The way to ensure the fulfillment of obligations is ... Legal methods for ensuring the performance of obligations, the concept, types

Obligations are a common and widespread form of civil legal relations, within which two persons are linked among themselves by the need to perform certain actions. This can be the transfer of property, payment of money, the performance of services, reimbursement of costs, repayment of debts, etc. Not always responsible persons observe the agreed conditions, because of what the lender suffers. As debtors, ordinary citizens usually enter into financial relations with credit, insurance and banking organizations. To protect themselves from the unpleasant consequences resulting from such cooperation, lenders use legal instruments that allow to some extent to insure against losses.

Understand the intricacies of such actions will help the concept and ways of ensuring the fulfillment of obligations that are practiced in the modern legal system. This model acts as a safety instrument, which is activated in case the debtor fails to fulfill the obligations established by the agreement. At the same time, there are different forms and legal constructions for the realization of this right. But the essence of it remains the same - to ensure first of all the reliability of the transaction and the financial security of the creditor's side.

Types of ways to ensure the performance of obligations

Norms of regulation of legal relations provide for two main types of means of ensuring obligations - accessory and non-processor. In the first case, we are talking about the most common forms of guaranteeing the performance of obligations, among which is a deposit and a surety. It should be noted that the agreement on the use of one type of security entails an accessory obligation, which acts in addition to the main one. This is the modern legal means of ensuring the performance of obligations of an accessory type. The basis for approval of additional obligations may be the initiative of one of the parties to the agreement or the enactment of the law. Usually this happens at the time of the onset of the facts, which were also provided for in the legal agreement. For example, the right to pledge may occur after certain conditions are met, as prescribed by law. In the same way, the right of withholding, which the creditor can rely on, also acts. But in all situations of this kind it should be remembered that the initial arrangement may exclude the operation of such legal factors. For example, if there are clauses in documents that the creditor can not use the right of withholding.

There are also non-processor ways that stimulate the debtor to perform his duties to the partner. A feature of this form is the independence of additional obligations to the basic ones. This category includes a bank guarantee, which, although it is associated with a primary duty, but operates independently of it. Now we should consider in more detail modern methods of ensuring the fulfillment of obligations. A crib in the form of brief reviews will help to understand the essence of legal instruments of this kind and to reveal their features.

Penalty

Although the forfeit was initially introduced into the legal practice as a sanction-type, it is increasingly being used as a full-fledged way to secure obligations. For this, in particular, special legal designs are being developed. In most cases, a penalty, as a way of securing the performance of obligations, is expressed in the form of a fine. In accordance with the contract document or legal regulations, a certain amount of money is considered in the form of a penalty. If by the established moment the responsible person does not fulfill the actions prescribed by the contract, this amount will have to be paid to the creditor.

The possibility of collecting a sum of money in the form of a fine or a fine allows the creditors to reimburse the losses that caused the non-performance of the debtor. It should be noted that the fine does not need to match the amount of the debt. In most cases, creditors through a penalty return only part of the losses incurred through the fault of the responsible person, that is, the debtor.

In contracts and legal regulations, cases are also allowed where there is only a fine, but not compensation for damages. On the other hand, it is possible to pay off the penalty in full, and compensation for damages. A scheme is also common in which a creditor can independently choose a scheme for covering the financial damage inflicted - through a penalty or by repayment of a principal debt. Similar to the legal model, the way to ensure the fulfillment of obligations is a bank guarantee. However, it has several principal differences in the legal aspect.

Pledge

From the point of view of the instrument that stimulates the debtor to fulfill obligations, the pledge is one of the most effective means. Again, in accordance with the law or clauses in the contract, tangible assets that are transferred from the debtor to the creditor in case of default of the basic obligations can be recognized as a pledge. Actually, in this case a principle similar to the scheme of cooperation of the pawnshop with its clients operates. However, the pledge, as a way of ensuring the fulfillment of obligations, has its own nuances, regulated by the right of ownership. But it depends on the specific arrangement and type of property. In particular, the subject of collateral may be real estate and financial assets. Property that was under security and left the debtor's possession may be claimed by the creditor. In cases of handling goods that are in circulation, they are kept at the disposal of the pledgor.

