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ARCHIVE FOR 2018    RUSSIAN

Май 2018

CONTENT

 

 

Andrey Gromov Protecting Real Estate Investment
Case comment on the judgment of RF SC No. 310-ЭС17-12472, 7 December 2018
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Maria Erokhova Willful Loss of Possession and Sale at a Public Auction
Case comment on the judgment of RF SC No. 5-КГ17-214, 12 December 2017
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Anna Arkhipova Insurer’s Responsibility for Defective Nonpecuniary Compensation: Starting Troubles
Case comment on the judgment of RF SC No. 78-КГ17-83, 14 November 2017
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Anton Tomsinov Late Payment in Credit Sale and Seller Protection Mechanisms
Case comment on the judgment of RF SC No.304-ЭС17-11435, 30 November 2017
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Ekaterina Usmanova A Recent Case on Title Security
Case comment on the judgment of RF SC No. 5-КГ17-197, 21 November 2017
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Vadim Vogel Relief from Liability for the Quality of Real Property and Deception by Non-Disclosure
Judgment of the Supreme Court of Germany of 21 July 2017 V ZR 250/15 with a Comment The article considers the judgment of the Supreme Court of Germany that touched the issue of when the seller of a real property could be exempt from the liability for its quality. The analysis focuses on different aspects of the problem: duty of the seller to disclose information on the quality of the thing, burden of proof, warranties of the previous seller. The most important issue is whether suspicion that the land was contaminated should be regarded as diminishing quality of the land as a commodity.
Keywords: deceit, sale, quality of goods, real property
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Sergey Budylin The Сase of a Fired Coach, or The «Take or Pay» Condition in the Football Industry
A Commentary to the Case Berg v. Blackburn Rovers Football Club & Athletic Plc [2013] EWHC 1070 (Ch.) (29 April 2013) This case was decided by the High Court of Justice of England and Wales. The claimant had been dismissed as a manager of a football club after a short period and sued for compensation under the terms of his employment contract. The compensation was for a sum equal to his unexpired salary for the remainder of the fixed term. The club submitted that payment in full would be a penalty (not permitted in English law) and the managing director lacked authority to agree the contract. The High Court, however, concluded that the disputed payment would not be a penalty because this is not a payment for breach of contract but a payment that becomes due in a valid manner. Regarding the question of authority, the managing director of the football club was found as having the usual authority of someone holding that office; the alleged restrictions had not been revealed to the manager. Finally, the High Court decided in favour of the claimant.
Keywords: England, take or pay, managing director’s authority, liquidated damages, football
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Polina Lomakina Joint Spouses’ Debts in Case of One Spouse’s Insolvency
The article analyses what happens to joint obligations (debts) of the spouses if one of them goes bankrupt. The author suggests that if a creditor’s claim is based on a joint debt the creditor could also sue the bankrupt’s spouse to recover the part of the debt that is not covered by bankrupt’s assets. However this claim could only be brought after expiration of the original term of the obligation. The fiction that term of the obligation is expired operates only within bankruptcy proceedings and applies only to the bankrupt but not to his spouse. Furthermore, the author considers the situation when bankrupt’s spouse performs their joint obligation in order to bring the claim against bankrupt’s assets. This tactics could be used by bad faith spouses who wish to save their assets from creditors. The article suggests some options against this practice.
Keywords: joint debts of spouses, joint matrimonial property, insolvency of a married person, bankruptcy (insolvency)
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Ivan Belousov Subordination of Loan Claims of Corporation Members in Bankruptcy Proceedings
This article discusses the scope of subordination of shareholder loans in corporate bankruptcies. The first section looks at relevant domestic court decisions, primarily the Supreme Court judgments, ranging from disallowing to allowing subordination of shareholder loan claims as interest-related or risk-related claims in bankruptcy. The second section describes foreign jurisdictions that subordinate shareholder loan claims in corporate bankruptcy cases. And the third section provides an overview of the reasons and requirements for subordination that might be used in Russian litigation practice.
Keywords: subordination, bankruptcy, shareholder loans
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Stanislav Medik Can a Creditor Assign His Rights under a Guarantee Separately from the Rights under the Secured Contract?
The article analyses the issue whether a creditor could assign his rights under a guarantee separately from the rights that are secured by the guarantee. Modern Russian and European law do not answer this question directly. The availability of such an assignment depends on the understanding of the nature of guarantee and features of an accessory obligation (guarantee being an example of such an obligation). Modern Russian as well as Western doctrine thinks that the obligation of the guarantor and the secured obligation are two separate obligations. The accessory nature of the guarantor’s obligation could in turn be seen in the five features: its creation, its extent, its ability to follow the main obligation, its termination and its enforcement. Most of Russian and European scholars consider that a separate assignment of rights under a guarantee is impossible because those rights should follow the main obligation. They think that this is one of the essential features of a guarantee. The author suggests nevertheless that there are no substantial obstacles for allowing an independent assignment of guarantee rights. This type of assignment could be a valuable opportunity for the market. It could function as a financial instrument based on risk (aleatory contract) and could be used in same way as the sale of priority in pledges.
Keywords: accessory rights, guarantee, securing obligations, assignment of security rights
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Lyubov Doroshenko A Case Law Review of Revised Article 328 (3) of the Russian Civil Code
This paper presents an overview of cassation court judgments under the revised art. 328 (3) of the Civil Code of the Russian Federation, which took effect on 1 June 2015. The author explores the application of the novelty by courts and evaluates its impact on the existing judicial approaches to the matters under review. In particular, the author focuses on the issues of whether it is possible to order payment of an advance, and impose penalty or interest under art. 395 of the Civil Code for late payment of an advance if the claimant has not performed his obligation. Another question is whether it is possible to apply art. 328 of the Civil Code to claims that do not ask for specific performance of a contract.
Keywords: article 328 of the Civil Code of the Russian Federation, counter-performance of obligation, synallagma
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