Payment by third parties. Fulfillment of the obligation by a third party

Ways of securing obligations are very diverse, each of them has its own established rules and conditions. In such relationships, various entities with one or another status may participate. The presence of third-party parties to the agreement is mandatory documented.

A third party can replace both the obligated person and the creditor - the second participant, depending on the situation that has developed. Payment by a third party (both physical and legal) is carried out in the performance of certain obligations by agreement in each individual case. About what the essence and concept of a third party are, what are the grounds for fulfilling the debtor's obligations and consequences leading to the completion of the contract, and also in what cases the creditor has the full right not to agree to participate in the transaction of another person, and we will discuss further.

Definition

Consider the role of a third party in creating agreements. It is usually considered that a third party is a participant who enters into the process of fulfilling an obligation under a formalized contract voluntarily or in some cases brought in by a court. This is a party that can make certain claims to the subject of the dispute and acts to protect its own rights on the side of the creditor or the obligated party, taking into account its interests of a material, legal or procedural nature.

However, in relation to a certain obligation, the third party does not have a contractual relationship with the organization. That is, payment in the interests of a third party is not made by the company itself, but by its counterparty. Or, conversely, the payment of debt by a third party is not carried out for the company itself, but for another company to which this organization owes, and payments are offset.

For example, a provider of certain services or goods may ask their partner to pay debts to the housing and communal services. In this case, for this partner, the organization in whose favor he will make payments will be a third party. True, according to article 313 of the Civil Code of the Russian Federation, he has every right not to make such payments, unless this is expressly stated in the contract. A lawsuit in this case will not help either, as the arbitrators cannot force them to take voluntary actions.

General concepts

In accordance with article 307 of the Civil Code of the Russian Federation, usually two persons take part in drafting agreements with the obligations arising from it: the creditor and the party obligated to it, but the third person is no longer included in the circle of persons concluding the agreement. Accordingly, it does not receive any duties and rights under this agreement, as stated in the Resolution “On some issues of application” No. 54, which was passed in 2016 by the Plenum of the Supreme Court of the Russian Federation.

However, there are exceptions to this rule. In certain situations, third parties have a certain connection with what is happening. This occurs in the following cases:

1. If the parties to the agreement have concluded an agreement in favor of the third party, and not in the interests of the creditor. For example, it may be an agreement on compulsory motor insurance of the vehicle owner.
2. When a third party fulfills the obligations of the debtor entrusted to it (for example, payment of a loan by third parties can be cited) or replaces the creditor as a participant accepting the execution of the contract.
3. If a third party has any other effect on the executed agreement.This includes written consent to the transaction.

At the same time, it should be remembered that the third party is not a party to the originally executed agreement between the creditor and the person obligated to him, even in those situations when it assumes the role of one or another party, taking into account the signed agreement and the current situation.

Fulfillment of the obligation by a third party

In accordance with article 313 of the Civil Code of the Russian Federation, a third party may begin to fulfill obligations both on a voluntary basis and on the initiative of the obligated party. The legislation allows partial or full payment by third parties under an agreement of any types of debts and obligations. But the final decision on the adoption of such execution lies with the lender. At the same time, the latter has no authority to refuse to repay the debt by a third party in the following exceptional situations:

• if the debtor has delayed the performance of a financial obligation;
• in case of documented transfer of the obligation by the debtor to a third party;
• if the rights to the property of the debtor belong to a third party, and it may lose them due to levy on the obligated party.

Other situations involve the imposition of obligations on the debtor himself, especially if it is initially indicated in the contract, legislative standards and other provisions and acts, while payment by third parties is not allowed. Also, the creditor has the full right to refuse to attract a third party to fulfill the agreement, as stated in article 313 of the Civil Code of the Russian Federation.

If the creditor nevertheless refuses to have the obligations fulfilled by the third party, there is a likelihood of recognition by the late party. Consequently, due to losses associated with the delay, the obligated party has the full right not to pay the accrued interest for the entire period of delay under the agreement. Article 406 of the Civil Code of the Russian Federation officially confirms this rule.

