Коммерческое право. Залог и удержание (самое важное)

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Коммерческое право. Залог и удержание (самое важное)

Lecture notes, cheat sheets

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56. Pledge and retention

Bail is a proprietary way of securing obligations. In accordance with Art. 336 of the Civil Code, any property having a monetary value, including things and property rights (claims), can be the subject of pledge.

Possible collateral options:

1) pledge with leaving the property with the pledgor and pledge with the transfer of property to the pledgee - mortgage. According to the criterion of the location of the collateral property in accordance with Art. 338 Civil Code and Art. 5 of the Law of the Russian Federation “On Pledge”, the subject of the pledge can be any property, with the exception of real estate and goods in circulation;

2) the pledged property was provided by the owner-debtor or with the participation of a third party, the owner or custodian of the pledged property;

3) by objects: pledge of goods (including in circulation and in a commodity warehouse), foreign currency, securities; property rights, rights to industrial property, cash, precious metals and precious stones, mortgage (real estate pledge); pledge of things that may arise in the future, etc..

A pledge of goods in circulation means that the pledgor, while retaining the goods, has the right to change the composition and natural form of the pledged property - commodity stocks, raw materials, materials, finished products, etc., so that their total value at any time of the pledge obligation was not less than specified in the contract.

The specificity of the pledge of a share in a limited liability company requires obtaining the consent of all members of the company in advance for the sale of the share in the event of a loan default;

4) mutual pledge (each party provides a pledge to secure its obligation, as a rule, in fact, there is an exchange of documents certifying the rights to property). The burden shows the seriousness of intentions;

5) subsequent pledge (if there are several creditors, the pledgor pledges the already pledged object to the next creditor);

6) pledge of rights to things owned and pledge of rights to other people's things (for example, the right to lease).

At the same time, in accordance with Art. 335 of the Civil Code, a pledge of the right to lease or another right to someone else's thing is not allowed without the consent of the owner of the thing or the person to whom this thing belongs on the right of economic management, if the law or the contract prohibits the alienation of this right without the consent of these persons.

Retention is a proprietary way of securing obligations. In relations between two entrepreneurs, the creditor has the right to retain the thing of the debtor (even if there are no indications to this in the contract) in the event that the debtor fails to fulfill his obligation on time and to retain it until the obligation is fulfilled.

Article 359 of the Civil Code allows for the establishment in the contract of the possibility of changing or prohibiting the retention of things.

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