Civil law. A special part. Storage agreement (most important)

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Civil law. A special part. Storage agreement (most important)

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Topic 9. STORAGE AGREEMENT

In accordance with paragraph 1 of Art. 886 of the Civil Code, under a storage agreement, one party (custodian) undertakes to store the thing transferred to it by the other party (bailor) and return this thing intact.

The above norm contains the classic definition of a storage agreement, according to which this agreement is unilateral (obliged custodian), gratuitous and real. However, such a definition basically corresponds to the relations that develop regarding the storage of things in the domestic sphere. In those cases when a commercial legal entity or an individual entrepreneur acting as a custodian carries out storage as one of the goals of his professional activity, i.e. professional custodian, the storage agreement takes on a different character. In the professional sphere, it acts as a bilateral, paid and, as a rule, consensual agreement.

A thing as an object of storage is understood as movable property (except for storage in the order of sequestration, the object of which is also immovable things). This means both an individually defined thing and a thing determined by generic characteristics.

The admissibility of a thing defined by generic characteristics as an object of storage allows the use of the option of "storage with depersonalization" (Article 890 of the Civil Code), which involves mixing things of one bailor with things of the same kind of other bailors. However, this type of storage is allowed only when its use is expressly provided for by the parties in the contract.

As with other types of services, as a general rule, storage must be carried out personally by the obligated subject.

In contrast to the subject matter of the contract, the storage period within the meaning of Art. 889 of the Civil Code is not an essential condition of the contract. It is established in the contract or determined based on the terms of the contract, i.e. in accordance with a reasonable period of preservation of the thing deposited, or the preservation of any useful property by it. The storage period may also be determined by the moment the bailor claims the thing (paragraph 2 of article 889 of the Civil Code).

The form when concluding a storage agreement is determined depending on the type and circumstances of its conclusion according to the general rules of Art. 161 GK. If the parties to the agreement are citizens (domestic storage), they must conclude this agreement in writing only in cases where the value of the thing transferred for storage exceeds at least 10 times the minimum wage established by law. Consensual storage agreement, i.e. an agreement providing for the obligation of a keeper to accept a thing for storage in the future must be concluded in writing, regardless of the composition of the parties to this agreement and the value of the thing transferred for storage. In case of emergency (fire, natural disaster, sudden illness, threat of attack, etc.), the storage agreement may be concluded orally. Accordingly, the fact of the transfer of things for storage in these cases can be confirmed by witness testimony.

A simple written form of a storage agreement is considered to be observed if the acceptance of the thing for storage is certified by the bailee by issuing to the bailor:

▪ safety receipt, receipt, certificate or other document signed by the custodian;

▪ a number badge (number), another (legitimation) sign certifying the acceptance of things for storage, if such a form of confirmation of the acceptance of things for storage is provided for by law or other legal act or is customary for this type of storage.

Failure to comply with the simple written form of the storage agreement does not deprive the parties of the right to refer to witness testimony in the event of a dispute about the identity of the thing accepted for storage and the thing returned by the keeper (Article 887 of the Civil Code).

Among the obligations of the bailor is the obligation to warn the bailee about the dangerous properties of the thing when handing over the thing for storage.

After the expiration of the stipulated storage period or the period provided by the keeper for the return receipt of the thing on the basis of paragraph 1 of Art. 899 of the Civil Code, the bailor is obliged to immediately take the thing transferred for storage.

If storage is carried out on a reimbursable basis, the most important duty of the bailor is to pay the custodian remuneration for storage. According to Art. 896 of the Civil Code, unless otherwise provided by the storage agreement, the storage fee must be paid to the custodian at the end of storage, and if payment for storage is provided for by periods, it must be paid in appropriate installments after each period.

If after the expiration of the period of storage the thing in storage is not taken back by the bailor, he is obliged to pay the bailee a commensurate remuneration for the further storage of the thing. This rule also applies if the bailor is obliged to take the thing before the expiration of the storage period.

Unless otherwise provided by the contract, the costs of storage of the thing, which the bailee must bear, are included in the remuneration for storage. In the case of gratuitous storage of a thing, the bailor is obliged to reimburse the bailee for the necessary expenses incurred by him for the storage of the thing, unless otherwise provided by law or the contract of storage (Article 897 of the Civil Code).

The duty of the bailee is primarily the duty to accept the thing for storage. However, unless otherwise provided by the contract, he is released from this obligation in the event that the thing is not transferred to him within the period stipulated by the contract (clause 2 of article 888 of the Civil Code).

