances) when the attorney was authorized solely to carry out (?) it, and not to conduct the case. In the latter case, the attorney, entrusting the trust to another, does not abdicate his responsibility to the principal and retains the right of personal petition in the case. – The court recognized that the attorney, having transferred the trust, is unconditionally responsible to his principal for the actions of the second attorney. But the Senate (Cass. decision 1878, N 242) did not agree with this reasoning. Liability under Article 684 Zach. Citizen imposed for actions committed by a person who did not have the right to do so or was guilty of omission and negligence. So, an attorney who made a transfer of trust by virtue of the permission of the principal, as acting legally, is not subject to liability for the act of the person to whom the transfer was made, unless he himself were guilty of an omission. In this case, the principal not only authorized the transfer of trust in general, but also knew to whom the transfer of trust was made, and even entered into an agreement with this person on the matter. If a person authorized by power of attorney to manage an estate can also be entrusted with the conduct of legal affairs of the principal (389 Constituent Court. Statutes and Laws of Attorneys 1874, § 18), then the right to delegate his authority to another person cannot be taken away from such an attorney, in the event that the right of delegation is granted to him (Cass. decision 1878, N 213). The rules on private attorneys do not at all contain a prohibition for persons who do not combine the qualities required by law to conduct cases in court, to entrust the conduct of these cases to persons who have legal qualities (Cass. decision 1878, No. 56). Cancellation of power of attorney. Art. 2331 decreed to protect the interests of the principal, but he has the right to destroy the power of attorney in any way, and except for those specified in that article (Cass. decision 1875, No. 916). The ritual of destroying a power of attorney (Article 2331) was established to protect the interests of the principal and therefore constitutes the responsibility of the latter, and not the attorney. Even if the attorney himself has abdicated his duty, he must announce this (to the principal?), but is not obliged to submit a petition or make publications (Cass. decision 1873, N 1475). The basis of authority is personal trust; therefore, a power of attorney issued by one of the co-owners to dispose of an undivided estate does not lose its force simply because the estate is subsequently divided (Cass. decision 1875, No. 350). Continuation beyond the deadline and subsequent approval. Despite the expiration of the term of the power of attorney, it was deduced from the circumstances of the case that the attorney, even after the expiration of the term, was managing a common enterprise with the principal, and therefore the receipt issued by him after that period was recognized as binding on the principal (Cass. decision 1878, No. 118). Property left after the death of Gr. Kushelev on his estate, was given to Pleschenko, the former manager of the same estate, for safekeeping. He began to demand remuneration for storage, although he continued to manage the estate even after Kushelev’s death; At the same time, he referred to the fact that since the death of Kushelev, the power of attorney given to him ceased. On the other hand, it was objected that the management of the estate is based on a personal contract, but in essence the relationship, the manager does not have the right to abandon the estate even after the death of the owner, and remains in his duties until a new order. According to this, the decision was made 2 General. Collection Sep. April 4, 1875 Regardless of the formal authority of the attorney to make debts in the name of the principal, there are cases when the actions of the administrator of the estate, although not positively indicated in the power of attorney, can be recognized as binding on the owner, namely, when they were involuntary, but were approved with the consent or order of the owner and did not tend to harm him (Cass. decision. 1873, 1396). In the Bulgakov case (Cass. decision 1876, No. 484), the estate manager entered into an agreement with a third party, on the basis of a letter trusting the management, not attested anywhere. Subsequently, the principal, without arguing against the authenticity of the act, referred to its informality and thereby proved the invalidity of the concluded condition. The Senate decided that the rules on the procedure for executing powers of attorney make only the power of attorney for representation in such actions, which are carried out with the assistance of government authorities, dependent on compliance with it; but they do not exclude the possibility of representation on the basis of such acts that were committed in deviation from the established procedure, and the law does not express a general provision in the sense that acts of this kind are recognized as invalid and actions performed on them are not obligatory for the principals. In all disputes of this kind, the question of the right of the attorney is resolved by the court not on the basis of only a formal power of attorney, but on the basis of all the evidence presented, from which it can be concluded that in this case the attorney was placed, by the will of his principal, or with his knowledge, in a position that gave a third party a reason (?) to conclude the existence of authority to perform a certain type of action. In the present case, the court must also be guided by rule 458 of Art. Est. Gr. Court, according to which domestic acts recognized from those against whom they are presented have force equal to acts committed in the established manner. A decision in which a transaction is recognized as binding on the principal even without a formal power of attorney, based on certification that it was made with the knowledge of the principal and approved by him (Cass. decision 1876, No. 499). Relationship between the parties. Responsibility of the principal. It is incompatible with the essence of the power of attorney to limit the will of the principal regarding the election of several authorized persons in one case and the termination of this power of attorney, and to limit the will of the attorney regarding the refusal of the accepted authority. This is what Cass thinks. decide 1867, N 421, but the accuracy of this reasoning is doubtful. It is unlikely that the essence of the power of attorney includes the right to elect several attorneys, and Art. 2335. it only says that whoever has chosen several of them must give each one a special act of power of attorney. Then, if one attorney has already been elected, then it is natural and consistent with the law that he protects the freedom and unity of his actions in one case with such a condition that another attorney should not act together with him. The right of the principal will destroy the power of attorney, although it cannot be limited, for he is the master of his personal trust in the authorized person; but it can hardly be recognized that the attorney is the unconditional master in his will to continue or leave compulsory service. It is natural and not at all contrary to the law that the principal protects himself from arbitrary refusal by the attorney. And 2330 art. it only says that the power of attorney is terminated by the refusal of the attorney, but does not in any way eliminate the responsibility of the attorney for the consequences of an arbitrary refusal. However, the decision of 1868, No. 305, explains that the principal can, by a special agreement, limit himself to the right to destroy the power of attorney. In dec. Sep. 1867 (2 Sat. Sen. decision II, No. 358) it was recognized that the principal had the right, without any liability to the attorney, to destroy the power of attorney for the petition in the case when it turned out that the attorney did not take measures to protect the principal and, without warning him, left the city where the case was carried out (the same Cass. decision 1874, No. 93). In dec. 1873, N 722 The Senate recognizes that an attorney whose power of attorney, contrary to the condition, is destroyed by the principal, is not deprived of the right to seek damages or the prescribed penalty; but there is no reason to recognize the destruction of the power of attorney as an illegal act, and to award the attorney, under the contract, the amount that he should have received, according to the terms of the contract, if his power of attorney had remained in force (Cass. decision 1873, No. 772). The principal, having, according to the condition, allowed his attorney to handle the case, himself entered into the proceedings and listened to the decision, fearing that the attorney would miss the short remaining period. This action of the principal stemmed from the right granted to everyone to take personal part in his own business, and therefore was not recognized as a violation of the power of attorney and the conditions under which a penalty was imposed for the destruction of the power of attorney (Sb. Sen. decision I, No. 533). Responsibility of the attorney. Is the attorney responsible to his principal for those actions that, although committed within the limits of the power of attorney, caused, through the attorney’s omission, harm to the principal? They want to prove that they are not responding; Referring to Article 574, they argue that the right to recover damages is given to the victim only in the case when they were caused by an arbitrary action, and since the actions of the attorney within the limits of the power of attorney are not arbitrary, then there is no claim for damages. This reasoning is incorrect, because the issue is not resolved by the concept of arbitrariness. In any contractual relationship, one party is responsible to the other for actions associated with an omission or violation, which resulted in a loss to the other party. The attorney undertakes to act in the interests of the principal, look after them and protect them. If in this case he committed an omission to the detriment of the principal and was not forced to do so by circumstances beyond his control (Article 684), then he is obliged to answer for the harm and loss to his principal by virtue of the general rule of Art. 644 and 684. In this sense, Kass took place. decide 1871, N 1125. It is immediately explained that 2326 Art. refers only to the relationship of the attorney to third parties, and not to the principal. The attorney, taking over the management of the principal's affairs, is obliged to return the money received from the principal or at his expense that was not used by him in the interests of the principal, and to submit, at the request of the principal, a report in monetary amounts (Cass. decision 1884, No. 71; cf. ibid., No. 92). The right to demand an account may be the subject of a civil action and decision (Cass. decision 1874, N 900). The attorney, representing the principal, thereby undertakes to do for him, and transfer the property received for him to him with an account; therefore, by holding this property, he turns out to be the illegal owner of it and can be forced to return or compensate, even if this was not mentioned in the deed of power (Cass. decision 1876, No. 456). A claim for damages was brought against the attorney for the fact that by failing to submit for collection the loan letter entrusted to him, the loan letter was allowed to expire. This claim was considered premature, since the loan letter was not presented for collection at all, and when collecting, the debtor may not refer to prescription (Cass. decision 1872, No. 1041). The Vologda Public Bank, having a claim on Vargina, entrusted Samarin to listen to the decision of the chamber, express pleasure or displeasure, and if the matter did not end in the bank’s favor, file an appeal. According to the decision of the chamber, the claim was declared destroyed due to limitation. Samarin declared satisfaction with the decision and did not file an appeal, making the excuse that he did not find any reason to refute the decision. For this, the bank collected from him the entire amount of the claim, 1,700 rubles. and legal costs. It is recognized that, by law, an attorney represents the principal in court, therefore, by general assumption, he is authorized to perform judicial actions in the interest of the principal, but at his own discretion, in accordance with his interest. The power of attorney is written in general terms, and if the principal wished to limit the discretion of the attorney, then this should have been stated clearly. Therefore, the claim was denied (Mn. State Council, 1877). Liability to third parties. At the request of the merchant, the police began to seize his goods, which were shown to have been seized from third parties, and the arrest was carried out according to the instructions of the servant appointed by that merchant. Subsequently, when it turned out that the arrest was made incorrectly and a reverse claim for damages arose, the merchant dissuaded himself from responsibility for the actions of the servant who did not have a power of attorney, but he was found responsible by force of Art. 687. Zach. Citizen (2 Sat. Sen. decision II, N 374). Ryzhakova, having given Gruzintsev a power of attorney to pledge her house, undertook not to destroy it for six years, and when Gruzintsev proceeded to pledge it, she turned to the chamber that executed the mortgage with a request to destroy the power of attorney; but the chamber, bearing in mind that Ryzhakova herself embarrassed herself in destroying the power of attorney for six years, left it without attention, and the mortgage was completed before the publication about the destruction of the power of attorney appeared. State Sov. (1874) upheld the mortgage under the force of Art. 2334. Zach. Citizens, recognizing that this rule (on the invalidity of transactions of an attorney concluded after receiving at his place of residence a publication about the destruction of a power of attorney) was established in view of the need to protect the right of third parties who entered into a transaction (2 Sat. Sen. Resolution V, No. 1260). The obligation to perform under a loan agreement concluded under a power of attorney lies with the principal, and not with the attorney, even if he also has a trading power of attorney (Cass. decision 1868, No. 884). Kulyabko-Koretsky's wife, by his power of attorney, made a deed of sale for the sale of his estate, although he, before making the deed of sale, sent her a new power of attorney with the destruction of the old one, and notified her of this in a letter. Therefore, he asked to recognize the fortress she had completed as invalid. He was denied this because a private notice could not in this case replace the publication of the destruction of the power of attorney, therefore the rights acquired on the basis of the previous power of attorney by third parties must remain inviolable. The word “news” in Art. 2334 The Senate means in the sense of determining the judicial place for the destruction of the power of attorney (1 General Meeting, September 3, 1876). § 59. Special types of powers of attorney and instructions. – Power of attorney to represent the estate as collateral for contracts. – Trade and credit power of attorney. – Power of attorney to go to customs. - Attorney at law. – Instructions for commission, forwarding and brokerage matters. – Stock brokers, adjusters, experts. – Power of attorney for estate management. With every power of attorney, except for representation, there is also an assignment; but every assignment; but each order has its own economic significance and can contain special legal relations between the parties, so that, in other cases, an order by means of a power of attorney is represented only by the form in which the parties clothe their transaction, and therefore in other cases, when determining the relationship, the essence of this transaction, and not the power of attorney, receives predominant importance. So, for example, I can give a power of attorney in the sense that my attorney Ivan must lend, for such and such a percentage, such and such an amount to Peter, who has to use this money for my business. In this case, I enter into an obligatory relationship with Ivan when, on my instructions, he lends money to Peter, and with Peter, since his debt to Ivan essentially becomes my debt. I can give Ivan power of attorney in the sense that he will pay the money owed to me for me to Peter, to whom I owe. In this case, Ivan, if he accepts my order, thereby recognizes his duty, and Peter, in addition to the right to me, acquires the right to demand satisfaction from Ivan. – So, in many cases, when a power of attorney contains the establishment or recognition of a special obligation connected with the interest of the other party, the destruction of the power of attorney terminates only the personal authority, but may not terminate those obligatory relations that, although they were connected with the authority, still remain in force regardless of it. In our legislation, there is one very common type of power of attorney, which, under the form of authority, contains an independent agreement of a special nature. This is a power of attorney for the presentation of property as collateral for government contracts and supplies (Articles 69–72 Pol. Treasury. Sub.). The owner of the property allows another person to represent it as collateral for his obligations with the treasury, therefore, he exposes his property to risk in someone else’s enterprise (for the property can be sold due to the insolvency of the contractor); for this risk, a certain premium is usually negotiated in favor of the owner (as a percentage of the value of the property), according to a special agreement with the mortgagor (the so-called rental money). An agreement of this kind cedes the right to dispose of property, and in this only case the power of attorney fits the definition of Article 542, i.e. establishes the separation of the right of disposal from the right of ownership; but this transaction does not qualify as a lease, because the subject of the lease is the use of the economic essence of the property, and not the right of disposal or alienation. Our law specifies for it the general form of a power of attorney, at the same time depriving the principal of any essential authority, i.e. the right to cancel it at any time. The actions of the attorney oblige, in general, the principal himself personally; on the contrary, here the presentation of someone else’s property as collateral does not oblige the principal, i.e. the owner of the property personally, and binds only the property entrusted to him with responsibility for the proper execution of the contract with the treasury; therefore, it obliges the attorney personally in relation to the principal, to whom he is responsible for the safety of the collateral. So, a power of attorney of this kind can, on a general basis, be destroyed by the principal only until the attorney has entered into relations with a third party with it; and once it has been presented for bidding for a contract, the power of attorney can no longer be destroyed either by the principal himself or by his heir before the period specified in it. Each such power of attorney must be given for a period of time; Moreover, the power of attorney may limit for what specific item (for which contract, for which department, etc.) the pledge is trusted to be used. All these restrictions, especially the term, serve to protect the principal, since, according to the law, the government place accepts someone else’s pledge only within the period specified in the power of attorney, and after the expiration of this period does not have the right to withhold the pledge unless a recovery has arisen against the contractor; equally, in all other respects, he is obliged to strictly adhere to the conditions specified in the power of attorney. A similar kind of power of attorney is issued in the form of a letter, when borrowing against the security of shares and interest-bearing securities between private individuals, and contains the authority for the lender to dispose, in the event of failure to pay on time, the securities entrusted to him, at his discretion, in his favor. Art. 2168. Special rules have been established for a letter of credit or a trade power of attorney for the conduct of trade affairs or transactions in the account and name of the principal, including contracts and farm-outs (Constitution of Trade. 39–48). A power of attorney of this kind can be either private - to send a certain trade order at a time, or general - to send for a certain period of time (for a year, two or three years) the principal’s trade affairs in general and enter into all related relations, including “sign a bill for payment, give, take and protest, enter into courts and make peace according to the circumstances of the case.” Both can be unlimited, complete, in general terms, and without defining conditions, or limited. In 46 and 47 Art. it is indicated which items must be indicated in the power of attorney, and 50 Art. states that a power of attorney given without compliance with the form or in vague terms is invalid. Such a rule is excessively harsh if it means exact and literal compliance with the form that was attached to Art. 725 and 726 Set. Bargain. ed. 1857, and quite outdated: in this case, it would also contradict the possibility of changing the content and conditions of the agreement assumed by other articles (45, 52). However, Article 50, in its literal meaning, does not agree with the decree of 1744, from which it is extracted: it only orders, in order to avoid misunderstandings, not to accept powers of attorney written “on scraps of paper, in an inappropriate style and unclear.” Credit and trade power of attorney. Under an unlimited credit power of attorney, promissory notes were issued for RUB 17,000. The principal refused to pay, citing the fact that the creditors had not made any inscriptions on the power of attorney, and that the loan made exceeded the amount of his trading rights in the capital of 2 guilds, 16,000 rubles. These objections were rejected: loan restrictions for 2 guilds per 15 thousand, according to 79 art. Est. Bargain. ed. 1857 (replaced by the Regulations on Duties) extends only to the declaration of goods at customs, and the custom of signing loans by proxy, within the meaning of Art. 725. (corresponding to Article 43 of the Constitution of Trade, ed. 1893), concerns only a private trading power of attorney (decision 7 Dep. Sep. 1850, in the Finikov case). – The authority to lend, expressed in a power of attorney, gives the right to issue all kinds of borrowed obligations, including bills of exchange for money and goods, on behalf of the principal. Dec. in the Sievers case - J. M. Yu. 1865, No. 10. When issuing bills of exchange under a trade power of attorney, the person giving money or goods against such a bill does not have a direct obligation to write on the power of attorney how much was issued to them, unless this is stated in the power of attorney, and the principal who has not made such a reservation does not have the right to refuse payment on the bill of exchange not noted on the power of attorney. Cass. decide 1872, N 282. The obligation to write on the power of attorney the amount of loans made under it applies, according to app. to 725 art. Est. Bargain. (corresponding to Art. 43 ed. 1893) only to a private power of attorney, and not to a full and general one (1 General Collection. September 17, 1876, in the Petlin case). To Cass. decide 1877, N 161 The Senate refuted the reasoning of the chamber that, by law, the right to issue bills of exchange must be expressly expressed in a trading power of attorney. There is no such law, and the right to issue bills of exchange can be derived from the general meaning of a power of attorney. Wed. 1877, N 215. Powers of attorney given for the conduct of customs proceedings are included in a special category (Constitution of Trade. 54–62). They contain an order that requires close knowledge of all the formalities associated with the declaration at customs of goods accepted or released, with their acceptance and duty clearance; The authority also includes handling customs processes that have a special form of production. To accept such orders, trade rights are not required, but only general legal capacity is required: such attorneys can also be foreigners. Only the principals must have the rights to trade abroad, renewable annually, therefore powers of this kind are given for a year and can then be renewed. Agents in cases of this kind are usually specially engaged or commission agents, who are allowed to carry out business only upon presentation of a power of attorney to the customs office and its entry in a special book. Moreover, the customs authorities are given supervision over the activities of such commission agents: it is expressed in the fact that the attorney, if he is found in deliberate non-compliance with customs regulations, is deprived, temporarily or permanently, of the right to travel, by decision of the customs duties department, approved by the council of the Minister of Finance (Article 58). Est. Customs (ed. 1892, art. 672–683) suggest the establishment of special commissioners at customs from the owners of manufactories, factories and plants to monitor goods or a certain type of goods brought to customs. Such attorneys also have the right to use other people in their place, by proxy. Under the new judicial institutions, the institution of sworn attorneys was also formed, to whom the law intended to give the correct organization, with the immediate definition of duties and responsibilities for representing their clients in court (Ukrainian Court. Constitution, art. 383–406). Sworn attorneys are assigned to the court chamber and can handle cases throughout its entire district, and then continue this in all courts until the completion of the cases started. As long as their number is not recognized as completely sufficient in court, they do not have a monopoly; but everyone is free to choose a confidant from outsiders. Several attorneys may be entrusted with the same case (it is assumed that they establish a division of labor among themselves). A power of attorney can be given either to conduct a case in its entirety until the end or in one instance, or to perform one action. The right of sub-assignment, apparently, is not assumed, because the law distinguishes only one case: when an attorney must go to another city to file a case, then his other affairs during his absence must be transferred, with the consent of the principals, to another sworn attorney (consent in this case must be distinguished from direct authority: it can be silent). They can be eliminated by the principal and themselves have the right to refuse the assignment if they accepted the work by agreement, and not by appointment from the chairman or from their council. They cannot act in court against immediate relatives (401); cannot represent both parties at the same time or switch from one side to the other; cannot buy, or otherwise, directly or indirectly, acquire the rights of their principals in litigation. They must not divulge the secrets of their clients, not only during the process, but outside it. For their guilt and important omissions (missing deadlines, etc.), they are liable to the principals for losses, moreover, depriving them of the right to remuneration. The contract for hiring a sworn attorney is supposed to be paid. The amount of remuneration is determined by written terms; and when there is no such condition - at a rate established by the Minister of Justice for three years for each district. Attorney at trial. Within the meaning of paragraph 10, paragraph 45 and paragraph 11, paragraph 246 of Art. Est. Gr. Court., persons who have already been brought to trial on charges of crimes entailing the deprivation of all rights of state or all special rights, until a verdict of acquittal or sentencing to a lesser punishment follows, cannot be attorneys for judicial affairs, as well as persons left by the court in suspicion of crimes depriving all special rights and benefits, or for whom court verdicts on charges of this kind did not take place after the manifesto. Cass. decide 1876, N 406. Only a literate person can be an attorney in court; but the law does not prohibit giving a power of attorney to an illiterate person to petition a case, so long as he chooses a literate person to conduct the case in court. Cass. decide 1870, N 900. There may be illiterate attorneys in the magistrates' court. N 990. 48 Art. Est. Gr. The court, which expands the right of an attorney in magistrates' courts, does not prevent the conclusion of a special agreement by which this right of the attorney may be limited. Cass. decide 1874, N 507. The issuance of a power of attorney to conduct business, being dependent on personal trust, cannot be considered an obligation under the condition. Cass. decide 1871, N 36. The right of the attorney to end matters peacefully, according to Art. 48. Est. Gr. Court., refers only to proceedings in the magistrate’s court and does not extend to settlement transactions concluded not during the magistrate’s trial, but outside the court. Cass. decide 1875, No. 581. – 1873, No. 773. In the latter case, the plaintiff himself brought a claim, and the defendant referred to a settlement agreement with the plaintiff’s attorney, concluded two days before the filing of the claim. The right of an attorney in a magistrate’s court to make peace with the enemy extends only to the controversial state of the case, but does not allow the attorney to make peace with the enemy even after a decision has been made in favor of the principal; for the decision establishes a new right for the parties, the assignment of which requires a special authority (Cass. decision. April 29, 1871, Chervonetsky case). The right to provide a decision of the case according to the conscience of the magistrate, by virtue of Article 30, concluding a concession, by agreement with the opposing party, of the right to proceedings under the law, is not assumed in itself in the power of attorney, but must be specifically expressed. Cass. decide 1871, N 446; 1872, No. 515. The right of the attorney to unconditionally abandon the claim and terminate the case is not assumed in itself, but must be expressed in a power of attorney, because an action of this kind involves a concession of the right declared before the court. Since the execution of a decision requires a special petition and indication of methods, and the acceptance of property and valuables into one’s account presupposes a special trust, it would be necessary to conclude that for this, the general authority given to the attorney to conduct a controversial case and to petition for it before the decision is not enough, but for this purpose a special authority is required. In practice, however, it is possible for the attorney leading the case to petition for the execution of the decision. A confession made by an attorney at trial binds the principal. In this case there was recognition of payment. Dec. in J. M. Yu. 1861, No. 5. Rule 400 Art. Institution Court. Est. the prohibition of attorneys from acquiring rights in litigation from their clients applies only to sworn attorneys. Cass. decide 1873, N 977; 1877, N 38. The refusal of the attorney in a court case can follow in any state of the case, as long as the attorney notifies the principal of his refusal so far in advance that he can appear before the deadline or find another attorney. Cass. decide 1867, N 480. In our legislation, this group of contracts should also include instructions, without a special act of power of attorney, given to persons of a certain rank or title, on matters requiring special skill and experience, and to that title assigned. Transactions of this kind have a commercial property, which is why the regulations related to them are placed in trade statutes. This includes so-called commission, forwarding and brokerage matters (Const. Court. Trade. 