Журнал ЗАКОН

The article examines how contracts and obligations are affected by potestative conditions and other events that depend on parties to the contract. In the second part of the article author distinguishes potestative conditions from related phenomena and addresses the problems associated with the inclusion of these conditions in contracts and obligations. The difficulties caused by potestative conditions are viewed through the prism of the interests of both the creditor and the debtor. The author demonstrates how the person who does not control the potestative condition could effectively protect his rights.

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Keywords: potestative condition, potestative right, conditional obligation, conditional contract, civil law remedies

It is not entirely clear for Russian lawyers what should be regarded as a trade name. Author draws this conclusion from the analysis of the Russian legislation, court practice and academic works. The essence and nature of trade name could be understood through the positive experience of foreign countries. The introduction of this type of intellectual property is caused by the following needs: (1) identification of business among others and (2) developing of brand awareness of consumers. For these reasons, a trade name usually takes form of a fancy word, abbreviation or contraction. This should eliminate or significantly reduce the risk of consumers' confusion. It is implied by the Russian legislation that the origin of the exclusive right to a trade name depends on recognition of an enterprise as a complex asset (art. 132 of the Civil Code of the Russian Federation). However, the rules regarding complex assets still need clarification. That makes protection of exclusive right to trade name almost impossible in Russian law.

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Keywords: trade name, trade mark, business, intellectual property, commercial designation

The author considers that the forced exclusion from corporate organisations has a twofold legal nature. On the one hand, it could be described as a type of corporate liability. On the other hand, it could be understood as a special way to protect corporate rights. In this light, the recent judgment of the Supreme Court of the Russian Federation, which rejected exclusion of members of a company in case of deadlock, could be criticised. But this is not only the court’s fault. The current legislation, including the Civil Code of the Russian Federation, does not fully take into account the legal nature of the exclusion from a legal entity and needs to be improved.

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Keywords: legal entities, exclusion from a legal entity, corporate responsibility, corporate method of protecting civil rights, corporate conflict, deadlock

Unjust enrichment and restitution are considered as different legal grounds for an action in Russian law. Restitution is used to return assets that were transferred under an invalid contract. This article analyses the judgment of the Economic Disputes Chamber of the Supreme Court of the Russian Federation which allowed to bring an action for unjust enrichment after a claim for restitution was dismissed. This seems to overlook a theoretical prohibition on actions that differ only in legal grounds. However, the author argues that this is not the case. He demonstrates that the court allowed the new suit because of the change in circumstances occurred after the first claim was dismissed. And these new circumstances provided new real cause of action.

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Keywords: cause of action, subject of the claim, identity of claims

According to Russian law, land plots, buildings and sections in buildings are regarded as different types of immovable objects. But it is not clear, whether a building and a section in it (e.g. an office or a flat) could co-exist simultaneously as independent properties, and be separately registered. The common answer in the case law is “no”: if a section in a building is registered as a separate object, the building itself turns into a set of elements: foundation, walls, roof, etc. These elements become common property of owners of the building's sections. This creates some practical questions. What about buildings as autonomous type of real property? The law is absolutely clear about it. What about registration of leases? Under Russian law, a lease for a period longer than one year should be registered. If we treat a roof as a separate thing, this could be useful in some regards. For instance, we do not need to register rights to it because a roof itself is clearly not an immovable object. The drawback of this approach is that without registration our right becomes less reliable and protected. The article states that in Russian law buildings and their sections can be treated as immovable objects that exist simultaneously.

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Keywords: building, constructive elements of building, section of building, lease