Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС19-13326, 23 December 2019 In this case, the Supreme Court acknowledged that not only the persons controlling the debtor, but also their family members, including minor children, may be subject to subsidiary liability in bankruptcy under certain conditions. In particular, director’s child over 14 can be brought to subsidiary liability if the director gave him valuable property and the child knew or ‘could not help but know’ that it was done to defraud creditors. This position of the Supreme Court appears to be erroneous to the authors. It is correct that the property given to a child by the director can, in principle, be taken from the child. However, this could happen only if there are proper grounds and according to due process. Such grounds may be the invalidity of the gift transaction or a tort on the part of the child, but not subsidiary liability in the bankruptcy of the parent company. There is no competence of the arbitrazh court hearing a bankruptcy case to hear such a claim against a director’s child.

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Keywords: bankruptcy, subsidiary liability, Supreme Court

Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС19-13326, 23 December 2019 The commentary considers the approach of the Russian Supreme Court to the issue of civil liability for the damage caused to creditors as a result of deliberate actions aimed at concealing from them property belonging to the persons controlling the debtor. As a result, the creditors will not be able to sell that property to cover the outstanding amounts in case of debtor’s bankruptcy. The author concludes that this legal position confirms the validity of the tort theory of creditor contestation of transactions. In addition, the author draws attention to the problem of the operation of legal rules on subsidiary liability in time and makes some suggestions on how this problem should be resolved.

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Keywords: bankruptcy, subsidiary liability, tort liability, Supreme Court

Judgment of the Supreme Court of Germany № X ZR 107/16, 18 June 2019, with Commentary In this decision, the German Supreme Court dealt with the theoretical aspects of the doctrine of significant change of circumstances (the doctrine of avoidance of the basis of the transaction) in relation to the gift contract. The court clearly explained how representations of the parties to the contract of donation about the presence of certain circumstances can form the basis of the transaction in the case of donation. This decision should be interesting to Russian lawyers first of all from the point of view of a better understanding of the legal ideas included in art. 451 of the Civil Code of the Russian Federation. Moreover, the application of the doctrine of significant change of circumstances in relation to the gift contract has probably not been covered by the Russian doctrine at all yet.

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Keywords: significant change of circumstances, loss of the basis of the transaction, gift contract

The article deals with non-monetary civil law remedies available to private individuals to protect them from antimonopoly law violations in the USA and Russia. Along with recovery of losses, they serve as important tools to stop antimonopoly regulation violation and prevent its recurrence. Their list is not closed in the U.S. and Russia due to the fact that each specific case of antimonopoly law violation may require different remedies. The article pays special attention to the problem of qualification of transactions violating the antimonopoly legislation requirements. Neither at the legislative level, nor in court practice has a decision yet been made to recognise such transactions as null and void or voidable.

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Keywords: non-monetary methods of protection, violations of antimonopoly legislation, invalidity of transactions, liability, prevention of violations of antimonopoly legislation

The article studies the consequences of the debtor’s breach of the obligation to fulfill the pledged claim (receivable) in favour of the mortgagor, as opposed to the nominal creditor who pledged the claim. The author criticises the literal interpretation of the rules of the Civil Code of the Russian Federation, which in fact allows the debtor and the mortgagor to ignore the right of the pledgee to receive performance under the pledged claim, giving him only the right to debt acceleration. As an alternative interpretation, it is proposed that, as a general rule, a debtor duly notified of the pledge of a claim and of a change of the person authorised to accept execution may only terminate its obligation by giving perfomance to the mortgagee. At the same time, the right to debt acceleration is an additional protection mechanism for the latter, which does not exclude the use of the main way to extract value from a claim — the right to independently receive the performance of the pledged obligation. The author notes that dogmatic explanation of this mortgagee’s right can be seen: 1) in the institute of creditors’ subordination (where the mortgagee, being one of the creditors along with the mortgagor, has the exclusive right to receive execution under the pledged obligation); 2) in the institute of substituting representation (where the mortgagee, being the legal representative of the mortgagor, substitutes the latter in terms of powers related to obtaining execution under the pledged obligation). At the same time the paper argues that the said right of the mortgagee to receive performance should be excluded in the event of bankruptcy of the mortgagor, taking into account the need to protect interests of other creditors of the latter. Such restriction should not deprive the pledgee of the right to receive satisfaction of his claims (within the limits established by the Law on Bankruptcy) prior to unsecured creditors from the property delivered to the bankrupt’s assets by the debtor under the pledged obligation.

