40. Obligations in civil law: concept, types, grounds for occurrence and termination

What is a commitment?

The answer to this question is provided by the norms of the law of obligations and the corresponding science. Its concept is defined mainly through content.

An obligation has the following characteristics:

• subject. We are talking about at least 2 different persons. If their merger occurs, the obligation is canceled by automatic termination;
• object or thing. The law of obligations presupposes the performance of certain actions or abstention from them;
• content. The fulfillment of obligations presupposes one or another essence of the actions that the participants must carry out;
• the obligation is relative in nature. Their object, as a rule, is inextricably linked with a specific person. The fulfillment of obligations is carried out within the framework of legal relations between strictly defined entities. Unlike property rights, its protection is possible from violations committed only by participants;
• guarantees from public authorities. Fulfillment of obligations is ensured by the possibility of legal action. Such protection allows you to obtain the necessary actions from the other side. Fulfillment of obligations is guaranteed by the coercive force of the state in order to ensure the functioning of the economy.

Using these features, you can get the following concept.

An obligation is a legal relationship between subjects of civil law, the subject (object) of which involves the commission of certain actions in favor of the other party or abstention from them, which constitutes its content, the protection of which is ensured by mechanisms of state coercion.

Ways to ensure fulfillment of contractual obligations

Natalya Troitskaya Auditor. Head of Legal Service of CJSC TLS-GROUP

First, let's define what is meant by due or proper fulfillment of contractual obligations. Execution of a contract or fulfillment of contractual obligations consists in the performance by a party to the contract of certain actions (refraining from performing actions) specified in the subject of the concluded contract. And, further, in assessing the actions taken: proper execution or not.

Since civil legislation does not contain special rules on the execution of a contract, in the general case regulation is carried out according to the rules defined in Chapter. 22 “Fulfillment of obligations” of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), and chapters devoted to certain types of civil obligations.

Proper fulfillment of obligations under a contract implies compliance with certain requirements, namely: performance by the due person, performance by the due person, in the due time, in the due place, as well as compliance with the contract of the method and subject of performance.

In general, unless otherwise follows from the customs of business and from the essence of the contract, the debtor has the right, when fulfilling an obligation, to demand evidence that the performance is accepted by the creditor himself or a person authorized by him (Article 312 of the Civil Code of the Russian Federation). In case of failure to present such a requirement, the debtor bears the risk of execution to an improper person. That is, the burden of proving the fact of execution to the creditor lies with the debtor. To protect its interests, the debtor in accordance with the provisions of Art. 408 of the Civil Code of the Russian Federation may require a receipt from the creditor (return of the debt document issued to the creditor, with the appropriate mark) in receipt of fulfillment in whole or in part. When accepting the performance by a person authorized by the creditor, the debtor may require the said person to confirm his authority to accept the performance.

The authority to accept what has been performed can be expressed, for example, in a power of attorney, or in a sales contract: the seller’s obligation can be considered fulfilled when sending the goods to a third party, according to the details specified in the contract.

In the interests of participants in civil transactions, the Civil Code of the Russian Federation establishes the possibility for a debtor to assign the fulfillment of obligations to a third party, except in cases where the essence of the obligation, an agreement or a legal act does not imply that the debtor is obliged to fulfill the obligation personally. Imposing obligations on a third party is very often used in business activities. For example, under purchase and sale agreements for transit deliveries, the seller, instead of independently shipping the goods to his buyer, instructs his supplier - the manufacturer of the goods - to do this.

There are three options for determining the due period for fulfilling obligations (Article 314 of the Civil Code of the Russian Federation). Firstly, a “definite period” is a deadline for performance on a certain day or within a certain time established by the contract. Secondly, the term “on demand”. The debtor fulfills the obligation in the general case within seven days from the date of presentation of the claim by the creditor. Thirdly, if the deadline for fulfilling the obligation is not agreed upon by the parties. In this case, the fulfillment of the obligation is carried out within a “reasonable time”, i.e. within the period determined by business turnover and, perhaps, ultimately, by the court when deciding the issue of violation of the deadline.