43). Moreover, the execution of various kinds of orders, with the acceptance of mediation, is a special subject of activity of the so-called commission offices, established on a commercial basis by private individuals for mediation in buying and selling, for borrowing capital, renting houses and finding people in official positions for private individuals. These offices are established with the permission of the Minister of Internal Affairs and are required to make a certain deposit to ensure their viability (Constitution of Trade, appendix to note to Article 53). Commission cases are sent in the trading environment - by stockbrokers, goffbrokers and shipbrokers. Their position is to mediate the conclusion of trades, contracts and conditions (Constitution of Trade. 628). They are elected from the merchant class or from the burghers and confirmed in rank by the subject authority, taking an oath (the mediation of unsworn brokers is not allowed by law - Code of Instructions. 1278, 1279). They themselves should not engage in trade on their own behalf and at their own expense, but should serve only as intermediaries on the orders or instructions of traders, bringing the seller to the buyer or concluding a trade for them themselves. They have a special book in which they record concluded transactions, and then each party is given a so-called broker's note containing all the details of the transaction. This note is drawn up in two samples, signed by both parties. Compliance with the form in it is essential, and in this case it receives indisputable force for the parties; however, in the absence of the customer, his written order, in conjunction with an article in the brokerage book, is obligatory for him. For their efforts they receive court money in the legal amount, 1/2% on each side of the value of the transaction; but this payment is not received by them immediately, but at the end of the year, according to an account, which, when drawing up an extract from the cord book, is not subject to refutation; but the right to demand this payment is retained only for 12 months (in Odessa 13) from the time the transaction was completed. Court bills, in case of insolvency of debtors, are not included in the competition and are satisfied with preference (Constitution of Trade. 591 et seq.). Shipbrokers serve as intermediaries between shipowners and loaders for cargo and freight transactions, finding, by order, cargo for ships and ships for cargo, and, upon request, certify the reliability of the vessel, announce fairly existing freight prices and undertake to protect both parties from losses and errors. The courtage is also assigned to them at a legal rate, subject, however, to change with the consent of the merchants and with the approval of the Minister of Finance (Constitution of Trade 592, appendix I, art. 163–179). Stock brokers are also engaged in the public sale of imported and exported goods in whole lots at some exchanges, according to written orders from traders, which indicate the extreme selling price. This sale is carried out according to the rules defined by law; a trade broker's list is accepted by law as irrefutable evidence and is entered into the broker's book, from which the broker issues notes to the parties signed by him, and for his work he receives a court of 1/2% on each side (Constitution of Trade, art. 592, appendix I, art. 144–184). This is a sale at the discretion of the owners of the goods; but when goods are subject to sale not only at the request of the owners, but out of necessity, or by force of law (for example, by the customs department; confiscated, declared at a low price, ceded in lieu of duties, etc., or damaged and spoiled, or sold by court verdict), exchange auctioneers serve as intermediaries in the sale, by order of the customs department, or on behalf of private individuals. The sale is carried out according to legal rules, with a note in the cord book of the auctioneer, who is assigned a 2% cut of the price, collected solely from the buyer, immediately upon sale (Constitution of Trade, Art. 592, App. I, Art. 121–141; App. IV, Art. 67). Some transactions on the stock exchange cannot be carried out without the assistance of brokers (Law of 1893 on the supervision of stock exchanges). When determining an accident or maritime losses caused by accidents of navigation to a ship, goods or cargo, difficult and difficult calculations are required, legally (Constitution of Trade 391 et seq.), requiring special knowledge and personal reliability. Therefore, for this operation, special sworn positions have been established at the ports, the so-called adjusters (assessors of harm and losses). The dispatcher proceeds to determine and calculate the accident in no other way than on instructions from the shipowner, his correspondent or the shipowner. For his work, his law gives him a deadline of no more than six weeks. It ends with the drawing up of the so-called dispasha, which he hands over with accounts, according to the number of participants in the accident, to the one from whom the order was given. This act is given full faith by law not only within, but also outside the state, and is binding on participants in the accident. For drawing up the statement, a legal fee is also due as a percentage of the declared price of the ship and cargo. In addition, the dispatcher may be given commissions for the sale of ships and salvage goods, as well as for the preservation or departure of the rescued (Constitution of Trade, Art. 592, Appendix I, Art. 180–198). The category of contractual relations of the same nature can also include instructions given to knowledgeable people in court, for the election of the most litigants, and to experts of various kinds (Ust. Gr. Court. 518, 529, 532, 860, 862). There are contracts that would be more correct to be placed in a series of orders rather than classified as personal hire, since personal trust predominates in them and there is a concept of representation. Such are, for example, contracts for the hiring of a shipbuilder, who is given the management of a ship on behalf of the owner, for the hiring of a clerk, etc. We do not talk here about contracts of this kind, since in the system of our law they are classified as personal hiring (see above). Our law speaks especially about a power of attorney for the management of an estate, although in practice questions often arise about the scope of rights belonging to the manager to represent his principal in matters related to the estate. Before the liberation of the peasants, our law contained many decrees that limited the authority of an outsider to manage landowners’ estates and the serfs settled on them. These restrictions were intended to protect the peasants from the arbitrariness and violence of the managers and to prevent the indirect transfer of serfdom and landownership, under the guise of a power of attorney, to people who, due to their status, did not have the right to own the peasants. All these restrictions (Zak. Civil., 2298–2305) have been abolished since 1861. The contract of agency should also include the relationship arising from the authorization inscription on the bill of exchange, by virtue of which the bill of exchange is not transferred into ownership, but only for the purpose of receiving money into the account of the transmitter himself (Article 17 of the bill of exchange). Commission. The irresponsible and unaccountable execution of a commercial enterprise provided to another person does not belong to commission agreements (2 Coll. Sen. Resolution V, No. 1205). When a commission agent participates in a transaction on behalf of a third party, the absence of a formal power of attorney does not invalidate the concluded transaction, unless the instruction is in doubt. But the other party entering into the contract is obliged to make sure both of the authority of the intermediary and that the conditions proposed by him are approved by the principal, because the actions of the intermediary may turn out to be arbitrary, and therefore unnecessary for the principal. In this case, an order was given to sell flaxseed. The principal demanded an indispensable condition - the immediate sending of the deposit, and the intermediary arbitrarily granted a deferment in the payment of this deposit. Therefore, at the request of the witness, the transaction was declared invalid (2 Sat. Sen. decision V, No. 1274). The type of order or commission constitutes a guarantee inscription when transferring bills of exchange only for collection on them. Such a transfer, of course, does not involve a transfer of ownership and without receiving currency. Therefore, the law requires that the full endorsements indicate that payment on the bill has been received, offset, or deposited (Articles 17, 19 and 20 of the Constitution of the Bill, ed. 1893). On this basis, in the Zefirova case (2nd Sat. Sen. Resolution V, No. 1231), the endorsement on the bill of exchange was not recognized as complete, which states: I transfer the right to collect and receive money under the bill of exchange into full ownership of such and such. The inscription is recognized as a guarantee, and therefore the right to receive under the inscription is limited only to those limits within which the transmitter himself had the right to demand satisfaction, and the payer received the right to bring against the holder of the inscription the objection (under a special condition) that he had against the transmitter. A clerk is an official person entrusted with the conduct of trading and the management of trade affairs. A commission agent authorized to execute commission orders and assignments does not fit this concept. In this case, the case was about a commission agent, who was entrusted by a Moscow bank in Kozlov to accept grain goods for commission, for sending, and issuing loans against them. Therefore, it is recognized that the claim against such a commission agent does not fit within the period of Article 713. Est. Bargain. (corresponding to Article 31 of the Constitution of Trade, edition of 1893). Dec. 2 General Collection Sep. February 16, 1879, in the village of Matskevich. – The commission agent, executing instructions, can only be responsible for losses from incorrect actions and abuse of authority; but is not responsible at all for the loss incurred by the surety from the operation carried out by the commission agent. It is necessary to prove that the loss occurred precisely through the fault of the commission agent. The Moscow Industrial Bank authorized Matskevich to take grain goods on commission to send from Kozlov, and issue loans against them. The bank argued that Matskevich acted in disagreement with either the charter or the instructions, because he issued loans not at 2/3 of the cost of goods, as it should have been, but at the full cost. So, upon the arrival of the goods at their destination, the senders did not redeem their goods by paying the loan and freight charges, so the goods remaining in the hands of the bank, in the amount of 41,000 rubles, were sold by the bank for only 31,000. The bank collected the difference - 10 thousand from its commission agent. His claim was denied because he did not calculate how many and for what cargoes loans were issued in excess, and did not prove how much loss was incurred on the sale of these particular cargoes. The commission agent responds to his trustee when he acts in his affairs inconsistently with the order, for example, when he gives out of his amount to those to whom he should not have given out. In this regard, the case between Tetyukov and Trapeznikov is noteworthy (2nd General Meeting, September 9, 1879). The gold miner Tetyukov sent the commission agent, Trapeznikov trading house, allocations to the treasury for gold, instructing them to sell them and make payments from the money, at his expense, to specified persons. Meanwhile, due to third-party collection, the bailiff sent Trapeznikov a summons to seize Tetyukov’s capital, as a result of which, at the request of the bailiff, Trapeznikov gave him a sum of money; and subsequently justified himself by saying that he was forced to do so by the government’s demand (684 Art. Zak. Civil.). It is recognized that the bailiff’s demand, according to the law, had only conditional meaning, i.e. obliged Trapeznikov to withhold the money, but did not oblige him to transfer it to satisfy the collection. Therefore, the commission agent is guilty of violating his authority. For the difference between a commission agent and a clerk, see Cass. decide 1876, N 43. Chapter eight. Camaraderie and community § 60. The essence of the community agreement. – Forms of Roman law and new legislations. – Complete and incomplete communication. – Participation and ratio of members. - Responsibility. – The effect of death and insolvency. – Exit of members. – Termination. – The main forms of the new law. – Full partnership. – Attitude of members. – Profit sharing. - Partnership of faith. – Closed partnership. In a community or partnership agreement, several persons combine their property, knowledge, labor and efforts into one body for one common production and to achieve a common goal for the property. Community (associatio) constitutes a separate group of contracts, as opposed to contracts based on the exchange of values. In an exchange agreement (purchase, rental, etc.), the parties have different goals in mind, which correspond to different execution on both sides. On the contrary, in a community the parties have the same goal in mind, using the same or different means to achieve it. In an exchange contract, the interests of both parties are opposite: the more profitable the transaction for one party, the less profitable for the other; What is a loss for one is a benefit for another. On the contrary, in the essence of community there is a unity of interests between the parties: what is beneficial for one is beneficial for the other, and everyone, working for himself, also works for the other. – The first half of contract law, namely the exchange form, reached perfect development in Roman law; on the contrary, the form of community belongs primarily to the new world; Recently, the use of this form in our legal life has become especially widespread, with the development of industry and all its newest tools; but the full development of this form in the legal sense is far from complete and belongs to the future. In Roman law, there were two forms of legal unions for a common purpose: a corporate institution (universitas) and a society (societas). The difference between them was significant. In the first case, the union was given an ideal or legal personality, which was considered the subject of rights and obligations, regardless of the individual individuals who made up the corporation, so that its activities were governed not by the collective will of the members, but by an established governing body, and no one could consider its property to be theirs in any share. On the contrary, in the latter case, the union consists of nothing more than individual members, without having a legal personality, and its activities are governed by nothing other than the collective will of the members, between whom there is communication (communio) over the property that constitutes their total belonging to the society. In the latest legislation there is no such sharp distinction, and the types of private unions in the new world are extremely diverse, so that there can be private societies with the properties of a corporation and with a corporate structure, as well as corporations with the properties of a private society, i.e. with direct participation of members in property and management. The doctrine of communities and corporations belongs, in large part, to the field of state or public law. We will talk about them here only insofar as they fall within the scope of civil contractual relations. Communication of interests between members of society can be more or less complete. Usually it is limited to the special purpose of activity and acquisition for which the company was formed and the property was intended. This is a union of complete communication. Roman law allowed for complete communion of property (societas omnium bonorum, soc. universalis), when the members of the union entered into it, so to speak, with their whole being, with all their property, present and future; in such a union, each of the members would be represented as the owner of a whole mass of property, with full responsibility. German and French legislation allows for something similar in the transfer of property between spouses (see Part 2 of the course, § 14); but in general, the latest legislation does not allow the Roman form of full communication by contract. Prussian law allows only full communication in what constitutes the acquisition or profit of society (soc. quaestus, s. lucri, soc. quaestuaria); French law (and Austrian) allows the complete combination of only existing, but not future (eg acquired by inheritance) property. Agreements of this kind require, in any case, written form and detailed presentation. In incomplete communication, members unite for a specific and exclusive purpose (soc. specialis, particularis, singularis, soc. particuliêre). Each member of society enters into it with his own contribution. Not only the shares of the contribution may be unequal, but also its objects are not the same; property of all kinds, monetary contributions (patrimonium), participation through personal labor and art (operae). In case of uncertainty and confusion, the shares are assumed to be equal - according to Roman law; but new legislation, not content with this general rule, gives indications of particular cases. Thus, for example, French law, like Prussian law, considers personal labor (apport en industrie) to be of equal value to the smallest monetary contribution. In proportion to the contribution, participation in profits may be uneven between members, just as responsibility for losses is uneven. In any case, the damage falls primarily on monetary or material deposits. It is considered unlawful for the company's benefits to be the exclusive property of one or some members (soc. leonina), or for some members to exclude their share of liability for losses. – The share of each member in the profits constitutes his property, which he has the right to dispose of and which passes to his heirs; but profit does not, in itself, have a certain value, like rent or interest on capital: whoever receives a certain payment or interest from society is not a member of society, but its creditor. Essentially the relationship, each of the members in society has an equal right to participate in the management of the business, which is conducted jointly on mutual trust; Moreover, everyone is obliged to observe the care for affairs that is generally characteristic of an owner regarding his property. (Consequently, the mutual responsibility of members of society is not as strict as in trusting relationships with third parties, in which the care of a good master is required - bonus paterfamilias.) When, in case of disagreement, a decision is required, it is determined, of course, by the majority, but the score of the majority in society is more natural to guess by votes than by the amount of contribution. Without a doubt, other relations may be established by special terms of the contract. When, due to the nature of the matter, concentration of management is necessary, it can be entrusted to one of the members, who acts as an authorized person and can receive special remuneration for this. Responsibility under contracts with third parties falls on all members of society. The question of how this responsibility is distributed is important. French law recognizes the joint liability of members only in trading companies, and in non-trading companies everyone is responsible to each other in proportion to their share (pars virilis, part virile), and to third parties equally; and by Prussian law they are held jointly liable (all for one and one for all) under contracts concluded on behalf of all participants. Since the society does not have a legal personality, its property fund has legal significance inseparably from the personality of its members. It follows that the personal creditors of each of the partners in the company are not deprived of the opportunity to enter into competition with the creditors of the whole company to satisfy their claims. In Roman law, mutual personal trust of all members was assumed to be such an essential condition of each society that with the departure or death of at least one member, the existence of the society itself ceased: even if a condition contrary to this was placed in the contract, the remaining members still had to, after the departure of one, enter into a new union among themselves. In Roman law, personal communication was recognized as the main basis of a union; In our country, on the contrary, the most important importance is attached to communication in property, in capital, which constitutes the social fund. So, the new legislation significantly weakens the severity of the Roman rule. French law allows for the continuation of the society upon the death of one of the members, even with the adoption of an heir. Austrian law presupposes this condition in all cases; Prussian law allows for the continuation of the personality of the deceased in the person of heirs. The failure of one of the participants leads to the dissolution of the union; it is impossible to demand from the remaining members that they remain in alliance with a person who has lost their trust. No contract can be indissoluble or eternal, therefore it is impossible to force a member to remain in the society forever. Its exit is possible; but when the community agreement was concluded for a period or until the completion of a certain enterprise, the exit of one of the members seems to be a violation of the agreement, and therefore the exit must be preceded by a timely declaration of intention to leave the society. Then it depends on the remaining members - either to dissolve the entire society after the exit of one, or to continue it among themselves (socius socium a se non se a socio liberat). Prussian law allows for the possibility of expelling one of the members by the society, for reasons specified in the law, which destroy confidence in him. The dissolution of a company involves the liquidation of its affairs and division between partners, which is carried out according to the rules on the division of common property. Community in Roman law was a formless contract, and Roman society, as an institution, did not have unity and strength. Roman law, one might say, refers only to the members of society, and not to society itself. An alliance established by a simple agreement could disintegrate at any moment; with the departure of one member - at his own discretion, with his death - the union disintegrated; a new agreement was required between the remaining members to restore it. The effect of the union was only between its members; between them there was only an obligation, claims for performance were possible (actio pro socio); In relation to third parties, society did not matter: it was not society that acquired rights and entered into obligations, but individual members acted in their own person. Even when they all elected a common attorney (institor), the relations of third parties to him under the contracts were exactly the same as the relations to the attorney of several principals. Society could not have its own property, its own rights and claims. When one of the members, even in the interest of the union business, acquired property, it was acquired for him personally, and he was required to transfer this property into the common property of all members; only in the communion of all property (s. omn. bonorum) was it possible for the entire union to acquire property. The legal personality of society was developed not from Roman law, but from the needs of real life, later, in the Middle Ages, in Italy, under the influence of industrial and trade customs, and the first actual, then little by little legal representative of this personality was a trading company, or the name of a trading enterprise. Particularly important in modern life is industrial and commercial societies. The newest industry, in order to achieve its goals, which require significant capital and the combination of forces, has developed the following main forms of community: 1) Full or open partnership (offene Handelsgesellschaft, Kollektiv-Gesellschaft, société en nom collectif). Several persons join together their names, with personal and property powers, and act together, under one common name or company. This is a complete connection of individuals together with their capital. 2) With the expansion of production, the company’s capital alone becomes insufficient; it is necessary to attract new forces and means. But attracting new people to the union on the same grounds is both inconvenient and difficult; it is inconvenient because the choice of a comrade for joint responsible activities presupposes firm confidence in him and a close relationship with him; difficult because it is not easy for a new person to accept full responsibility not only for his own actions, but also for the actions of others. It is not so difficult to attract persons to the union on other grounds, so that they, without entering into the society through their direct activities and into general responsibility with all their property, entrust only to the society their contribution in a certain amount of money, sharing in the benefits of the enterprise and accepting responsibility only to the extent of their contribution. This is how a relationship is formed between the indigenous company running the business (Gerant, Komplementar) and the investor attached to the society (Kommanditist, commanditaire, associé en commandite), and the society is called a partnership of faith (Kommanditegesellschaft, societé en commandite, stille Gesellschaft). In this form, investors can enter into a community not only with the company of an existing union, but also with an individual trading on his own behalf. 3) Impersonal society or company with shares (Société anonyme, Aktiengesellschaft). This form serves as a means for attracting a mass of capital to the business in small shares, with limited and impersonal liability. Members of such a society participate in it not by their person and activity, but by monetary contributions, evidence of which is a share, and participate in the benefits of the enterprise, as well as in responsibility, only to the extent of each contribution made. They do not directly participate in the management of affairs, electing from among themselves a board that serves as the body of activity, in accordance with the charter of the company. This form can currently be called dominant; sometimes it is connected with a limited partnership (Kommandite Aktiengesellschaft), and the investor is the formed company on shares. This latter form arose at the beginning of this century, in France, as a practical means of combining the benefits represented, on the one hand, by the joint-stock form, and on the other, by the contribution form. It combines: the owner of the business with personal responsibility, or owners, as general partners, and then a certain number of investor-shareholders (Code comm. 30). The benefit of this is undeniable, but with it, as practice has shown, there are also important disadvantages that favor abuse and deception. First, the owners appear in the business, attracting to the business with their name and credit - monetary contributions and public trust; but little by little they themselves withdraw from the business, leaving inflated names and inflated values ​​in it. Abuses of this kind have more than once raised the idea of ​​completely abolishing this form; however, in 1856, French law limited itself to increasing the liability of the original founders and first shareholders. The main legal features of these institutions are as follows: 1) Full partnership. All partners undertake full and unlimited responsibility for each other (with all property). To open the activities of a partnership, on this basis, a formal written agreement is not usually required: an exact official announcement (through a commercial court) of the institution or house is required, indicating its members by name, the accepted company and the time of opening. It can also be indicated which of the partners is authorized to sign on behalf of the company. But in general, each of its members has every right to take all mandatory actions on behalf of the company: by indicating the company in his signature, he thereby obliges it. Everyone, in general terms of the economy characteristic of the enterprise, acts on his own behalf for everyone - except for emergency and out-of-the-row items, on which a meeting and a unanimous decision are required. Everyone in this union is responsible for one and one for all; even a newly joining member is obligated for the entire elapsed time of the existence of the company. They are obliged to each other to have faithful care for the benefits of the company, as if in the personal affairs of each, and not to carry out separate bargaining and fishing, undermining or competing with the company. The private interest of each cannot be separated from the general interest of the company. This principle is contradicted by the arbitrary withdrawal of certain property from the general fund, and therefore it is not allowed. If an individual member is wealthy, none of his personal creditors can extend recovery on his property, which is part of this fund, except for dividends, interest and profits coming from it, to the member’s share; and cannot repay with his personal claim on the debtor - collection in favor of the whole company. Finally, in the event of liquidation of a company's affairs, its debts are not mixed in the general competition with the personal debts of its members. Regarding the division of profits in a general partnership, the following rule, borrowed from trade custom, was adopted in the new German code, instead of the Roman rule on general division. First of all, 4% is allocated from the net profit for the capital of each participant; then, if there is still a profitable amount left and there is no extreme use of it for the needs of society, it is divided among the partners without exception. A general partnership appears to be a legal personality: this quality is directly assigned to it by some legislation (primarily French), which is quite consistent with the concept of the legal unity of the company, established in practice. During the discussion of the German Commercial Code, there was a lot of controversy about whether the new German law should recognize the same principle. An average measure was chosen, so that now, according to German law, a general partnership is assigned only the relative value of a legal personality. It undoubtedly has it - in all external relations with third parties; but in internal relations between comrades this property does not manifest itself, because the corporate structure of society is not assumed, and the will and decision of the company are expressed not in a majority of votes, but only in the unanimity of all members of society collectively. 