Sergei Gromov, Associate Professor of the Department
of Civil Law of St. Petersburg State University, Ph.D. in Law
https://law.spbu.ru/aboutfaculty/teachers/gromov/
§ 3. Performance of contractual obligations
[chapter from Russian Commercial Law (2020), translated by Google Translate]
Gromov Sergei, Associate Professor of the Department of Civil Law of St. Petersburg State University, Ph.D. in Law, https://law.spbu.ru/aboutfaculty/teachers/gromov/
As a result of the conclusion of the contract between its parties, a complex of legal ties arises.
Most of them are called obligations.
The concept of obligation. By virtue of an obligation, one person (debtor) is obliged to perform
a certain action in favor of another person (creditor), such as: transfer property, perform work,
provide a service, contribute to a joint activity, pay money, etc., or refrain from a certain actions,
and the creditor has the right to demand from the debtor the performance of his obligation (clause
1, article 307 of the Civil Code of the Russian Federation1).
The content of the obligation, the parties to which act in the course of their entrepreneurial
activities, may also constitute the obligation of one party to compensate for the property losses of
the other party that have arisen in the event of the occurrence of certain circumstances that are
in any way related to the fulfillment, modification or termination of the obligation or its subject,
and which are not breach of obligation (art. 406¹).
In addition, when carrying out entrepreneurial activities, the party may be required to be
responsible for the occurrence or non-occurrence of certain circumstances, including those not
dependent on its behavior, for example, in the event of an unreliable assurance of circumstances
(clause 4 of article 431²) .
Sources of obligations. According to Art. 8 and paragraph 2 of Art. 307 obligations arise not
only from contracts (ch. 27-49, 51-55), but also from unilateral transactions (ch. 56, 57), actions
in someone else's interest without instructions (ch. 50), unjust enrichment (ch. 60), invalidation
of transactions (§ 2 ch. 9), causing harm (ch. 59), unfair pre-contractual behavior (art. 434¹).
In addition, specific mainly for business relations are such areas of obligations as corporate
relations (Chapter 4) and unfair competition (Chapter 2¹ of the Federal Law of July 26, 2006
No. 135-FZ "On Protection of Competition"2).
The concept of fulfillment of obligations. In practice, the fulfillment of an obligation is
understood as the performance by the debtor of actions that entail the satisfaction of the needs
of the creditor by providing him with the benefits in which he is interested (transfer of a thing,
performance of work, provision of a service, etc.) 3.
these actions is also referred to as “provision” (clauses 1 and 2 of article 423).
A key feature of the regulation of the fulfillment of obligations in the course of
entrepreneurial activity is the establishment of an increased standard of conduct for entrepreneurs
in civil legal relations 4, including requirements for the efforts that the debtor should make - they
significantly exceed the standard of taking “all measures for the proper fulfillment of the
obligation” “with the degree of care and prudence, which was required of him by the nature of
the obligation and the conditions of turnover” (cf. paragraph 2, paragraph 1, article 401). This
feature is predetermined by the expansion of the grounds for liability for violation of business
obligations beyond the limits of random obstacles - to the limits of force majeure, i.e.,
extraordinary and unavoidable circumstances under the given conditions (paragraph 3 of article
401).
Further in this paragraph, references to sections, chapters and articles without specifying a legislative act
mean references to the relevant provisions of the Civil Code of the Russian Federation.
2
Collection of Legislation of the Russian Federation. 2006. No. 31 (part I). Art3434; 2015. No. 41 (part I).
Art. 5629.
3
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 25, 2011
No. 3108/11 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. No. 11. P. 237.
4
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian
Federation dated June 8, 2016 No. 308-ES14-1400 // Bulletin of the Supreme Court of the Russian Federation.
2017. No. 2. S. 26–27.
1
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
2
In doctrine and practice, a discussion has been going on for a long time on the question of
what place the fulfillment of obligations takes in the system of circumstances of legal significance
(legal facts) 5.
Speaking formally, the fulfillment of an obligation entails its termination (clause 1, article
408), while actions aimed at terminating rights and obligations are recognized as transactions
(article 153).
At the same time, the performance of work and the provision of services (as opposed to the
transfer of things and rights, as well as the payment of monetary amounts) are difficult to
recognize as transactions.
This problem is of great practical importance: if we consider the fulfillment of obligations as
a transaction, then the rules on transactions, the conditions for its validity, including compliance
with the form (§ 1 Ch. 9), as well as the grounds and procedure for declaring transactions invalid
(§ 2 Ch. 9).
This issue has been unequivocally resolved only for the purposes of contesting the economic
operations of debtors, in respect of which a bankruptcy case is pending. Actions aimed at the
fulfillment of obligations and obligations arising in accordance with civil (along with labor, family,
tax, customs, procedural, etc.) legislation may be subject to the rules on challenging the debtor's
transactions (paragraph 3 of article 61¹ Federal Law of October 26, 2002 No. 127-FZ “On
Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law) 6) 7.
At the same time, practice knows examples when, even outside of bankruptcy, actions to fulfill
obligations were declared invalid 8, as well as when the rules on the form of a transaction were
applied to the fulfillment of obligations (see below).
Regulation. General rules on the fulfillment of obligations are contained in Ch. 22 of the
Civil Code of the Russian Federation and 9are explained in great detail in the resolution of the
Plenum of the Supreme Court of the Russian Federation of November 22, 2016 No. 54 “On
Certain Issues of the Application of the General Provisions of the Civil Code of the Russian
Federation on Obligations and Their Fulfillment” (hereinafter referred to as the resolution of
November 22, 2016 No. 54) 10.
The regulation of the fulfillment of obligations in Russian law is characterized by the absence
of a separate body of norms addressed exclusively to entrepreneurs. Most of the rules on the
fulfillment of obligations equally apply to all participants in the turnover, regardless of whether
5
6
2153.
For more details, see: Sarbash S. V. Fulfillment of a contractual obligation. M., 2005. S. 27–84.
Collection of Legislation of the Russian Federation. 2002. No. 43. Art. 4190; 2009. No. 18 (part 1). Art.
Legal obligations (including cash or non-cash payment by the debtor of a monetary debt to the creditor,
transfer by the debtor of other property into the ownership of the creditor) can be disputed, in particular; other
actions aimed at termination of obligations (statement of offset, agreement on novation, provision of compensation,
etc.); banking operations, including the debiting by the bank of funds from the bank's client's account to pay off
the client's debt to the bank or other persons (both without acceptance and on the basis of the client's order);
actions for the execution of a judicial act, including a ruling on the approval of a settlement agreement; transfer to
the recoverer in enforcement proceedings of the proceeds from the sale of the debtor's property; a statement of setoff made by the creditor of the debtor (see: paragraphs 1-2 of the Resolution of the Plenum of the Supreme
Arbitration Court of the Russian Federation dated December 23, 2010 No. 63 “On Certain Issues Related to the
Application of Chapter III¹ of the Federal Law “On Insolvency (Bankruptcy)” // Bulletin VAS RF, 2011, No. 3,
pp. 118–134).
8
See: Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 26,
2013 No. 12913/12 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2013. No. 6. S. 199–
203.
9
Most of the rules 22 are dispositive, i.e., those that apply insofar as the agreement of the parties does not
provide otherwise (paragraph 2, clause 4, article 421).
Detailed explanations of the norms of Ch. 22 see: Contractual and obligation law (general part): Article-byarticle commentary on articles 307–453 of the Civil Code of the Russian Federation / Responsible. ed. A. G.
Karapetov. Moscow, 2017, pp. 73–214.
10
Bulletin of the Supreme Court of the Russian Federation. 2017. No. 1. P. 14–23. See also: Karapetov A. G.,
Pavlov A. A., Sarbash S. V., Suleimanov R. U. Commentary on the Decree of the Plenum of the Supreme Court of
the Russian Federation of November 22, 2016 No. obligations and their fulfillment” // Bulletin of economic justice
of the Russian Federation. 2017. No. 3. P. 87–183.
7
3
BUSINESS CONTRACTS
they carry out entrepreneurial activities. The peculiarities of the legal regime of obligations with
the participation of entrepreneurs are manifested in the inclusion in the general code of civil
legislation of certain few norms that establish special rules for entrepreneurs that are different
from the general ones.
In addition, the specifics of regulating the fulfillment of entrepreneurial obligations is
manifested in the regulation of relations from contracts, on one or both sides of which, due to
the nature of the relationship, entrepreneurs will certainly act 11.
According to Art. 307 ¹ special rules on the fulfillment of obligations of certain types are
contained in the chapters of the Code specially devoted to them, as well as other laws and other
legal acts 12.
However, the special rules on such contracts provide almost no material for general
conclusions.
Principles. The rules for fulfilling obligations are based on general principles enshrined in
a number of provisions of the Civil Code of the Russian Federation:
1) the principle of the need for unhindered exercise of civil rights (clause 1, article 1);
2) the principle of good faith. When establishing, exercising and protecting civil rights and
in the performance of civil obligations, the participants in civil legal relations must act in good
faith (clause 3, article 1), taking into account the rights and legitimate interests of each other,
mutually providing the necessary assistance to achieve the purpose of the obligation (i.e. guided,
among other things, by considerations of cooperation) 13, as well as providing each other with the
necessary information (paragraph 3 of article 307).
