It’s worth starting with a concept such as obligations. In the framework of the Russian civil law is the most important, most extensive sub-industry, its standards are designed to serve the entire market turnover, they are daily used by entrepreneurs, non-profit organizations, and individual citizens.
Most property disputes that are considered by state arbitration courts involve the performance of obligations. This is what determines the significant and theoretical and practical significance of the existing institutions of law of obligations, the importance of the process of their study.
In our Civil Code, obligations are interpreted as the obligation of the first person (debtor) to take specific actions in favor of another (creditor): transfer property, pay money, perform work or refrain from performing an action, as well as the right of the second to demand from 1st performance of the duties assigned to him.
Accessory Obligation: Definitions, Key Features
Most often, its synonym is interim. The accessory obligation is an additional clause to the main one. If the second disappears, then the first disappears.
Accessory obligation (Civil Code of the Russian Federation) - that which is connected with the main one and bears on it a derivative, dependent, auxiliary character. Realization of interest (security) is achieved in a special way: counterparties form the so-called external reserve, due to it, in the event of a malfunction of the debtor, the main obligation is fulfilled. We can say that this is the most important of the properties of interim measures.
Hence, an accessory obligation can be expressed:
- dependence on the main;
- based on security interest;
- the creation of an external (relative to the main obligation) reserve source of execution.
Accessory property
It consists in the following:
- The termination of the main obligation leads to the completion of the accessory obligation (it is impossible to ensure that which is not).
- Adjustment of the main obligation also leads to the disappearance of the accessory obligation (the exception is the consent of the debtor to continue to bear the obligation).
- The invalidity of the main obligation testifies to the absence of accessory legal force.
- The transfer of rights on the basis of the main obligation leads to the same on the basis of accessory.
- At the end of the limitation period, in accordance with the requirements of the main obligation, the term for the accessory term also expires.
Legal nature of the obligations under review
In the absence of a legal definition of a security obligation, specialists in this field offer several interpretations of it. So, collateral is understood as property, preliminary, special, additional, accessory measures established in a situation of non-compliance with the required obligations, acting as a guarantor of their fulfillment, performing a protective function with respect to the creditor, and stimulating by the debtor.
But nevertheless, the above-mentioned symptoms cannot fully attribute any guarantee measure to security, since some of them are inherent in other concepts. The interpretation of the term in question as an additional right of the creditor in the situation of non-fulfillment by the debtor of his obligations does not make it possible to distinguish it from the sanction.And the accessory nature of securing obligations is not a defining sign, since this property is not a cause, it acts as a consequence. If an obligation is equated with collateral, then an accessory property is recognized for it.
MCHP: accessory obligations
They are considered in this law in an exceptional manner. Accessory obligations in the private equity partnership that accompany foreign trade transactions are excluded from the special obligation status. Conflict bindings within the framework of pledge agreements, sureties are autonomous. The responsibility of the guarantor, rights, obligations of the mortgagor are subordinate to the rule of law, independently established, regardless of the status of the main debt. But the content of the latter affects the obligations of both the mortgagor and the guarantor.
In this situation, there is a splitting of the existing conflict of ties: relationships for the main obligation are subordinate to the first law and order, and for the accessory, to another. Those associated with the assignment of interest by claim, penalty, deposit, fall under the same law as the capital component of the debt. Obligatory status does not cover claims that do not fall under the limitation period (with regard to compensation for harm, personal non-property rights, etc.). According to the general rule, the law of the court should be applied to those on the basis of the general constitution of tort obligations.
Also, issues related to the general legal and legal capacity of counterparties in foreign trade transactions do not fall under the aforementioned status. Here, a combination of the substantive principle of national treatment for foreigners and personal law is applied.
Accessory ways to ensure performance of obligations
Interim measures are permissible to apply to all existing obligations, due to the absence of laws regarding this. So, you can provide those that arose from any transactions, as well as contractual, non-contractual, monetary, involving the provision of services (things). Even the security obligations themselves can be secured. For example, the guarantee agreement can be enforced through collateral. Another thing is that the possibility of applying a particular method is predetermined by its essence, it can be limited by law.