A violation of the requirement to fulfill an obligation within the required time frame is, in general, either a delay in fulfillment or an early fulfillment of the obligation. However, if the fulfillment of obligations under the contract is not related to the implementation of business activities by its parties, then early fulfillment of obligations is possible (Article 315 of the Civil Code of the Russian Federation).

When determining the place of fulfillment of obligations, the parties are primarily guided by the terms of the agreement. If the place of fulfillment of obligations is not determined by the contract, execution is carried out in accordance with the special rules of the Civil Code of the Russian Federation. In particular, according to Art. 316 of the Civil Code of the Russian Federation for obligations related to the performance of work or the provision of services, the place of fulfillment of obligations, as a general rule, is the location of the debtor. For monetary obligations, execution is carried out at the location of the creditor or, in the cases specified in Art. 327 of the Civil Code of the Russian Federation, by depositing funds with a notary or court.

The requirement to fulfill an obligation in the proper manner and with the proper subject (Articles 311, 317, 320 of the Civil Code of the Russian Federation) means that the debtor, by virtue of the obligations imposed on him by the contract, must transfer things (perform work, provide services) in all its qualitative and quantitative parameters, satisfying the requirements set out in the contract, law and other legal acts. In addition, the fulfillment of the obligation in parts is considered improper.

Ways to ensure fulfillment of obligations

Civil legislation provides for a number of measures aimed at forcing the debtor to fulfill his obligations. First of all, in accordance with the law (Article 393 of the Civil Code of the Russian Federation), if the debtor fails to fulfill or improperly fulfills his obligations, he is obliged to compensate for the losses caused. In addition, the legislation establishes additional methods of securing obligations - “artificial techniques to provide the law of obligations with the firmness that it lacks in its essence” (D.I. Meyer Russian Civil Law, Part 2, M, Moscow State University, 1997. p. 179) . These include: penalty, pledge, surety, deposit - arising, as a rule, from the contract, as well as a bank guarantee (based on a unilateral transaction, Article 368 of the Civil Code of the Russian Federation) and retention of the debtor’s property (arising from the law and according to the rules established by law (Articles 359, 360 of the Civil Code of the Russian Federation) In addition, modern civil legislation allows for other methods of ensuring the fulfillment of an obligation provided for by an agreement or law and not specified by the Civil Code of the Russian Federation.

Let us note that securing obligations by any of the above methods also gives rise to obligatory legal relations between the debtor and the creditor. And this obligation has an additional (accessory) character and follows the fate of the main obligation.

In practice, the choice of method of securing an obligation largely depends on the specifics of the contract. For example, for obligations arising from a loan (credit) agreement, the most commonly used methods of security are in the form of collateral, surety, and bank guarantee. For contracts for the performance of services, purchase and sale - establishing a penalty, making a deposit.

Let's consider the main features of some methods of securing obligations.

Penalty

A penalty is understood as the amount of money that the debtor must pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular, in the event of a delay in fulfilling the obligation. The penalty is applied in the form of a one-time penalty in the form of a fine and/or penalties - periodically accrued payments.

The purpose of the penalty is to encourage the debtor to fulfill his obligations - “The debtor’s obligation in the event of a malfunction expands and becomes more burdensome than under the contract itself” (D. I. Meyer. Russian civil law, part 2, M, Moscow State University, 1997. Pp. 179). At the same time, the penalty is also a measure of property liability for non-fulfillment or improper fulfillment of obligations. According to current legislation, the creditor does not have the right to demand payment of a penalty in the absence of the debtor’s fault, and payment of the penalty does not relieve the guilty party from fulfilling its obligations under the contract. The duality of the nature of the penalty was repeatedly pointed out by the Constitutional Court of the Russian Federation (Determination of the Constitutional Court of the Russian Federation of December 21, 2000 No. 263-O; Determination of the Constitutional Court of the Russian Federation of January 10, 2002 No. 11-O; Determination of the Constitutional Court of the Russian Federation of January 22, 2004 No. 13-O).