2) In a limited partnership, the investor participates in the profits of the company and is responsible, although in solidarity with the company, but only in the amount of his contribution. His name and the amount of contribution must be announced, and he is considered a real accomplice in the case, but does not participate in the orders of the company, although he has the right to verify the statements at a certain time. His death or insolvency does not serve (as in a general partnership) as a reason for the termination of the company. This form of partnership (en commandite) in its entirety is of French origin. But its main idea has long been implemented in German commercial life, in the form of the so-called closed partnership (stille Gesellschaft). In the old days it served as a means of circumventing the law on prohibited interest. The capitalist, not being able to openly receive a high interest rate on his money, gave it to the entrepreneur of a trading enterprise for circulation, with participation in the profits. From here a partnership was formed, which essentially served as a cover for the loan, since such a partner did not have the right to participate in managing the progress and affairs of the enterprise. This attitude of the investor does not matter in relation to third parties; his contribution, like a borrowed loan, becomes the property of the owner of the enterprise. Moreover, each of the investors has no relation to the other, whereas in a limited partnership all investors participate collectively and together with the members of the company. In the event of liquidation of the company, he participates in the competition along with all its creditors; This is his benefit, compared to a depositor on faith, who follows with his claim behind the creditors of the company, who are satisfied, by the way, on the account of his contribution; but, on the other hand, a closed deposit merges, like any borrowed amount, into the property of the entrepreneur, while the capital of the investor on faith retains the special significance of the contribution in this property, on the basis of a certain trustee right. – In the new German trading regulations, this form is maintained on the same basis as the French limited partnership company. § 61. Company on shares. – The essence of the institution. – Its purpose and historical development. - Its current meaning. – Concept of the action. – Company formation. - Founders. – Charter, its approval and registration. – Subscription to shares. – Controls. – General meeting of shareholders. – Its composition, convening and activities. - Board. - Supervisory Board. – The concept of dividend. – Issue of new shares. – Termination of the company and liquidation. 3) A company on shares forms an extreme form of community, in which the meaning of a personal union almost completely disappears, but the essence of the contract consists in the community of property or capital, compiled for a certain purpose of production and acquisition, which attracts and connects the funds used for this purpose. Benefit and damage are not associated with personal activity, but are commensurate exclusively with the share contributed to the general capital fund. Each member of society has no significance in his individuality, and all members have no personal connection with each other in the union; we can say that they do not enter into agreements with each other (ad dandum vel faciendum vel praestandum): they are united only by the ideal connection of the common goal of the enterprise for which the collected fund is intended. None of the members in themselves has the slightest share of participation in the management of the affairs of the society and in its representation, just as the fund of the collected capital does not have the value of common or public property, just as happens in any personal communication regarding property. This foundation is considered to be the property of an entire institution, elevated to the level of a corporation, and given legal personality and representation in a prominent governing body. This body, as a representative, enters into an obligation on behalf of the whole society. This form arose to satisfy the need of large industrial and commercial enterprises to attract and collect the largest possible amount of capital by dividing the fund into small shares, and, moreover, in such a way that each investor was limited in both his benefit and responsibility only by the amount of his contribution: thus, both of them become impersonal; participation in society is determined solely by a contribution or so-called share, no matter who owns this share. The first joint stock companies (for banking) appeared in Italy at the end of the 14th century. Then in France, on the same basis, in the 17th century, the West India Company was formed, and in the 18th century, the first joint-stock bank of Lau was formed, so famous in history. In England and Holland, the 17th and 18th centuries saw the beginning of trading companies based on shares (for example, the East India Company), which gained worldwide significance. In our time, with the enormous development of entrepreneurship and capital, this form has acquired predominant importance. Its benefits are undoubted, but they are not the same everywhere. The successful application of this form lies in connection with conditions that are not found to the same extent everywhere, and in some places are completely absent. Complete success is possible only where a considerable degree of industrial development has already been achieved, and a fairly regular division of labor and art has been established between the main agents of productivity: capital, mental and technical knowledge and labor power. Then the artificial union of these three figures in an impersonal institution does not present much difficulty. Otherwise, the simplest forms of association and economy may be more suitable. In the simple form of community, it is essential that the owners themselves, who own the business that constitutes their interest, run the business. On the contrary, in a company with shares, members of the community who are interested in the success of the business do not manage it themselves, they even stand completely apart from management, which can be entrusted to complete strangers, and, moreover, not because of general personal trust in them. This situation is always associated with extreme danger for the economy, and this danger is especially intensified where large capital is attracted to a significant number of huge enterprises, and meanwhile there is a small supply of reasonable, economic managers, knowledgeable technicians, experienced workers and leaders with a strong moral character, whom can be assigned to large capital with complete confidence. It would be unreasonable to rely in such cases on the omnipotence of capital alone: ​​in inexperienced hands and without economic management, capital can easily become only an instrument of deceptive credit and a means for reckless management, and the artificial structure of joint-stock management becomes only a convenient way to cover up bad management and selfish transactions. Nevertheless, the joint stock form serves in our time everywhere as a necessary, almost exclusive means for attracting capital to large enterprises. The abuses that are inseparable from it are, unfortunately, also a well-known phenomenon: they have more than once reached such proportions that they have caused widespread bankruptcies and provoked a crisis in industry. There was a need to revise the laws on joint stock companies. The newest charter of joint-stock companies was issued for the German Empire in 1870. In France, the rules of the general commercial code apply on this subject, with additions, the last of which was published in 1867. The latest English laws on joint-stock companies are 1862 and 1867. A share serves as a sign of participation in a joint stock company and proof of the right to do so. A share means the smallest integral share of the capital that serves as the basis of the enterprise, and is paid for by a contribution corresponding to this share. The owner of a document called a share acquires the right associated with ownership to participate in the benefits of the enterprise and have the right to vote in general meetings of shareholders, and the right to sue in appropriate cases in accordance with the statute of the company. However, the shareholder is not considered a co-owner of the property that constitutes the property of the company - at least as long as the company exists and operates: unless at the moment of liquidation and division the shareholder can present his rights to participate in this division. A shareholder is not considered a creditor of the company: he is a member of it, not a creditor, and a share cannot be considered an obligation, since it does not come from an agreement between members; it is more correct to classify a share (Savigny, Renaud) as a property right - it is the right to a certain share in the property of society, but this right in any case is movable. But at the same time, a share is a credit paper, a representative of value, and as such it circulates on the money market, subject to all fluctuations in credit values. This property of a share contains both an exciting beginning and a great danger for joint-stock enterprises: when a share, in itself, regardless of the fate of the business with which it is connected, becomes the subject of speculation on the fall and rise of stock prices. This speculation often acquires the main, primary significance in the joint-stock business, suppressing or completely destroying the economic idea of ​​the enterprise itself. It comes to the point that the enterprise itself is invented, and a joint-stock company is founded solely for the purpose of speculation on the shares being issued; and then, with an artificial increase in their prices, the founders and first shareholders, having managed to sell their shares at a profit, leave the enterprise altogether. The law tries, as far as possible, to counteract these abuses of rules that delay both the arbitrary issue of shares and the arbitrary sale of them. In this regard, registered shares are more reliable than nameless ones, bearer (au porteur), since the transfer of registered shares is carried out with the knowledge of the board of the company, through a transfer or census from books; Nevertheless, unnamed shares are also allowed, allowing free transfer by letterhead or from hand to hand, since the free circulation of shares serves as a lure for capital. In general, the alienation of shares is associated with the decisive release of the former owner from all relations with the joint-stock company, and therefore the alienation of shares that have not yet been fully paid is allowed only conditionally: with the liability of the former owner for a certain period (Germany for a year) in relation to the creditors of the company. When transferring such shares to bearer, German law requires that the share be paid for at least 40% of its price. This rule is considered necessary in view of the ease with which poor people rush to subscribe for shares in order to, having paid a small share for a share in advance, resell it later with a profit when the exchange price rises - for which many are forced to pay with ruin in the event of a fall in prices. In view of similar abuses of speculation, the law determines the minimum price assigned for each share upon issue (in French law, 100 francs for a small fixed capital and 500 francs for capital over 200,000). The fragmentation of share capital into too small shares (for example, up to 1 franc, as sometimes happened) usually serves as a flattering bait for poor people to engage in shareholder speculation, involving them in a similar lottery game - and in ruin. The act of a joint stock company is essentially not an agreement or transaction, but an institution for the connection of capital. This establishment is always preceded by a period of preparatory activity, in which the main characters are the founders. They actually enter into an agreement among themselves, developing and defining the essential terms of the charter, i.e. items that are required by law to be defined in it, such as: the purpose of the enterprise, the company with its place of residence, the size of fixed capital, the price and ownership of shares, the organization of management, etc. The founders themselves, as the first inventors of the business, can negotiate in their favor some benefits over other shareholders, in the number of shares, in the share of dividends, etc. This charter is submitted for verification and approval by government authorities. In Germany, until 1870, the charters of joint-stock companies were approved by the royal authority: this rule has now been abolished and the charters are approved simply by judicial or notarial procedure, except in exceptional cases in which, due to the special state significance of the enterprise (for example, a railway), the consent of the highest government authority is required. Legislation pays special attention to this preparatory period, establishing formalities that should serve to protect public confidence in the emerging institution from unscrupulous attempts to turn the common cause to the benefit of a few, i.e. the founders in whose hands it is, and persons agreed upon by the founders, from whom a decisive majority can immediately be formed. The mass of property that makes up the fund of an enterprise can be given an imaginary, inflated significance - by showing fictitious, uncontributed capital in shares, and by an exaggerated assessment of material assets (apports) contributed to the business by some founders. French law is particularly replete with formalities in this regard. Allowing the establishment of a company by agreement of at least seven founders, it requires that before the approval and opening of the company there is a certificate of coverage of the entire fixed capital by subscription and a contribution of at least 25% of the shares. In addition, a preliminary convening of a general meeting of shareholders is required in the full composition specified by law, to verify evidence and approve orders; To evaluate material contributions, even a two-time meeting with more complicated formalities is required. Severe penalties are established for inaccurate statements regarding shares. So, French law takes its guardianship over society, before establishing it, to the extreme. This example is followed, although to a lesser extent, by German legislation. There have been many objections to this policy lately. They prove that all these formalities essentially do not provide anything and do not interfere with the machinations of the founders and the party they assembled: but they impede the attraction of capital and hamper the development of the institution’s activities at first. They point out, on the contrary, the example of English legislation, which seeks to facilitate and free from formalities the start of an enterprise, paying primary attention to personal responsibility and protecting it with strict penalties for breach of trust. In England, just like in France, at least seven founders of a joint stock company (Limited company) are required; but they are not required to draw up a charter (the normal charter is contained in the law), but only a note, signed by everyone, indicating the company and the size of shares and fixed capital. A necessary formality is the registration of the act, indicating the participants and accessories of the enterprise. Before this registration, no one dares to act in the name of the company, under heavy penalties. Any public announcements or invitations on behalf of the society must be without the slightest concealment or cover that could mislead, for violation of which the law threatens with heavy penalties. According to the charter, it must be entered into the trade registers (Handelsregister), and from this time only the company opens its official activities. But before this, it is still necessary that the fixed capital be replenished entirely by subscription for shares and that a certain part of the money, determined by law, has already been contributed by subscription for shares. The subscription is opened according to the rules of the charter, which stipulate what part of the subscription amount should be paid for each share during the subscription itself in the form of a deposit and within what time frame the rest should be paid. If the subscription exceeds the offer, i.e. the amount of fixed capital, then the capital is allocated between the signatories. The right to subscribe for a share is certified by a receipt or temporary certificate until full payment or another period specified by the charter. The company opens its activities with a management organization. The following institutions serve as its indispensable bodies. 1. General meeting of shareholders. It serves as the electoral body and the final authority for resolving all significant and critical issues of administration and economy. The right to vote in it belongs, according to the charter, either to each of the shareholders, or to a representative of a certain amount giving the right to one vote. It meets in the manner specified in the charter once a year to hear a report, and in emergency cases by convening the board or at the request of shareholders. Its decisions are made by majority vote, simple or enhanced in some cases; for others, the most important ones, unanimity is required. Resolutions in the general meeting are made by majority vote; but there is doubt about how to count the votes. When units of shares, i.e. shares, not large ones, and each of the owners of at least one share is given the right to vote, then a crowded meeting can turn into a crowd, incapable of a reasonable discussion of issues and open to all kinds of influences and selection of votes. Hence the need for some qualification arises, i.e. in granting voting not to an individual share, but to an amount of some size exceeding the shareholder unit. But the shareholders are not equal to each other in terms of the amount of shares owned by each. Along with small ones, there are also large ones, i.e. owners of many shares worth a significant amount. When the shareholders of the latter kind, according to the total amount of their property, have as many votes as the number of qualifying units combined in their capital, then the discussion turns out to be unequal and, therefore, the decision is determined not by the reasoning of the votes and minds, how many there were in the meeting, but by the will and interests of the minority, which has a mechanically enormous number of points. This is an important drawback of the shareholder decision, but it is very difficult to avoid it, because giving each shareholder no more than one vote, on the other hand, would be inconsistent with the predominant importance of capital in a joint-stock company, which is nothing more than the accumulation of capital for a certain purpose. Between these two extremes, the middle measure is the rule that is sometimes adopted - the establishment of the largest measure of votes that a large shareholder is allowed to have. In general, the regulation of certain rules on this subject depends on the charter: the law is either limited to instructions in case of shortcomings in the charter, or establishes a mandatory rule for special cases. Thus, French law makes it a rule for the initial or verification general meeting that each shareholder has a vote, but no one can have more than 10 votes. For other meetings, in case there is a lack of definitions in the charter, the law requires one vote to be counted for each shareholder. English law requires that each shareholder count one vote. English law, also in the sense of an addition to the charter, establishes the rule that for 10 shares there is one vote, then for every five shares another vote is added, up to the first hundred, and whoever has more than a hundred shares is given only one vote for every hundred. The law seeks to counteract abuses in the selection of votes through dummy shareholders only with severe penalties. The composition of the general meeting in the cases specified in the charter is mandatory. In case of dishonest refusals or delays, it is left to the commercial court to make direct orders regarding this on the complaint of shareholders. Each of the shareholders can, within the prescribed period (for example, a week) before the meeting, demand the presentation of the balance sheet and the presentation of the relevant documents to the board: this right is granted by French law even to shareholders who do not have a vote. The statutes indicate who presides over the meeting: otherwise, the law indicates the chairman of the board. They rightly point out the inconvenience of this rule, since the chairman of the board may not be impartial. It is also noted that a person accredited by the court should be appointed to take minutes in the meeting. For a general meeting to be valid, the law everywhere considers it necessary for a sufficient number of shareholders to be present. Thus, French law requires representation of at least 1/4 of the capital; in England there are a known number of members. For presence on particularly important issues, an increased proportion of capital or cash members is assigned, or an increased majority is required in the decision; in other cases, according to German law, there is unanimity. 2. The board is selected from shareholders or even from third parties for business management and for representation - in relation to third parties. According to French law, the composition of the first board, upon opening, can be appointed in the founding act itself, but only for a period of time, not longer than three years. It is considered responsible for its actions not only to the general meeting, but also to each of the shareholders in the event of a claim. Members of the board are also subject to criminal penalties for violating certain rules, for example. for keeping silent about the faulty state of affairs leading to non-payment; for delay in opening the supervisory board, in particular for the distribution of dividends based on dishonest calculations that do not agree with the state of affairs. English law is the strictest in this regard. The position of the board of directors is the most essential in a joint stock company and requires complete trust. According to English law, the first members of the board, four months after the opening of the company, must leave their positions and give way to newly elected ones: it is assumed that the first meeting is in any case under the influence of the founders. Then, annually or at other times, a certain part of the members leaves and is replaced by new members. According to French law, and especially English law, members of the board are strictly prohibited from taking an interesting part in any enterprises, supplies, transactions, etc., carried out at the expense of the company; English law, in case of violation, deprives them of their title and turns any profit they receive into the benefit of society. 3. A supervisory board, optionally, to supervise the actions of the board and to audit affairs. This body is intended for control, since the board is for administrative and economic activities. This institution arose in French law, mainly for limited partnerships connected to a joint-stock enterprise. In simple joint stock companies, French law establishes supervisory commissioners only for the first time, until the first general meeting. In German law, the supervisory board is a permanent institution; but in practice this institution brings little benefit, since its members, connected for the most part by a common interest with the members of the board, turn out to be little able to control them, and the choice for the most part depends on the same parties that direct the choice of the board. English law knows no such institution; but it establishes a valid way to curb the board, giving the court the right to intervene in the affairs of the board, upon the complaint of shareholders representing a significant share (up to 1/5 of the total capital). The court may, having secured the costs of proceedings, appoint auditors on its own behalf who have the right to examine all the affairs of the board and interrogate all its agents under oath. Moreover, English law allows for a valid remedy to protect the minority from unlawful resolutions of the majority in the general meeting. Each shareholder, at least on his own behalf, has the right to appeal to the court the action of public authorities when it is contrary to the law or the charter of the company, and to demand that the court impose an injunction on this action. Finally, in important cases determined by law, each shareholder is given the opportunity to ask the court to dissolve the company and liquidate its affairs. The entire company is considered, as a legal entity, the subject of property rights and the defendant in obligations. The shareholder has no right to demand back the money paid for the share; but has the right to demand its share of the net profit from the enterprise upon the conclusion of annual accounts. This share is called a dividend. The company's charter, or the law itself, defines certain conditions and rules for calculating dividends, as well as for drawing up a balance sheet. These rules are needed to prevent abuses and disorder, which often lead to the breakdown of the joint-stock economy. So, for example, on the part of the board, an imaginary profit can be derived by including in it such items that, in essence, constitute a saving liability or relate not to profit, but to the replenishment of the fund. So, for example, the main rule is the protection of fixed capital, and if it is touched, then until it is replenished it is impossible to show profit in dividends. If there is spare capital, then it may be decided to exclude it from profit 24. As a general rule, it is impossible to provide shareholders in advance, instead of a dividend, with a certain percentage, such as rent on their shares, since the dividend is made up only of actual net profit. But as an exception, there may be cases in which some preferred shares (Prioritäts-Aktien) are assigned the right to interest. In other cases, it is permissible, in order to attract shareholders, to assign to them for the first time, while the enterprise requiring preparatory work is not yet in full swing, an interest payment on shares, on the account of the fixed capital. And when an enterprise (for example, the construction of a railway) is of particular national importance, the state assumes the guarantee of these interests, i.e. pays them (on credit to society) from its own treasury, if society cannot pay them itself. Sometimes new capital is required to expand an enterprise. The means used for this are to increase fixed capital by issuing new shares or borrowing in the form of issuing bonds on behalf of the company. Both are accomplished only by determination of the general meeting, which is subject to approval in the same manner as the charter of the company itself is approved. Acquirers of new shares are included in the general category of shareholders; but to attract capital, new shares may be granted a privilege (Priorität) with the right to interest. Bonds already constitute a direct, perpetual obligation on behalf of the company, paid with interest; they are issued either in the name or to the bearer, and the capital made up of them is not included in the fixed capital, but is used to expand the enterprise. These bonds are gradually repaid in annual series, and special capital is allocated for repayment. As for the shares themselves, their redemption by the company is equivalent to the acquisition of its own shares, and therefore contradicts the essence of the joint-stock company, and therefore such an operation is recognized as inconsistent with the general procedure and with the interests of both shareholders and creditors of the company. It is allowed either by a special rule of the charter, or, in exceptional cases, by decision of the general meeting, as a way to gradually terminate all activities of the company. Shares guaranteed by the government are redeemed annually by the government itself, which, at the same time, itself becomes, to the extent of the amount redeemed, a participant in the joint-stock enterprise. The joint stock company is terminated: 1) With the achievement of the enterprise’s goal, when it is temporary or urgent. 2) With the opening of insolvency and competition, when payments are stopped, or it turns out on the balance sheet that the property is not enough to cover the debts. French law (about English mentioned above) prescribes, in the event of damage to 3/4 of the fixed capital, to convene a general meeting to discuss liquidation; if it is not convened, then each shareholder or generally interested person is allowed to ask the court to liquidate the affairs. 