Obligations are a common and common form of civil relations, in which two persons are linked by the need to perform certain actions. This can be a transfer of property, payment of cash, services, reimbursement, debt repayment, etc. Far from always responsible persons comply with the agreed conditions, because of which the creditor suffers. As debtors, ordinary citizens usually enter into financial relations with credit, insurance and banking organizations. To protect themselves from unpleasant consequences as a result of such cooperation, lenders use legal tools that allow them to insure themselves against losses to a certain extent.
To understand the intricacies of such actions will help the concept and ways to ensure the fulfillment of obligations that are practiced in the modern legal system. This model acts as a safety tool, which is activated if the debtor does not fulfill the obligations established by the agreement. Moreover, there are different forms and legal constructions for the implementation of this right. But its essence remains the same - to ensure, first of all, the reliability of the transaction and the financial security of the lender.
Types of ways to ensure fulfillment of obligations
The norms of regulation of legal relations provide for two main types of means of securing obligations - accessory and non-accessory. In the first case, we are talking about the most common forms of guaranteeing the fulfillment of obligations, among which - a deposit and a guarantee. It should be noted that the agreement on the use of one of the types of security entails an affiliation obligation, which is valid in addition to the main one. These are the modern legal ways to ensure fulfillment of obligations of an accessory type. The basis for the approval of additional obligations may be the initiative of one of the parties to the agreement or the enactment of the law. Usually this happens at the time of the onset of the facts, which were also provided for in the legal contract. For example, the right to pledge may occur after the fulfillment of certain conditions prescribed by law. The retention right, which the creditor can count on, acts in the same way. But in all situations of this kind, it should be remembered that the initial agreement may exclude the effect of such legal factors. For example, if the documents contain reservations that the lender cannot use the lien.
There are also non-processor methods that stimulate the debtor to fulfill his obligations to the partner. A feature of this form is the independence of additional obligations to the main ones. This category includes a bank guarantee, which, although associated with the primary debt, but operates independently of it. Now it is worthwhile to consider in more detail modern ways of ensuring the fulfillment of obligations. The cheat sheet in the form of brief reviews will help to understand the essence of legal instruments of this kind and identify their features.
Forfeit
Although the penalty was initially introduced into legal practice as a means of sanction type, today it is increasingly being used as a full-fledged way of securing obligations. For this, in particular, special legal constructions are being developed. In most cases, a forfeit, as a way to ensure the fulfillment of obligations, is expressed as a fine. In accordance with the contract document or legal regulations, a certain amount of cash is considered as a forfeit. If, by the established time, the responsible person does not perform the actions prescribed by the contract, this amount will be paid to the creditor.
The possibility of recovering a sum of money in the form of a fine or a penalty enables lenders to compensate for losses caused by non-performance of the debtor. It should be noted that the penalty does not have to correspond to the amount of the debt. In most cases, creditors through a forfeit return only part of the losses incurred through the fault of the responsible person, that is, the debtor.
Contracts and legal requirements also allow cases where there is a penalty only, but not compensation. On the other hand, it is possible to repay the penalty in full and to recover damages. A scheme is also widespread in which the lender can independently choose the scheme for covering the financial damage caused - through forfeit or by payment of the main debt. A method similar to the legal model of ensuring fulfillment of obligations is a bank guarantee. However, she has several fundamental differences in the legal aspect.
Pledge
From the point of view of a tool that stimulates the debtor to fulfill obligations, a pledge is one of the most effective means. Again, in accordance with the law or clauses in the contract, material values that are transferred from the debtor to the creditor in case of default on basic obligations can be recognized as a pledge. Actually, in this case there is a principle similar to the scheme of cooperation of a pawnshop with its customers. However, the pledge, as a way to ensure the fulfillment of obligations, has its own nuances regulated by the right of ownership. But it depends on the specific arrangement and type of property. In particular, real estate and financial assets may be the subject of a pledge. Property that was secured and disposed of by the debtor may be claimed by the creditor. In cases of handling goods in circulation, they are kept at the disposal of the pledgor.
