Contractual Preemptive Rights: Russian Doctrine and European Tradition in the Context of Russian Civil Code Reform

Problems associated with the possibility of the stipulation of preemptive rights by contract and their effective protection are researched in this article. Based on the examples of German, French and Swiss civil legislation, we establish that contractual preemption is widely used in Europe as a convenient instrument to formalize the interests of the participants in a civil turnover. In this connection, in Russian civil doctrine, the widespread idea that preemptive rights may be stipulated only by law, not by contract, should be revised.We state that the essence of the institution of preemptive rights predetermines its remedy. Historically Russian civil law provides specific remedy in case of breach of the most spread statutory preemptive rights. It is a claim by the entitled person (holder of preemption) against a third party (counterparty of obliged person whose contract breached the preemption) to transfer from the third party to the entitled person the rights and duties that arose under the contract between the third party and the obliged person. This remedy is more efficient for the entitled person than damages. In accordance with the principle of good faith, it may be used only in cases in which the third party knew or should have known about preemption. However, this requirement is complied in relation to protection of statutory preemptions only. As far as both contractual preemptive rights and contracts stipulated the latter are not recognized and not registered in Russia, such suit will be dismissed by court. The lack of effective protection of contractual preemptions impedes the creation of full-fledge system of preemptive rights in Russian civil law.In order to create effective mechanism of protection of contractual preemptive rights by giving the participants of a civil turnover the opportunity to ascertain if there is a contractual preemptions, we suggest that Russian civil legislation should be added by two registration systems. The first is a system for the registration of contracts that stipulate preemptions over immovable property (or registration of the preemptions itself which is better) provided by the Federal Service for State Registration, Cadastre and Cartography of the Russian Federation. The second is a system for the registration of notifications on the conclusion of contracts that stipulate contractual preemptive rights over movable things that could be established by an expansion of the existing system for the e-registration of notifications оf pledges of movable things under the jurisdiction of the Federal Chamber of Notaries of the Russian Federation.

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La nature et l'intérêt du crédit-bail en informatique

Les Cahiers de droit ◽

10.7202/042911ar ◽

2005 ◽

Vol 29 (3) ◽

pp. 815-827

Author(s):

Claude Gilbert

Keyword(s):

New Technologies ◽

Civil Law ◽

Third Party ◽

The Third ◽

Computer Equipment ◽

Legal Nature ◽

The Third Party ◽

Legal Consequences

Third-party leasing is now part and parcel of new contractual forms that have appeared with the development of commerce. Moreover, progress in new technologies has given birth to computer contracts. In the same way that the originality of third-party leasing has stimulated thinking on the legal nature of this operation in Civil law, the technical complexity of considerations due under computer contracts has brought about the adoption of clauses specifically adapted to this type of covenant. Since the third-party lease is used to finance the acquisition of computer equipment, the ensuing note attempts to analyse the legal consequences of two converging enigmas. Briefly stated, third-party computer leasing is characterized by the distinction between hardware and software (of which the latter does not in principle lend itself to leasing operations), the particular importance of obligations on guarantees by the supplier with regard to the user, and to the presumption of technical ignorance on the part of the user. The second of these characteristics is normal in third-party leases and the last occurs frequently in computer contracts.

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Applying the Rules of Eviction in the Domestic Civil Law

Legal Concept ◽

10.15688/lc.jvolsu.2020.2.13 ◽

2020 ◽

pp. 89-96

Author(s):

Elvira Osadchenko

Keyword(s):

Russian Federation ◽

Civil Law ◽

Semantic Content ◽

Good Faith ◽

Third Party ◽

Judicial Practice ◽

Bona Fide ◽

The Russian Federation ◽

Contractual Obligations ◽

Made In

Introduction: the paper is devoted to the study of certain problematic issues of eviction, which gives rise to the responsibility of an unscrupulous seller in the event of a third party claiming a thing. For this purpose, the author considers the concept and features of a bona fide buyer, identified by the civil doctrine and used by the judicial practice. Using the methods of scientific knowledge, primarily the method of system and comparative analysis, the author identifies the constituent features of “eviction” by applying an essential-substantival approach to the study of the concept of a bona fide purchaser. Results: it is found that the Civil Code of the Russian Federation does not contain a list of criteria confirming the good faith of a person. An attempt to develop such a list is made in the paper through the semantic content of the concept of good faith. Conclusions: the author concluded that fixing the eviction signs and the criteria of good faith in the civil legislation of the Russian Federation will make it possible to protect the interests of contractors, reduce the risks and protect the parties from possible fraudulent actions and most fully ensure the performance of contractual obligations primarily on the part of the seller.

