Obligations are legal relations arising from a certain subject under the provisions of legislation or the terms of the contract. As a participant can act as an organization and the physical.
general characteristics
The obligations arising under the law are permanent. Those who appeared under the agreement are temporary and limited to the term for which it is concluded. Obligations in their essence act as a certain actions of one subject in favor of another, with which the contract was signed or there are relations regulated by law. They can also be expressed and inaction. This means that the Parties must avoid certain behavioral acts that may damage any interests. In some cases, subjects violate the prescriptions or terms of agreements. For such situations, civil liability is envisaged. Consider when it comes.
What is civil liability?
As a rule, it possesses property character. Its main purpose is to restore the violated interests of the victim. In addition, legislation provides for situations where the affected participant may require compensation moral harmwhich entailed the failure of obligations. At the same time, the task is to materially punish the perpetrators by imposing on them. At the same time, ignoring or improper fulfillment of obligations in itself is not yet a reason for applying sanctions to subjects. Legislation establishes three conditions that must be respected. 
Illegality of actions / inaction
Inappropriate fulfillment of obligations or their ignoring should arise due to a particular violation. In particular, the subject may not comply with the provisions of the legislation or paragraphs of the Agreement. If there were no violations, but the established conditions were not complied with, the responsibility for improper fulfillment of obligations does not occur. For example, it is impossible to punish the supplier for the late receipt by the customer of the goods, since the day of delivery will be considered the date of delivery of cargo to transportation. Claims in such a situation may arise to the carrier who has not caused material values \u200b\u200bon time.
Wines
Inappropriate fulfillment of obligations is characterized by intent or negligence / negligence. Apply the punishment to an innocent subject is almost impossible. Such situations separately stipulate in legislation. For example, Art. 1079 GK instructs entities whose activities are associated with a high risk for others, compensate damage caused by the source of danger if they do not prove that it arose due to the guilty actions of victims or because force majeure. In this case, the responsibility occurs in the absence of intent, negligence / negligence. 
Explanations
Wines, expressed in the form of intent, suggests that the subject was known about violation and he or deliberately admitted it, or showed indifference to probable consequences. Careless / negligence indicates that the person did not know about the possibility of damage or the misunderstanding of actions, but on the basis of the circumstances, it was supposed to understand this and assume.
Presumption of innocence
In the case of improper performance, the obligation to the subject will not be punished until it has been proven that its actions contained intent, negligence or negligence. Presumption applies only to situations defined in the legislation. The burden of proof lies on the victim. Presumption is established for those situations where facial facial is unlikely due to the circumstances of the case. So, in accordance with Art. 118 Charter of railway transport, Carrier (Russian Railways) is exempt from liability for damage, shortage or loss of cargo if:
- Material values \u200b\u200bof profits in a serviceable car with intact seitters seals.
- Damage or shortage occurred in connection with natural causes due to shipping in open composition.
- Transportation took place when accompanied by a representative of the recipient or the sender, etc.
Meanwhile, for the improper fulfillment of obligations to railway Sanctions will be applied if the victim the subject proves the fault of the carrier. The person is considered innocent if, with the degree of diligence and caringness, it has taken measures to comply with the prescriptions of legislation or terms of agreement.
Business activities
The issue of applying sanctions for improper fulfillment of obligations by commercial structures is separated separately. Punishment for violations occurs if the entrepreneur does not prove that they were allowed in connection with unforeseen and extraordinary circumstances. Responsibility under the Agreement arises, even if there were illegal actions of the debtor's counterparties, there were no necessary products in the market or a subject did not have a sufficient amount of funds.
Causal communication
This is another condition, if there is a responsibility for non-fulfillment or improper fulfillment of obligations. The causal relationship must be established between the guilty behavior of the face and the result. If any other reasons caused inadequate fulfillment of obligations under the contract, the responsibility does not occur. To such circumstances, for example, it is possible to direct product damage due to its natural properties. In the presence of the base and all the above conditions, the victims may require applying to the guilty sanctions. 
Sanctivities
Separately, legislation solves the issue of the application of punishments, if several debtors or creditors participate in relations. In such situations, responsibility may be solidarial or equity. The latter assumes that each of the lenders have the opportunity to demand, and each debtor, accordingly, the obligation to fulfill the fulfillment of the obligation in the established shares. This situation takes place when the object of relationship is divisible. For example, it is typical for monetary obligations. If, by agreement or law, the share of each subject is not defined, they are recognized as equal. In accordance with the norms, the share responsibility is considered the basic form of the requirement. As a rule, it is applied within the framework of the relations between the physical people.