3) According to the definition of the general meeting of shareholders, as a result of the merger of one company with another (fusion), it is sometimes recognized as necessary to terminate the company through the redemption or redemption of shares, or through the sale of all property and the consolidation of all shares in one hand. 4) Finally, in exceptional cases, society, for the sake of state goals, can be destroyed by the government, with or without compensation. The dissolution of the company is accompanied by the liquidation of its property and affairs. At the same time, the company loses its legal personality: in its place is a set of shareholders, as co-owners of their common property, which is divided among them for the satisfaction of debts. This is what many interpreters of the law understand; but according to others, the company continues to exist until the end of liquidation, in its legal personality, and its organs continue to operate. English law speaks positively in this sense, paying special attention to the procedure and rules of liquidation - about which other legislation has very little or no definitive provisions. § 62. Partnership agreement and its meaning in Russian life. – General legislative forms do not exhaust the entire content of the partnership. – Special types of partnership mentioned in our legislation. – Artel, as a phenomenon of Russian life and as an institution. The partnership agreement is one of the most common agreements among the Russian people since ancient times. Just as the community constitutes for us a form of social life that fully corresponds to its natural conditions, and satisfies the need to lift and endure together what one cannot do alone, so in civil contractual life a similar need was satisfied from ancient times by cooperation and partnership - in trades and in trades. The form of obligatory union and mutual circular responsibility was applied to the performance of service, to the payment of taxes, to the correction of duties, to the carrying out of all state and social responsibilities: similarly, peasants in their trades and merchants in their trading business willingly formed a partnership and often made notes about it. From these monuments alone we can judge the custom and the nature of the relations between comrades, but it is impossible to derive common law from them: it was not even in the laws of old times. And without any special records, it was customary for a whole group of people to dress up for service or work, in the form of comrades (so-and-so and comrades), and the responsibility was usually determined collectively (take on the one who will be in the persons). The artel - such a well-known institution in Russia - is nothing more than the type of partnership that prevails among the people according to custom (see Add. to the Act. Ist. vol. I. N 3. Acts regarding legal life vol. I. N 111, 121; vol. 2. N 252 et seq.). Peter I cared a lot about the organization of companies, modeled on foreign ones, since they contribute to the development of trade and industry, in connection with the new institutions he established for the management of mining, manufacturing and trade. But even under him, and then during the 18th century, we did not have and still do not have a general law on partnership as a civil contract. In 1807, on January 1, a manifesto was issued granting various advantages and privileges to the merchants. In this regard, rules were established regarding merchant companies, which to this day serve as the only basis for our civil law on partnerships. They became part of the code of civil laws when it was first published and were repeated, with additions, in the commercial charter. The Code of Civil Laws (2125 et seq.) contains a general definition: partnerships are made up of persons united in one composition and operating under one common name. In another article (2129) a different expression is used: a common name for all, having a different connotation of legal meaning. Be that as it may, in all these articles the subject of the partnership is assumed to be an enterprise “for trade, insurance, transportation and industry in general,” and, moreover, an enterprise operating under one name. This includes exclusively three types named in the law: general partnership, limited partnership and company with shares. The latter, by all indications, has been assigned a legal personality; the first two are united externally in the company that makes up the common name under which they operate. Then it remains completely unknown - outside of legal definition - how to understand those numerous types of partnerships that exist in our civil life, arranged for various needs - have their own economy and are included in legal relations and obligations. Some of these communities, because they have a public purpose in mind (eg, academics, charities, meetings, clubs), require a charter approved by the government and belong to the field of public law. But civil communities proper, which do not fit the criteria of a general partnership, remain without definition. We can only say that an agreement of this kind, within the general rule of Article 1528, is legal and valid between the parties who entered into it; that a written form, and especially a personal one, is not absolutely necessary to recognize it as valid and can only be needed to certify the terms of the agreement; that a simple partnership in itself does not have a legal personality and does not imply a solidary relationship between the participants with respect to third parties entering into agreements and obligations with them, in their common business; that the property belonging to such a partnership, as a fund for common activities, should be considered common, and its disposal, in the absence of special conditions, is carried out according to the law of common property. In different parts of the code of laws there are indications of special types of partnership. This includes the following types. When several persons agree to build or buy a ship together, a partnership agreement is formed between them. There are special rules established by law regarding this type of contract (Constitution of Trade 171–182). The agreement must be written, executed according to the rules of the notarial provision, and where it is not introduced, presented to the broker. It states how much money each partner gives and how to divide profits and losses during the partnership. This partnership does not have a legal personality; the fortress on the ship (it is written, of course, in the name of everyone) is entrusted to one of them by common agreement. By choice of all, one is appointed to manage and dispose of the ship (the initial comrade). He is obliged to take care of the work of the ship for the general profit, and to keep accounts of profit and loss. Everyone must share in the cost of repairs. If these costs are needed at half the price that the ship cost, and one of the comrades does not agree to repair it, then the others can completely eliminate him by paying him 1/4 of his monetary contribution. A partner can sell or cede his share to a stranger only with the consent of others, and if they disagree, then they buy it themselves, according to a fair assessment, and must pay the money within a month from the date of announcement of the sale. With the destruction of the vessel, the partnership ends. When a shipbuilder is hired by an owner to operate a ship for a certain part of the proceeds, there are still no signs of partnership in this condition. He is also allowed to take part in the ship's cargo; in this case, it depends on the terms of the contract whether he is considered a partner or only hired on a special condition. He is a comrade if the partnership clause has a predominant meaning in the contract, and the person steering the ship occupies the independent position of a comrade: in this case, those participating in the contract contribute - one their labor and art, the other - their property, for a common operation. The Law (216–252 Est. Trade) hardly has such a partnership in mind, for in Art. 252. the possibility is foreseen that the owner will buy out his share in the goods or cargo from the shipowner when he turns out to be unfaithful and unskilled, and the owner removes him from his position upon unloading the goods. – Partnership for the production of gold mining (Ust. Mining ed. 1893, art. 437, 478). Agreements on this or charters are proposed, which must be submitted for information to the main management of the fishery and the mining department. One partnership is not allocated several areas adjacent to it, nor is a member of the partnership adjacent to the site of the partnership. Persons who already have related applications are allowed, upon receipt of documents, to form partnerships with each other. The law allows the formation of partnerships upon entering into a government contract or supply agreement. They are drawn up either before the bidding, and in this case represent, in relation to the bidding, one person, or after the completion of the bidding, with the participation of the person who retained the contract; but in this case, the contract is considered to be his and he alone is the person responsible to the treasury (Pol. Kazen. Other, art. 3). In Const. Post. (199–240) partnerships formed between peasants for the maintenance of free mail are mentioned; but the rules about them have lost their binding meaning due to the force of the notes. 2 to art. 190 to Cont. 1893 Const. Post., allowing the Minister of the Interior to arrange postal operations at his discretion. From 407 Art. Est. Industrial it follows that the partnership of apprentices without a master is not allowed. “It is prohibited for several apprentices to do their own work without a master to live together (in one apartment) and sell the things they make.” When peasants, owners of individual plots, acquire land as personal property, they are allowed to form partnerships with each other to mutually guarantee the correctness of payments. The act of this is the obligation of mutual guarantee attached to the redemption agreement (Pol. Vyk. 34, 77, 139). In general, the partnership property belongs to any joint or circular guarantee (see above, § 38). Mining partnerships at state-owned factories (Cross. Pol. Kaz. Mining. Head. 55 et seq. Alexander. Head. 41) belong, in essence, not to private, but to public institutions, and joining them is mandatory for workers. Mandatory partnerships include companies of industrialists formed as required by law for throwing and rafting logs and firewood along the Tikhvinka and Syasi rivers. The purpose of this requirement is to concentrate responsibility between industrialists, regarding the government authority overseeing the order of the rafting operation (Const. Put. Commun. 248–253, 254 to Cont. 1893, 255, 256). In discussing our union of partnership, it is dangerous to get carried away by the thought of the Roman form of community (societas), since partnership in itself, regardless of one or another form of law, is an original phenomenon everywhere, characteristic of every way of life, all economic conditions, and even more so characteristic of Russian life. Thus, for example, the personal trust of a person in a person, which has such a decisive significance in the construction of the Roman societas, does not have such a predominant importance with us. In our country, for the most part, people who exist in the same business, live together, make a living in one place, have to, so to speak, involuntarily unite with each other in one industrial or workers' union; General trust, of course, is assumed here along with general consent, but there is sometimes no mention of individual trust of a person in a person. Science indicates that the basis of a partnership is the combination of property, to which personal forces are sometimes attached: that is why others, where they do not see a material warehouse fund, do not want to recognize the partnership there. In our country, on the contrary, what is most often encountered in the industrial sphere (especially in artels) is the combination of personal labor exclusively for the purpose of acquiring capital both for further productivity and for division among comrades. According to the Roman concept, a partnership is dissolved by the death of at least one of the partners. According to our concepts, such a partnership union is also very possible in which the death or retirement of one of the partners does not in any way impede the continuation of the union, when the material share of each can be taken into account and allocated to the heirs, or even an heir can take the place of the deceased. An artel is a folk form of partnership that arose directly from economic needs and conditions of nature and everyday life. In this sense, it can be called not an institution, but a phenomenon of everyday life, mainly communal: from here our custom of living and earning a living not alone, but in the world or in a nest and mass arose spontaneously. Just as in our agricultural life a community was established, with the equalization of ownership in the common tax according to the economic strength of each, so especially in the circle of waste production, emanating from the same community, a form of a similar communal, direct union arose, in the form of an artel. The study of this phenomenon of folk life in itself is very interesting, but the goal that researchers sometimes have in mind is hardly achievable - to grasp solid legal principles in this phenomenon. The sphere of custom never coincides with the sphere of legal relations; custom disappears in its spontaneity, ceases to be custom at the first attempt to crystallize it, to transform it into a solid and definitive form of law. The artel structure, in the legal sense, has the same basis as any partnership under a contract, but loses its meaning when it is narrowed into the formal framework of a civil contract; for the concept of an artel is incomparably broader than the concept of a contract and belongs to a different order of forms and phenomena: it is a form of life in certain economic conditions inextricably linked with it. In this sense, family, community, artel are phenomena of the same order in the economic life of the people. That is why the artel solves simply and directly problems that interrupt the formal measure of legal law. First of all, it is a combination of relationships, rights and obligations, which in itself contains its own sanction - like any everyday relationship. Anyone capable of doing the work for which the union is being gathered becomes a participant in the union, according to his strength and wealth. All participants are equal, but not in the sense of formal equality, which brings everyone under one line, or measures them by one unit, but in the true sense of a correlative equation, so that no one is offended by anyone and everyone receives according to the measure of his deeds and property: with such an equation significant inequality of status and wealth can be combined. The position of the participants becomes unequal because the contributions that each brings to the union are unequal. Others come with only their personal labor; another brings a share of money; the third, having no money, contributes to the creation of the fund with part of his earnings; the fourth brings with him a tool of production, etc. All property thus compiled, combined with subsequent acquisitions, is preserved, used and spent only as a common property; but nevertheless, what is brought by each, without disappearing in the mass, also retains the property of personal property, which is manifested during the division of general profits, when an individual member leaves or during the final dissolution of the artel. Management of the artel is concentrated in the person who receives the significance of power. Its position in the union is such that it combines, on the one hand, the most unconditional right to order, dispose and demand unquestioning obedience; on the other hand, complete responsibility and accountability in everything that relates to the general interest in expenses and profits. The relationship of the members of this union among themselves is imbued with such completeness by the inseparable consciousness of union and common interest, united in the concept of the artel, that in it the opposition between the individual person and the collective unity seems to disappear and there is no need to use the fictitious principle of a legal personality. Everyone acts in the artel in its name, and outside the artel, according to its business, acquires in its name; in external affairs and with third parties, the head of the artel serves as its representative, but in full communication and consultation with all members. Thus, the household artel actually represents a practical solution to the problem of agreement in a matter of private and public interest. It would be in vain to look for the key to this solution, in the form of an artel structure, by drawing a conclusion through an analysis of the relations existing in the artel: the reason for the integrity in which the artel exists lies in the integrity of life in which it arose and exists. That is why the artel itself does not need a written agreement or act defining its fundamental conditions. In some localities and in connection with other industries that have received complex economic development, there are also original written acts of the artel structure or public verdicts on the organization of the artel, which serve as its charter; but this is an exceptional phenomenon. It is also explained by the fact that with certain economic complications of production, the very structure of the artel is complicated by the admission into it of relations that are partly related to hiring and borrowing. An artel can take the form of an enterprise started by a capitalist owner, recruiting people into different shares and with unequal subordination, so that some of them (the so-called pokrucheniki) become obligatory to him and to society, which does not, however, exclude the possibility for them to participate in a certain share of the general profits. The form of the artel union for the purposes of both acquisition and production, and for the purposes of the consumer economy, is so common among the people that the government often uses it as a ready-made instrument for establishing economic order in the class of subordinate people. In this case, the government does not even have to worry about regulation, but only needs to start an artel, which organizes itself. This is how our existing prison artels are formed to feed prisoners, regimental artels, workers’ artels, in connection with the government institution under which they operate. In this sense, our legislation often refers to the artel as an institution that exists and does not require explanation. In some institutions associated with economic or trade activities that require the use of labor, it is organized through an artel, on the basis of charters approved by administrative procedures (for example, stock exchange artels). However, in the latest legislation there are attempts to define artel relations in agreements between the artel and third parties. These attempts can hardly be considered successful. In Const. Merchant Vodochod. 1781 mentions the division of watermen into artels, and the word artel is obviously given only the general meaning of a working department, without a special definition. But in Ort. Shop. 1799 there is already a whole chapter about artels, and the legislator had in mind stock exchange and workers' artels in the capital. It also defines what an artel is (see below about exchange artel workers), and an attempt is made to regulate the artel by legislative definition. Then the decree of 1823 included some descriptive features of the artel, collected according to the intelligence of the St. Petersburg City Duma - they were transferred to the Code of Laws (Ust. Torg. 89 et seq.). And the latest legislation sometimes concerns artels, and also fragmentarily attempts to regulate their activities in one or another subject. Thus, in the rules on the hiring of rural workers (Cross. Ukr. 2 appendix to article 31: § 5, 22, 26) it is said that workers’ artels either themselves agree with the employers and enter into conditions with them, or they trust this to their elected representatives. But in the latter case, upon the team’s arrival at the place of work, the employer announces the terms of employment to all workers or reads the contract to them. The artel brings complaints against the employer through its elected representative. All payments under the contract are made in the presence of workers. Proper execution of the contract can be ensured by the mutual guarantee of the entire team. According to the new provision on hiring for rural work (vol. XII, part 2, ed. 1893), contracts can be concluded with artels, which means a set of persons who have entered into an agreement among themselves (written or verbal) on joint work with mutual guarantee for each other. The agreement is concluded with the artel leader (Article 7), who is elected by the artel; In case of illness or death, a deputy is elected to him (Article 79). In Pol. Horn. Population Kazen. Horn. Head On March 8, 1861 it was said: (Article 44) for mutual assistance in the performance of work, artisans and workers may be hired by artels, but such artels should not include more than the number of people required by the very nature of each individual work for which the artel is hired. But this restriction was abolished in 1869 (Collected Uzak. N 898). The law necessarily requires the formation of an artel between free workers on inland navigation vessels (Constitution of Ways. Communications 324, 326, 341). Workers hired from one village, volost or city are required to go as an artel from their very place of residence, so that all the more conveniently, upon arrival, everyone can form into a common artel. Everyone hired for each caravan or separately for ships and rafts of one owner constitutes an artel and is mutually responsible for each other. If one of them escapes, all the others are responsible to the owner for the unearned money left behind by the one who escaped. Monetary recovery from the owner for a person without a passport found among the workers is addressed to the artel. Any monetary profit and loss of the artel is distributed equally among all employees on the ships. Each artel appoints a senior steward over itself, according to the general choice, to maintain order on the ships. According to the rules of the Constitution. Rural Household (ed. 1893, art. 293–300) about the production of the Ustinsky (in the Mezen Bay) seal fishery, all those involved in it constitute artels; To set fishing times and monitor the order of their production, fishery elders are elected for every twenty boats every three years. Production of fishing and division of production by artels is left to industrialists. In 209–211 Art. Est. Bargain. Mention is made of artels into which sailors are divided, enlisted in cities and ports to serve on merchant ships. In Const. Bargain. (89–103) a provision on exchange artel workers is included. Here is the definition of an artel, expressed in a decree of 1799: “a society of workers, according to a voluntary agreement among themselves, formed to perform services and work that are not commensurate with the strength of one person.” Exchange workers are artels that carry out various works at the stock exchange, at customs, at city barns and brawlers, in rows and similar premises. Under the artel structure, a society of patrols for loading and unloading ships in St. Petersburg and Kronstadt is suitable. The main features of the artel are indicated in the law as follows. The artel consists of real artel workers, novices and boys. When joining an artel, a certain part of the money is paid, called vkupu; Those who do not have money have a certain portion of their wages deducted annually from the general duvan. In the latter case, the newcomer is considered a newcomer or a boy. Each artel has its own elders and treasurers, elected for a year by at least a third of the artel. Upon joining, everyone undertakes by subscription to observe the rights of the artel. Everyone works for a fee, which is determined by agreement with the owners and approved by the Duma; but all the works constitute one item, and each person’s share is transferred to him according to calculation from the common duvan. Headmen and treasurers receive shares in the highest degree. Everyone in the artel is bound by mutual responsibility. The owner, having agreed with one artel, has no right to contact another. The service life of artels must be at least a year, and the artel cannot disperse without finishing the work. In port cities, artels may be established to unload and load goods onto ships. Their charters are approved by the Minister of Finance; the heads of such artels are approved by the customs authorities, who, as well as the local police, are presented with a personal list of artel members; this leadership and the local higher provincial authorities are given the right to demand the exclusion of unreliable members from the artel; the latter has the right to completely close the artel when its actions disagree with the charter or are contrary to the laws (Constitution of Trade, Art. 104). § 63. Three main types of partnership in the new Russian legislation. – Full partnership. - Partnership of faith. - Trading house. - Partnership on shares. Our civil laws indicate three types of partnership, in other legislations usually referred to as commercial law: full, limited and joint stock. Our law even eliminates the shareholder form from the trade charter, because companies with shares essentially admit participants from all states, and not from just the merchant class (Articles of Trade 63, 64, 87). Then, in an expanded form, the rules on trading partnerships of the first two types are placed in the trading charter. For every partnership, from 1831 until recently, there was a general rule that any dispute between the participants regarding the affairs of the partnership should be resolved only by a legal arbitration court; but following the publication of new judicial statutes (by which the legalized arbitration court was abolished), in 1866 it was decided that all cases of joint-stock companies were resolved by a general judicial procedure; and for those societies of different names, in the charters of which there is a rule about the examination of cases by a legal arbitration court, disputes are supposed to be resolved either in a general meeting, if the parties agree, or by an arbitration court on the basis of new judicial statutes, or by general judicial procedure (Law. Civil., 2138; Establishment. Court. Trade. 208). A general partnership, according to civil law, is made up of two or many partners who have agreed to act in common on the common name of all. In it, all comrades are responsible for all its debts, in general and separately, with all their property, movable and immovable (2129, 2134). A limited partnership is made up of one or many partners, with the participation of one or many investors who entrust to the first certain amounts of their capital. These deposits are usually called shares (2128 approx.). So, the union can be either between an existing general partnership and investors, or between one entrepreneur and investors. The investor in this capacity cannot be obligated with anyone on behalf of the entire partnership, and in the event of its destruction he is liable only with a cash contribution (2130, 2135). That is all that our civil laws state about these types of partnerships. There are no regulations either on the procedure for drawing up and the form of execution of these agreements, or on the termination of their validity, for example. about the procedure for leaving the union, about the consequences of the death of one of the comrades or his insolvency. It should, however, be concluded that the contract is not terminated either by the death of one of the partners (according to the general rule of contracts) or by its insolvency. The Charter of Commercial Insolvency states (Const. Court. Trade. 570; Law. Civil., 2136) that the parts belonging to the insolvent in companies or partnerships, if they cannot be allocated according to the composition of the company, must be sold by the bankruptcy administration, or (when these parts are in a plant having full effect) go into assessment before satisfaction of the recovery from the income (2137). Is it possible for us, in the present state of the law, outside the form of joint stock and limited partnership, in which at least one person is assumed to be unlimitedly responsible, is it possible for a partnership of ordinary investors or shareholders with liability limited only by the contribution of each person? Others think that a condition of this kind, placed in an agreement that does not fit any of the above types, should be considered optional for third parties entering into relations with such a partnership. If such a partnership enjoyed the rights of corporations and had a legal personality (which requires special recognition and approval from the authorities), then those entering into an obligation with it would know that they were dealing with an institution based on a certain right; otherwise, when agreeing with a partnership, they are dealing only with a collection of individuals, and the responsibility of each of them under the contract with all is necessarily assumed on a common basis, i.e. unlimited, if the law for this form of partnership does not establish exceptions in this regard, i.e. limited liability. However, a partnership on shares does not in itself imply a full partnership, unless it is clearly defined in the agreement itself. This form of partnership on shares is quite common: most gold mining companies are like this. First, several partners join a common enterprise and, without even determining the capital in advance, mentally divide the enterprise fund with its assets and liabilities into an agreed number of shares or units of participation in the fund (not according to the number of initial participants, but according to mutual calculation), and distribute them among themselves - one so much, the other so much, and sometimes they leave a few spare shares for a reward to the one who provides a special service to the enterprise. Then it is agreed upon how much everyone must contribute to their shares of capital at a time or annually for the conduct of the business: these contributions can be distributed according to the conditions and unevenly. Then it is usually determined which of the partners is in charge of the enterprise, the cash desk, how the profits are distributed and in what order they are used, etc. The owner of each of the shares may, under certain conditions, transfer it or part of it to a third party: for a certain period from the opening of the company, the transfer of shares may be prohibited, and in the event of a subsequent transfer, each of the initial partners may be required to first offer the purchase of shares to their partners. Such a partnership does not necessarily imply joint liability of its members. In the case of Kalinin-Shushlyaev (1st General Meeting, September 30, 1873), the question arose about the legal significance of such a partnership, in which each of the partners was obliged to make an annual contribution, and each was separately authorized by a power of attorney to the general manager of the affairs; it was necessary to determine whether each of the partners should be jointly and severally liable for the debts of the company or should be liable only to the extent of their contribution and their shares. The Senate recognized that of the three types designated in Art. 2128. Zach. Civil, the agreement does not correspond to either a limited partnership or a partnership for plots, therefore it should be classified as a general partnership. This is hardly fair, because in the contract there is no direct condition to act together in the common name of everyone. It comes closer to a partnership of faith, but if it does not quite fit, then Art. 2128. does not at all mean to indicate exclusively types of partnership recognized by law. This form is free and allows for any modification of conditions that are not contrary to the law. It does not exclude the simplest form of society, as a collection of persons acting together by common consent, although without the unity of a legal personality. In the mentioned case, which reached the consideration of the State. Council (1879), the question arose about the responsibility of the entire company under an agreement concluded on the basis of powers of attorney given to one (third-party) person from all partners to manage the mines. One of the partners sought to prove that his responsibility was exhausted by the contribution that he had already made, in excess even against other comrades, to the common enterprise. The claimant, on the contrary, sought to place all responsibility on him alone, according to the law of general partnership. It is recognized that responsibility falls on the entire company and cannot be limited to the contributions of its comrades alone, and, by the force of the contract, no share capital was assumed, and all losses were supposed to be accepted equally for each share; therefore, if there is insufficient cash in the enterprise, partners are obliged to cover expenses from other funds, paying each other in the amounts overpaid by each. For the immediate clarification of relations in the partnership, a sample agreement is provided. On October 19, 1874, Vasiliev, Zakalinsky and Shakhno proposed to open, using common funds, an establishment of glued parquet floors, with the production of other carpentry work and with the acceptance of contracts for the construction and repair of buildings, on the following main conditions: 1) The operations of the partnership will be carried out under the firm “Vasiliev and Co.” 2) To carry out business on a common account, they must rent premises for the establishment, supply it with everything necessary and hire artisans and the necessary service; execution of this is provided to A.V. Vasiliev, at his discretion. 