The concept of “the content of the basis for the occurrence of obligations” implies that one person is prescribed to perform certain actions in favor of another. This may be the execution of work, transfer of property, payment of money. In the latter case, we can consider as an example the grounds for the occurrence of maintenance obligations. The requirements of one participant may include abstention from taking any action. Next, we consider what constitute obligations: the concept, parties, grounds for occurrence.
General information
The basis for the occurrence of obligations (Roman law is considered the fundamental source of legal justification of relations) are the terms of the contract. If they are violated, various kinds of consequences arise. In particular, the grounds for the emergence of civil liabilities may consist in causing damage, infringement of freedoms and others. In this category of relations, several persons or one may participate.
If each party bears obligations under the contract in relation to the other, then it is considered both the creditor, since it has the right to demand the fulfillment of the conditions, and the debtor, as it is obliged to perform actions in favor of the other participant. Other individuals or organizations may be involved in the interaction. They act as third parties. The grounds for the occurrence of obligations do not apply to them. That is, they cannot act as creditors or debtors, except as otherwise provided by law.
The content and grounds for the occurrence of obligations stipulate that the debtor has a choice in fulfilling the requirements of the creditor related to the transfer of any property available, or the commission of 1 or more actions, unless otherwise follows from the terms of the contract, law and other regulatory acts.
If several involved participants and creditors are involved in the relationship, the latter may require execution from each debtor. At the same time, the latter are obliged to fulfill the requirements equally, since the legal norms do not proceed otherwise.
Obligations: concept, types, grounds for occurrence. Joint responsibility
Solidarity arises when the subject of relations is indivisible. In this case, we are referring to the obligations of several debtors related to commercial activities. At the same time, solidarity applies to creditors, unless otherwise provided by law or contract. The grounds for the occurrence of obligations are in this case a contract or law.
Subjects
They are the debtor and creditor. Third parties may be associated with one or the other (or with them at the same time). As a rule, in such legal relations the latter do not act either as debtors or as creditors. Grounds for occurrence and types of obligations are two interrelated categories. In particular, the classification of liability is carried out in accordance with the causes of the requirements.
Equally important is the number and status of participants. So, if we talk about third parties, the obligations with their participation form a special kind of relationship in terms of its subject composition. The involved party must comply with the requirements of the creditor or his representative. In this case, the debtor may specifically verify the offset of his actions. By agreement of the creditor, redirection of execution to third parties is allowed.
Plurality of participants
The grounds for the occurrence of obligations may arise from an agreement in which several persons are involved. If the party involved is represented by two or more participants, they speak of a plurality of persons in relation. She, in turn, can be:
- Active.
- Passive.
- Mixed.
This classification is established depending on which side the multiplicity is on. Its active form takes place if several persons are on the side of the creditor. In this case, the debtor is alone. In this case, the grounds for the occurrence of obligations allow each creditor to demand performance. Cases with passive plurality are considered such when there are several debtors. In this case, the creditor acts in the singular. He has the right to demand fulfillment of obligations from all debtors. If there are several creditors and debtors within the framework of one relationship, then they speak of mixed multiplicity. In this case, there are both passive and active forms.
Shared and joint responsibility: differences
This classification is based on the scope of duties and rights of each participant. In addition, the law establishes the possibility of attracting a subsidiary from the debtor. Claims, in accordance with the general rule, are shared if the grounds for the occurrence of obligations (contract or regulation) do not provide for solidarity.
With this form of liability with active multiplicity, each creditor can make a claim in proportion to the share owed to him, with passive - only in a certain amount. Moreover, the parts are considered equal if the grounds for occurrence and termination of obligations do not provide for another.
With joint liability and active multiplicity, each of the lenders may demand the fulfillment of the established conditions in full. In a passive form, it is allowed to submit claims to all debtors at the same time, and to any separately (partially or completely). Participants shall be jointly and severally liable until all the conditions have been fulfilled.
After proper closure of the debt in favor of one, several joint creditors or as a result of separation between debtors, settlements are made. An obligated person who has fulfilled the conditions may present a regressive claim against the remaining participants of joint liability in certain shares, minus his own. The creditor who has received the fulfillment of the claims shall reimburse what is due to the rest.
Face change
The concept and grounds for the occurrence of obligations for the most part involve the participation of persons in property relations not having a personal nature. In this regard, the law allows the replacement of the debtor or creditor by another person. This procedure is regulated by Chapter 24 of the Civil Code.
In the event of a change in persons, the duties and rights of the entity that is retiring from the relationship are transferred to its replacement. Such actions are permissible in accordance with the terms of the contract or by law. As an exception, there are cases when the rights are inextricably linked with the identity of the creditor. So, for example, it happens when alimony claims are made, compensation for harm to health or life is charged. Cases in which a change of persons is allowed are given in Art. 387 Civil Code and other regulatory acts. For example, the creditor's rights are transferred to another participant due to:
- Universal succession (upon inheritance, reorganization of an enterprise).
