The law provides for different ways of securing obligations. For each of them, certain terms and conditions are established.. Existing methods of securing obligations involve the participation of entities in relations in a particular status. Entry into the transaction of other entities is documented. 
Art. 313: performance by a third party
The main participants in the relationship, as a rule, are the creditor and the debtor. However, other entities may enter the transaction. The assignment of fulfillment of an obligation to a third party is allowed if the need for personal implementation of the agreed conditions does not follow from the law, other regulations, the original agreement or the substance of the transaction. Moreover, the law establishes a rule. The creditor is obliged to accept the implementation proposed for the debtor. These provisions are specified in part 1 of this article. Part two determines that when property of third parties is in danger of loss in connection with foreclosure, these entities can satisfy the interests of the passive side of the transaction on their own initiative. At the same time, it is not necessary to obtain the consent of the active participant. In this case, certain rights of third parties arise. Satisfying the interests of the initial passive party to the transaction, they get the opportunity to foreclose on the active side of themselves.
Nature of relationships
In publications quite often there is an indication that third parties in civil law carry out only actual actions. This statement usually acts as the basis for distinguishing the status of entities. It is, in particular, that the fulfillment of obligations by a third party does not mean that it becomes a participant in the initial transaction itself. At the same time, his actions cannot be called exclusively factual. This is due to the fact that they usually lead to the termination of the agreement between the original participants. At the same time, new relationships arise in which the subject who satisfied the interests of the passive side can present his claims to the debtor. The termination of the transaction acts as a legal event. The relations that arose acquire a similar character.
Differences from Multiplicity
Given the above, the nature of the actions does not act as a dividing line between the party to the relationship and third parties. The main difference is different. Third parties are not involved in the obligation, but in its fulfillment. Several practical conclusions can be drawn from this. First of all, it is necessary to distinguish between the participation of another entity in the transaction and the tripartite agreement, or multiplicity in relations. The latter assumes the presence of several participants on the one hand. Moreover, the scope of their legal capabilities may vary. The principles of fulfillment of obligations in case of multiplicity suggest that the subject can address several participants at the same time. He also has the ability to satisfy the interests of several parties at once. Moreover, the “external participant” does not enter into the initial tripartite agreement at all.
Subject Change
The fulfillment of the obligation by a third party is not considered as a change of participants in the transaction. The parties to the relationship in the first case remain the same. Debt transfer involves the conclusion of a new agreement. One of the participants in the transaction leaves, and in return the other enters it.Debt transfer also provides for the transfer of legal opportunities to a new side. Their volume cannot be changed. The fulfillment of an obligation by a third party implies that all its actions are regarded as acts of one of the participants. In this regard, references to dissatisfaction of interests in connection with the inaction of a third party are not allowed. A passive party to the transaction also cannot apply to a third party. 
A special case
A third party who does not act as a party to the contract cannot in any way change its terms. This opportunity is available only to participants in the original transaction. This provision distinguishes an entity that satisfies the interests of a passive party from a third party in whose favor an agreement is concluded. The latter is regulated by Art. 430 of the Code. Under the provisions of this article, an entity by agreement must take appropriate action in favor of a third party. The latter, in turn, has the legal ability to foreclose on him. This situation has certain differences from the transaction in which the third party is a passive party. He does not receive legal capacity by agreement. Rights remain in this case with the original creditor. Thus, an important nuance should be established. A third-party creditor, unlike an external participant with independent legal capabilities, can change the content of the transaction or set off. In turn, it is differentiated from the usual (initial) passive side of relations by the fact that it does not contribute to the formation of the terms of the agreement, but only uses its fruits.
Differences in the provisions of subjects under paragraph 1 and paragraph 2 of Art. 313 of the Civil Code
Despite some similarities and unity in one norm, the situations described in the article are differentiated for many reasons. First of all, the difference lies in the role that the law assigns to the initiative of the debtor. So, in paragraph 1 of the article it is provided. Paragraph two excludes this initiative. Many experts note that the principles of fulfillment of obligations in general are not applicable to paragraph 2. According to paragraph 1 of Art. 408, the satisfaction of the interests of the passive party involves the termination of the initial relationship. Under paragraph 2 of Art. 313 of the Civil Code, the transaction continues to exist. In this case, there is a transition of legal opportunities from a passive participant to an external entity. Actually, this proceeds from the interpretation given in paragraph 2. In essence, in such cases a forced assignment takes place. It is such on the basis that the creditor cannot refuse it. The same consequence would be if a passive participant voluntarily ceded its legal capabilities to an external entity.
