Course work grounds for ownership. The emergence of property rights General provisions The ratio of methods and grounds for the acquisition of ownership
Civil law contains an extensive list of ways to acquire the right to things. The methods of these in nature are various legal facts, the presence of which, along with an indication of such an opportunity in law, is associated with the emergence of the person's subjective ownership of a particular thing.
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Ownership belongs to the number of subjective rights, therefore, as any other subjective right, it may occur only with a certain legal fact. And sometimes their aggregate (legal composition). These legal facts are called the grounds for ownership. The grounds for the appearance of property rights they are called in the Civil Code of the Russian Federation and in Chapter 14 are the most common of them.
It should be noted that in the modern legal literature, along with the term "underwriting the right of ownership", some authors use the term "the acquisition of property rights", often using them as identical concepts, although, already known Russian civilistist D.I. Meyer noted that "to mix ways to acquire property rights with the methods of acquiring other rights." This question is complex and debatable in the science of civil law, among scientists did not have a single opinion regarding the semantic content of these two categories and their relationship between themselves. Such a state of affairs can be explained primarily by the fact that in the Civil Code of the Russian Federation does not contain a legal definition of "the acquisition of ownership right", the Code uses only the term "underwent", and the term "the acquisition of property rights" - the concept of doctrine. In addition, in legal science did not have a common system for constructing a single and consistent theory of legal facts. However, the lawyer is especially important attentive consideration of this issue, since its permission is practical.
Legal literature meet different approaches to this issue. As mentioned above, some scholars between the "Lesson" and "ñïîîÁààè" put a sign of equality, considering them as interchangeable categories that indicate the legal facts established by law underlying the extent of the object of ownership. Sometimes, directly without claiming their identity, the authors use them without conducting a clear difference between them. In other existing approaches, the authors each of these concepts emphasize their special legal sense and content.
According to the point of view of the famous Russian scientist lawyer L.V. Sannikova, under the acquisition of ownership of the right to understand the totality of legal and actual actions, with which for con associates the occurrence of ownership. In such a value, legal actions are called "Stage", and the actual actions - "ñïîñááèè" acquisitions of ownership. At the same time, it is emphasized that the "legacy" itself is not enough for the right of ownership, it is necessary to commit certain actual action - "ñïññá". As an argument L.V. Sannikova gives an example with a purchase and sale agreement, which at one time led to D.I. Meyer. In paragraph 2 of Art. 218 Civil Code of the Russian Federation Treaty of Purchase and Selling is indicated as the basis for the acquisition of ownership, but in Art. 223 of the Civil Code of the Russian Federation notes that the ownership arises from the buyer only from the moment of actual transfer of the thing. It follows that the conclusion of the contract of sale gives rise to the buyer is not the right to ownership of the thing, but only the right to demand its transfer. That is, in the event of a dispute between the participants of these contractual relations, the buyer will apply to the court with a lawsuit against the protection of ownership, and demanding the defendant to fulfill obligations arising from the contract of sale and a claim for the recovery of damage to non-execution contract and requirement of restitution.
The above point of view is very interesting, but is not absolutely accurate. If, recognize the legal importance of actual actions, without which the arrangement of the right of ownership is impossible, then the difference between actual and legal actions is lost. And this in turn will lead to the fact that it will be difficult to determine the place and role of "ñïññá" as actual actions in the system of legal facts. Especially when analyzing specific cases of ownership. In one situation, "ñïîñî" as an actual action will be a special circumstance with independent legal significance and exist next to the "LEGNA". For example, the basis of the occurrence of property rights in the order of inheritance will be a testament or law, and to become directly the owner, it is necessary to make a certain action - "inheritance". In another situation, "ñïîñî" will be one of the characteristics of the action recognized by the "LEFT", that is, the coincidence with it. For example, "continue", named as the basis in the Civil Code of the Russian Federation in Art. 221, is simultaneously and "ñïññáìì", which is manifested in a single action of a person as a legal act.
The next point of view on this issue also deserves attention. According to this position, the "ñîññáû" underlies the emergence of the "LEFT", as if preceding the latter. The foundations here are called titles of ownership. Title ownership is a possession of a thing based on any right (legal basis, or title) arising from the relevant legal fact. These titles are acquired by various ways specified in chapter 14 of the Civil Code of the Russian Federation. It seems that such a position is quite possible, but it is unlikely to apply as a general rule.
Thus, based on the fact that it is objectively difficult to unambiguously resolve the question of the relationship of the concept of "underwent" and "ñïîññ" acquisition of property rights, in the scientific literature an emphasis is placed in the category "Stage" as a legal concept used in the law, and the term "ïïññáÁ ", As replacing the term" touching ".
For further analysis of specific ways to acquire ownership, we need to refer to the classification of methods (grounds) acquisition of ownership.
