The authorized party in the obligation is referred to as the creditor, and the obligated party is called the debtor. Participants may be represented by one, two or more persons (plurality). The duty that lies with the debtor is called duty. If several creditors and debtors take part in the legal relationship, then each of the first may demand the fulfillment of the accepted conditions equally with the others. At the same time, all debtors are obliged to answer equally with the rest, since the other does not come from laws, other regulations or the terms of the agreement. The object of the obligation is action. It can be positive (to accomplish something) or negative (to refrain from doing something). Change and termination of obligations is carried out in accordance with certain circumstances. Next, we consider how the legal relationship between creditors and debtors ends.
Grounds for termination of obligations
They are classified in different ways. In particular, the grounds for termination of obligations are divided into categories depending on the absence or presence of the will of the parties. So, the circumstances highlight:
- By the will of all parties. In these cases, the grounds for termination of the obligation are:
- novation;
- proper execution;
- debt forgiveness;
- compensation and so on.
- By the will of one side. In this case, it refers to the termination of the liability by set-off, a claim and so on.
- Regardless of the will. We are talking, for example, about the impossibility of execution for one reason or another, including in connection with the publication by a state agency of an act that makes the execution impossible; coincidence in one person of the debtor and creditor; death of a citizen in circumstances that are closely related to the person; liquidation of the enterprise and so on.
Basic tricks
Methods of termination of obligations are divided according to various criteria. In accordance with their direct focus emit:
- Focused on termination of obligations. This category includes expiration, novation, proper execution, compensation, debt forgiveness, etc.
- Not intended to terminate obligations, but entailing appropriate legal consequences. This category includes the coincidence of the creditor and the debtor in one person, the liquidation of the organization and so on.
In some cases, a settlement is also included in this category. However, according to some experts, this is not true. An amicable settlement is not a way to terminate an obligation. It acts as a method of formalizing the agreement reached during the proceedings. Among other things, reaching a settlement does not relieve the debtor of the need to fulfill the conditions. Therefore, it is not a way to terminate an obligation.
Most popular method
The termination of an obligation by offset is governed by Art. 410-412 Civil Code. The party initiating the event must follow a specific procedure. First of all, the termination of obligations in this way is allowed if the parties are parties to two or more transactions, during which there are homogeneous counterclaims. In practice, such repayment is carried out in the presence of different agreements between the same persons. Most often, termination of obligations in this way is used in the presence of monetary debts.
Basic conditions
Offsetting can repay homogeneous claims for which the time has come; the period is not specified (in this case, execution is carried out "at a reasonable time"); date in which is determined by the time of demand. If the obligations have a different scope, then the larger is only partially repaid - in accordance with the size of the smaller requirement. Thus, the first of them is saved. In this case, the second, which had a smaller volume, ceases. There may be several claims. They can be terminated by offsetting, subject to the rules established in the Civil Code. There are a number of claims that cannot be settled in this way. In particular, the termination of:
- maintenance obligations.
Requirements for:
- lifelong maintenance;
- compensation for harm to health and life.
Termination of obligations in this way is also not permitted if the limitation period is applicable to the presented claim and its time has come.
Concession
Termination of obligations in this way is regulated in Art. 412 GK. The debtor may present his claim to the client against the claim of the financial agent. The offset will be made if the obligation appeared on the basis that existed at the time of receipt of the notice of assignment.
In this case, his term has come before receipt or it is not indicated, or is determined by the date of demand. The right to make claims may transfer to another person by law or in accordance with the terms of the transaction. For the transfer of creditor powers, the consent of the debtor is not required, except as otherwise provided by the rules or the contract. Upon assignment, the debtor shall be notified in writing of this. There is a restriction in the Civil Code under which termination of obligations in civil law by way of assignment is not allowed. In particular, this applies to claims for damages to health and life. A concession for maintenance obligations is not permitted.
Retreat
This method of termination of obligations is regulated in art. 409 Civil Code. So, a claim can be repaid by transferring property, paying money, and so on. In this case, the contract should stipulate the procedure and terms for the provision of compensation. The rules for taxation of turnover of this kind are determined by the following factors:
- Type of contract.
