The stage following the conclusion of the contract is its execution. In the Civil Code there are no general rules regarding this issue. Normative regulation is carried out by the provisions on the fulfillment of obligations (Chapter 22 of the Civil Code of the Russian Federation). The Code, in addition, contains special rules governing certain types of contracts. Let's talk about the specifics of fulfilling obligations under agreements.
General information
For the main types of contracts in civil law it is customary to consider that performance is the performance of certain actions or abstention from them. When assessing the implementation process, first of all, the fact of the action is taken into account. In addition, the method of its implementation is taken into account. In the first case, we are dealing with the execution of the contract as such, and in the second with its proper character. In Art. 393 there is a clear distinction between non-performance and improper performance of the agreement.
Specificity of concepts
In theory and practice of obligation relations, execution as such involves the commission of actions (or abstention from them) in kind. Otherwise, it is called the real fulfillment of the terms of the agreement. Accordingly, improper performance of the contract should recognize non-compliance with the totality of the requirements established by the parties.
The question of the correlation of concepts is rather controversial. There are two main points of view about this. According to the first of these, performance in kind is considered an element of proper performance. Such thoughts, for example, are expressed by N. I. Krasnov. He says that the proper fulfillment of the terms of the contract should be considered a more general concept, and the actual fulfillment of obligations as a private requirement included in it. There is undoubtedly some truth in this. However, according to many jurists, the relationship between the concepts in question is somewhat different.
Proper and real execution is multi-plane phenomena. The latter presupposes the fulfillment of a specific action, and in the first lies the nature of this action (or abstinence from it). Verification of the fulfillment by the debtor of his obligation pursues two independent objectives: control over the fulfillment of the action constituting the subject of the contract, and choosing the appropriate method for fulfilling obligations.
A. V. Venediktov expressed the point of view opposite to the opinion of N. I. Krasnov. The author believes that the actual execution of the contract covers the proper observance of both quantitative and qualitative parameters. It is, for example, not only about the timely transfer of products, but also delivery of them in the specified assortment, in accordance with standards and technical conditions, in the agreed configuration, timely completion of shortages in batches, immediate correction of defects or replacement of defective products, etc.
As we see, the author included in the list not only the conditions by which the fulfillment of the agreement must comply, but also measures to ensure the fulfillment of the agreement.
A special position in this matter is occupied by O.S. Ioffe. He believes that the principle of real fulfillment of the terms of the agreement should be considered universal. Accordingly, the emphasis is on the fact that “at the stage of the normal development of relations, the proper execution of the contract is assumed.
Security measures
The legislation provides for provisions aimed at protecting the creditor from unfair actions of the debtor. So, for example, the subject can use the rules on forfeit, compensation for losses. In some cases, it is possible to enforce the contract. Property methods of coercion can be divided into 2 groups. The first includes measures that ensure real execution. The likelihood of their use compels the debtor to comply with the agreed conditions. The second group includes measures that express the actual implementation of the agreement.
In the current Civil Code, among the tools used to ensure the execution of the contract, attention should be paid to the general rule on the inadmissibility of a unilateral change of conditions or refusal to fulfill them. It is enshrined in Art. 310 GK. The rule on the inadmissibility of refusal to fulfill the contract is addressed mainly to the debtor. Moreover, this rule, covering generally all obligations, is supplemented by the provisions of Ch. 29. It follows from them that a unilateral refusal to fulfill the contract or its amendment is in principle unacceptable, regardless of whether the debtor's obligations or creditor's rights are meant.
The number of interim measures includes those that are enshrined in paragraph 1 of Art. 396 Civil Code. This paragraph fixes the preservation of the actual fulfillment of the obligation under the contract in case of improper compliance with the conditions, despite the payment of the forfeit and compensation for losses. In the event of failure to fulfill the agreement, the reverse presumption will apply. Compensation of losses and payment of a penalty shall release the debtor from performance in kind. An example of this is paragraph 18 of the Procedure for the execution of an agreement on the organization of the supply and transportation of goods for residents of the Far North and localities equivalent to it. Fixing the general requirement for the timely allocation of the necessary number of wagons and containers for products, the drafters of the Rules established that in case of non-delivery of vehicles within the agreed time period, at the request of the senders of the cargo, transport companies will allocate additional wagons by the end of the next month of the current quarter.