In civilistic science, the foundation of the occurrence of property rights has long been taken to divide on the initial and derivatives. It is understood that in derivative ways, the right of the new owner relies on the right of the previous owner, and at the initial methods, the right of ownership is either purchased for the first time, or the right of the new owner does not depend on the amount and nature of the rights of the previous one. Thus, with initial methods, the right of ownership is purchased in full, and with derivatives - in the amount that previous owner had. Such a division of methods for initial and derivatives is a consequence of the doctrinal interpretation, the law of this classification does not provide.
The distinction of the ways of ownership of derivatives and the initial is practical importance, which is that in derivatives of the acquisition of ownership of the thing in addition to the consent (will) of the owner, it is also necessary to take into account the possibility of having the right of the right of other persons - non-overalls (for example, pledgee, tenant, subject of limited real law), as these rights are usually not lost when changing the owner of things.
The distinction of the way of ownership is carried out on various reasons (criteria). At the same time, some authors prefer the Will criterion, others - the criterion of succession.
In accordance with the criterion of will, at the initial ways the right of ownership is purchased independently of the will of the previous owner (or for the first time), and with derivatives - by the will of the previous owner and with the consent of the acquirer.
It seems that the delimitation of ways by the criterion of will is not entirely successful. The law directly calls cases when the right of ownership proceeds to face in the absence of the will of the previous owner. Thus, the heir who has the right to a mandatory share in the hereditary mass acquires the ownership of property, contrary to the will of the testator, expressed in the testament. Or, in the event of recovery on property on the obligations of the owner (under Art. 237 of the Civil Code of the Russian Federation), the empower to the acquirer transfers in the same amount in which they existed at the first, because At the same time there is no reason to stop encumbrances.
The concept based on the criteria of the succession is the most common in legal literature and uses about to be a confession, since it allows you to explain the preservation of burdens in changing the owner. According to this concept, the initial methods are based on which there is no succession, and to derivatives - methods that rest on the right of succession.
In accordance with the above classification, the initial methods include:
36. Acquisition of ownership of the newly manufactured thing to the fruit, products, income, unauthorized construction (under certain conditions);
recycling;
appeal to the ownership of publicly available things;
acquisition of ownership of the ownership of deformist property, treasure, find, hopeless animals, movable things, from which the owner refused (abandoned things);
acquiring prescription.
The acquisition of the acquisition of property rights includes the acquisition of this right:
37. Based on the contract or another transaction about the alienation of the thing;
in the order of inheritance after the death of a citizen;
in order of succession in the reorganization of a legal entity.
Thus, the right of property is acquired as a result of the person of legal and actual actions. Legal actions are referred to as "to" the actual - "ñïîîÁàèè". Although the question of the ratio of these two categories in legal science is still discussion. Methods (grounds) acquisition of property rights are divided into initial and derivatives, and the basis of such divisions is the criterion of succession.
1.3 The foundation of the emergence of the law of the total ownership
Modern legislation does not limit the composition of the co-owners: they may be citizens, legal entities of any kind, Russian Federation, subjects of the federation and municipalities in any combination. After receiving the status of co-owners, these subjects acquire the subjective right of the total ownership of this property.
The basis of the emergence of the law of common property is various legal facts. The right of common property may arise on the following grounds:
The commission of civil transactions, in particular, the acquisition of two and more persons (for example, when privatizing housing);
Inheritance or receipt as a gift by two or several persons of the property;
Processing of a common thing or jointly creating a thing;
The acquisition of property by persons consisting in marriage;
Obtaining income, fruits, products from the use of property in total ownership;
Construction on the general means of the object, in particular, by legal entities or municipalities, for example, a paid parking for cars;
Joint acquisition of the right of ownership of the streets of street animals, treasure, finding (art. Art. 228 - 233 GK), as well as on movable and immovable property in accordance with Art. 244 GK.
In most cases, this is committing several persons of civil law transactions: common property arises due to the creation or acquisition of a common property by several persons when buying and selling, inheritance and in other cases of joint business activities. The composition of the general property also comes the fruits, products and income from the use of property owned by the property.
Currently, the relationship of common property has expanded significantly. In many ways, the privatization of housing was facilitated when the apartment becomes the object of the common property of persons living in it. Such traditional types of common property remain, as the joint property of the spouses, receiving the inheritance of indivisible items.
In addition, the right of common ownership arises with the participation of persons in the contracts of a simple partnership and peasant (farmer) farms. General property contributes to more efficient use of property both in the family and in economic relations.
There is no common ownership if the property consists of several components, each of which has its own owner. Despite the fact that the subjects of common ownership, like any owner, own, enjoy and dispose of their property, they carry out their own laws in relation to this property, together.