3) For this, as well as for other expenses in the case, they, comrades, must have and spend in the case, as needed, 4,500 rubles. ser. The contribution of this money to the business should come from each of them equally, i.e. 1500 rub. This money should be considered the fixed capital of the enterprise and cannot be taken out of business until the end of the term of this agreement. Contribution A.V. Vasilyeva goes to purchase everything necessary, specified in clause 2 of this agreement. Contributions from Zakalinsky and Shakhno must go to the business or to a credit institution in the name of the partnership: 2000 rubles. by November 20, 1874 and 1000 rubles. in February of the next 1875 4) As the business develops, each of the comrades should try to contribute equally to the business with material means, not limited to investment capital; Moreover, everyone who has spent a certain amount in the business, greater than that of his other comrades, by that part of this amount that exceeds the expenses of other members, receives, in the form of remuneration for the capital overspent against the others, and in the form of a penalty, five annual percent from the shares of each of his comrades, in proportion to the difference in costs. In this case, the basis for verifying the expenses of each of the partners will be the general office book of their personal accounts and the books containing their individual account, which each member receives for himself, upon signing this condition, signed by the other two members, and in which, just like in the general one, the receipts of money will be entered into the business, with a receipt in them from one of the contributor’s comrades, and in order to receive satisfaction - a general annual calculation drawn up on this basis. 5) Invoices of workers, artisans and services at the establishment, as well as invoices and notes for the collection of grub for people at the establishment and small, namely up to 100 rubles, invoices and notes for the collection of various materials for the establishment, are obligatory for all comrades if they are signed by one of them or a person authorized by them. 6) The work manager for the entire term of the contract will be A.V. Vasiliev, as a result of which he is primarily responsible for overseeing the correct and accurate execution of orders, drawing up estimates and drawings, supervising the work of workers and artisans, overseeing contracts for the construction and repair of buildings - if there are any - and in general technical and architectural execution. The economic part of the entire case is provided by P.U. Shakhno, somehow: purchasing grub, receiving materials, controlling materials, etc.; G.A. Zakalinsky try to acquire a business for the partnership, receive and collect money and search for and purchase materials for the business. 7) Each of the partners has the right to accept orders for items of the enterprise and enter into obligations with the customer at the expense of the partnership, with the exception of contracts for the construction and repair of buildings. 8) Payments due to the partnership, from anyone and for whatever reason, as well as deposits when accepting orders and contracts, can be received by each of the partners separately, against his own personal receipt, if the one-time receipt is not higher than 500 rubles, and against the receipt of two partners, if the one-time receipt is higher than this amount. The amount received, whatever the amount, must be presented in full to the partnership office no later than three days, excluding holidays, which records this money as a receipt. Each of the partners who has not fulfilled exactly the conditions contained in this paragraph pays in favor of the other partners: the first time - double the amount received and withheld, the second time - is subject to the same liability and, in addition, is considered to have violated the agreement, which is why he is also responsible for violating this agreement under paragraph 11. To record the receipt of money on behalf of the partnership, each partner, when signing the agreement, receives a book signed by two of his comrades, in which the office will celebrate the receipt of money. 9) In the month of February of each year, an annual settlement must be made between the comrades. The first annual calculation will be in December 1875. Each comrade receives a copy of such calculation, signed by two of his comrades. If, according to such a calculation, for a given year there is a loss, then, in the absence of general agreement to terminate the case, it continues, and the loss must be replenished by everyone in the appropriate part, within three months, counting from the end of the annual calculation, i.e. from January 1. A member who fails to comply with this leaves the partnership and is deprived of all his rights under the agreement, excluding the right to receive within six months from his fixed capital that part that remains after deduction of losses. The withdrawal of a member from the partnership on this basis does not in any way violate the agreement in relation to the remaining partners, and the company remains unchanged. The withdrawing member undertakes only, until the expiration of this agreement, not to open, personally or in company, an establishment in anything similar to this; otherwise, he is liable for violation of the entire agreement under clause 11. In the first year of the partnership’s existence, Zakalinsky and Shakhno cannot withdraw money from the business, and Vasiliev has the right to receive his maintenance from orders worth up to 2,000 rubles. 10%, up to 3000 rub. – 5%, up to 10,000 rub. and above 3%, as orders are completed and customers pay money for them. 10) To keep books on a partnership business, to control the business itself and the accounts of the partners, they must have an office with a person in charge of it. In an office, such and such books are required for keeping. 11) The term of the agreement is determined at 10 years, counting from November 1, 1874 to November 1, 1884. During the entire period of existence of the agreement, none of the contracting parties can leave the partnership, nor open on their own or in company with someone else an establishment in anything similar to a partnership, and cannot refuse to fulfill all the terms of this agreement: otherwise, the guilty member is deprived of all rights belonging to him in the partnership, including and the right to receive back his fixed capital, and pays a penalty of 6,000 rubles in favor of his comrades. silver 12) In all cases not provided for by this agreement, it acts only with the consent of all comrades, and in all disputes regarding payments, annual calculations for the last year before the dispute and the books mentioned in paragraphs 4 and 8 of this agreement serve as the basis; Moreover, a dispute about each annual settlement and an objection about its non-receipt can only take place within six months, from the day appointed for the end of settlements, i.e. from January 1 of each year. Kruzenshtern entered into a partnership with Latkin and Sidorov for the forestry operation, dividing the plot into shares for each of the comrades. Profits are divided into shares, and if there are no profits, and other comrades continue the business, then they give Kruzenshtern 4,000 rubles. per year, which are subsequently deducted from his, Kruzenshtern’s, profits. Kruzenshtern sued Sidorov and Latkin for this money. It was awarded to recover 20 tons from them. When the decision was executed, the penalty was directed to Sidorov, who was a member of the company, completely, about which he complained, limiting his liability to the measure of his shares in the partnership. It was found that the penalty was awarded to Sidorov and Latkin not as partners, but as personal debtors, and therefore should be divided equally (1 General Collection. September 9, 1873). A general partnership for a trading enterprise is called a trading house. This is the company, or the general name under which comrades trade. It is established by means of an agreement, for which there is no special form, for a term or indefinitely; but a trading house can be opened and can receive a “trade and civil sign” only by notifying the merchants in printed sheets and by submitting to the Duma an extract of the agreement, which should indicate: the type of partnership, the name, residence and title of the partners, the amount of capital, the signature and seal of those partners who are authorized to directly rule and manage the affairs. Each of the partners must have a separate certificate of trade, because the unity of legal personality in such a union is not assumed (Constitution of Trade, Art. 68–72, 79, 80). Partners of one trading house cannot at the same time be partners of another. All partners are responsible for all debts of the trading house, in general and separately, with all their property, movable and immovable (Art. 77, 78; Establishment of the Bill of Exchange, Art. 91). The death of a comrade does not break the alliance. In the event of death, each of the partners is obliged to appoint, openly or in a sealed package, a person who should take his place for the continuation of the common trade (Constitution of Trade. 73–75). If such an appointment is not made, then special rules are observed in this case to ensure the continuation of business in a commercial enterprise after the death of one of the partners (Civil Law, Art. 1238, note 1, appendix). A limited partnership is formed, as the law puts it, from one or many comrades of the same guild, by the participation of one or many investors who entrust to the first for trading certain amounts of their capital. It is called a trading house, under the name of comrades and company. The construction and opening of such a house is subject to the general rules mentioned above. But in the notice and statement the name of the depositors is not necessary: ​​only the amount of the deposit must be indicated (Constitution of Trade, Articles 81, 82, 86). The quality of the depositor, according to Article 83, does not determine the type of life (or title, as stated in the decree of 1807); From this, it seems to be concluded that a non-trading person can be an investor. The investor does not participate in the management of the company’s affairs and cannot be obligated to the face of the trading house, and in the event of its destruction he is liable only with a cash contribution; therefore, if the amount turned out to be insufficient, he is not subject to further recovery for the company (83–85). Chairmen of commercial courts and their members not from the trading class cannot participate in trading partnerships, Vol. III, Const. Service Govt., approx. 2 (according to Cont. 1890) to Art. 528. On the entry of an inventor who has received a privilege into a partnership on the occasion thereof, see Ord. Industry, Art. 192, 193. The essence of partnership. A collection of insolvent lenders should not be recognized by society, although they are all in communion of interests among themselves, but by virtue of the law and by virtue of their position, and not by virtue of an agreement. The bankruptcy administration chosen by them is recognized as legally authorized by all lenders to manage the estate of the insolvent. Therefore, the bankruptcy administration does not need a special power of attorney to conduct business, and can seek and answer in court directly, and not through a special attorney, as stipulated in Article 27. Est. Gr. Court. for societies Wed. Cass. decide 1877, N 100. The partnership is made up of persons acting under one name in the general composition; therefore, a partnership agreement by which several persons undertake to jointly harvest and thresh the sown grain is not recognized as a partnership (Cass. Resolution 1875, No. 554). It is necessary to distinguish the common ownership of property from a partnership, even if only by agreement: for example, three persons entered into an agreement that, having built a house together on an allotted plot of government land, they would participate equally in income and expenses, or trade in the house, or live in it alternately (Cass. decision 1874, No. 478). Types. In the Korotkov case, the Senate recognized the existence of a contracting partnership between two brothers, although there was no formal agreement between them, and at the same time recognized the right of one to demand reporting from the other. The following evidence was accepted: two home subscriptions from one brother regarding the acceptance of the other as a work partner, conditions concluded from both partners, and petitions from which it is clear that the defendant recognized the plaintiff as a partner (1 General Collection. September 16 April 1876). The legal rules (2126–2138) on partnerships and companies do not exclude the possibility of carrying out commercial or industrial enterprises in a company, without concluding a formal contract, by verbal transactions, the existence of which can be proven by witnesses. Cass. decide 1872, N 823. In this case, two persons accepted mediation for the sale of the estate. It is unfair to classify a simple company agreement (for the joint acquisition of a forest dacha using common capital in certain shares) either as a full partnership, nor in terms of contributions, nor in terms of plots (Cass. Resolution 1869, No. 454). Two areas in a row cannot be allocated to one gold miner; therefore, the participation of the same person in two gold mining companies prevents both companies from owning adjacent mining areas (Sb. Sen. Resolution I, No. 109). Full partnership. It is not a general partnership when the terms do not say that the partners intend to act in a common name, but it is assumed from one, as the owner, to issue a power of attorney to the other (Cass. decision 1870, No. 229). In a general partnership, everyone acts in a common name and is responsible for each other. But not every partnership in which there is, by condition or by law, mutual liability, is a full partnership. Lyalin, in partnership with three merchants, concluded a contract with the treasury, which stipulates that all comrades, and equally, are responsible for each other in the proper execution of the contract. But they divided all the contract work among themselves into departments, so that everyone was the master in his own department, receiving his deposits and submitting his pledges. Whoever turns out to be faulty must be eliminated, and his materials and deposits are placed at the disposal of his comrades who are responsible for his fault. This partnership is not recognized as full, since according to its terms, everyone is equally responsible for each other. In the event of a failure of one of the comrades, the treasury foreclosed on the payments due to his comrades, without foreclosure on his pledges, since pledges are liable only in case of insolvency (Mn. Gos. Sov. 1874). The right to seek and answer in court in a general partnership is granted by virtue of Art. 26. Est. Gr. Court., to one of the partners only in the case when, by virtue of the founding agreement, he is authorized to manage the affairs of the partnership, otherwise he must have a special power of attorney from the other partners (Cass. decision 1877, No. 255). Partnership of faith. Gauger and Shilovsky agreed to make distillation together: Gauger provided his own plant for this, and Shilovsky’s working capital was 30 thousand rubles, contracts for the supply of wine were to be concluded by Gauger and all other orders belonged to him. Shilovsky subsequently denied responsibility for contracts concluded by Gauger, without his special power of attorney. The Senate recognized the partnership condition as fitting the legal definition of a limited partnership, and the agreement concluded by Gauger was recognized as binding on the partnership, and since all the property of the partnership was subsequently accepted by Shilovsky, he must be liable under the Gauger agreement (1 General Meeting September 15, 1874). Trading house. By force 771 art. Est. Bargain. (corresponding to Article 69 of the Establishment of Trade, edition of 1893), a trading house that is opened without observing the rules of notification and registration is subject to destruction. However, if its action is open under a partnership agreement, then, after its destruction, the mutual claims of the partners for the previous time must be resolved in accordance with the provisions of the partnership agreement, and reporting requirements and conditions for the distribution of profits and losses may also be valid. In the same way, the obligations of the partnership in relation to third parties remain the responsibility of the partners, and only what in relation to third parties was the exclusive right of the partnership, according to the special meaning of the partnership agreement, is eliminated (cf. 2 General. Collection. September 9, 1879, according to the village of Vasilyeva). The decision of St. Petersburg the commercial court in the Tulyakov case (Practical Cass. Sen. 1875, No. 21; 1876, No. 19) recognized that the exit of a general partner from a trading house must be announced in the same manner as the opening of a trading house; and until the announcement, he, in relation to third parties, continues to be considered a responsible partner. Est. Bargain. recognizes the possibility of the existence and operation of trading houses established without complying with established rules. Although, by law, such a house is subject to closure, it does not follow from this that the existing relationship under the partnership agreement becomes unnecessary and that the failure of such a trading house to fulfill its obligations cannot lead to civil consequences (Cass. decision 1877, No. 364). The right to satisfaction of obligations concluded on behalf of the trading house belongs not to one of the partners, but to the entire trading house, from which this right, upon termination of the partnership agreement, can pass to anyone, at least to one of the former partners, not otherwise than as a result of a special assignment agreement. Therefore, after the termination of the trading house, one of the former comrades was denied a personal claim under an obligation written in the name of the trading house (Cass. decision 1878, No. 37). – Can a partner of a trading house carry out separate trade? Maybe, according to M. Yur. General Legal Bulletin 1871, December. In Kolosovsky’s case with an international bank, it was proven that the signature made by Berends on the transfer of bills to the bank on behalf of the Sokolov and Co. trading house was invalid, since Berends did not have authority from the trading house that was formed later, but from Sokolov alone; the circular sent out from the trading house before its opening, with the name Berends on it, could not replace a formal power of attorney. In this case, Mr. The Council (1874) reasoned that although in our laws (vol. IX Ordinance of Trade, Articles 766 and 767, corresponding Articles 67, 68, 80 of the Establishment of Trade, ed. 1893) does not contain positive instructions regarding the power and significance of promises or circulars sent to merchants by trading houses upon their opening, but, in the absence of a positive legal definition on this subject, there is no reason to give those circulars the meaning of a mere formality, for, according to the law, a trading house can only be opened and receives civil and commercial recognition only by prior application to the merchants with printed sheets and upon submission of extracts from their mutual resolutions to the magistrate or duma; This extract must indicate, among other things, the name, patronymic and nickname of the comrades, and the signature and seal of those of them who are authorized to directly rule and manage affairs. All this shows that the law attaches great importance to the act of notification. The practical significance of this act convinces us that it represents a necessary condition for the opening of the activities of each trading house and its entry into commercial affairs. Trade affairs and, in particular, banking offices carry out numerous, daily transactions with different persons and other houses, and there is no way to oblige persons entering into transactions with them to demand the presentation of documents on the basis of which the trading house was established and in which it would be determined to whom and on what rights the manager of the trading house is given a power of attorney or other act of authority when concluding each transaction and when performing each trading operation, it seems positively impossible to do. Therefore, a notice is required from the partnership, which indicates, among other things, the signatures of persons authorized to manage the house. The signature of such persons, who are announced in notices, must be recognized as the signature of a trading house or company, and everyone entering into a transaction with a partnership has every reason to believe such a signature as the signature of the trading house itself, for when the trading house officially announced that the transactions concluded by it will be signed by the person indicated in the announcement, without making any restrictions regarding the type of transactions, then each transaction signed by this person on behalf of the trading house must be undoubtedly recognized mandatory for a trading house. If we allow a different interpretation, then this would extremely complicate any transactions between trading houses and undermine confidence in the signatures of trading firms (compare the decisions of the St. Petersburg commercial court, according to the village of Rabenek. Practical Cass. Sen. 1873, No. 29; 1874, No. 30). § 64. Joint stock company. – The origin of this form in Russia, the current state of the law and prospects for the future. – The essence of a company is its shares. - Her subject. - Privileges. - Name. – Formation and approval of the charter. - Stock. – Subscription to shares. – Terms of payment. – Receipt for shares. – Right of transfer. Reserve capital and dividend. – Rights and responsibilities of shareholders. The Russian law on joint stock companies was issued in 1836. Before that time, eight companies had already been established in Russia on a joint stock basis, of which the first was considered to be the Russian-American company, founded in 1799, with a capital of 1,120,000 rubles; the second - a transport company, with a capital of 15,000 rubles, in 1822, and the third - the first insurance company, with a capital of 4 million, 1827 - Since the publication of the new regulations, the number of joint-stock companies in Russia has increased slightly. Only since the transformation of credit institutions, in 1857, when free capital began to seek use and profit for itself and the spirit of industrial and stock exchange speculation intensified, with the expectation of attracting foreign capital, did the desire to form new joint-stock companies intensify in our country (as indeed elsewhere in Europe). It soon reached extreme proportions: from 1799 to 1836, only 10 joint-stock companies were established in our country; from 1836 to 1857 – 80; from 1857 to 1860 – 84; from 1860 to 1870 – 121; from 1870 to 1874 - 258. At present, the total number of all joint-stock companies far exceeds the last figure. Meanwhile, the regulation of 1836 (1 part X vol., art. 2139–2198), drawn up in view of the need that was then just identified, turned out to be insufficient with the further development of the joint-stock business in Russia; At the same time, both the imperfections of this law and its incompleteness in those subjects for which legislative definition was required were revealed. In general, the rules of joint stock legislation, in their essence, cannot have the same decisive significance. There are subjects on which the legislator intends to protect certain important interests with a decisive and equally binding order or prohibition for everyone; but for the most part, the law provides the founders themselves with a definition of the ownership of the business in the charter, which is usually submitted for approval by the government - and only in the event that such definitions are not in the charter, should the management set its own general rule. Our law does not always clearly distinguish one case from another, so that it is difficult to distinguish in it what is absolutely obligatory for all companies and what it is left to each to determine in its charter. That is why the legal significance of the very provisions of 1836 has now weakened and, as it were, been lost: in private charters, since that time issued and approved by the government, there have been many different decisions that disagree with the law on the very subjects that are determined by the articles of the law. As a result, since the 50s. Preparatory work begins to draw up a new regulation on joint-stock companies. This provision had already been drawn up in 1867 and was even submitted to the State Council for consideration, but remained unapproved and was returned for addition and new discussion in a special commission under the Ministry of Finance. This commission drew up a new draft regulation already in 1872, which has not yet been given legislative movement to this day. So to this day, the provision of 1836 is considered to be the current law in our country. According to the definition of our law (2139), a company on shares is formed by combining a certain number of private contributions, of a certain and uniform size, into one common share capital, which limits the scope of action and responsibility of the company (the sign is imprecise, because the scope of action can be extended beyond the share capital, loans and profits; equally, liability extends to all the property of the company; the liability of a shareholder is limited to his contribution). There is no definition in our law about the smallest amount of share capital, and in practice enterprises with a capital of no more than 15 or even 10 thousand rubles are allowed. There is no doubt that with the limited liability of a joint-stock company, an enterprise started with a disproportionately small capital may indulge in risky and dangerous speculation, even for third parties; however, the law leaves this subject to private discretion. The subject of the company is (2140) a generally useful invention or enterprise in the fields of science, arts, arts, crafts, navigation, commerce and industry. The establishment of any company requires the permission of the government: but this permission does not contain a guarantee for the success of the enterprise (2142). This permission is given upon consideration of the company's charter, and the consideration relates to the general question (2190 et seq.) of whether the company's regulations are not contrary to law, morality, good faith, public order and whether they tend to harm or damage the common good, industry, and state revenues. Art. 2151 does not allow the establishment of companies, the subject of which is clearly unrealizable. The first articles of the regulation (2139–2157) contain “the general principles and rights of companies”; So, here we should look for indications of the general rules that should serve as the basis for verifying the charter. The law pays special attention to the privileges sought when establishing companies, meaning this word in the sense of: 1) exclusive right to an enterprise (monopoly, in the general sense, or in the narrow sense of a privilege according to the Constitution of the Industry); 2) exemptions from general duties and duties, or 3) benefits or guarantee from the government. An exclusive privilege, by virtue of Article 2144, can be given only to such a company that requires, before putting the enterprise into operation, special technical production and structures; other companies, which do not require this or in which income begins immediately upon the formation of capital, without preparatory work and without special risk, are not given the privilege, but other, certain (?) advantages can be provided. – Privilege to an invention must precede the establishment of companies to exploit it (2145). Special advantages and exclusive privileges are granted to the company, with special respect (2194), not otherwise than for a period, the determination of which depends on the nature of the enterprise, on the importance of costs, on risk, etc.; after the expiration of the period, the exclusive privilege cannot be renewed (2146, 2147). Assigning a franchise to another company or entering into a partnership with it is not permitted without special permission (2152). The privilege terminates in the event of the destruction of the company or if the deadline prescribed in the charter for bringing the enterprise into operation is missed (2156, 2157, 2159). An exception to the general rule on obtaining a trade certificate is allowed only for those companies that are, of their kind, the first to be established in Russia, without privileges and advantages (2149), i.e. have as their subject the introduction of a new useful industry. Each company must be established under a definitive name, from the subjects of the enterprise borrowed (2148). This name must be indicated in the charter. It is natural to assume that a new company should not adopt a name that has already been adopted by another company. Once the company's articles of association are in force, changes to its articles of association may be required, as a result of experience or new needs. In addition, there may be a need for new operations or measures that are not provided for in the charter, but have an organic connection with the essence of the institution: in such cases (for example, to increase the share capital, to reduce it, to issue bonds), foreign legislation requires special permission from the authorities or compliance with special formalities. Our law (2153) generally stipulates that once the approved charter cannot be changed in any of its constituent parts without new permission from the government, except for the details of office work, which, according to the company’s charter, it itself is allowed to make changes to them. Requests for permission to establish a company on shares are submitted to the ministry to which the subject of the enterprise belongs, with the attachment of a draft charter, which must contain the name and tenure of the company, capital, number and price of shares, conditions for the payment of money for shares and their distribution between the founders and subscribers, the procedure for managing the affairs of the company, etc. (2189–2191). In the calculation of the items that must be indicated in the charter, reference is made to the articles of the general joint stock regulations, and ministries are required (2193) to take into account whether the charter complies with the general laws and rules established, as stated in Article 2158, as the basis for particular conditions. From this, however, it does not follow that the charter should only repeat the rules contained in the law; in practice, as noted above, significant deviations from them are allowed in private charters. In addition, 2193 Art. prescribes to look at whether the rights and interests of all future participants are protected by the charter and whether the legal rights of third parties are violated. However, our law does not require, upon presentation of the charter, proof of the availability of the collected capital or some of its share. It is up to the government, according to the nature of the enterprise, to allow fractional contributions for shares or to require full contributions (2194). Upon communication with the founders, corrections are made in the charter, if necessary, and then it is submitted either to the Committee of Ministers, or, when privileges and advantages are requested, to the State. Advice. After the Supreme approval, the charter is put into effect and published (2196–2198). If, within the period prescribed by the charter, the shares are not all disassembled or the money is not all contributed, and the founders do not wish, and according to the charter are not obliged to take over the remaining shares, then the company is recognized as invalid, unless the general meeting of shareholders recognized it as possible, and the government would allow the enterprise to be run with the capital actually collected (2154). Stock. 