Assessing the actions of the parties as good faith or bad faith, one should proceed from the
behavior expected from any participant in civil transactions, taking into account the rights and
legitimate interests of the other party, assisting it, including in obtaining the necessary
information 14;
3) the principle of due executionObligations must be performed properly in accordance with
the terms of the obligation and the requirements of the law, other legal acts, and in the absence
of such conditions and requirements, in accordance with customs or other usually imposed
requirements (Article 309).
This principle essentially reproduces in the Russian legal system the fundamental civil law
principle of the binding nature of a contract (pacta sunt servanda) 15.
At the same time, this rule is aimed at filling in the absence of contractual conditions on
what kind of performance is considered appropriate, taking into account the possibility of an
unlimited number of disputes 16.
In particular, we are talking about contracts of retail sale, supply, contracting, energy supply, rental, rental
of vehicles with a crew, household or construction contracts, transportation, transport expedition, storage in banks
and in the storage rooms of transport organizations, in wardrobes and hotels, lending, leasing, factoring, bank
deposits and bank accounts, insurance, commissions, agency services, trust management, franchising, etc. For more
information on the correlation of special rules on relations with the participation of entrepreneurs with the general
rules of civil law, see: Belov V. A. Dualism of Private Law // Civil Law: Actual Problems of Theory and Practice
/ Ed. V. A. Belova. Moscow, 2007, pp. 64–93 (feature 2).
12
“Other legal acts” are the decrees of the President of the Russian Federation regulating civil relations, as
well as resolutions of the Government of the Russian Federation adopted on the basis of and pursuant to laws,
decrees of the President of the Russian Federation and containing civil law norms (clauses 3–6 of article 3).
13
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 25, 2011
No. 3318/11 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. No. 11. P. 257.
14
Decree of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25 “On the
application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”
(paragraph 3, paragraph 1) // Bulletin of the Supreme Court of the Russian Federation2015. No. 8. S. 2–24.
15
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 16, 2013
No. 2572/13 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2013. No. 12. P. 275–281.
16
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 24,
2013 No. 4593/13 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014. No. 2. S. 217–
222.
11
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
4
Execution in kind. First of all, the fulfillment of an obligation in kind is recognized as
properAs a general rule, the creditor has the right to demand it in court (paragraph 8 of article
12, paragraph 1 of article 308 ³, article 396).
General rules. When a creditor brings a claim for the debtor's performance of an obligation
in the present court, based on specific circumstances, it determines whether such performance is
objectively possible 17.
For example, if the insurer violates the requirements for organizing refurbishment, the victim
has the right to go to court with a claim to compel the insurer to perform the required actions,
including issuing a referral for repairs 18.
The fact that the debtor does not have the quantity of things defined by generic characteristics
that he is obliged to provide to the creditor under the contract does not, in itself, relieve him
from the obligation to fulfill the obligation on the tour, if it is possible by acquiring the necessary
quantity of goods from third parties 19.
A claim for the performance of an obligation in kind cannot be denied, when the proper
protection of the violated right is possible only by forcing the defendant to perform in kind and
will not be secured by the recovery of damages from the defendant for non-performance of the
obligation. These are, for example, the obligation to provide information that only the defendant
has, or to produce documentation that only the defendant is authorized to draw up 20.
If the creditor demands that the debtor be ordered to perform the obligation within a known
unrealistic time period, the court must set a reasonable time period within which the obligation
must objectively be performed 21.
In the event of non-execution of a judicial act on awarding an obligation (other than
monetary) to be fulfilled in kind, the court, at the request of the creditor, has the right to award
in his favor a sum of money (“judicial penalty”). Its size is determined on the basis of the
principles of fairness, proportionality and the inadmissibility of benefiting from illegal or
dishonest behavior (clause 1 of article 308 ³).
Exceptions. There are a number of exceptions to these general rules. When resolving the
question of the admissibility of forcing a debtor to perform an obligation in kind, the court takes
into account not only the provisions of the law or the terms of the contract, but also the essence
of the corresponding obligation 22.
Thus, the creditor is not entitled to demand in court from the debtor the performance of the
obligation in kind:
if such performance is objectively impossible, in particular in the case of:
– the loss of an individually defined thing, which the debtor was obliged to transfer to the
creditor,
- lawful adoption by a public authority or local self-government of an act that would be
contrary to such fulfillment of an obligation 23;
if the execution is so connected with the personality of the debtor that its enforcement would
violate the principle of respect for the honor and dignity of a citizen. For example, the requirement
to compel an individual to perform in kind the obligation to perform a musical work at a concert
is not subject to satisfaction 24.
Decree of the Plenum of the Supreme Court of the Russian Federation of March 24, 2016 No. 7 “On the
application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of
obligations” (paragraph 1, paragraph 22) // Bulletin of the Supreme Court of the Russian Federation2016. No. 5.
S. 3-15 (hereinafter - the decision of March 24, 2016 No. 7).
18
Decree of the Plenum of the Supreme Court of the Russian Federation of December 26, 2017 No. 58 “On
the application by the courts of legislation on compulsory insurance of civil liability of vehicle owners” (paragraph
2, paragraph 52) // Bulletin of the Supreme Court of the Russian Federation2018. No. 4. S. 21–37 .
19
Decree of March 24, 2016 No. 7 (paragraph 2, paragraph 23).
20
Ibid. (para. 4 p. 22).
21
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian
Federation dated October 30, 2017 No. 305-ES17-10397.
22
Decree of March 24, 2016 No. 7 (paragraph 2, paragraph 22).
23
Ibid. (para. 1 p. 23).
24
Ibid. (para. 3 p. 23).
17
5
BUSINESS CONTRACTS
Thus, in one of the cases, the claim for awarding to fulfillment of obligations to create
audiovisual works, which are the result of intellectual activity created by the creative work of the
authors of the works, was denied 25.
Completeness of performance. It follows from the principle of proper performance that, as a
general rule, the debtor is obliged to provide performance at a time in full, and the creditor has
the right not to accept the performance of the obligation in parts (Article 311).
The divisibility of the subject matter of the obligation does not in itself create an obligation
for the obligee to accept performance in installments 26.
At the same time, the highest court indicated that the essence of a monetary obligation, as a
general rule, implies the possibility of its execution in parts, due to which the creditor is not
entitled to refuse to accept the fulfillment of such an obligation in part 27.
The procedure for changing and terminating obligations. It also follows from the principle
of binding contracts that the agreement of the parties should serve as the basis for changing and
terminating contracts in the first place (clause 1, article 450).
As a general rule, a unilateral refusal to fulfill obligations and a unilateral change in its
conditions are not allowedExceptions to this prohibition may be established by law and other legal
acts, but not by an agreement (clause 1, article 310).
At the same time, a number of special rules have been established for obligations related to
the implementation of entrepreneurial activities.
If an obligation is associated with the implementation by all of its parties of entrepreneurial
activity, a unilateral change in such an obligation or a unilateral refusal to fulfill it may be allowed
not only by law, but also by an agreement (paragraph 1, clause 2, article 310).
The rules on unilateral refusal (paragraph 2 of article 310, paragraph 1–2 of article 450 ¹)
do not link the right to unilateral refusal to perform the contract with the existence of any
grounds for such refusal provided by law or by agreement of the parties. The peculiarity of the
contract related to the implementation of entrepreneurial activities by its parties is also that for
a unilateral refusal to execute it, the very fact of indicating in the law or agreement of the parties
the possibility of unilateral refusal is sufficient 28.
In addition, the specifics of regulating the refusal to fulfill obligations from a public contract
(Article 426) concluded by persons engaged in entrepreneurial activities are provided: the right
to unilateral refusal to fulfill an obligation can be granted by an agreement only to the party for
whom the conclusion of this agreement was not mandatory 29.
The obligation to conclude a public contract if it is possible to provide the relevant services
means that the unilateral refusal of the contractor to fulfill obligations under the contract is
inadmissible if he has the opportunity to fulfill his obligations. Otherwise, the requirement of the
law on the obligatory conclusion of a contract would lose its meaning and legal significance 30.
For an obligation, the fulfillment of which is associated with the implementation of
entrepreneurial activity, not by all of its parties, special regulation is provided: the right to
unilaterally change its conditions or refuse to fulfill it can be granted by the contract only to a
party not engaged in entrepreneurial activity. At the same time, for such obligations, the law may
specifically provide for the possibility of including in the contract the right of the party engaged
Ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation
dated December 14, 2017 No. 305-ES17-7826.
26
Decree of November 22, 2016 No. 54 (paragraph 3, paragraph 17).
27
Ibid. (para. 2 p. 17). This provision has been severely criticized in the doctrine. See: Pavlov A. A. Comment
to paragraph 17 // Bulletin of Economic Justice of the Russian Federation. 2017. No. 3. P. 108–112.
28
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 9,
2008 No. 5782/08 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008. No. 11. P.
139–142.
29
Decree of November 22, 2016 No. 54 (paragraph 2, paragraph 11).
30
Determination of the Constitutional Court of the Russian Federation of June 6, 2002 No. 115-O on the
refusal to accept for consideration the complaint of citizen Martynova E.Z. on the violation of her constitutional
rights, paragraph 2 of Art. 779 and paragraph 2 of Art. 782 of the Civil Code of the Russian Federation //
Bulletin of the Constitutional Court of the Russian Federation. 2003. No. 1. S. 66.
25
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
6
in entrepreneurial activity to refuse to perform or unilaterally change the terms of the obligation
(paragraph 2, clause 2, article 310).