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Keywords: enforcement of obligations, pledge of receivables (claims), pledge

There is a rule in the Russian legislation according to which if one person holds a pledge to secure several obligations the priority of the satisfaction of the obligations should be determined according to the due time of their performance. The author discusses how these rules of priority should work when in the course of fulfillment of the obligations the creditors change so that there are several of them instead of one. This makes it necessary to distinguish between the rules on the priority of obligations fulfillment in favour of several creditors and the rules on the repayment of homogeneous obligations. The author concludes that part 5 of art. 46 of the Russian Law on Mortgage does not establish special rules on priority, but only determines the rules by which repayment of homogeneous obligations is made. The article demonstrates that the border between different priority rules is not impenetrable, and the set of rules applicable should be determined at the time of mortgage enforcement. The article also discusses the problems associated with determination of priority of obligations fulfillment based on the due time of their performance.

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Keywords: pledge, pledge ranking, creditors’ priority

Receivables have long been sold and purchased. This often raises the problem of the protection of those who buy them. The article provides a brief overview of the main models of such protection: the principle of abstraction and the rules on good faith purchase. It is suggested that the principle of abstraction cannot cover all practical nuances of transfer of rights. Therefore, the introduction of the protection of a good faith purchaser of a receivable is a preferable option. However, given that each model has its own drawbacks, the main issue is not which one will be chosen by the legislation but whether the good faith assignee is to be protected.

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Keywords: assignment, abstraction principle, good faith purchaser

Dispositive actions of the parties (waiver of claim, recognition of the claim, settlement agreement) are subject to court control, namely verification of compliance with the law. Dispositive actions of the parties have different legal nature and therefore the approach of the court to such verification should be different. The plaintiff’s waiver of claim should be checked only for compliance with the procedural law, while the recognition of the claim and the settlement agreement — both procedural and material. The criteria for such differentiation are the features of the legal force of judicial acts, which are based on the dispositive actions of the parties. A check for compliance with procedural law presupposes that the court determines whether the party freely formed a desire to take an dispositive action, whether it was adequately expressed, whether the party understands the consequences of such dispositive action. Verification of compliance with the material law of the recognition of a claim or a settlement agreement concluded involves an ex officio determination by the court whether the transaction underlying the said dispositive actions is invalid, regardless of whether it can be considered null and void or voidability.

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Keywords: waiver of claim, recognition of the claim, settlement agreement, court guidance principle

The article considers problems arising in court practice regarding the application of the rules on invalidity of a tender and the contract concluded with the winning bidder (point 2 of art. 449 of the Civil Code of the Russian Federation, CC RF). Author analyses the scope of application of the special rules of art. 449 CC RF and general rules on invalidity of transactions in the first part of the article. Incorrect determination of the scope of the mentioned rules results in mistakes related to the application of reduced objective period of limitation. Additionally, author demonstrates that a claim for invalidity of a tender should not be considered as an autonomous claim and proves this by providing examples from the court practice. The second part of the article is dedicated to the factors restricting the possibility of challenging a tender and an agreement concluded with the winning bidder. The article describes several factors — the performance of the agreement, impossibility of restitution, win probability for the claimant, the good faith of the winning bidder. Author discusses the controversial trends of the court practice that developed in the absence of legislative regulation. Author proposes solutions for some of the problems.

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Keywords: tender, invalidity of tender, invalidity of contract, objective period of limitation