- The type of object provided in return.
- Whether the debtor is a taxpayer under the VAT legislation.
- Is the turnover related to the sale of goods (services) under the contract taxed.
If the compensation is provided by an individual entrepreneur or an individual, then the obligation to pay VAT and other requirements of Art. 23 of the Tax Code, they should not execute.
The coincidence in one person of the creditor and the debtor
This can happen due to various reasons. The most common ground is universal succession. This, for example, concerns the process of reorganization of organizations in the form of mergers or acquisitions. Both pre-existing legal entities were different parties to the same obligation. The object of taxation arises only when it is established that one party sold products, services (work) to the other side. If one of the participants in the legal relationship received an advance payment, but did not provide a service or did not deliver the goods, then these funds should be included in the taxable turnover under Art. 162 Tax Code (if their turnover does not apply to the export of products whose production cycle is more than 6 months). If, at the time at which the obligations ceased, not one party fulfilled them, then no one will be subject to VAT.
Novation
As art. 414, the obligation is terminated by signing an agreement on the replacement of the original claim by another, arising between the same parties, but providing for another object or option for execution. As in the above cases, there are a number of limitations.In particular, novation does not apply to the termination of maintenance obligations or related health compensation and life.
Novation has differences from debt transfer and assignment. In particular, in this case there is a replacement of the requirement - a new one appears instead of the terminated obligation. A prerequisite for using novation is the preservation of the subject composition. As in the original and in the new obligation, the same person will be the creditor and debtor. When replacing claims, revenue is recalculated from both parties. The occurrence or absence of a VAT item for a new obligation will depend on its content and type.
Debt forgiveness
Termination of the obligation is carried out by exemption of the debtor from the need to comply with the requirements. It is allowed in the event that this does not infringe on the interests of other persons in relation to creditor property. Forgiveness of debt is different in that it does not provide for reciprocal satisfaction. This method of termination of the obligation is equivalent to the type of gift. In this regard, it should be fixed by agreement of the parties, as well as obey the restrictions and prohibitions regulated by art. 575, 576 Civil Code. In a bilateral agreement, forgiving a debt to one counterparty does not exempt him from the fulfillment of the counterclaim. Debt forgiveness is not allowed if the creditor is declared bankrupt.
Impossibility of execution
This method of termination of an obligation is applied in the presence of circumstances for which neither of the parties is responsible. If the impossibility of performance has arisen due to the actions of the creditor, then he cannot demand the return of the debt from the debtor. The execution of the actions that make up the content of this basis may be legal and factual. The impossibility of execution may be associated with the loss of property, which is the subject of the requirements.
State agency act
If it partially or completely impedes the fulfillment of requirements, the obligation shall terminate in accordance with the authority of the document. If the parties incurred losses from this, they can ask for their compensation (according to Articles 16 and 13 of the Civil Code). Upon recognition of the invalidity of an act of a state body, an obligation terminated in accordance with it shall be restored, unless otherwise provided by the merits of the claim or agreement of the parties, as well as if the performance remained in the interests of the creditor.
Death of one of the parties
The termination of an obligation in connection with this ground takes place if the fulfillment of the requirements cannot be carried out by other persons or it is inextricably linked with his personality. The death of the debtor is also possible. In this case, the obligation is terminated if the performance is intended exclusively for the deceased or is inextricably linked to his personality.
Legal entity liquidation
In this case, the obligation shall be terminated if the transfer of debts to another person is not provided for in accordance with the terms of the contract, the law or other regulatory acts. Removal of requirements may be carried out before liquidation. Cases in which such termination of obligations is allowed are listed in Art. 64, paragraph 6 of the Civil Code.
Finally
To date, the provisions of the Civil Code regarding obligations arising from unjust enrichment. In this case, the person who illegally acquired the property of another person (creditor) acts as a debtor. In this regard, it must return the object to the owner. Together with those, the debtor must reimburse all income that was or could be obtained from this property. The amount of enrichment is charged interest for the use of funds of third parties in accordance with the average bank rate at the place of stay of the creditor.