INSTITUTE OF ASSURANCES ABOUT THE CIRCUMSTANCES AND PRE-CONTRACTUAL LIABILITY

The current legal regulation contains a number of categories that are related to assurances of circumstances. This category is pre-contractual liability.

The Federal Law of 08.03.2015 № 42-ФЗ «On Amendments to Part One of the Civil Russian Federation» introduced the institution of pre-contractual liability into the Russian legal system, regulated by Article 434.1 of the Civil Code of the Russian Federation [6]. It provides for the obligation of subjects of civil legal relations to behave in good faith when conducting negotiations on the conclusion of a contract and responsibility for violation of this obligation.

The essence of this institution is that the party acting in bad faith during the negotiations is obliged to compensate the injured party for the losses incurred both from the legal characteristics of the subsequently concluded contract, and from the very fact of its conclusion [3, p. 41-43; 4, p. 219]. Entry into the negotiations qualify as a special legal fact, as a result of which a special kind of relationship arises between the parties - a trusting relationship that requires them to display mutual integrity [5, p. 61].

The idea of pre-contractual liability is also reflected in international acts. So, Art. 2.15 Principles of international commercial contracts (Principles of UNIDROIT) enshrines the right of the parties to freely enter into negotiations and determine the terms of the agreement, limiting it to the need to comply with the principle of good faith [8]. Similar provisions are contained in the Principles of European Contract Law developed by the European Commission on contract law and adopted in 1999 (I and II parts) and 2002 (III part) [7].

For this study of interest is paragraphs. 1 p. 2 Art. 434.1 of the Civil Code of the Russian Federation, which establishes responsibility for providing the party with incomplete or unreliable information, including silence about the circumstances, which, by virtue of the nature of the contract, must be communicated to the other party [1]. The analysis of this item allows us to identify the following grounds for the occurrence of pre-contractual liability:

1) the provision of incomplete information, including silence about the circumstances that, due to the nature of the contract, should be brought to the attention of the other party;

2) the provision of false information.

At present, there are no criteria for determining cases where the provision of incomplete or unreliable information will be considered unfair. In this regard, it is possible to use the criteria established for the recognition of a transaction made under the influence of a significant delusion (Article 178 of the Civil Code of the Russian Federation).

To circumstances that, due to the nature of the contract, should be brought to the attention of the other party, in accordance with paragraph 2 of Art. 178 of the Civil Code include:

-information about the subject of the transaction, in particular those of its qualities, which in circulation are considered as essential;

- information on the nature of the transaction;

- information about the person with whom she enters into the transaction, or the person associated with the transaction;

- the circumstances that the party to the negotiations mentions in his will or from the presence of which with the obvious to the other party proceeds, making the transaction [1].

For certain types of relationships, the amount of information to be disclosed is determined by law.

In determining the circumstances that, due to the nature of the contract, should be brought to the notice of the other party, it is necessary to take into account the nature of the contract for which the parties are negotiating. So, when concluding an insurance contract for an insurer, essential information is information about the probability of an insured event. Failure by the insurer to provide this information or its distortion may result in the insurer causing losses that will be reimbursed under Art. 434.1 of the Civil Code.

Analysis of art. 434.1 and art. 431.2 of the Civil Code of the Russian Federation allows to conclude that they regulate similar legal relations to prevent unfair provision of information to the other party of legal relations or its non-submission, however, there are differences between these institutions.

Article 434.1 of the Civil Code of the Russian Federation provides for liability for unfair actions during negotiations, while paragraph 7 of this article does not make the application of pre-contractual liability dependent on the fact of concluding or not concluding an agreement on the basis of negotiations. In turn, Section 1, Art. 431.2 of the Civil Code of the Russian Federation establishes a ban on the provision of unreliable assurances about the circumstances both at the conclusion of the contract and after the conclusion of the contract.

