In practice, quite often debtors assign the performance of their obligations to third parties. Legislation does not prohibit entities from committing such acts. In this case, the main obligation does not change, and the transfer of debt (replacement of the contractor) is not carried out. Key provisions regarding the assignment of obligations to third parties are enshrined in Art. 313 of the Civil Code of the Russian Federation. Consider the norm in more detail.
General information
Paragraph 1 of Art. 313 of the Civil Code of the Russian Federation , it is established that the creditor must accept the performance of an obligation from a third party, if it is assigned to the latter by the debtor.
In this case, the obligated person is liable for improper actions of a third party. Between the third (third-party) person and the creditor neither mutual rights nor obligations arise.
In judicial practice under Art. 313 of the Civil Code of the Russian Federation , cases are often considered to set off counterclaims of the debtor to a third party. For example, under paragraph 3 of paragraph 706 of the Civil Code, the general contractor is responsible for the consequences of improper fulfillment or non-fulfillment of the task by the subcontractor, and before him, in turn, for violations committed by the customer. Unless otherwise stipulated by the contract or law, the subcontractor and the customer cannot make claims to each other related to the failure to fulfill the terms of the agreements concluded by them with the general contractor.
The provision enshrined in paragraph 1 of Art. 313 of the Civil Code of the Russian Federation , can not be considered as an opportunity to obtain unjust enrichment by the creditor, since it has a different legal nature.
Nuances
The rules provided for by Art. 313 of the Civil Code of the Russian Federation , cannot be considered completely new to domestic law. Similar provisions, except as enshrined in paragraph two, were present in Art. 171 of the Code of 1964. According to a previously existing norm, the repayment of a contractual obligation could be partially or fully attributed to a third party if the corresponding possibility is provided for by the rules or a third-party entity is associated with one of the parties to the transaction by an agreement or administrative subordination.
If, within the framework of legal relations, legislation or an agreement does not establish that a citizen must personally fulfill an obligation, the creditor should accept the execution from a third party. Art. 313 of the Civil Code of the Russian Federation , in contrast to the previously existing norms, does not limit the repayment of debt by contractual legal relations.
Scope of the norm
The provisions of Art. 313 of the Civil Code are applicable only to civil matters. The procedure for imposing fulfillment of obligations arising from tax, administrative and other public relations is enshrined in the norms of the relevant legal industry.
This conclusion is confirmed by the provisions of Art. 2 of the Code. According to paragraph three of this article, to property relations based on the administrative or other power subordination of one participant to another, including tax and other financial relations, civil law norms do not apply, unless otherwise provided by law.
Performer Requirements
When considering disputes, much depends, including on additional requirements imposed by the legislation on the debtor. For example, the contractor must have a license.
In one of the disputes, the court was guided by the rules allowing settlements in rubles on export transactions using the institution of assigning a third person to settle the obligation by a non-resident acquirer. Meanwhile, operations of this kind are allowed to be performed only from category “T” accounts of non-residents with the right to conduct entrepreneurial activity on the basis of constituent documents, registration documents, permits issued by Russian competent structures, as well as other papers confirming the legal capacity of business entities.
Non-resident purchaser making settlements in rubles for exported products on the territory of the Russian Federation, bypassing the established requirements, is a violation of the requirements of the legislation on currency control and regulation.
Duty to accept
It is established by paragraph two of Art. 313 of the Civil Code of the Russian Federation . According to the provisions, the creditor must accept the performance offered by him from a third party, if it was not assigned to him by the debtor in the following cases:
- Assumptions for late repayment of cash debt.
- A third party may lose the right to property belonging to the debtor as a result of foreclosure on valuables.
This rule does not apply to cases when the obligation to personally repay the debt by the debtor does not follow from the content of the legal relationship or the law.
Important point
The law does not require obtaining consent from the debtor to repay the obligation by a third party. If the latter does not know about the debtor's objections, which, for example, may recognize the basis for the obligation to become invalid or completely terminate it, the executed one can be returned by the creditor subsequently as unjustified enrichment.
Bill relationships
As one of the ways of transferring material assets of LLC to its participants, one can consider a donation agreement. This transaction is governed by the provisions of Chapter 32 of the Civil Code.
As a rule, donation involves the transfer of individually defined objects. The provision of items with generic characteristics has a number of features. For example, uncertified issue-grade securities, a “package” of bills can be donated. The provisions of Art. 313 of the Civil Code of the Russian Federation. The transfer of bills is advisable to carry out indicating the individualizing signs (numbers, series, list of endorsements, etc.).
Transfer of rights to a third party
They are referred to in paragraph 5 of Art. 313 of the Civil Code of the Russian Federation. The decisions of the courts considering disputes are based, inter alia, on the provisions of Art. 387. If, according to this norm, the rights of the creditor pass to a third party, then they cannot be used to the detriment of the original creditor. So, these legal opportunities do not have an advantage in satisfying claims at the expense of collateral or with insufficient funds from the debtor to pay off all obligations in full.
Analyzing Art. 313 of the Civil Code of the Russian Federation with the comments of lawyers, it should be noted that experts draw attention to the fact that when the creditor's rights are transferred to the third party, the debtor has the right to send him a disagreement that he could have declared to the original creditor.
In addition, within the framework of these legal relations, the provisions of article 412 of the Code are also applied. In accordance with them, the debtor can set off a counterclaim to the first creditor against the claims of a third party. The implementation of this provision is subject to a number of conditions. First of all, it is possible to set off a claim that arose on the basis of the fact that took place at the time the debtor received the notice of assignment. At the same time, the term of the claim must come before the notification is received, it must be determined by the time of demand or not be indicated in the agreement. In such a situation, if the obligation is improperly performed, the creditor may demand its proper performance from the debtor.
Exceptions
As mentioned above, execution by a third party is not accepted if the obligation is to be personally performed by the debtor. Such a rule, in particular, applies to cases when the terms of an agreement on the creation of a product of intellectual labor are implemented.
As paragraph 1770 of the Civil Code establishes, the contractor must conduct research work in person. He can attract a third party only with the consent of the customer.
Another case is provided for in Article 780 of the Code. As the norm establishes, the fulfillment of the terms of the agreements for the provision of services for services is carried out by the contractor in person. The payment obligation can be repaid to a third party, unless otherwise provided by law, other regulatory documents or an agreement.
Conclusion
According to some experts, the need for the fact of imposing the fulfillment of an obligation unjustifiably infringes on the discretion of participants in legal relations, which, in turn, is not consistent with civil law principles. Moreover, this situation entails a violation of the rights of the original creditor. In practice, this person often has to find out whether the debtor assigned the execution to a third party or not. This is not possible in all cases. Given such difficulties, some experts propose to remove the wording on the execution from paragraph 1 313 of the Code.