Журнал ЗАКОН

Case Comment to the Judgment of the Judicial Chamber for Economic Disputes of the SC RF No. 305-ЭС21-18053 (6, 8), 28 September 2023 The article discusses the legal position of the SC RF in the case of ‘Kuzbasstransugol’, according to which insolvency avoidance of charitable donations requires proving the recipient’s knowledge of the debtor’s intent to harm creditors by this transaction. The author concludes that this position does not find support both from the point of view of systemic interpretation of the legislation and from the point of view of history and comparative law, and therefore requires adjustment. In addition, the conditions under which the recipient of charitable donations may be protected from insolvency avoidance are considered. The development of these conditions represents the further development of the law in this matter.

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Keywords: bankruptcy, competitive challenge, invalidation of transactions, challenge of gratuitous transactions, challenge of donations

The article examines the institution of debt transfer in the context of historical development and comparative analysis. It considers the key stages of its formation — from Roman law, where the debtor was replaced through novation, to the emergence of the concept of singular succession in the 19th–20th centuries. In addition, special attention is given to specific aspects of the regulation of the debt transfer institute, such as creditor’s consent, the fate of collateral in debt transfer, debt transfer in bankruptcy, etc.

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Keywords: replacement of persons in the obligation, debt transfer, singular legal succession, novation, delegation

The article examines the issue the owner’s binding to the terms of the contract between a good-faith pledgee and an unauthorized person who established the pledge right. Firstly, the article provides analysis of possible approaches to the effect of contractual terms against the actual owner of the object. Secondly, the author examines the advantages and disadvantages of various approaches: binding by all the terms of the contract; binding only by certain terms of the contract; non-binding by the terms of the contract. Thirdly, the article reviews judicial practice on the issue of research and the impact on it clarifications given by the Russian Supreme Court’s Plenum in 2023. It also critically analyzes of the position set forth in paragraph 43 of the Ruling of the Russian Supreme Court’s Plenum. The author concludes that, from both a dogmatic and a lawpolitical perspective, the optimal approach is to bind the owner of the pledged object only to those obligations that arise from the statute. Firstly, a pledge from an unauthorized person arises under the statute, not by contract, because «transferor» does not have dispositive power over the object. Secondly, this approach makes it possible to balance both the security interest of the pledgee and the interest of the pledgor in respecting his private autonomy. Thirdly, the position of the Russian Supreme Court’s Plenum should be understood in this way, even though its textual expression may be subject to ambiguous interpretation.

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Keywords: good faith pledgee; pledgor’s obligations; acquisition from an unauthorized person; real and obligational elements of the pledge

The article argues that the argument commonly used by opponents of the admissibility of contra legem interpretation, according to which this type of interpretation inevitably leads to judicial arbitrariness, is based on a misunderstanding of its essence. Based on legal theory and analysis of judicial practice, the author concludes that contra legem interpretation in its very essence negates arbitrariness. This is due to the fact that the purpose of contra legem interpretation is not arbitrary, widespread, unjustified and unrestricted disavowal of existing rules, but the correction of rules when their literal application in a particular situation leads to a result incompatible with the principles of law. In addition, the author argues that in order to combat judicial arbitrariness it is not necessary to prohibit the use of contra legem interpretation by the courts, and shows that factors such as the independence of the judiciary, high political and legal culture of the judiciary and society as a whole, as well as the transparent nature of judicial reasoning play a key role in combating judicial arbitrariness.

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Keywords: contra legem interpretation, judicial arbitrariness, judicial lawmaking, judicial discretion, fairness, principles of law

The article addresses to the problem of allocation of the risk of performance to an improper person, when the debtor performs his obligation not to the creditor, but to a third party posing as a creditor. First of all, complex cases of distribution of the respective risk are investigated, when neither the debtor nor the creditor is ‘guilty’ in the fact that the debtor performs to a third party having the status of a visible creditor, as well as when both the debtor and the creditor are equally ‘guilty’ in the respective performance. For this purpose, foreign legal orders (Germany, Austria, Switzerland, France, Italy, Spain, the Netherlands) as well as сontemporary Russian literature were studied. In addition, judicial practice, in particular the practice of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation is analysed.

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Keywords: defence of the appearance of right, protection of trust, risk, performance of obligation, improper person, article 312 of the Civil Code of the Russian Federation

The article discusses two possible ways of taking the debtor’s interests into account when the creditor imposes price reduction remedy: 1) the debtor’s opportunity to object to the application of price reduction remedy; 2) the debtor’s prior opportunity to remedy defects. Based on the results of the comparative legal analysis, it is concluded that the approach of the continental jurisdictions to the inadmissibility of the debtor’s objection to the application of price reduction by reference to a common mistake is more reasonable and consistent with the purposes of the guarantee obligation. It is pointed out that the creditor’s ability to determine the fate of the contract in the event of deviations (both defects in quality and ‘better’ quality) is justified by the figure of the adaptation of the transaction made by mistake: in both cases, despite the fact that the mistake as to the actual quality is common, it is the creditor who acts as the counterparty to the debtor, who appeals to the conclusion of the transaction under mistake. It is noted that the approach of the Russian legislator, expressed in certain provisions of the CC RF, which provides the debtor with a prior opportunity to remedy the defects, should be supported, as it is more in line with the position in most European (including supranational) legal systems, corresponds to the principle of favour contractus, and protects the debtor’s investments and reasonable expectations.

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Keywords: price reduction remedy, civil liability, remedies system, law of obligations, theory of mistake

Based on the thesis formulated in the article about the auxiliary nature of the contractual obligation arising from the agreement on the procedure for conducting negotiations. It is concluded that the agreement cannot create obligation for parties to participate in negotiations and carry out actions in preparation for execution of the draft contract. The differences between a negotiation agreement and a non-disclosure agreement are defined. Limitations on the use of exclusivity terms are established. It is established that arbitration agreement pertaining to disputes arising during negotiations shall be treated as variation to the agreement on the procedure for conducting negotiations. This approach allows effectively resolve issue of parties’ disagreement with the terms determined by the court pertaining to the contract and distribution of legal costs between the plaintiff and the defendant. The advantages of an agreement on the procedure for conducting negotiations are demonstrated for the purpose of pre-contractual liability. The presumption of ending negotiations upon termination of the said agreement is substantiated.

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Keywords: agreement on the procedure for conducting negotiations, auxiliary obligation, exclusivity terms, pre-contractual dispute, pre-contractual liability