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Bushmina K., Kachur N. DISTRIBUTION OF PRE-CONTRACT RESPONSIBILITY BY ST. 434.1 OF THE CAVIL CODE OF THE RUSSIAN FEDERATION AND LIABILITY FOR INCORRECT MEASURES BY ST. 431.2 OF THE CAVIL CODE OF THE RUSSIAN FEDERATION // Студенческий: электрон. научн. журн. 2019. № 23(67). URL: https://sibac.info/journal/student/67/147510 (дата обращения: 16.09.2019).

DISTRIBUTION OF PRE-CONTRACT RESPONSIBILITY BY ST. 434.1 OF THE CAVIL CODE OF THE RUSSIAN FEDERATION AND LIABILITY FOR INCORRECT MEASURES BY ST. 431.2 OF THE CAVIL CODE OF THE RUSSIAN FEDERATION

Bushmina Ksenia

master student, Department of Civil Law, Law Institute of Siberian Federal University,

Russia, Krasnoyarsk

Kachur Nina

associate Professor, PhD in Law, Department of Civil Law, Law Institute of Siberian Federal University,

Russia, Krasnoyarsk

As a result of the reform of civil law in 2015, the norms of liability, including contract law, were significantly upgraded. One of the most discussed novels of civil legislation was the new rules on pre-contractual liability and liability for inaccurate assurances [4].

Pre-contractual liability and liability for inaccurate assurances are in relation to each other alternative legal measures of influence, which are an integral part of the concept of good faith of the parties. New sanctions and the procedure for their application lead to the question of their ratio.

First of all, you should pay attention to the breadth of the specified norms in the framework of contractual relations. St. 434.1 of the Civil Code of the Russian Federation provides for liability for unfair negotiations throughout the entire pre-contractual stage, i.e. from entering into negotiations to their completion. At the same time, the responsibility for providing inaccurate assurances about the circumstances is settled at all stages of binding legal relations, ranging from negotiations to the termination of obligations [6].

In contrast to assurances about the circumstances, St. 434.1 of the Civil Code of the Russian Federation shall be applicable only if the unfair party deliberately carried out its actions. So, in the case in question, bringing to justice requires at least the inaction of the unscrupulous party. In turn, the provisions of St. 431.2 of the Civil Code of the Russian Federation can also be used in cases where the entrepreneur side has mistakenly erred in relation to the information received, i.e. regardless of guilt.

Distinguished institutions are also the essence of damages in the framework of liability. The essence of pre-contractual liability is reduced to the reimbursement of losses incurred by a bona fide party in connection with the negotiations, loss of the ability to enter into an agreement with a third party, as well as losses that were caused as a result of disclosure or use of confidential information. As part of pre-contractual liability, there is a reimbursement of the so-called negative interest [1, p. 33].

The institution of assurances about the circumstances establishes full compensation for a positive contractual interest, and allows the counterparty to choose the most convenient method of compensation, in particular, to demand the payment of damages that were caused by the inaccuracy of the assurances or the collection of a contractual penalty. In addition, the Civil Code of the Russian Federation allows the injured party to demand recognition of the contract as invalid or not concluded, including if the assurances were of significant importance or if the contract was concluded under the influence of fraud or material confusion, withdraw from the contract [2, p. 43].

Attention is drawn to paragraph 7 of St. 431.1 of the Civil Code of the Russian Federation, which applies regardless of whether the parties have concluded an agreement on the results of the negotiations. It should be agreed that this provision indicates that the legislator has taken the path of assimilating responsibility for inaccurate assurances about the circumstances with pre-contractual liability [5, p. 31].

With all the above-mentioned differences in the norms under study, it should be noted that the functions they perform are similar - they regulate the same legal relations if false information came in at the pre-contractual stage and the contract was subsequently concluded.

So, in the doctrine of pre-contractual liability R. Iering said that in the event of a failure to conclude or nullity in the appearance of a concluded or valid contract, the party initiating entering into contractual relations always bears the responsibility for the counterparty for this, since it depended on it whether to enter into an agreement or not . By this provision, pre-contractual liability is in fact identified with responsibility based on risk [3, p. 209].

Thus, it can be concluded that responsibility for false assurances is a special case of pre-contractual liability, covering not only responsibility for false assurances, but also responsibility for omission about the circumstances about which the party of negotiations should inform the counterparty on the basis of good faith.

 

References:

  1. Demkina, A.V. About pre-contractual liability in civil law / A.V. Demkina // Civil Law. 2016. № 1. P. 33;
  2. Filippova, T.A., Kovalenko, E.Yu. the exercise of civil rights in the context of the novels of civil law / TA. Filippova, E.Yu. Kovalenko // News of AltGU. 2017. №3. P. 43;
  3. Iering R. Culpa in contrahendo, or indemnification for invalidity or non-conclusion of contracts / R. Iering // Bulletin of Civil Law. 2013. No. 3. P. 209;
  4. On Amendments to Part One of the Civil Code of the Russian Federation: Federal Law of the Russian Federation No. 42-FZ of March 8, 2015 [Electronic resource] // ATP Consultant Plus. - Access mode: http://www.consultant.ru;
  5. Rudokvas, A.D. Some problems of application of art. 431.2 of the Civil Code of the Russian Federation in connection with the principle of good faith / A.D. Rudokvas // Bulletin of civil law. 2017. No. 2. P. 31-47;
  6. The concept of development of civil legislation of the Russian Federation (approved by the Council under the President of the Russian Federation on the codification and improvement of civil legislation 07.10.2009) [Electronic resource] // ATP Consultant Plus. - Access mode: http://www.consultant.ru.

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