of November 22, 2016 No. 54
About some questions of application of general provisions of the Civil code of the Russian Federation of obligations and their execution
For the purpose of ensuring unity of practice of application by courts of general provisions of the Civil code of the Russian Federation about obligations and their execution the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations.
1. Owing to the obligation one person (debtor) shall make certain action for benefit of other person (creditor) or refrain from making of certain action, and the creditor has the right to demand from the debtor of execution of its obligation (Item 1 of article 307 Civil Code of the Russian Federation).
At the same time it must be kept in mind that the exhaustive list of actions which making or abstention from making of which can be subject of the obligation is not established by article 307 Civil Code of the Russian Federation.
In the cases provided by the law or following from being of the obligation the obligation can be assigned to the party to be responsible for approach or not approach of the certain circumstances including which are not depending on her behavior, for example in case of unauthenticity of assurance about circumstances when implementing business activity (item 4 of article 431.2 Civil Code of the Russian Federation) or in case of withdrawal of goods at the buyer by the third parties (Item 1 of article 461 Civil Code of the Russian Federation).
2. By the general rule, stipulated in Item 3 articles 308 Civil Codes of the Russian Federation, the obligation does not create the rights and obligations for persons who are not participating in it as the parties (for the third parties). Respectively, obligation parties cannot push concerning the third parties of objection, based on the obligation among themselves, as well as the third parties cannot push the objections following from the obligation in which they do not participate. For example, upon transition of the rights of the creditor to other person under the agreement on requirement concession the debtor as objection against requirements of the new creditor has no right to refer to non-execution by the cessionary of obligations on payment of right to claim to the assignor.
At the same time in the cases established by the law, other legal acts or the agreement of the parties the obligation can create obligation of the debtor to make certain action or to refrain from it concerning the third parties, to create for the third parties of the right concerning obligation parties (for example, in case of the conclusion of the agreement for benefit of the third party according to article 430 Civil Code of the Russian Federation).
3. Homogeneous obligations according to which creditors can sign the agreement on procedure for satisfaction of their requirements to the debtor (Item 1 of article 309.1 Civil Code of the Russian Federation) are, in particular, the obligations providing transfer of the things or the rights determined by patrimonial signs, for example, liabilities or obligations on transfer of bank entry securities of certain category (type).
4. Owing to Item 3 of article 309.1 Civil Code of the Russian Federation the agreement of creditors does not create obligation for the debtor who was not participating in this agreement. The procedure for satisfaction of requirements provided by such agreement is not the basis for refusal of the creditor in acceptance of the proper execution offered by the debtor. In case of such refusal the creditor is considered delayed (Item 1 of article 406 Civil Code of the Russian Federation).
Similarly the agreement of creditors on procedure for satisfaction of their homogeneous requirements to the debtor creates obligations between creditors, but does not change the procedure for holding procedures and priority of satisfaction of requirements of creditors established by the Federal Law of October 26, 2002 No. 127-FZ "About insolvency (bankruptcy)".
5. According to Item 2 of article 309.1 Civil Code of the Russian Federation the creditor shall give the proper execution accepted from the debtor to other creditor or other creditors according to the agreement between them.
In that case in the corresponding part the obligation of the debtor concerning the creditor who accepted proper execution to which in the corresponding part passes the requirement to the debtor from the creditor to whom execution is transferred is considered fulfilled.
6. In case of the dispute resolution, concerning obligation fulfillment on transfer of execution by one creditor to another, the court checks whether the agreement between creditors is the provided law or other legal acts the agreement, for example the commission agreement, the agency agreement or the agreement of particular partnership (Chapter 51, 52 and 55 Civil Codes of the Russian Federation) mixed by the agreement or the agreement which is not provided by the law or other legal acts (Items 2 and 3 of article 421 Civil Code of the Russian Federation).
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