The pledge of property that is under prohibition has no legal force. It is noteworthy that one and the same property can be the subject of several treaties. In other words, the pledge, as a way of ensuring the fulfillment of obligations, can be represented by property that is under the jurisdiction of several holders simultaneously. This form of treatment can be performed until the next contract specifies the restrictions for establishing further pledges that provide for the use of specific property. It is worth noting that such situations with a few bills affecting the same property are extremely rare.

Deposit as a way to ensure the performance of obligations

In this case, it is a question of one of the simplest forms of securing obligations within the legal framework. The deposit, as a rule, is a certain amount of money, which is transferred by one party to the contract of the other as evidence of intentions regarding the fulfillment of the terms of the agreement. I must say that the deposit can perform a variety of functions in legal transactions, speaking, among other things, and advance payment. Such an instrument for securing the fulfillment of obligations is impossible without identifying the money that is paid as a deposit.

The very same amount is paid and as a sign of the conclusion of the contract, that is, the reinforcement of obligations only acts as an additional factor confirming the fulfillment of the terms of the agreement. At the same time, if the money transferred can not be qualified, then they can be considered as the said advance. The very same deposit, unlike a pledge, can only take the form of a sum of money. Next, it is worth to learn more about the difference between the advance deposit and the deposit. Such ways of ensuring the performance of bank obligations have some features of the return of funds. So, if the person who received the deposit is responsible for non-fulfillment of the terms of the contract, then he must return this amount in double size. If the defaulting party is responsible for the default, the money remains with the person who received it. In all other situations, both the advance and the deposit in full size are returned to the person who has given it.

The Surety

All forms of ensuring compliance with the terms of the contract, discussed above, involve the involvement of two parties - at least in terms of the regulation of additional instruments for securing agreements. But the methods of ensuring the performance of the obligation include such legal instruments as surety. In this case, in addition to the debtor and the creditor, the third party - the guarantor - also participates in the contract. It is he who acts as a kind of guarantor, in case of non-fulfillment of the terms of the contract, the creditor counts on compensation for losses. In other words, if the debtor does not fulfill the obligation, the guarantor will either fully reimburse the losses, or partially cover them.

But here there are forms of collateral in several variations. For example, the executor and the guarantor may have different relations within the framework of the agreement - in some cases their obligations are in parallel, and in others the guarantor must fulfill both its obligations and the terms of the agreement on the part of the debtor. The law also describes the so-called joint responsibility, which binds the obligations of guarantors and debtors. But it is important to note another feature that distinguishes this way of ensuring the fulfillment of obligations from the guarantee. Given the joint responsibility, the guarantor's functions within the framework of the agreement cease to be relevant from the moment of termination of the main obligation.

As for the termination of the obligations of the guarantor, it can be caused by different reasons. In addition to the ordinary situations stipulated by the contract, among them the fulfillment of obligations by the debtor, the surety can be terminated as a result of the creditor's refusal to fulfill the terms of the contract on the part of the contractor. Also, the reason for the termination of the guarantor's function may be the introduction of changes in his obligations, which lead to unfavorable consequences for him. Of course, an exception is allowed if the guarantor agrees to introduce changes.

Bank guarantee

This is a relatively new instrument for regulating the relationship between the debtor and the creditor, which, however, proves the effectiveness of its function. In our time, a bank guarantee as a way of ensuring the fulfillment of obligations can involve the participation of a wide range of financial institutions, including insurance and credit companies. The debtor, as a rule, initiates such a form of confirmation of the fulfillment of its obligations. He applies to the financial institution with a request to give the creditor a written obligation to pay a certain amount in the event that the terms of the contract with him are not fulfilled.

That is, in this case, the banking structure acts as the guarantor of the transaction. To date, the bank guarantee as a way to ensure the fulfillment of obligations is only being formed and not so firmly entered into Russian practice, but some signs of such tools have already been outlined. For example, experts note the irrevocability of the bank guarantee. This means that termination of the agreement with the guarantor can take place only in situations stipulated by the agreement. It also notes the non-transferability of rights under the guarantee - again, if the reverse does not imply the terms of the agreement.