2160 Art. Zach. Citizen repeats to this day the decisive rule decreed in 1836: not to allow nameless shares, but to allow only registered ones, although already in 1848 the law on loans against shares (2168 Art. Civil Law) assumed the existence of bearer shares. The prohibition is meant to prevent or make it difficult to trade stocks. However, now, due to circumstances, this prohibition has received the form of a special exception, and the issue of nameless shares has acquired the meaning of a general rule. When, after 1856, there was a desire to establish joint stock companies for large enterprises and it was necessary to attract foreign capital, it was impossible to do without bearer shares that could be freely circulated on foreign exchanges. In the charters of the Riga-Dinaburg (1858), Moscow-Ryazan (1859) railway companies, and then in many other charters, articles began to appear on the issue of nameless bearer shares, even without the condition of full payment. Upon approval of the charter, a subscription for shares is opened, with the announcement of the conditions and the appointment of a period of at least six months (this period is not always observed by companies counting on a successful sale of shares). Claims made in person and by mail are recorded in a cord book. First of all, founders' shares are included in it, since the founders are allowed to allocate a certain number of shares in their favor, no more than a fifth of the total number 25. These orders are made by one of the founders, under the common responsibility of all, and are subject, in the specified order, to verification and examination by the shareholders. At the end of the subscription period, shares are distributed according to requirements (2165, 2166). According to the meaning of the law, subscription to shares is allowed without depositing money and without submitting pledges; The law does not specify the rules for allocation in case of subscription exceeding the offer. In 1873, special rules were established for subscription to shares of railway companies. It is managed by a government founding commission consisting of representatives of three departments. It opens subscriptions to shares through credit institutions. Publishes its terms and method of allocation, which must be defined in the charter; makes the most allotment, gathers subscribers who have acquired the right to shares in the first general meeting to elect a board, to which it hands over the matter. Participation in general meetings is permitted only with personal certificates issued by the founding commission. Payment for shares may be allowed in the charter in parts - fragmented contributions, of which the initial one is determined in the charter itself, and subsequent ones can be determined by the board or the general meeting of shareholders. Three months before each deadline, it is published in the statements. Anyone who missed the contribution deadline loses the right to the share, and the money he previously contributed becomes the property of the company (2162–2164). This rule is overly strict. Foreign law imposes a penalty for late payments. And in several of our private charters it is stipulated that overdue shares should be put up for sale, and there is a fine for delay. A receipt issued initially by the founders serves as confirmation of the first contributions and the right to a share. It must certainly be personalized and temporarily completely replace the action. Upon payment of the entire price, a receipt is presented to the board, from where a share (2163) is issued in exchange. According to the general law (2167), a share or a fixed-term receipt can be transferred only by means of an endorsement, noted each time by the board (which itself makes the inscription in the case of a hereditary transfer). With the admission of nameless shares, this rule could no longer be maintained in all its strictness. The charters of many companies (for example, the Riga-Dinaburg railway, capital insurance, capital lighting, etc.) allow the transfer of shares by letterhead, with a subsequent application to the board for correspondence. The issue of free shares issued to other persons in compensation for the transfer of property, privileges, etc. from them to the company would deserve special attention. (material contributions, apports, mentioned above). The law is silent on this subject, and according to some private charters the issuance of such shares is permitted. Regarding the assessment of material contributions, there are regulations in separate statutes. Thus, in the charter of the Irtysh Degelevsky Mining Company of 1869, the transferred factory property was valued at 35,000 rubles. for the corresponding number of shares, but the final approval of the valuation is granted to the general meeting. Other charters (for example, the Laferm partnership, steam bakery, Tashin plant, Krestovnikov, etc.) say that property is transferred according to an inventory and assessment, with its final approval in the general meeting. Reserve capital and dividend. The assignment of both reserve capital and capital to pay off the cost of property is not mandatory by law: it is only permitted in the charter or by decision of the general meeting of shareholders (2169). The law does not indicate the rules for calculating dividends; it does not even mention that dividends are calculated only from net profit. It is only said that it is distributed at the discretion of the general meeting of shareholders and that the right to receive it is extinguished 10 years ago (2169, 2170). In individual statutes there are unequal resolutions on this subject. It is indicated first of all to deduct from net profit interest into redemption capital and reserve capital, and from the rest interest on remuneration to directors and then as dividends. Or - it is indicated that from net profit, first of all, a certain percentage for dividends should be deducted, and whatever turns out to be beyond that, part of that for directors’ remuneration and part for additional dividends. Rights and responsibilities of shareholders (2171–2173). In claims against the company, it responds with the share capital (and all the property belonging to it), and each of the shareholders – only with their contribution, which has already become the property of the company when paying for the share. The share acquired by him constitutes his personal and separate property, the value of which in his property depends on the general economic state of affairs of the company. The right to dividends or interest, sometimes represented by coupons and coupons associated with it, is also considered to belong to the stock. As a participant in an enterprise, a shareholder has the right: 1) under the conditions determined by the charter, to participate in the general meeting, with voting rights; 2) in certain cases and in accordance with the established procedure, the right to propose, the right to verify acts and documents in general matters and the right to claim and complain against management. § 65. Company on shares. – Initial management. - Election of the board. – General meeting of shareholders. – Its composition, convening, subjects of discussion, decision procedure. – Reporting and control. – Termination of the company and liquidation. – Restrictions on setting up companies for banking operations. – Proposed transformations. – Foreign companies. – Mutual Credit Partnership and other mutual assistance unions. Internal management of the company. The company is managed initially by the founders, and then by a board elected from the shareholders. The founders manage the affairs until the entire number of shares required by the charter to open the company, with the required contribution for them, has been distributed. The board then convenes the first general meeting of shareholders (2174, 2175). It holds elections for board members. The charters determine for each company the number of directors of the board and candidates for them. Other articles of association specify how many shares each director must have; Moreover, it is decided that the shares owned by the director should not be transferred during the entire period of his service and should be kept in the cash desk of the board. The law says that no one can be entitled to the permanent and permanent management of the affairs of the company (2177). And directors are elected for a period determined in the charter. By virtue of the charter, they are assigned a special remuneration in a certain amount or deduction of interest. – Some charters allow the election of directors from outside persons, so that the elected one acquires and submits the required number of shares in due time. The board, having accepted affairs and accounts from the founders, manages the affairs and capital of the company on the basis of the charter, instructions and estimates approved by the general meeting. The current law (2178) requires that the charter define up to what amount the board is authorized to make excess expenses; but this requirement of the law, due to its impracticality, is rarely fulfilled, and the limit of the excess amount is determined by the general meeting. In extreme cases, the board spends at its own expense and under responsibility to the general meeting (2179). Decisions on the board are made by a simple majority of those present: in this case, they are also binding on those not present. If a majority cannot take place, then the difficulty is resolved by a general meeting (2180), but there is no rule in the law that at least the required proportion of all its members must be present in the presence of the board. The directors of a company, or members of the board, act as its agents and are therefore responsible to it for their actions (2181). The limits of this responsibility are not entirely clear. The law says that they, in the case of “unlawful orders and exceeding the limits of power,” are responsible on the general basis of laws. So, Art. 574, 644–647, 684 Zak. Citizen and art. 1198, 1199 of the Code on penalties for intentional damage. The same rule 2181 art. It is repeated in a large part of the charters with the addition that for unforeseen losses or damages and for the failure of the company's actions, the directors are not liable. Our law does not at all indicate special offenses and violations for which foreign law threatens directors with special punishments and penalties. Regarding the liability of directors or board members Civil. Cass. Dep. The Senate states the following: in paragraph 6 (lit. c) and paragraph 8 of Art. 2166 Zak. Citizen contains direct indications of the joint responsibility of the founders to the company, the successors of the founders in managing the affairs of the company are the directors of the board, which can be the same founders (2174, 2175 Art. Civil Code), and if the law considered it necessary to indicate the joint responsibility of the founders, although they, before the formation of the board, do not yet constitute a collective unit, then all the more so the specified principle should characterize the responsibility of the members of the institution that forms the collective body of the company; on this basis, in the opinion of the Senate, it should be 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). At the general meeting of shareholders, shareholders have the right to vote in the amount of the qualification determined by the charter (Article 2171). The resolutions of individual statutes on this subject are very diverse. The price of one vote is 40 shares, 20, 10, etc. There are also rules for progressive calculation of qualifications, for example: 10 shares require 1 vote, 30–2 votes, 50–3 votes, etc. Other charters determine the maximum number of votes that one person can have for his shares. In general meetings of shareholders of commercial banks, no one can have a number of votes exceeding one tenth of the votes belonging to all present members of the meeting (Credit Constitution, Section X, Article 23). By virtue of Art. 2184, the verdicts of the general meeting are binding when they are adopted by a majority of 3/4 of the shareholders who appeared at the meeting, when calculating votes based on the size of shares; but in some charters it is sometimes stipulated that for the validity of a meeting, the presence in it of at least the required number of shareholders, representing at least a certain number of shares, is necessary. Moreover, this proportion is strengthened or the majority limit is changed by some statutes to 2/3, to 4/5, etc., to resolve certain issues of particular importance. There are charters in which, instead of the 3/4 majority of votes specified by law, a simple majority of votes is adopted for decisions. Who presides over the general meeting is determined differently by the statutes. For the most part, the choice of chairman depends on the meeting; but other charters state that the president of the council or board, or one of the directors of the board, presides. When the general meeting does not take place due to the non-arrival of a sufficient number of shareholders or there is no legal majority in the decision, the board convenes a secondary meeting, which is valid in any composition and in which decisions are made by a simple majority (Civil Law, Art. 2184, note on Prod. 1895). The law (2182) does not mean which items are necessarily subject to discussion at the general meeting: the definition of these items is left to individual articles of association, and the law, only by way of example, indicates the appointment of reserve capital, consideration of the report, distribution of dividends, election of directors, changes in the articles of association, closure of the company or continuation after the deadline, etc. At the same time, it was decided that shareholders are notified in advance of the time of the meeting and the subject of discussion by publication in the statements. This rule is essential so that all shareholders have the opportunity to learn about the meeting and prepare for it. Some charters indicate exactly how long before the meeting the publication must be made - 40 days, two and three months. Once a year, an ordinary meeting is certainly held to consider the report and to distribute dividends. Both these meetings and emergency ones to discuss emerging issues are convened by the board. All matters are included in the general meeting only through the board and, according to the general rule (2183), any proposal or demand of one of the shareholders is subject to consideration by the general meeting only if the board agrees. Such a decisive power of the board to exclude raised issues from discussion can lead to injustice and to covering up abuses. Therefore, some charters give shareholders the right to submit their proposals for discussion at the general meeting, so long as their substance is communicated to the board no later than three days before the general meeting. According to the charters of some companies, the board is required to submit for discussion at the general meeting proposals made signed by a certain number of shareholders who have a vote or own shares for a certain amount: for example, owners of 25 shares, 10 shares, 100 shares or owners of a tenth of the total number of shares, etc. Reporting. According to the law (2185, 2186), the board gives a report on its actions to the general meeting of shareholders. It must contain the state of capital and establishments, income and expense accounts, management costs, net profit and reserve capital. The report, together with journals, books and other related documents, is opened to the board in advance for preliminary consideration by shareholders. The general meeting may subject the report to a special audit through elected deputies. The charters of other companies (Ryazan Railway, Don Railway, etc.) require that reports be considered by a special commission chosen by the general meeting. Or: auditors are selected in advance, with candidates to join them, to audit the report for the next year. Or: according to the charter (of the Tsar's manufactory), permanent inspectors are selected for monthly audits. It is positively determined how many days or weeks in advance the report must be communicated to the auditors or must be open for review or printed before the general meeting. In cases where the company enjoys a special monetary guarantee from the government or the subject matter of the enterprise is of special national importance, a government director or other government person is appointed (at the expense of the company) on the board for supervision. In addition to elected directors, a director from the Ministry of Railways is appointed to the board of railway companies, who is responsible to the government for all actions of the board regarding the implementation of the charter. He is allowed to lodge protests with the board and then transfer the matter to the decision of the general meeting (Rules of 1873, Poln. Sobr. Zak., N 52068). The charters of railway companies define a special procedure for government supervision over the actions of the board and the progress of affairs through a special official or director from the government, on the board. By virtue of some statutes, the government appoints annually a special commission to review the accounts and books of the society. Termination. The existence of the company ceases either with the expiration of the period specified in the charter, or with the end of the enterprise envisaged in the charter (unless the general meeting decided to continue the company after this); or, by the verdict of the general meeting of shareholders, due to the recognized impossibility of continuing the enterprise (2155). This impossibility may turn out to be either due to the discovery that the enterprise is unfeasible, or due to an irreparable breakdown of the business and the insolvency of the company. The closure of a company is accompanied by the liquidation of its affairs, i.e. converting all her property into money and satisfying all her debts and obligations assumed by her. So, in the interest of third parties and public credit, it is very important that the company cannot continue its current affairs and confuse them even more, to the detriment of its creditors, when there are already clear signs of its insolvency. This sign is an excessive (for example, up to half or up to 3/4) decrease in fixed capital. Similar signs are usually indicated in the law; but our law is silent about this, leaving each company to make regulations about this in its charter. In the event of the closure of a company (2188, 2157), formal publication of this is made by the relevant ministry through the Senate. The board of the company first of all begins to liquidate its affairs, according to the procedure adopted in commercial matters, and publishes in the statements both the commencement of liquidation and the end of it. None of the shareholders can, however, receive back any part of their capital until the amount necessary to pay all its obligations has been deposited in the state bank from the company. Having cleared these obligations, the board begins to satisfy shareholders. In 1892, special rules were established on the procedure for liquidating the affairs of railway companies when the railways were transferred to the treasury. Liquidation is entrusted to general meetings of shareholders, the board or a special liquidation commission, which is published in the statements, with creditors summoned and with the precondition that those who do not file claims within six months lose the right to satisfaction from the amounts coming from the redemption treasury. The institution carrying out the liquidation draws up a list of claims, which is published together with the conclusion of the board or commission, and submitted to the state control. A report on the liquidation actions is presented to the general meeting, in which the final decision is made, and a publication is made about the completion of the liquidation (Civil Law, Art. 2188, note, appendix, according to Cont. 1895). Special precautions are taken by the government and special requirements are imposed when approving the charters of such companies whose purpose is banking operations. Our existing private credit institutions are almost all based either on shares or on a mutual credit union. They can be classified into three main sections. 1) Credit institutions that accept deposits and carry out short-term loan and commission transactions. Such institutions are required to secure their debt obligations either with joint stock capital, divided into equal parts (shares and shares of commercial banks), or with a circular guarantee of participants (mutual credit companies), who are also obliged to collect fixed capital, which differs from joint stock capital in that it is not divided into equal shares, but consists of different denominations of personal shares that cannot be sold; Moreover, in reality, only a small, 1/10 part of these shares is contributed, the rest should be contributed only in case of demand. 2) Credit institutions that make long-term loans and do not accept deposits. These institutions include: land banks and city credit societies for issuing loans secured by real estate, based on the mutual guarantee of borrowers, and land banks that back their operations with share capital. 3) Joint-stock companies for pledging movable property, which companies, although they make short-term loans, do not accept deposits, since the pledges allowed in them do not represent sufficient security for this. From the general regulations on joint-stock banks (Constitution of Credit, Section X) it is clear that they are based on the following principles. It is required that the main, actually contributed share capital of the bank be at least five hundred thousand rubles. (with the total permitted rate for fixed capital not exceeding five million, as well as for credit institutions based on the mutual guarantee of borrowers), and shares should not be issued below 250 rubles, so that the bank's liabilities do not exceed the combined capital and reserve capital by more than five times, and the loan of each of the bank's clients - an amount equal to one tenth of the bank's combined capital; so that the bank gradually forms reserve capital to the size of the main one, one third of which should be kept in state or government guaranteed securities in the State Bank, its offices and branches, so that the bank is obliged to liquidate its affairs when its capital decreases by one third. Deduction of special bonuses from bank profits to founders' shares and shares is not allowed. The right to acquire real estate is limited to what is necessary for one’s own premises or for the premises of offices and the establishment of warehouses. The new draft regulations on joint stock companies of 1872 proposed many additions and improvements to the existing law. According to the instructions of our practice and foreign legislation, it is proposed to establish a correct registry of the charters of joint-stock companies, through the appearance department at the Ministry of Finance, so that special government permission is required for them only in exceptional cases (privileges, benefits, credit, banking transactions, etc.). Further innovations include the following. The smallest number (seven) of comrades composing the society is indicated. Shares are issued at nominal price, with a contribution of at least 10%, which is paid to the credit institution. The first general meeting represents at least 1/2 of the capital, and the founders do not have the right to vote on issues relating to their personal interests. The conditions under which a society is considered open are more precisely defined. The lowest price of shares is indicated and the deadline for the sale of capital on shares is indicated. Temporary certificates must be named, but shares can be unnamed. The liability of subscribers for a malfunction in contributions is defined more precisely, as is the assessment of material contributions, and intangible contributions (concession, privilege) are not supposed to be included in the price. The redemption and payment of bonds and the calculation of dividends are provided with new guarantees. Cases of mandatory termination of a company's activities in the event of a decrease in its capital, etc., are indicated, and rules are established for the liquidation of its affairs. Detailed rules have been established on internal governance, on the rights of shareholders, on the composition and determination of the general meeting, the board, the supervisory committee and audit commissions. By force of the convention with France (1863) and with Belgium (1865), local joint-stock companies and other commercial, industrial and financial partnerships with limited liability can enjoy all their rights in Russia, including the right of judicial protection, in accordance with Russian laws. In a similar sense, declarations were exchanged with Italy (1866) and with Austria (1867). The expression: “in accordance with Russian laws” apparently indicates the need for foreign companies to seek special permission from the government to open operations in Russia. There is a special restriction regarding foreign insurance companies, in note. 2 to 2199 art. Zach. Citizen Among the partnerships of special national importance are mutual land loan partnerships, established following the example of Kherson and other zemstvo banks, and on the basis of those established in the Charter of Credit. rules (section X. Art. 40 et seq., 59 et seq.) and rules on the procedure for establishing private credit institutions (ibid., Art. 1 et seq.). In Pol. Mutual Fear. (Vol. XII, Part 1, ed. 1886, Art. 39, 92, 131) suggests the possibility of establishing private mutual insurance societies in volosts, villages and cities. In Const. Bargain. 