Within the framework of collateral legal relations, one subject - the creditor - under the obligation secured by the property, has the preemptive right to receive satisfaction from the value of the pledged thing in case the debtor does not fulfill the terms of the transaction. If the property is damaged or lost, it can also receive compensation from insurance compensation, regardless of whose benefit the insurance was for. This rule applies if damage / loss has not occurred due to circumstances for which the creditor is responsible. The pledge agreement is referred to in Art. 339 of the Civil Code of the Russian Federation. We’ll review the comments below.
Participants in legal relations
They are the pledge holder (creditor) and the pledger (debtor). The first is the subject to whom the property is transferred as collateral. Accordingly, he becomes a creditor under a secured obligation.
A person who pledges a thing may act as a pledgor. As a rule, it becomes the debtor of the secured (main) obligation. At the same time, in judicial practice under Article 339 of the Civil Code of the Russian Federation there are many cases where a third party becomes a pledger. As this subject of legal relations can be a person who has a thing in the property or households. run by. In the latter case, the consent of the owner is required to transfer a thing as a pledge.
The pledger of the law may be the subject to which it belongs.
Pledge Features
Collateral relations have specific characteristics:
- The lender's right extends to someone else's thing.
- Collateral is a derivative liability. This means that it arises because a primary obligation arises. If it is not, then there can be no collateral.
- Mortgage law follows property. Upon the transfer of property into ownership or households. leading to another person it does not stop.
- The pledge depends on the main (initial) obligation, i.e. the fate of the creditor's right is determined by the fate of the secured obligation. Dependence is also expressed in the fact that an exclusively valid requirement can be provided. If it is declared invalid, then the collateral agreement will be considered as such. If the contract, from which the main obligation arises, must be certified by a notary, then the collateral agreement must have the same form.
Grounds
A pledge arises, as a rule, on the basis of an agreement (Article 339 of the Civil Code of the Russian Federation). Rather rarely, it is prescribed by law. In this case, the regulatory act should indicate:
- Legal facts, in the event of which the right of pledge appears automatically.
- Subject.
- Secured obligation.
The provisions governing the occurrence of the relevant legal relations by virtue of the contract apply to the pledge arising from legislative norms, unless otherwise provided by law.
Article 337 of the Civil Code sets out the limits for securing the main obligation. Unless otherwise provided by the contract, the pledge provides the requirements in the amount that takes place at the time of its satisfaction. It is, in particular, about the penalty, interest, compensation for losses incurred in connection with the delay, reimbursement of the creditor's expenses for the maintenance of the pledged property, as well as the costs of collection.
State registration and registration of collateral is referred to in Art. 339.1 of the Civil Code of the Russian Federation.
Transaction subject
In the new edition of Art. 339 of the Civil Code of the Russian Federation, the conditions and form of the collateral agreement are fixed.
As one of the key elements of the contract is its subject. They can be any property, including property rights and things. However, some restrictions are enshrined in the law. The subject of the transaction are not:
- Values taken out of circulation.
- A requirement inextricably linked with the personality of the subject. It is, in particular, about maintenance payments, compensation for harm to health and life, other rights, the assignment of which is not allowed by law.
- Some types of property in cases established by regulatory enactments. For example, the law may limit or prohibit the transfer of pledged things of citizens that cannot be levied (clothing, essentials, etc.).
According to general rules, affiliation follows the main thing, unless otherwise provided in the contract. In this regard, in case of transfer of the main property, its ownership will also be considered as a pledge. The contract, in turn, may stipulate that the security right does not apply to all, but only to certain accessories. At the same time, the income received from the use of the mortgaged property, fruits and products are not included in the pledged item. A different rule may, however, be enshrined in the contract.
The subject of the transaction may be property that the mortgagor already has, as well as things that he will subsequently acquire. If a pledge relationship arises by virtue of a law, then the corresponding normative act may fix the transfer of values or rights that may be obtained in the future.
Nuances
The legislation allows the replacement of the subject of the pledge. However, it can be carried out only with the consent of the pledge holder, unless otherwise provided in the rules or the contract. In accordance with the law, an item can be replaced when the product is pledged in circulation.
One and the same thing (right) may become the subject of several agreements concluded sequentially. However, there is one important nuance. This rule applies if the previous collateral agreement does not prohibit subsequent collateral.
Features of the disposal of property
During the term of the collateral agreement, ownership or households. maintenance of property may be transferred from the mortgagor to a third party as part of the alienation (reimbursable or gratuitous) under a contract of sale, gift, barter, etc., or universal succession (upon reorganization of a legal entity, inheritance, etc.). This action does not terminate the collateral agreement, and the property remains its subject.
Transferring a thing into trust is not an obstacle to foreclosure on it by the pledge holder.
Types of Collateral
Classification is carried out according to different criteria. Traditionally emit a pledge with the transfer of things and without it.
According to general rules, property remains with the mortgagor (debtor). The contract may, however, establish another rule. For example, an item is transferred to the mortgagee, a third party for storage, etc. With regard to products in circulation and immovable objects, by virtue of paragraph 1 of article 338 of the Civil Code, they are not transferred to the creditor.
The subject may be held by the pledge holder without the ability to dispose of and use it. A thing, for example, can be left locked. If the item is transferred by the debtor for temporary use (possession) to a third party, it is considered that it is with the pledger.
Summary of article 339 of the Civil Code of the Russian Federation and comments thereto
According to the norm, a collateral agreement must include:
- Subject and its assessment.
- Determination of the party whose mortgaged property will be located.
- The essence of the secured obligation.
