Civil law. Parts I, III and IV. Pledge, lien, surety (the most important)

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Civil law. Parts I, III and IV. Pledge, lien, surety (the most important)

Lecture notes, cheat sheets

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59. Pledge, retention, surety

Bail - a method of ensuring the fulfillment of an obligation, allowing the pledgee to receive satisfaction at the expense of the pledged property preferentially over other creditors of this debtor. Pledge is regulated by the Civil Code of the Russian Federation, the Laws: "On Pledge" and "On Mortgage (Pledge of Real Estate)".

Subject of pledge - things and claims. The parties to the pledge are the pledgor and the pledgee. The form of the pledge agreement must be in writing, and in relation to a mortgage - notarized and registered.

Types of collateral distinguished on the following grounds. According to the location of the pledged property: a firm pledge - without the transfer of property, a type of a firm pledge is a pledge of goods in circulation and a pledge - with the transfer of the pledged property. A type of mortgage is a pledge in a pawnshop. On the subject of pledge (pledge of property and pledge of rights); according to the degree of connection of the pledged property with the land - a pledge of movable property and a pledge of immovable property (mortgage).

Grounds for Foreclosure on Mortgaged Property - non-fulfillment or improper fulfillment by the debtor of the main obligation.

Foreclosure procedure - the claim of the pledgee (creditor) is satisfied from the sale price of the pledged immovable property either by a court decision or on the basis of a notarized agreement, and movable property - in the manner established by the pledge agreement, unless a different procedure is established by law. Satisfaction of the pledgee's claim at the expense of the pledged movable property without recourse to the court is allowed, unless otherwise provided by the agreement between the pledgor and the pledgee. The property received as a pledge cannot be converted by the pledgee directly to his own benefit in case of non-performance by the pledger of the main obligation, but must be sold at public auction.

Retention - the opportunity provided by law for the creditor not to transfer to the debtor a thing belonging to him, in case of default by him of the obligation until the moment of its execution.

Holding Features. Retention is a new way for Russian civil law to secure an obligation. Retention is applied in the case where the main obligation is related to the thing being retained or to compensation for losses associated with it (for example, in contracts of storage, transportation, contract); for the creditor to apply retention, it is not necessary to provide for a retention clause in the agreement; retention is applied in case of violation of the rights of only the creditor; retention is applied by the creditor without going to court; The creditor collects the retained item by selling it at public auction.

Surety - an agreement by virtue of which the guarantor undertakes to the creditor of another person (debtor) to be responsible for the fulfillment by the latter of his obligations. The form of the contract is written.

Guarantee features: the surety may secure an obligation that will arise in the future; the guarantor is jointly and severally liable with the debtor, i.e. the creditor has the right to decide for himself which of them to make a claim; the amount of liability of the guarantor may not coincide with the amount of debt under the main obligation; the guarantor who performed the obligation instead of the debtor has the right to a recourse (subsequent) claim against the debtor to recover from him the funds paid to the creditor.

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