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Preparations used in the fight against wireworms and aphids on potato

Rossiiskaia selskokhoziaistvennaia nauka ◽

10.31857/s2500-26272019532-36 ◽

2019 ◽

pp. 32-36

Author(s):

O. V. Dolzhenko ◽

M. N. Shorokhov ◽

O. A. Krivchenko

Keyword(s):

Russian Federation ◽

New Products ◽

Growing Season ◽

The State ◽

Effective Protection ◽

North West ◽

The North ◽

West Region ◽

The Russian Federation ◽

State Registration

In the North-West region of the Russian Federation, studies have been conducted to study the biological efficacy of combination products in the fight against wireworms and aphids - carriers of viruses on potatoes. Studied the effectiveness of new products not yet included in the State catalog of pesticides: Bombard, CS (130+90+60 g/l), Wibrans Max, CS (262.5+25+25 g/l), as well as combined insecticides - by spraying during the growing season - Dexter, KS (115+106 g/l) and Eforia, KS (106+141 g/l). These preparations provide effective protection of potatoes against wireworms and aphids and can be recommended for use after their state registration and inclusion in the State Catalog of pesticides and agrochemicals permitted for use on the territory of the Russian Federation.

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Az álképviselet szabályozása a román Polgári törvénykönyvben

Erdélyi Jogélet ◽

10.47745/erjog.2021.02.07 ◽

2021 ◽

Vol 4 (2) ◽

pp. 119-130

Author(s):

Előd Bartis

Keyword(s):

Civil Law ◽

Third Party ◽

Special Regard ◽

The Third ◽

Legal Nature ◽

The Third Party ◽

Legal Consequences

The author of the following study presents the institution of unauthorized agency in Romanian civil law. The conditions and possible cases unauthorized agency are presented, as well as the facts which, although similar, cannot be considered as unauthorized agency. The author analyzes the legal nature of the contract concluded by the unauthorized agent, the legal consequences of the ratification by the principal and discusses in detail the unauthorized agent’s liability to both the principal and the third party. Finally, the study examines the conditions and consequences of the apparent authority, with special regard to the protection of the interests of the parties involved.

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THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA

Civil Law Review ◽

10.24031/1992-2043-2021-21-2-199-216 ◽

2021 ◽

Vol 21 (2) ◽

pp. 199-216

Author(s):

Yu.V. BAYGUSHEVA

Keyword(s):

Russian Federation ◽

Civil Law ◽

Legal Regulation ◽

Civil Code ◽

Third Party ◽

Tort Liability ◽

Legal Nature ◽

Heated Debate ◽

The Russian Federation ◽

The 19Th Century

The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.

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Compensation of Losses not Related to the Breach of Obligations

Journal of Russian Law ◽

10.12737/21219 ◽

2016 ◽

Vol 4 (9) ◽

pp. 0-0

Author(s):

Евгений Четырус ◽

Evgeniy Chetyrus

Keyword(s):

Russian Federation ◽

Civil Law ◽

Third Parties ◽

The Other ◽

Third Party ◽

Law System ◽

Foreign Law ◽

The Russian Federation ◽

The Given ◽

Mutual Agreement

The article considers the concept of “indemnity” that is rather new to national civil law. The analogy of this concept that was borrowed from the foreign law system is reflected in the article 4061 of the Civil Code of the Russian Federation “Compensation of losses which occur due the circumstances stated in the contract”. In particular, the given Article of the Code establishes that the parties to the obligations acting jointly as members of the business activities may through their mutual agreement provide for the obligation of one party to compensate for material losses of the other party which were caused by the circumstances listed in the contract, but unrelated to violation of obligations by the party (losses caused by impossibility of fulfilment of obligations, submission of claims by third parties or bodies of state power against a party or third party which was indicated in the contract, etc.). The agreement between the parties shall determine the amount of losses to be compensated for as well as the procedure for such calculation and compensation. The author concludes that the notion “indemnity” and compensation of losses which are not associated with the violations of obligations, should not be confused since they are not identical legal factors.

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The Use of Receivables as Collateral in Business Practices in Indonesia

Yuridika ◽

10.20473/ydk.v36i2.25372 ◽

2021 ◽

Vol 36 (2) ◽

pp. 427

Author(s):

Rio Christiawan

Keyword(s):

United Kingdom ◽

Civil Law ◽

Third Party ◽

Business Practices ◽

The Third ◽

The United Kingdom ◽

Article 9 ◽

The Third Party ◽

To Receive

AbstractThis article discusses the enforceability of Article 9 of Law No. 42 of 1999 on Fiduciary Guarantee that allows the use of receivables as debt collateral in business practices in Indonesia. Receivables bound by fiduciary collateral is deemed as a special collateral— in the context of civil law, a special collateral will be prioritized in case the debtor does not voluntarily make when due. In business practices, long-term receivables will be established following an agreement between a debtor and a third party, and the receivables that the debtor is entitled to receive from the third party will be provided as collateral to secure the debtor’s obligations under his loan agreement with the creditor. The issue discussed in this paper is the fact that although theoretically special collateral in the form of receivables should be able to increase the creditor’s assurance of getting repaid, in practice long-term receivables put higher risk on the creditor instead. As comparison, this paper uses the accounts receivables fiduciary in the United Kingdom. The Writing Method used in this paper is the normative juridical approach with a focus on conducting juridical studies regarding the creditors' risk in the use of receivables, specifically long-term debt collateral. This paper shows that receivables that are used as collateral in fiduciary agreements actually put the greatest risk on the creditor; especially if the agreement between the debtor and the third party stipulates that in case the debtor fails to fulfil his obligations, all receivables that he is supposed to receive from the third party will be aborted and become non-existent.

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