A pledge of property that is prohibited is null and void. It is noteworthy that the same property can be the subject of several contracts. In other words, a pledge, as a way to ensure the fulfillment of obligations, can be represented by property under the jurisdiction of several holders at the same time. Such a form of appeal may take place until the next agreement sets limits on the establishment of further liens involving the use of specific property. It is worth noting that such situations with several liens affecting the same property are extremely rare.
Deposit as a way to ensure fulfillment of obligations
In this case, we are talking about one of the simplest forms of securing obligations within the legal framework. The deposit, as a rule, is a certain amount of money, which is transferred by one party to the contract to the other as proof of intent regarding the fulfillment of the terms of the agreement. I must say that the deposit can perform a variety of functions in legal transactions, acting, among other things, as an advance payment. Such an instrument for ensuring the fulfillment of obligations is impossible without identifying the funds paid as a deposit.
The amount itself is paid in sign of the agreement, that is, the reinforcement of obligations acts only as an additional factor confirming the fulfillment of the terms of the agreement. Moreover, if the transferred money cannot be qualified, then they can be considered as the mentioned advance payment. The deposit itself, unlike a pledge, can only take the form of a sum of money. Further it is worth familiarizing in more detail with the difference between a deposit and an advance. Similar ways to ensure the fulfillment of bank obligations have some features of the return of funds. So, if the person who received the deposit is responsible for the failure to fulfill the terms of the contract, then he must return this amount in double size. If the party that provided the deposit is responsible for the non-fulfillment of obligations, then the money remains with the person who received them. In all other situations, both the advance payment and the deposit are returned in full to the person who gave it.
Guarantee
All forms of ensuring compliance with the terms of the contract, discussed above, involve the participation of two parties - at least in terms of regulation of additional instruments to ensure agreements. But legal instruments such as suretyship also relate to ways to ensure the fulfillment of obligations. In this case, in addition to the debtor and the creditor, the third party, the guarantor, also participates in the contract. It is he who acts as a kind of guarantor, which, in case of failure to fulfill the terms of the contract, the creditor can rely on compensation for losses. In other words, if the debtor does not fulfill the obligations, the surety will either fully compensate the losses, or partially cover them.
But here there are forms of security in several variations. For example, the contractor and the guarantor may have different relations within the framework of the contract - in some cases their obligations go in parallel, and in others the guarantor must fulfill both his obligations and the terms of the agreement on the part of the debtor. The so-called joint liability, which binds obligations of guarantors and debtors, is also registered in the law. But it is important to note another feature that distinguishes this method of ensuring the fulfillment of obligations from the guarantee. Given joint and several liability, the functions of the guarantor under the contract cease to be relevant from the date of termination of the primary obligation.
As for the termination of the obligations of the guarantor, it may be due to various reasons. In addition to ordinary situations stipulated by the contract, among which the fulfillment of obligations by the debtor, the guarantee may be terminated as a result of the creditor's refusal to fulfill the contract on the part of the contractor. Also, the reason for the termination of the function of the guarantor may be the introduction of changes to its obligations, entailing adverse consequences for it. Of course, an exception is also allowed if the guarantor agrees to the introduction of changes.
Bank guarantee
This is a relatively new instrument for regulating relations between the debtor and the creditor, which, however, proves the effectiveness of its function. Nowadays, a bank guarantee as a way to ensure fulfillment of obligations may include the participation of a wide range of financial institutions, including insurance and credit companies. The debtor, as a rule, initiates this form of confirmation of the fulfillment of its obligations. He appeals to a financial organization with a request to provide the creditor with a written obligation to pay a certain amount in the event that the terms of the contract with him are not fulfilled.