Question about the result of actions
When determining the performance of obligations by a third party, the Civil Code of the Russian Federation does not contain an explanation of its consequences. In the cases provided for in clause 1, the courts do not apply by analogy the results given in clause 2. Actually, when considering the norm of similarity of situations, there can be no situations. This is due to the fact that the performance of the obligation by a third party terminates the transaction, respectively, assignment on it is impossible. Without foreseeing direct consequences in the norm, the legislator passes the resolution of this issue to the discretion of the active participant in the relationship and an external entity. The meaning of the norm implies the existence of a certain agreement between them. 
The difficulties associated with the emergence of a third party
Third party performance is often fraught with big problems. So, in practice, there are situations when a passive party to a transaction, after receiving payment from a third party, becomes the defendant in a claim for foreclosure due to unjust enrichment. Let's look at a few examples. A leasing agreement was drawn up between the two companies.According to its terms, one enterprise is obligated to purchase vehicles and transfer them for temporary use and ownership of another company (the second party to the transaction). The latter, in turn, had to pay the corresponding lease payments.
To ensure the fulfillment of the obligation, the second company agreed to transfer the deposit. An outside subject has entered this process. He listed the first deposit the required deposit. In this case, the payment document indicated that the payment was made on behalf of the other party to the transaction and on the basis of an agreement between it and the lessor. Subsequently, the third party sent a lawsuit to the court to reimburse the transferred amount as unjust enrichment. At the same time, the applicant indicated that the payment was made by mistake. The lessee, in turn, indicated that he did not give any instructions to a third party. The lessor in objections referred to the norms of law. In particular, he pointed out that the transfer of the deposit is considered in this case in accordance with paragraph 1 of Art. 313. In addition, the defendant referred to the fact that the law does not require a third-party entity to present to the passive party a document confirming the request of the active participant. 
The trial court satisfied the claim. At the same time, the definition indicated that, within the meaning of the norm, the order to the creditor to take actions of a third party corresponds with the legal ability of the debtor to transfer the implementation of the terms of the transaction to an external participant. In the first sentence of paragraph 1, this opportunity arises. According to the second sentence, the obligation of the passive participant appears to take the actions of a third party. However, it does not apply to all transactions in general. The obligation acts within the framework of relations in which the active participant realizes his opportunity to transfer the execution of the terms of the agreement to a third party. If the subject has not used this opportunity, then the second sentence of paragraph 1 does not apply. Accordingly, the creditor does not need to accept the implementation of the terms of the agreement from a third party. This decision was quashed by the court of appeal.
The definition indicated that according to the analysis of the behavior of all subjects, it was established that the third party acted in this case not by mistake, but in accordance with the instructions of the active participant. The court also noted that the latter was consistent with the actions of an outside party. In particular, he did not provide a deposit, which was imputed to him under the terms of the agreement. Along with this, he accepted material values from the creditor. The actions of the latter were recognized by the court as conscientious and reasonable. As a result, the appellate court concluded that under Art. 1102 the consequence of an erroneous payment is unjust enrichment the recipient. Moreover, under Articles 10 and 313 of the Civil Code, deduction to a bona fide subject made by an outside party is unlawful. If there is no consent of the other party to the transaction, a unjust enrichment recipient of the amount.
In this regard, if we assume that the third party made the payment without approval, then in this situation the claim for the recovery of the main payment and interest for using the funds cannot be satisfied. The court emphasized that a third party could not otherwise have known about the existence of the transaction. In addition, the payment amount corresponded to the established deposit amount. The cassation court overturned the determination of the appeal and upheld the arguments of the first court. In the decision, attention was drawn to the absence of a request from the debtor. The law does not prescribe to a conscientious recipient who is not interested in examining the relations that have formed between the other party and the external participant, determining the reasons for which the second transfers the implementation of the terms of the agreement to another.
Regarding this, court of cassation indicates that the performance of the obligation cannot be considered improper if the recipient was not and could not be aware of the absence of his laying on a third party, and at the same time, the implementation of the terms of the agreement thus did not violate the interests of the obligated subject. The legitimate acceptance by the recipient, as YOU considered, does not allow you to be guided by the provisions of Art. 1102. This means that a statement that the contract for the discharge of obligations to a third party was absent does not indicate the occurrence of unjustified enrichment by a conscientious recipient. 