Solidarity sanctions
The legislation provides that if there are several debtors in relations, the lender may require the fulfillment of obligations from them all together or any of them separately. At the same time, claims can be placed both throughout the debt and in its part. Solidarity debtors remain until the fulfillment of the entire obligation. Conditions allowed to repay all debt in one subject. In such a situation, the remaining debtors are considered freed from the obligation. In this case, the subject may submit to them a regressive requirement. The situation is similarly in relations where several lenders and one debtor participate. They can all submit to it. In the case of the fulfillment by the debtor of all obligations in favor of one lender, it is considered freed from the need to perform them in relation to other subjects. Solidarity takes place when the subject is indivisible. Meanwhile, such responsibility always comes in obligations relating to entrepreneurship, if otherwise not established in the agreement or legislation. 
Subsidiarity
IN civil law Another type of responsibility is envisaged. It is referred to as subsidiary. This form of responsibility involves the presence in the relations of the main and additional debtors. The latter comes with debt if the first did not do or did not fully. The creditor in such a situation places the requirements first to the main debtor. If they are not satisfied, it refers to an additional subject. This is, in particular, in case of insufficiency of funds from the institution that makes calculations with creditors. In this situation, subsidiary responsibility arises from the owner, which ensures the activities of the subject partially or completely. The founders of the ODO are responsible for the debts of society by their property. The same responsibility is provided for members of the partnership for its obligations.
Types of sanctions
The following requirements may be presented to the subject with the proof of its guilt and subject to all conditions established by the legislation:
- Perform fully and properly the obligation that was not fulfilled. If the interest in repayment of debt in the victim is lost, then it may not require real satisfaction of his claims (for example, the production of work or complementing goods).
- Remove the injured losses that were caused by violation legislative norms or terms of agreement. In particular, the debtor may be charged a penalty for improper fulfillment of obligations. The legislator indicates that the compensation is also subject to actual losses, and incomplete profits. In some cases, however, the latter is not refundable. For example, in case of damage, lack, loss of cargo, the carrier compensates only actually incurred losses.
- Pay fines if they are established in the provisions of legislation or in the context of the agreement.
- Compensate moral damage in cases established by norms, regardless of the compensation of a property loss.
Reimbursement of losses
It is envisaged by Art. 112 GK. Compensation of losses is considered one of the universal ways to protect the interests of the victim. This is due to the possibility to apply it in almost all material and legal relations. In view of the fact that protection is characterized by the principle of dispositionability, which is confirmed and judicial practiceThe choice of its method belongs to the applicant (victim participant). When contacting the competent authority with the requirements for reimbursement of incurred losses, the plaintiff must be taken into account the peculiarities of the most legal phenomenon of damage and the specifics of proving its occurrence within the framework of the civil process.
In the legislation, the concept of losses is fixed with the help of estimated categories. This, on the one hand, determines the need for its proof. It follows from this that it is impossible to talk about the presence of losses that are not confirmed in accordance with the requirements established in the norms procedural legislation. Otherwise the losses incurred do not get their legal importanceSo, not subject to recovery from the perpetrator. During the consideration of such a category, courts should be guided by the existing norms of procedural legislation. It, in particular, requires a victim to provide evidence to caused property harm, "rationality" of the method of calculating damages, as well as the most damage itself.
Comment on Article 866
1. PO general ruleFormulated in paragraph 1 of Art. 866, with failure or improper execution of the client's order, the payer's bank is responsible in the manner, on the basis of the grounds and in the sizes provided for by the ch.
25 GK. In practice, it is interpreted so that the payer's bank is responsible not only for its own actions, but also for the actions of third parties, which are involved in participation in the calculations (art. 403 of the Civil Code). To third parties, for the actions of which the payment of the payer is responsible, also include organizations of communication. For example, in paragraph 9 of the Resolution of the Plenum of the Wheel of the Russian Federation N 5 on this matter the following is indicated. From the meaning of paragraph 3 of Art. 401 GK It follows that the person carrying out business activitiesis not exempt from liability for non-fulfillment or improper fulfillment of the obligation, which came due to a violation of the duty by the debtor's counterparties. Therefore, the courts must be borne in mind that the Bank cannot be exempted from liability for non-fulfillment or improper fulfillment of obligations to fulfill the commission of the Client in the event of non-fulfillment of the obligation to provide relevant services by the Communication Service. At the same time, it is necessary to proceed from the fact that the rule of limited liability (Art. 400 Gq) in these cases does not apply, because Limited liability by virtue of Art. 37. Federal Law from 07.07.2003 N 126-
Federal Law "On Communications" (SZ RF, 2003, N 28, Art. 2895) is established only for relevant communications services, which the Bank does not apply.
