Журнал ЗАКОН

Case Comment on the Judgment of the Chamber for Civil Cases of the RF SC No. 78-КГ20-24-К3, 25 August 2020 and No. 53-КГ20-10-К8, 6 October 2020 The article compares two similar cases heard by the Supreme Court of the Russian Federation, where the court surprisingly came to drastically different conclusions, allowing the plaintiff to contest the settlement agreement on obligatory motor insurance in one case and denying it in the other case. The author comes to the conclusion that it is, in principle, possible to apply the rule on mistake (art. 179 of the Russian Civil Code) where the insurer failed to inform the beneficiary of the significant adverse legal effect of such settlement agreement. The problem, however, is the lack of consistency on the issue of mistake in the court practice. There are many examples with similar factual circumstances, where the rights of the customer of financial services are clearly violated, but the court refuses to apply the concept of mistake.

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Keywords: insurance, obligatory motor insurance, insured event, mistake

The Ruling of the Constitutional Court of the Russian Federation No. 15-П of 26 April 2021 recognises the possibility of levying execution on a debtor’s only dwelling during bankruptcy proceedings. The article suggests that foreclosure of the only housing can be done in at least two ways. The first is the sale of the luxury dwelling and the purchase of a replacement dwelling. This is mentioned in the ruling. The second one, suggested by the author, is the division of the luxury home. In addition, the author suggests specifying the criteria of executive immunity (location of the dwelling, its size and its value) used in the ruling. In particular, it suggests to regulate by the law a uniform normative size for the replacement housing.

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Keywords: insolvency (bankruptcy), personal insolvency, the executive protection, the only housing

The article examines the dogmatic and political-legal issues associated with the use in practice of conditions on the form of transactions to be performed by the parties in the future. Possible approaches to the permissibility and legal nature of such conditions and their ‘enforceability’ are described: the main arguments for and against each of them are analysed and the relationship of the models to the general theoretical views on the transaction and the form of transaction is demonstrated. As a result, the author concludes that the most balanced approach is the model of the following presumption: a transaction committed contrary to previously established requirements on its form shall be invalid unless the parties’ intention to waive the requirement is proved at least ad hoc.

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Keywords: form of transactions, voluntary form of transactions

The article considers legal regulation of redomiciliation in Russia, Delaware (USA), Cyprus and the British Virgin Islands, investigates to what extent legal rules on this matter correspond to the purposes of redomiciliation, and demonstrates that the legal regulation of the redomiciliation in Russia is ineffective. The main goal of the article is to create a new framework for legal regulation of the redomiciliation in the Russian Federation, based on research of foreign laws, which would increase the efficacy of the Russian solution. The article suggests that redomiciliation should not depend on making investment in economy of the Russian Federation, that redomiciled companies should have the right of free redomiciliation from Russia, and that the redomiciling company should obtain consent/permission for redomiciliation from the previous jurisdiction.

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Keywords: redomiciliation, offshore, change of the company's personal law, deoffshorisation, corporate law

The Supreme Court of the Russian Federation has created the saldo theory in respect to bankruptcy set-off against closely connected rights. In this theory set-off is regarded as possible action due to reciprocal character of obligations arising from the agreement. Therefore, saldo does not affect the debtor’s estate and does not create a creditor’ preference. New theory allows to set the financial result of the agreement in bankruptcy procedures if the parties entered into agreement prior to the insolvency. Saldo theory is applicable to civil relationships beyond the bankruptcy but civil law doctrine has not been distinguishing saldo (netting) and set-off. The author evaluates economic and legal factors for identifying a new category, essential discrepancies between set-off and saldo, the consequences of the application of saldo for the insolvent debtor. However, saldo is subject of the contest in case of unjustified enrichment or willful harm to creditors. In order to avoid abuse of the creditors the courts have to evaluate equivalence, validity of the obligations and exclude applying the theory to the creditors related to the insolvent debtor. Criteria for applying saldo theory to the linked contracts, losses and contract penalties should be developed in doctrine and practice. The author analyses cases and provides recommendations for judicial and non-judicial application of the doctrine.

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Keywords: insolvency (bankruptcy), saldo theory, set-off, linked contracts

This work compares three systems having to do with the protection of the buyer when some qualities of the sold object are absent: «caveat emptor», liability for latent defects and breach of contract due to lack of conformity. In order to distinguish between the last two abovementioned systems (liability for latent defects and breach of contract due to lack of conformity) this work tries to build the concept of «system of remedies». Likewise, this work raises the following question: may the system of liability for breach of contract (generated in the international sales of goods) be applied to other kinds of sale? The main problem that comes from the application of the system of breach of contract to all sales lies in the remedy of damages.

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Keywords: contract law, sale, contractual liability, seller’s liability, damages