One of the main features of the bank guarantee is payability, that is, the debtor must pay the pre-established remuneration of the organization, which in some way acts as its guarantor. It is worth noting that the guarantee, as a way of ensuring the fulfillment of obligations, does not depend on the relationship between the debtor and the creditor, and also on the terms of their contract. This feature characterizes the bank guarantee and as an independent instrument for securing liabilities.

Hold

This type of collateral is that the creditor has the right to withhold the valuables belonging to the debtor. Such a right is usually valid until the original terms of the contract are fulfilled. In this case, it is not necessary that a certain thing from the responsible debtor be on the content of the creditor organization. According to the regulations, withholding, as a way of ensuring the fulfillment of obligations, allows the transfer of the property to third parties. Of course, if the debtor agreed to this. Moreover, under certain conditions it is he who can initiate the transfer of his values to a particular person.

The foreclosure to the debtor's property takes place according to the same scheme as it does with the property that is under pledge. But there is also a significant difference in collateral from this form of collateral. The fact is that withholding, as a rule, involves expecting the creditor to pay the debtor precisely the value of the subject matter of the agreement. From this point of view, it is more appropriate to draw an analogy with pawnshops, which, in dealing with customers, operate with amounts corresponding to the value of the pledged items. However, in the entrepreneurial sphere, withholding, as a way of ensuring the fulfillment of obligations, is not always connected with the payment of money for a seized item or with reimbursement of other expenses for it.

Responsibility for non-fulfillment of obligations

In a civil law system, breach of obligations usually implies the appearance of unprofitable financial or property consequences for the debtor. Reduction of property benefits from a party that has not fulfilled the terms of the contract, comes in the process of collecting fines for losses. In case of failure to fulfill or untimely performance of obligations, the debtor is obliged to cover the losses of the creditor within the conditions stipulated by the contract or law.

Details of compensation for damage to the creditor depend on the performance system and commitment. If the obligations that imply the transfer of an individually defined property to economic ownership, control or ownership of a creditor, the latter has the right to withdraw this item or recover the costs and financial losses that have been incurred as a result of the debtor's failure to fulfill its obligations. By the way, in this case there can be a way to ensure the fulfillment of obligations in the form of keeping things. Terms of liability are usually prescribed in the contract. At the same time, they are supplemented by circumstances, the absence or presence of which may entail civil liability. Such circumstances are usually attributed to the unlawful behavior of the debtor and the existence of losses that were incurred through the fault of the responsible person.

Termination of obligations

The moment of termination is also indicated in the contract. In the usual way, this happens as a result of the fulfillment of all obligations on the part of the parties to the agreement. This means that the goals set by the creditor and the debtor have been achieved, and the subject of the contract is no longer relevant. But not all cases of the deal end safely, and termination of obligations may occur for other reasons. In this context, one way or another way to ensure the fulfillment of obligations can be considered as the most favorable outcome for the affected party, which usually acts as a lender. It happens that the agreed terms of the agreement and the demands of the parties are canceled as a result of mutual agreement. This can happen in the format of a complete cancellation of obligations and in the form of a partial termination of their obligations.

There are other cases when such a credit is impossible. A mutual agreement on termination of obligations usually takes place when the debtor and the creditor are represented by one person, for example, in the process of reorganizing the company. If this does not contradict the law, then the termination of obligations as a result of the merger of organizations and legal entities is allowed. It should be noted that non-fulfillment of obligations can be irreversible. For example, when the perpetrator dies, and there is no physical opportunity to implement the terms of the contract, in which this person participated. There are also legal restrictions that prevent the debtor from performing certain actions. This already applies to actions that are prohibited by law.

Conclusion

The variety of modern ways of ensuring obligations allows both ordinary citizens and large organizations to successfully and successfully cooperate with partners and clients. Of course, not all ways to ensure the fulfillment of obligations in civil law give an absolute guarantee of security against financial losses. But here it is important to note the value of a properly drawn up contract. Using legal rights and opportunities, each person can count on the most favorable terms of cooperation. It is necessary to turn to the legal requirements, which significantly expanded the scope of civil law with respect to the norms governing the obligations of debtors. Experts recommend initially to determine the most effective model for securing commitments, even if it will be more costly. As practice shows, it is better to initially reconcile with the increase in costs of meeting the terms of the contract, than if it is violated, to incur large losses.