The amount paid due to the fault of third parties may be charged with them by the payer's bank in regression. 2.
The rule on the responsibility of the bank for the actions of third parties knows one exception. In accordance with paragraph 2 of Art. 866 In cases where non-fulfillment or improper execution of the assignment took place in connection with the violation of the rules for making settlement operations by the Bank involved in the execution of the payment of the payer, the responsibility provided for by paragraph 1 of Art. 866, can be assigned to this bank. Thus, paragraph 2 of Art. 866 makes it possible to ask the court to bring to justice not the bank serving it, but directly the bank who is to blame for non-fulfillment or improper loan translation. Consequently, the payer has the right to present a direct lawsuit to the intermediary bank, despite the absence of contractual relations between them. It should be noted that the imposition of responsibility to the intermediary bank is right, and not the obligation of the court. Therefore, in such a case, the plaintiff is obliged to declare claims not only to an intermediary bank, but also to its service bank. It should be noted that the arbitration practice usually places responsibility for the perpetrator's guilty bank if he asks for the plaintiff. 3.
Paragraph 3 of Art. 866 It is envisaged that if the violation of the rules for the commission of settlement operations by the Bank entailed the unlawful retention of funds, the Bank is obliged to pay interest in the manner and in the amount provided for by Art. 395 GK. In accordance with paragraph 22 of the Decisions of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation No. 13/14, the unlawful retention of funds takes place in all cases of delay in transfer by the Bank of Cash on behalf of the payer.
Arbitration courts are not charged with debtors at the same time and interest provided by Art. 395 GK, and penalties. In this regard, the Russian Federation set the rule of application of paragraph 3 of Art. 866 In cases where the disorder performed by the Bank, it can be simultaneously brought to justice in the form of a penalty provided for by Art. 856 GK. So, in accordance with paragraph 22 of the Decisions of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation N 13/14, the Customer-payer, serviced by the Bank under a bank account agreement, in case of ignorable deduction by this bank of funds in the execution of a payment order, has the right to submit either the requirement to pay a penalty, provided by Art. 856 GK, or requirement of interest on the basis of Art. 866. 4.
In addition to the accrual and recovery of interest provided for in paragraph 3 of Art. 866, the payer has the right to demand from a bank of losses in a part that is not covered by interest (clause 7 of the Resolution of the Plenum of the Russian Federation N 5).
More on the topic Article 866. Responsibility for non-performance or improper execution of the order:
- 2.1. Features of the legal status of information intermediaries and their role in the conclusion and execution of contracts in electronic form
Civil liability for violation of obligations - This is the onset of unprofitable property consequences for a defective debtor. A decrease in the property good at the responsible side comes as a result of the recovery of losses, penalties (fines, penalties).
In case of non-fulfillment or improper fulfillment of the obligation, the debtor is obliged to commemorate the creditor all the damages caused by this or penalty, if it is established by law or contract. By separate species Limited liability may be established (paragraph 1 of Art. 400 h. 1 of the Civil Code of the Russian Federation).
In case of non-fulfillment of the obligation to convey an individually-specific thing to the property, in full economic management, in operational management or to use the authority, the Last has the right to demand the selection of this thing in the debtor and the transfer of its creditor or compensation for damages.
The legislation establishes the conditions under which property responsibility occurs (Art. 401 hours 1 of the Civil Code of the Russian Federation).
Terms of responsibility are usually called the circumstances, from the presence or absence of which the offensive or unaccepting of civil liability depends. So circumstances include: the opposition of the behavior of the responsible person; wines of a responsible person; the presence of losses arising from the violation of the obligation; The presence of a causal connection between the behavior of the obligated person and the result.
The opposition of behavior is the inconsistency of its requirements of the law, the planned act, the contract (causing harm to the person or the property of another person, violation of the terms of the contract).
