Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Commercial Disputes of the SC RF No. 305-ЭС20-4196, 26 June 2020 If a lease agreement has been concluded between the parties, but the possession has not been delivered to the lessee, the latter’s refusal to accept the object does not allow the lessor to sue the tenant to compel him to pay the rent and thus perform the lease agreement in kind. The lessor’s remedies are limited to the compensation of damages the amount of which is controlled by his obligation to take actions to mitigate losses, i.e. to find a new lessee. This article gives an assessment of this approach.

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Keywords: lease, creditor’s duties, performance in kind

The article develops a theoretical basis for the obligatio propter rem (concept, legal nature, characteristics and types of such obligations) and investigates its forms in different legal systems. The author concludes that the propter rem, or qualitative, obligations, which automatically bind any subsequent owner of a thing or holder of a limited right in rem, modify the right in rem and change its quality. Qualitative obligations have personal content but are subject to the regime of rights in rem. The author develops a classification of obligationes propter rem based on what their content is, whether they could be terminated without terminating the right in rem burdened by them, whether the transferor remains obliged after the transfer of the burdened property and whether the debt accumulated by the transferor follows the burdened property. Based on these criteria the article analyses certain institutes that could be considered as obligationes propter rem in the Netherlands, Scotland, England, and France. These are kwalitatieve verplichting (qualitative obligations) in the Netherlands, real burdens in Scotland, certain cases of positive covenants running with land in England (together with proposed introduction of land obligations), obligations réelles environnementales (environmental real obligations) in France. Some Russian examples of obligatio propter rem and institutes are mentioned. In addition, the paper consider some forms that are not obligationes propter rem.

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Keywords: obligatio propter rem, qualitative obligations, real burdens, kwalitatieve verplichting, obligations réelles environnementales, positive covenants running with land

This second part of the commentary analyses legal positions set out in paragraphs 12–21 of the Review of the Court Practice on Some Issues of Application of Legislation on Business Companies Legislation approved by the Presidium of Supreme Court of Russia on 25 December 2019. In particular, authors address the following issues: a) challenging shareholders’ resolutions; b) convalidation of void shareholders’ resolutions; c) buy-out of shares in JSCs; d) impact of shareholders’ approval on the director’s liability; e) invalidation of major transactions; f) approval of liquidation value of preferred shares. Some of the provisions of the Review are really pathbreaking and significantly deviate from the existing court practice. In particular, this is true in respect of the following issues: challenging a shareholders’ resolution due to an abuse by a majority shareholder and convalidation of shareholders’ decisions adopted in the absence of the required number of votes. Authors of this commentary provide a critical evaluation of the Review from the perspective of dogmatic, law policy and practical considerations, and mark some issues that require further analysis and discussion.

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Keywords: corporate dispute, shareholders’ resolutions, abuse of right, convalidation, buy-out of shares, major transaction, shareholders’ approval, director’s liability, liquidation value

Analytical Сommentary on the Judgment of the Civil Cassation Department of the Governing Senate No. 48 for the First Half of 1869 (Varvara Danilova v. Nikolai Remer) The paper analyses one of the сentral principles of modern civil procedure — the adversarial principle. It considers the Judgment of the Civil Cassation Department of the Governing Senate issued 150 years ago which provides some good material on the problem of the limits of the court’s intervention in legal process. It is shown that the arguments justifying such intervention have not changed over the years. The main arguments — the protection of the weak side in the process, the suppression of unfair behavior, the need to find the material truth — are considered in detail. A critique of these arguments is proposed. Special attention is paid to the search for material truth as the goal of the process. The continental approach and the Anglo-American common law approach to the court’s assessment of evidence are compared, and it is shown that the Civil Cassation Department of the Governing Senate 150 years ago was more inclined to use the Anglo- American approach than the continental one. The role of judges in ensuring the implementation of the adversarial principle is also noted.

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Keywords: the principle of adversarial proceedings, the purpose of the legal process, evidence, the Civil Cassation Department of the Governing Senate, the judicial reform of 1864