Третий отдел. Обязательства, возникающие из действий

Chapter one. Reward for losses from criminal and non-criminal actions § 69. Remuneration for loss from action. – The concept of loss and deprivation of profit. – Responsibility for inaction. – Who is entitled to remuneration? – Expected harm. – Connection of loss with action. – Obligations arising from criminal acts. – Intention and degree of guilt. - Personal grudge. - Claim for injury. Regardless of the contract, obligations arise from illegal actions from which someone else’s property suffered. Every right to property presupposes a free possibility of use, and no outsider has the right to restrict, limit or violate this possibility; if someone violated it by his intervention or action, he undertakes to restore what was violated or to reward for the consequences of the violation. This obligation not to interfere with someone else’s property rights, not to violate someone else’s legal status is general, does not imply a special legal relationship between persons, but lies with each, in relation to each. Who exactly is obliged is revealed only as a result of a violation. This obligation is carried out in compensation for the harm or loss caused. Any deterioration, decrease in values ​​and strength, any damage to property constitutes a loss. Loss is understood in a twofold sense: either in the sense of positive damage to existing parts and values, or in the sense of lost benefit, lost income that could have been extracted or received from property (damnum emergens and lucrum cessans - Roman law) - an important distinction, both economic and legal, in relation to the very essence of damage. Liability for omission can only exist where there is a special legal relationship between known persons; but where this relationship does not exist, the basis for responsibility for an action is not just the direct direction of the will to perform the action, but also inattention, negligence, imprudence to the circumstances in which the action resulted in a loss to someone else’s property. Any person who has a real legal interest in property also has the right to demand compensation for damage in this interest. Confusion may arise on this issue where the right of ownership belongs to one person, and another has the right of possession or temporary use, or even the right of temporary retention or storage of property (such in the latter case is a luggage receiver, an attorney, an artisan who is entrusted with a thing for work). There is no doubt that not only the direct owner of the property has the right to demand compensation for damage, but also the temporary owner and holder, since he himself must be responsible to the owner for the integrity of the property. The subject of a claim and compensation can only be harm that actually occurred, and not possible and foreseeable harm, and not an action from which there were no visible consequences. Actions by which possession is violated, and without positive damage, constitute the subject of a special claim for the protection of possession; in addition, in Roman law some claims were allowed to prevent expected harm or to prevent threatening actions (for example, operis novi nunciatio, cautio damni infecti) - claims that do not have a place in modern legislation. There is, however, no need to expect the harm that has already been discovered from an action that has begun and is not quite completed to be completed. The injured plaintiff must prove that damage to a certain extent and value resulted, and that it resulted precisely from an unlawful action, and not from another reason. There is no need to prove in all cases that the harm resulted from this cause necessarily and exclusively. According to the theory, a distinction is made between immediate, direct loss, which arose solely from the action constituting the violation, and indirect or indirect loss, which depended not only on this action, but also on other circumstances not related to that action. In the first case, liability for the loss will be integral and complete, in the latter it will be partial and incomplete. This distinction, true in an abstract sense, is inconvenient to implement in practice, and therefore is adopted only in a few legislations (Prussian). No one is responsible for damage that occurs solely from an external, accidental circumstance, and the owner of the property has to endure the damage (casum sentit dominus); but if an external circumstance, in the totality of its consequences, was caused or determined in its quality by the action of a person, this person is not excluded from proportionate responsibility. The causal connection of a loss with an action is easier to determine in cases where it is a matter of cash damage (d. emergens), but it is difficult when the loss is shown in the deprivation of a profit: there is a lot of room for arbitrary and conjectural conclusions and assumptions, so that the possible and the incorrect or only the probable can be mixed with the certain and doubtful. The court will have to consider not only the external (objective) conditions of the expected profit, i.e. Could the property really give such a profit in its material and legal economy, but also personal (subjective) conditions, i.e. the conditions of the activity of the owner and acquirer - and they are very difficult to determine when the activity itself was not present. In such cases, some jurists propose the following prudent rule: profit from a certain activity can be assumed to be true when this activity constitutes a necessary property of a good owner, without which a good economy cannot be imagined. It is true that such an assumption can also be refuted, depending on the circumstances of the case, when it turns out that the victim was definitely not a good owner. When the profit is of such a kind that it does not require positive activity and economic care from the owner, but requires only simple monitoring of receipts, then its determination is not difficult. Of the new legislative provisions on this subject, the most important is the Prussian law of 1871 on the liability of railway departments, mining plants and factories for deaths and injuries (to workers, passengers, third parties) during work and during the operation of the enterprise. This law recognized for the first time the principle that the railway department is responsible for the consequences of such an event, regardless of the guilt of one or another of its agents. This liability is eliminated only in the case where the defendant proves that the incident occurred due to the personal fault of the victim or due to force majeure. The owner of the factory in such cases is responsible for the guilt of his agents. Remuneration, in the event of death, consists, in addition to compensation for costs and losses during illness and treatment, in the satisfaction of the maintenance of those persons whom the deceased had to support by law, and in the case of illness, in compensation for the maintenance that the mutilated person had to lose as a result of his injury. – This obligation is unconditional and cannot be limited in advance by any agreements or transactions. The court is left to determine the amount of remuneration either in a capital amount or in the form of annuity, which can subsequently, according to changed circumstances, be reduced or increased. A special property are obligations arising from actions that are undoubtedly illegal - from crimes and misdemeanors - which, according to Roman law, was included in the scope of the so-called Aquilia claim (actio legis Aquiliae - damnum injuria datum). In Rome, proceedings of this kind consisted of a system of private fines imposed for crimes and misdemeanors against private property, in which the perpetrator was prosecuted through a private lawsuit. The amount of this fine in favor of the offended person was determined either as a round sum, or twice, three times, four times the amount of harm caused (poena dupli, tripli, quadrupli). Private fines have lost almost all meaning in the latest legislation; their place is taken by compensation for harm or loss, made, regardless of personal punishment for a crime or misdemeanor, by a verdict of a criminal or, in some cases, a civil court. In criminal justice, imputation or punishment is consistent with the degree of malice and guilt of the defendant. This difference in degrees is reflected in new legislation and in civil imputation, i.e. according to the reward. Roman law adhered to the simple rule in these cases that the reward must be full (in lege Aquilia et levissima culpa venit). The new laws differentiate the degrees of civil imputation according to the degree of guilt: especially the Prussian law is distinguished by the extreme detail of the shades of this imputation, according to different shades of guilt and negligence. Persons who do not have full mental or moral consciousness (mentally ill, children) are not subject to imputation; but the one who was obliged to have supervision over them is responsible for them; The masters on whose orders they acted are responsible for the actions of servants. Owners guilty of negligence or oversight are responsible for damage caused by pets. Accomplices, instigators and accomplices share responsibility with the main participants. Of particular importance are violations related directly to the individual. They relate to civil law, since they have an effect on the property of the injured person, and are resolved into the obligation of compensation. These are: murder, bodily harm, imprisonment, violence, personal grievances and insults. Among the actions mentioned, personal grievances differ from others in their internal properties, in the method of satisfaction, and in the order of production. In Roman law, offense related primarily to the area of ​​civil relations, and only in exceptional cases was it the subject of criminal retribution. There the very concept of offense was broader than what it is now, because the word injuria meant any extraneous action that hindered the free movement of the will in the circle of private civil law or the free use of one’s civil right, and, moreover, a claim for offense was sometimes a means of justice for such a violation that did not fit under any other formula. The means of retaliation for an insult was a private, so-called assessment lawsuit (actio injuriarum aestimatoria), in which the offended person himself assessed his damages from the insult with a certain amount of money, and the judge had the right to determine definitively. When the number of criminal claims for injury increased, the offended person had to choose between a civil claim and criminal prosecution. In the new legislation, the matter is put completely differently. French law refers to offense exclusively in the area of ​​criminal justice (Code pen. 367–377, C. Instruct. crim. 139); Austrian law allows for monetary compensation for an insult only in the case where it results in material harm. Prussian - is guided by the same principle, and provides only minor grievances to the civil court. So, retribution for an insult now consists mainly of criminal punishment, and perhaps also of asking forgiveness from the offended person. – However, both Prussian and Austrian law also mention a special penalty for combat (Schmerzensgeld), which is awarded in case of bodily injury, regardless of compensation for harm and damages. This penalty is determined by a round sum and is provided according to Prussian law only in favor of persons of the lower class. In English law there is a unique procedure for compensation for so-called civil injuries, separate from penalties for criminal offenses. Civil violations include the following: 