Journal of Siberian Federal University. Humanities & Social Sciences: Foreign Institutions in the Civil Code of the Russian Federation: Analysis, Problems, Development Trends

Journal of Siberian Federal University. Humanities & Social Sciences / Foreign Institutions in the Civil Code of the Russian Federation: Analysis, Problems, Development Trends

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Issue: Journal of Siberian Federal University. Humanities & Social Sciences. 2017 10 (6)
Authors: Vasilevskaya, Liudmila Yu.
Contact information: Vasilevskaya, Liudmila Yu.: Kutafin Moscow State Law University (MSAL) 9 Sadovo-Kudrinskaya Str., Moscow, 123995, Russia;
Keywords: estoppel; indemnity; reimbursement of the creditor’s losses; assurances about the circumstances; losses; risks; creditor; debtor; deal; contract; impossibility to perform the obligation; convalidaton of the transaction; breach of obligation; unilateral refusal to perform the obligation; refusal to exercise the right; liability; transaction invalidity; negative obligation; estoppel; indemnity
Abstract: The article examines the main institutions of foreign law that appeared in Section III of the Civil Code of the Russian Federation as a result of the law of obligations reforming. Analysis of the regulations concerning estoppel, astreinte, indemnity, warranties, termination fee, opposabilite du contrat, waiver and injunction made it possible to identify not only the features of their legal constructions, but also to show gaps, contradictions and shortcomings in the regulation of these institutions. A comparative legal analysis of the new rules of the Civil Code of the Russian Federation and similar foreign rules demonstrated that the institutions developed in the jurisprudence of the countries of case law and based on terminology and the conceptual system being alien to Russian legal order cannot enter Russian civil legislation with ease. For example, considering estoppel in disputing a deal or claiming its invalidity under Items 2 and 5 of Art. 166 of the Civil Code of the Russian Federation, the author comes to the conclusion that unscrupulous contractors can use the principle of estoppel to make contracts with terms that are illegal in their content. Identifying the features of the legal status of indemnity under Art. 406.1 of the Civil Code of the Russian Federation, the author finds out that Russian civil legislation has a provision according to which one contracting party assumes a chargeable risk for those consequences that are not related to its actions for the proper fulfillment of the obligation. Risk taking requires an answer to questions not connected to liability issues. Unfortunately, the relations of the parties to the agreement on possible restrictions on the risks concerning loss compensation that the contracting party must take (not take) have not been settled in the Civil Code of the Russian Federation yet
Pages: 801-811
Paper at repository of SibFU: https://elib.sfu-kras.ru/handle/2311/33304

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