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ARCHIVE FOR 2018    RUSSIAN

Июнь 2018

CONTENT

 

 

Alexey Moroz The Russian Supreme Court’s New Approach to Limitation Period
Case comment on the judgment of RF SC No. 310-ЭС17-13555, 29 January 2018
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Nikolay Andrianov Should a Tenant of Land Pay Rent before Grant of Construction Permit?
Case comment on the judgment of RF SC No. 305-ЭС17-17952, 20 February 2018
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Alexander Latyev Could a Landlord Revoke Its Prior Consent to Sublease?
Case comment on the judgment of RF SC No. 303-ЭС17-13540, 22 January 2018

 

 

Sergey Budylin Is There a Duty to Negotiate in Good Faith, or The Case about Unlocked Door
A Commentary to the Case Walford v. Miles [1992] 1 All ER 453 Traditionally English law has refused to recognise a party’s duty to perform in good faith. The party is obliged to fulfil the contract — end of story. There are no other good faith obligations like those existing in civil law systems. Nor has England recognised a duty to negotiate in good faith. This obligation is believed to be too uncertain to be enforced. Back in 1992 the House of Lords in Walford v. Miles ruled that a duty to negotiate in good faith (without specifying its content) was unenforceable, which rule has applied ever since.
Keywords: England, good faith, inchoate liability, agreement to negotiate
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Kirill Nam History of the Good Faith Principle in Germany from 1900 till 1945
Today, the good faith (Treu und Glauben) principle in the law of Germany is a fundamental one in practically all legal relations between both equal subjects in private law and individuals in the context of relations of power and subordination in public law. The knowledge of historical development of this principle, understanding of social context in which it evolved and of political and economic factors that influenced it can help us get a better grasp of this new and non-trivial category in Russian law. The article looks into the theoretical thinking with regard to the good faith principle in the first period following the adoption of the Bürgerliches Gesetzbuch (the Civil Code of Germany). It then shows the role of World War I and its aftermath in the development of this principle and how the latter effloresced to the full in the Weimar Republic. Finally, using the example of the national socialist period in Germany, the article further demonstrates how the understanding of the good faith principle can be transformed under the influence of political ideology in a totalitarian state.
Keywords: good faith principle, Treu und Glauben, Bürgerliches Gesetzbuch, Germany
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Natalia Platonova Compensation of Damages Caused by the Filing of a Frivolous Lawsuit: Revisiting the Substantive Significance of Procedural Conduct
The article is dedicated to the investigation of the problem of liability for damages caused by the filing of a frivolous lawsuit. It analyzes the practice of UK courts that elaborated the doctrine of liability for malicious prosecution. This doctrine was initially used only in the event of unfounded allegations of criminal misconduct; however, in the case of Willers v. Joyce, the UK Supreme Court extended liability for malicious prosecution to civil lawsuits. The author reviews the arguments against the imposition of liability for a frivolous lawsuit that were expressed in the case of Willers v. Joyce and in the previous practice of UK courts and evaluates them in the context of Russian law. A consistent analysis of the arguments against recognizing the possibility of compensating for damages caused by a frivolous lawsuit leads the author to the conclusion that there are no significant obstacles to the adoption of the doctrine of liability for filing a frivolous lawsuit. This premise, in turn, reflects a more general idea of the substantive significance of procedural conduct.
Keywords: causing harm by frivolous lawsuit, liability for procedural conduct, malicious prosecution, substantive significance of procedural conduct
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Dmitry Salmin Revisiting the Conditions for Limiting the Unjust Enrichment Obligation to the Amount of Monetary Enrichment
The contemporary literature increasingly argues in favor of implementing the doctrine of loss of enrichment in Russian law, following the example of foreign jurisdictions; however, no targeted studies dedicated to this doctrine have been performed until now. This work aims at filling in this gap to a certain extent. The article arrives at the conclusion that the extension of the scope of obligations arising out of unjust enrichment within the examined jurisdictions was accompanied by the implementation of the loss of enrichment defense. The article also contains a systematic review of the elements of the loss of enrichment defence, as defined in foreign law. In the author’s opinion, the liberal approach to the conditions of satisfaction of an unjust enrichment lawsuit adopted in Russian law makes the issue of protecting the interests of a good-faith enrichment debtor under unjust enrichment relevant. However, the existing mechanisms for such protection are far from perfect.
Keywords: unjust enrichment, defence of disenrichment

 

Pavel Praviaschii Proceeds from the Use of Pledged Property: a Review of the Practice of Applying Clause 2 of Article 334 of the Civil Code of the Russian Federation
A pledge covers proceeds from the use of the pledged property by a third party, which equals to the pledge of receivables from such a party. The pledgee may receive such proceeds but it is not clear whether this requires a pledge to be enforced. In bankruptcy, proceeds from use are also encumbered, and enforcement thereof is subject to the same rules as enforcement of the pledge of receivables.
Keywords: pledged receivables, pledge of monies, insolvency (bankruptcy)
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