Wines - awareness of the face of the unlawful consequences of their behavior (Art. 401 hours 1 of the Civil Code). The person who did not fulfill the obligation either inappropriately affecting it is responsible if the presence of guilt (intent or negligence), except when the law or agreement provides other grounds for responsibility.
The person is recognized as innocent if, with that degree of caringness and diligence, which of it was required by the nature of the obligations and terms of turnover, it took all measures for proper fulfillment of the obligation.
Wines can be in the form of intent (intentional behavior with the awareness of unlawful consequences) and negligence (when the person does not foresee the negative results of his actions, although it should have known about this and prevent a possible violation). The person who violated the obligation is assumed guilty until he proves the lack of his guilt. The guilt of a legal entity is the fault of his employees in the performance of labor (service) duties. In turn, the guilty employee responds to a legal entity in the manner prescribed by labor legislation.
Responsibility is allowed not only for its guilt, but also for the fault of third parties on which execution was entrusted (Art. 402, 403 hours 1 of the Civil Code of the Russian Federation). If non-fulfillment or improper fulfillment of the obligation occurred due to both parties, i.e. the debtor and the lender, the court, the arbitration or arbitration court reduces the responsibility of the debtor (Art. 404 part 1 of the Civil Code of the Russian Federation). This is the so-called mixed responsibility, which is that the responsibility of the debtor decreases in proportion to the degree of creditor's guilt (for example, with the same fault of the parties the size of the award amount is reduced by 50%).
The presence of losses as a condition for responsibility is necessary when collecting losses caused by violation of the terms of the contract, with damage to personality or property. Under losses are understood as expenses expressed in the loss or damage to the property, in the non-receipt of income that the obligation to be obtained (Article 15, 393 hours 1 of the Civil Code of the Russian Federation).
Causal communication - The objective connection of the phenomena of the real world, knowing the person in the process of its activity. Under the causal bonding means the occurrence of the result as a consequence of the illegal action (inaction) (for example, the death of cargo as a result of the improper packaging by its sender).
A person who did not fulfill or inappropriately performing an obligation in the implementation of entrepreneurial activities is carried by property responsibility, if it does not prove that the proper execution was impossible due to force majeure.
Irresistible force - the offensive of emergency circumstances, unpredictable modern condition Techniques (earthquake, flood, military actions, etc.). The effect of force majeure is usually frees from responsibility (art. 416 h. 1 of the Civil Code of the Russian Federation).
There is no violation of duties from the debtor's counterparties or the lack of needed for the execution of goods.
The responsibility of the entrepreneur is expanded compared to other debtors. Unless otherwise provided by law or contract, a person who has not fulfilled the obligation in carrying out entrepreneurial activities is responsible if it does not prove that the appropriate execution was impossible due to force majeure, that is, emergency for business entities. Such circumstances do not include, in particular, the lack of necessary products in the market, the lack of the debtor of the necessary funds (Art. 401 h. 1 of the Civil Code of the Russian Federation).
Happening - An innocent violation of the rights protected interests. The person does not foresee, can not and should not have been in this case to anticipate the harmful consequences of his behavior. As a general rule, the case excludes responsibility.
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Responsibility for failure or improper fulfillment of obligations
Responsibility for violation of obligations occurs in the presence of provided by law conditions - legal factsA combination of which forms the composition of civil offense. As a rule, this composition consists of four conditions: 1) the opposition of the behavior of the debtor; 2) the emergence of losses at the lender; 3) the presence of a causal connection between the unlawful behavior of the debtor and the emergence of losses at the lender; 4) the wines of the debtor.
The opposition of the debtor's behavior means that it contradicts the norms of objective law and subjective Rights Other persons. Anti-violation of contractual obligations is in violation general rulesinstalled in Art. 309 of the Civil Code of the Russian Federation, according to which obligations should be performed properly. Illegal behavior can be expressed as in unlawful action (for example, delivery of improper quality products) and in idle (for example, the Contractor does not start fulfilling the contract).
Losses are valuation The adverse effects of the unlawful behavior of the debtor on the lender property scope. In accordance with Art. The 15 Code of the Russian Federation losses can be expressed in real damage (the costs that the lender produced or should produce to restore the violated right, loss or damage to his property) and the missed benefit (incomplete income, which the lender would receive under normal conditions civil turnoverIf his right was not broken).