The main duty of a custodian is to keep things. Keeping a thing is nothing more than ensuring its safety. According to Art. 891 of the Civil Code, the custodian is obliged to take all the measures provided for by the storage agreement in order to ensure the safety of the thing transferred for storage. In any case, the keeper must take measures to preserve the thing transferred to him, the obligation of which is provided for by law, other legal acts or in the manner prescribed by them (fire-fighting, sanitary, security, etc.). In the absence of conditions on such measures in the agreement or the incompleteness of such conditions, the bailee must take measures to preserve the thing that correspond to the customs of business transactions and the essence of the obligation, including the properties of the thing transferred for storage, unless the need to take these measures is excluded by the agreement. If storage is carried out free of charge, the bailee is obliged to take care of the thing accepted for storage no less than about his own things.

The keeper is not entitled to use the thing transferred for storage without the consent of the bailor, as well as provide the opportunity to use it to third parties, except in cases where the use of the stored thing is necessary to ensure its safety and does not contradict the storage agreement (Article 892 of the Civil Code).

The bailee who has accepted the thing is obliged to keep it for the period stipulated by the storage agreement, or for the period determined on the basis of the terms of the agreement, or until the bailor claims the thing. If the period of storage of a thing is determined by the moment of its demand, the bailee shall have the right, after the expiration of the period of storage of the thing, which is usual under the given circumstances, to demand that the bailor take back the thing, giving him a reasonable time for this. Failure to fulfill this obligation by the bailor entails the consequences provided for in Art. 899 GK.

The bailee is obliged, upon first demand, to return to the bailor or the person indicated by him as the recipient, the very thing that was transferred for storage, unless the agreement provides for storage with depersonalization. The thing must be returned by the keeper in the same condition in which it was accepted for storage, taking into account its natural deterioration, natural loss or other change due to its natural properties. Simultaneously with the return of a thing, the keeper is obliged to transfer the fruits and income received during its storage, unless otherwise provided by the storage agreement (Article 900, 904 of the Civil Code).

The custodian is responsible for the loss, shortage or damage of things accepted for storage on the general grounds specified in Art. 401 GK. A professional custodian shall be liable for the non-preservation of the things transferred to him, unless he proves that their loss, shortage or damage occurred due to force majeure, or because of the properties of the thing, about which the keeper, accepting it for storage, did not know and should not have known, or as a result of intent or gross negligence of the bailor. For the loss, shortage or damage of things accepted for storage after the obligation of the bailor to take these things back has come, the bailee is liable only if there is intent or gross negligence on his part.

Certain features of terminating this agreement also depend on the nature of the obligation arising from the storage agreement. So, the bailor has the right to refuse this agreement at any time, including before the start of its execution, which follows from the content of the norms of paragraph 1 of Art. 888, Art. 904 GK.

The above rules relating to a storage agreement also apply to storage obligations arising by virtue of law, i.e. without concluding an agreement, unless other rules are established by law (Article 906 of the Civil Code).

Under a warehousing agreement, a commodity warehouse (custodian) undertakes, for a fee, to store goods transferred to it by the goods owner (bailer) and return these goods in safety (paragraph 1 of article 907 of the Civil Code).

A commodity warehouse is an organization (or an individual entrepreneur) that carries out storage of goods as an entrepreneurial activity and provides storage-related services. Public warehouses stand out among the existing warehouses. In accordance with Art. 908 of the Civil Code, a warehouse is considered a public warehouse if it follows from the law, other legal acts or the permit (license) issued to this commercial organization that it is obliged to accept goods for storage from any goods owner. Accordingly, a warehouse storage agreement concluded by a public warehouse is recognized as a public agreement (Article 426 of the Civil Code).

The warehouse storage agreement is consensual, paid and bilateral.

The object of storage under a storage agreement at a warehouse is not just a thing, but a thing as a commodity, i.e. a product of labor intended for subsequent sale, and not for consumption. At the same time, as a general rule, we are talking about things determined by generic characteristics.

An essential feature of this type of storage agreement is that the custodian (warehouse) has the right to dispose of the goods transferred to him, if such a condition is provided for by law, other legal act or agreement. In this case, the rules of Ch. 42 of the Civil Code on a loan, however, the time and place for the return of goods are determined by the rules of Ch. 47 of the Civil Code on storage (Article 918 of the Civil Code). It follows from the foregoing that in the case of the sale of goods in the possession of a commercial organization recognized as a warehouse, the latter is obliged to return to the bailor the quantity of things of the same kind and quality accepted for storage.

When goods are transferred with the right to dispose of these goods to the goods warehouse, the right of ownership to this goods arises with the bailee (i.e., at the goods warehouse), and the bailor retains the right to demand the return of the same amount of homogeneous goods.

Although, when stored in a warehouse, the objects of storage are most often things that are determined by generic characteristics, separate storage of these things is assumed, i.e. without their depersonalization and mixing with homogeneous goods. The storage of depersonalized items in a warehouse must be expressly provided for in the contract.