The law distinguishes between contractual and legal penalties. A contractual penalty is established by agreement of the parties, and, in accordance with civil law, regardless of the form of the main obligation, the agreement on a penalty must be made in writing (Article 331 of the Civil Code of the Russian Federation).

A legal penalty can only be established by federal law. For example, in case of violation of the established deadlines for performing work (providing a service), a penalty (fine) in the amount of 3% of the price of performing the work (providing a service) for each day is applied established by the Law of the Russian Federation of 02/07/92 No. 2300-1 “On the Protection of Consumer Rights”. (hour, if the period is specified in hours) delay. In accordance with the rules of Art. 332 of the Civil Code of the Russian Federation, a legal penalty is subject to application regardless of whether or not the obligation to pay it is provided for by agreement of the parties. In addition, the provision of the contract that releases the party from the penalty specified in the law or the reduction of such a penalty is void.

The widespread use of penalties for the purpose of securing contractual obligations is due primarily to the fact that the penalty is a simplified means of compensating for losses of the creditor in the event of non-fulfillment or improper performance of obligations by the debtor. When demanding payment of a penalty, the creditor is not required to prove that he suffered losses. In addition, a characteristic feature of a penalty is its predetermination, i.e., the possibility of collection, the size, calculation procedure, and the relationship with the party’s losses is formalized by the parties as a separate condition of the contract (with the exception of a legal penalty) and allows its application to be adjusted to specific conditions.

The procedure for calculating the amount of money constituting a penalty may be different. The most commonly used contractual penalty is:

- an amount specified in the contract in the form of a fine for non-fulfillment or improper fulfillment of obligations,

- a fine determined by the contract in the form of a percentage of the contract amount or its unfulfilled part,

- a fine specified in the contract, expressed as a multiple of the amount of the unfulfilled or improperly fulfilled obligation,

- penalties established by the contract in the form of interest in relation to the amount of obligations not fulfilled on time and accrued for a certain period (day, week, month).

It must be remembered that when considering the issue of compensation for damages to the party guilty of non-fulfillment or delay in fulfilling an obligation, there are four main approaches to establishing the relationship between losses and penalties. Namely (Article 394 of the Civil Code of the Russian Federation):

— set-off penalty – applied unless otherwise provided by the contract or law. The penalty is counted towards compensation of losses. Losses are covered to the extent not covered by the penalty provided for in the contract.

- penalty - by virtue of law or contract. Losses are subject to recovery in full in addition to the penalty.

- exceptional penalty - by virtue of law or contract. Only a penalty is payable; losses are not subject to compensation.

- alternative penalty - by virtue of law or contract. At the choice of the creditor, either losses are compensated or a penalty is paid.

Although the use of a penalty is a widely used method of securing obligations, it cannot be said that the security is very reliable: a penalty in the event of a debtor’s fault only strengthens his obligation with the same drawback that accompanies every right of obligation: just as the debtor cannot be forced to pay 1,000 rubles, in the same way he cannot be forced to pay 1,030 rubles.
And indeed, it very often happens that the debtor turns out to be faulty, despite the fact that the fault is associated with very painful consequences for him” (D. I. Meyer. Russian civil law, part 2, Moscow, Moscow State University, 1997. p. 180) . Deposit

A deposit is recognized as a sum of money given by one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution. Those. In addition to the function of ensuring the fulfillment of the main obligation, the deposit also performs the function of certification, confirmation of the conclusion of the main contract. As a rule, the contract is considered concluded from the moment the obligated party pays the deposit. Also, a characteristic feature of the deposit is its use to ensure the fulfillment of exclusively monetary obligations, since the deposit is issued by the relevant party to the contractual obligation in payment of payments due from it and, accordingly, has a payment function.