Effects

As indicated in article 408 of the Civil Code of the Russian Federation, duly paid by third parties indicates the expiration of the drawn-up agreement. If a third party accepted the fulfillment of obligations delegated by the debtor, and this operation was documented, then the conditions under which the executed agreement will cease to be valid are governed by the provisions specified therein.

If a third party fulfilled the debtor's obligations on a voluntary basis, then in accordance with Article 387 of the Civil Code of the Russian Federation, it receives the rights of a creditor, and the authorized participant in the agreement drops out of it.

However, if payment by a third party has caused damage to any of the parties to the contract, the acquisition by a third party of creditor rights may be invalidated.

In those situations when a third party refuses to fulfill obligations officially committed by the debtor or performs them improperly, the responsibility to the creditor lies with the party obligated to it. The principle of responsibility here is based on the fact that the creditor is not obliged to lose in case of replacement of the contractor. This also applies to situations of narrowing the boundaries of the debtor's responsibility, in which the interests of a third party are protected. For example, when transferring things for storage, the depositor himself is liable only in case of gross oversight or in case of intent. The custodian, who transferred the property for storage to another person, acts as a defendant for the actions of this third party.

If the creditor transfers his right to collect debts to another person, the contractor, in accordance with Article 312 of the Civil Code of the Russian Federation, must demand proof from this person of his competence. Failure to comply with this provision may lead to the likelihood that the person in whose interests obligations will be fulfilled will be inappropriate.

If a third party independently repays the debt of the obligated party (in cases where it is not financial), then it is responsible for the shortcomings of the execution of the contract instead of the debtor. However, this legislative norm, due to its inconsistency, is rarely used in judicial practice.

Eviction

In some cases, it is possible for the buyer to seize the property on the grounds that arose before the sale of the goods - this process is called eviction. The term appeared in ancient Rome. It means that if the seller of the property is not its owner, then he may have to bear responsibility to the buyer, since a third party (this is the original owner) may request this product back.

Thus, upon evacuation, the requirements of a third party will be satisfied only if certain obligations of the participant to his counterparty are generated. The seller will be obligated to indemnify the buyer in the event of the seizure of the last acquired property.

About eviction is referred to in Articles 461 and 462 of the Civil Code of the Russian Federation. It is indicated here that in case of disagreement and alienation of the goods from the acquirer, the seller must participate in the case, otherwise he will not be able to subsequently provide any evidence. The seller will be liable even in the case of an agreement between the seller and the buyer, relieving the seller of obligations in relation to the goods sold. Despite the imperative nature of the articles, they also indicate situations in which the seller’s liability may be limited and third parties may pay for the goods.

Eviction acts in defense of the interests of buyers carrying out lawful actions. If the acquirer of the property at the time of purchase of the goods knew about the ownership right of a third party to him, then he is not entitled to use the existing norms for regulating eviction.

The eviction rules apply to any agreement under which the alienated property was acquired.

Agreement between a third party and the debtor

Most often, payment by third parties and repayment of the obligations of the debtor by them is carried out on the basis of the executed agreement. Often a third party agrees to sign this agreement if it already has certain obligations in favor of the obligated person. In this regard, the conclusion of such an agreement is of particular interest to a third party, as it allows it to relieve itself of its current responsibility to the debtor.

The contract can be drawn up in free form, the parties to the agreement can write in it any conditions to the mutual satisfaction of both parties. The legislation does not regulate the content and form of such an agreement. Most often, such agreements contain the following information:

• name of agreement;
• registration address and date;
• details of the obligated party and third party;
• information about the agreement, the execution of which is delegated to a third party;
• data on the rights, responsibilities and obligations of the parties;
• signatures of participants;
• events that occur after the due fulfillment of obligations by a third party (this includes termination of debt to the obligated party).