The execution of a storage agreement at a warehouse, which is carried out by issuing one of three types of warehouse documents, has its own specifics. According to Art. 912 of the Civil Code, the warehouse issues one of the following documents to confirm the acceptance of goods for storage:

▪ double warehouse receipt;

▪ simple warehouse receipt;

▪ warehouse receipt.

The warehouse document certifies:

▪ the fact of concluding a storage agreement in a warehouse in writing;

▪ the fact that the goods were accepted for storage by the warehouse.

Double and single warehouse certificates are title securities that allow the owners of these documents to carry out the circulation of rights to the goods without moving the goods that continue to be in the warehouse.

Double warehouse certificate - a security consisting of two parts: the warehouse certificate itself and the pledge certificate (warrant - from the English warrant - authority), which can be separated from one another and each of which is also a security. Each of these parts must contain the same details specified in paragraph 1 of Art. 913 GK. A double warehouse certificate is issued to the commodity owner of a warehouse to certify the fact of acceptance for storage of certain goods and the right of the holder of this security to receive the transferred goods personally or to transfer this right to another person by making an endorsement. Thus, a double warehouse receipt is both an order security and a document of title.

The peculiarity of storage carried out with the issuance of a double warehouse certificate is that the commodity owner, who has handed over his goods for storage, has two specific possibilities. Firstly, he can transfer to a third party the right to receive goods deposited by him, by transferring the actual warehouse receipt to this person by means of an endorsement. Secondly, if necessary, the owner of the goods transferred to the bailee has the right to pledge it to a third party, transferring the pledge certificate to the latter as a security confirming that its holder has the right to the pledged goods. Since both the actual warehouse and the pledge certificate are order securities, they can change hands more than once, both together and separately (Article 915 of the Civil Code). The absence of a warehouse certificate holder of a pledge certificate indicates the presence of a pledge encumbrance on the part of a third party.

In accordance with the foregoing, the warehouse receipt itself, as a separate document, if its holder does not have a pledge certificate, acts as a document certifying the property right to the goods under pledge. A pledge certificate (warrant), also taken as a separate document, if its holder does not have a proper warehouse certificate, certifies the pledge right to the goods. The presence of a set of both parts of the document certifies the property right to the goods, free from collateral encumbrance.

Accordingly, the holder of the warehouse and pledge certificates has the right to dispose of the goods stored in the warehouse in full and to issue these goods to him by the warehouse (clause 1 of article 914, clause 1 of article 916 of the Civil Code). He has the right to demand the issuance of goods in parts. At the same time, in exchange for the initial certificates, he is issued new certificates for the goods remaining in the warehouse (clause 4 of article 916 of the Civil Code).

The holder of a warehouse certificate separated from the pledge certificate has the right to dispose of the goods, but cannot take it from the warehouse until the loan issued under the pledge certificate is repaid (paragraph 2 of article 914 of the Civil Code). The presentation by the commodity owner of a receipt confirming the payment of the secured debt shall compensate for the lack of a pledge certificate. In this case, the commodity owner, on the basis of paragraph 2 of Art. 916 of the Civil Code may require the goods warehouse to release the goods, as if a double warehouse receipt were in a set.

The holder of the pledge certificate, other than the holder of the warehouse receipt, shall be entitled to repledge the goods in the amount of the credit issued by him, taking into account the interest payable. Prior to the maturity of the loan, the holder of the warrant has the right to dispose of it at his own discretion as a new pledger. Appropriate notes must be made on the subsequent committed pledges on the warrant (paragraph 3 of article 914 of the Civil Code).

The goods warehouse that issued the goods to the holder of the warehouse certificate, who does not have a pledge certificate and did not pay the amount of the debt on it, in accordance with paragraph 3 of Art. 916 of the Civil Code is liable to the holder of the pledge certificate for payment of the entire amount secured on it.

A simple warehouse certificate differs from a double one in that, firstly, it is a bearer security, and secondly, it is a single, indivisible document. This certificate at the same time certifies the real right of the commodity owner, the pledge right of the creditor of the commodity owner and the obligation of the warehouse. A simple warehouse certificate must contain the same details as a double warehouse certificate (Article 913 of the Civil Code), except for indicating the name and location of the goods owner. This certificate must also indicate that it is issued to the bearer.

A warehouse receipt is not a security. It only confirms the fact of the conclusion of the storage agreement at the warehouse and certifies the bailor's right to demand the return of the goods.

In § 3 ch. 47 of the Civil Code contains rules governing special types of storage. The latter include storage, which is carried out by:

▪ pawnshop;

▪ bank;

▪ a public transport organization in charge of storage lockers;

▪ an organization offering its visitors services for storing items in a wardrobe;

▪ hotel (as well as an equivalent organization providing hotel services);

▪ an entity providing storage services for the item that is the subject of the dispute (sequestration).

Author: Ivakin V.N.

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