The article analyzes the main doctrinal provisions and approaches of judicial arbitration practice to certain issues of legal regulation of the termination of security obligations. Emphasis is placed on the problems of termination of collateral relations proper execution, as well as transactions to provide compensation, novation, offset and termination of the pledge agreement.
There are guidelines on how to proceed
The agreement is made by law.
1. Influence of features of the pledge obligation on the specifics of its termination. The specifics of the termination of any civil liability is directly related to its legal nature. There is no doubt that not all grounds for termination of obligations of a contractual nature are applicable to non-contractual obligations.
As the most vivid example of the need to take into account the peculiarities of the obligatory nature of a civil legal relationship is the impossibility of using the termination of the contract as the basis for the termination, for example, of a tort or conditional obligation.
The above fully applies to the pledge obligation, which has the largest range of features in a number of other ways to ensure the fulfillment of obligations due to the specifics of its legal nature, the mechanism of implementation, subject and subject composition.
The complexity of a pledge as a way to ensure the fulfillment of obligations is indicated by its separation into an autonomous obligation in relation to the legal relationship it provides.
For differentiation of the termination of a pledge relationship
The qualification of individual elements ensuring its existence is of great importance: a transaction that serves as the basis for the emergence of a pledge obligation (pledge agreement); pledge rights as an element of the content of the security obligation; proper pledge as a type of civil relationship.
The legal mechanism for termination of a pledge obligation varies depending on the level of the element on which it is implemented. Termination of the pledge agreement by agreement of the parties, terminating the pledge transaction, automatically terminates the pledge obligation.
However, various methods of termination of obligations referred to in Art. 26 of the Civil Code of the Russian Federation, implemented at the level of various elements of the pledge obligation. This is primarily due to the specifics of the realization of the collateral relationship, in which the right to claim satisfaction from the value of the pledged property arises only in the event of the debtor’s failure to fulfill or improperly fulfill this obligation, i.e. due to the occurrence of a suspensive condition (conditional obligation).
For example, according to the rule of art. 410 of the Civil Code of the Russian Federation in the absence of the due date of such execution, such a requirement cannot be subject to termination by its set-off. In addition, other requirements of the pledge obligation, which are to take measures to ensure the safety of the pledged property, to comply with the rules for possession, use and disposal of this property established by law or by contract, also cannot be subject to offset due to the inability to determine their size, since the content of these duties is not related to the institution of transfer of property, but consists in the observance and implementation of certain rules of a non-material nature.
It should be noted that the diversity of pledged items (both property (real) and non-property (rights of claim) is the content of its subject), as well as the variability of the condition on the transfer of a material pledge subject, suggesting the possibility of the existence of both a consensual and real transaction , in fact, do not affect the specifics of the termination of the pledge, which is completely uncharacteristic of such a feature of the pledge relationship as its accessibility, inherent to the pledge as one of benefits ensure fulfillment of obligations, by virtue of which the collateral relationship is recognized as invalid if the obligation secured by it (clause 3 of article 329 of the Civil Code of the Russian Federation) is invalid, and vice versa, the invalidity of the pledge agreement does not entail the invalidity of the main obligation (clause 2 of article 329 of the Civil Code of the Russian Federation).
The accessibility of a pledge obligation also determines the possibility of it following the fate of the obligation it secures when the creditor’s rights are transferred to another person (for example, in the case of assignment (Article 384 of the Civil Code of the Russian Federation, Article 355 of the Civil Code of the Russian Federation)).
The same sign serves as a reason for the automatic termination of a security pledge obligation with the termination of the obligation secured by it (clause 1 of clause 1 of article 352 of the Civil Code of the Russian Federation) in the same way as for other ways of ensuring the fulfillment of obligations (for example, under a guarantee (clause 367 Civil Code)). Besides, the specifics of the collateral relationship dictates the need to establish exceptions to the general rule on termination of a pledge obligation upon the termination of the performance secured by it.
First of all, this refers to the subsequent pledge (Article 342 of the Civil Code of the Russian Federation), when the termination of the initially secured obligation does not terminate the right of the subsequent pledge. The specificity of the relations developing in the pledge of real estate (mortgages) in a discretionary manner suggests the possibility of assignment of the right of pledge even without assignment of rights under the main obligation (paragraph 3 of article 355 of the Civil Code of the Russian Federation). Thus, the peculiarities of the legal regime of real estate allow to “break” the chain of accessory between secured and collateral obligations and without their termination. Another exception relates to the specifics of the material subject of the pledge.
In accordance with paragraph 2 of Art. 357 of the Civil Code of the Russian Federation, goods in circulation alienated by the mortgagor may cease to be pledged from the moment of their transfer to ownership, economic management or operational management of the acquirer, i.e., the mortgage of goods in circulation does not have a right of consequence. However, the termination of the possibility of a certain property contract to act as a material subject of a pledge obligation is compensated by the fact that the goods purchased by the pledger specified in the pledge agreement become the subject of the pledge from the moment of the ownership or economic management of the pledger.
In some cases, the judicial practice extends the rule of paragraph 2 of Art. 357 of the Civil Code of the Russian Federation not only for cases of alienation but also for the rental of property in civil circulation. Such an approach cannot be considered justified due to a significant difference in the transfer of property into ownership from its transfer for temporary use, in which the pledger has the right to dispose of the subject of a pledge. And if the impossibility to prohibit the alienation of the pledged goods in the circulation follows from paragraphs 1 and 2 of Art. 357 of the Civil Code of the Russian Federation, the pledgee does not have the right to prohibit the pledgor from transferring the pledged goods in circulation for rent.
In this case, it is only important that the tenant does not violate the obligations of the mortgagor in relation to ensuring the safety of the mortgaged property. In these situations, the general rule provided for by paragraph 2 of Art. 346 of the Civil Code of the Russian Federation, in accordance with which the pledger is entitled to transfer the subject of the pledge to rent only with the consent of the pledgee unless otherwise provided by law or contract and does not follow from the essence of the pledge.
Therefore, it should be concluded that the mortgagor does not have to receive written consent of the mortgagee to enter into alienated transactions with pledged goods, and if such a condition is still included in the contract, then it should be declared invalid (void). At the same time, the clause in the contract of pledge of goods in circulation, prohibiting the pledger from transferring the pledged goods to rent without the consent of the pledge holder, does not contradict the law.