1) written or printed insult to honor or slander (libel), 2) verbal insult (slander), 3) threats, attack, fight, mutilation, imprisonment and violence in the general category of personal injuries (personal injuries), 4) adultery, as an insult to a spouse by illegal communication with another spouse, 5) seduction of a girl (seduction), 6) violation of the inviolability of someone else possession or someone else's soil, self-will, trespass, 7) malicious and sneaky prosecution in court (malicious prosecution), 8) interference with the free use of property and its benefits (nuisance), and, finally, 9) any kind of negligence that caused damage to someone else's property. For any of these violations, a civil claim for monetary compensation may be brought (even for offense caused by adultery), the amount of which is finally determined by a jury verdict. § 70. Russian law of remuneration. – Remuneration for harm and losses from criminal acts. - Measure of responsibility. – Responsibility of the main perpetrators, accomplices and participants. – Reward for killed and mutilated. - For insult. - For violence and capture. - Grade. – Responsibility of officials. – Responsibility of judges. – Criminal and civil claims. The Russian law (issued in 1851 27) establishes rules for remunerating harm and losses: 1) caused by non-criminal acts or omissions (what is meant by the word quasi délits) and 2) crimes and misdemeanors. Claims in cases of the first type are brought civilly, and in cases of the latter type - criminal. Remuneration for harm and loss caused by a crime or misdemeanor. A person guilty of a crime or misdemeanor, no matter how he acts, intentionally or unintentionally, is obliged to compensate for all harm and losses directly caused by his act. But liability is eliminated when the cause of harm was an accidental act, without even any negligence on the part of the offender (644, 647 art.); So, the basis for liability is one fault. In addition to immediate damages or losses, there may be other, more distant ones, and the culprit is responsible for them if malicious intent is detected in his action, i.e. the intention to cause harm and loss to the injured person (645). Accomplices in a criminal act, who have previously agreed, pay the reward equally, but one is responsible for everyone and everything for one; if there was no prior consent, then each is responsible only for his share, and when it cannot be specifically determined, equally with others (647-650). Those who knew about the intent and concealed it, connivers and concealers, are liable in the second degree, i.e. in case of failure of the main culprits 651, 652 (Clause 14, 15). The parents with whom they lived, or the persons obligated to have supervision over them, are responsible with their estate for minors, if it is recognized that the minor acted without understanding, and if the supervising persons were negligent in their supervision in allowing a criminal act. If it is proven that there were no means to warn him, then the minor himself answers with his own name (at least he acted without understanding - this must be concluded from the wording of Article 653). On the same basis, the responsibility of the insane and insane is determined. If the guilty parties are insolvent, the plaintiff is allowed to enter into an agreement with them or treat them as insolvent (646). According to the new Ordinance. Ugh. Court. (187) The court may extend the collection by installments. The methods of remuneration for special types of crimes and offenses against the person are indicated as follows. For a person killed or brought to death, when his family is left without sufficient means of support, the court determines, in proportion to the property of the perpetrator, sufficient and, if possible, decent support for each of the family members who were in the care of the murdered person, until the acquisition of other means, or, otherwise, for the parents until death, for the widow and daughter until marriage, for the son until he comes of age. Expenses are collected for the treatment of the wounds of the murdered person and for the maintenance of the family while he was alive, and for the funeral; taxes and duties are collected for the taxable person until a new revision (657–659). Similarly, remuneration for the treatment of a person damaged in health and maintenance for him and his family are determined if he has lost the opportunity to support himself through labor (660–662); a raped girl receives compensation for treatment and decent maintenance until marriage, and an adopted child receives funds for education until she reaches adulthood (under. therefore stolen); the spouse deceived in marriage, upon divorce, provision of maintenance until marriage and the fate of surviving children (663, 664, 666); deprived of liberty - compensation for losses and for the maintenance of the family (665). The security is assigned, at the request of the subject persons, in the form of either a one-time or annual benefit (676). For a personal insult, the offended person is entitled, at his request, and depending on his condition and in relation to the offender, the so-called dishonor, from 1 to 50 rubles. But a civil action for injury deprives the right to a criminal action, and an action for dishonor cannot be joined with an action for punishment of the offender. In addition, if damage to credit or property is caused by insult, then compensation is awarded, as determined by the court (667–670). The person guilty of appropriation, theft and seizure of someone else's property is obliged to return it in the same form and condition, or pay for it at the prices of the time when the crime was committed or when the decision was made, as the owner demands, as well as return to him all income and benefits received, or reward him for losses and damages and reimburse him for all expenses for finding the property. For the destroyed property, the offender is obliged to pay at a price also chosen by the owner, and to restore the damaged property at his own expense to its previous condition, or, at the owner’s request, to pay him what is needed for correction, and when correction is impossible, to pay for the property as if it were destroyed, with losses from the time of destruction or damage (671–673 art.). 674 art. mentions a special remuneration for the shore owner. The court determines the amount of remuneration according to the circumstances of the case, appointing jury pricers to evaluate the stolen and damaged property, and requiring an opinion on the amount of compensation from class representative institutions (675). Officials, when their official actions of a criminal nature caused harm and loss of property to a private person, are obliged to compensate for this on the basis of the same rules. The law (677) here means “the adoption of illegal measures or other illegal actions in the service, for selfish or other personal reasons, proven to the court.” So, here a civil claim for compensation must be preceded by a criminal court verdict admitting criminal guilt (Sb. Sen. decide. I, 597; Cass. decide. 1871, N 941). Judges who have deliberately or recklessly passed a sentence to punish an innocent person are obliged to return him to their account from exile, pay him for a criminal punishment from 100 to 600 rubles, and for a correctional punishment from 10 to 60, compensate him for losses, and provide support for him and his family if necessary. Police officials are subject to the same responsibility for carrying out punishment on an innocent person. To the second degree, i.e. in the event of the failure of the main culprits, governors, prosecutors, and solicitors are responsible for confirming or passing the wrong verdict (678, 681, 682). But whoever has suffered punishment only in excess of the legal measure has the right to compensation only in the case when this increased measure caused him losses or damage to his health (680). A significant change in view on this subject followed with the publication of judicial statutes, which facilitated claims for damages against officials (Ust. Gr. Sud. 1316–1336). The liability of an official for losses caused to a private person by an action in his service is no longer limited to those cases where the official acted for selfish reasons (677 Art. 1 Part X Vol.), but extends, according to the force of the rules established in Chapter II of Section I of the General. Institution Lip. (vol. II ed. 1892) and 1316 art. Est. Gr. Court., for all those cases in which the action of an official is associated with negligence, imprudence or slowness (Cass. decision 1870, N 893). The basis for initiating personal civil liability of an official to a private person for an action that violates the civil interest of the latter (by virtue of Article 677, Part 1, Part X, Vol. and 1316, Art. of the Constitution of the Civil Code of the Russian Federation) may be a personal action, order or inaction of an official or an excess of the legal measure of the order regarding the subject person or his property. On the contrary, a general measure adopted by a government official, a general order, or an error, incorrectness and inaction in the adoption of such a general measure cannot serve as the basis for a civil claim by a private person for the consequences of that order and action, since they relate, among other things, to the interests of that person in property and served to his damage. In these cases, remuneration to private individuals can be assigned only at the discretion of the highest government, in the form of state justice, and not by the court, in accordance with the application of civil law. Claims of this kind against persons of the administrative department are filed, in due time, in the district court, in the chamber, or in the Senate, depending on the class of positions, and are considered in the joint presence of a special composition, with the participation of the administration. This presence decides, first of all, the question of the correctness of the defendant’s actions, and then, if it finds him guilty of causing the loss, determines, if possible based on evidence, the amount of remuneration; otherwise, it is left to the plaintiff to prove it separately in the general manner. A separate procedure has been established for the consideration of such claims against officials of the judicial department. They preliminarily consider the issue of preliminary permission to bring a claim by a special presence. Finally, in the same category of rewards for crimes and misdemeanors, rule (683) was established on the liability of the government or a private company for damage to individuals from an accident that occurred on the railway. But this liability was limited only to cases where the misfortune occurred from inattention and carelessness, and was eliminated when the misfortune occurred from such causes that could not be prevented by any measures of forethought and caution. Currently, the view of the legislation on claims of this type has changed significantly, and they have acquired the meaning of civil claims (see below). A person who is the victim of a crime or misdemeanor may himself initiate prosecution against the offender and appear in court as a private prosecutor, with a view to both rewarding the harm and punishing the offender; or can only join already initiated criminal proceedings as a civil plaintiff, solely for the purpose of remuneration. If such a civil plaintiff has not filed a claim before the opening of the criminal hearing, he may bring it in a civil court after the final criminal decision. Moreover, non-recognition as criminal or failure to impute guilt to the defendant for his act does not eliminate the civil