The presence of a causal relationship between the illegal behavior of the debtor and losses of the lender suggests that unlawful behavior is the main and immediate cause, with the need for the emergence of a negative result in the form of creditor losses.
Under the fault, as a condition of responsibility is understood as the mental attitude of the face to their illegal behavior and its consequences. Wines may have a form of intent or negligence. With fault in the form of intent, the violator is aware of the wrongful nature of his actions and wishes the onset of these actions of negative consequences or deliberately allows them to occur. With fault in the form of negligence, the intruder does not foresee the possibility of the onset of the negative consequences of his behavior, although it must have been foreseen. In the overwhelming majority in violation of contractual obligations, there is a careless form of guilt.
The legal entity does not possess the psyche, and its guilt should be understood as the cumulative mental attitude of all or part of the legal entity employees to fulfill its obligations. The basis for this approach gives Art. 402 of the Civil Code of the Russian Federation, according to which the actions of the debtor workers on the execution of its obligations are considered to be actions of the debtor itself and entail his responsibility for these actions.
Unless otherwise established by law, the debtor is responsible for failure to fulfill or improper fulfillment of obligations by third parties on which execution was entrusted (Art. 403 of the Civil Code of the Russian Federation). In this case, the responsibility occurs in the presence of guilt or the debtor itself, or a third party.
In the cases specifically stipulated or contract, it is possible to impose responsibility with a narrower list of conditions. So, for example, the responsibility of the person engaged in entrepreneurial activity occurs independently of its guilt (paragraph 3 of Art. 401 of the Civil Code of the Russian Federation). If the definition is provided for violation of the obligation, the responsibility may occur and in the case when the lender does not suffer due to the violation of the obligation. In this case, the question of the presence of a causal connection between the violation of the obligations and losses is disappeared. However, a prerequisite for responsibility is always the fact of violation by the debtor of its obligations.
In the absence of one or several terms of responsibility, it cannot be assigned. So, unless otherwise provided by law or contract, the absence of the guilt of the debtor frees it from liability for violation of the obligation. However, this rule does not apply if the debtor is a special subject, namely a person who exercises entrepreneurial activities and violating the obligations related to its implementation. Such a person is responsible for the accident that the impossibility of fulfilling the obligation, but is exempt from liability, only if it proves that the appropriate execution was impossible due to force majeure. Under irresistible force is understood as emergency and unpredictable circumstances under these conditions (earthquake, sudden hurricane, flood, etc.). In paragraph 3 of Art. 401 of the Civil Code of the Russian Federation emphasizes that the circumstances of the force majeure do not include violation of the duties from the debtor's counterparties, the lack of goods in the market, the absence or failure of funds in the debtor, etc.
As a general rule, the responsibility of the debtor is determined by the amount of damages caused by the lender, which are defined in accordance with the rules of Art. 15 Civil Code of the Russian Federation (real damage and missed benefit). Complete the calculation of damages is far from always simple, including in connection with the possible change in prices for goods, work and services, law (paragraph 3 of Art. 393 of the Civil Code) establishes that When determining losses, prices existing in the place where the obligation should have been executed, on the day of voluntary satisfaction with the debtor, the creditor's claims, and if the requirement was voluntarily satisfied - on the day of the claim. It is also envisaged that the Court may, based on the circumstances of the case, satisfy the requirement to compensate for damages, taking into account the prices for the day of the decision. Such rules simultaneously stimulate the debtor to abstain from unreasonable refusal of voluntary satisfaction of the fair requirements of the creditor under the fear of calculating losses from higher prices.
Decree of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation No. 6/814 drawn attention to the fact that the composition of the real damage is not only actually incurred by the corresponding person, but also those that this person should produce to restore the violated right
(Article 15 of the Civil Code). The need for such expenses and their intended size must be confirmed by the reasonable calculation, evidence, which can be presented with estimates for eliminating the deficiencies of goods (works, services), the contract defining the amount of responsibility for violation of the obligation, etc.
It is especially difficult to calculate the missed benefits, since these are losses that are really not incurred, i.e. Not realized in reality, they are only likely. In essence, the missed benefit is the assumption of the creditor about the income that it would remove if the obligation was not broken. According to paragraph 5 of Art. The 393 Civil Code of the Russian Federation, in determining the missed benefits, taken by the lender for its preparation and made for the purpose of preparation (for example, the acquisition and installation of the creditor of the relevant equipment for processing raw materials, which was not supplied by the debtor).