The right to unilaterally withdraw from the contract is granted, in particular, to the customer
under a work contract (Article 717), the parties to a contract for the provision of services for a
fee (Article 782), as well as such predominantly entrepreneurial contracts as a freight forwarding
contract (Article 806), agency agreement, concluded without determining the expiration date of
its validity (Article 1010), an agreement on trust management of property (clause 1 of Article
1024).
In addition, in derogation from the general rule on the judicial termination of the contract
on the grounds of its material breach (subclause 1, clause 2, article 450), for such a classic
business contract as a supply contract, a special rule is provided: in the event of its material
breach of 31one of the parties, the law allows for a unilateral refusal to perform without any special
indication of this in the contract (clause 1, article 523).
Another feature of obligations related to the implementation by their parties of
entrepreneurial activity is the ability to condition, by agreement of the parties, the right to
unilateral refusal to perform or to unilaterally change the terms of such obligations by the need
to pay a certain amount of money to the other party of the obligation (clause 3, article 310).
If a unilateral refusal to fulfill an obligation or a change in its conditions are made in the
absence of the necessary prerequisites, then such actions do not entail the legal consequences to
which they were directed 32.
subject composition. The parties to the obligation are the obligated party (debtor) and the
authorized party (creditor). The right of claim of the creditor corresponds to the obligation (debt)
of the debtor.
In a bilaterally binding (synallagmatic) agreement, the prevailing goal is the mutual exchange
of satisfactions (grants) 33. Each of the parties bears an obligation in favor of the other party, is
considered the debtor of the other party in what it is obliged to do in its favor, and at the same
time its creditor in that it has the right to demand from it (paragraph 2 of article 308).
Plurality of persons. One or several persons may participate in an obligation as each of its
parties - a creditor or a debtor (paragraph 1, clause 1, article 308).
In the latter case, as a general rule, the multiplicity is shared : each of the creditors has the
right to demand performance, and each of the debtors is obliged to fulfill the obligation in an
equal share with the others. Other (another distribution of shares or the joint and several nature
of the obligation or requirement) may follow from the law, other legal acts or the conditions of
the obligation (Article 321).
The opposite of share multiplicity is solidarity :
in the event of a joint obligation of debtors (passive solidarity), the creditor has the right to
demand performance both from all debtors jointly and from any of them separately, moreover,
both in full and in part of the debt (paragraph 1 of article 323);
in case of solidarity of the claim (active solidarity), any of the joint creditors has the right to
present a claim to the debtor in full (clause 1 of article 326).
Solidarity arises if it is provided for by an agreement or established by law, in particular if
the subject of the obligation is indivisible (paragraph 1 of article 322) 34.
For obligations related to entrepreneurial activity, special regulation is provided: the general
rule for them is solidarity.
Under the supply agreement, the supplier-seller engaged in entrepreneurial activity undertakes to transfer,
within the stipulated time period or terms, the goods produced or purchased by him to the buyer for use in business
activities or for other purposes not related to personal, family, household and other similar use (Article 506).
32
Decree of November 22, 2016 No. 54 (p. 12).
33
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 12, 2013
No. 13096/12 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2013. No. 9. S. 201–211.
34
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 25, 2011
No. 11774/10 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. No. 5. S. 255–260.
31
7
BUSINESS CONTRACTS
For example, in cases where all co-tenants under a land lease agreement use the buildings
(premises in the building) located on it for business purposes, the obligations of such tenants are
considered joint and several 35.
Otherwise, it may be provided by law, other legal acts or the terms of the obligation (clause
2, article 322).
status of third parties. By virtue of paragraph 3 of Art. 308 obligation does not create
obligations for persons not participating in it as parties (for third parties). From this norm,
practice has deduced an even more general, obvious principle of the relativity of the operation of
any agreements of individuals. Its essence lies in the impossibility of imposing by agreement on
third parties any obligation, burden, risk and other restrictions on the scope of their rights and
interests 36.
At the same time, in cases provided for by law, other legal acts or by agreement of the parties,
an obligation may create rights for third parties in relation to one or both parties to the obligation.
An example is a contract in favor of a third party (Article 430).
A typical example of an exception to the principle of relativity of agreements is the institution
of leasing: from a sale and purchase agreement concluded between the seller and the lessor
(buyer), the lessee has the rights and incurs the obligations provided for by the Code for the
buyer, except for the obligation to pay for the acquired property, as if he were party to the contract
for the sale of the said property (clause 1, article 670) 37.
Performance by a third party. The debtor has the right, without requesting the consent of
the creditor, to entrust the performance to a third party. The debtor's right to assign performance
to a third party corresponds to the creditor's obligation to accept performance (clause 1, article
313) 38.
The law proceeds from the presumption of the admissibility of the performance of an
obligation by a third party: such performance is unacceptable only if the obligation of the debtor
to fulfill the obligation personally follows from the law, other legal acts, conditions or the essence
of the obligation (paragraph 3 of article 313) 39.
A creditor under a monetary obligation is not obliged to check the presence of an assignment,
on the basis of which a third party performs an obligation for the debtor, and is entitled to accept
performance in the absence of such an assignment 40.
The fulfillment of an obligation by a third party in the absence of an imposition by the debtor
would be contrary to the principle of the inadmissibility of arbitrary interference by someone in
private affairs (clause 1, article 1).
At the same time, even if the debtor did not assign the performance of the obligation to a
third party, the creditor is obliged to accept the performance offered for the debtor by such a
third party if the debtor has delayed the performance of the monetary obligation, and also if the
Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 24, 2005 No.
11 “On some issues related to the application of land legislation” (paragraph 2, paragraph 20) // Bulletin of the
Supreme Arbitration Court of the Russian Federation. 2005. No. 5. S. 20.
36
See, for example: par. 5 p. 14 resolutions of the Plenum of the Supreme Arbitration Court of the Russian
Federation dated 17 November 2011 No. 73 “On Certain Issues in the Practice of Applying the Rules of the Civil
Code of the Russian Federation on a Lease Agreement” (Bulletin of the Supreme Arbitration Court of the Russian
Federation. 2012. No. 1. P. 114–117; 2013. No. 4. P. 128–138); par. 1 p. 9 of the resolution of the Plenum of the
Supreme Arbitration Court of the Russian Federation of July 12, 2012 No. 42 “On some issues of resolving disputes
related to surety” (Vestnik of the Supreme Arbitration Court of the Russian Federation. 2012. No. 9. P. 164–182);
resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 8, 2011 No.
13534/10
37
By establishing this rule, the Russian legislator went beyond the idea of granting the lessee rights in relation
to the seller, enshrined in Art. 10 of the UNIDROIT Convention on International Financial Leasing.
38
Decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation of October 28, 2010
No. 7945/10, of July 15, 2014 No. 3856/14 // Bulletin of the Supreme Arbitration Court of the Russian
Federation. 2011. No. 1. S. 159–164; Bulletin of economic justice of the Russian Federation. 2014. No. 11. S. 201–
206.
39
Resolution of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated
July 25, 2017 No. 51-KG17-12.
40
Decree of November 22, 2016 No. 54 (paragraph 4, paragraph 20).
35
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
8
third party is in danger of losing his right to the debtor's property as a result of foreclosure. on
this property (paragraph 2 of article 313) 41.
In addition, the fulfillment of an obligation by a third party, even despite the objection of the
debtor, is allowed if it is a question of the obligation to maintain someone (paragraph 2 of article
983).
These provisions are aimed, among other things, at expanding the mechanisms for the creditor
to receive what is due to him under the performance obligation, i.e., in essence, to protect his
rights 42.
The creditor has the right (but not the obligation) to accept performance from a third party.
Therefore, by virtue of freedom of contract (Article 421), the creditor and a third party have the
right to agree on the possibility of accepting performance for the debtor in other cases, including
in the absence of delay on the part of the latter. From an economic point of view, a similar effect
can be achieved in a situation where the creditor voluntarily transfers his rights to the debtor
and receives a certain counter-performance upon assignment of the right on the basis of an
agreement (clauses 1 and 2 of article 382), where the consent of the debtor is not required; or
when the creditor accepts a new debtor as an obligation (cumulative acceptance of debt) without
obtaining the consent of the original debtor (paragraph 2, clause 1, article 391), and the new
debtor repays the debt 43.
As a general rule, when the execution is assigned by the debtor to a third party, the debtor
is responsible to the creditor for non-performance or improper performance of the obligation by
this third party, unless otherwise provided by law (clause 6 of article 313, article 403) 44.
In particular, for non-observance by the service station of the deadline for transferring the
repaired vehicle to the victim and violation of other obligations for restoring repairs, the insurer
is responsible for the quality of repairs within the framework of insurance compensation 45.
The rights of the creditor under the obligation in the amount in which this person performed
the performance for the debtor (paragraph 5 of article 313, article 387) are transferred to a third
person who has fulfilled the obligation of the debtor, in the order of subrogation 46.
At the same time, if there are signs of abuse of the right in the actions of a third party
(intention to harm the creditor or obligor), the court may recognize the subrogation as not having
taken place 47.
Special rules in relation to the above norm are established by the bankruptcy legislation: after the introduction
of the first procedure in a bankruptcy case, the debtor's obligations can be fulfilled by a third party only in the
procedures of external administration or bankruptcy proceedings by satisfying all the claims of creditors or providing
the debtor with funds sufficient to satisfy all claims in accordance with the register (Articles 113 and 125 of the
Bankruptcy Law). See: p. 28 of the Review of Judicial Practice on Issues Related to the Participation of Authorized
Bodies in Bankruptcy Cases and the Bankruptcy Procedures Used in These Cases: approved. By the Presidium of
the Supreme Court of the Russian Federation on December 20, 2016 // Bulletin of the Supreme Court of the
Russian Federation. 2017. No. 9. P. 15–31.