The agreement on the deposit, regardless of the amount of the deposit, must be made in writing. In addition, the Civil Code of the Russian Federation establishes rules for determining the fate of the deposit in case of doubt as to whether the amount paid is a deposit or not, as well as in the event of termination of the obligation secured by the deposit, on the grounds established by law, before the start of fulfillment of the obligation. In the first case, if there are doubts about the “nature” of the amount paid, in particular, if the written form of the deposit agreement is not observed, the specified amount is recognized as an advance unless otherwise proven (Article 380 of the Civil Code of the Russian Federation). We note that as evidence, taking into account the provisions of paragraph 1 of Art. 162 of the Civil Code of the Russian Federation, witness testimony cannot be used, however, written and other evidence can be provided. In the second case, if the obligation is terminated before the start of its execution by agreement of the parties or due to the impossibility of fulfillment (under Article 416 of the Civil Code of the Russian Federation), the deposit must be returned (Article 380 of the Civil Code of the Russian Federation).

The purpose of the deposit, as a way to secure an obligation, is primarily to prevent non-fulfillment of the contract. The consequence of failure to fulfill obligations under contracts secured by a deposit is:

- if the party that gave the deposit fails to fulfill the contract, the amount of money paid as the deposit remains with the other party;

- if the party that received the deposit fails to fulfill the contract, it is obliged to pay the other party double the amount of the deposit.

This liability occurs only in cases of failure to fulfill obligations - full or partial - and does not apply to cases of improper fulfillment by the parties of their obligations.
In addition, the guilty party is obliged to compensate for the losses caused, including the amount of the deposit. That is, if the party that issued the deposit fails to fulfill the contract, it is obliged to compensate for losses in a portion exceeding the amount of the deposit. And if the party that received the deposit fails to fulfill the contract, the opposing party has the right to demand payment of double the amount of the deposit, as well as compensation for losses in excess of the single amount of the deposit. Let us note that the contract may provide for compensation for losses in a different (larger or smaller) amount, and may also provide for other measures of liability (including penalties).

If the main obligation is terminated before the start of its performance by agreement of the parties or due to impossibility of performance, the deposit must be returned.

In conclusion, we note that the deposit, as a means of fulfilling obligations, is quite widely used to secure preliminary contracts. The possibility of using a deposit to secure preliminary contracts is also confirmed by judicial practice (FAS Moscow Region Resolution No. KG-A40/9765-05 dated October 17, 2005, FAS Resolution No. A55-13983/03-14 dated July 1, 2004, FAS ZSO Resolution dated January 21, 2004 No. F04/297-2312/A45-2004).

Grounds for the emergence of obligations

The rules of the law of obligations establish a number of grounds for the emergence of such legal relations. These include the following cases:

• obligation arising as a result of damage. An example would be an accident;
• obligation associated with the conclusion of a contract. This includes any agreements.
• fulfillment of obligations arising from unjust enrichment. We are talking about the absence of a contractual or legal reason for the formation of income (the corresponding concept is set out in Chapter 60 of the Civil Code);
• an obligation can arise not only from agreements, but also from unilateral transactions;
• their sources are also acts of executive and judicial bodies. Such grounds for the emergence of obligations are also individual in nature.

All of these types can be divided into those that do not arise from agreements and those that appear on the basis of law.

In Art. 307 of the Civil Code an open list is applied. It allows for the possibility of recognizing any other basis for the emergence of obligations.

The procedure for changing and terminating them is similar.

How to accept budgetary and monetary obligations?

The implementation of budgetary and monetary obligations in government institutions takes place in several stages.

Budgetary obligations are accepted within the limits of LBO and (or) budgetary allocations through the conclusion of state (municipal) contracts, as well as other agreements with individuals and (or) legal entities, individual entrepreneurs, or concluded in accordance with laws, other regulations, agreements (Article 162, paragraph 3 of Article 219 of the Budget Code of the Russian Federation). Therefore, the grounds for accepting budgetary obligations, for example, are such documents as: a concluded contract, agreement, advance report, payroll, cash order for the issuance of accountable funds, etc.