Thus, there is a backlash in the application of responsibility for providing false information at the negotiation stage. According to the principle of the Russian legal system, double responsibility for one and the same action is unacceptable. Therefore, it is necessary to distinguish between cases of application of art. 434.1 and art. 431.2 of the Civil Code.

Perhaps the following distinction, the norms of Art. 434.1 of the Civil Code of the Russian Federation are applied in case of unfair provision of information during negotiations, if an agreement between the parties has not been entered into, and the rules of art. 431.2 of the Civil Code of the Russian Federation - if the contract has been concluded [2, p. 961]. This author's approach is based on the following.

The scope of liability for unfair negotiation is limited to expenses incurred by the other party in connection with the negotiation of a contract, as well as due to the loss of the opportunity to conclude an agreement with a third party.

Meanwhile, the losses caused by inaccurate information are wider than the costs of negotiations and include all the losses incurred by the party due to the fact that it relied on the information received, including those that occurred during the execution of the contract. It follows that the legislator, when formulating the boundaries of pre-contractual liability, proceeded from the fact that the contract would not be concluded, otherwise it would lead to the fact that the party that suffered from the inaccurate information would not fully recover the losses.

In addition, this argument is based on the principle of full compensation for damages enshrined in paragraph 1 of Art. 15 of the Civil Code.

In addition to the scope of application, the institutions in question have a difference in the conditions of accountability for the failure to provide or provide false information.

Responsibility for unfair negotiation is based on a general prohibition of the exercise of civil rights solely with the intention to cause harm to another person, bypassing the law for an unlawful purpose, as well as other notoriously unfair exercise of civil rights (abuse of the right) established by art. 10 of the Civil Code. The basis of liability for bad faith conduct, including bargaining, is a violation of the standard of good conduct. At the same time, it is quite difficult to distinguish between wrongfulness and guilt, since it is impossible to imagine a situation where a person acts in bad faith but is innocent. Thus, responsibility for unfair negotiation comes only if there is a fault.

In turn, in accordance with paragraph 4 of Art. 431.2 of the Civil Code may be liable for providing unreliable assurances without fault - for the party that gave false assurances when conducting business or in connection with a corporate agreement, as well as in connection with an agreement on the alienation of shares or shares in the authorized capital of a business entity.

References:

1. Civil Code of the Russian Federation. In 4 hours. Part 2 [Electronic resource]: Feder. Law of January 26, 1996 No. 14-ФЗ ed. from 11/30/2011. // Reference legal system "Consultant". - Access mode: http://www.consultant.ru.
2. Contractual and obligation law (general part): article-by-article comment to articles 307–453 of the Civil Code of the Russian Federation [Electronic publication. Revision 1.0] / resp. ed. A.G. Karapetov. Moscow: M-Logos, 2017. 1025 p.
3. Gnitsevich, K.V. Pre-contractual liability in Russian civil law (culpa in contrahendo): dis. ... Cand. legal Sciences: 12.00.03 / Gnicevich Konstantin Viktorovich. St. Petersburg, 2010. P. 41 - 43.
4. Gnitsevich, K.V. Responsibility for culpa in contrahendo in civil law doctrine and judicial practice of the Federal Republic of Germany / K.V. Gnicevich // Law. - 2009. - № 4. - p. 219 - 223.
5. Ketts Z., Lorman F. Introduction to the Law of Obligations // Problems of the Civil and Business Law of Germany. Moscow, 2001. 345 p.
6. On Amendments to Part One of the Civil Russian Federation [Electronic resource]: Feder. Law of March 8, 2015 No. 42-ФЗ // ConsultantPlus Reference Legal System. Access mode: http://www.consultant.ru.
7. Principles of European Contract Law. Parts I, II, 1999; Part III, 2003 / Trans. from English B.I. Puginsky, A. T. Amirov // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2005. № 3; No. 4
8. Principles of international commercial contracts (Principles of UNIDROIT) [Electronic resource] // Reference legal system "Consultant Plus". Access mode: http://www.consultant.ru.