42
Definition of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation
of June 16, 2016 No. 302-ES16-2049.
43
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian
Federation dated October 8, 2018 No. 308-ES18-9823.
44
See also Resolution No. 54 of November 22, 2016 (p. 22).
45
See para. 2 p. 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 27,
2013 No. 20 “On the application by the courts of the legislation on voluntary insurance of property of citizens”
(Bulletin of the Supreme Court of the Russian Federation. 2013. No. 8. P. 8–15); clause 62 of the Decree of the
Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 58 “On the application by
the courts of legislation on compulsory insurance of civil liability of vehicle owners” (Bulletin of the Supreme Court
of the Russian Federation. 2018. No. 4. P. 21–37).
46
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
dated March 21, 2017 No. 5-KG17-13.
47
Decree of November 22, 2016 No. 54 (paragraph 3, paragraph 21). In particular, we can talk about depriving
a creditor of the status of an applicant in a bankruptcy case, including depriving a creditor of the authority granted
by this status to propose a candidate for an arbitration manager, depriving a creditor of the right to vote at a
meeting of creditors when considering a bankruptcy case by repaying only the main debt of the debtor in order to
obtain additional votes without incurring the costs of acquiring claims for financial sanctions, etc. 308-ES16-4658).
41
9
BUSINESS CONTRACTS
Execution by the right person. It follows from the principle of due performance that the
provision of an obligation must be made to the proper person - the creditor or a person authorized
by him. When fulfilling an obligation, the debtor has the right to demand evidence of this and
bears the risk of the consequences of not presenting such a demand (clause 1, article 312).
Within the meaning of this provision, the debtor also has the right to suspend the execution
until confirmation is received that it is accepted by the appropriate person, and in this case is
not considered overdue (paragraph 2, clause 18 of the resolution of November 22, 2016 No. 54)
.
If the representative of the creditor acts on the basis of the powers contained in the document,
which is made in a simple written form, the debtor has the right to demand confirmation of the
powers from the person represented and not to fulfill the obligation to this representative until
such confirmation is received. Such confirmation can serve as a notarized power of attorney.
When a written authorization is presented by the creditor directly to the debtor, or when the
powers of the representative of the creditor are contained in the agreement between the creditor
and the debtor, the debtor cannot suspend execution (paragraph 2 of article 312).
The parties have the right in their agreement to establish a procedure for confirming the
powers of the representative of the creditor. It is recognized as acceptable, for example, to
establish that in case of doubt, the debtor applies directly to the creditor with the requirement to
promptly confirm the powers of his representative in a simple written form, including in the form
of an electronic document or other message transmitted via communication channels. In this case,
the powers of the representative of the creditor shall be confirmed in the manner prescribed by
the parties 48.
In the event of an assignment of a claim, if the notice of it has been sent to the debtor by
the original obligee, then the performance in favor of the new obligee specified in the notice shall
be deemed to have been granted to the proper person. This is true even if the contract on the
basis of which the assignment was to be made is invalid (paragraph 2, clause 1, article 385) 49.
Forwarding (forwarding) execution. From Art. 312 also follows the right of the creditor to
give the debtor an order that performance be made to a third party, and thereby express the will
to change the recipient. In the presence of such an order, the third party indicated in it becomes
authorized to accept performance under the obligationThe provision to such a third party on
behalf of the creditor is made for the purpose of fulfilling the obligationTherefore, the named
provision should be qualified as the fulfillment of an obligation, regardless of the nature of the
relationship between the creditor and the third party 50.
The legal regime of such a classic business contract as a supply contract provides for the
possibility of shipping goods not to the buyer himself, but to a third party (recipient) indicated
by the buyer by sending the shipping order to the supplier. The peculiarity of the redirection of
performance in this case is that the right of the buyer to give the supplier such instructions must
be fixed by the parties in the contract (clauses 1–2 of article 509).
Subordination of creditors. In business transactions such as syndicated lending, there may be
a need to distribute funds received from the borrower, deviating from the principles of calendar
order and proportionality (Part 2, Article 7 of Federal Law No. 486-FZ of December 31, 2017
"On a syndicated loan (loan) and amendments to certain legislative acts of the Russian
Federation" 51).
An agreement may be concluded between the creditors of one debtor under homogeneous
obligations on the procedure for satisfying their claims against the debtorThe parties bind
Decree of November 22, 2016 No. 54 (paragraph 2, paragraph 19).
See also: paragraph 20 p of the resolution of the Plenum of the Supreme Court of the Russian Federation
dated December 21, 2017 No. 54 “On some issues of applying the provisions of Chapter 24 of the Civil Code of the
Russian Federation on the change of persons in an obligation on the basis of a transaction” // Bulletin of the
Supreme Court of the Russian Federation. 2018. No. 3. S. 23–28.
50
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 26, 2009 No.
730/09 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. No. 8. S. 143–146.
51
Collection of Legislation of the Russian Federation. 2018. No. 1 (part I). Art. 70.
48
49
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
10
themselves with a negative obligation not to take actions aimed at obtaining performance from
the debtor, in violation of the terms of the agreement (clause 1, article 309 ¹).
The consequence of the breach of such an obligation is the obligation of the creditor, who
received the performance out of turn, to transfer what he received to the creditor under another
obligation in accordance with the terms of the agreement in exchange for his claim against the
debtor (clause 2 of article 309 ¹).
At the same time, such an agreement does not create obligations for persons who do not
participate in it as parties, including for the debtor (clause 3, article 309 ¹).
Prerequisites for performance. In a number of cases, the presentation of a claim to fulfill an
obligation must be preceded by certain prerequisites characterizing the conditionality of
fulfillment by certain circumstances.
Counter execution. A significant part of the obligations arises from bilaterally binding
agreements (see above). The fulfillment of such obligations by the parties to each other is
recognized as counter: one of the parties must provide performance to the other party after
receiving performance from it (paragraph 1 of article 328) 52.
Execution in this mode is recognized as counter, regardless of whether the parties have
provided for the sequence of performance of their duties 53.
As the most typical example of obligations involving reciprocal performance, one should cite
the obligations of the parties to the contract of sale: the seller's obligation to transfer the goods
into the ownership of the buyer and the buyer's obligation to pay for the goods are counter to each
other.
The fulfillment by the tenant of the obligation to pay rent in relation to the fulfillment by
the lessor of the obligation to provide property for temporary possession and use, 54the obligation
of the passenger to pay the carriage fee in relation to the carrier's obligation to deliver the
passenger to the destination point is also recognized as counter 55.
In addition, the performance of an obligation by one of the parties (subsequent provision),
which, in accordance with the contract, is due to the proper performance of its obligations by the
other party (initial performance), is recognized as a counter. In such a situation, it is important
to determine which of the parties should make the initial and which subsequent execution 56.
The practical significance of recognizing performance as counter-performance lies in the fact
that if the obligated party does not fulfill its obligation (or it is obvious that it will not fulfill it
within the prescribed period), the other party has the right, having warned the counterparty, to
suspend the counter-performance of its obligation or even refuse to execute it and demand
compensation for losses (paragraph 2 of article 328).
None of the parties to an obligation involving counter-performance has the right to demand
performance in court from the other party without providing what is due from it under the
obligation to the other party (paragraph 3 of article 328).
In other words, if the party that has not provided the performance due from it demands a
counter performance from the other party, the latter has the right to raise an objection against
such a claim about non-receipt of the conditional performance (exceptio non adimpleti
contractus).
Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 2012
No. 58 “On some issues of the practice of application by arbitration courts of the Federal Law “On Advertising”
(paragraph 3, paragraph 3) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2012. No. 12.
P. 108–120.
53
Decree of November 22, 2016 No. 54 (paragraph 1, paragraph 57).
54
Decrees of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 5, 2011 No.
2123/11 (Vestnik of the Supreme Arbitration Court of the Russian Federation. 2011. No. 10. P. 186–189); April
9, 2013 No. 13689/12 (ibid. 2013. No. 8. P. 178–182).
55
Decree of the Plenum of the Supreme Court of the Russian Federation of June 26, 2018 No. 26 “On Certain
Issues of the Application of Legislation on the Contract for the Transportation of Goods, Passengers and Luggage
by Road and on the Freight Forwarding Contract” (p. 7) // Bulletin of the Supreme Court of the Russian
Federation. 2018. No. 8. P. 6–11.
56
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
dated April 10, 2018 No. 71-KG18-3.
52
11
BUSINESS CONTRACTS
However, the rule of art. 328, which makes it possible to suspend the performance of an
obligation if the performance of the obligation provided for by the contract by the other party is
not carried out in full, does not allow, for example, the buyer to use the goods delivered without
documentation and not pay for it, if the buyer has not declared the refusal of such goods in
connection with the impossibility or difficulty of using it for its intended purpose without the
relevant documents (Article 464) 57.
Fulfillment of creditor obligationsIn addition to reciprocity, there may be such conditionality
of performance as the dependence of the ability of the debtor to fulfill an obligation on the
performance of certain actions by the creditor. The implementation of such actions is the content
of the so-called. creditor obligation 58. If the creditor does not perform these actions, which
prevents the debtor from fulfilling his obligation, we are talking about the creditor's delay (clause
1, article 406). In this case, the debtor who does not fulfill his obligation for this reason is not
considered to be in arrears (clause 3 of article 405) and has the right to demand compensation
for losses caused by the delay (clause 2 of article 406). In this case, the rules on counter
performance (Article 328) do not apply 59.