An accessory method of fulfilling an obligation is one of the additional ones: surety, deduction, deposit, and pledge. The agreement regarding the establishment of one of them creates an affiliation obligation designed to ensure the fulfillment of precisely the main obligation. As mentioned earlier, the invalidity of the latter leads to the absence of eligibility and the former. As for the invalidity of the agreement regarding the enforcement of the prescribed obligations, it does not affect the obligation itself.
In a situation of transfer of law, claims to another creditor, the rights that ensure the fulfillment of the main obligation, also pass.
Forfeit as a variety of accessory obligations
This is the most common way in the framework of this topic. The main purpose is to exempt the creditor from the required evidence of the amount of losses to be reimbursed. This makes it possible to compensate for the interest violated by the non-fulfillment of the obligation (improper performance) by the creditor if its monetary value is unavailable (difficult). The justification for this lies in the essence of the forfeit, namely, in determining the specific amount payable regardless of the size of the losses, or even of their presence (in a situation of non-fulfillment of obligations, their improper performance, including cases of delay).
According to our civil law, forfeit - This is a natural way in which an accessory obligation is ensured.This is a form of property liability for its violation.
What is a guarantee?
The third paragraph of chapter 23 of the Russian Civil Code is dedicated to him. Pledge - an accessory obligation, according to which the pledge holder (the creditor for the obligation secured by the pledge) has the right in the situation of non-fulfillment to be satisfied at the expense of the value of the property that was pledged directly to the other creditors of the entity owning the pledged property (pledger), with the exceptions established by law.
If we compare this definition with the previously considered concept of obligation, then the pledge can be interpreted as a civil relationship. It may occur in the following situations:
- from the contract;
- upon the occurrence of circumstances specified in the law.
The purpose of the pledge holder is to gain an advantage over other creditors of the debtor. The conclusion of a pledge agreement does not immediately constitute this advantage because the contract from the moment of sighting becomes binding only to its counterparties. To protect against 3 persons, it is especially important for the pledge holder to establish in his favor the imposition of additional obligations regarding the subject of the pledge (its encumbrance).
Types of Collateral
The following special types of the concept are considered:
- mortgage;
- pledge of things within the pawnshop;
- pledge of goods in the framework of turnover.
Principles of regulation of existing collateral relations
There are only three of them:
1. The pledge does not provide the pledge holder with the right to the thing itself. The owner is still the pledger. The value of the thing is compared with the value of the main debt, but not it. In a situation of violation of the obligation secured by the pledge, the creditor cannot take possession of the subject itself, but only receive money from the sale of property.
2. The pledge holder has a privilege over other creditors of the pledger.
3. Based on the fact that there is a possibility of alienation of the subject of the pledge during the development of the collateral relationship, we can talk about the existence of restrictions on the transfer of things as collateral in the presence of restrictions on its alienation. In the event of a ban on property alienation, the contract on its pledge shall be recognized as invalid.
Non-processor obligations
They do not depend on the main obligation to ensure that they are called upon (for example, a bank guarantee). These obligations are closely interconnected with the main ones. In this case, the security obligation remains valid even if the principal is invalid.
Bank guarantee - from the point of view of civil law, a fairly new way to ensure the fulfillment of obligations This is a security measure that guarantees the fulfillment of a primary obligation. She is quite independent from him and does not have an accessory character. The legislator does not use such a term as the responsibility of the guarantor to the principal creditor - the beneficiary. There is a clear designation of the guarantor as not a responsible person, but mandatory in relation to the beneficiary in case of failure by the principal (debtor) to fulfill obligations. However, if the guarantor violates his obligation, liability immediately arises to the beneficiary. It is not limited to the amount for which the guarantee was issued (unless otherwise stated).
Finally, it is worth recalling that in the article such concepts as accessory and non-processor obligations, their properties and types were considered.