- Judicial decision (in case this possibility is provided by law). For example, in accordance with Art. 250, p. 3 of the Civil Code, upon sale of a share of the right of ownership in case of violation of the preemptive purchase procedure, any shareholder may demand recognition of him as a buyer within three months.
- The performance of the obligation by the guarantor of the debtor and other.
According to Art.384 of the Civil Code, the right of the first creditor passes to a new one in those conditions and in the volume that took place at the time of replacement. This provision applies not only to the basic requirement. Other rights related to the obligation also pass. In particular, they include the ability to demand unpaid interest, establish a penalty, determine a pledge, and so on. The scope of opportunities that pass upon a change of face may be changed by contract or law.
The transaction, which acts as the basis in the relationship under consideration, is called a concession or cession. In this case, the lender, who transfers his capabilities, is called the assignor. The person accepting them is called the assignee. The concept and grounds for the occurrence of obligations in this case provide for the submission of the cession form to the rules of the type of transaction in which there is a change of persons (notarial, written simple). If the transfer of opportunities is carried out in relations requiring state registration, the cession is also subject to this registration, unless otherwise provided by law.
Cession notice
When changing persons, the principle of the invariability of the essence of the obligation applies. In this case, the debtor should do the same, on the same condition as with the original creditor. In this regard, in accordance with the general rule, consent to the assignment of the first is not required.
The need to approve the change of persons by the debtor appears in cases provided by law or contractual terms, as well as if the creditor’s identity is important for the contractor (for example, under a gift agreement).
The creditor must notify the second party of the assignment. The assignee is primarily interested in this. As art. 382 of the Civil Code, for a new creditor there may be adverse consequences associated with failure to notify the debtor. The fact is that the fulfillment of the obligations of the original person making the claims is considered as a set off. In this case, the assignee has the opportunity to recover from the original creditor upon unjust enrichment. In addition, the debtor has the right to raise only those objections to the assignee that he had at the time of receipt of the notice. The assignor is obligated to send the assignee documents that certify his right of claim. In addition, he must provide all the information that will be relevant in meeting the requirement.
The debtor has the right to request evidence from the new creditor of the fact of transfer. If they are not submitted, he may refuse to fulfill the requirements. This is due to the risk of adverse consequences for the debtor in the performance of obligations to the improper person.
Change of faces and recourse claim
These two concepts have significant differences. A liability is recognized as regressive under which one person can demand from another property transferred to a third party through the intentional or unintentional fault of the latter. Here you should distinguish between situations:
- There is a basic obligation between the regatta and the creditor. The reagent performs it in favor of the second. At the same time, he receives the right to the reverse requirement to the regress within the framework of the fulfilled obligation. For example, an insurance company or a bank, acting as a guarantor, pays a lender a certain amount. In this case, the legal entity receives the right to request funds from the debtor in recourse.
- Between the creditor and the regredient obligations arise when the latter is responsible for the debtor. When fulfilling the requirements, the former gains the opportunity to declare a recourse claim. This takes place in the presence of legal liability. persons for the actions of their employee, for example.
In these cases, there is a termination of the underlying obligation and the emergence of a recourse.The Assignee gains opportunities through succession. They depend on the rights of the assignor, his relations with the debtor. This dependence is defined in Sec. 24 CC, regulating the change of persons. In case of a recourse requirement, the right of the re-distributor does not depend on the capabilities of the creditor. There are also other differences in consequences. So, according to Art. 200 p. 3 of the Civil Code, for recourse liability the beginning of the limitation period coincides with the moment of fulfillment of the main claim. According to Art. 412 of the Civil Code, the debtor cannot set off against the conditions of the regressive creditor a counterclaim to the principal obligator.
Proper execution
The conditions in accordance with which the obligations are fulfilled are indicated in the law, other regulatory acts or the contract. In the absence of such, proper execution must comply with business customs or other typical requirements. A unilateral disclaimer or a change in the terms of an obligation is not allowed, except as provided by law.
When carrying out commercial activities, these actions are allowed, if they are stipulated by the contract. However, this should not contradict the content of obligations or the law. The creditor may not accept the execution of claims in parts. Exceptions are cases defined by law or the terms of the contract.
The debtor has the right to require the creditor to confirm the offset by him or his representative of the performance of obligations. In this case, the first bears the risk of not presenting this request. Fulfillment of requirements may be assigned to a third party. The exception is the condition of the contract or the law establishing the personal fulfillment of obligations by the debtor.
In other situations, the creditor needs to set off performance. A third party who is at risk of losing his right to dispose of the property of the debtor may satisfy the request at his own expense. In this case, the creditor's right passes to him in accordance with Art. 382-387 Civil Code.
Period of execution
If the terms of the obligation provide for the appointment of a specific date or period during which it must be fulfilled, the requirement must be fulfilled at any time of the specified time period or by a specific day. In other cases, a reasonable time limit is set by default.
The debtor may fulfill the obligation earlier than the stated date, unless otherwise provided by contract or law. The possibility of early repayment of claims is allowed only in cases determined by regulatory enactments, business customs, and circumstances of the agreement.