The choice of the subject of provision in an alternative obligation. Legislation traditionally
allows for the negotiation of alternative obligations, according to which the debtor is obliged to
perform one of two or more actions (paragraph 1 of article 308 ¹).
For the sphere of entrepreneurial obligations, an example related to an investment agreement
is important: such an agreement may contain a condition on the right of the investor to invest
both through direct cash financing, and through the performance of contract work or the provision
of construction services. Such a condition means that the investor has an alternative obligation
60
.
If the debtor, who has the right to choose, has not made a choice within the period established
for this, including by fulfilling the obligation, the creditor, at his choice, has the right to demand
that the debtor perform the relevant action or refrain from performing the action (clause 1 of
article 320) .
If the right of choice is granted to the creditor or a third party and such creditor or third
party has not made a choice within the period established for this, the debtor fulfills the obligation
of his choice (clause 2 of article 320).
Contingent Liabilities and Conditional Performance. The peculiarity of the regulation of
contingent obligations in Russian law is that the rules devoted to them are dispersed in different
chapters of the Civil Code of the Russian Federation: in chapter 9 on transactions there are rules
on conditional transactions (Article 157), and in the chapter on the fulfillment of obligations
there are rules on conditional fulfillment (327¹)They form a single institution and enable the
parties to make the emergence, change, performance and termination of rights and obligations,
including those that form the content of obligations, dependent on the occurrence of various
circumstances (suspensive and resolutive conditions).
In Russian doctrine and practice, for a long time there was a wary attitude (up to a categorical
denial of admissibility) to such conditions, the occurrence of which to some extent depends on
one of the parties to the legal relationship (potestative conditions). To strengthen the
understanding of their admissibility, clarifications from the highest courts 61, as well as a new
Ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation
dated February 6, 2018 in case No. 305-ES17-16171 (given in paragraph 24 of the Review of Judicial Practice of
the Supreme Court of the Russian Federation No. 2 (2018), approved by the Presidium of the Supreme Court of
the Russian Federation on July 4, 2018) .
58
Raikher VK Legal issues of contractual discipline in the USSR. Leningrad, 1958, pp. 59–73, 74–116; Rovny
V.V. The principle of mutual cooperation of the parties in the performance of obligations in domestic civil law //
Izvestiya vuzov. Jurisprudence. 2000. No. 1. S. 84–93.
59
Decree of November 22, 2016 No. 54 (p. 23 and 59).
60
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 8, 2011
No. 13970/10 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2011. No. 5. S. 200–207.
61
See, for example, par. 2 p. 52 of the Decree of the Plenum of the Supreme Court of the Russian Federation
of June 23, 2015 No. 25 “On the application by the courts of certain provisions of Section I of Part One of the
Civil Code of the Russian Federation”.
57
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
12
rule on conditional execution, serve. The fulfillment of obligations, as well as the exercise, change
and termination of rights under an obligation, may be conditioned by the commission or noncommission of certain actions by one of the parties or the occurrence of other circumstances,
including those depending on the will of one of the parties (Article 327 ¹) 62.
In the light of this norm, Russian law solves in a new way the long-standing problems of
paying for services and calculating the terms for fulfilling obligations.
"Success Fee"Before the appearance of this rule, in Russian practice there was a negative
attitude towards such a condition of contracts for the provision of services (as opposed to contracts
for the performance of work), as a condition on the so-called. success fee. It implies the
dependence of the right of the contractor to receive payment for services, depending on the
achievement of the result agreed upon by the parties. Until recently, the practice proceeded from
the fact that when providing services, the subject of the obligation covers only the application of
efforts, and not the achievement of a result, therefore, the actions of the contractor are subject to
payment at a fixed price, regardless of the achievement of the result, and obligations to pay the
success fee are natural. The success fee cannot be compulsorily collected from the customer in
favor of the contractor 63, and the fee voluntarily paid in favor of the legal representative cannot
be collected from the "losing" party in favor of the "winning" party 64, nor charged to expenses
for tax purposes.
At the same time, the highest court recently considered the case on the claim of the contractor
(realtor) against the customer for the recovery of a fee due to the acquisition by the customer of
real estate, information about which the realtor provided the customer during the execution of
the contract. In the ruling in this case with reference to Art. 327 ¹ indicates that the fulfillment
by the customer of the obligation to pay for services may be conditioned by the performance by
him of certain actions (including the conclusion of a civil law contract). Thus, the parties to the
contract for the provision of services have the right to condition the payment for these services
by the conclusion by the customer of the contract for the sale of the object shown by the contractor
(realtor) 65.
Calculation of the period of fulfillment of the obligation. The ability to condition the fulfillment
of an obligation on the eventuality of any circumstance, including those dependent on the parties,
also influenced the understanding of the term for fulfillment.
The definition of a term common to all civil legislation allows setting a term by indicating
either a calendar date or an event that must inevitably occur (Article 190).
Strict adherence to this rule often led to the recognition of an inconsistent period when it
was determined by an indication of a circumstance whose occurrence was not inevitable. In most
cases, this happened at the conclusion of contracts, the execution of which involved several stages,
For more information about conditional transactions and conditional obligations, see: A. G. Karapetov.
Conditional rights and obligations: a review of problematic issues in the application of Art. Art. 157 and 327 ¹ of
the Civil Code of the Russian Federation // Bulletin of Economic Justice of the Russian Federation. 2017. No. 6.
P. 71–128.
63
See, for example: par. 3 p. 2 of the information letter of the Presidium of the Supreme Arbitration Court
of the Russian Federation dated September 29, 1999 No. 48 “On some issues of judicial practice arising from the
consideration of disputes related to contracts for the provision of legal services” // Bulletin of the Supreme
Arbitration Court of the Russian Federation. 1999. No. 11. S. 81; Decree of the Constitutional Court of the Russian
Federation of January 23, 2007 No. 1-P on the case of checking the constitutionality of the provisions of paragraph
1 of Art. 779 and paragraph 1 of Art. 781 of the Civil Code of the Russian Federation in connection with the
complaints of LLC "Corporate Security Agency" and citizen V. V. Makeev // Collection of Legislation of the
Russian Federation. 2007. No. 6. Art. 828.
64
See, for example, paragraph 6 of the Review of Judicial Practice on Issues Related to the Distribution of
Court Expenses between the Parties for the Services of Lawyers and Other Persons Acting as Representatives in
Arbitration Courts (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation
dated December 5, 2007 No. 121) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008.
No. 2. S. 62–78; ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian
Federation No. 309- ES14-3167 dated February 26, 2015 // Bulletin of the Supreme Court of the Russian
Federation. 2015. No. 10. P. 8–47.
65
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
dated June 13, 2017 No. 41-KG17-5.
62
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BUSINESS CONTRACTS
and the beginning of the next stage was timed to coincide with the completion of the previous
one. If, at the same time, the performance period was recognized as an essential condition of the
contract (as is the case with respect to the work contract, Art. 708), then the recognition of the
period as inconsistent led to the conclusion that the contract was not concluded and the grants
made under it were groundless (Article 1102).
With regard to such a classical entrepreneur with a contract as a supply contract, in view of
the inclusion of the term in its definition (Article 506) and in order to level the negative
consequences of non-agreement by the parties of the term or its 66agreement by pointing to any
circumstance that is not certain event, the highest court had to explain that when the moments
of conclusion and execution of the contract do not coincide, and the parties do not specify the
delivery time of the goods and it does not follow from the contract that it must be carried out in
separate lots, the delivery time in accordance with the general provisions on the sale and purchase
is determined according to the general rules for determining the timing of the fulfillment of
obligations (Articles 314, 457) 67.
Subsequent practice 68and a new edition of the rules on the period of performance of
obligations have corrected the general understanding of the period in relation to the obligation
area. Now the law allows calculating the period of fulfillment of obligations from the moment the
obligations are fulfilled by the other party or the onset of other circumstances (clause 1 of article
314; cf. article 327 ¹), i.e., to determine the period by indicating a circumstance whose occurrence
is not inevitable .
Based on these norms, the highest court recently answered the question of whether it is
admissible to condition the provision of counter performance (payment for work performed by a
subcontractor) on a circumstance regarding which it is not known in advance whether it will
occur or not (delivery by the general contractor of the result of work to the customer or receipt
by the general contractor of payment from customer).
Previously, practice proceeded from the doctrinal postulate that a conditional expression of
will cannot be expressed in essential parts (essentialia negotii) of a transaction that determine
one or another of its legal composition (for example, in a sale and purchase transaction, the legal
composition of the transaction determines the direction of the will of its participants on the
occurrence of the seller's obligation to transfer the thing to the buyer and the buyer's obligation
to pay the seller the agreed price... These two terms of the sale and purchase transaction are its
constitutive features, the absence of which does not allow us to speak of the conclusion of the
transaction) 69.
In derogation from this position, the highest court with reference to Art. 314 and 327 ¹, as
well as at paragraph 23 of the resolution of November 22, 2016 No. 54, she indicated that the
conditionality of payment by such circumstances in itself does not contradict these normsAt the
same time, if the occurrence of a circumstance, with which the beginning of the period for the
fulfillment of an obligation is connected, was unfairly prevented or assisted by a party to whom
the occurrence or non-occurrence of this circumstance is unprofitable, then at the request of a
bona fide party, this circumstance may be recognized as having occurred or not occurred,
respectively (paragraph 3 of Art. .157) 70.