claim for compensation for harm and losses caused by this act, as long as this act itself is not doubtful and not rejected by a criminal decision; and the criminal court itself, even if it did not recognize that act as criminal, does not have the right to exclude itself from considering a civil claim based on this act (Constitution of the Criminal Code of the Court. Articles 6, 7, 31 and the corresponding decisions of the Criminal Code of the Cass. Dep.). Loss from the actions of officials. Where judicial statutes have not been introduced, the procedure for collecting damages from officials remains the same, i.e. The plaintiff must first obtain recognition, subject to government authority, of the wrongful actions of the official, and then bring a claim in court solely to determine the amount of damages (Cass. decision 1877, N 123). When officials are representatives of public authority, they are personally responsible for acts committed to the detriment of private individuals, and the claim for compensation is made against them personally. But when they are authorized by the treasury for its property, liability is determined in accordance with the general law, by virtue of which the trustees are liable for harm and losses caused by the trustees (Cass. decision 1878, No. 162). Among the omissions, as a result of which an official can be held liable in a private lawsuit, is the loss, due to fault, of a document presented for collection. But to satisfy this claim, the official enters into the right of a creditor and can turn to the debtor in order to restore the meaning and effect of the lost act (Cass. decision 1873, No. 673). To recognize civil liability for losses, there is no need for intent in the action: here the law defines an offense only by negative signs - the absence of coercion on the part of the law, the need for defense and a confluence of unavoidable circumstances (Article 684). Cass. decide 1875, N 490. In 1872, according to the village of Reingarten (2 Sat. Sen. Resolution IV, N 935), the Senate discussed the issue of responsibility of members of the life fl. Gofgericht for the decision - that in force 677 art. 1 part X t. bringing an official to property liability to a private person is made dependent on the ability to prove that the official (in this case, a judicial one) made an incorrect decision and, moreover, had selfish or other personal motives; otherwise, judges could be held accountable for any decision that misapplies the law. In the village of Sklobovsky (Cass. decision 1877, No. 127), the chamber awarded the recovery of the amount of the bill from the notary because, having accepted the bill for protest, he did not protest it in a timely manner, and meanwhile the debtor became insolvent. This penalty is based on Art. 684. Zach. Citizen – A claim for damages against a notary from his actions in his official capacity is brought in accordance with the general procedure in the court to which he is subordinated in his official capacity. To bring this claim, a preliminary review of the actions of the notary in the manner of supervision is not required (Cass. decision 1878, No. 114). The actions of a notary, when presenting a notarial deed for approval, should be recognized as official actions, damages for which are subject to recovery from the notarial pledge (Cass. decision 1883, No. 111). Civil action for a crime. In a claim for damages, the civil court is obliged to determine whether the event that caused the damage was the act of the defendant, even if this event belonged to the department of the criminal court, unless the decision of the criminal court left this issue without a definitive discussion (Cass. decision 1873, N 1479). Claims for compensation for losses caused by such criminal acts, which are prosecuted only on the basis of complaints from victims and the prosecution of which is subject to termination after reconciliation, can be brought directly in civil court without first going to a criminal court (Cass. decision 1882, No. 52, 69). There is no reason to seek in a civil court damages from such an action, which a criminal court recognized as not having occurred at all (Cass. decision 1878, No. 166). The determination by the jury of the nature of the defendant’s act, regardless of whether the act is punishable or not under criminal law, should not have an impact on the decision on the civil consequences of the act. Therefore, and since not every deception or false belief is subject to criminal punishment, when the jury found the act to be deception, although not punishable, the absence of punishment does not serve as a reason for a civil court to deny a civil claim for the destruction of an act or act based on deception (Cass. decision 1878, No. 129). The Moscow Mutual Credit Society paid 13,000 rubles for the transfer to the Kharkov society, but this transfer turned out to be forged, and the culprit of the forgery, an employee of the Kharkov society, was convicted by a criminal court. Then the Moscow society demanded from the Kharkov society satisfaction in its losses for omissions that served as a means for the guilty person to commit forgery (careless storage of books, forms, etc.). The Chamber recognized this claim as premature, applying Articles 59 and 60. Lay down Order. on the liability of third parties for a participant in a crime only in case of his insolvency. But the Senate decided that the claim was addressed to the defendant directly and was based on a violation on the part of the defendant of the agreement, by virtue of which the Moscow society agreed to pay for the Kharkov translations, and the latter had to take measures for the proper storage of forms and transfer sheets (Cass. decision 1879, No. 86). The decision of the judicial chamber to terminate the judicial investigation does not have binding force for the civil court when discussing those circumstances that, having in mind the judicial chamber, were accepted by it as a reason for its decision (Cass. decision 1877, No. 30). Even though a criminal case could not be initiated after the expiration of the criminal statute of limitations, there is no obstacle to starting a lawsuit regarding the consequences of that crime or misdemeanor in civil court before the expiration of the civil 10-year statute of limitations (Cass. decision 1873, No. 1608). If the victim of harm and loss from a crime does not bring a civil claim when the criminal prosecution is initiated, then he can ask for it in a civil court no earlier than after the end of the criminal case (Cass. Dec. 1867, No. 288). A sentence of a criminal court that has entered into legal force in a civil claim for compensation for losses caused by a crime has the same meaning as a decision of a civil court that has entered into legal force, and both the person from whom the reward has been awarded has no right, after the verdict or decision on this subject has entered into legal force, to bring a claim for release from collection, for a reduction in the amount recovered or for the return of the collected money, nor does the victim of the crime, the claim whose claim for compensation for losses has been resolved by the court, loses the right to re-file a claim for this compensation (Cass. decision 1881, No. 140). § 71. Remuneration for harm from non-criminal actions. - Measure of responsibility. – Responsibility for accidental actions. – Responsibility of masters and owners, owners, parents and guardians. – Law on the responsibility of railway departments. – Special significance of a claim for damages, the power of the court and methods of proof. – Accident or maritime losses. Everyone must be held accountable for harm or loss resulting from his actions. This duty is eliminated when the action was performed at the request of the law or government, or forced by necessary defense, or by a combination of circumstances that the actor could not prevent (Article 684 of the Civil Code). The law, when mentioning action at the request of the law or the government, without a doubt, does not mean to cover with this justification all the techniques or methods of action that a person used in fulfilling the said demand: if in this execution he exceeded the measure of his power or the limits of the requirement, or allowed himself, in the execution, to take arbitrary measures, inconsistent with the law, and incompatible with the rights of the offended person, then he is obliged, of course, to answer for everything that was done wrongly and unlawfully. Regarding harm and losses, the law (685) states that remuneration for them is made according to the rules of Articles 671 and 673, relating to the consequences of a criminal act. Exactly 671 Art. refers to remuneration for embezzled or stolen property; and there is reason to wonder whether the law in this case fairly equates responsibility for a criminal action with responsibility for a non-criminal action. But it should be noted that 671 Art. means the restoration of possession and patrimonial rights violated by a crime: this provision corresponds, in the range of actions indicated in Articles 684–689, to the illegal possession of someone else’s property, and special rules are established for remuneration for illegal possession in the 609th and subsequent articles (see the 1st part of the course, § 21), therefore, in the order of remuneration indicated in Articles 684–689, Rule 673 art. applies in particular. about compensation for destroyed or damaged property. The culprit of harm is obliged, according to this rule: 1) to pay what was destroyed, at the prices that were at the time of the action or at the time of the decision, in accordance with the desire and benefit of the owner; 2) restore the damaged property to its previous condition at your own expense or, at the owner’s request, pay what is needed to correct it; if it is impossible, pay for it as if it had been destroyed; 3) in both cases, compensate the owner for all losses and damages he has suffered since the time of destruction or damage (according to the literal meaning of Article 673, this does not include compensation for benefits and income, as stated in Article 671). If the harm caused was a necessary consequence of the establishment established by the defendant (for example, a mill, dam, etc.), which threatens the same harm in the future, then the establishment must be closed. Regarding responsibility for misdeeds and crimes, it is said that accidental acts, in which even negligence is not noticeable, are excluded from it (Article 647). This article does not apply to liability for non-criminal acts. In the civil sense, therefore, there are no accidental acts. An action, although unintentional in its consequences, although accidental, cannot be considered completely accidental, because chance happens without will at all, and an action, proceeding from a person, always consists of a connection with the will, and therefore, whoever, having committed it, caused, albeit accidentally, damage to someone else’s property, violated the scope of someone else’s right, he must reward the owner without guilt. This is the logical conclusion from the wording of Art. 684–689, and the application of the rules of Art. 671–672 to cases of this kind seems even more severe. about the rate of remuneration. Rule 686 of Art. is consistent with this conclusion. on the responsibility of minors living with parents or other persons obliged to have supervision over them. If it turns out that these persons, having all the means to supervise, through their negligence allowed a minor to engage in an action that resulted in harm, then they are obliged to answer for the harm; if it turns out that they did not have the means to prevent such an action, 28 then damages are recovered from the minor’s estate. Here, unlike in the chapter on crimes, the law does not even distinguish whether a minor acted with or without reason. The same rule applies to the insane and insane. Masters and trustees 29 are responsible for damages and losses caused by servants and trustees in the performance of their instructions, in accordance with the orders and authority given to them. The responsibility of the owners is embarrassed by the last words; for they allow the masters to object to the claim not only because the action of the subordinate went beyond the scope of the assignment, but also because the subordinate acted contrary to instructions or orders. So, if my servant, while driving the horses in my carriage, ran over a person while driving carelessly, I can object to the claim: that I did not order him to drive as a coachman, since he was not a coachman by rank; - that he went to ride in my carriage without permission, - or: that I ordered him to drive carefully, but he did not listen. In addition, the same law (687) allows owners to argue that they could not prevent the act that caused harm or loss; this limits the responsibility of the owners even more. So, within the meaning of this law, the owner is responsible: 1) when the action of the official is carried out in accordance with his order; 2) when the owner was negligent in choosing the person entrusted with the assignment. And he himself has the responsibility to prove that there was no negligence in this case. In some cases, the law mentions the responsibility of the owner of the barge for the pilot and shipbuilder (Ust. Put. Commun. 