Another example
An agreement was signed between the creditor (company A) and the debtor (company B) for the supply of goods. In accordance with its terms, the first was to ship the second product, and the second, in turn, to pay for it. The payment was made by company B (third party). In this case, the details of the agreement between the entities, the goods, information about the letter authorizing the deduction, as well as the account of the recipient were indicated. After accepting the amount, Enterprise A shipped the products for pickup. After a while, Company B filed a lawsuit to recover unjustified enrichment from the creditor. During the consideration of the dispute, the court determined that all the documentation referred to in payment order in addition to the letter, was drawn up in accordance with the agreement. However, the request for the deduction itself came from a third-party company G. She composed a letter to which the payment document also refers. The lawsuit was satisfied. The definition stated that only a party to a transaction can assign performance. Third party company G is not.
Features of the consideration of cases
The above examples have a lot in common. However, the key difference is the availability of the administrative letter in the latter case. In this regard, the question arises: does this circumstance affect the choice of approach when considering this category of cases in court? According to some experts, there is no dependence on the dispute resolution method in these situations. This is due to the following reasons:
- When analyzing such cases, one should proceed from the fact that the creditor had a real opportunity to verify the documents submitted by the debtor, which confirm the fact of transferring the implementation of the terms of the transaction to a third-party entity. In other words, it is fundamentally important to answer the question of whether the recipient, according to the data available to him, could conscientiously (reasonably) consider that the external participant performs actions on behalf of. Apparently, this is precisely the essence of paragraph 1 of Art. 313. The opposite approach, in which the recipient is charged with the need to specifically verify that the order exists, can cause many problems in practice. For example, a creditor, requesting confirmation from a debtor, may become an expired entity under Art. 406. In addition, it is likely that he will be held liable for non-compliance with the terms of the agreement, since obtaining documentation may take a long time. It is difficult to agree that the burden on the subject of checking the existence of relations between the obligated and the third party in the technical sense is insignificant. This is primarily due to the fact that correspondence between the latter, even within the same settlement, can be extended for a long period. At the same time, the question immediately arises: how should the creditor regard the inaction of the debtor. At large enterprises, there is a practice in which the draft letter, before it is signed by an authorized employee, passes approval in several departments. At a minimum, it takes one day for each unit.As a result, the following period is formed: 3 days. for the delivery of a document within the city (according to postal standards) from the creditor to the debtor + 2 days. to receive, prepare a response and send back + 3 days. for shipment by mail. As a result, 8 days come out with the condition that there will be no delays anywhere.
- The issue of proving the existence of the fact of the commission itself has a certain significance in the course of the proceedings of the dispute. It is worth agreeing that, since the creditor does not have the authority to verify the grounds in accordance with which the performance by the third party of the obligation is carried out, it is unlikely that he has the relevant securities.
In this regard, the positions of the first and cassation instances in the first example should be considered erroneous, guided by which the courts established the absence of the fact of a direct order, based solely on the fact that the recipient did not have a confirmation letter.
Probable abuse
This is another important issue that arises in relations with a third party performing the obligation. Such actions in practice can be carried out in collusion with the recipient. Thus, this situation violates the interests of the debtor. For example, the latter may have a counterclaim. Accordingly, he expects termination of the obligation through set-off. In such a situation, the participation of an outside party blocks this opportunity. Consequently, the interests of the debtor will be infringed. However, in the above examples, no such violation was found. From the content of the court decisions it is not seen that the debtors claimed infringement of their interests.
findings
The above allows us to argue that the above arguments by the court in the second example are erroneous. This is due to the fact that the creditor did not have the ability to verify the fact of the order. However, the direct implementation of the terms of the agreement by a third party did not violate the interests of the second party. The fact that the administrative letter presented in the materials did not come from the debtor, but from a completely different enterprise, can be considered insignificant. This can be explained by the following reasons:
- According to the available documents, the creditor could not have reasonable grounds to doubt that a third-party participant performs actions in the interests of the debtor.
- As part of the proceedings, the court did not establish that there was any restriction on the capabilities of the second subject of the transaction.
- A third party, acting as the plaintiff, can provide any administrative letter from any person to prove that the execution was carried out in accordance with it.
This indicates the senselessness of the study of documents by the recipient. Thus, only the first two arguments will be significant. With regard to protecting the interests of the second party, it seems appropriate to consider the relationship between him and a third party as an independent transaction, not related to the original.
