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DETERMINATION OF CK OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of February 17, 1995

If person which did not fulfill the obligation does not prove lack of the fault in it, it bears property responsibility, except as specified, provided by the law or the agreement

(extraction)

Agarkov took a legal action with the claim to the Central Committee of DOSAAF of the USSR, to his legal successor - to Management on carrying out lotteries of Central Office of the Russian Defense, Sports and Technical Organization (RD,STO) - about obligation fulfillment on issue of the car of the Zhiguli brand of VAZ-2109, referring to the fact that he won the car of this brand under the ticket of lottery of DOSAAF of the USSR, however is refused to it issue of prize.

By the decision of the Tushino district national court of Moscow of June 11, 1993 (left without change by judicial board on civil cases of the Moscow city court) the claim to Ogarkov it is refused.

The vice-chairman of the Supreme Court of the Russian Federation in the protest brought in Judicial board on civil cases of the Supreme Court of the Russian Federation in view of lack of quorum in presidium of the Moscow city court raised question of cancellation of court decrees as not meeting standards of liability law.

The judicial board of the Supreme Court of the Russian Federation satisfied on February 17, 1995 protest, having specified the following.

The court refused the claim, having referred to the fact that the former bodies of the USSR the Ministry of Trade of the USSR, Minavtoselkhozmash of the USSR, Minoboronprom of the USSR to which the obligation on providing ware prizes of lottery of DOSAAF of the USSR at the expense of centralized funds was assigned, because of disintegration of old commercial relations and creation of the new market relations did not fulfill the obligations to DOSAAF therefore the obligation by the defendant before the claimant could not be fulfilled.

Conclusions of court are drawn without regulations of liability law and according to unchecked case papers.

According to the order of Council of Ministers of the USSR of N 1123-p of July 14, 1990, the Central Committee of DOSAAF carried out in 1991 lotteries of DOSAAF of the USSR by two circulations on the amount of 100 million rubles. The advantageous fund of each circulation constituted 50% of cost of the issued tickets. The trading organizations of Ministry of Trade of the USSR and Minavtoselkhozmash of the USSR (on cars) shall issue prizes on lotteries of DOSAAF of the USSR from market funds, and Sberbank branch of the USSR - to issue winnings and to pay money instead of ware prizes of all types with subsequent compensation of production expenses at the expense of the Central Committee of DOSAAF of the USSR.

At this order and Conditions of carrying out lottery of DOSAAF of the USSR attached to it there is no specifying that the material security of prizes shall be made only at the expense of centralized market funds. According to the called conditions advantageous lottery tickets were accepted for payment till June 30, 1992 inclusive. Other cases in case of which issue of prizes was not made in Conditions are not specified.

Apparently from case papers, Agarkov won under the lottery ticket of lottery of DOSAAF of the USSR VAZ-2109 Zhiguli car in July, 1991, returned the ticket for examination on July 24, 1991. Solvency of the ticket is confirmed with examination. Conditions of carrying out lottery of DOSAAF of the USSR by the claimant are complied in this connection he had the right to prize in nature.

The reasons for which he did not receive the car were not researched by court with necessary completeness.

Apparently from the accompanying inventory on the won ticket of lottery of DOSAAF of the USSR, the job specification for dispatch of the car it is issued on August 26, 1991.

Then the Management of the Central Committee of DOSAAF of the USSR on carrying out lottery reported to Ogarkov that the advantageous ticket is acknowledged payment, documents for receipt of the car to it will be sent by the trading organization issuing prizes - consolidation of Rosposyltorg.

The court did not find out whether it was and when the job specification on receipt of prize by the claimant is sent to consolidation of Rosposyltorga, did not pay attention and did not research entry in the accompanying inventory that instead of the job specification the special order is written out and it is sent on August 24, 1992 to Sberbank branch for payment of sum of money of 15 300 rub to Ogarkov.

According to the telephone message of Rosposyltorg reported to Management on carrying out lotteries of the Central Committee of DOSAAF of the USSR that the Volga Automobile Plant stopped acceptance of job specifications on cars. The court did not check what measures to receipt of prize by the claimant were taken from the date of issue of the job specification - since August 26, 1991, did not find out whether had Management on carrying out lotteries opportunity to acquire VAZ-2109 Zhiguli car for the claimant at the expense of advantageous fund or other financial, economic sources of the organization.

According to Art. 222 of the Civil Code of the Russian Federation (1964), the person which did not fulfill the obligation or performed in its inadequate way bears property responsibility only with fault (intention or imprudence), except the cases provided by the law or the agreement. Lack of fault is proved by person which violated the obligation.

The defendant's legal successor - POCTO is not produced the evidence of lack of fault in non-execution of the obligation, taking measures to research of others, except centralized share deliveries, opportunities for issue of prize to the claimant though when carrying out lottery the defendant shall fulfill the undertaken obligations. Failure to carry out of these obligations with reference to the third parties does not testify to lack of fault of the defendant in this case as according to the regulation provided by Art. 223 of the Civil Code of the Russian Federation (1964), the former Central Committee of DOSAAF (nowadays POCTO) was responsible as the founder of lottery of DOSAAF of the USSR and for actions of the third parties.

The court does not find out whether the claimant wished to exercise the right to monetary compensation of cost of the advantageous car why the letter with the offer to pay in addition difference in the car price only in March, 1992 is sent it.

Taking into account stated court decrees it is impossible to recognize reasonable, they are subject to cancellation.

 

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