See footnote 31.
Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997 No.
18 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the
supply contract” (p. 7) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. No. 3. S.
23.
68
See, for example: p. 6 of the Review of judicial practice on disputes related to the recognition of contracts
not concluded (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation
dated February 25, 2014 No. 165) // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014.
No. 4. P. 86–101.
69
Shcherbakov N. B. Basic approaches to determining the legal nature of aleatory transactions // Bulletin of
Civil Law. 2006. No. 1. P. 75.
70
Answer to question 2 of the section “Clarifications on Issues Arising in Judicial Practice” of the Review of
Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2017), approved. Presidium of the Supreme
66
67
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
14
Deadline for fulfillment of obligation and early fulfillment. If the obligation allows you to
determine the day of its performance or the period during which it must be performed, the
obligation is subject to performance on this day or, accordingly, at any time within such a period
(paragraph 1 of article 314).
When an obligation does not contain conditions that make it possible to determine this
period, or it is determined by the moment of demand, the obligation must be performed within
seven days from the day the creditor submits a demand for its performance. If the creditor fails
to present within a reasonable time a demand for the performance of such an obligation, the
debtor has the right to demand that the creditor accept the performance (paragraph 2 of Article
314).
In addition, the deadline for fulfilling obligations is considered to have come from the moment
a decision is made to liquidate the legal entity - the debtor (paragraph 4 of article 61), as well
as when procedures for monitoring, bankruptcy proceedings or debt restructuring are introduced
in relation to the debtor (paragraph 3 of article 63, paragraph 2, clause 1, article 126 and
paragraph 2, clause 2, article 213 ¹¹ of the Bankruptcy Law).
As a general rule, the debtor has the right to fulfill the obligation ahead of time (Article
315).
The most characteristic exceptions to this rule, when the opposite rule applies, are the following situations :
Firstly, special regulation is provided for cases where the obligation is associated with the
implementation of entrepreneurial activities by its parties. The admissibility of early performance
may be provided for by law, other legal acts or conditions of the obligation, or follow from the
customs or the essence of the obligation (Article 315);
secondly, a special norm has been established for credit relations: the amount of a loan (credit)
provided at interest (if we are not talking about a loan provided to a citizen for personal, family,
home or other use not related to entrepreneurial activity) can be returned ahead of schedule only
with the consent of the lender (paragraph 2 of article 810).
In any case, the property transferred in pursuance of an obligation before the due date of
performance is not subject to return as unjust enrichment (clause 1, article 1109).
Place of execution. According to a dispositive general rule, execution must be carried out at
the place of residence or location of the debtor (paragraph 7, clause 1, article 316).
For monetary obligations, the place of performance is traditionally close to the creditor and
timed:
for the obligation to pay cash (i.e., banknotes and coins) - to the place of residence or location
of the creditor at the time the obligation arises (paragraph 5, clause 1, article 316);
for the obligation to pay non-cash funds (i.e., by non-cash payments) - to the location of the
bank (its division) servicing the creditor (paragraph 6, clause 1, article 316).
In the latter case, the moment of fulfillment of the obligation is the crediting of funds to the
correspondent account of the bank serving the creditor, or the bank that is the creditor, and if
the debtor and the creditor are served by the same bank, the bank crediting funds to the account
of the creditor 71.
Special rules have been established for certain property transfer obligations:
Court of the Russian Federation on April 26, 2017 // Bulletin of the Supreme Court of the Russian Federation.
2018. No. 6. P. 20–21.
71
Decree of November 22, 2016 No. 54 (p. 26). This legal provision also follows from paragraph 1 of Art. 865
(taking into account the clarification contained in paragraph 2, clause 3 of the Resolution of the Plenum of the
Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5 “On Certain Issues of the Practice
of Considering Disputes Related to the Conclusion, Execution and Termination of Bank Account Agreements”
(Vestnik VAS RF. 1999. No. 7. S. 5–8), as well as from parts 9–10 of Article 5 of the Federal Law of June 27,
2011 No. 161-FZ “On the National Payment System” (Collection of Legislation of the Russian Federation. 2011.
No. 27. Article 3872).
15
BUSINESS CONTRACTS
if we are talking about real estate 72, then the obligation must be fulfilled at its location
(paragraph 2, clause 1, article 316);
if we are talking about property subject to transportation for delivery to the creditor, the
obligation must be performed at the place of delivery of the property to the first carrier (paragraph
3, clause 1, article 316).
In this case, the obligation to transfer the goods is considered fulfilled at the time of delivery
of the goods to the carrier or communication organization for delivery to the buyer (paragraph 2
of article 458).
Such delivery is also recognized as a transfer (clause 1 of article 224) for the purposes of
determining such as the moment of transfer of ownership to the acquirer under the contract
(clause 1 of article 223);
finally, specifically for the obligations of entrepreneurs to transfer movable property (without
the need to transfer it to a carrier), it is provided that they must be performed at the place of
manufacture or storage of property, if this place is known to the creditor at the time the obligation
arises (paragraph 4, clause 1, article 316) .
In addition, if after the occurrence of the obligation the place of its performance has changed,
in particular, the place of residence of the debtor or creditor has changed, the party on which
such a change depended is obliged to reimburse the other party for additional costs, and also
assumes additional risks associated with a change in the place of performance of the obligation
(Section 2, Article 316).
Quality. Unlike a number of European codes, Russian legislation does not contain rules on
the quality of provision in the general provisions on the fulfillment of obligations.
At the same time, they can be derived from the rules on the quality of goods, the result of
work and services in the relevant chapters of the Civil Code of the Russian Federation and special
laws.
Thus, the debtor is obliged to make a provision (transfer goods, perform work, provide a
service) suitable for the purposes for which provision of this kind is usually used.
If the debtor, at the conclusion of the contract, was informed by the creditor of the specific
purposes of acquiring goods (performance of work, provision of services), the debtor is obliged to
make provision suitable for use in accordance with these purposes.
For debtors engaged in entrepreneurial activities, a special rule is fixed: if the law or in the
manner prescribed by it provides for mandatory requirements for the quality of provision, then
the debtor is obliged to make provision that meets these mandatory requirements (Articles 469,
721, 783).
Similar rules are provided for in paragraphs 2, 3 and 5 of Art. 4 of the Law of the Russian
Federation of February 7, 1992 No. 2300-I "On the Protection of Consumer Rights" (as amended
by the Federal Law of January 9, 1996 No. 2-FZ) 73.
The cost of fulfilling the obligation. The costs of fulfilling the obligation are borne by the
debtor (Art. 309 ²).
The creditor, in turn, bears the costs of accepting the performance, for example, the costs of
using special software, mobile communications, sending documents, etc.74
For example, when a legal representative fulfills the obligation to provide legal services, the
necessary expenses of the representative (for familiarization with the case materials, for using the
Real estate includes subsoil plots, land plots and everything that is firmly connected with the land, i.e. objects,
the movement of which is impossible without disproportionate damage to their purpose, including buildings,
structures, construction in progress, residential and non-residential premises, parking spaces (i.e., parts of buildings
or structures intended to accommodate vehicles), as well as aircraft and sea vessels subject to state registration,
inland navigation vessels (clause 1, article 130).
73
Vedomosti RF. 1992. No. 15. Art. 766; Collection of Legislation of the Russian Federation. 1996. No. 3.
Art. 140; 2004. No. 52 (part I). Art. 5275; 2007. No. 44. Art. 5282.
74
Decree of November 22, 2016 No. 54 (paragraph 2, paragraph 9).
72
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
16
Internet, for mobile communications, for sending documents), as a general rule, are included in
the price of the services provided 75.
At the same time, the additional costs of one party, caused by the actions of the other party,
are borne by the latter 76.
The debtor, in particular, bears the creditor's costs of obtaining performance. These include,
for example, payments that the creditor is obliged to make in connection with the enforcement of
his claim against the debtor, in particular, the amount of the state duty paid by the creditor 77.
Monetary obligations. A special category is formed by obligations called monetary. A number
of special rules are dedicated to them.
Concept. In practice, a monetary obligation is understood as such an obligation, the content
of which forms the obligation of the debtor to transfer (pay) a sum of money to the creditor as a
means of payment or a means of repaying a monetary debt 78.
Therefore, the concept of a monetary obligation does not include the obligation to deposit
cash with a bank under a cash service agreement, to transport banknotes, etc.
The principle of nominalism. The fulfillment of monetary obligations is based on the fact that
changes in the purchasing power of money that followed after the occurrence of the obligation do
not change the amount of debt; these changes also do not affect the payment power of money,
which is always determined "at face value" 79.
The basis of this principle in Russian law is the norm that the ruble (banknotes and coins
of the Bank of Russia) is a legal tender that must be accepted at face value when making all
types of payments, for crediting to accounts, deposits and for transfer throughout the territory
Russia (Article 30 of the Federal Law of July 10, 2002 No. 86-FZ "On the Central Bank of the
Russian Federation (Bank of Russia)" 80; paragraph 1, paragraph 1, Article 140).
At the same time, the legislation knows a number of ways to account for and correct the
negative consequences of changes in the purchasing power of money. These include currency
clauses and indexation of liabilities.