188; Ust. Trade. 253–255); for the clerk (Organization of Bargaining 24). The owner's responsibility for his animals when harm or damage occurs from them is also based on the fault of the owner. He is responsible, according to our law (not in general for his domestic animals, but in particular), for wild and other dangerous animals if he is guilty of neglecting them or the precautions he took were clearly insufficient (Article 688 and Cass. Decision 1875, No. 628). Therefore, the owner is not responsible for a dog bite if it turns out, for example, that it was teased by those it bit. The amount of harm and losses is determined in all these cases according to the rules of Art. 675. In some cases, the law specifies a special amount of remuneration and a special method for determining damages. Thus, ship servants are responsible according to the payment they receive (Constitution of Trade 234, 408); for loss from violent acts during stay - there are special rules in the Constitution. Earth Pov. 518 to Cont. 1890; there in approx. 2 (according to Cont. 1890) to Art. 419 contains a rule on the assessment of losses through a special commission. In Art. 683 Zak. Citizen rules were established on the liability of railway and shipping entrepreneurs for causing death or harm to the health of passengers. The commission that developed the draft of these rules came to the conclusion that the legal basis for this responsibility lies in the solidarity of entrepreneurs with the enterprise and the persons assigned to it, and not in the wrong choice of agents and insufficient supervision over them; that the right to compensation belongs to all victims of loss, and not only to those who were specifically indicated in Art. 657–662. Zach. Citizen; that the amount of remuneration should be dependent on the means of subsistence of the victim, and not on the means of the defendant; that the plaintiff does not have to prove guilt on the part of the agent, and the defendant must, in appropriate cases, prove the absence of this guilt; that the amount of remuneration and the resolution of the case may change or increase with changes in the personal circumstances of the victim. The rules in question (which were obviously influenced by the German law of 1871) received the force of law in the following form. 1. The owners of railway and shipping enterprises (treasury, companies and private individuals) are obliged to compensate everyone who has suffered harm or loss due to death or damage to health caused during the operation of railways and steamship communications. The remuneration is determined on the basis of articles 657–662 and 675 of the civil laws, subject to the following special rules. 2. The owners of the enterprises referred to in paragraph 1 are released from the obligation to compensate the victims for the harm or losses caused to them only in cases where they prove that the accident occurred: a) not through the fault of the management of the enterprise and its agents, or b) due to force majeure. 3. The application of the rules defined in paragraphs 1 and 2 cannot be eliminated or modified by private agreements between the administrations of railways and shipping services with passengers or other persons. Any agreements and conditions concluded in violation of this resolution are declared invalid. 4. The amount of compensation should depend solely on the damage suffered in each individual case. 5. Remuneration is assigned in accordance with the wishes of the victims of harm: a) either in the form of a lump sum, or b) in the form of an annual or specified benefit paid within certain periods. 6. In the event of new circumstances that are subsequently discovered, the amount of urgent benefits (clause 5, b) may be increased or decreased, by court decision, at the request of the party receiving or paying the benefit. 7. To initiate claims in cases regarding the compensation specified in paragraph 1, a one-year period is provided if the accident occurred on the railway or on inland waterways, and two years when it occurred on a ship in sea waters, and in both cases this period is calculated, if the accident occurred on the railway, from the date of re-occurrence of the event that served as the basis for the claim or from the date of termination of criminal prosecution (if there was one) or entry into force of a criminal sentence - if the accident occurred on inland waters or on a ship at sea, then from the day of subsequent death or damage to health. Petitions of this kind submitted after the expiration of this period are not subject to satisfaction. Filing a request to change the amount of the awarded emergency benefit (clause 5, b) is not limited by any period. 8. The owners of railway and shipping enterprises have the right to compensation awarded to them by the agents through whose fault the accident occurred. Remuneration for injury to an employee on the railway is issued by the railway company with an offset to the amount to which the employee is entitled as a participant in the pension or savings and auxiliary fund of the railway (Article 683 add. of Ext. 1895). Article 683, in the decisions of Civil. Cass. Dep., also applies to cases of loss or damage to goods entrusted to the railways for transportation (see, for example, decisions of 1882 No. 23; 1887 No. 96). Remuneration, based on Art. 683, have the right to demand not only the victims themselves, but also members of his family to whom he was obliged to provide maintenance (in this case, parents), regardless of whether they actually received maintenance from him or not (Cass. decision 1887, No. 103). Until 1875, our law did not precisely define the liability of industrial and factory owners for the consequences of injuries received by workers during work. There were only private decisions. Thus, the special responsibility of the owner to the worker for injury and damage during the administration of the post was determined - regarding ship workers - by the Constitution. Bargain. 305, 307; Est. Put. Message 329, 330 on Cont. 1893 At the mining factories. Cross. Gornozav. Gender, adj. to Art. 39, § 12. Liability of pilots to the owner and third parties for losses from negligence or violation of order. Est. Put. Message 210, 275 et seq.; Est. Bargain. 320 et seq. The shipowner's liability to the owner and third parties for losses due to lack of knowledge and efficiency and from negligence. Est. Bargain. 231, 357; from careless packing of goods (342), from acceptance of unauthorized goods (Code 1231). Responsibility of rural workers for losses and owners (Cross. Institution appendix 2 to 31 art., § 17; vol. XII, part 2, ed. 1893, Pol. Hire. Rural Work., art. 42, 45, 46, 47, 52, 57, 62, 98, 103). Responsibility of the clerk to the owner (Ort. Put. Commun. 93). Responsibility of the holder of a bill to his trustee for loss from omission of a protest (Art. Bill. 75). Liability of the steamship owner for losses to other ships (Constitution of Way. Communication 266). Responsibility for the intentional spread of false rumors on the stock exchange (Code, Art. 1277). In some cases, the law mentions liability: Officials for spontaneous loans to the account of state or public administration (Kazach. Hoz. 290). Officials for losses from improper closure of a commercial establishment and improper search, etc. – vol. V, ed. 1893, Const. Straight. Tax., art. 358; Est. Excise duty, art. 1019; Customs ed. 1892, Art. 826. For government losses from the maintenance of quitrent articles (Constitution of Obr. Ed. 1893, Articles 79, 80; Establishment of Forestry Ed. 1893, Art. 205). Police officials for losses due to bill collections (Art. Bill. 105, appendix art. 15). A claim for damages has particular economic significance. It is necessary that those who are offended and suffered damage have the practical opportunity to count on the satisfaction of their legitimate claims and compensation for the harm caused to them; This is necessary both for the firmness of property rights and for maintaining credit and good conscience in mutual personal relations regarding property. But in claims of this type, the court encounters significant difficulties in determining the type and amount of damages. In many cases of this kind, the plaintiff does not have the opportunity to certify with formal evidence the exact amount of damage he suffered, even if the damage he suffered, and significant damage at that, seemed undoubted. Therefore, legislation everywhere in cases of this type has sought to facilitate the plaintiff by special regulations in the method of proof or to expand the freedom of the court in discussing the evidence presented and in determining the amount of remuneration, according to the circumstances of the case. Thus, in the codes of previous times, it was allowed, against an unscrupulous defendant, to provide the plaintiff with an evaluative oath - a means that, although still preserved in some legislation (for example, Prussian, French), is almost never used in practice. Another method is much more valid - giving the court possible freedom in determining the quantity. This method is successfully used where the factual issues of the trial are resolved by the jury (as in England and America) and where, moreover, a strict system of discussion of evidence, long developed by judicial practice, operates (circumstantial evidence). But of the other states where there are no juries in civil cases, only in France is the judge given significant freedom in discussing and assessing damages on this subject, and the courts have developed practical skill in this matter. On the contrary, in Germany, where the judicial class has not received a historical development similar to that of France and has not created a practical school for itself, and legislation still significantly constrains judicial reasoning, claims for damages are associated with great difficulties. The same should be noted about claims of this kind in Russia. For details about this, see the article by Mr. Pestrzhetsky: The process of losses. Journal Gr. and Angle. Rights, 1873 - The author rightly