367–375 mentions a contract of mutual defense against attack, concluded, in case of danger, by three or more shipowners in one of the ports and the obligations arising from such a contract. Chapter Nine. A pact of the unfaithful and the accidental § 66. The essence of contracts of this kind and their difference from barter contracts. - Motive reason. - Game. - Lottery. – Rent agreement. – Urgent delivery of exchange valuables. - Exchange game. – Russian laws on gaming and lottery. Contracts of this kind differ from barter contracts in that in the latter the subject of exchange or payment is performance, action or property, which, at the very conclusion of the contract, has a determinative value and is subject to at least an approximate assessment; on the contrary, here the subject of the contract and the incentive for it is not a determinative benefit, but only the probability, greater or lesser, of gain or loss. The action performed under the contract, on both sides, and sometimes on only one side, consists, according to the intention of the parties, depending on an event about which it is completely unknown whether it will happen or not at all. It is true that in other contracts conditions may be placed in connection with an accident or an unknown event, but in those contracts these conditions do not have significant significance: the contract may or may not exist (for example, barter, loan, hire, etc.). does not change its properties. On the contrary, in the contracts we are talking about here, the calculation of the incorrect and accidental is the main goal and main content. The motivating reason (motive) in contracts of this kind is either the fear of actual danger or the hope of chance. The first type of calculation is in the insurance contract, which will be discussed below. In the second case, the parties create artificial interest for themselves in the case, inventing cases that would not have taken place without special consent, or giving random, sometimes completely insignificant or insignificant events a special, by convention, significance. These are the agreements on gaming and betting. In the game, the participation of personal art, calculation and consideration is either allowed or completely eliminated; in the latter case, the game becomes gambling. New legislation gives a place to gambling and betting among casual contracts, dividing games into permitted and illegal, into skillful and gambling. French law grants a right of action only for games dependent on art, authorizing the judge to reject the claim altogether when it appears excessive in amount. However, it is not allowed (which was allowed in Roman law) to demand back money that was voluntarily and actually paid for the game. In any case, in a game, as well as in a bet, a good conscience is assumed, without the intention of probably beating. – Prussian law completely denies the right of action for the game, denying the validity of the obligation given for the game or for the game; but admits an action on mortgage. Austrian law recognizes, both in legal games and in bets, only the actual payments made or the money laid out during the game itself as valid. The lottery is one of the types of games, and by some it is considered a purchase for good luck and happiness (Hoffnungskauf). This is an enterprise in which everyone participates, without prior consent among themselves, making, under the terms of a well-known plan, certain monetary contributions, for which they are drawn between them to determine who will get it - valuables or money. In this sense, there is an agreement between them and the lottery entrepreneur in which they risk their contribution in the hope of winning, and the entrepreneur acts without risk. Lotteries can be public or private. In the first case, the entrepreneur is a public institution or the state, usually for charitable or financial purposes, or with the special purpose of realizing capital for a public cause. Private lotteries, outside the close family circle, if allowed, are done with extreme caution, and only with the permission of the government. Agreements on the inaccurate and accidental include transactions in which the predominant calculation of chance is associated with risk, such as: purchase for luck (for example, the purchase of a fish tank, the sale of a future harvest, an open inheritance, the sale of a process), contracts for lifelong or fixed-term annuity (see below), the so-called tontines, or mutual insurance of pensions, lifelong incomes, Bodmer loans and etc. The concept of their invalidity in case of a loss-making error in calculating value (laesio) is incompatible with transactions of this kind. Among contracts of this kind, forward transactions for the supply of goods and stock exchange securities, based, under the influence of stock speculation, on the calculation of price differences (Differenzgeschäft), have acquired particular importance in recent times. In general, a forward transaction (marché à terme), which constitutes an important instrument of credit on the stock exchange, is based on the calculation of fluctuations in exchange values. A banker or capitalist, counting on receiving money at the end of the month, buys in advance for this date a certain amount of securities at a known price, keeping in mind a possible increase in the exchange price of the securities at that time, from which he will benefit. On the other hand, the owner of the securities, knowing that they will be free at the end of the month and fearing a drop in prices, sells them in advance at a known price, for a known date. These are transactions involving the actual transfer of securities and paid money, and therefore can be considered serious (opération sèrieuse). But very often, persons entering into such a transaction have neither money nor securities, and do not have in mind the actual acquisition of securities and payment for them, and are obliged to buy and sell only for show, for the sake of speculation (opèration à découvert), answering each other only with the difference between the agreed price of the securities and the actual one, which will turn out to be at the time of execution of the transaction. Moreover, the buyer expects the exchange rate to rise compared to the agreed price (in this case, he receives the difference in the exchange rate from the seller) or the seller expects the exchange rate to fall (in this case, the buyer pays him the difference). The so-called exchange game (jeu à la hausse, à la baisse) is already taking place here. The benefit of the parties is based on the risk depending on the case, and consists, as stated above, either in the full difference in the exchange rate (marché ferme), or in the compensation premium, which, according to the condition, the loser must pay to the winner (marché à prime). In connection with these transactions there are many other auxiliary and accompanying ones of the same kind, which are aimed at continuing the loan in the event of the first failure, or a new turnover to correct the previous one. This is, for example. A very common double transaction on the stock exchange, in which one party buys securities with cash and immediately sells them for a term, and the other party sells for cash and immediately buys for a term. This operation (le réport), based on the difference between the price of cash and credit, allows the capitalist to place his capital for the shortest possible time (for example, for a few days) with a profit, or the owner of the securities to get himself the necessary capital for a short period on favorable terms, and gives the speculator a way to resell the unprofitable securities he bought for a period in which he hopes, with a favorable exchange rate, to sell them at a profit, etc. Stock trading is recognized everywhere as harmful to public morality, but not all legislation denies the absolutely legal significance of the transactions with which it is covered. In transactions of this kind that satisfy credit needs, it is generally very difficult to distinguish where commercial calculation ends, with the actual exchange of values, and where speculation, which has all the signs of a game, begins: all the more difficult in our time, with the enormous increase in the number of nameless credit securities traded on the stock exchange, and with the extreme development of bold and inventive speculation in the trading of these securities. So, legislation generally avoids prosecuting stock exchange transactions of this kind, or existing prohibitions are weakened by judicial practice. The strictest rules are the French law (Civil. 1965, Ang. 421, 422), which threatens with criminal punishment the game of increasing or decreasing public funds (effets publics), covered by the imaginary delivery of them on time. But the effect of this prohibition is significantly weakened in France by judicial practice, which, however, has repeatedly changed its view on this subject. Russian law, in police terms, distinguishes between permitted and prohibited games: the latter includes gambling. In prohibited games, it is prohibited for anyone to participate by writing notes, keeping accounts, giving money, or accepting and fulfilling obligations (U. Prev. Prest. Ed. 1890, Art. 260). In 2014 and 2019 Zach. Citizen it is said that a loan is considered void if it is found that it originated from a game or was made for a game, with the knowledge of the lender. When compiling these articles from the decrees, no attention was paid to the question of whether any game - even permitted - is considered an illegal basis for a loan, or whether the denial of such loans means only prohibited games. It is true that the sources do not provide direct guidance on this subject. But certain decrees relate to special cases of prohibited gambling, or luxury and extravagance, and in the Charter of the Deanery of 1781 there is Art. 67, in which all kinds of games are mentioned, including permitted ones, and at the end it says: the request and claim for debt and payment for the game must be destroyed. But there is another article - 257, which refers exclusively to prohibited games, and at the end it says: the request for debt and payment for a prohibited game is not accepted and the claim is destroyed. So, according to the letter of the law, it is more correct to conclude that there is no claim for a debt arising from any kind of game. It is correct to include bets under the concept of a game, especially since in the decrees of 1761 and 1766. the expression “and mortgages of every rank” is used. Lotteries. Lotteries can only be played with the permission of the government in the prescribed manner, and with the precautions specified in the law, for poor people, and for an amount not exceeding 1,500 rubles, with an assessment of things. The order of drawing is determined by special instructions. The sale of foreign lottery tickets requires special permission, subject to special rules. The sale of private tickets for any lotteries, as well as tickets for loans with winnings, is not allowed (Constitution of the Prest., ed. 1890, art. 265–276). Trading with lotteries or surprises is prohibited. Wed. 2 Sat. Sep. decide II, No. 277). There was no direct regulation in Russian law prohibiting transactions involving stock exchange games or relying on exchange rate differences. There was only a special law prohibiting forward transactions in shares. In 2167 art. Zach. Citizen it is said that any conditions between private individuals, both on the stock exchange and outside it, about the purchase or sale of shares or receipts not for cash, but with delivery by a certain date, at a certain price, are strictly prohibited: in court they are considered invalid, and participants in them are punished as for gambling. But in 1893 this rule, as inappropriate to modern economic conditions and not applicable in practice, was canceled, and instead it was decided that transactions for the purchase and sale for a period of gold currency, bills of exchange and similar valuables written in gold currency are prohibited, if such transactions are made solely for the purpose of obtaining the difference between the exchange rate agreed upon by the parties and the actual one, for any period, and, moreover, if the method of their implementation is made, at the very conclusion of the transaction, depending on the discretion of one from the sides. Violation of this will result in a fine. Cass. Dep. The Senate (1868, No. 269) argues regarding a mortgage or bet agreement that since the agreement cannot be attributed to any type established by law, then the courts cannot judge the correctness of its drafting and apply to it both general and particular rules on obligations. This reasoning can hardly be justified, in view of Art. 1528. The validity of any transaction concluded by mutual consent is the rule. Invalidity is an exception, which is based on special reasons specified in the law (Art. 1529). With the current diversity of economic relations, there may be quite a few transactions that do not fit into any of the legal categories, which we generally depict in scant terms: it is impossible, for this reason alone, to completely deny their binding force. The betting agreement must be subject to special consideration, whether it meets the criteria of invalidity under Art. 1529. In one case (Cass. decision 1868, No. 414), the magistrate court eliminated the debt arising from a bet, recognizing the bet as a game based on chance. The Senate upheld the decision, concluding that the court recognized the debt as arising from a bet during the game. The issue of the legality of forward transactions for the supply of stock exchange securities was considered in the case of Petrokokino and Herzberg (2nd General Meeting of September 23, 1875), and on the one hand it was stated that, apart from the law prohibiting the delivery of shares (Article 2167), there is no other prohibitive rule on this subject, and since the subject of the transaction were winning 5% tickets, the transaction should be recognized as legal. On the other hand, it was expressed that in the spirit of the rule of Art. 2167. (issued in 1836) its effect should extend not only to shares, but also to other interest-bearing securities. According to this decision of the Senate and on the basis of paragraph 5 of Article 1529. the transaction was declared illegal. § 67. Insurance contract. - Its subject. – Certificate of insurance. – Insurable interest and its relationship to actual value. – Execution of the contract. – Terms of remuneration. - The right of the policy. – Life insurance. The purpose of insurance is to protect against fear for the integrity of property. There are subordinate agreements that also aim to ensure the correct execution of another main agreement for a certain value; are: surety and pledge. But the insurance contract is independent, not an additional one, and is concluded for the sake of one security. One person - the insurer - accepts property from another - the insured - at his own risk, i.e. undertakes to compensate him for damage or loss of property from accidents. Nowadays, insurance is produced almost exclusively by companies operating on a commercial basis, and the insurance contract itself is usually classified as commercial law. Only the Prussian civil code contains a statute on insurance independently of the commercial statute, and the Austrian code places four articles on insurance in the general section on contracts of chance (Glücksverträge). The insurance contract arose only among new peoples, with the development of industry and in connection with trade association enterprises. The Romans had something similar, but not identical, in the sea loan agreement - foenus nauticum: the lender, for high interest, assumed the fear of a sea crossing, so that if the cargo, equipped with the borrowed money, would perish and the debt would disappear. In the same way, i.e. in the form of an additional security agreement, marine insurance appears in local maritime charters starting from the 9th century (Rhodes - 9 tables, Consolato del mare - 11–13 tables, jugements d'Oléron - 12 tables). The first traces of fire and death insurance, in the form of an independent contract, appear in Western Europe from the 16th century; then, in the 17th century, legislative insurance statutes appeared almost everywhere, and in 1720 the first joint-stock company for marine insurance was founded in England, of which England is still the main representative. The insurance contract is essentially compensatory: the reward for the accepted fear is the payment of the so-called premium. This insurance must be distinguished from mutual insurance, which is essentially free of charge. Insurance from a premium is usually classified as a trade transaction and is combined with the insurer's calculation of profit, since he receives a premium in any case for the risk, and a misfortune requiring compensation may not happen. On the contrary, mutual insurance does not represent a trade transaction: it is a partnership agreement in which the participants share fear for the integrity of their property, providing it to each other. The material subject of insurance is an interest connected with the integrity of property or normal condition; its purpose is to compensate for possible damage to this interest from a known danger or accident. So, not only the owner, but also the temporary owner can insure his interest: the interests can be varied, as well as the dangers from which one is insured (for example: buildings - from fire, ships and cargo - from bad weather, from careless management, from robbery, harvest - from hail, livestock - from death, people - from conscription lots, from accidents that endanger life, etc.); Only the interest associated with an illegal or prohibited enterprise cannot be insured - and then only within the state from which the prohibition was issued, if the prohibition is not international or general (such as the slave trade). The insurable interest must have some value. The same property can be insured in consideration of various interests connected with its use and included in its economy, so that one property can be the subject of different insurances (other legislation, for example, Prussian, requires that the sum of all insurances not exceed the total value of the property itself). The purpose of insurance is supposed to be your own interest, and not someone else’s: to insure someone else’s interest in your calculation means to take a gamble or bet on someone else’s interest. The insurance contract is written and is concluded in the form of a so-called policy (Italian polizza, from the word pollicitatio), which sets out the conditions of insurance (in insurance companies that conduct almost exclusively this operation, printed forms are used for this), with the receipt of a premium consisting of a certain percentage of the insured value. This value is indicated either by an accurate assessment of the property, or approximately by the extreme price of the amount required to satisfy the loss. The policy must specify exactly the type and duration of the danger or accident against which the property is insured. The policy is always issued in a well-known name; Only in commercial matters is it permissible to issue untitled policies, so that the right to remuneration can be transferred, along with the policy, by inscription. A strict concept of insurance requires that the price of insurance should not exceed the actual value of the property. The purpose of insurance is not enrichment, but only the covering of damage, and therefore, in a strict sense, neither insurance above the actual value, nor double insurance in the full price of the same property is allowed, as well as the addition to the price of expected benefits and profits 26 (in French law there is a rule: when insuring goods in case of transportation, do not include in the calculation of the profit expected from the sale of goods at the place of arrival) (Code. comm. 347). The insurer's solvency may, in turn, be the subject of secondary insurance; and the insurer himself can insure himself against the liability that he assumed under the insurance contract. Execution of the contract requires special, strict good faith on the part of the insured, so that the violation of this obligation destroys the validity of the contract. The insured is obliged to notify the insurer of all the circumstances on which the terms of insurance depend, and has no right to conceal anything, because the insurer, taking on fear for him, takes, so to speak, his place in this fear. Therefore, when concluding a contract, the policyholder is obliged to answer the insurer, without concealment, to all his questions about the circumstances of the insured property. During the insurance, the insured must not arbitrarily change the situation of the property in which the fear was accepted by the insurer: he himself is responsible for the danger arising from the negligence and fault of the insured, and he remains responsible for any newly arising danger that was not foreseen in the original agreement. The policyholder is obliged to pay the premium in advance for the entire agreed period of fear inseparably, and the premium must be paid in any case before the onset of danger and the associated fear. In the event of newly arising dangers beyond the contract, the insurer may demand an increase in the premium, and if the danger for which the contract was concluded does not occur at all, the contract is declared void, and the premium paid, with a certain deduction, is returned (ristorno). This return is not provided for fire insurance. In the event of loss or damage, the insurer must be notified about it immediately, no later than the due date. He is obliged to compensate the insured either for a complete loss - with the entire insured amount, which in any case determines the extreme limit of the insured value, or for partial damage, based on its relationship to the full value, or according to an assessment of the actual damage, with the costs of averting the danger and correcting it. The responsibility to certify the loss and its value lies with the insured; however, such policies (Prussian: taxirte policen) are allowed (only not in fire insurance), in which the gross amount of compensation in the event of harm or loss is indicated in advance, so that the insurer is obliged, in order to reduce this amount, to prove that it is higher than the actual loss. By paying the full value, the insurer acquires the right to everything that remains of the insured property: in this way, i.e. by providing the insurer with all insured property (Abandonniren, delaissement), calculations are simplified in case of private damage or when the fate of the insured property is unknown. In some cases - defined by law (in case of marine insurance) - the insurer is required to retain property. The right to compensation under an insurance policy necessarily presupposes danger and is necessarily connected with an actual danger to known property or interest belonging to a known person. With this, it would seem, the transfer of the policy and the right associated with it to a third party is incompatible, at least until the danger continues and the harm has not occurred, opening up the right to a valid claim for compensation. However, with marine insurance, the transfer of the right to the future and possible remuneration is allowed, and with other types of insurance the possibility of transfer is not denied. It is also common among traders to issue policies to bearer or for satisfaction by order. The right under the policy appears to be a personal right, since its object is to secure a personal interest in property valued at a certain amount. In this sense, judicial practice usually refuses, for example. The insured's mortgage creditors are entitled to the money owed to him under the policy on the insured property, which serves as security for the debt. But, on the other hand, with the transfer or alienation of the property itself into the ownership of another owner, the former owner, the insured, is no longer afraid, which was associated with ownership and was the subject of the insurance contract, therefore, when harm occurs, it would seem that there is no reason for the former owner to demand compensation; however, the insurer is obliged to satisfy the policy of the one in whose name it was issued, and does not have the right to deny the claim on the grounds that the property has changed hands. The insurance contract, as a personal one, does not automatically pass, along with the transfer of property, to the new owner (except for inheritance), and the latter receives the right under the policy only as a result of its transfer from the previous owner. Life insurance. The subject of insurance may be damage that may occur from the death or serious illness of one person to another person who is related to him by the interest of maintenance. Insurance aims to compensate for this loss and even more: to deliver, due to the death of one person, to another person a certain income or the acquisition of a certain value; or – deliver to the policyholder himself, in the event of a serious illness or senile impotence, a certain amount for maintenance. In this sense, insurance serves as a means of saving or stocking up on capital for a rainy day. The content and subject of such an agreement can be very diverse. A husband or father can provide, in the event of death, a lifetime income for his wife or maintenance for his children. The creditor can insure his satisfaction in the event of the death of the debtor. Insurance can be in case of death in general or in case of death from a known danger (for example, during a long journey by sea, by rail, etc.). In contracts of this kind it is impossible to determine the standard for assessing the insured interest, and therefore this assessment is completely arbitrary; but the higher the rating and the more likely the danger, the higher the premium charged for fear. § 68. Start of insurance in Russia. – Insurance companies. – Fire insurance rules according to the charters of companies. – Reinsurance Society. – Mutual insurance. – Marine insurance. – Life insurance. In Russia, the first provisions of the law related to marine insurance, the establishment of which appeared in 1781, in the second part of the charter of merchant shipping: these rules were replaced no earlier than 1846 by a new charter, which is still in force. Fire insurance was also introduced at the end of the 18th century by the government, for which an insurance office was established at the state assignation bank in 1798. Finally, in 1801, the establishment of private trading offices and companies for insurance began. But our state laws do not contain detailed rules on insurance: only the rules of marine insurance are classified as trade statutes. In the Code of Civil Laws, in the system of contracts, there is a chapter on insurance, but it consists of only two general articles and refers the details to the charters of insurance companies (Articles 2199, 2200); Only recently have special rules been issued on the procedure for establishing and supervising these companies. Insurance of real estate located in Russia belongs only to Russian companies: insurance in foreign institutions is allowed only in the case when Russian companies refuse to accept insurance or demand a premium of more than 21/2 percent. On the contrary, marine insurance is freely permitted in foreign companies (Constitution of Trade 540). Reinsurance by Russian insurance companies in foreign companies is allowed (Civil Law, Art. 2199, note 1; P.S.Z., N 43972). Insurance of buildings accepted as collateral under contracts with the treasury is recognized as mandatory: it is carried out by the treasury department, if it was not carried out by the counterparties themselves (Pol. Treasury. Sub. 48 et seq.). According to the law of 1894, each operation of insurance companies must be supported by fixed capital of at least five hundred thousand rubles, and before the accumulation of reserve capital to the size of one third of the fixed capital, the dividend cannot exceed seven percent, and before paying off the costs of organizing the enterprise, on which it is allowed to spend up to ten percent of the fixed capital, it should not be higher than six. Insurance companies are under the supervision of a special government agency - the Insurance Committee, to which they submit reports, balance sheets and statistical statements. The Insurance Committee carries out audits of insurance companies at its own discretion, or at the request of shareholders and policyholders. Insurance companies are closed if the fixed capital decreases due to losses at the rate shown in the charter, and in the absence of such an indication - by more than 2/5 of the capital, if it is not replenished. The closure is published in the statements, and the liquidation process is entrusted to the liquidation commission elected by the general meeting, chaired by a person appointed by the Minister of Internal Affairs on the recommendation of the Insurance Committee; if the commission is not elected, then it is appointed by the same minister from the persons represented by the committee. If signs of insolvency are detected, the court declares the company insolvent, and then the insurance company is subject to closure according to the rules of the credit charter on the closure, due to insolvency, of credit institutions, and instead of bankruptcy management for the liquidation of cases, a special liquidation commission is appointed by the Minister of Internal Affairs, in agreement with the Ministers of Finance and Justice (Law. Civil. Art. 2200 note 2, appendix to Cont. 1895). Fire insurance rules according to the charters of insurance companies. All kinds of property are accepted for fear (including ships while they are on the waters, Establishment of Torg. 538, 545), except for credit values, some flammable substances and so-called incorruptible things. Doubling insurance and in excess of the actual value is not allowed, but it is allowed to insure property in another company for the remaining amount of value, if in the first company it is not insured for its full value. (Varsh. if, by agreement, part of the cost is left at the risk of the owner himself, then he no longer has the right to re-insure in other companies.) The property is insured from the tenant or tenant only to the extent that they themselves are responsible to their owner for fire losses. The property can be insured not only by the owner, but also by the mortgagee. No one, as stated in other statutes (Varsh.), has the right to insure someone else’s property in his own name. The charter of each company stipulates the shortest insurance periods - a few months, but goods are insured for any period, even the shortest. The amount of the premium depends on the greater or lesser risk and the period of insurance. Renter's or occupant's insurance coverage is only considered until the end of the lease or tenancy. The property is accepted for inspection and evaluation through the architect of the company (where he exists) or a knowledgeable person entrusted by the company, and the owner is obliged to provide all the necessary information and make statements about his property, for the accuracy of which he is responsible under penalty of destruction of the contract; the company is allowed to verify the inventory and valuation through its agents at any time: if, after verification before the fire, the value turns out to be inconsistent with the valuation according to the policy, then the insurance can be destroyed with the return of the premium according to the calculation. Valuation rules are specified in the statutes. Only the cost of the building is taken into account, without regard to the land and the benefits of the location. Goods have the meaning of property in circulation, i.e. spent and replenished. Therefore, when insuring goods, it is provided by statutes to deliver them at risk or in batches, indicating quantity, weight, measure and price, or as working capital, indicating only the amount thereof, but in both cases the company has the right to verify the valuation through its agents at any time; since the measure of remuneration is determined by the actual value of the property that was available during the fire, the company is not deprived of the right to examine this value after the fire, at least in relation to the burned goods (cf. Cass. decision 1876, No. 359). The act of insurance is the policy, but insurance begins at 12 o'clock on the day when all the following payments are made, in which an invoice or receipt is issued, temporarily serving instead of the policy; it has a conditional meaning, because it also requires approval from the company, which in the policy may still offer other conditions or refuse insurance altogether (Cass. decision 1871, N 1220); however, such a certificate, issued on the spot by an agent of the company, if not rejected, is recognized as establishing an agreement, becomes binding and determines jurisdiction in the sense of Art. 221. Est. Gr. Court. (Cass. decision 1887, N 282). Insurance ends at 12 noon on the last urgent day. In case of continuation, the policyholder is obliged to notify the company in advance (eight, for example, days) of changes in the property. In general, the policyholder must notify the company of any change in the condition of the property or its movement, otherwise losing the right to compensation. If a new agreement is required due to a change and it does not take place, then the old one is destroyed with the return of the settlement bonus. The insurance right automatically passes to the heirs of the insured; but any transfer of it to other persons without the knowledge of the board is invalid. The company must be notified of the transfer of property into other hands, and it is up to it to refuse to continue insurance, with the return of the premium according to calculation; Failure to notify the transfer of property will result in the insurance being destroyed. When the insured property is pledged, the pledgee is obliged to notify the company and submit the policy for signature if he wishes to protect his right to participate in the reward from the company. Other charters (Com. Page 1870, “Salamander”, add. 1875) say that when further continuation of insurance turns out to be inconvenient for the company, it can terminate the contract by returning the premium according to calculation. Insurance is transferred to other items or transferred to another person only with the consent of the board of directors of the insurance company. The invalidity of a contract for the transfer of the insured item to another person without the consent of the company is a general rule of all private charters. It is explained by the fact that the insurance contract is of a purely personal nature and is based on the personal trust of the insurer in the policyholder. But as soon as the insured property burns down, the contract loses its personal character. The policyholder, acquiring the right to receive compensation from the company, becomes a creditor of the company, and on the basis. 