An accessory obligation is what?

The Institute of Law of Obligations is the most extensive sub-sector of the legal system. It includes norms regulating market relations that arise day to day between entrepreneurs, non-profit organizations and individual natural persons. Most of the disputes that are dealt with in courts are related to the repayment of obligations.

Normative framework

In the Civil Code obligations are considered as a category arising in the framework of the creditor and debtor relations. The latter, under the terms of the treaty, carries out certain actions in favor of the former. They can be the transfer of property, the payment of money, the production of work / provision of services. The obligation can also be expressed in the requirement to refrain from carrying out certain actions. The creditor takes the priority position in these relations. He can make demands on the debtor.

The concept of an accessory obligation

It is disclosed in the Civil Code and is considered additional, subordinate to the main terms of the contract. Entering into the transaction, often the creditor requires the debtor to guarantee the fulfillment of obligations. соглашение выступает в качестве своеобразного резерва. The accessory agreement acts as a kind of reserve. In case of improper conduct of the debtor, it guarantees repayment of the existing debt. Accordingly, it is possible to formulate the key features that an accessory commitment has. : These are :

1. Dependence on the main terms of the transaction.
2. Formation of external reserve of debt repayment.
3. Availability of a security interest.

Specificity

, проще говоря, поручительство. An accessory obligation is , in other words, a surety. In respect of it, the provisions of Art. 367 CC. In the norm, in particular, it is established:

1. Termination of the existence of the principal debt entails the withdrawal of the guarantee. This is due to the fact that in the event of the fulfillment of the obligation, there will be nothing to provide.
2. Changing the initial conditions leads to the withdrawal of surety. The exception is when the subject agrees to bear the corresponding responsibility.
3. When transferring a debt, a person has the right to refuse to remain a guarantor.
4. At the end of the period during which the basic obligation is in effect, the accessory also ceases to exist. In this case, in Art. 367 Civil Code provides for limitation of actions. It was introduced to prevent conflict situations. So, for example, if the repayment term has already arrived and the debtor has not taken action to repay it, the creditor has the right to file a claim within one year to the surety. If during this time he did not send a claim to the court, the accessory obligation is withdrawn.

In addition, as a general rule, if the main contract is declared invalid, any additional agreement to it will be considered as such. Accordingly, this provision applies to any accessory way of ensuring the performance of the obligation.

Legal nature

At present there is no clear unified interpretation of the definition of the category in question. The Civil Code discloses only its essence and determines the cases and rules for its application. Experts offer several definitions. предварительные, имущественные, дополнительные, специальные меры, комплекс которых предусматривается сторонами на случай нарушения условий сделки. Thus, some authors indicate that the accessory obligations are preliminary, property, additional, special measures, the complex of which is envisaged by the parties in case of violation of the terms of the transaction. In this case, they act as a guarantor of compliance with the agreements, primarily on the part of the debtor. мера, используемая кредитором для защиты своего интереса в сделке. An accessory obligation is a measure used by a creditor to protect its interest in a transaction. In doing so, it performs a stimulating function. It is in the interests of the debtor to repay the debt in a timely manner, since otherwise the creditor has the right to convert the collateral to its own advantage.

International practice

In foreign trade activities, an accessory way of fulfilling obligations is used as an exceptional measure. At the same time, collision bindings in pledge agreements and surety contracts have an autonomous character. самостоятельная категория. In international practice, an accessory obligation is an independent category. It exists regardless of the status of the main debt. Accordingly, the responsibility and the rights of subjects are separately determined. Meanwhile, the principal debt has an impact on the accessory obligation. This circumstance is expressed in a certain splitting of the collision relation. Interactions on the main debt are subject to the same order, and on the additional - to another. Obligations that relate to moneys, penalties, assignments are covered by the same rules as the key component of the debt. Obligatory status does not cover the requirement that does not fall under the statute of limitations. They, in particular, are compensation for damage to health / life and a number of others.

Accessory ways to ensure liabilities

Legislation allows for the application of measures in respect of debts arising in the course of any transactions, non-contractual, contractual, monetary relations, etc. Moreover, an accessory obligation can also be secured. For example, a surety can be guaranteed as collateral. The rules may provide for special rules, restrictions on the use of one or another method of provision. The following guarantee options are available:

1. Pledge.
2. Deposit.
3. The Surety.
4. Hold.

Penalty

It can be envisaged by the parties as collateral in the obligation. The key function of the forfeit can be called the disposal of the lender from proving the amount of losses that must be compensated. Such a measure makes it possible to compensate losses in cases where it is not possible to estimate them in monetary terms. Penalty - the amount to be paid regardless of the amount of loss. In addition, it is used in cases of improper execution, non-fulfillment of obligations, as well as in case of delay. In fact, the forfeit acts as a measure of the debtor's liability for breach of contractual terms.

Special category

Separately, the legislation deals with non-processor obligations. An example is a bank guarantee. Non-processor obligations are not dependent on the main debt, but are closely related to it. They remain valid in cases of invalidity of the original debt. A bank guarantee is considered a relatively new way of providing. This measure is quite independent. The warranty does not have an accessory character. The legislation defines clear rules for its implementation. At the same time, the guarantor does not act as a responsible person. He is indebted - the same as the debtor. In case of violation by the latter of the contractual terms, the amount of payment that the guarantor must effect may be greater than the amount of the principal debt.

Conclusion

The need to ensure the performance of the obligation is quite understandable. Any creditor wants to be sure that the debt to him will be repaid. If the performance of the obligation is provided by the guarantor, then he must understand his responsibility and presume the consequences. The most common option today is a mortgage. Particularly popular are the relations between citizens and credit institutions that provide mortgages. As a security in such situations is the real estate object. At the same time, citizens can use and own it, but until the debt is repaid, it remains at the disposal of the bank. In the interests of the person as soon as possible to pay off the creditor in order to remove the restrictions. Another way is a deposit. It is used, as a rule, when making sales transactions. The deposit is designed to guarantee the transfer of the thing, the delivery of goods, etc.