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TRANSFER OF THE AGREEMENT AS A WAY OF SUBSTITUTION OF PARTIES IN AN OBLIGATION

UDK 347

Devkin Vitaly Anatolyevich - Head of the Legal Department of Akademiya pravovyh reshenij LLC, Candidate of Juridical Sciences,

Address: 107078, Moscow, Orlikov Ln, 5 bld 2

Tel: 8-968-978-49-14. E-mail: vitaldevkin@mail.ru

“Transfer of agreement” became a novelty of civil legislation, which was not known to the Civil Code of the Russian Federation before. Present article considers the structure of enactment, providing for the transfer of agreement from the viewpoint of modern civil juridical science, common law, and indicates deficiencies in terms of the content of the legal norm.

Key words: agreement, obligations, transfer agreement, substitution of parties in an obligation, assignation, cession.

The result of the implementation of clause 4.2.6 of the Concept for the Development of Civil Legislation in the Russian Federation [2] was the appearance in the Civil Code of the Russian Federation and civil law of a new institution “contract transfer” (Art. 392.3) [1]. It was supposed to create an institution that would be sent for the complete replacement of one of the parties to a contractual obligation, in connection with which a separate paragraph in ch. 24 of the Civil Code. Similar legal regulation takes place in the principles of UNIDROIT 2010 [5], where there is a special section 3 “Transfer of contracts”, consisting of seven articles. It is not clear why the “transfer of the contract” is included in paragraph 2 of chapter 24 of the Civil Code of the Russian Federation governing the transfer of debt.

A similar regulation exists in French civil law. Thus, the provisions of Art. 1216-1216.3 in Civil Code of France contain provisions on the transfer of the contract, equating it to the assignment: “Contracting Party. The assignor is entitled to cede his status as a party in the contract to a third party, the assignee. With the consent of his counterparty (the debtor on the assigned obligation ”(Article 1216 Civil Code of France) [6].

However, it cannot be said that this institution is a novelty in Russian civil law, since it is based on the content of art. 392.3 of the Civil Code of the Russian Federation, the provisions on the assignment of the right of claim and the transfer of debt apply to the transfer of the contract. Before the relevant changes of the Civil Code of the Russian Federation, civil law did not know the legal construction “contract transfer”, however, as V.A. Belov notes “not a new institution that regulates the case when a party simultaneously transfers all rights and obligations under a multilateral or synallagmatic contract to another person [8].

The norm is set out rather sparingly and boils down to an indication of the mutual transfer of all the rights and obligations of one of the parties to a contract to a third party.

In science, there is no unequivocal view of the existence of mutual obligations in the assignment of rights. As rightly noted by G.F. Shershenevich: “In the vast majority of cases, the contract is directed towards the establishment of a binding relationship, so the contract and the obligation are most often related as cause and effect. However, the scope of the contract goes beyond the boundaries of the obligation relationship, as, in turn, the obligations may not be based on a contract, but another legal fact, an offense, unjust enrichment [9].

N.A. Novoselova notes: “From the replacement of a party in an obligation, it is necessary to distinguish the replacement of a party in a bilateral or multilateral obligation (contract). If a party to the contract is both a creditor and a debtor for various obligations that constitute a contract, then, with the respective intentions of the parties, the complete replacement of the party in the contract is made in compliance with both the rules on assignment of the requirement and the rules on transfer of debt ”[7].

Judicial interpretation of Art. 392.3 of the Civil Code of the Russian Federation in paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2017 No. 54 "On some issues of applying the provisions of chapter 24 of the Civil Code of the Russian Federation on changing persons in the obligation on the basis of the transaction" clarifies that by transferring the contract his party is replaced. This construction is aimed at a one-act (in terms of time and execution) transferring to the successor of the whole complex of rights and obligations of the party under the relevant contract. This complex is not reduced to a simple sum of claims and debts belonging to the party. There may be other rights / obligations arising from the same contract and accompanying the main ones. The contract transfer design allows you to simultaneously transfer to another person not only a requirement and a debt, but also the entire set of rights, including non-dependent, transformative (secondary) rights / opportunities or undergoes related to the status of a party to the contract (right to challenge, to change the contract and etc.) [3].

The transfer of the contract as a general rule entails the complete withdrawal of the original counterparty from the contractual relationship (paragraph 2 of clause 29 of the Resolution). Moreover, in the case when, due to the peculiarities of the regulatory framework, the transfer of the contract occurs without the consent of the creditor, literally following such a general rule would violate the interest of the creditor, placing on him the risk of insolvency of the person that the creditor did not choose as his debtor. For such cases, the Supreme Court offers a fairly elegant solution - the joint and several liability of the initial and new debtors. In general, this position is quite relevant and deserves attention.

The explanation given by the Supreme Court should not be interpreted in the sense that when assigning a right or transferring a debt, this type of change of persons in an obligation in all cases is divorced from the mentioned conversion rights or undergoing [4].

M.I. Braginsky and V.V. Vitryanskiy considers the replacement of the party as a special case of amending the contract, and the reasons for the replacement can be very different.

The situation with transforming rights is somewhat more complicated, however, in our opinion, in some cases, they can also be transferred to a new creditor. For example, suppose that a new creditor has ceded the right to demand delivery of the prepaid part of the volume of the goods to be divorced as provided by the contract. The debtor is unlawfully not fulfilling this obligation in favor of the new creditor. Can a new creditor declare a withdrawal from the contract in respect of its part and demand payment of the corresponding price to it? In my opinion, there are no obstacles to this. The concession of the requirement for an alternative obligation, which provides for a choice on the side of the creditor, does not deprive the new creditor of that right of choice. At the same time, it must be acknowledged that, unlike the transfer of contracts, the question of the transition of secondary (transformative) rights in the assignment of the basic requirement, within such a transition, and the types of transitional rights capable of transition, as well as undergoing, requires more in-depth study.