Procedural means
The law provides for a number of instruments aimed at ensuring the real execution of the contract. It's about court fines. For a long time in the procedural rules they were not fixed. Now, in case of violation of the deadline for the execution of the contract, it is possible to recover a fine for each day of non-compliance with a court order to perform certain actions (transferring things, for example). Currently, such norms are enshrined in the Federal Law "On Enforcement Proceedings". In Art. 85 of this Law establishes liability for failure to comply with the requirements specified in the executive document - a fine of up to 200 minimum wages with the definition of a new term. Repeated violation may result in bringing the subject to administrative or even criminal liability.
Forced transfer of property
It is applied at the stage of execution of the judgment. In this case, the interim measure is the forced seizure of the property from the debtor.
I must say that such norms were present both in the draft of the 5th book of the Civil Code, and in the previous acting Civil Code. So, by virtue of Art. 398 of the Code in case of failure to fulfill the obligation to transfer individually defined property to a household. The creditor may require the seizure, ownership, reimbursable use or operational management of the thing from the debtor and its transfer on the agreed terms. At the same time, this right cannot be used if the item has already been transferred to a third party who has the right to operational management, property or households to it. reference. In this case, we see that the legislator gives priority to corporeal powers, rather than binding ones.
Paid service provision
It is carried out on the basis of a bilateral agreement - the obligation to fulfill the contract lies with both parties. The first participant must provide the service, and the second - to pay for it. Such an agreement involves mutually beneficial and voluntary cooperation. Parties may be both citizens and legal entities.
Fulfillment of a service agreement involves the performance of certain actions by participants. First of all, the contractor should provide complete and reliable information about himself. This can be constituent documents, information about existing licenses, contacts, address, etc. Secondly, the service must be provided within the time period established by the contract. Delays due to force majeure may be an exception. Thirdly, according to the provisions of Art. 780 Civil Code, the execution of the service is carried out personally. It should be said about the reservation present in the norm. The article says that the customer and the contractor can conclude an agreement under which part of the services is delegated to third parties.
Early performance of an obligation (Article 315 of the Civil Code)
When concluding an agreement, the parties have the right to establish in what period or until which calendar date it must be performed. However, the law allows for early execution. It will be deemed appropriate, except in certain cases.
The principle of early fulfillment of obligations is made dependent on the type (nature) of activities of the parties to the contract. According to the norm, the debtor can fulfill the terms of the agreement ahead of schedule, unless otherwise provided by law, another normative act or the obligation itself. For example, under Art. 810 of the Civil Code, the amount of a loan provided at% to an individual borrower for family, individual, home or other use not related to business can be repaid in full or in part ahead of schedule if he notifies the lender at least 30 days before the date of such return. The parties, however, are entitled to set a shorter period for notification.
Also in Art. 315 of the Civil Code, early fulfillment of an obligation related to entrepreneurship is permitted if the corresponding opportunity is provided for by law, other legal document, contract or arises from the substance of the agreement or custom. So, for example, in paragraph 3 of Art. 508 of the Code provides that, with the consent of the acquirer, early delivery can be made.
Annuity contract
It is an agreement under which one participant (recipient) provides the other (payer) with the property. In this case, the payer in exchange for this pays the agreed amount of money or spends funds for its maintenance in some other form.
There are the following types of rental agreements: permanent and life annuity, as well as life-long dependent maintenance.
The parties are the creditor and the debtor. The first is an entity transferring property to another person in order to generate income over an extended period of time. Recipients may be non-profit organizations or individuals. A commercial structure cannot become a recipient under an annuity contract.
The debtor under the agreement is an entity accepting an obligation in exchange for property to pay the agreed amount over a long period of time. Both a natural person and a legal entity can act as a payer.
The subject of the agreement is exclusively individually defined things owned. We are talking about real estate, and movable property, securities, cash. Property rights, non-cash funds, non-documentary securities, information, services, intangible personal benefits, work, exclusive rights cannot be the subject of an agreement.