General property in accordance with the rule of paragraph 4 of Art. 244 of the Civil Code of the Russian Federation arises, first of all, when entering the property of two or several persons of the property, which cannot be divided without changing its appointment, (indivisible things) or property that is not subject to section by virtue of the law.
General property on divisible property occurs in cases directly provided by law or contract. For example, common property against the property of spouses arises by the law - Art. 33, 34 of the RF IC, and when creating a simple partnership, a common property arises on the basis of Art. 1043 of the Civil Code.
The basis of the emergence of common share ownership of the spouses is a marriage contract (Art. 41, 42 of the RF IQ), and when creating a partnership is a basis.
The common property on property may arise independently of whether it applies to indivisible property, to property not subject to section by virtue of the law, or by indivisible. If property refers to such that cannot be divided without changing its purpose, i.e. By indivisible, or cannot be divided into force by force, then the general property arises on it due to the property of functional qualities or its legal regime. If the property belongs to Delimo, then the total property arises only in the cases provided for by law or the contract. For example, we agreed that the situation they was inherited from parents, although it does not constitute a headset, will not be divided, but will remain in their common property. In some cases, such legal relations may be decorated as a result of the entry into force of the court decision or The global agreement on the establishment of a total ownership of a certain property.
Sometimes a common property occurs "inadvertently." Thus, in Russian science, there is an opinion that the right of common ownership belongs to entities whose belongings with tribal signs are deposited in common containers.
Regulatory legal regulation of common property relations
Based on the emergence of the law of the overall ownership lies a system of legal facts. However, the presence of alone legal facts in itself does not yet create subjective rights, including ownership. So...
The concept of legal relations. Grounds for termination and object of ownership
Ownership can be acquired due to legal facts with which the law binds their occurrence. These legal facts are referred to as the grounds or ways to acquire property rights ...
With equity ownership, each of its participants own a certain proportion in the right to property. It is traditionally expressed in the form of a fraction or percentage. At the same time, given the property nature of property rights ...
The right of common share ownership
The right of common property is a complex legal phenomenon, various aspects of which were studied by many civilist students. As well as the right of ownership, the indicated concept is traditionally considered in objective and subjective sense ...
The right of common share ownership
On the emergence of the right of common share ownership affects various legal factors. This right arises when committing civil transactions between several persons ...
The right of common property
Modern legislation does not limit the composition of the co-owners: they may be citizens, legal entities of any kind, Russian Federation, subjects of the federation and municipalities in any combination ...
Ownership
The foundation of the occurrence of ownership - various legal facts with which the law binds the acquisition of ownership. They are combined into two groups ...
Obligation of citizens
The grounds for the emergence of property are called such legal acts, in the presence of which the ownership of or title property arises. Title ownership is possession of a thing ...
Ownership of citizens and legal entities - General
The legal relationship of property, as well as any legal relationship, may occur if there are certain legal facts or actual composition ...
Ownership of the apartment
right Property Apartment Association Ownership Ownership Ownership There is beyond the will and regardless of the rights of the preceding owner ...
Ownership of legal entities
property The right civil legal entity The foundations of the appearance of property rights are called such legal acts, in the presence of which arises the right of ownership or title ownership of property ...
Law of private property
The grounds of the emergence (acquisition) of ownership are various right-way legal acts, i.e., the circumstances of real life ...
Right of private property to land plots in the Russian Federation
Private property of citizens and legal entities are land plots acquired by them on the grounds provided by the legislation of the Russian Federation - both civil and land ...
Legal relations in the field of ownership
Property can belong to the right of ownership to several persons (co-owners). In this case, subjects arise the right of common property. Distinguish the total share and general joint property ...
Property and ownership
The ownership of its social essence will mediate the statics of social production, that is, provides a stable and long-term possession of property.
Ownership is the absolute right, that is, absolutely everyone is obliged to refrain from his violation.
Ownership is distinguished in an objective and subjective sense.
In an objective sense, a set of legal norms, enshrining and protecting the relation of the ownership, use and disposal of property, or in the interests of a citizen or state.
In a subjective sense - the possibility of an individual at its discretion and independently of any own, to use and dispose of property, in the redistributes established by law.
Possession - legal and actual opportunity to have a thing, keep it in itself, exercise physical domination over her;
Use - the ability to extract from the item of its properties;
Order is a legal opportunity to determine the fate of property, enter into various contracts - lease, storage, pledge, donation.
Ownership is the actual possession of a thing.
Use - the ability to extract the useful properties of the thing.
The order is the ability to determine the legal fate of things.
Grounds for the occurrence of ownership.
Ways of property rights are divided into:
Initial - recognized ways in which ownership arises to the property that did not belong to anyone;
Derivatives - Methods in which the ownership depends on the right of the preceding owner;
24. Grounds of the emergence and termination of ownership.
The law provides for various ways to acquire property to property. They are divided into two groups: initial and derivatives.
