Contract law. Execution of the contract (most important)

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Contract law. Execution of the contract (most important)

Lecture notes, cheat sheets

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14. PERFORMANCE OF THE CONTRACT

The performance of the contract is expressed in committing or refraining from committing the acts that constitute its subject matter. When evaluating performance, it is taken into account whether the action was performed, and if so, how.

In the first case, we are talking about performance as such, and in the second - about its proper nature.

Article 393 of the Civil Code of the Russian Federation delimits:

1) non-performance;

2) improper execution.

When they talk about performance as such, they mean the performance of actions (refraining from actions) in kind, or, in other words, - real performance. Accordingly, proper performance includes compliance with a set of requirements that determine who and to whom should perform performance, as well as in what subject, when, where and in what way this should be carried out.

Real performance and proper performance are closely related, but not identical concepts. The first expresses the essence of performance as the performance of a certain action, and the second - the qualitative characteristics of the action (refraining from action). When checking whether the debtor has fulfilled the obligation, two independent questions are raised: did the person perform the action that constitutes the object of the relevant legal relationship (whether the requirement of real performance was observed), and how was this action performed (whether the requirement for proper performance was observed)?

In the current Civil Code, among the measures designed specifically to ensure real execution, one can name general rule of inadmissibility unilateral refusal to fulfill an obligation and unilateral change in its conditions (Article 310 of the Civil Code of the Russian Federation). The corresponding demand is addressed to the party to the contract that acts as the debtor. Unilateral termination or modification of the contract is in principle not permissible, regardless of whether it is an obligation of the debtor or the rights of the creditor.

Proper execution involves a number of elements.

1. Performance of an obligation to the proper person - the possibility of imposing on the debtor the risk of delivery of performance to the wrong person.

2. Performance by a proper person - the transfer of performance by a third party is considered as proper performance, unless otherwise follows from the law, other legal acts, the terms of the obligation or its essence.

3. Performance by the proper subject - the subject of the performance of the contract (obligations) in all its quantitative and qualitative parameters must comply with the requirements that are enshrined in the law, other legal acts and the contract.

Author: Rezepova V.E.

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