- Size requirement.
- Duration of the obligation.
According to Part 3 of Art. 339 of the Civil Code, the agreement is in writing (simple form). However, in the same part it is indicated that a notarial form may also be provided by contract or law. According to paragraph 3 of Art. 339 of the Civil Code of the Russian Federation, a pledge agreement is concluded for certification, which is concluded as security for obligations under the main contract, subject to notarization. Simply put, it should be in the same form as the original contract.
In case of non-compliance with the provisions of Art. 339 of the Civil Code of the Russian Federation, the punishment will be the recognition of the invalidity of the collateral agreement.
Content of the agreement
According to Art. 339 of the Civil Code of the Russian Federation, the conditions and form of the pledge agreement are considered agreed if it contains a reference to the document from which the ensured obligation arises or subsequently arises. The agreement gives rise to a specific set of obligations and rights of participants in legal relations. So, the mortgagee or the mortgagor (depending on who it will be the subject of the contract) must:
- Insure property in full against the risk of damage or loss. If it is more than the requirement secured by a pledge, insurance is carried out in the amount of this requirement. This procedure is carried out at the expense of the mortgagor. A contract or law may, however, establish a different procedure. For example, a different amount may be negotiated.
- Take measures to ensure the safety of property, protect it from claims and encroachments of third parties. In an agreement or law, these duties can be distributed among the parties to the transaction, assigned to one of the subjects, even if the thing is not with him. In addition, the parties are entitled to establish specific measures that must be taken in certain cases.
- Immediately inform the other participant about the risk of damage or loss of property.
Each subject has the right to check according to documents or actually the presence, condition, quantity, storage conditions of the pledged item.
Pledger Rights
Under the terms of the agreement, the debtor has the right:
- Transfer the already pledged thing again as a pledge to ensure other requirements, if this is not prohibited by previous agreements.
- Demand early termination of the contract if the property was transferred to the creditor, and he admits gross violations of his obligations to preserve and maintain the item. For example, the mortgagee has not insured property, has not taken the necessary measures to prevent damage to things, etc.
- Claim compensation for damage resulting from partial loss or damage to the property.
- Renounce property by claiming compensation for loss. In cases agreed by the parties, he may recover other losses if the thing is transferred to the creditor and due to the damage for which he is responsible, it has changed so much that its intended use has become impossible.
- Set off the creditor's claims for compensation for losses incurred in the event of damage or loss of property in repayment of the obligation secured by it.
- Replace the item with the consent of the creditor, unless otherwise provided in the contract or law.
- To restore the subject of pledge within a reasonable time or replace it with an equivalent item, if it was lost or damaged, the right of economic management or property ceased on the grounds provided for in the legislation. This provision applies unless otherwise provided in the agreement.
- Use the subject of the contract for its intended purpose, including to receive from this income, fruits, unless otherwise follows from the essence of the transaction and is not established in the contract.
- Dispose of the thing by means of alienation, provision for gratuitous use, lease or in any other way with the consent of the creditor. The contract, however, may establish a ban on the commission of such actions.
- Bequeath property. An agreement to which this right is limited is null and void.
- At any time before the sale of property, stop its sale and foreclosure on it, fulfilling the obligation or an overdue part of it. A debtor is also entitled with a similar right upon basic demand, if the security includes mortgaged property belonging to a third party. An agreement to which this right is limited is null and void.
P. 2, Art. 339 of the Civil Code
In the collateral agreement, the debtor of which is the subject of entrepreneurial activity, the secured obligation, including the future, can be described in any way by which it can be identified during foreclosure. This can be done, inter alia, by specifying the security of all existing or future obligations of the debtor within a certain amount.
The second paragraph of Article 339 of the Civil Code of the Russian Federation also establishes that in the agreement, under which the entrepreneur acts as the pledger, the subject of the transaction may be described in any way that ensures its identification when enforced. This can be done, among other things, by indicating the pledge of all things or a certain part of them, as well as the pledge of property of a particular type or kind.
Additionally
In addition to the above duties and rights, other requirements are presented to the mortgagor. So, he must inform each subsequent creditor (pledge holder) of all pledges existing in relation to this property. He is liable for losses incurred by the creditor in connection with the debtor's failure to fulfill this obligation. If a pledge contains a property right certified by a security, it must be transferred by the pledgor to the pledge holder or to a notary’s deposit. An agreement, however, may establish a different rule.
The mortgagor bears the risk of accidental damage or loss of property, unless otherwise provided by agreement.
The pledge holder may use the item transferred to him, if this is provided for by the contract. If there is no such clause in the terms of the agreement, the use of the thing shall be considered unlawful. In accordance with the contract, the lender may be required to derive income from the subject of the transaction to repay the main claim or in the interests of the pledgor.
If the mortgagor improperly fulfills his duties, the mortgagee may, in cases stipulated by law, require early repayment of the secured obligation.
Conclusion
Stipulated in Art. 339 of the Civil Code of the Russian Federation, the conditions and form of the pledge agreement are general. They must be present in the agreement of any kind.
Art. 339 of the Civil Code of the Russian Federation is of particular practical importance for subjects of civil law. It consolidates key provisions that are of a dispositive nature. In Art. 339 of the Civil Code of the Russian Federation specifically stipulates the possibility of participants to provide for a mandatory notarized form of agreement. Thus, the legislator provides entities with the opportunity to provide additional protection for the transaction.
An important point is the establishment of liability for non-compliance with the rules of paragraph 3 of Art. 339 of the Civil Code of the Russian Federation. In case of violation of the requirements, the contract is declared invalid.