Some critical point of view is held by V.V. Baybak and A.G. Karapetov, who believe that the Plenum of the Armed Forces of the Russian Federation of 12/12/2017 N 54 "On some issues of the application of the provisions of Chapter 24 of the Civil Code of the Russian Federation on changing persons in the obligation on the basis of the transaction" did not clarify all possible questions regarding the transfer of the contract.

First, the question is left open whether the original party to a contract can continue to participate in contractual obligations in some part. For example, there is no doubt that the transfer of a contract can be either complete or partial. It is possible to submit the transfer by the lessee of the lease agreement to a third party for a certain period while maintaining the agreement in respect of other periods of time for the original tenant.

Secondly, the Supreme Court did not answer the question of whether the consent of one of the parties to the contract to transfer the contractual party to a third party can be preliminary. Logically, if there is such an agreement (for example, enshrined in the contract between the original counterparties), a comprehensive transfer of the rights and obligations of the party to the contract takes place on the basis of the agreement of one of the parties and the third party at the moment when the other party that has given preliminary consent receives a notice of transfer contract. This follows from the application of the general rules on the transfer of debt (clause 2 of Art. 391 of the Civil Code of the Russian Federation). Similar rules are contained in the Model Rules of European Private Law (Section 2, Article III.-5: 302), and in the UNIDROIT Principles (Article 9.3.4).

Thirdly, the issue of retribution of the relevant agreement raises significant difficulties in the practice of transferring contracts. A new party to a contract acquires certain rights, but it also assumes its obligations. In this case, there can be no universal answer to this question, and disputes that arise should be resolved on the basis of specific circumstances. Imagine that a contract of sale is being transferred, under which half of the purchase price has already been paid in advance. Here the new party receives the right to purchase goods in full, while the debt burden of payment is already significantly reduced. The legal nature of the onerous agreement on the transfer of a contract is sufficiently specific for such a contract to be recognized as anonymous. Unfortunately, the Supreme Court does not say anything about this.

Fourthly, in some cases, by virtue of a direct indication in the law or from the substance of the relationship, it can follow that the transfer of rights and obligations arising from the contract is possible only in combination (in the form of a full or partial transfer of the contract). For example, judicial practice proceeds from the fact that a tenant cannot transfer rights from a lease agreement without transfer and corresponding obligations, which means, in fact, the admissibility of only transferring a lease agreement, but not a separate assignment of tenant rights (clause 6 of the newsletter of January 28, 2005 N 90, Resolution of the Presidium of the Supreme Court of Arbitration of the Russian Federation of February 28, 2012 No. 14850/11). It is a pity that the Armed Forces of the Russian Federation did not attempt to consolidate any criteria for identifying such situations in the future.

Thus, the appearance in the civil law of a new institution of “transfer of debt” is largely incomplete and requires certain adjustments, which follows in particular from law enforcement practice and the diversity of theoretical approaches (views) of modern civilists. Elimination of ambiguous interpretation of art. 392.3 of the Civil Code of the Russian Federation is possible by making additions to Ch. 24 of the Civil Code.

BIBLIOGRAPHY:

1. Civil Code of the Russian Federation (Part One) of 11/30/1994 No. 51-FZ (as amended on 08/03/2018) // Meeting of the Legislation of the Russian Federation, 12/05/1994, No. 32, Art. 3301.

2. The concept of development of civil legislation of the Russian Federation (approved by the Council under the President of the Russian Federation on the codification and improvement of civil legislation on October 7, 2009) // Bulletin of the Supreme Arbitration Court of the Russian Federation, 2009, N 11.

3. Resolution of the Plenum of the Supreme Court of the Russian Federation of December 21, 2017 N 54 "On some issues of the application of the provisions of chapter 24 of the Civil Code of the Russian Federation on changing persons in an obligation on the basis of a transaction" // Bulletin of the Supreme Court of the Russian Federation, N 3, March, 2018.

4. Baibak V.V., Ilin A.V., Karapetov A.G., Pavlov A.A., Sarbash S.V. Commentary to the Resolution of the Plenum of the Armed Forces of the Russian Federation of December 21, 2017 N 54 "On some issues of applying the provisions of chapter 24 of the Civil Code of the Russian Federation on changing persons in an obligation on the basis of a transaction" // Bulletin of Economic Justice of the Russian Federation. 2018. N 2. S. 36 - 92; N 3. S. 80 - 137.

5. Belov V.A. Changes and additions to the provisions of the Civil Code of the Russian Federation on the change of persons in the obligation (general review and commentary) // Law. №9. Pp. 112-127

6. Makovskaya A.A. Reform of contract law in France. New provisions of the French Civil Code // Bulletin of Economic Justice of the Russian Federation. 2016. №8.

7. Novoselova L.A. Transactions assignment of rights (claims) in commercial practice. Factoring M .: Statute, 2003.

8. Rosenberg M.G. Contract of international sale. Modern practice of conclusion. Dispute Resolution. - M .: International Center for Financial and Economic Development, 1996. P. 431 - 463.

9. Shershenevich G.F. The course of civil law. T. II. P.72