Читать книгу Russian business law: the essentials - - Страница 47

The main methods of securing the performance of obligations are set forth in the CC of the RF. Those methods include penalty, pledge, retention of property, surety, guarantee, earnest money, and security deposit. This list is non-exhaustive, and the parties have the right to stipulate in the contract other means of securing the performance of obligations.

1.2.4.1. Penalty (Article 330–333 of the CC of the RF)

A penalty is a monetary sum, determined by law or contract, that a debtor must pay to the creditor, in case of nonperformance or improper performance of an obligation.

If a penalty subject to payment is clearly disproportionate to the consequences of the violation of an obligation, the court has the right to reduce the penalty. If the debtor is an entrepreneur, the court may reduce the amount of the penalty, only upon that person’s request. Furthermore, such a debtor must prove that the amount of the penalty stipulated in the contract may result in an unfair advantage to the creditor.

The creditor is entitled to claim damages for the portion not covered by the penalty (Article 394 of CC of RF). The law or the contract may identify the following scenarios:

– when only the penalty may be claimed and not the damages;

– when in addition to the penalty the damages may be claimed in the full amount;

– when the creditor may choose to claim either the penalty or the damages.

1.2.4.2. Pledge (Articles 334–358.18 of CC of the RF)

In the event of debtor’s nonperformance, or the improper performance of its obligations, the creditor (pledgee) has the right to receive satisfaction from the value of the pledged property, with priority over other creditors of the pledger.

In cases defined by law, and according to the procedure prescribed therein, the pledgee may have his/her claim satisfied by means of transferring the pledged property to the pledgee. A pledge arises by virtue of a contract between the pledger and the pledgee, or on the basis of law.

In the event that the rights on the pledged property have been transferred by the pledger to a third party, as a general rule, the pledge remains valid, with the exception of the following cases:

– when the pledged property has been acquired for compensation by a person who did not know and could not have known that the property was the subject of a pledge (No. 2 of Clause 1 of Article 352 of the CC of the RF);

– of the alienation of goods in commerce being the subject of a pledge (Clause 2 of Article 357of the CC of the RF).

The CC of the RF contains general provisions on pledges, and provisions regulating specific types of pledge (pledge of goods in commerce, pledge of securities, pledge of the rights of the shareholders of legal persons, etc.). A mortgage (pledge of real estate) is regulated by a special federal law.[53]

1.2.4.3. Retention of property (Article 359–360 of CC of the RF)

In case of nonperformance by the debtor, a creditor who has property subject to transfer to a debtor, or a person indicated by a debtor, shall have the right to retain the property until the performance of the obligations. If the parties are not entrepreneurs, the retention of property is allowed only for the purposes of securing the obligation to pay for that property, or for the compensation for the creditor’s losses in relation to that property. If, however, the parties to the contract are entrepreneurs, other obligations may also be secured by retention of property.

1.2.4.4. Surety (Article 361–367 of CC of the RF)

Under the contract of “suretyship,” the surety undertakes the duty to the creditor of another person to be fully or partially liable for the performance of its obligations.

The terms of the suretyship, as related to the main obligation, are deemed to be agreed on if the suretyship contract refers to the contract from which the secured obligation arose or will arise. If the surety is an entrepreneur, then the suretyship contract may secure all existing and/or future obligations of the debtor, in a predefined amount.

As a general rule, the debtor and surety are jointly and severally liable towards the creditor. The law or the contract may also establish subsidiary liability of the surety.

The surety who has performed the obligation, obtains the rights of the creditor in relation to this obligation and the rights of the creditor as a pledgee, to the extent that the surety has satisfied the initial creditors’ demands.

1.2.4.5. Guarantee (Article 368–379 of CC of the RF)

By virtue of a guarantee, the guarantor, upon the principal’s request, undertakes an obligation to pay, to the person indicated by the principal (the beneficiary), a monetary sum in accordance with the terms of an obligation set by the guarantor. This is irrespective of the validity of an underlying secured obligation.

The obligations of the guarantor towards the beneficiary do not depend on the main obligation for the security of which the guarantee was issued, as well as on the relationship between the principal and the guarantor, or any other obligations, even if a reference to such obligations is made in the guarantee.

A guarantee may be issued by banks or other credit organizations (bank guarantees), as well as by other commercial organizations. Before June 1, 2015, the CC of the RF only regulated bank guarantees. Guarantees issued by other commercial organizations are new to Russian law.

1.2.4.6. Earnest money (Article 380–381 of CC of the RF)

Earnest money is a monetary sum given by one of the contracting parties to the other towards payments due under the contract. If the party giving the earnest money is liable for the nonperformance of the contract, the earnest money remains with the other party. If the party receiving the earnest money is liable for nonperformance of the contract, it has the duty to pay the other party twice the amount of the earnest money.

1.2.4.7. Security deposit (Article 381.1–381.2 of CC of the RF)

Monetary obligations may be secured by a security deposit given from one party to the other (security deposit). When the circumstances described in the contract arise, the amount of the security deposit is set off towards the performance of the corresponding obligation. If such circumstances do not arise in the period stipulated in the contract, or if the secured obligation is terminated, the security deposit has to be returned, unless the parties agreed otherwise.

53

Federal Law No. 102-FZ “On Mortgage (pledge of real estate),” dated July 16, 1998, // “ConsultantPlus” Legal Directory System