Fulfillment Order

In most cases, the debtor can send to the third party an order to fulfill the obligation by a separate additional document drawn up for the implementation of the contract. It usually looks like a letter to the head of the company from the counterparty. It should meet the following data:

• details of the agreement and its name, the application to which is the created order;
• information about the obligation imposed on the third party instead of the obliged party (including the amount to pay the bill, the purpose of the transfer indicating the account or contract numbers, details of the organization indicating where the payment should be transferred if this is a monetary obligation);
• additional clarifying information;
• consequences arising after the implementation of the contract.

A detailed presentation of all data will protect the payer from possible risks.

In order to pay off a counter obligation, payment for a third party may also apply.The purpose of the payment made in this way is the mutual deduction of debts, that is, the organization covers its debts by paying off the obligations of its creditor. At the same time, the instruction must reflect information that contains the details of the invoice, the act, the contract itself and other documents, taking into account current circumstances. The document should also indicate data on the counter obligation, which will be repaid in this way. On behalf of the affixed signature of the authorized person - the head of the organization.

Performance Notification

When the debtor delegates his obligations to a third party, most often the creditor is forced to accept this fact. However, the law does not provide for obligatory verification by the creditor of information about the existence of such an order and the data contained therein. Despite this, it is advisable that the debtor send a notice to the creditor of the fulfillment of the obligation by a third party. This is done to avoid delaying the process of fulfilling the contract and disagreements between the parties to the agreement.

There are times when such a notification is sent to the debtor himself. This usually happens after a third party, on its own initiative, fulfills the obligations of the debtor. If the obliged party is not informed in time about the completion of obligations, the consequences are likely in the form of a risk of repayment of the obligation by the obligated party to the previous creditor.

Tax payment

When making payments to third parties, the question may arise about how legitimate the use of the VAT deduction is. However, neither the Tax Code nor the Ministry of Finance see any obstacles to such actions. This is also evidenced by the absence of special provisions on the application of deductions in Article 172 of the Tax Code committed during the payment of taxes by third parties, therefore this does not affect the use of deductions.

Many years of judicial practice also speaks in favor of companies that deduct VAT after payment. Court decisions confirmed that actual payment to a third party does not affect the reasonableness of the use of VAT deductions.

Making a loan with a guarantor

In order to better understand the issues of payment by third-party participants, you can consider the private and most common example of this phenomenon: a loan with a guarantor. It is issued in cases where it is necessary to take a loan for a sufficiently large amount, but the size of the white salary is not enough for approval by the bank. Then, loans issued under the guarantee of legal entities and individuals can serve as a way out.

A loan with a guarantee is one of the main mechanisms that ensures the fulfillment of obligations imposed on the borrower. In this case, the guarantor is a person who can be both physical and legal, repaying the debt of the borrower if the latter does not fulfill the loan conditions. Both parties to the agreement (the borrower and the guarantor) bear equal responsibility.

Clients draw up a loan with a guarantor in the following situations:

• to reduce interest rates;
• to get a larger amount of money;
• in the absence of official employment (in some cases);
• with a not very favorable credit history.

If the borrower violates the terms of the contract of guarantee, the responsibility for their implementation lies with the surety. He will be required to repay the principal amount of the debt and the related commission, which includes fines, penalties, interest and other payments. As you might guess, a surety is a third party when concluding a loan agreement.

When applying for a loan, a surety agreement must be drawn up.Depending on the parties involved in the creation of the agreement, it can be either bilateral - between the lender and the guarantor, or tripartite, in the creation of which another party is involved - the borrower. If necessary, a collateral agreement is additionally drawn up. It is drawn up in order to ensure additional security of the transaction; the property of the borrower or guarantor acts here as a pledge.

Conclusion

In general, both the debtor and the third party may voluntarily fulfill obligations under the contract or on behalf of the obligated party. Legislatively established situations in which the creditor has the right to refuse to pay the bill by a third party or must agree to such fulfillment of the obligation. The due fulfillment of the terms of the contract by the third party will lead to the termination of existing obligations that arose between the creditor and the person obligated to him.