The Institute of Law of Obligations is the most extensive sub-branch of the legal system. It includes rules governing market relations that occur daily between entrepreneurs, non-profit structures and individual individuals. Most of the disputes before the courts are related to the repayment of obligations.
Regulatory framework
In the Civil Code, obligations are considered as a category arising in the framework of relations between the creditor and the debtor. The latter, under the terms of the contract, carries out certain actions in favor of the former. They can be transfer of property, payment of money, production of work / provision of services. The obligation may also be expressed in the requirement to refrain from certain actions. The lender takes priority in these respects. He may make claims against the debtor.
The concept of accessory liability
It is disclosed in the Civil Code and is considered supplementary to the main conditions of the contract. Entering into a transaction, often the creditor requires the debtor to guarantee the fulfillment of obligations. Accessory agreement acts as a kind of reserve. In case of improper behavior of the debtor, he guarantees repayment of the existing debt. Accordingly, it is possible to formulate the key features that an accessory obligation has. This is :
- Dependence on the main conditions of the transaction.
- Formation of an external reserve for debt repayment.
- The presence of a security interest.
Specificity
An accessory obligation is , simply put, a guarantee. In relation to him, the provisions of Art. 367 Civil Code. Normally, in particular, it is established:
- The termination of the existence of the main debt entails the removal of the guarantee. This is due to the fact that if the obligation is fulfilled, there will be nothing to provide.
- Changing the original conditions leads to the withdrawal of the guarantee. The exception is cases when the subject agrees to bear the corresponding responsibility.
- When transferring a debt, a person has the right to refuse to remain a guarantor.
- At the end of the period during which the main obligation is valid, the accessory obligation also ceases to exist. Moreover, in Art. 367 of the Civil Code provides for limitation of actions. It is introduced to prevent conflict situations. So, for example, if the maturity has already come and the debtor has not taken action to repay it, the creditor has the right to file a claim within a year with the guarantor. If during this time he has not filed a claim with the court, the accessory obligation is withdrawn.
In addition, as a general rule, if the main contract is declared invalid, any additional agreement to it will be considered as such. Accordingly, this provision applies to any accessory method of ensuring the fulfillment of an obligation.
Legal nature
Currently, a clear unified interpretation of the definition of the category in question does not exist. The Civil Code discloses only its essence and determines the cases and rules for its application. Experts offer several interpretations of the definition. So, some authors indicate that accessory obligations are preliminary, property, additional, special measures, a set of which is provided by the parties in case of violation of the terms of the transaction. In this case, they act as a guarantor of compliance with the agreements, primarily by the debtor. Accessory obligation is a measure used by a creditor to protect his interest in a transaction. At the same time, it also has a stimulating function. It is in the interests of the debtor to repay the debt on time, because otherwise the creditor is entitled to turn the security in his favor.
International practice
In foreign trade, an accessory way of fulfilling obligations is used as an exceptional measure. At the same time, collision bindings in collateral agreements and surety agreements are autonomous. In international practice, accessory obligation is an independent category. It exists regardless of the status of the main debt. Accordingly, the responsibility and rights of the subjects are determined separately. Meanwhile, the main debt affects the accessory liability. This circumstance is expressed in a certain splitting of the collision binding. The main debt interactions are subject to one order, and the additional ones are subject to another. Obligations that relate to deposits, forfeits, concessions are covered by the same standards as the key component of debt. Obligatory status does not cover a claim that does not fall under the limitation period. They, in particular, are compensation for damage to health / life and a number of others.
Accessory methods of securing obligations
The legislation allows for measures to be taken in respect of debts arising from any transactions, non-contractual, contractual, monetary relations, etc. Moreover, an accessory obligation can also be secured. For example, a guarantee can be guaranteed by a pledge. The rules may provide for special rules, restrictions regarding the application of a particular method of security. The following warranty options are available:
- Pledge.
- Deposit.
- Surety.
- Retention.
Forfeit
It may be provided by the parties as security in the obligation. The key function of the forfeit is the lender's deliverance from proving the amount of losses that must be compensated. Such a measure allows you to compensate for losses in cases where it is not possible to assess them in monetary terms. Penalty - the amount payable regardless of the amount of loss. In addition, it is applied in cases of improper performance, failure to fulfill obligations, as well as in case of delay. In fact, the penalty acts as a measure of the debtor's liability for violation of contractual terms.
Special category
Separate in the legislation non-processor obligations are considered. An example is a bank guarantee. Non-processor obligations are not dependent on the main debt, but are closely related to it. They remain valid in cases of invalidity of the original debt. A bank guarantee is considered a relatively new way of collateral. This measure is quite independent. The warranty does not have an accessory nature. The law defines clear rules for its implementation. In this case, the guarantor does not act as a responsible person. He is obliged - the same as the debtor. In case of violation by the latter of the contractual terms, the amount of payment that the guarantor must make may be greater than the amount of the principal debt.
Conclusion
The need to enforce the obligation is understandable. Any lender wants to be sure that the debt to him will be repaid. If the guarantee is ensured by the surety, then he must understand his responsibility and anticipate the consequences. The most common option today is considered a pledge. Particularly popular are the relations between citizens and credit organizations that provide mortgages. Real estate acts as collateral in such situations. At the same time, citizens can use and own it, but until the debt is paid off, it remains at the disposal of the bank. It is in the interest of the person to pay the creditor as soon as possible in order to remove the restrictions. Another way is a deposit. It is used, as a rule, in transactions of sale. The deposit is intended to guarantee the transfer of things, delivery of goods, etc.