Due diligence conditions
They are described in sufficient detail in the norms of Ch. 22 Civil Code. Consider the basic conditions for the proper execution of the agreement.
First, pay attention to Art. 312 Civil Code. This norm is one of the Codex short stories. The article establishes the possibility of imposing on the debtor the risk of the performance of an obligation to an improper person. Accordingly, it is this participant in the transaction who will prove that he has fulfilled the agreed requirements. The law, however, provides a mechanism for protecting the interests of the debtor. It is enshrined in Art. 408 Civil Code. The norm establishes the right to demand from the creditor evidence of performance. If the latter refuses, the debtor may suspend the implementation of the contract.
The second condition is the execution by the proper subject. This is stated in Art. 313 GK. The transfer of performance by a third party is deemed appropriate, unless otherwise provided by law, other regulations, the substance and conditions of the obligation. Pay attention to a very important point. In all cases of fulfillment of the obligation by a third party, the debtor continues to be so.
Novel in the law - the possibility of fulfilling the terms of the contract by a third party in its own interests. The law at the same time limits their limits. In connection with foreclosure on property, a third party runs the risk of losing the right to a thing. The norm allowing the fulfillment of obligations by a third party without the consent of both the creditor and the debtor is mandatory. It is worth noting that the third party fulfilling the terms of the contract automatically takes the place of the original creditor.
The last, third, condition is the fulfillment of the obligation by the proper subject. What does it mean? This means that the subject of the contract (thing, work, service) in all respects (quantitative and qualitative) must meet the requirements established by law or other legal document, agreement.
Alternative execution
An agreement may fix several items of one obligation. But at the same time, the parties can agree that the execution will be carried out only by one of them. The subject may be different types of property to be transferred. For example, a pharmaceutical plant is obliged to provide medicines A or B. The subject can be different actions. For example, a delivery contract may provide for execution by delivery to the buyer, pick-up or transportation by rail, sea, air.
In alternative obligations, the choice can be made either by the debtor or the creditor, unless otherwise provided by law, other normative act or terms of the transaction.
The specifics of such a performance is manifested in the case when in the absence of fault of the parties it is impossible to provide one of the agreed items. For example, medicine A was prohibited by law, so it cannot be delivered. If it is impossible to fulfill one of the stipulated items, in a situation where the debtor has the right to choose, the obligation retains its force. But you need to complete it with the remaining subject. Another thing is when the corresponding right belongs to the creditor. The alternative in this case is saved in a different form. The creditor has the right to choose the remaining subject of performance or completely abandon the obligation by imposing a penalty on the debtor for the losses incurred. In this case, the debtor will have to prove the absence of his guilt or the presence of force majeure.
Optional execution
Unlike the alternative, only one item is provided here, but the debtor has the right to replace it. For example, under a fuel and lubricant supply contract, it is stipulated that the plant provides AI-72 gasoline, but with the right to replace it with AI-93. The plant produces leaded AI-72 gasoline. After signing this contract, the city administration issued a decree prohibiting the supply of this type of fuel. Consequently, the supplier has the choice: to terminate the contract or to provide gasoline of a different brand.
I must say that in the current Civil Code, as in previous Codes, there is no mention of optional execution. This, however, cannot be an obstacle to their use in practice. In any case, given the absence of special rules governing optional execution, its features should be fixed in the contract.
Proper place
Its definition is of great practical importance. The distribution of delivery costs will depend on the place of execution. It may be indicated in a contract, law or other legal document. For example, when concluding an agreement on the carriage of passengers, the ticket indicates the final destination at which the transport company undertakes to bring people.
In some cases, the place of performance is determined on the basis of the corresponding obligation. This happens, for example, when purchasing a ticket for a sports match.
Place of performance can also be determined by the customs of turnover.
It must be said, however, that there are often cases when none of the above methods has been used. In such situations, execution is carried out:
- At the location of the property - by obligation to provide a structure, building, plot of land or other real estate. Here we are talking not only about the transfer of the object into ownership, but also for use or other obligation (or property) law.
- At the place of delivery of the property to the very first carrier for delivery to the creditor - for obligations to deliver the goods or other subject of the contract. The place will be an airport, station, marina or other departure point. This rule applies when transported by one or more modes of transport.
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