Currency clauses. With regard to monetary obligations, one should distinguish between the
currency in which such an obligation is expressed (the currency of the debt) and the currency in
which this monetary obligation must be fulfilled (the currency of payment) 81.
As a general rule, monetary obligations must be expressed in rubles (clause 1 of article 317),
i.e. the currency of the debt and the currency of payment is the ruble 82.
At the same time, a monetary obligation may provide for payment in rubles (payment
currency) in an amount equivalent to a certain amount in a foreign currency or in conventional
monetary units (debt currency)In this case, the amount payable in rubles is determined at the
Decree of the Plenum of the Supreme Court of the Russian Federation of January 21, 2016 No. 1 “On Certain
Issues of the Application of Legislation on Reimbursement of Costs Related to the Consideration of a Case” (p. 15)
// Bulletin of the Supreme Court of the Russian Federation. 2016. No. 4. 1–6.
76
Decree of November 22, 2016 No. 54 (paragraphs 2 and 3, paragraph 9).
77
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated
October 20, 2010 No. 141 “On Some Issues of Application of the Provisions of Article 319 of the Civil Code of the
Russian Federation” (paragraph 2, paragraph 1) // Bulletin of the Supreme Arbitration Court of the Russian
Federation. 2010. No. 12. P. 123–125.
78
Decree of March 24, 2016 No. 7 (paragraph 2, paragraph 37); par. 3 paragraph 1 of the resolution of the
Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 No. 63 “On current payments
for monetary obligations in a bankruptcy case” // Bulletin of the Supreme Arbitration Court of the Russian
Federation. 2009. No. 9. P. 132–135.
79
Lunts L. A. Money and monetary obligations: Legal research // Lunts L. A. Money and monetary obligations
in civil law. M., 2004. S. 111.
80
Collection of Legislation of the Russian Federation. 2002. No. 28. Art. 2790 (hereinafter referred to as
the Law on the Bank of Russia).
81
Decree of November 22, 2016 No. 54 (paragraph 1, clause 27); Clause 1 of the information letter of the
Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 No. 70 “On the
Application by Arbitration Courts of Articles 140 and 317 of the Civil Code of the Russian Federation” // Bulletin
of the Supreme Arbitration Court of the Russian Federation. 2003. No. 1. S. 86–89.
82
Decree of November 22, 2016 No. 54 (para. 2, paragraph 27).
75
17
BUSINESS CONTRACTS
official exchange rate of the relevant currency or conventional monetary units on the day of
payment (clause 2, article 317).
The official exchange rate is understood as the exchange rate against the ruble, established
by the Bank of Russia on the basis of Art. 53 of the Law on the Bank of Russia 83.
The use of foreign currency, as well as payment documents in foreign currency, when making
settlements on the territory of Russia for obligations is allowed in cases, in the manner and under
the conditions specified in Art. 6, 9 and 10 of the Federal Law of December 10, 2003 No. 173FZ “On currency regulation and currency control” 84(clause 2 of article 140, clause 3 of article
317).
The condition of the contract, in which foreign currency on the territory of Russia is a means
of payment in the absence of the prerequisites established by these rules, is void (clause 2 of
article 168). At the same time, the statement of invalidity, as soon as it can be assumed that the
contract would have been concluded without this condition, does not entail the invalidation of the
contract as a whole (Article 180). In this case, if the monetary obligation is not fulfilled, the
currency of payment is the ruble 85.
In other words, if the contract provides that a monetary obligation is expressed and paid in
a foreign currency, however, due to the rules of currency legislation, this obligation cannot be
performed in a foreign currency, such a contractual condition should be considered by the court
as provided for in paragraph 2 of Art. 317, unless, when interpreting the contract in accordance
with the rules of Art. 431 the Court will not come to a different conclusion 86.
latter accepted foreign currency as payment under a bilaterally binding agreement in violation
of paragraph 2 of Art. 140 and paragraph 3 of Art. 317, such actions do not discredit the
obligation itself and the contract from which it arose, and also do not entail the termination of
the counter obligation 87.
When in the contract a monetary obligation is expressed in a foreign currency (currency of
the debt) without specifying the currency of payment, the court should consider the ruble as the
currency of payment 88.
In practice, there is still no single position on the issue of the currency of the debt in
obligations from unjust enrichment, which was formed upon termination of the contract, if before
termination one of the parties, having received from the other party the fulfillment of an
obligation containing a currency clause, did not fulfill its obligation or provided the other party
with an unequal execution (paragraph 2, clause 4, article 453) 89.
If we strictly follow the letter of the law, such an extra-contractual (conditional) obligation
is independent in relation to the original contractual one and cannot be recognized as containing
a currency clause, unless it is expressly agreed by the parties.
At the same time, when resolving the dispute between the consumer (purchaser of the tour)
and the travel company about the return of unjustifiably saved amounts of money due to the
cancellation of the prepaid tour, the highest court pointed out the need in this case to assess the
fact that the consumer paid for the tour on the terms of the currency clause 90.
Ibid. (para. 3 p. 29).
Collection of Legislation of the Russian Federation. 2003. No. 50. Art. 4859.
85
Decree of November 22, 2016 No. 54 (paragraph 3, paragraph 31); information letter of the Presidium of
the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 No. 70 (paragraph 4, paragraph
3).
86
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated
November 4, 2002 No. 70 (paragraph 3, paragraph 3).
87
Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17,
2009 No. 5225/09 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2010. No. 2. P. 153–
156.
88
Decree of November 22, 2016 No. 54 (paragraph 2, paragraph 31).
89
See also: resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 6,
2014 No. 35 “On the consequences of termination of the contract” (p. 5) // Bulletin of the Supreme Arbitration
Court of the Russian Federation. 2014. No. 8. S. 162–166.
90
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation
dated May 16, 2017 No. 5-KG17-15.
83
84
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
18
Indexing. Special rules, in derogation from the principle of nominalism, are established for
monetary obligations, the economic function of which is to provide a citizen with funds directly
for his maintenance (as a means of subsistence). In particular, we are talking about obligations
to compensate for harm caused to life or health (§ 2 Chapter 59), or to provide life maintenance
in accordance with a life maintenance agreement (§ 4 Chapter 33).
For such obligations, the law provides for a periodic increase (indexation) in proportion to
the increase in the amount of the subsistence minimum established in accordance with the law
(Articles 318, 597, 1091).
Legal interest on a monetary obligation. If, under the terms of the obligation, one of the
parties uses the funds due to the other party, interest may be due to the creditor along with the
principal amount of the debt.
The most characteristic examples are the provision of a loan or credit (Article 809), as well
as the so-called. commercial lendingThe latter takes place whenever, under the terms of a
bilaterally binding agreement, the parties are obliged to provide each other with performance
not simultaneously (for example, paragraphs 1 and 2 of Article 486), but with a certain gap in
time 91. In other words, the contract, the execution of which is associated with the transfer of
monetary amounts (or other things determined by generic characteristics) to the ownership of
the other party, provides for the provision of a loan, including in the form of an advance payment,
advance payment, deferral and installment payment for goods, work or services (clause 1, article
823).
The rules on loans and credits (Chapter 42, including Art. 809 on interest) apply to such a
gap in time between grants, unless otherwise provided by the rules on the contract from which
the corresponding obligation arose, and does not contradict the essence of such 92an obligation
(p. 2 article 823).
Interest charged for the use of a commercial loan (including advance payments, prepayments)
is a payment for the use of funds and is payable from the moment the results of work or services
are received (in case of deferred payment) or from the moment the funds are provided (in case
of advance payment or advance payment) and terminates when the party that received the loan
fulfills its obligations or when the loan received as a commercial loan is returned 93.
When legal interest is charged on the amount of a monetary obligation for the period of use
of the funds, their amount is determined by the key rate of the Bank of Russia in force in the
relevant periods (clause 1, article 317 ¹).
As a general rule, it is not allowed to accrue interest, which is a payment for the use of
funds, on the same interest for the previous period (compound interest).
For contracts related to the implementation of entrepreneurial activities by their parties, as
well as for bank deposit agreements, an opposite special rule is provided: the calculation of
compound interest (anatocism) is recognized as permissible (clause 2 of article 317 ¹) 94.
Fulfillment of monetary obligations. Making and receiving payments to repay a monetary
debt are also referred to as settlementsThe payment procedure is differentiated for citizens and
legal entities.
Settlements with the participation of citizens, not related to their entrepreneurial activities,
can be made both in cash (banknotes and coins) without limiting the amount, and in a non-cash
manner (clause 1 of article 861).
Settlements between legal entities, as well as settlements with the participation of citizens
related to their entrepreneurial activities, as a general rule, are made in a cashless manner.
Civil law: in 3 vols. Vol. 2 / 4th ed., revised. and add.; ed. A. P. Sergeev, Yu. K. Tolstoy. M., 2005. S. 506.
Other rules are provided for advance payment and sale of goods on credit under a sales contract (Articles
487–489).
93
Decree of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme
Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14 “On the practice of applying the
provisions of the Civil Code of the Russian Federation on interest for the use of other people's money” (p. 12) //
Bulletin of the Supreme Arbitration Court of the Russian Federation. 1998. No. 11. S. 7–14.
94
See also par. 2 p. 33 of the Decree of November 22, 2016 No. 54.
91
92
19
BUSINESS CONTRACTS
Settlements between these persons can also be made in cash, subject to the restrictions
established by law and banking rules adopted in accordance with it (clause 2, article 861; part
1, article 82 ³ of the Law on the Bank of Russia).
