"Aleator" from the Latin "alea" is a gamble, aleator is a gambler. Accordingly, an aleatory transaction is a risky contract, the execution of which depends on certain conditions that the parties are not aware of at the time of the conclusion of the contract. Such transactions have existed for more than one hundred years, references to them are found in sources of Roman private law. People have always loved and love to take risks now, and the incentive motive is not only material gain. Many people like the process of waiting for a result, when there is no way to influence it, everything, as they say, is in God's hands.
Basic concepts
According to Russian law, all gambling, sweepstakes, lottery tickets, bets, some exchange transactions of an urgent nature, as well as transactions for the purchase / sale of housing, subject to the material maintenance of the seller, are considered as Aleatorial under Russian law. An Aleator agreement is not considered public, since it cannot be fully considered an agreement for the provision of services. Contracts are purely conditional. This is because the realization of rights and obligations, as well as the fulfillment of certain actions, is established depending on the occurrence of pre-agreed conditions.
What is a game?
The game was, is and will be an integral part of human nature. Its multidimensionality is beyond doubt. In dictionaries, a game is defined as an activity that is carried out only for pleasure, regardless of its usefulness and purpose. This activity is opposed to labor and work. Accordingly, the game is a collective concept, which is customary to denote various forms of human activity that do not always fall under legal jurisdiction, since there is no subject of legal regulation. Subject to legal regulation are social relations of an economic, social, political nature. But if we consider gambling in the context of aleatory transactions, then the subject of legal regulation still exists: the organization of the game process, participation in it, as well as the payment of winnings.
Gambling
In the history of the development of our civilization, the attitude to gambling under all state regimes was mainly negative, since all gambling activity was considered as a source of illicit enrichment of winners at the expense of bankrupt losers. With regard to legislative practice governing games and betting, two systems have developed in most countries of the world. With one game and a bet under a total ban, moreover, such activities are prosecuted by law. Another system restricts them without completely inhibiting them.
How do you feel about gambling in Russia?
Under current Russian legislation there is no complete ban on gambling, but the state significantly limits this sphere of public relations. The Civil Code pays attention to games and betting in chapter 58: “Holding games and betting”. The general meaning of this article in the negative attitude of the state, as an institution of society, to the organization of gambling.
It should be noted that the aleatory transactions have not been practically regulated in a serious way not so long ago, and now not a single article of the civil code contains a definition of this type of transaction agreements, and even more so agreements concluded with the aim of organizing games and bets. This affects the fact that there are no clear rules governing the content of the aleatory agreement.It is not possible to agree even on a legal and sufficient definition of the concepts of “game” and “bet”. But with careful reading in the code you can find indications that the relationship between the organizers of the games and betting and the participants are based on the contract. The tax law contains the characteristics of games and betting agreements, according to which gambling is a win agreement, which has some risk in its basis (for example, a lottery ticket).
Who concludes such contracts?
This agreement is concluded by two or more participants between themselves or with the organizers of a gambling establishment (sweepstakes) according to the rules that are established in it. Betting is also a risk-based win-win agreement. Separately, it should be mentioned that betting is also considered a gamble. Of course, it is inherent in the main features characteristic of them. But you can also talk about the significant differences with which these concepts can be distinguished. Basically, the point here is that during the game, participants can influence the outcome of the game by taking any action, but the bet does not give such an opportunity. A common feature is that only one side can be a winner, as well as a loser. But the final outcome of a game or bet depends on an event that cannot be said in advance that it will come. Exchange transactions are also considered aleatory, because it is not known in advance how the auction will be held, who will win and who will lose. Such transactions are considered contracts registered by the exchange and concluded between bidders. The subject of the transaction is the goods for which trading is being conducted.
I must say that civil law equates lotteries and sweepstakes with risk-based games, and tells us that sweepstakes are a form of betting. Tax law defines the concept of “gambling” as a gambling epithet, which also includes sports games in this category, but on the other hand, with the help of this term, a clear gradation can be made in organizing gambling activities by special people. Sports games do not fall under the jurisdiction of the civil code, since the result of a game, for example, in a football match, depends solely on the skill of the players, and not on circumstances or luck. The subject of regulation of the tax and civil legislation of the Russian Federation is only gambling, the result of which is the gain of one of the parties and the loss of the other, which is based on risk or chance.