Monetary obligations typically arise after an institution makes budgetary commitments. However, the order in which monetary obligations arise may vary depending on the provisions of the accounting policies of the government institution. Sometimes a monetary obligation may be made before a budgetary one. Monetary obligations are accepted upon the occurrence of conditions that require the institution to fulfill accepted budgetary obligations. Grounds for acceptance: certificate of completion of work, advance payment to the supplier, invoice, pay slip, invoice and other documents confirming the occurrence of monetary obligations.

More on the topic: We acquire property from several sources: how to reflect it in accounting?

Thus, as part of the formation of the accounting policy of a government institution, a list of documents must be determined - the grounds for reflecting accepted obligations in account 502 00 “Liabilities” (clause 318 of Instruction No. 157n). This list may include documents that are not primary documents (invoices, universal transfer documents, orders for sending on business trips, etc.). When developing the list, you can take into account, in particular, the provisions of Appendix No. 4.1 to Order of the Ministry of Finance of Russia dated December 30, 2015 No. 221n.

Let’s assume that in December of the current year, the LBO for the next financial year is brought to the institution. The institution then assumes budgetary obligations in the following order:

• for items for which contracts are not required, based on the established limits;
• by items for which contracts are required, at the cost of these contracts

After this, the institution can proceed to fulfill budgetary and monetary obligations.

Subject, object and content of obligatory relations

The principles of the law of obligations presuppose the presence of constituent elements of these relations. These include subject (object), subject, and content. Obligatory relations are impossible if at least one of these elements is missing. A situation where any part of it falls out serves as grounds for termination.

The concept of a subject is identical to a person. The law of obligations includes all citizens and legal entities as such. Given the nature of such relationships, there are 2 parties: the debtor and the creditor. The second has the right to demand from the first to fulfill obligations. If we are talking about an agreement, then its participants are simultaneously debtors and creditors. An example is a supply agreement, where the fulfillment of obligations to transfer money is associated with similar actions in relation to the goods.

The concept characterizing the object or subject of these legal relations in general terms is not established by law. However, this is not a problem. The law of obligations as a science has long developed such a concept. A subject or object is the subject’s performance of actions or abstention from them.

An example of the first is any agreement on the transfer of any things. The law of obligations also contains many cases of omission. An example is the obligation of the owner of a share in the right to property to refrain from selling it for a certain period of time for consideration by other shareholders.

The concept of content includes all specific types of actions or inactions that the law of obligations provides for in a particular case. Their fulfillment serves as the basis for termination of obligations.

Elements of an obligatory legal relationship

The structure of an obligatory legal relationship, like any civil legal relationship, consists of:

• Subjects (participants) of an obligatory legal relationship - they can be individuals and legal entities, state and municipal entities. The direct participants of the obligation are the debtor (debtor) and the creditor (trustee);
• Object – always certain actions of the obligated person;
• The contents of the law of obligations are the rights and obligations of its parties.

The procedure for applying the general provisions on obligations

The system of obligations law in Russia is based on the recognition of the priority of special rules. This is explained by the need to take into account the peculiarities of a number of legal relations. They may relate to the occurrence, termination, change, and also establish the fulfillment of obligations in one way or another. Protecting the interests of the creditor may also differ significantly. An example is the relationship between a consumer and a seller. Protecting the interests of the former involves pre-trial procedures.

The general principles are established in Art. 307.1 Civil Code. The law of obligations, in terms of general rules, is applicable both to cases of harm and to contractual relations, to the extent that it does not contradict special rules. An example is deadlines. Fulfillment of obligations after a certain time is defined in Art. 314 Civil Code. However, its application to the direct relations of the parties depends on the specification of special rules and provisions of the agreement.

Subjects can independently determine the period during which it is necessary to fulfill obligations in the contract.

Other cases of limited application of general rules are the consequences of invalid transactions, as well as corporate relations. In the second case, the law of obligations provides only framework terms. An example is the establishment of time limits for holding the next meeting of participants or shareholders.