541 Art. Zach. Citizen has the right to transfer his claim to other persons (Cass. decision 1878, N 196). In the event of acceptance of the insured property as a mortgage (St. Petersburg Insurance Company), the right to demand compensation passes, within the rights of the lender, to the person to whom it is pledged, as long as this is notified to the board in a timely manner for a note on the policy (decision Sen. on the village of Akkerman. J. M. Yu. 1865, No. 5). When fire damage occurs, the owner is obliged to notify the company immediately (within a few days), in order to protect his rights. Following this, the company, in due time, takes measures to certify the loss through local agents, and where they are not there, the owner, within the due time, must present to the company an accurate indication of the loss, certified by the local authorities, according to a preliminary inquiry, and with an assessment according to the rules of the charter. After the combustion of goods, the policyholder is obliged to promptly provide a detailed inventory of everything that was present on the day of the fire. For participating in a fire with intent, for concealing what was saved, for evading research, which delayed the reporting of the loss for a year, as well as for concealing the risk of fear, the owner is deprived of the right to compensation. Removal of insured items in the event of a fire, contrary to the requirements of the insurance agent, also deprives the right to compensation, as well as failure to notify the company about additional insurance completed in another company. The basis for satisfaction is the assessment, based on the assessment of the burnt or damaged, which is determined either by knowledgeable people, or in relation to goods by measure, count and weight, at exchange and market prices on the day of the fire. The appraisal is done either by agreement, or by the company's appraiser together with the appraiser from the policyholder. It is certainly understood that insurance in no case serves to generate profit, but only to compensate for a substantially incurred loss. If everything that was insured is burned, the full assessment amount is issued. In the case of private damage, compensation is assigned in the proportion to the amount of insurance in which the burnt part consists of the whole object. The basis for assessing damage to real estate (as stated in other statutes) is the calculation of how much it will cost to restore the damaged property to its previous condition, as well as whether the owner can or cannot restore the building in the same form; but losses from non-receipt of income are not taken into account. In other charters (Insurance 1827, add. 1875) states that damaged items are transferred to the insured at an agreed price or, if desired, the company retains them with payment of their value on the day of the fire. In case of private damage to goods and movables, special compensation rules have been established. In general, it extends to the loss not only from the fire, but also from damage during extinguishing and to the costs of saving property. When the value of the property exceeds the insured amount, the owner himself is considered the insurer of the excess, is obliged to bear a proportionate part of the fire loss and enjoys the right to a proportionate part of the saved estate. Remuneration for losses is not due when they occur from enemy military force, from indignation, from earthquakes, hurricanes, from the explosion of gunpowder mills and magazines. Payment of remuneration should not be delayed for more than a month (or the like) from the time of the agreement. And the policyholder’s right to claim is limited to a period (one year, etc.). Agreement. Insurance conditions placed on policy forms, regardless of the charter of the insurance company, have the meaning of a simple contract; but when these conditions, by the force of the charter, are subject to approval by the Minister of the Interior and were approved by him, then they have force (Cass. decision 1878, No. 94), in any case, unconditionally binding; therefore, the policyholder cannot refuse them due to ignorance (Cass. decision 1878, No. 94, 131). The printed rules on the policies of the insurance company, under the title: general conditions, express the conditions under which the company accepts property for insurance; therefore, the person insuring his property in the company thereby enters into an agreement with him on the proposed conditions (Cass. decision 1868, No. 703). Violation of conditions. The insurance company refused to insured the cargo that was lost on the river. Vychegde, in compensation, based on the terms of the policy, which stated that barges should not sail through the mouth of the river. Vychegda before opening it from ice, and proving that the ship should not have been launched until the entire river was cleared. But in the case it turned out that when the ship set off, the lower part of the river was completely cleared, and only in the middle part the opening followed later. The Senate, interpreting the contract according to intent and good conscience, acquitted the insured. The treaty does not say that the barges should not sail through the mouth of the river until it is opened along its entire length, and such a condition would be impossible to fulfill, because the course of the river extends for 900 centuries. in three counties: in this case, insurance would not matter. Moreover, the policyholder did not offer his own conditions, but had to accept those offered to him by the company and included in the policy; therefore, the bewilderment cannot be blamed on the policyholder, but must be attributed to the omission of the company, which could have determined the conditions with greater accuracy (Sb. Sen. decide III, N 1045). When the charter of an insurance company prohibits doubly insuring property, both in the same company and in several different ones, under pain of invalidity, then the contract drawn up contrary to this is considered invalid from the time of its completion, regardless of one or another accident. In this case, the insured justified himself by the fact that the violation occurred after the fire, and before that the property was insured only by one company (Cass. decision 1878, No. 48). The insured goods were sold to another person, without notifying the company, then resold again, also without notice, and during the fire came back into the possession of the original insured. Despite the fact that the first unannounced sale was recognized as sufficient, on the basis of the charter, as a reason to recognize the contract as terminated and to refuse compensation for the burnt property (Cass. decision 1876, No. 556). In the Ge case (Cass. decision 1876, No. 359), the insurer argued (General 1827) that the company is exempt from payment for violation by the insured only of those obligations that are positively stated in the charter, and that only conditions that must be fulfilled before the fire, and not after it, have such force. This reasoning was rejected by the Senate and it was recognized that all conditions in general placed in the charter and in the policy have such force. In the Lemson case (Cass. decision 1865, No. 979), the civil court deprived the insured of the right to compensation, recognizing on his part the intentional testimony of such things as were burned that at that time had not yet come into his possession. The Senate recognized that intent in this case, constituting a criminal offense, could not be recognized by a civil court. One can still doubt the validity of such a judgment. Someone who insured his movable property in Siberian insurance companies transported part of it, at a cost of 1,250 rubles, to his dacha, notifying the insurance company. Subsequently, he was denied remuneration, because it turned out that he had transported the things not to the dacha, but to a cotton factory operated by a steam engine, and did not announce this circumstance (see Cass. decision 1868, No. 703). The insurance company (Ross. 1827) is obliged to be responsible for the consequences of removing insured things from a premises that has not yet caught fire, if there was a real danger, and if the agent of the company did not warn - not to take things out (Cass. decision 1869, No. 116). The insurance company (Russian Insurance) refused to pay for the burnt building on the grounds that window frames had been removed from it before the fire, without notice. But this objection was rejected because the frames were removed to protect it from water, and the company was warned during the insurance process that the structure was dismantled annually to protect it from spring waters (Cass. decision 1873, No. 14). In the insured's advertisement for the Salamander insurance, the insured property is shown to be in a barn covered with iron, and in the advertisement submitted after the fire it is shown in a barn covered with wood. Due to this contradiction, the company refused the reward, but was not exempted from it, on the grounds that deliberate silence about the ownership of the item on the part of the insured was not proven, and the mistake, if made in the first announcement, was insignificant, and the company in any case could verify the accuracy of the testimony through its agents (Cass. decision. 1873, No. 219). Failure by the insured to provide on time a detailed inventory of goods that were present on the day of the fire deprives the right to compensation (Cass. decision 1877, No. 197. St. Petersburg. General insurance). In dec. Cass. 1878, No. 94, it is explained that when, according to the charter of the company (Northern), it is necessary to provide inventory to the insured property that was on the day of the fire, then failure to provide this inventory deprives the right to compensation; Witnesses cannot be allowed to replace equipment. For the need for the policyholder to prove how much of the goods were destroyed by fire, see Cass. decide 1878, N 389. By force of the charter (Moscow Insurance Company), the policyholder is obliged to present evidence from local authorities that the fire did not occur due to the intent of the policyholder, indicating, if possible, the true cause of the fire. In this case, the police testified that during the inquiry it was not discovered that the house burned down from deliberate arson on the part of the insured or his family, but some persons expressed during the inquiry the assumption that the arson was not caused by an unknown person. The company refused compensation, demanding such evidence as to the cause of the fire, which would exclude the possibility of assuming that the fire occurred due to the intent of the insured. Such an objection, however, was rejected, since the insurer was not brought into the investigation as an accused, and no suspicion was raised against him (Cass. decision 1879, No. 53). In the village of Novikova, after the burning of an insured factory, it turned out that the same items were insured both in the Russian insurance company and in the 2nd Russian; therefore, the first refused its responsibility, on the basis of § 52 of the Charter. The plaintiff, citing other paragraphs and 1195 Art. Lay down Nakaz., objected that double insurance eliminates liability only in cases where it was the consequence of intentional and criminal deception. But the Senate (Cass. decision 1879, No. 80) decided that such an action is prohibited, on the merits of the insurance contract, which cannot serve to profit the policyholder - which, if double insurance were allowed, would be unattainable. Damage assessment. In the Kramer case (Mn. Gos. Sov. 1878), after a fire, the owner of the burnt building did not deliver, within the month required by Charter 2 of the insurance company, a definitive statement of the losses incurred, with a local certificate. The insurance company had the right not to recognize as binding a statement of loss made after missing this deadline. Therefore, the company drew up an estimate for correcting the damage, and the loss was calculated in this amount. The remuneration was determined based on this estimate. In the same case, the issue of assessment for insurance compensation was raised. The insurance company's estimate was drawn up to assess the damage in order to correct them. But the owner of the property subsequently submitted his estimate of the parts remaining undamaged, and the amount of the loss was deduced by deducting this amount from the total price of insurance. The plaintiff argued that only such an assessment, according to the charter, should serve as the basis for calculating remuneration. But since this estimate was drawn up four months after the fire, and after the winter, during which the structure was still damaged, the first estimate was adopted as the basis. Dec. Cass. 1869, N 49, “Salamander”. Even though the property assessment for insurance and the assessment after the fire were made with the participation of the company's agent, the company has the right to send its authorized representative for verification and revaluation. The insurance estimate serves as a guide for compensation of losses, but is determined by the actual value of the building, which the company is allowed to verify even after the fire by drawing up detailed estimates. The right to verify assessments (Russian Insurance Company) is assumed in relation to buildings and objects existing in cash: correction and change of already established estimates and assessments made by the insurance company after a fire to burnt and non-existent property does not apply (Cass. decision 1873, No. 14). In 1864 and 1867 rules were published for zemstvo fire insurance and for mutual insurance of rural buildings where zemstvo institutions were not introduced (vol. XII, part 1, ed. 1886). Zemstvo insurance is established in each province, under the jurisdiction of the provincial government, and necessarily applies to all rural buildings within the boundaries of the peasant estate. All other buildings in cities and counties are subject to insurance only at the request of the owners, therefore, under an agreement with an insurance institution, through the volost government or county government, according to an assessment for which the highest amount can be determined in each province. In accordance with the assessment, the amount of premiums is assigned, which can be changed from year to year, for reasons of overall savings of the insurance fund. The premium is not refundable under any circumstances. Additional insurance is allowed in other institutions, up to the amount of the assessment. When the building changes hands, the insurance also changes. Revaluation is allowed. Regardless of mutual zemstvo insurance, it is allowed to form, at the request of local residents, a special mutual insurance society, in volosts, in each city or in several cities together, even with benefits from city and public funds. To Cass. decide 1877, No. 323, it was recognized that under mutual insurance, provincial governments do not have the right to demand compensation for fire losses paid from the insurance capital from the insurer through whose negligence the fire occurred. According to the rules of zemstvo insurance, insurance payments are assigned to compensate those whose structure was damaged by fire; but there is no indication of the right to hold the person guilty of negligence responsible for damage to the zemstvo: the only legal reason for this is arson. Mutual insurance in provinces where there are no zemstvo institutions is under the general supervision of the Economic Department of the Ministry of Internal Affairs, and local management belongs to the provincial presences for peasant affairs or provincial and regional boards. Peasant and petty-bourgeois buildings in the county that are not insured by other insurance companies are subject to compulsory insurance, according to an assessment based on the insurance statement, or according to a special assessment made by the volost foreman with the village headman and conscientious persons, numbering from six to twelve people. Structures insured in this way can be transferred for additional insurance to other insurance institutions and companies. In cities, mutual insurance is also allowed on the basis of regulations approved by the Minister of Internal Affairs. Participation is not required. City societies may also be allowed to take over property located in the counties. Transportation insurance, sea, river and land, on ordinary roads and railways. Earlier in time and the most developed in regulation was marine insurance. The practice of many centuries gives him the opportunity to generate rich statistics, through which, with the help of modern science, the causes of accidents that have occurred with ships in various seas and under various, repeated conditions, on which the danger of sea navigation depends (distance of the journey, time of year, external danger at sea, quality of the vessel and crew, etc.), are determined, with the help of modern science. In Western Europe, the business of marine insurance has received a completely definite organization: in London and Paris there are so-called Lloyd's societies: they keep knowledgeable agents in almost all ports of the globe who are obliged to collect and send to Lloyd the most accurate information about the qualities, accessories and circumstances of each ship entering the port. According to this information, each ship is annually assigned to one or another category in Lloyd's registers, according to its reliability. These registers serve as a repository of information open to each insurance company, which, based on them, measures its insurance premiums. Our Trade Charter (Article 539 et seq.) contains rules on marine insurance, issued in the regulations of 1846. When issuing these rules, marine insurance companies and marine and river insurance companies established before that time are required to be guided by the statutes issued for them. Regarding the new provision, it is allowed, in those cases that are not defined by it, to refer to the rules adopted by other states. The subject of marine insurance can be: the vessel itself, with its accessories; cargo, freight charges and profit from it, expected profit from goods; money given as collateral for the ship and bonfire. It is positively prohibited to insure things and goods prohibited for import and export, military ammunition and supplies belonging to the enemy, goods that are prohibited from trading with the enemy, and trade in blacks. The insurer is responsible for losses from the dangers of the sea route: this includes cases arising from a storm, fire, collision with other ships, attacks by the enemy, robbers, privateers, an accident to a ship necessary to save the cargo or ship; detention or oppression by foreign powers, deceit, treachery and mistakes of the ship's master or ship's servants, "and all other cases causing wreck or death, harm or loss." The insurer is responsible for the costs of the rescue and for the salvage reward to the crew (Article 509). This general liability against all dangers occurs in any case if the policy does not indicate exclusions or limitations on special conditions (Article 539). However, liability does not extend to insignificant or minor accidents and to losses resulting from the poor condition of the vessel, which has fallen into disrepair, from negligence that caused a fire, from internal theft of goods or from internal damage (for example, due to unstable stowage, dampness, mouse-eating, etc.). Insurance is not canceled if, for good reason, a obviously reliable transhipment to another ship was carried out en route, and the insurer was notified of this in compliance with formalities. The insurance contract is concluded directly by the issuance of a policy from the insurance company. This policy can be transferred from hand to hand by inscription, and payment is made to the bearer. You can only give away your own property or someone else’s property, by proxy. When insuring, an actual danger is assumed and therefore it becomes invalid if the contract is concluded after the danger has passed. The statement about the ship and cargo must be made in full and at a price, even if only a part of the whole is given at risk. The same item cannot be double insured; if this happened unintentionally, then only the first contract remains in force. Reinsurance is freely permitted. Fear begins from the hour the cargo is transported from the shore and continues until the hour of unloading at the destination. For loading and unloading, the law specifies a period of up to 21 days. In case of flight cancellation, the contract may be canceled with the return of the premium, except 1/2%; and if the ship does not leave within a year or goes beyond its destination, the contract is unconditionally destroyed. To be satisfied, the owner is obliged, upon receipt of news of the accident, to notify the insurer immediately (three days). The insured is obliged to certify the loss and prove his participation in the insured item. The loss of a ship or cargo can be either total (wholesale) or partial. A wholesale loss is considered when a ship is captured, detained by a foreign power, wrecked, running aground, or becomes unable to sail due to a storm, or the cargo is damaged to 3/4 of its value. In these cases, the policyholder receives the full sum insured without deduction. In the event of a wreck or death, the insurer is given the option of either taking everything salvaged at his own expense, paying the insurance money, or, having provided the insured with everything salvaged, to pay him for the loss; but at the same time, the insured is supposed to be obliged to take care of salvation, as is characteristic of a good owner, therefore his negligence is his responsibility. Private accidents are calculated: for goods in proportion to the exchange price and auction proceeds, and for a ship based on the assessment or repair costs. The accident payment is divided between the insurer and the policyholder according to the full price announced at the time of insurance. The insurer is liable up to the amount specified in the policy. A claim may exceed the full sum insured only if the excess arises from the necessary costs of preserving the property and could not be covered by the insurance money or new insurance. Insurance of goods and vehicles during transportation is carried out by special companies established for this purpose, according to the conditions specified in the policies. The charters of these companies do not contain detailed rules on this subject, except for some private regulations, for example: on the deadlines for submitting claims for remuneration, for investigations by the company about losses, etc. In addition, it is decided that public and private documents and papers cannot be the subject of insurance. Baggage insurance is provided either as a stand-alone contract or as an add-on to the transportation contract. In this last sense, insurance is connected with transportation enterprises of various kinds, according to the charters of joint-stock companies engaged in transportation (for example, the Kama-Volga Shipping Company, etc.). There are several societies for life insurance in Russia: Russian Society for Insurance of Lifetime Capitals and Income, 1835; St. Petersburg Society of Fire Insurance and Life Capital Insurance, 1858, and a company under the company “Zabotlivost”, 1873. The subject of insurance is: capital paid upon the death of the policyholder or upon the expiration of a certain period from the date of conclusion of the contract; income in favor of the person named in the policy, paid to him annually until his death, starting from the date of death of the policyholder; annual income, payment of which is made to the policyholder himself after a certain time has passed from the date of insurance until his death; capital paid either at a time or over a certain number of years upon reaching a certain age by the person named in the policy; finally, capital accumulated by several persons, of whom special groups are formed, at the beginning of reciprocity. The money contributed by individual groups of persons, with compound interest accrued on it, is divided, after a certain period, among the participants still alive at that time, in accordance with the number of shares of each, and only a certain percentage of the next amount to be disbursed is retained in favor of the company. Due to the abuses of the tontine insurance system used by some companies, i.e. with the accumulation of profits, in 1894 High. approved The Regulations of the Committee of Ministers stipulate that life insurance with participation in the profits of the company accumulated over a certain period at the expense of the previous group of policyholders is unconditionally prohibited. With participation in the general profits of the whole company, it is allowed only with the obligation to annually pay out the said profits no longer than three years from the date of acceptance of insurance. A separate Commission under the St. Petersburg Society for the Promotion of Russian Navigation was engaged in revising the laws on bodmeriy. The project she compiled on this subject was published in the “Proceedings” of the said Society for 1879. French law positively defines what amendments and repairs are the responsibility of the tenant himself in the apartment. An interesting diagram of different types of personal hiring can be seen in Danquart's article: Der Arbeiter – Vertrag, published in Iherings Jahrbücher 1875. In dec. Cass. Dep. 1871, No. 504, it is expressed that in this case the consent of the husband cannot replace the passport given by the husband to the wife for free residence. Such a narrow and strict interpretation of the law is hardly thorough and fair. The commission agreement has recently received particular development in the circle of commercial transactions and has required new legislative definitions, regardless of the general forms and accessories of the order or mandate. The German Commercial Code is a remarkable example of new legislation on this subject, about which similar information can be found in the excellent work of Grunhuet: Der Commissionsvertrag. In addition, German law obliges the board to comply with certain rules when drawing up the balance sheet, e.g. show the securities exchange rate based on the day the balance is presented; show management costs not as an asset, but as an expense, etc. Our law does not provide any guarantees for the founder's right to shares. Meanwhile, experience shows that in many cases the founders primarily intend to speculate on their shares in order to take advantage of the profit from the resale of their shares immediately after the establishment of the company, and then they themselves leave the enterprise altogether. This could be prevented by the requirement that at the very presentation of the charter, a certain part of the share capital should be available in cash and that the founders should be deprived of the right to sell their shares for some time. The essential meaning of this rule is to maintain good faith between the parties. When the policyholder, under the guise of the real value of the property, includes imaginary, exaggerated or fictitious values ​​in the amount shown, he is acting in bad faith; but when the indication of the price is done consciously, on both sides, by common agreement, then there is no reason to raise doubts about the correctness of the assessment. Therefore, now, especially in the field of trade transactions and relationships, freedom is allowed in determining the insured value at the very conclusion of the contract.