ARCHIVE FOR 2018 RUSSIAN
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Май 2018
CONTENT
Vadim Vogel Relief from Liability for the Quality of Real Property and Deception by Non-Disclosure Judgment of the Supreme Court of Germany of 21 July 2017 V ZR 250/15 with a Comment
The article considers the judgment of the Supreme Court of Germany that touched the issue of
when the seller of a real property could be exempt from the liability for its quality. The analysis
focuses on different aspects of the problem: duty of the seller to disclose information on the quality
of the thing, burden of proof, warranties of the previous seller. The most important issue is whether
suspicion that the land was contaminated should be regarded as diminishing quality of the land as
a commodity.
Keywords:
deceit, sale, quality of goods, real property
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Sergey Budylin The Сase of a Fired Coach, or The «Take or Pay» Condition in the Football Industry A Commentary to the Case Berg v. Blackburn Rovers Football Club & Athletic Plc [2013] EWHC 1070 (Ch.)
(29 April 2013)
This case was decided by the High Court of Justice of England and Wales. The claimant had been
dismissed as a manager of a football club after a short period and sued for compensation under the
terms of his employment contract. The compensation was for a sum equal to his unexpired salary
for the remainder of the fixed term. The club submitted that payment in full would be a penalty (not
permitted in English law) and the managing director lacked authority to agree the contract.
The High Court, however, concluded that the disputed payment would not be a penalty because
this is not a payment for breach of contract but a payment that becomes due in a valid manner.
Regarding the question of authority, the managing director of the football club was found as having
the usual authority of someone holding that office; the alleged restrictions had not been revealed to
the manager. Finally, the High Court decided in favour of the claimant.
Keywords:
England, take or pay, managing director’s authority, liquidated damages, football
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Polina Lomakina Joint Spouses’ Debts in Case of One Spouse’s Insolvency The article analyses what happens to joint obligations (debts) of the spouses if one of them goes
bankrupt. The author suggests that if a creditor’s claim is based on a joint debt the creditor could also
sue the bankrupt’s spouse to recover the part of the debt that is not covered by bankrupt’s assets.
However this claim could only be brought after expiration of the original term of the obligation. The
fiction that term of the obligation is expired operates only within bankruptcy proceedings and applies
only to the bankrupt but not to his spouse. Furthermore, the author considers the situation when
bankrupt’s spouse performs their joint obligation in order to bring the claim against bankrupt’s assets.
This tactics could be used by bad faith spouses who wish to save their assets from creditors. The
article suggests some options against this practice.
Keywords:
joint debts of spouses, joint matrimonial property, insolvency of a married person, bankruptcy (insolvency)
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Ivan Belousov Subordination of Loan Claims of Corporation Members in Bankruptcy Proceedings This article discusses the scope of subordination of shareholder loans in corporate bankruptcies.
The first section looks at relevant domestic court decisions, primarily the Supreme Court judgments,
ranging from disallowing to allowing subordination of shareholder loan claims as interest-related
or risk-related claims in bankruptcy. The second section describes foreign jurisdictions that
subordinate shareholder loan claims in corporate bankruptcy cases. And the third section provides
an overview of the reasons and requirements for subordination that might be used in Russian
litigation practice.
Keywords:
subordination, bankruptcy, shareholder loans
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Stanislav Medik Can a Creditor Assign His Rights under a Guarantee Separately from the Rights under the Secured Contract? The article analyses the issue whether a creditor could assign his rights under a guarantee separately
from the rights that are secured by the guarantee. Modern Russian and European law do not answer
this question directly. The availability of such an assignment depends on the understanding of the
nature of guarantee and features of an accessory obligation (guarantee being an example of such an
obligation). Modern Russian as well as Western doctrine thinks that the obligation of the guarantor
and the secured obligation are two separate obligations. The accessory nature of the guarantor’s
obligation could in turn be seen in the five features: its creation, its extent, its ability to follow the main
obligation, its termination and its enforcement. Most of Russian and European scholars consider
that a separate assignment of rights under a guarantee is impossible because those rights should
follow the main obligation. They think that this is one of the essential features of a guarantee. The
author suggests nevertheless that there are no substantial obstacles for allowing an independent
assignment of guarantee rights. This type of assignment could be a valuable opportunity for the
market. It could function as a financial instrument based on risk (aleatory contract) and could be used
in same way as the sale of priority in pledges.
Keywords:
accessory rights, guarantee, securing obligations, assignment of security rights
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Lyubov Doroshenko A Case Law Review of Revised Article 328 (3) of the Russian Civil Code This paper presents an overview of cassation court judgments under the revised art. 328 (3) of the
Civil Code of the Russian Federation, which took effect on 1 June 2015. The author explores the
application of the novelty by courts and evaluates its impact on the existing judicial approaches to
the matters under review. In particular, the author focuses on the issues of whether it is possible
to order payment of an advance, and impose penalty or interest under art. 395 of the Civil Code
for late payment of an advance if the claimant has not performed his obligation. Another question
is whether it is possible to apply art. 328 of the Civil Code to claims that do not ask for specific
performance of a contract.
Keywords:
article 328 of the Civil Code of the Russian Federation, counter-performance of obligation, synallagma
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