Alert obligations
Obligations arising from games and betting are primarily naturalized in nature, that is, a citizen, upon concluding a game and betting agreement, loses the right to claim. An exception is established for the requirements of persons participating in games and bets under the influence of fraud, violent acts, threats, malicious agreements with the organizer of games or bets.
In addition, cases of non-payment of winnings by the organizers are also included here, which gives the right to demand compensation for damage caused by breaches of the contract. Citizens and legal entities that took part in games and bets, organized and conducted without obtaining a permit, as well as participated in a lottery organized by an individual entrepreneur, cannot claim to protect their interests in court. When citizens demand to protect their legitimate interests, it must be remembered that the games and betting agreements concluded with a person whose age has not reached 18 years old are unlawful. Are stock transactions aleatory?
Lottery
There is still debate about the nature of the lottery. The Civil Code tells us that a security = a document that certifies certain property rights, the implementation of which is possible upon presentation. The lottery ticket meets the above requirements.It has a documentary form, an open list of details, designated by law, and certifies the right to participate in the drawing and the right to receive a win, if any. This is a prime example of an aleatory deal.
Thus, we can conclude that the lottery ticket is a security, since it is possible to get a win on it, and this fact does not depend on the will of the creditor or the will of the debtor. But there is a small nuance. A lottery ticket can be considered a security only from the moment the win is determined. It is the ticket when concluding the lottery agreement that will be a written confirmation of this legal fact, however, the right by which the participant may demand to play the game does not arise from the ticket, but from the agreement itself.
What other civil law transactions?
Game and Betting Agreements
Gambling and betting agreements are consensual when certain rights and obligations arise from the moment the agreement is reached, for example, buying a lottery ticket is an expression of such an agreement. And they can be real, from the moment when the players have made bets, that is, a bank has been formed. However, there is such a thing as a stimulating lottery, that is, the right to participate in it is not connected with payment, and the prize fund is formed by the lottery organizer at its own expense. The player, making a bet or making a bet, enters the game, respectively, he agrees to comply with the conditions of the game in order to determine the winners. Thus, under this agreement both parties: both the player and the organizers of the games have their rights and obligations. The organizer is obliged to ensure the conditions of the game and pay the win, if it happened, the player agrees to abide by the rules. When making a bet, such an agreement imposes obligations on only one side: the organizer must pay the winnings. Consider the main aspects of such civil transactions.
Parties to the transaction
One party to such a transaction (organizer) may be represented as: the Russian Federation, a constituent entity of the Russian Federation, a municipality, a person engaged in the organization and conduct of gambling. The other party (participant) is an individual or legal entity that takes part in a gambling game and concludes a win agreement based on risk with the organizer or its other participant.
Lottery organizers can only be a legal entity, but not a physical person. Any competent individual who has reached the age of 18 may be a player taking part in gambling. Aleator agreements can be concluded orally (verbal) or written (literal). It is noteworthy that with the oral form of the transaction, a document can be issued that confirms its execution, for example, a check. This does not change the form of the contract. The essential terms of the transaction, in addition to the price, include conditions on the period in which games are played, and on the procedure for determining the win, its size. The rights and obligations of the parties arise from the contract itself, the legislator provides only the obligation of the organizer to pay the winnings within the standard period, or within a period not exceeding ten days from the moment the results are determined.
Transaction risks
It is not known in advance which of the parties to the transaction, upon the occurrence (non-occurrence) of certain circumstances, will become a creditor, and who will become a debtor, the risk is the same for both. Risks, that is, equally, winning and losing, will depend on the circumstances determined in advance, before the transaction. Only the occurrence (non-occurrence) of circumstances is called into question. After all, these are risky contracts.
Derivatives transactions
Some futures deals, such as forward contracts, are equated to betting, arguing that there is no business purpose in this transaction.In other words, the risks of these transactions are not considered as ordinary risks in business, of course, that this creates problems in judicial practice. There is a big risk in making futures transactions, since there is always a time gap between the moment a transaction is completed and its execution.
The concept and types of aleatory transactions we examined.
Finally
In conclusion, we can say that insurance contracts are also referred to as aleatory ones. However, according to experts, these agreements do not have all the signs of aleatory and cannot be considered as such. For example, under an insurance contract, it is not clear what risks the policyholder bears, and the qualification of the insured event as an event unknown in the transaction is highly questionable from an ethical point of view. Thus, according to the majority of experts, games, betting, sweepstakes, as well as exchange transactions, should be classified as aleatory transactions.