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Март 2016




Stanislav Egorkin Partial Invalidity of a Transaction: Some Procedural Aspects
Case comment on the judgment of RF SC No. 301-ЭС15-11442, 8 December 2015


Nikolay Andrianov Additional Works under a Public Contract
Case comment on the judgment of RF SC No. 303-ЭС15-13256, 26 January 2016
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Elena Ostanina Minima de malis: On Restitution in Bankruptcy
Case comment on the judgments of RF SC No. 303-ЭС15-11427 (1), No. 303-ЭС15-11427 (2), 24 December 2015
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Kirill Chorakaev Could Antitrust Authority Control Court Bailiff-Executors
Case comment on the judgments of RF SC No. 309-КГ15-12204, 22 January 2016, No. 309-КГ15-12011, 25 January 2016
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Yaroslav Karnakov Public Credibility of Companies Register and the Violation of Preemption Right
Case comment on the judgment of RF SC No. 309-ЭС15-10685, 28 January 2016
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Artem Karapetov An Option to Sign the Agreement and Option Agreement According to the New Edition of the Civil Code of the Russian Federation
The article analyses new rules of the Russian Civil Code for option and option contract, reasons for adopting these rules and possible ways of their practical realisation. Article 429.2 of the Russian Civil Code regulates an option to conclude a contract. An option is an agreement by which one party gives the other party an irrevocable offer to make some major contract in the future in exchange for a consideration or without it. Article 429.3 of the Russian Civil Code regulates an option contract, i.e. a major contract that stipulates that the performance of obligations are to be called by one of the parties. These two provisions establish a legal infrastructure for concluding widely practiced option transactions under Russian law.
Keywords: option, option contract
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Konstantin Sklovskiy Payment under a Guarantee and Unjustified Enrichment of the Beneficiary
Payment under transaction could lead to the unjustified enrichment of the payee irrespective of whether the transaction is void. The basis for the transfer of property is established by the transaction but differs from it. Therefore, it is argued that the obligation under the transaction as the basis for performance and the basis for the transfer of property should not be regarded as the same thing. The author uses these arguments to demonstrate that the beneficiary under a guarantee could be unjustifiably enriched at the expense of the guarantee’s principal even if the guarantee itself is valid. Although academics pay almost no attention to this issue, courts readily acknowledge that the beneficiary under the a guarantee could be enriched by the payment that she received.
Keywords: unjustified enrichment, restitution, independent guarantee
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Andrey Pavlov Two Questions about Limitation of Actions: What Did the Supreme Court Say and What It Did not Say
This article discusses two new rules on the limitation of actions in the Russian Civil Code. First rule is that the limitation period could not be longer than 10 years from the moment when the cause of action arises. Second rule is that expired limitation period should start running afresh in case of written acknowledgement of the claim in question. The author analyses these provisions in light of their interpretation by the Supreme Court of the Russian Federation in the recent Ruling No. 43 of 29 September 2015.
Keywords: limitation of actions, interruption of the limitation period, suspension of the limitation period, acknowledgement
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Sergey Budylin Tort or Breach of Contract? Representations and Warranties in Russia and Abroad
The article is devoted to statements of facts related to contracts. In English and American law such statements are called representations and warranties. There is a fine difference between them: the former are non-contractual statements, whereas the latter are part of the parties’ contract. In the first part of the article the author reviews the approaches to the problem adopted in England and the U.S. It appears that, notwithstanding all the differences between the legal systems, the structure of legal consequences that appear in case of false statements is similiar. The falsity of a representation (a non-contractual statement) may result in the contract rescission and awarding damages (normally, in case of party’s fault) assessed under tort law rules. A breach of a warranty may result in the contract termination (if the breach is sufficiently serious) and awarding damages (regardless of fault), assessed under contract law rules.
Keywords: warranties, representations, culpa in contrahendo, England, US
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Kirill Novikov Exceptio Is not Subject to the Statue of Limitation: Roman Rule and the New Position of the Plenum of the Supreme Court of Russia
The article analyses one of the positions formulated in the Ruling of the Plenum of the Supreme Court (SC) of the Russian Federation No. 25 «On Application of Certain Provisions of Section I of the First Part of the Civil Code of the Russian Federation by the Courts», 23 June 2015. According to the SC, limitation of actions does not apply to an objection by the defendant who refers to the invalidity of a transaction from which the plaintiff derives his claim. The article explores the origin of the rule in Roman law maxim «exceptio is not subject to the statute of limitation» and the possibility of its application in modern conditions. It is argued that the SC’s interpretation is not related to the Roman notion of exceptio. However, it should be supported with reference to modern Russian law.
Keywords: Roman law, exceptio, statute of limitation, void transaction
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