Журнал ЗАКОН

Case comment on the judgment of RF SC No. 307-ЭС16-19959, 20 April 2017

Case comment on the judgment of RF SC No. 306-ЭС15-18494, 20 February 2017

Case comment on the judgment of RF SC No. 305-ЭС16-18302, 6 March 2017

Case comment on the judgment of RF SC No. 304-ЭС16-16246, 24 March 2017

Case comment on the judgment of RF SC No. 85-КГ16-13, 17 January 2017

This article examines key problems with applying articles 157 and 327.1 (relating to contingent transactions and contingent liabilities) of the Civil Code of the Russian Federation. The author comments on the higher courts’ approaches, analyses contentious questions, and offers his solutions for some of the cases with special emphasis on the problem of making a reciprocal obligation subject to a suspensive condition under the synallagmatic contract.

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Keywords: contingent transaction, contingent right, contingent liability, suspensive condition, resolutive condition

In the European tradition, the evolution of the legal doctrine related to the effect of rescission resulting from a breach of contract has been affected by many different factors. A whole range of issues have been resolved through classification of restitution claims (as contractual or non-contractual), establishing the party in breach, or depending on other criteria. The inherent inconsistencies and eclecticism in the general doctrine of the effect of rescission remain partly existent. To a certain extent, the Russian doctrine may be developing in the same direction. The impact of a breach of contract on the effect of rescission becomes highly relevant as one needs to understand and assess the purpose and meaning of this particular criterion among other factors shaping the model of restitution.

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Keywords: breach of contract, termination, restitution

The State Duma is expected to pass a reform bill on inheritance law. More specifically, the bill introduces the concept of «testamentary trust», a trust which is created as specified in a person’s will. The drafters intend that such trusts will serve not only the public but also private interests, i.e. those of its beneficiaries. The author of this article finds the current version of the bill unsatisfactory in many respects. First, it ensures no proper balance between i) the interests of beneficiaries within the trust, ii) the interests of beneficiaries and the trust management, and iii) the interests of beneficiaries and their creditors. A substantial revision of the bill is necessary. Otherwise, the testamentary trust could be used as an ideal arrangement for various bad-faith schemes, including those enabling a person to own the property but simultaneously enjoy a full legal protection of the owned property against creditors’ claims.

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Keywords: inheritance law, non-profit foundation, testamentary trust, civil law reform, bad faith

Reflections on the RF Supreme Court Judgment in Case No. А40-189497/2015 of 28 April 2017 The article analyses legal relations between state authorities and companies which buying-out land under buildings that have been privatized, based on the description of these relations given in the judgment of the Supreme Court of Russia of 28 April 2017 No. А40-189497/2015. This analysis demonstrates that the purchase of land should be considered in this case not as a contractual relation but as a relation in the domain of public law. It follows that the current approach which requires the price of the purchase to be determined according to full or almost full cadaster value of the land is wrong. The purchase in this case is a state service and its tariff should be adjusted according to this conceptual understanding.

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Keywords: real estate, privatisation, land plot