notes that our current law of legal proceedings does not deprive our courts of the legal opportunity to freely discuss evidence of losses. But whatever the law, there is no doubt that the court can enjoy the full share of freedom in judgment only in such a case if the court itself has grown to the full extent of understanding and spiritual strength (which is still impossible to expect from our young courts and judges): otherwise, the judge will always consider himself bound by a lack of strength and reasonable determination in judgment. Linking loss to action. Property liability for loss caused by an action presupposes the unconstrained will of a person acting on his own behalf and in his own interest. Therefore, it cannot be a consequence of such an action that was committed at the request and in the interests of the person who suffered harm and loss as a result, and therefore participated in that action with his own will. Cass. decide 1872, N 231; 1873, N 1156. In this case, the holder of the bill, who was denied collection on the bills of the minor drawer, sought satisfaction for them from the person who signed his consent on those bills, as a trustee, while he was not confirmed in this title. It turned out that the holder of the bill knew about this last circumstance and asked the imaginary trustee to sign the bill. The petitioner complained that the chamber misunderstood Article 684. Zach. The citizen, recognizing that the damage caused must be paid by those whose actions constitute the direct cause of the damage: he argued that responsibility generally falls on the one whose actions are connected with the damage, as one of the phenomena that caused it. But the Senate acquitted the chamber, reasoning that by law everyone is responsible only for his own acts or omissions (except for the cases specified in Articles 686–689), and therefore the court, when awarding compensation for a loss, must first of all establish that the act or omission of the defendant constitutes the direct cause of the loss. Cass. decide 1878, N 112. Unforeseen obstacles, which are mentioned in Art. 684. Zach. Citizens are not exclusively physical, but there may be others, depending on the circumstances of the case. It is for the court to decide, in each given case, whether there were such obstacles. Cass. decide 1875, N 622. You can recover damages caused by an act or omission, but you cannot blame the defendant for advice given to a third party, from whose action the loss resulted. Cass. decide 1868, N 55. When collecting from the debtor's estate, the creditor was satisfied with the place that carried out the recovery, as a percentage, according to a calculation that later turned out to be excessive. Subsequently, in a reverse claim, it was awarded to return the excessively transferred amount, but without interest, since the recipient did not use it without permission or force, but according to the return from the official place (Sb. Sen. decision I, No. 393). The recipient is not to blame; but the value of using excess capital should not be wasted. Firstly, the office that made the incorrect calculation must be held accountable for it; secondly, the recipient himself, from the time when the debtor’s claim was brought against him. At that time, he should have recognized the incorrectness of the calculation and returned the excess: if he did not admit it, and the court subsequently decided that the calculation was incorrect, then the recipient is responsible for the incorrectness of his consciousness. Gulshin bought paid shareholder certificates, which turned out to be forged, due to the counterfeit stamp of the accounting bank, and the culprit of the forgery turned out to be Shchukin, an employee at the bank. Gulshin sought remuneration from the bank, based on Article 687. Zach. Citizen for carelessness in storing the stamp, which caused the possibility of forgery. The court rejected the claim, recognizing his obligation to prove that the loss was caused by the employee in the performance of his duties. But the Senate recognized, according to the literal meaning of the article, that in the present case the defendant (gentlemen and believers) is obliged to prove that he did not entrust this matter to his employee, and therefore could not prevent harm and loss (Cass. decision 1879, No. 66). Definition of loss. Based on Articles 675 and 689. Zach. Citizen in claims for damages, the court itself, after examining the incident and the circumstances of the case, determines at its own discretion the amount of compensation, regardless of the strict system of evidence applied to civil cases. In this case, the case was about the responsibility of the person accepting things for safekeeping for carelessly issuing them to an unknown person (2 Sat. Sen. Resolution I, No. 235). There is a similar reasoning in No. 147 regarding a claim for compensation for an injury. Anyone who has unauthorizedly occupied or continues to occupy someone else's property is obliged to clear it at the request of the owner; in case of delay, he is guilty of rewarding him for harm and loss. But the measure of this remuneration is determined by law by the court and does not depend on the unilateral assessment of the owner, even if it is expressed in the form of a unilateral assignment of payment for the use of property. Cass. decide 1870, N 1249. In this case, the railroad management required the owner of the firewood piled in the yard to clear the place; otherwise, he is obliged to pay 3 rubles. on the day before wood removal. See also N 1725. In the case of compensation for litigation costs, the condition concluded by the winning party with the attorney determines only the relationship between the parties to the agreement, but not necessarily for the person who did not participate in it and who lost the lawsuit (Cass. decision 1868, No. 60). In the case of losses from the breaking of a barge with bread on the way to Taganrog by a steamship, the court awarded compensation for bread at the prices that existed at the destination, i.e. in Taganrog, higher than the price that existed at the place of departure and indicated in the invoice. The Senate recognized this calculation of value as not contrary to the general meaning of Articles 684 and 685, especially since this exalted value includes all losses and damages from destruction. But at the same time, and for the consideration that the exalted value was awarded as compensation for losses, the Senate refused the plaintiff a percentage of the amount sought (Cass. decision 1876, No. 220). The tenant from the treasury of the mineral mines, having been removed from the use, which lasted nine years, three years before the deadline, sought losses from the treasury. The chamber rejected the claim, judging that the plaintiff was not looking for what he should have, because, in the opinion of the chamber, the loss in this case should only mean the failure to receive a profit on the capital expended. But the Senate overturned this reasoning, recognizing that in addition to this loss, losses of another kind may arise, depending on the circumstances of each case. The plaintiff seeks, as damages, the difference in the value of factory buildings with their value at the time of the cessation of production, as well as the value of both those factory materials that were prepared, but could not be used in business due to the premature closure of the factory, and those factory products that, for the same reason, were not completed in production and remained in a raw form. It was necessary to enter into a discussion of these demands (Cass. decision 1878, 111). In no case can a supposed profit be recognized as an actual loss (2 Sat. Sen. Resolution III, No. 691). In civil claims for remuneration for cutting down forests, the basis of assessment should be not the taxes established exclusively for criminal cases of cutting down, but the general rules of civil laws on remuneration (Cass. decision 1876, No. 348). The Caucasus Engineering Department improperly held Zubalov's liens on two of his homes, so he was seeking damages. The Trial Chamber recognized that the amount of Zubalov’s remuneration should be determined at 6% per year on the basis of Article 641. 1 part X t., since mortgage certificates on immovable estates should be considered as monetary value that can generate income, like any capital. Citizen Cass. Dep. found that pledge certificates cannot be equated, with regard to the ability to derive benefits from them, to monetary capital. Interest on capital constitutes income from it. Income from real estate presented as collateral is received by its owner completely independently of its presentation as collateral; for pledging property or entrusting it to another person, the owner receives, in addition to ordinary income, a special profit as a reward for the risk associated with this action. Obviously, the amount of this profit, and therefore the remuneration for deprivation of it, cannot be established at all on the basis of the rules on the legal amount of income from capital (on legal interest), but must be determined by the court in accordance with the circumstances of the case, i.e. explanations of the parties and presented evidence (Cass. decision 1891, No. 72). Claim for damages for bringing to court. Is it possible to seek damages caused by court orders, under a claim and complaint, from the person who brought the claim, if this claim is subsequently refuted by a final decision? Cass. Dep. The Senate (1868, No. 372; 1869, No. 539) decisively answers that it is impossible, basing such a conclusion on the expressions of Art. 574. Zach. Citizen: “as per the general law, no one can be deprived of the rights belonging to him without a trial, etc.” According to this reasoning, the law determines the right to compensation for losses caused arbitrarily, without recourse to the court. – This interpretation is hardly correct: the word without trial in an article of the law more precisely means without a judicial verdict, because one appeal to the court can still be recognized as wrong by the final verdict. In this case, there may be a claim for remuneration for the consequences of the wrongful claim and the legal proceedings initiated by the claim. Since these consequences, combined with damage to property, are in a direct causal connection with the claim and with the plaintiff’s demand, they can serve as a reason for compensation. These include temporary restraining and protective measures taken by the court, at the request of the plaintiff. If these measures caused direct damage to property, then the wrongful plaintiff cannot be released from liability. In this case, the court prohibited the defendant from erecting buildings on the disputed site. It cannot be denied that there is a basis for a claim for compensation, but under the circumstances of the case it could turn out that the damage shown is only a guesswork or conjectural calculation of the benefits that the owner could lose, and not an actual loss. - Cass. decide 1876, N 187. According to the general law, no one can be deprived of his rights without a trial; therefore, one appeal by a private individual to the court with a petition for recognition of the right does not in itself constitute an act that would, according to Article 684, give the opposing party the right to compensation for damages from the filing of a claim - excluding, of course, losses actually associated with the conduct of litigation, about which there is a special regulation in the law. Therefore, the resolution of the question of whether, by filing a claim, the plaintiff is really guilty of causing the opposing party special losses depends on the circumstances of each case and