Журнал ЗАКОН

Case Comment on the Judgments of the Chamber for Civil Disputes of the RF SC No. 42-КГ18-6, 4 December 2018, and No. 11-КГ19-2, 19 March 2019 The author analyzes two recent rulings of the Supreme Court in which similar matters were considered. The Court drew contradictory conclusions regarding such basic insurance law problems as the definition of an insured event, the application of gross negligence rules, and the inclusion of additional conditions allowing the insurer to refuse payment in cases not prescribed by law. According to the author, these diverging approaches may have a reasonable explanation. The problem, however, is that in both rulings their motives are set out quite briefly, which makes it impossible to understand why the approaches are so different. While the author offers a number of possible explanations, including the status of the parties and the type of insurance, she indicates that it would be much simpler for the insurance market to rely on more extensive reasoning in the Supreme Court’s acts and not on guesses.

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Keywords: insurance, life insurance, insured event, gross negligence, insurer’s right to refuse payment

Case Comment on the Judgments of the Chamber for Commercial Disputes of the RF SC No. 307-ЭС19-358, 13 June 2019 Commented case shows that individual bankruptcy process brought into existence two different mortgaged housing regimes. The mortgage creditors’ rights and the mortgage termination grounds vary depending on whether or not the mortgaged housing is the only habitation of the insolvent person. If it is not, then the general rules on mortgage in bankruptcy would apply. In the opposite case a pledge creditor has no room for error: in case of being late to the register he risks losing all the rights based on mortgage.

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Keywords: mortgaged housing, the only habitation of the insolvent citizen, individual bankruptcy, pledge creditor, pledge termination grounds

Case Comment on the Judgement of the Chamber for Commercial Disputes of the RF SC № 304-ЭС18-14031, 4 February 2019 The author considers the main models for reducing the priority of the loans of participants in legal entities and arrives at the conclusion that the optimal solution is to automatically reduce the priority of all loans of the participants of a legal entity, regardless of additional criteria. However, certain exceptions should be provided for, at least in the form of a statutory threshold of minority and a sanation privilege. Moreover, the author explains that the main arguments in support of subordination (the reduction of priority) is the fact that an entity combining corporate control and opportunities to gain unlimited profit from its business cannot compete with creditors that do not have such opportunities on equal terms.

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Keywords: bankruptcy, subordination of loans of participants in legal entities, ways of financing the legal entity

Case Comment on the Judgments of the Chamber for Civil Disputes of the RF SC No. 5-КГ18-22, 5 June 2018, and No. 5-КГ18-195, 16 October 2018 The systemic links between the provisions on the acquisition of property rights in cases arising from development may be misinterpreted. To prevent such interpretation, it should be assumed that the most important for the application of these provisions is Аrticle 454 of the Civil Code, by virtue of which the seller is obliged to convey possession of the thing to the buyer. It is around this provision that all other provisions and interpretations must be built. In particular, if the legal structure of facts sufficient for registration of ownership of the buyer does not include the transfer of possession then this transfer should be available as a part of the procedure of the execution of the contract of sale; if the purchaser has not received possession of the thing and has no way to get it, then he does not obtain a claim (suit) for recognition of his ownership rights; claims for recognition of the ownership of the purchaser permitted by applicable law are possible under the condition of the possession of the thing or must be joined with a suit for the recovery of the things; an investment agreement, if it is not a simple partnership agreement, cannot create ownership of a thing in any other way than as it follows from Аrticle 454 of the Civil Code; the rights from such an agreement cannot be opposed to the proprietary right of a third party acquirer of a thing with whom the plaintiff is not bound by a contract.

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Keywords: acquisition of ownership, purchase and sale agreement, convey of the thing to the buyer, investment contract, simple partnership, double sale, registration of ownership, claim for recognition of the right (absence) of ownership

