Art. 367 of the Civil Code of the Russian Federation "Termination of Suretyship": comments, punishment

The rules for the termination of the guarantee and its features are established in art. 367 CC. Normally, the general cases of this procedure are defined. Consider the key provisions of Article 367 of the Civil Code of the Russian Federation.

Termination of Suretyship

It has a number of specific features. General rules are present in paragraph 1 of Art. 367 Civil Code of the Russian Federation. The provisions of the norm indicate the following. The guarantee is withdrawn at the termination of the obligation that was secured to them. The latter can take place when the debtor is liquidated after the creditor presents the claims. In this case, the termination of the guarantee does not come. Requirements may be presented in a judicial or other order determined by law. In some cases, the main obligation can be partially secured. In such situations, partial execution will be credited against the unsecured debt. There may be several obligations between entities. However, only one of them can be provided. If the debtor does not specify which obligation he repays, it is considered that he performed the unsecured.

Change of conditions

The second item of Art. предусматривается сохранение обязательства в исходном виде, если оно было откорректировано без ведома должника. 367 of the Civil Code provides for the preservation of the obligation in its original form, if it was amended without the knowledge of the debtor. This provision is effective if the change resulted in an increase in liability or adverse consequences for it. The agreement between the parties may provide for the preliminary expressed consent of the debtor to be liable on new terms in case of an adjustment of the obligation. In this case, it is necessary to determine the limits within which the subject is willing to answer for debts.

Transfer of obligation

He acts as the basis for the withdrawal of the guarantee. The following condition must be satisfied. Termination of the guarantee is allowed when transferring the debt, if the person within a reasonable time from the date of sending him the notification did not agree to continue to be responsible for the new debtor. The answer to the notice should be clear and allow to determine the circle of subjects, when transferring the debt on which the guarantee will be retained.

Additionally

In paragraph 4 of Art. разъясняется ситуация, связанная со смертью или реорганизацией должника. 367 of the Civil Code of the Russian Federation explains the situation related to the death or reorganization of the debtor. In this case, the entity, which must be responsible for the obligations in its place, continues to bear the corresponding responsibility. If the creditor refuses to accept the proper performance, which is offered to him either by the debtor or an additional party to the contract, the suretyship is subject to termination.

Term

The person who is responsible for the obligations in lieu of the debtor upon the occurrence of the stipulated conditions, in accordance with Art. , перестает нести ответственность по окончании периода, предусмотренного в договоре. 367 of the Civil Code of the Russian Federation , ceases to be liable at the end of the period stipulated in the contract. In some cases, subjects do not fix such a term in the agreement. In these situations, the termination of the guarantee comes, if within a year from the date of the onset of the day of performance of the obligation the creditor does not file claims to the guarantor. When the period has not been determined and can not be determined by the time of the demand, the specified period for the forwarding of claims is increased to 2 years. In the event that the creditor presents demands for early repayment of the obligation, the duration of the guarantee is not reduced. It is determined in accordance with the terms of the original contract.

Art. 367 Civil Code of the Russian Federation with comments

The obligation of the entity that is liable for the debtor in the event of the conditions specified by the contract is liquidated when the principal debt is repaid. In such a situation, the subject of security is already absent, respectively, the relations relating to it also cease to exist. The person assumes the obligation to bear the responsibility of another person to the creditor in accordance with the terms of the secured debt. Such relations are usually based on a certain trust between the immediate debtor and the subject who is entrusting for it.

An Important Moment

In Art. устанавливается, что условия ответственности лица, несущего обязательство за должника при наступлении определенных обстоятельств, сохраняются, если он не был уведомлен об изменениях, внесенных в соглашение кредитором. 367 of the Civil Code of the Russian Federation establishes that the conditions of liability of the person who is responsible for the debtor in the event of certain circumstances remain, unless he has been notified of the changes made to the agreement by the creditor. Otherwise, the rights of a third party would be violated. If the change in the obligation were allowed without the consent of the subject, and at the same time its responsibility would increase, this would lead to a worsening of the position of the outside subject. Applying Art. в таких ситуациях руководствуется ст. 367 Civil Code, judicial practice in such situations is guided by Art. 308 (paragraph 3).

Specificity of the subject composition

In Art. допускается перевод обязательства с уведомлением об этом лица, несущего ответственность за его исполнение непосредственным должником. 367 of the Civil Code of the Russian Federation, a transfer of an obligation is allowed with the notification of the person responsible for its execution by the direct debtor. In this case, the property of the subject entering into the relationship, his reputation, ability / inability to respond to the creditor, is of importance. Accordingly, the guarantor may not agree to remain so. One should take into account one more nuance. According to the provisions of Article 391 of the Code, the transfer of the obligation by the debtor is permitted only with the consent of the creditor. Accordingly, he, if he does not want to terminate the guarantee, does not give it or gives, but after taking the guarantor's obligations to bear responsibility for the new participant in the relationship.

Non-acceptance of performance

The entity that is liable to the creditor for proper repayment of the obligation by the debtor, in case of violation of the terms of the transaction, the latter pays the established amount. If the performance was offered, but it was not accepted, then such behavior is illegal. The repayment of the obligation in this case must be recognized as proper. Accordingly, the person who is the guarantor is discharged from responsibility. The main performer of the obligation is the debtor. In this case, repayment may be imposed on a third party, unless otherwise stipulated in the legislation or other normative acts, the substance of the relationship or the terms of the transaction. As an outsider, the guarantor can act as well. In this case, its status will be somewhat different. It will act as any person fulfilling the obligation to repay the principal debt for the debtor. In this situation, the creditor must accept the execution. If he refuses, the order is subject to termination.

Explanations

The Guarantor, by offering proper execution to the creditor, lawfully creates obstacles to the occurrence of circumstances that would entail his obligation. In this case, he acts instead of the debtor. The obligation in this case can only provide for the payment of money. At the same time, the law allows the guarantor to offer the creditor the repayment of other debts (non-monetary ones). The guarantor, acting not for the debtor, has nothing to do with proper execution. Its role is expressed only as a result of debt repayment. The right to fulfill the obligation is provided only for the creditor.

Specificity of calculation of terms

In any, including the accessory obligation, the execution period must be established. There are no indefinite debts. The periods of performance of the obligation are stated in paragraph 6 of Art. 367 Civil Code of the Russian Federation. The term can be definite or indefinite. In the first case, its termination will entail the termination of the guarantee. When determining the period during which a person will be liable for the result of the debtor's repayment of the principal obligation, it is necessary to proceed from the period that is set for execution. Let's consider an example. Suppose, for the fulfillment of the obligation, a period of six months is set. At the same time, the surety expires earlier. In this case, it will not be considered as the enforcement of the obligation. If the contract between the creditor and the debtor is fixed, and the guarantee agreement does not, the duration of the latter is determined by the initial conditions of the transaction.

Appearance of duty

The surety repays the debt from the day on which the principal debtor has failed to fulfill or improperly fulfilled the obligation. This moment is considered the date of the occurrence of the duty. If the due date has already arrived, and the debtor has not taken the appropriate actions, the guarantor must fulfill them for him. This also applies to the reorganization of an enterprise or the death of a citizen. This rule establishes paragraph 4 of Art. 367 Civil Code of the Russian Federation. To exclude legal uncertainty, a statute of limitations was introduced into the norm .