on the consideration of the court. In this case, the case was about capital deposited in the bank on the condition of equal division upon the death of the depositor between all his children of both sexes and subsequently transferred to a new account without repeating the conditions. Upon the death of the investor, the issuance of capital was withheld at the request of Alexander, one of the sons of the investor, who argued that this capital should be divided according to the general rules of inheritance. The court case about this ended with the recognition of capital, subject to even division. Then one of the heiresses filed a claim against Alexander for losses from capital retention, demanding from him for 13 years the difference between the percentage received from the bank and the percentage that she could have received from private hands. This claim is rejected. The Chamber reasoned, among other things, that from the time the rights to capital were opened, a doubt arose as to the conditions under which the contribution was made, and this doubt, due to the absence of a direct law, could not be resolved either by the bank or the ministry, but was recognized as subject to consideration by the court, and the capital subject to withholding. Therefore, Alexander is innocent of causing losses to the plaintiff. In 1830, Ladyzhensky sold the estate to Ogarev. When taking possession, the prince was declared. Krapotkin dispute, as a result of which the estate did not pass into the possession of the buyer until 1857; Finally, the case was dismissed due to the plaintiff's failure to proceed. Then Ogarev filed a claim against Krapotkin for damages for non-ownership of the estate for 27 years. Ogarev’s claim was denied because he was removed from the estate not by Krapotkin, but as a result of his dispute, by order of the court (1 General Meeting, September 6, 1876). Within the meaning of Articles 122 and 780. Est. Corner. Court, remuneration to an acquitted defendant for harm and losses from being brought to trial is determined during the criminal case itself, and only the criminal court decides the issue of the good faith of the prosecution (Cass. decision 1875, No. 546). But, regardless of guilt, the law does not provide remuneration for conducting a criminal case. Cass. decide 1870, N 1264. Rule 194 Art. Est. Corner. Court. the collection of legal costs from the accuser does not apply to prosecutors from government departments acting in an official capacity (Cass. decision 1870, No. 1339). Disgrace claim. A claim for payment of dishonor must be brought in a civil manner, since its connection with a demand for punishment for the guilty party is not allowed (Cass. decision 1873, No. 1176). Accident, or maritime losses (avarie, Haverei, average). This concept includes all losses and expenses to the ship and cargo from any maritime accidents, with the exception of the complete breakdown of the ship. There are three types of accidents; 1) small, which includes expenses for a loaded ship on the occasion of departure, arrival and passage, such as: payment of all kinds of fees and port expenses. According to the general rule, only partially observed today, these costs fall partly on the ship (one third) and partly (two thirds) on the cargo; Nowadays, it is customary to bear these costs to one ship, with part of them being decomposed in advance into the freight price. 2) The accident is simple or private. Losses do not fall jointly on the ship and cargo, but on each individual individually, to whom the loss concerns. These are losses from weather and various maritime accidents, from dilapidation or damage to the ship and gear, from detention on the way, from the guilt and negligence of rulers and employees, etc. 3) Emergency, otherwise large or general (and the most ancient, passed into Roman law from the Rhodian custom - lex Rhodia de jactu): it implements the concept of the connection of the ship with the cargo in a common fate and responsibility. When, in a moment of danger, a shipowner, in order to save the ship and cargo, takes decisive measures associated with damage or damage, for example. cuts off an anchor, chops off masts, throws out part of the cargo, cuts holes, lands the ship on the shore, etc., then this damage, even if the individual property of one or another owner suffered from it, falls generally on all participants in the property, both in the ship and in the cargo, in proportion to the value of both before adversity. The shipowner undertakes to certify that the measure taken was necessary, and makes a statement about this, according to the ship's log in the nearest port, or at the port of destination, by means of a formal protest (rapport, consolato, extended protest) with interrogation of whomever follows, under oath. The calculation and distribution of losses is a difficult and complex operation, which is entrusted to people knowledgeable in this matter, located at the ports (dispachers), and is set out in an act called the Dispache. Russian laws on accidents (Ust. Torg. 391–465) were taken from the navigation charter of 1781 and remain unchanged to this day. To the three above types of accidents in Const. Bargain. an accident of mutual damage between merchant ships has also been added, in which the one who caused it is responsible for the loss; 466–477 art. contain rules on the satisfaction of private losses from damage to merchant ships by state-owned ones and vice versa. Chapter two. Contract-like relationships § 72. Obligations outside of contractual relations due to the enrichment of one at the expense of another. – Compensation for an increase in someone else’s property. – Useful management of other people's property. – Return of what was sent in vain. Return of improperly transferred items. And without a preliminary agreement of will, a mandatory relationship may arise as a result of a unilateral action, although it does not violate the right and does not cause harm. This kind of obligatory relationship is usually referred to in legal terminology as contractual - quasi contractus, quasi-contract - a name coined by interpreters of Roman law from the expression of Roman jurists about cases in which an action, even if non-criminal, can serve as the basis for an obligatory relationship "quasi ex contractu teneri videntur". The basis of the obligatory connection, however, in all such cases is not any semblance of an agreement, which in essence did not exist, but a special beginning of legal responsibility. The law strives to equalize relations regarding property. Due to the fact that when the action of one person causes damage to the property of another, the latter, at the beginning of the equation, receives the right to demand compensation from the first for the damage: it would be unfair to assume that the owner of the property should suffer this damage from an extraneous action. On the other hand, it may happen that one person, through his action, to his own detriment, benefits the property of another person, even without his knowledge or instructions. Such an increase in the property of one at the expense of another cannot remain simply a random phenomenon, without legal properties; it would be unfair to allow such an increase to one at the expense of another to always occur for nothing; on the contrary, in many cases it is fair to put it on the account of the person to whom the profit follows. In Roman law, the need for such an equation as the requirement of justice was recognized, and the rule: aequum est neminem cum alterius detrimento fieri locupletiorem was applied, according to circumstances, to individual cases (actio de in rem verso). Of the newest legislation, only the Prussian one gives this principle of justice the meaning of a general legal rule: “no one has the power, without special right, to appropriate for himself the benefits of someone else’s property or from other people’s actions and receive an increase for himself at the expense of another.” And where there is no such rule, the need for it is felt, especially in those cases in which formal severity collides with internal justice. We can cite, as an example, frequent cases when an obligation, due to its informality, is recognized as invalid, but has already managed to make changes in property that require equalization. The loan letter is invalid in form, but the money according to it has already arrived from the lender to the debtor: will the latter really use it for nothing? Money was lent to a minor without the consent of a guardian or trustee: will it really be lost to the lender? This right includes three institutions that, to a greater or lesser extent, are adopted in all Western legislation. Firstly, compensation for the useful addition made to property (act. de in rem verso, nützliche Verwendung according to Prussian law); secondly - useful management of someone else's business or property without instructions (negotiorum gestio, gestion d'affaires); thirdly, the right to return what was paid for nothing or in vain (condictio indebiti, répétition de l'indu). Unsolicited interference in other people's affairs is generally an action that is not in accordance with the rule, and constitutes guilt, and not service to the owner. However, there may be cases in which, in the absence of the owner, it is necessary to dispose, and if no one intervenes, damage to property will follow, sometimes without compensation. Here, intervention can occur from a good motive, which the law should not interfere with, since no one would interfere in someone else’s business with a good purpose if any such action were considered a violation of the law. So, for the sake of the common good, the law recognizes, regarding such interference, a mandatory relationship between the owner of the property and the third party who has taken possession of the property (utilitatis causa receptum est invicem eos obligari). Although there was no direct order (as long as there was no direct prohibition), the order of a third party becomes obligatory for the owner if the order was associated with the benefit of the property. In the absence of the owner, his house threatens to fall; it is necessary to take action, but there is no one to give orders; the neighbor, out of participation, takes up this matter, hires workers and arranges what is needed at the expense of the owner, who has no right to evade accepting the orders made at his own expense. A relationship arises similar to that formed in a representative office. Obviously, the third-party manager also assumes responsibility. He must complete the work he has undertaken (this obligation is not interrupted, as in the contract of assignment, by the death of the owner), conduct it with the diligence that is characteristic of a good owner, and is obliged to report to the true owner of the property. The owner, for his part, is directly responsible for the actions of the manager, is directly responsible for the obligations that the manager entered into for the business, and is obliged to reward the manager for his expenses; but the owner is responsible only for what was required by need or the use of the property, and not for any disposition of any kind (as in a contract of agency). This relationship arises, of course, only in such a case when the manager intervened without the knowledge of the owner; if the owner, knowing, did not oppose the order, it follows that he silently confirmed it, and in this case the relationship fits the law of assignment by agreement of the parties. – There is no place for this attitude when it turns out that the manager entered into the business for the purpose of donation, at his own expense (animo donandi), - for example, when a grandfather, uncle, etc. takes