Special rules for determining the responsibility of the debtor act in case of failure or improper fulfillment of the obligation, a penalty is established.
If the law or contract does not provide for other, losses are reimbursed in a part not covered with a penalty (test penalty). However, as already noted, the law or contract may provide cases when the penalty is allowed only to be penalted, but not losses (exceptional penalty); When losses can be charged in a full amount over a penalty (penalty penalty); When the creditor chooses or a penalty, or loss (alternative penalty), can be charged. To recover the penalty, it is not necessary to proof the availability of losses.
However, if the lender did not suffer losses as a result of the obligations inappropriate execution, the court has the right to reduce the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation. The burden of proving the appropriate fact is assigned to the debtor. The court on the basis of the petition of the debtor or on its initiative it is entitled to refer to the lender documents confirming the losses incurred by them.
Special rules relating to the size of the responsibility for non-performance monetary obligations are established in Art. 395 Civil Code of the Russian Federation. At the same time, the non-fulfillment of the monetary obligation is understood to be unlawful retention of funds, evasion from their return, other exemption in their payment, unjust receipt or savings at the expense of another person. All these actions are qualified as unlawful use of others. cash.
For the use of other people's money, interest is charged for the amount of these funds, the amount of interest is determined by existing at the residence or location of the creditor accounting rate on the day of the monetary obligation or its respective part. When recovering debt in judicial order The court may satisfy the creditor's requirement based on the bank interest rate on the day of the claim or on the day of the decision. These rules apply if other percentage size is not established by law or contract. The principle of test penalty caused by interests for the use of other people's money and caused in connection with this losses is applied: if the losses caused by the creditor by unlawful use of its cash exceed the amount of interest due to him, the lender is entitled to require the debtor of damages in a part in excess This amount. Interest for the use of other people's funds are charged on the day of payment of these funds to the creditor, if the law, other legal acts Or the contract is not set to accrual percent a shorter period.
With responsibility for violation of obligations is closely related to the issue of performance of obligations in nature. The responsibility of the debtor to compensate losses arises both in the case of improper fulfillment of the obligation and in the case of its non-execution. However, the obligation to fulfill the obligation in nature remains among the debtor, despite the payment of the penalty and compensation for damages, only in the case of improper fulfillment of the obligation. If the obligation was not fulfilled by the debtor at all and it completely reimbursed the losses associated with this, and also properly paid a penalty, the debtor is exempt from the fulfillment of the obligation in nature. Other consequences may be provided for by law or contract (p. 2
Art. 396 of the Civil Code of the Russian Federation). Such an approach reflects the conditions of a market economy, where funds are the universal equivalent of goods, works and services provided in the conditions of free competition by their manufacturers.
From the fulfillment of obligations in Nature, the debtor is also exempt in cases of creditor refusal from adopting execution, which, as a result, the delay has lost interest for him, as well as the payment of a penalty established as an indent (paragraph 3 of Article 396 of the Civil Code of the Russian Federation). To protect the property interests of civil turnover participants special rules Art. 397 of the Civil Code of the Russian Federation on the responsibility of the debtor at the non-fulfillment of them of positive actions (the manufacture and transfer of things to the lender to the property, economic management or operational management, the transfer of things to the lender to use, fulfillment for a creditor of a certain work or the provision of services). In these cases, the lender is entitled to reasonable time To entrust the fulfillment of the obligation to third parties for a reasonable price or to fulfill it on their own, unless otherwise follows from the law, other legal acts, contracts or creatures of the obligation, and require the reimbursement of the reimbursement of the necessary costs and other losses.
According to certain types of obligations and on obligations associated with certain kind of activity, the law may be limited to the right to complete damages, i.e. Limited liability may be provided. Limited liability occurs, for example, when establishing an exceptional penalty, restricting the responsibility of communication enterprises is obligatory to reimburse only real damage and in a number of other cases. Limiting the size of liability may be provided for by the contract. However, freedom of agreement is limited to paragraph 2 of Art. 400 Civil Code of the Russian Federation: Agreement on the restriction of the responsibility of the debtor under an accession agreement or other agreement in which the creditor is a citizen who acts as a consumer is negligible if the amount of responsibility for this type of obligations or for this violation is determined by law and if the Agreement is concluded before circumstances , entailing responsibility for non-performance or improper fulfillment of the obligation.