That is, in this case, the banking structure acts as the guarantor of the transaction. To date, a bank guarantee as a way to ensure fulfillment of obligations is still being formed and has not so firmly entered into Russian practice, but some signs of such instruments have already been outlined. For example, experts note the irrevocability of a bank guarantee. This means that the termination of the agreement with the guarantor can take place only in situations stipulated by the agreement. Non-transferability of warranty rights is also noted - again, unless otherwise provided by the terms of the agreement.
One of the main signs of a bank guarantee is retribution, that is, the debtor is obliged to pay the pre-established remuneration to the organization, which in some way acts as its guarantor. It is worth noting that the guarantee, as a way to ensure the fulfillment of obligations, does not depend on the relationship between the debtor and the creditor, as well as on the terms of their contract. This feature characterizes a bank guarantee and as an independent instrument for securing obligations.
Retention
This type of collateral is that the lender has the right to withhold values belonging to the debtor. Such a right is usually valid until the initial conditions of the contract are fulfilled. At the same time, it is not necessary that a certain thing from the responsible debtor be kept by the creditor organization. According to the regulations, withholding, as a way to ensure fulfillment of obligations, also allows the transfer of property to third parties. Of course, if the debtor agreed. Moreover, under certain conditions, it is he who can become the initiator of the transfer of his values to a specific person.
A foreclosure on a thing of a debtor occurs according to the same scheme as it does with property that is secured. But there is a significant difference between the collateral and this form of collateral. The fact is that withholding, as a rule, implies the expectation by the creditor of the payment by the debtor of precisely the value of the subject of the agreement. From this point of view, it is more appropriate to draw an analogy with pawnshops, which in their work with clients operate with amounts corresponding to the value of the pledged things. However, in the business sector, retention, as a way to ensure the fulfillment of obligations, is not always associated with the payment of money for a seized item or the reimbursement of other expenses for it.
Responsibility for default
In the civil law system, breach of obligations usually involves the occurrence of unfavorable financial or property consequences for the debtor. The reduction of property benefits of a party that has not fulfilled the terms of the contract occurs in the process of recovering fines for losses. In case of non-fulfillment or untimely fulfillment of obligations, the debtor is obliged to cover the losses of the creditor in the framework of the conditions provided for by the contract or the law.
Details of damages for the creditor depend on the system of execution and security of obligations. In the event of failure to fulfill obligations that involve the transfer of an individually defined property to the economic possession, control or ownership of a creditor, the latter has the right to seize this item or to recover costs and financial losses that were incurred as a result of the debtor's failure to fulfill its obligations. By the way, in this case, there may be a way to ensure the fulfillment of obligations in the form of withholding things. The terms of liability are usually specified in the contract. Moreover, they are supplemented by circumstances, the absence or presence of which may result in civil liability. Such circumstances usually include the unlawful behavior of the debtor and the presence of losses that were incurred through the fault of the responsible person.
Termination of obligations
The moment of termination of obligations is also indicated in the contract. In the usual manner, this occurs as a result of the fulfillment of all obligations by the parties to the agreement. This means that the goals set by the creditor and the debtor have been achieved, and the subject of the contract is no longer relevant. But far from all cases, transactions end happily, and termination of obligations may occur for other reasons. In this context, one way or another way of ensuring fulfillment of obligations can be considered as the form of the most favorable outcome for the injured party, which is usually the creditor. It happens that the agreed terms of the agreement and the requirements of the parties are canceled as a result of mutual agreement. This can happen both in the format of complete cancellation of obligations and in the form of a partial termination of their validity.
There are other cases when such a set-off is impossible. A mutual agreement on the termination of obligations usually occurs when the debtor and creditor are represented by one person, for example, in the process of reorganization of the company. If this does not contradict the law, then the termination of obligations as a result of the merger of organizations and legal entities is allowed. It should be noted that default may be irreversible. For example, when the contractor dies, and there is no physical opportunity to implement the terms of the contract in which the person participated. , . , .
Conclusion
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