In a situation with the invalidity of transactions, the law of obligations, in terms of general rules, is subject to more active application. In regulating these issues, the legislator focused on the very grounds of contestability or nullity. For this reason, questions related to the application of the relevant consequences are based on the procedure established by the general law of obligations.

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Results

The presence of liabilities of a company is characterized by an outflow of its assets.
Classification of liabilities in accounting is an event that is aimed at dividing them into groups that have certain characteristics. It is this approach that allows you to recreate a complete picture of exactly what obligations the company has on a certain date. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

Reflection of budgetary and monetary obligations in accounting

As practice shows, for some accountants, keeping records of budgetary and monetary obligations becomes a stumbling block. Budgetary accounting for these obligations is maintained in the following accounts:

• Accounting for budgetary obligations of a government institution is carried out in accordance with clause 140 of the Instructions, approved. By Order of the Ministry of Finance of Russia dated December 6, 2010 N 162n on account 0 502 01 000 “Accepted obligations”.
• Accounting for monetary obligations of a government institution is carried out in accordance with clause 141 of the Instructions, approved. By Order of the Ministry of Finance of Russia dated December 6, 2010 N 162n on account 0 502 02 000 “Accepted monetary obligations”.

Let us pay close attention to the fact that failure to reflect the indicators of accepted obligations in the expense authorization accounts leads to distortion of budget reporting and, as a consequence, recognition of such reporting as unreliable. This fact, in turn, may be the basis for prosecution in accordance with the norms of the Code of Administrative Offenses of the Russian Federation and the imposition of fines.

Subdivision of obligations by subject composition

According to the subject of fulfillment, obligations are divided into the following:

1. With multiple subjects, such as:
   equity (Article 321 of the Civil Code of the Russian Federation), when debtors are liable in shares established by law or contract;
2. solidary (Article 322 of the Civil Code of the Russian Federation), when your claims can be submitted to any of the debtors;
3. subsidiary (Article 399 of the Civil Code of the Russian Federation), when an additional debtor can be contacted if the main debtor does not have the opportunity to fulfill his obligations independently.
4. Participation of third parties. One can distinguish recourse obligations (clause 2 of Article 325 of the Civil Code of the Russian Federation), when the main debt was paid by a third party, or, conversely, obligations in favor of other persons (Article 430 of the Civil Code of the Russian Federation, for example, a beneficiary in an insurance contract).
5. Change of persons, when one of the counterparties transfers its powers to another person. Examples include:
   assignment (Article 382 of the Civil Code of the Russian Federation);
6. subrogation (Article 965 of the Civil Code of the Russian Federation);
7. transfer of debt (Article 391 of the Civil Code of the Russian Federation).

Liability for property debts

According to Article 45 of the RF IC, the personal obligations of one of the spouses are repaid at his expense. When the family use of the subject of debt formation is proven, all adult family members will repay the arrears. For offenses committed by young children, their parents will be held accountable. The punishment depends on the category of misdemeanor, crime and their severity. Responsibility is assigned by decision of the competent authority or court.

If the debtor does not comply with the terms of the written agreement, penalties are applied to him. Most often, the creditor collects penalties and penalties from the unscrupulous counterparty, and less often imposes a significant fine. When such measures do not help to collect the debt and resolve the dispute, the situation is referred to the court for consideration and resolution. It is the judicial authority that will determine the legality of the demands and apply a fair punishment.

Donation also imposes certain obligations

When debt collection under property obligations is carried out forcibly, withdrawal of funds in Russian and foreign currency is allowed. If there is insufficient finances, foreclosure is carried out on the property commensurate with the amount of the debt. Additionally, under rent and lease agreements, the owner of the object may demand the return of the subject of the agreement.

In extreme cases, when the defaulter has completely lost solvency, the creditor initiates bankruptcy. The first stage of the procedure is observation, when the temporary manager only monitors the activities of the company’s management from the outside. More stringent measures will follow, up to and including the removal of the manager from office. In bankruptcy proceedings, assets are sold with the proceeds being used to satisfy the claims of creditors.