In civil law, the concept of “concession obligation” is used. It arises as a result of unjust enrichment. 1102 of the Civil Code of the Russian Federation reveals the essence of this obligation. Let's consider it in more detail.
Conditions of occurrence
A conditional obligation is an obligation to return unjust enrichment. Article 1102 defines the following conditions for its occurrence:
- Availability of saved / acquired property.
- Belonging to another person.
- Lack of regulatory basis for saving / acquiring this property.
Specificity of the norm
The unjust enrichment established in Article 1102 of the Civil Code of the Russian Federation is also referred to in Art. 8. In subparagraph 7 of the 1st paragraph of the norm, it is recognized as one of the grounds for the emergence of obligations and rights. Undoubtedly, it gains legal significance by acting as a legal fact specified in Article 8 and forming the basis for the obligation under Art. 307 (item 2).
Enrichment becomes illegal only if it involves the extraction of benefits at the expense of another person. If the property status of any entity has not been damaged, then enrichment does not give rise to any negative legal consequences. This is due, first of all, to the absence of one of the mandatory entities - the victim. In this regard, in paragraph 1 of Art. 1102 of the Civil Code of the Russian Federation, illicit enrichment is considered in a narrow sense.
Forms
Illicit enrichment under Art. 1102 of the Civil Code of the Russian Federation may be expressed in the acquisition or saving of another's property. For a better understanding of the content of the norm, we turn to other articles of the Code.
In Art. 128 acquisition is the acquisition of certain things (including securities, money) or property rights (exclusive right, easement, right of claim, etc.).
By saving is meant the extraction of some kind of benefit without the costs that the subject usually has to incur in order to extract it. Benefits are expressed in one of the following forms:
- An increase in property owned by a person entailing an increase in the value of values.
- Partial / full exemption from an obligation to someone.
- The use of another's property, the performance of work, the provision of services by another entity.
Purchase Features
In the legal literature, the opinion is expressed that the illegal acquisition of objects of law takes place only when the recipient has the corresponding right. Moreover, some authors express the point of view according to which the subject of such a receipt cannot be an individually defined thing. In other words, acquisition as a form of illicit enrichment under Art. 1102 of the Civil Code of the Russian Federation may be expressed solely in the receipt of objects united by generic characteristics, as well as property rights and money.
If you accept this point of view, then only such things can act as acquired items for which a person has acquired ownership. Accordingly, objects that only actually came into possession do not constitute illegal enrichment. Art. 1102 of the Civil Code of the Russian Federation , however, does not contain any restrictions on objects that may be subject to a condicion obligation. There are no special rules in other Codex standards.
Explanations
The fallacy of the above approach is explained by the following:
- The opinion that the concept of “acquisition” does not cover cases of ordinary possession of property can hardly be considered consistent with the law. The fact is that not a single legislative norm contains any reservations on this subject.
- Ownership in itself has a certain economic value: it gives a person the opportunity to use a thing at any time. This, undoubtedly, can be considered as an independent economic benefit.
- The norms of Chapter 60 of the Civil Code not only do not prohibit the demand for individually defined objects by means of condication, but, on the contrary, contain rules applicable exclusively to the collection of such property.
Controversial issues
In practice, quite often an object is dropped out of the ownership of the subject, which at the same time unreasonably loses the ownership of the thing.
For example, an object can be transferred by the seller to the buyer in the property under the terms of the sale agreement. However, after a while, the parties terminated the contract due to the failure of the acquirer to provide counter-satisfaction. Accordingly, the original seller no longer acts as the owner and cannot demand the return of the transaction subject to the rules of Art. 301.
In judicial practice under Art. 1102 of the Civil Code of the Russian Federation, such disputes are resolved taking into account the provisions of Resolution No. 10/22 of the Plenums of the Armed Forces and the Supreme Arbitration Court of 2010. This document refers, in particular, to real estate. The Resolution clarifies that upon termination of the contract for the sale of an immovable property, a person (seller) who has not received the agreed payment has the right to demand the return of property provided to the buyer, in accordance with the provisions of Articles 1104 and 1102 of the Civil Code of the Russian Federation. Judicial decisions in such disputes constitute the basis for state registration of the termination of ownership of the acquirer and registration of the right of the seller.
Specificity of Savings
When analyzing the provisions of Article 1102, the question arises: in all cases, does the fact of the occurrence of expenses on the property of another entity, the performance of work for him or the provision of services to him without counter provision, indicate that this person has received property benefits?
Undoubtedly, in such a situation, one side of the legal relationship is enriched, saving (saving) the funds that it could spend to pay for the corresponding object, service, work, if they were done at his request, in accordance with his will. If there was no request, the dispute on cost compensation shall be resolved on the basis of an assessment of specific circumstances. In this case, not only the objective cost of the work / services or the size of the costs, but also their profitability, economic necessity for the addressee, is taken into account.
A key reason for the emergence of a condiction obligation
It should be noted that legal enrichment does not acquire any enrichment at someone’s expense, but only unreasonably produced by a person at the expense of another entity. Accordingly, the lack of legislation in the basis for profit is the key condition for the occurrence of the corresponding obligation.
Currently, the approach is quite widespread, according to which legal facts should be considered legal grounds: contracts, administrative acts, various transactions, etc. Such an opinion is probably connected exclusively with the peculiarities of understanding the terms used in the norms. Both in article 8 and article 1102, one concept is used - “foundation”. Accordingly, this leads to the idea that it implies a right-generating fact.
Meanwhile, such an understanding of the concept does not primarily correspond to the literal interpretation of the first paragraph of article 1102. In accordance with it, the proper basis must be established by legislative or other act or transaction.
If we consider such a basis as a legal fact (which, in particular, is a transaction), it turns out that the transaction should arise on its own. It is also worth noting that in some cases, the application of such an approach would lead to the impossibility of implementing the protective function arising from the content of the conditional obligation.
Part 2, Art. 1102 of the Civil Code
It establishes the separation of forms of enrichment into types, traditional for the domestic legal system, depending on the circumstances that gave rise to it. The classification is based on the connection of acquisitions / savings with the actions of entities between which the property good moves. Accordingly, we can distinguish the enrichment that has arisen:
- Due to the actions of the victim. For example, the subject mistakenly paid the amount, handed over some object to another, released from the obligation, etc., without receiving anything in return.
- Due to the actions of the acquirer. Such enrichment occurs, for example, during the theft, use of someone else's thing, etc.
- Regardless of the behavior of the victim and the acquirer. This enrichment, in turn, can be caused by the actions of third parties (for example, the carrier incorrectly delivered the cargo, and it was received not by the addressee, but by a third-party entity), by some event (for example, the boat was carried away by the current and thrown into a strange section, the owner of which appropriated it).
Clause 2 1102 of the Civil Code establishes that, regardless of the circumstances that caused the illegal enrichment, the provisions of Chapter 60 of the Code apply to disputed cases.