Commentary to Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991) In most US states, the doctrine of caveat emptor or «let the buyer beware» generally governs real estate transactions. The principle requires that a buyer acts prudently to assess the fitness and value of his purchase and operates to bar the purchaser who fails to exercise due care from seeking to rescind the contract. The buyer can make an inquiry about a material fact, and the vendor is required to disclose the material facts concerning the investigation. If the buyer did not make an inquiry, and the seller’s conduct did not constitute active concealment, the contract would be enforceable even if some defects appear after the deal. Regarding the necessity of giving information which has not been requested, the courts would permit no remedy. However, the question as to which facts can be considered material had not been decided before this case. The court, in this case, analyzed prevailing case law and summarized a formula for the limitation of the principle of caveat emptor. The principle has external limitations: state law that requires active disclosure in real estate transactions; a confidential or fiduciary relationship between the parties; or a contract between the parties to negotiate in good faith or representations of the parties. The principle has a natural limitation: the facts that a reasonable purchaser could not foresee can be material and the buyer’s mere silence can be considered in this case as concealment. In all cases where statutory or contractual limitations were not set and unforeseeable facts would not arise, the principle of caveat emptor prevails in American real estate purchase contracts.

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Keywords: the USA, New York, concealment, rescission, duty to disclose, doctrine of caveat emptor, factual misrepresentation, good faith, fraud

A conceptual approach to the release of leased property from encumbrance as a result of the public sale of such property has not yet been formed in the Russian legal system. In recent years, the importance of this topic has grown in the contexts of both enforcement and bankruptcy proceedings. In the latter case, the complexity of the situation results from the collision of the lessee's desire to ensure the stability of contractual relations with the creditors' diametrically opposed interest in having their claims settled to the maximum extent possible using the lessor's bankruptcy assets. The article suggests considering both an automatic and a mechanical model of releasing property from encumbrance. Under the first approach, encumbrance is cleared at a moment established by law (e.g. as a result of a public auction of mortgaged real estate, the declaration of a rightholder under a franchise contract insolvent, etc.). Under the second approach, the said effect is achieved as a result of the debtor's rejection of the transaction following the procedure established in Art. 102 of the Law on Bankruptcy. The author compares these models with models established in US law using two doctrines for this purpose: 1) free and clear sale (Art. 363 (f) of the Bankruptcy Code); 2) rejection (Art. 365 of the Bankruptcy Code). Since Russian law lacks other alternatives, the key focus of the article is placed on the analysis of the terms and conditions of rejection in bankruptcy as a compulsory stage of presale property preparation.

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Keywords: insolvency (bankruptcy), lease, encumbrance, rejection of a transaction in bankruptcy

The second part of the commentary is dedicated to Clauses 13–33 of the Resolution, which encompasses provisions about acceptance by conduct and late acceptance, standard form contracts, preliminary contracts, framework contracts and contracts performed upon request. The authors draw special attention to issues related to acceptable criteria for differentiating consumers when the terms of a standard form contract are created and to the possibility of repudiation of such contract by a subject obligated to conclude it. The authors discuss the relevance of re-characterisation of preliminary contracts and the conditions for applying it, options for bridging the gaps in essential conditions when concluding the main contract, and the freedom of judicial discretion in determining the moment of the conclusion of the main contract in court. Additionally, problems related to the fate of the deposit securing the preliminary contract and the moment of breach of the preliminary contract are investigated. The authors undertake the analysis of possible models of the framework contract and the scope of its validity and the gap in regulation concerning the validity of certain conditions of the framework contract before conclusion of the subsequent contracts. The article also considers the criteria of contracts performed upon request and the admissibility of establishing maximum and minimum limits on the quantity of the performance.

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Keywords: acceptance, entering into a contract, standard form contract, repudiation of a contract, preliminary contract, recharacterisation, deposit, entering into a contract in court, framework contracts, contracts performed upon request

This article contains an analysis of Russian judicial practice regarding domain disputes as it pertains to the amount of compensation awarded by the courts in favor of plaintiffs in order to eliminate the violations committed by defendants. It also contains a list of examples of the factors that directly affect the amounts of such compensations and examples of court cases in which the courts decreased the amounts of initial claims of the plaintiffs for compensation. In addition, the article discusses the frequency of the involvement of individual administrators of domain names as defendants. Based on the analysis, the author talks about steps that will make judicial practice more unified and predictable in this area while still maintaining an individual approach to the consideration of each such dispute.

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Keywords: court practice, domain disputes, domain names, trademarks, firm names, compensations, Kardamon

The article contains a review of the recently published monograph of T.S. Boyko. While noting the high quality of the work, the author, nevertheless, mentions several drawbacks and arguable points in the monograph (the need for the concept of oppression and errors in the description of Russian law).

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Keywords: corporate law, non-public companies, minority shareholders