In relations regulated by law on the protection of consumer rights, the creditor consumer in the event of a violation of his rights acquires the right to demand from the Entrepreneur debtor compensation caused by the moral damage (physical and moral suffering).
The amount of moral damage compensation is determined by the court in accordance with the criteria established in Art. 151.1101 of the Civil Code of the Russian Federation. At the same time, the nature of damage caused by the victim, the degree of guilt caused by the victim, the individual characteristics of the victims and other circumstances, and the requirements of rationality and justice are taken into account. Moral damage compensation is accumulated independently of the penalty payable and damages.
If the violation of the obligation occurred in the fault of both parties (debtor and creditor), the court respectively reduces the responsibility of the debtor. The court has the right to reduce the responsibility of the debtor if the lender is intentionally or by negligence contributed to an increase in the amount of damages caused by the failure to fulfill or inappropriate fulfillment of the obligation or did not accept reasonable measures to reduce them. In this case, the so-called mixed responsibility takes place. It should be noted that the rule of mixed responsibility does not apply if the failure to fulfill the obligation was caused by the illegal actions of the lender. In this case, there are no grounds necessary to impose responsibility in the debtor.
As a separate case of improper behavior, the creditor of the Civil Code of the Russian Federation calls the delay in the lender (Art. 406). The lender is considered to be exemplable if he refused to accept proper execution proposed by the debtor or did not accomplish the actions provided for by law, other legal acts or the contract or arising from the customs of business turnover or from the essence of obligations to which the debtor could not fulfill its obligation. Credit Credit gives the debtor the right to compensation caused by delayed losses if the lender does not prove that the delay occurred in circumstances for which he does not respond. By monetary obligation The debtor is not obliged to pay interest during the delay of the lender.
| Index of material |
|---|
| Course: Treatment Law. General part of the obligatory right |
| Didactic plan |
| General provisions on relevant rights. Concept and content of property rights |
| Concept and types of real rights |
| Ownership: General |
| Subjects of ownership |
| Objects of ownership |
| Forms and types of ownership |
| Grounds for the emergence and termination of ownership |
| General provisions on the right of ownership of citizens |
| Grounds for the right of ownership of citizens |
| Objects of ownership of citizens |
| Ownership of foreign citizens, citizens of CIS countries and stateless persons |
| Types of inheritance |
| Subjects of hereditary succession |
| The rights and obligations of the subjects of hereditary law |
| Registration of hereditary rights |
| Inheritance by law |
| Inheritance by will |
| Ownership of legal entities |
| Concept, subjects, objects and content of property rights of economic societies and partnerships |
| The right of cooperative property and its features |
| Concept, subjects, objects and content of ownership of non-commercial organizations |
| Ownership of public, religious and charitable organizations |
For violation of the contract, that is, for non-fulfillment or improper fulfillment of obligations, it is possible to require damages, paying a penalty, interest for using other people's money. Note that not all of these responsibilities can be applied at the same time. The law or the contract may limit the amount of responsibility. However, freedom of contract in this matter has limits. For example, it is impossible to eliminate or limit the responsibility for intentional violation of the obligation.
What measures of responsibility are provided for violation of obligations under the contract
For violation of contractual obligations from the counterparty, you can demand:
- compensation for damages;
- payments for the use of other people's money (Art. 395 of the Civil Code of the Russian Federation);
- payment of penalties (fine, penalty).
These measures of responsibility are provided general provisions Civil Code The Russian Federation is obligations (clause 1 of article 330, paragraph 1 of Art. 393, paragraph 1 of Art. 395 of the Civil Code of the Russian Federation). As a general rule, they apply to contractual obligations (clause 1 of Article 307.1 of the Civil Code of the Russian Federation).
Note that not all responsibility measures can be applied at the same time (or simultaneously in full):
- as a general rule, losses are reimbursed in a part not covered with a penalty. In addition, the law or contract may be provided, in particular, an exceptional penalty. In this case, only a penalty is accumulated, without loss (paragraph 1 of Art. 394 of the Civil Code of the Russian Federation);
- if you need to pay interest under Art. 395 of the Civil Code of the Russian Federation, losses can be accumulated only in part exceeding the amount of interest (paragraph 2 of Art. 395 of the Civil Code of the Russian Federation);
- as a general rule, it is impossible to pay interest, if the test penalty is established for violation (clause 4 of Article 395 of the Civil Code of the Russian Federation, paragraph 42 of the Resolution of the Plenum Supreme Court RF dated 24.03.2016 N 7).
