Журнал ЗАКОН

Case Comment to the Judgment of the Chamber for Civil Cases of the SC RF No. 46-КГ22-31-K6, 13 February 2024 The author analyses the judgment of the Chamber for Civil Cases of the Supreme Court of the Russian Federation dated 18 October 2022 № 46-КГ22-31-K6 and concludes that the Chamber therein erroneously failed to consider the existence of a contract of sale between the plaintiff and the defendant. The disputed contract is valid despite the seller’s representative having concluded it solely for appearances, without the intention of creating the corresponding legal consequences. The article characterizes the representative’s action as an expression of will with a secret clause, which, contrary to the German BGB, has not been specifically regulated in Russian law.

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Keywords: representation, secret reservation (Geheimer Vorbehalt, Mentalreservation), bargains, fictitious transaction, employer’s tortious liability

Case Comment to the Judgment of the Chamber for Economic Disputes of the SC RF No. 305-ЭС23-18507, 13 February 2024 The article discusses the position taken by the Judicial Chamber for Economic Disputes of the Supreme Court of the Russian Federation in its Judgement No. 305-ЭС23-18507 dated 13 February 2024 regarding the service provider’s obligations under a service contract and the boundaries of its liability limitations. Based on historical and comparative legal analysis, the author argues for considering the subjective characteristics of the debtor when determining the content of their obligations and offers a justification for lowering the standard of proof for the creditor. In general, the author agrees with the Supreme Court’s position and emphasizes that it is inadmissible to limit the service provider’s liability for gross negligence and to set the performance standard below that of an average professional in the relevant field.

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Keywords: law of obligations, service contract, civil liability, contractual liability, limitation of liability

The article characterises and critically analyses the grounds for forced termination of ownership of land plots due to their non-use for their intended purpose. To clarify the semantic content and assess the effectiveness of the provisions of art. 284 of the Civil Code of the Russian Federation, it is revealed that their target orientation is the protection of public interests. The publication formulates four conditions under which the public authorities may initiate the procedure of land seizure. It is proved that the owner’s obligation to develop the land plot within the established time limits can be recognised as an in rem obligation. Monitoring of law enforcement has shown that courts have different interpretations regarding which land plots are intended for farming. Meanwhile, their classification as such is one of the conditions for their compulsory withdrawal. The authors argue for the inclusion in art. 284 of the Civil Code of the RF of an indication of the category of the land plot (agricultural land), as well as the type of permitted use, particularly horticulture. Since these definitions have a clear understanding, clarifying the wording of art. 284 of the Civil Code of the RF will bring legal certainty and thus increase the effectiveness of the institution of forced termination of ownership.

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Keywords: property law, plots, forced taking, termination of rights, obligations, intended purpose

The article attempts to analyse the legal relations arising between the represented, the representative, and the third party in the situation when the representative concludes a transaction without being authorised to do so. The article questions the relevance and fairness of the regulation enshrined in art. 183 of the Civil Code of the Russian Federation. Analyzing, firstly, the binding of an unauthorized representative by the concluded transaction (as stipulated in para. 1 of the art. 183 of the RF CC), and, secondly, the retrospective effect of approval of the transaction by a false representative (as stipulated in para. 2 of art. 183 of the RF CC), the author concludes that the existing regulation requires adjustment and modification. Regarding the first issue, the author notes that a bona fide person should not be bound by a transaction without authority. As for the approval of the transaction by the falsely represented, the author believes it is more appropriate to apply the retrospective effect.

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Keywords: representation, bargains, void transactions, unconcluded transaction, transaction approval

This article addresses practical issues that arise in the application of foreign law to the charters of international companies redomiciled to Russia. Russian law allows shareholders of redomiciled international companies to retain certain provisions in their charters that contradict Russian law and are subject to the law of the country of initial registration. The author conducts a statistical study and determines that the most frequent redomiciliation to Russia is from the Republic of Cyprus and the British Virgin Islands, where corporate legislation is more flexible than in Russia. The article considers the issues attached to the ‘transfer’ of certain provisions from the charters of foreign redomiciled companies to the charters of Russian international companies, in particular, the issues of incorporating reference to foreign law (section 2), limiting the application of foreign law (section 3), the possibility of establishing companies’ own regulation (section 4) and the applicable law to rights attached to the shares of international companies (section 5). The results of this analysis reflect the directions for further development of Russian legislation and courts’ practice.

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Keywords: corporate law, redomicilation (continuation), special administrative region, conflict of laws

The second part of the article considers the model of internal subordination of the guarantor’s reverse claim in Russian law. Subordination applies both in relation to security obligations and in relation to claim against the main debtor. A distinctive feature of the Russian model is that the guarantor is subordinated regardless of the basis of his claim against the debtor (subrogation or internal relations with the debtor). The article concludes that the subordination model should be applied not only in case of bankruptcy of the debtor, but also in case of enforcement proceedings.

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Keywords: guarantee, subrogation, subordination

Bankruptcy law suggests three possible stages in a consumer bankruptcy procedure: debt restructuring, property realisation and amicable settlement. After analyzing the provisions of the special law, law enforcement practice, foreign experience, and official statistical data, the author concludes that maintaining two nearly interchangeable procedures — settlement agreements and debt restructuring — is inappropriate. The author argues for preserving one of these mechanisms in the law, favoring the settlement agreement due to its optimal conditions and approval procedure, as well as its flexibility in content (in particular, settling individual obligations rather than all; deferring and scheduling performance according to parties’ terms rather than statutory maximums; fully exempting interest of any kind, etc.). At the same time, the article outlines existing drawbacks that restructuring plan approval procedures can mitigate through adaptation to the settlement agreement (e.g., the creditor disagreement overcoming mechanism for restructuring plan approval (cramdown)).

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Keywords: debt restructuring, consumer bankruptcy, settlement agreement, rehabilitation, cramdown, insolvency (bankruptcy)