upon itself, at some cost, the upbringing of children left in the absence of their parents. Therefore, whoever intervened in someone else’s business without direct need, whoever spent extra, unnecessary costs on it, cannot take advantage of the claim against the owner assigned to the correct attitude of the manager; but this does not mean that he is necessarily deprived of all right to remuneration. Depending on the circumstances, he can also take advantage of the claim assigned to the one who, at his own expense, contributes to the increase or profit of someone else's property (act. de in rem verso). The limits of this claim are much narrower. It cannot demand compensation for all the costs that were required by the use of the property, but only those that actually served the benefit, and not even to the extent that the actual profit to the property resulted from the disposal, but to the extent that it turns out to be available at the moment of demand (for example, if at the moment of demand the house in which repairs were made by a third party turns out to be burned down by the owner, a claim of this kind for costs does not take place). In the case of Grizodub with Princess Dolgorukaya, a question arose: does an outsider who, through another person, give money for the needs of someone else’s estate, without the will of its owner, has the right to demand compensation from the owner of the estate for this amount, or can he present such a demand only to the protesting person? This question is Cass. Dep. resolved as follows: since in such cases the right of claim follows from the fundamental legal principle, which is expressed by our legislation in Art. 574 Zak. Citizen and by virtue of which no one has the power, without a legal basis, to appropriate for himself the benefits of someone else’s property or from someone else’s actions and receive an increase for himself at the expense of another, then there is no doubt that by virtue of the general rule of Article 574, the cases of application of which are not at all limited to those provisions of the law that are set out in Art. 575–689 Zak. Citizen, the owner of the property in whose interest someone else’s money was spent has the obligation to remunerate the third party for his expenses; but on the other hand, guided by the same general rule of Art. 574, it should be recognized that a claim for compensation for an increase in someone else’s property can be awarded only if the plaintiff proves the benefit of the increase for the owner of the property, and only to the extent that this benefit actually followed (Cass. decision 1887, No. 13). A claim for the disposal of someone else's property occurs when the order was made precisely for the purpose of acting in the interest of the owner. If the manager acted intentionally or on an erroneous assumption, in his own interest and, thinking to dispose in his own interest, actually brought profit or benefited someone else’s property, then in this case the attitude and claim of the manager does not arise, and for a fair equalization of interests there can, and not always, only a claim for the benefit brought to someone else’s property (de in rem verso). Therefore, for example the owner who considered the estate his own and built establishments and buildings on it should not, of course, be left without compensation for them when the property is subsequently taken away from him as the property of another person rather than his; but this remuneration is limited to the measure of the actual increase in the property at the moment of its transfer to the rightful owner, and does not extend to all the costs spent on construction and establishment. – Another example: an owner, making an improvement to his property, solely in his own interest, indirectly brought benefit to someone else’s property: for example, I demolish a large building in my yard for a garden and thereby completely change for the better the position of the neighboring house, for which that building blocked light, view and air; I consider it necessary to build a dam to protect my coastal dacha from the flood, and thereby benefit the neighboring dachas, which also suffered from the water. In these cases, no reward can take place, since not only did the actor not have the intention to benefit someone else’s property, but there is also no connection between his costs and the benefit that indirectly occurred for someone else’s property: even if that benefit did not turn out to be, the costs would be the same, in the exclusive interest of the builder. On the contrary, when the order is made and costs are incurred by the owner not for himself alone, but in the common interest of him with other co-owners or partners, then a claim for compensation on the order takes place. Return of improperly transferred After the property is transferred from the real owner to another person, its return to the owner may follow either by virtue of a contract (for example, upon termination of use, savings, etc.), or by virtue of the owner's right, a claim from the owner to the one who has the property for improper retention. A claim of this kind, constituting an indivisible property of patrimonial right, is called vindication (vindicatio) and is subject to property in the material sense, i.e. the very thing that was transferred, if it is still part of the defendant’s property, or can even be found from anyone (otherwise, vindication, i.e., the return of the thing, is impossible and is replaced by a claim for compensation of value). So, vindication occurs when the thing was not transferred with the purpose of its decisive alienation and is held in the hands of strangers contrary to the will and intention of the owner. But there may be cases of transfer made for the purpose of alienation, in which it turns out that the transfer, although intentional, was made freely, improperly, by mistake and ignorance, that the legal basis and consciousness of obligation assumed during the transfer was erroneous, incorrect, invalid. It turns out, therefore, that the other party, who accepted the transfer, received the property and holds it for nothing, without reason, and the transferor lost it for nothing, without reason; obvious injustice, which requires the restoration of equality in law. In Roman law, vindication could not serve to return something improperly transferred, and it was necessary to invent another form of action for such cases. This is how the so-called condictions, or claims for the return of improperly transferred property (datum sine causa), were formed in Roman practice. The main types of conditions are: return of what was paid for free (cond. indebiti), return of what was transferred for the unjustified purpose of the agreement (cond. ob causam datorum or causa data, causa non secuta), and return of the basis for the transfer due to illegality or immorality (c. ob injustam vel turpem causam). Some legislations (eg Prussian) adopt this Roman institution in its entirety; others, such as French, in the main reasons (repetition de l'indu). Anything transferred or paid without any legal basis, without any duty or obligation, is considered subject to return. But there is no place for return when the transfer was based at least on a so-called natural obligation, although it does not have formal force. According to this rule (which, however, is not accepted in unconditional force everywhere), the debt of a minor, paid by him upon reaching adulthood, the debt paid for an obligation that has passed the statute of limitations, cannot be demanded back. – The transfer to be returned must be based on mistake or ignorance, in which case the law, for the most part, allows ignorance of the law or a legal property of the relationship as well as ignorance or mistake of fact. It is sufficient if there was ignorance on the part of the transferor: the basis of the claim for return does not change if there was no ignorance on the part of the party accepting the transfer or payment, i.e. there was no erroneous consciousness of right and duty. This circumstance is of significant importance in determining the measure of liability for a claim, because the one who accepted the fulfillment of an imaginary obligation in good faith is liable when returning what was accepted to a lesser extent (% from the time the claim was filed) than the one who knew that the obligation was imaginary (% from the time of receipt of payment). Return of wasted gains. The right to demand back is for nothing, i.e. overpaid money is recognized indirectly in the Cash Department. decide 1869, N 1191. The tenant, after the burning of the leased plant, continued to pay the rent, but after a while he began to seek a proportionate reduction and demand the money paid back. The court rejected this requirement, recognizing the recipient of the money as their bona fide owner, and seeing in the payer’s action a waiver of the right to demand execution of the contract. The Senate reasoned that a bona fide owner was still obliged to return the estate from adverse possession and that the silent action of the payer could not serve as evidence of renunciation, which required explicit expression. Perhaps, regarding the subjects of the complaint, its solution required precisely these considerations, but one can hardly agree with the view expressed in them. The question in the above case is not limited to considerations of either possession or renunciation. The fact is that once something has been paid, you can demand it back, citing only an error due to which the payment was made. In the above case, there could be no mistake, because the burning of the plant was known to the payer, only he had not yet thought of basing a claim on the decrease in the value of the property on it and made the full payment consciously. It is hardly possible to give retroactive force to his subsequent awareness of the inappropriateness of these payments and to trace the beginning of this awareness to the minute of the burning of the plant, when the plaintiff himself, i.e. payments, expressed the opposite consciousness of his obligation to pay in full. To Cass. decide 1876, No. 253 and 324 and 1879 No. 46, it was stated that no one can enrich himself at someone else’s expense and that this principle should not be violated. 574 art. Zach. Citizen constitutes a general rule, the application of which is not limited to the provisions of the law set out in Art. 575–689 of the same Laws, and imposes on a person who, without the will of the owner, received something that he should not have, or is obliged to give out or perform something, and who withheld or failed to fulfill what he was obliged to do by law, court decision or contract, to the detriment or causing loss to another, - the obligation, at the request of the latter, to deliver compensation (Cass. decision. 