Violation of contractual obligations may also entail other consequences. For example, in certain cases, you can retain the estate of the counterparty, not to return to him the deposit, refuse the contract with it (Art. 359, paragraph 2 of Art. 381, Art. 523 of the Civil Code of the Russian Federation).
What can be required from the counterparty if he violated the period of payment under the contract
For the delay in payment under the contract, you can apply the same measure of responsibility to the debtor as in violation of other obligations. It is more convenient to collect a penalty and (or) interest for the use of other people's money.
The penalty for the delay of payment is usually set in the form of periodically accrued payments (penalties), and not a firm amount (fine). Usually, the penalty is calculated from the amount of the debt or the price of the contract for each day of delay.
As in the case of other violations of obligations, with the delay in payment, not all responsibilities can be applied simultaneously.
How to determine the period of delay
The period of failure (delay in execution) of the obligation is most often determined in the days and begins to flow from the day following the day when the obligation should have been executed. At the same time, the day of the actual execution of the violated obligation is included in the period of delay (paragraph. 48, 50, 65 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 24.03.2016 N 7).
As a general rule, if, when terminating the contract, the main commitment is terminated, the penalty is accrued until the end of this obligation. If the main obligation does not stop and keeps the responsibility of the debtor to return the property to the creditor and pay for the use of property, then you can recover a penalty for the delay in payment of the use (clause 66 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 24.03.2016 N 7).
In what cases the amount of responsibility under the contract may be limited
The amount of responsibility may be limited:
- law. In particular, the court may reduce the responsibility of the debtor in the presence of guilt of both parties (paragraph 1 of Art. 404 of the Civil Code of the Russian Federation).
In addition, according to certain types of obligations, the law limits the right to complete damages (paragraph 1 of Art. 400 of the Civil Code of the Russian Federation). In particular, the responsibility of the carrier for the loss or damage to the cargo is limited (paragraph 2 of Art. 796 of the Civil Code of the Russian Federation). If the responsibility is limited under Art. 400 Civil Code, losses and / or penalties can be recovered to the limits established by such a limitation (clause 2 of Article 394 of the Civil Code);
- agreement of the Parties (paragraph 4 of Art. 421 of the Civil Code of the Russian Federation). However, the contractual limitation of responsibility will be negligible if:
- The parties agreed to eliminate or restrict responsibility for intentional violation of the obligation (paragraph 4 of Art. 401 of the Civil Code of the Russian Federation). Please note that the lack of intent proves the violator (paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 03.24.2016 N 7);
- This limitation disrupts the prohibition established by paragraph 2 of Art. 400 of the Civil Code of the Russian Federation, or contradicts the essence of the legislative regulation of the relevant type of obligation. For example, a negligible condition that limits the responsibility of the carrier only by cases of intentional non-fulfillment or improper fulfillment of the obligation (paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7).
How to formulate in the contract the terms of responsibility of the parties
You can specify in the contract, in particular:
- for which violations the penalty is accumulated, in what form (fine or penalty) and in what size;
- is it possible simultaneously with the penalty to collect damages (in whole or in terms of exceeding the penalty) (paragraph 1 of Article 394 of the Civil Code);
- which simultaneously with the penalty you can collect percentages under Art. 395 of the Civil Code of the Russian Federation (paragraph 4 of Art. 395 of the Civil Code of the Russian Federation);
- are there any restrictions on the conditions for recovery or the size of the penalty, loss and percentage.
Sample formulation Conditions for responsibility
For the delay in the delivery of goods, the buyer has the right to demand from the supplier of payment of penalties (penny) in the amount of 0.1% of the value of the goods not transmitted during every day of delay. The size of the penalty cannot exceed 10% of the price not transmitted within the service life. In addition, the buyer has the right to demand from the supplier of damages in the full amount beyond the penalty (penalty penalty).
For the delay in the payment of the delivered goods, the supplier has the right to demand from the buyer of paying a penalty (penny) in the amount of 0.1% of the amount of debt for every day of delay. The size of the penalty cannot exceed 10% of the price not paid on time. Before the penalty, the supplier is also entitled to demand from the buyer paying interest on the amount of debt under Art. 395 Civil Code of the Russian Federation.