When fulfilling civil law obligations stipulated by the contract and (or) arising from it and
performed both during the term of the contract and after the expiration of its validity, cash
settlements are made in an amount not exceeding the maximum amount of cash settlements. The
maximum amount within the framework of one contract is set at an amount not exceeding 100
thousand rubles. or an amount in foreign currency equivalent to 100 thousand rubles. at the
official exchange rate on the date of settlement 95.
If the agreement provides for a non-cash payment method, then the creditor may refuse to
accept payment through cash settlements, since this performance will not be properHowever, if
the creditor accepts cash, he agrees to a change in the procedure for fulfilling the obligation and
subsequently cannot refer to the terms of the agreement on cashless payments 96.
Non-cash payments are carried out by transferring funds by banks and other credit
organizations in the manner prescribed by law and adopted in accordance with the banking rules
and the agreement (clause 3 of article 861).
Settlement of payments. If there are several homogeneous obligations between the parties, if
the performance by the debtor is not enough to pay off all the debtor's homogeneous obligations
to the creditor, the performance shall be counted against the obligation indicated by the debtor
upon performance or without delay after performance (paragraph 1 of article 319 ¹) .
When the debtor has not indicated on account of which of the homogeneous obligations the
performance was carried out:
if among such obligations there are those for which the creditor has security, the performance
is counted in favor of obligations for which the creditor does not have security (paragraph 2 of
article 319 ¹);
priority is given to the obligation, the due date of which has come or will come earlier, or,
when the obligation does not have a due date, the obligation that arose earlier. If the deadlines
for the fulfillment of obligations have come at the same time, the fulfilled is counted in proportion
to the repayment of all homogeneous claims (clause 3 of article 319 ¹).
Within the framework of one monetary obligation, the payment amount, insufficient to fulfill
the obligation in full, repays, first of all, the creditor's costs of obtaining performance, then
interest, and in the remainder, the principal amount of the debt (Article 319).
The specified interest refers to interest that is a payment for the use of funds (for example,
art. 317 ¹, 809, 823). Interest, which is a measure of liability (for example, the interest provided
for in Art. 395), does not apply to the specified interest and is repaid after the amount of the
principal debt 97.
The provisions of Art. 319, establishing the order of repayment of claims under a monetary
obligation, may be changed by agreement of the parties. However, he can change the repayment
procedure only for those named in Art. 319 requirements 98.
Acceptance of performance. The creditor is obliged to accept the proper performance offered
by the debtor, as well as to take actions that, in accordance with the usual requirements, are
necessary on his part to ensure the transfer and receipt of the provision (paragraph 1 of article
406).
The creditor, accepting the performance, is obliged, at the request of the debtor, to issue
him a receipt of receipt of the performance in full or in the relevant part.
If the debtor issued to the creditor a debt document as evidence of an obligation, then the
creditor, accepting the performance, must return this document, and if it is not possible to
return, indicate this in the receipt issued by him. The receipt can be replaced by an inscription
Instruction of the Bank of Russia dated October 7, 2013 No. 3073-U “On the implementation of cash
settlements” (p. 6) // Bulletin of the Bank of Russia. 2014. No. 45. P. 30–31.
96
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian
Federation dated August 7, 2018 No. 307-ES17-23678.
97
Decree of November 22, 2016 No. 54 (paragraph 1, paragraph 37).
98
Ibid. (para. 2 p. 37).
95
PERFORMANCE OF CONTRACTUAL OBLIGATIONS
20
on the returned debt document. The presence of a debt document with the debtor certifies, until
proven otherwise, the termination of the obligation .
If the creditor refuses to issue a receipt, return the debt document or note in the receipt
the impossibility of its return, the debtor has the right to delay the execution. In these cases,
the creditor is considered overdue (clause 2, article 408).
With regard to the execution of the provision and acceptance of performance, there is a
position according to which the rules on the form of the transaction are subject to application.
In particular, to administrative transactions, consisting in the transfer of values, the rule is
applied on the conclusion in a simple written form of transactions between citizens among
themselves for an amount exceeding the threshold established by law (subparagraph 2, paragraph
1, article 161), under pain of deprivation of the right to refer to confirmation transaction and
its conditions for witness testimony (clause 1, article 162) 99.
In entrepreneurial activity (regardless of the justification of the above position from the
point of view of civil law requirements), one should be guided by the rule that when each fact of
economic life is committed, in order to formalize it, a primary accounting document must be
drawn upIts obligatory requisites are, along with others, the content of the fact of economic life,
the value of natural and (or) monetary measurement, indicating the units of measurement, the
signatures of the persons who made the transaction or operation and are responsible for its
execution (parts 1–3 of article 9 Federal Law of December 6, 2011 No. 402-FZ "On Accounting"
100
).
Making a deposit. In some cases, the law allows the termination of an obligation by depositing
money or securities with a notary or a court.
By virtue of law, the debtor has the right to deposit the money or securities due from him
into the notary's deposit (and in the cases established by law, into the court's deposit), if the
obligation cannot be performed by the debtor due to:
the absence of the obligee or the person authorized by him to accept performance in the
place where the obligation is to be performed;
incapacity of the creditor and absence of his representative;
the apparent lack of certainty as to who is the creditor under the obligation, in particular
in connection with a dispute on this issue between the creditor and other persons;
evasion of the creditor from accepting the performance or other delay on his part (paragraph
1 of article 327).
For example, the debtor can fulfill the obligation in the event of revocation of the license
from the creditor's bank in order to prevent delay in performance, that is, to overcome the obstacle
that has arisen 101.
The notary accepts money and securities as a deposit at the place of fulfillment of the
obligation. The notary notifies the creditor of the receipt of money and securities and, at his
request, issues the money and securities due to him (parts 1–2 of article 87 of the Fundamentals
of the legislation of the Russian Federation on notaries dated February 11, 1993 No. 4462-I)
102
.
Depositing a sum of money or securities into a notary's or court's deposit is considered the
fulfillment of an obligation (paragraph 1, clause 2, article 327).
At any time before the creditor receives money or securities from the deposit of a notary or
court, the debtor has the right to demand the return of such money or securities to him, as well
as income from them (paragraph 3 of article 327).
At the same time, the return of sums of money and securities to the person who made them
on deposit is allowed only with the written consent of the person in whose favor the contribution
Decree of the Presidium of the Supreme Court of the Russian Federation of March 27, 2002 No. 245pv-01
pr // Bulletin of the Supreme Court of the Russian Federation. 2002. No. 8. P. 8.
100
Collection of Legislation of the Russian Federation. 2011. No. 50. Art. 7344.
101
Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 27, 2012
No. 9021/12 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2013. No. 3. P. 160–164.
102
Vedomosti RF. 1993. No. 10. Art. 357; Collection of Legislation of the Russian Federation. 2015. No. 1
(part I). Art. 10.
99
21
BUSINESS CONTRACTS
was made, by agreement between the debtor and the creditor, or by a court decision (Article 88
of the Fundamentals).
The funds and securities transferred to the notary's deposit are considered to belong to the
creditor from the moment he receives the said property from the deposit. At the same time, the
notary is not entitled to return the named funds and securities to the debtor if an application
has been received from the creditor for their receipt 103.
In the event of the return to the debtor of what was performed under the obligation, the
debtor is not considered to have fulfilled the obligation (paragraph 3 of article 327).
In addition, in addition to the above cases, the parties to any obligation have the right to
apply to a notary with a joint application for acceptance from the debtor for deposit of movable
things, non-cash funds or uncertificated securities in order to transfer them to the creditor in
the manner, within the time limits and on the conditions specified in such agreement. statement.
In case of transfer to a notary for deposit of the listed property on the basis of the said
application, the rules of Ch. 47 ¹ on the escrow agreement. After receiving the creditor's demand
for the transfer of the deposited property to him, the notary is obliged to check the occurrence
of the conditions for the transfer (clause 4, article 327; article 88 ¹ of the Fundamentals of
Legislation on Notaries).
Provision under an optional obligation. Under the terms of the obligation, the debtor may be
granted the right to terminate the obligation not by performance (by making the main provision),
but by making an optional provision (Article 308 ²).
Such a right of the debtor may be agreed upon by the parties both at the time of the conclusion
of the contract from which the main obligation arises, and subsequently before the fulfillment of
the main obligation 104.
If the debtor exercises his right to replace the performance stipulated by the terms of the
obligation, the creditor is obliged to accept from the debtor the appropriate performance under
the obligation (Article 308²), including during the period of delay in the performance of the main
obligation 105.
At the same time, the creditor is not entitled to demand optional performance from the
debtor, including in the event of delay or impossibility of performance of the main obligation. If
the parties have agreed that the debtor, instead of the main performance, pays money or transfers
other property, such an agreement, as a general rule, gives rise to the right, but not the obligation
of the debtor to provide a different (optional) performance in order to terminate the obligation
106
.
Decree of November 22, 2016 No. 54 (paragraph 2, paragraph 55).
Ibid. (para. 1 p. 47).
105
Ibid. (para. 2 p. 47).
106
Decree of November 22, 2016 No. 54 (paragraph 1, paragraph 48); Review of the practice of application by
arbitration courts of Article 409 of the Civil Code of the Russian Federation: Information letter of the Presidium
of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102 (p. 1) // Bulletin
of the Supreme Arbitration Court of the Russian Federation. 2006. No. 4. P. 92–100.
103
104