1883, No. 32). The destruction of the contract before the expiration of the term, for irregularities specified in Article 1529, while terminating the further validity of the contract, does not destroy the further property relations that followed under this contract and the values ​​​​transferred between the parties; it should in no way serve to enrich one party at the expense of the other, for example, the right to retain property received on the basis of a destroyed contract. On the contrary, with the destruction of the contract is connected the restoration of each party to the state that preceded the contract, and the return to each of what belonged to him. So, when, according to the agreement, the land from the building is leased for eight years, and according to the construction, the agreement is destroyed long before the term, then the tenant, having lost the land and the building, is not deprived of the right to demand compensation for it from the owner (Cass. decision 1876, No. 519; see the same in decision 1873, No. 881; 1874, No. 719). In bilateral contracts, the fulfillment by one party of accepted obligations in any case obliges the other party to remunerate or to return what was received, regardless of the recognition or non-recognition of the validity of the contract for the future, since, according to the basic principle of civil law, no one has the right to use someone else’s property free of charge and without the consent of the owner (Cass. decision 1872, No. 1266). If the plaintiff, without proving the conclusion of an agreement, nevertheless proves the transfer of any value to the defendant, then it is the defendant’s responsibility to prove either payment for it, or the existence of another legal right to retain it without payment, due to the fact that, according to Article 574. Zach. Civil, gratuitous transfer of values ​​is not assumed, but must be proven (Cass. decision 1878, N 203, 232, 233). From this conclusion it follows that when issuing a receipt for the receipt of things or valuables, one should always, for the sake of caution, indicate on what occasion the acceptance occurred and to what obligatory relationship it belongs. There may also be acceptance of things paid in advance as fulfillment by a person who has already received currency from hand to hand without a receipt. If a receipt is given for the acceptance of things, then it can, in the hands of the other party or its heir, serve as the basis for a claim. In the Golovanov case, the question arose: whether it is necessary to refuse satisfaction from the estate of minors under a loan obligation issued by their guardian on account of this estate, without proper permission. In this case, the loan was made under a simple letter of loan, while the Senate authorized it to be made under a mortgage. Cass. Dep. The Senate decided that this irregularity could serve as a basis for guardianship institutions to refuse satisfaction to the creditor, but does not deprive the latter of the right to seek satisfaction through the court and does not hinder the court in awarding recovery if it turns out that the origination of the loan was inevitable for the benefit of the minor and that the money actually entered his property, served to increase it and to reduce the debts lying on the estate (Cass. decision 1878 city, N 291). A claim for the return of excessively overpaid money cannot take place when the payment follows a final court decision that has entered into legal force (Cass. decision 1877, No. 375). To Cass. decide 1873, No. 1110 is expressed: according to our law, a mandatory debt relationship does not arise as a result of someone arbitrarily paying a debt or collection relating to the person or property of another person, without his request or consciousness. This provision, however, hardly fully applies to the case about which it was expressed. The temporary owner of the mortgaged estate (hence not anyone, and not a completely third party), paid the treasury a percentage of that estate, not only for the time of his possession, but also for the previous one. It was also necessary to know (and it was not explained in the decision) whether this action was truly arbitrary and whether it was caused in the person of the temporary owner by the need to protect his possession from the claim of the safe treasury. Reprinted from: K. Pobedonostsev. Third part. Agreements and obligations. SPb.: Synodal printing house, 1896. E.V. TIMOSHYNA. Bibliography of published works by K.P. Pobedonostsev I. Materials of activities in the Commission for the preparation of draft laws on the transformation of the judiciary Pobedonostsev K.P. Preliminary remarks about the plan and the main grounds of the Charter on the Judicial System // Materials on judicial reform in Russia in 1864. T. 17: Considerations of various persons on the transformation of the judiciary (1861–1862). [SPb., 1862]. IV, 29 p. Note on civil proceedings (Compiled by K. Pobedonostsev in December 1861) // Ibid. T. 26: Notes on the development of the main provisions of the transformation of the judicial part. Part 6 (1861–1863). St. Petersburg, 1863. 31 p. Pobedonostsev K.P. On cassation of court decisions // Ibid. 4 s. According to the draft of the 2nd book [Charter of Civil Proceedings]: On litigants and the right to seek and answer in court (Section 1, Chapters 1–2) / Editor K. Pobedonostsev // Ibid. T. 45: Works of editors on the draft Charter of Civil Procedure (October 1862 - October 1863). Part 2. [SPb., 1864]. 8 p. According to the draft of the 2nd book [Charter of Civil Proceedings]: Proceedings in the first degree of court / Editor K. Pobedonostsev // Ibid. 27 p. According to the draft of the 3rd book [Charter of Civil Proceedings]: On the preliminary execution of decisions (Chapter 1) / Editor K. Pobedonostsev // Ibid. 4 s. According to the draft of the 3rd book [Charter of Civil Proceedings]: Draft of Chapter III, Book III on reviews of third parties / Editor K. Pobedonostsev // Ibid. 2 s. According to the draft of the 4th book [Charter of Civil Proceedings]: Enforcement proceedings for calculations of losses, costs and income (Section 2) with an explanatory note from the editor / Editor K. Pobedonostsev // Ibid. 31 p. According to the draft of the 4th book [Charter of Civil Proceedings]: Draft rules on securing claims with explanations from the editor (Section 3) / Editor K. Pobedonostsev // Ibid. 39 p. According to the draft of the 5th book [Charter of Civil Proceedings]: On deadlines (Section 1) / Editor K. Pobedonostsev // Ibid. 14 p. According to the draft of the 6th book [Charter of Civil Proceedings]: On complaints against the actions of officials of an administrative department (Section 1, Chapter 1) / Research by K. Pobedonostsev (March 17, 1864) // Ibid. 15 s. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft of the second book of the Charter of Civil Procedure. On the oath of the litigant (Article 304). Objection of K. Pobedonostsev // Ibid. T. 46: Works of the Civil Division of the Commission on the draft Charter of Civil Proceedings. Part 1, book. 1–5 (November 30, 1862 – October 24, 1863). [SPb., 1864]. pp. 76–87. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft of the second book of the Charter of Civil Procedure. On the evidentiary value of an on-site inspection (Article 329) and on the presentation of a written or verbal opinion of knowledgeable people and their oath (Article 348). Opinion of K. Pobedonostsev // Ibid. pp. 89–91. Draft new version of Art. 122–183 of the second book of the draft [Charter] of civil proceedings, compiled by K. Pobedonostsev // Ibid. 16 p. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft third book of the Charter of Civil Procedure. On cases in which cassation of decisions of judicial chambers is allowed (Article 86 of the draft). Opinion of K. Pobedonostsev // Ibid. pp. 14–22. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft third book of the Charter of Civil Procedure. On the resolution by the Senate of petitions to cancel decisions, without sending the case to the judicial chamber (Article 117 of the draft). Opinion of K. Pobedonostsev // Ibid. pp. 27–32. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft third book of the Charter of Civil Procedure. On cases of filing petitions for the recovery of damages from judges (Article 130 of the draft). Opinion of K. Pobedonostsev // Ibid. pp. 33–36. Disagreements that followed in the Civil Division of the Commission during the discussion of the draft third book of the Charter of Civil Procedure. Comments by K. Pobedonostsev on articles 129, 135 and 137 // Ibid. pp. 36–40. Draft chapter on litigants and attorneys, considered in the Civil Division of the Commission on December 29 and 30, 1862 and January 22, 1863. Disagreements in the meetings of December 29 and 30, 1862, which followed on articles 4 and 21. Proposals of K. Pobedonostsev // Ibid. T. 46, additional. Part 1: Addition to the works of the Civil Division of the Commission on Projects of the book. 1–2 of the Rules of Civil Procedure (November 30, 1862 – April 9, 1863). [SPb., 1864]. pp. 6–8. The draft chapter on on-site inspection and the testimony of knowledgeable people, again considered at a meeting of the Civil Division of the Commission, in a strengthened composition, February 7, 1863. Disagreements. Written opinion of K. Pobedonostsev // Ibid. pp. 9–11. The draft of the last section of the chapter on evidence - on the oath - was again considered in the strengthened composition of the civil department on February 12, 1863. Disagreement on the issue of the oath. Comments by K. Pobedonostsev // Ibid. pp. 1–5. Explanations for articles on bringing a third party into the case (Draft [Charter] of civil [proceedings] book 2, Art. 459–479) / Editor K. Pobedonostsev // Ibid. 12 p. Draft rules on inquiry through devious people in patrimonial matters (Appendix to Article 199 of Draft No. 2) with explanations from the editor K. Pobedonostsev // Ibid. 9.5 pp. Journal of the General Meeting of the Commission established by the Highest to draw up draft regulations on judicial reform, according to the second book of the [Charter] of civil proceedings. Opinion of six members of the Commission (Brevern, Baron Wrangel, Zarudny, Zubov, Pobedonostsev and Essen) on the question of whether university students can be attorneys (Article 22 of the draft [Charter] of civil proceedings, paragraph 3) // Ibid. pp. 26–28 30 . II. Works and speeches published in separate editions Civil proceedings: Lectures by prof. Pobedonostsev, read at Moscow University (lithographed manuscript). [M., 1863]. 534 pp. Pobedonostsev K. Letters about the journey of the Sovereign Heir Tsarevich across Russia from St. Petersburg to Crimea. M.: Grachev and Co. printing house, 1864. X, 568 p. (co-authored with I.K. Babst) 31. Civil law course. Op. K. Pobedonostsev, honorary member of Moscow University: At 3 o'clock. St. Petersburg, 1868–1880. Part 1. T. 1: Patrimonial rights. St. Petersburg: printing house of A. A. Kraevsky, 1868. [2], VI, 392 pp.; Part 1. T. 2: Patrimonial rights. 1868. [2], 246, XXIX, [7] p. Part 2: Family, hereditary and testamentary rights. [SPb.]: printing house of V. Golovin, 1871. [2], X, 576, XVIII p. – Review: Civil law course. Essay by K.P. Pobedonostsev, honorary member of the universities of Moscow and St. Petersburg. First part. Patrimonial rights. Second edition; with changes and additions. St. Petersburg, 1873. Price 3 rubles // Citizen. 1873. N 6. P. 183–184. Part 3: Agreements and obligations. [SPb.]: printing house of the Ministry of Railways, 1880. [2], X, 629 p. Mainly from the French model, of which there are obvious traces in the text. In 686 Art. it is said “crimes or misdemeanors”, of course, due to a misunderstanding, for the article belongs to the category that covers only acts that are not recognized as crimes and misdemeanors. When this law was published, after the word credentials, the term of the French article was placed between brackets in the text: commettants, which is more extensive than credentials. The opinion of the six members of the Commission is attributed to K.P. Pobedonostsev for the first time. Authorship: K.P. Pobedonostsev was established based on archival materials: Diaries of K.P. Pobedonostseva (1862–1866) // Russian State Historical Archive (hereinafter referred to as RGIA). F. 1574 (K.P. Pobedonostsev). Op. 1. Unit hr. 1. L. 43. Originally published: [Pobedonostsev K.P. ] The journey of His Imperial Highness the Sovereign Heir Tsarevich (From the correspondents of the Moscow Vedomosti) // Moskovskie Vedomosti. 1863. No. 143–214. pp. 2–3.