Initial - those in which the ownership of the thing arises for the first time or regardless of the will of the former owner.
These include:
Manufacturing or creating a face of a thing for yourself;
Creation of real estate;
Recycling;
The acquisition of objects of nature, which no one specifically has property rights;
Appeal to the property publicly available for collecting things.
The deadlines for acquisitions depend on the thing (on real estate - 15 years, for movable - 5 years).
The following derivatives are distinguished by the acquisition of property rights: the acquisition under the Agreement, when there is a succession; Inheritance acquisition; Acquisition of property in property in the process of reorganizing the owner.
The right of ownership is purchased with the privatization and privatization of state property.
Knowing the transfer of the transfer of ownership during the alienation of things is of great practical importance, because from this moment the following legal consequences are coming:
The acquirer receives all three legislation of the owner - can own, use, dispose of the thing;
The risk of random death is passed on it;
On behalf of the owner can be drawn to recovery on his debts;
The owner bears the cost of the content of things.
Termination of property rights, it can be divided into three types:
Alienation by the owner of his property to other persons;
Use by the owner of his property in direct appointment;
Voluntary refusal of the owner from his property.
In the first case, we are talking about various deals on the alienation of your property performed by the owner. In the second - about the use of food, fuel, cattle slaughter. In the third case, there is a refusal of property in the form of a public announcement about this, or committing actual action.
The ownership may be discontinued in connection with the adoption by government agencies on the seizure of the land.
Requision - Forced seizure of property by the owner in the interests of the Company to solve the authorities.
Confiscation is a sanction applied to the owner for committing a crime or other offense.
A special case of termination of the right of ownership is the denationalization and privatization of state property.
There is also a way to terminate the right of ownership as nationalization - forced appeal to the state ownership of property owned by legal entities and individuals.
Property stops in addition to the owner's will also with:
Random death things;
Applying for property obligations on the owner's commitments;
Alienation of property.
25. Recent real rights. The right of economic management and the right of operational management.
The right of economic management. The subject of this right there may be only a state or municipal unitary enterprise. It owns, enjoys and manages this property within certain limits (Art. 294). Article 113 of the Civil Code establishes that a unitary enterprise recognizes a commercial organization that is not entitled to ownership of property assigned to it.
Also has the right to receive a part of profits from the use of property in the economic management of the enterprise.
Article 276. Economic Law
Unitary enterprise to which property belongs to
the right of economic management owns, enjoys and manages
this property within the limits defined in accordance with
legislation.
Owner of property in business,
in accordance with the law, solves the creation issues
unitary enterprise, determining the subject and goals of it
activities, its reorganization and liquidation, appoints the head
enterprises, monitors use for the purpose and
the preservation of property owned by the enterprise.
The owner has the right to receive a part of the profits from
the use of property in business management
created by the enterprise.
Unitary enterprise is not entitled to sell belonging to him
on the right of economic management real estate, pass it into
rent, deposit, deposit as a contribution to the authorized capital
economic societies and partnerships or otherwise dispose of
this property without the consent of the owner.
The rest of the property owned by the enterprise, it
disposed of independently, with the exception of cases established by
legislation and property owner.
Right operational management. Its subjects are government enterprises, as well as institutions.
Another subject of operational management rights are institutions (art. 120 of the Civil Code).
The institution recognizes the organization created by the owner for the implementation of management, socio-cultural or other functions of a non-commercial nature and financed in whole or in part.
The institution is responsible for its obligations at its disposal of cash. In case of their insufficiency, subsidiary responsibility for its obligations is the owner of the relevant property.
The establishment is not entitled to alienate or otherwise manage the property and property acquired at the expense of the funds allocated to him on the estimate (approved by a higher authority or the owner of the establishment of its expenses for a certain period) - Art. 298.
Article 277. Right of operational management
1. Public enterprise, as well as a facility for
the property enshrined behind them is carried out within
established by law, in accordance with the objectives of their
activities, assignments of the owner and appointment of property rights
ownership, use and orders to them.
2. The owner of the property assigned for the treason
enterprise or institution, has the right to withdraw excessive, unused
or not as appointed property and dispose of them
his discretion.
26. Private property right.
The state and private ownership in turn shall be divided depending on the subjects of ownership. Accordingly, the ownership is divided into the property of citizens, legal entities, RB and administrative-territorial units. In this regard, the Republic of Belarus is recognized and protected by state and private ownership.
Subjects of private property rights are physical and non-state legal entities; The object of ownership can be any property allowed in civil turnover (consumer items, means of production, land, enterprises, buildings, structures, equipment).
For private property, there is a lack of restrictions on the number and cost of facilities (for example. In 1964. It was possible to have one residential building, not a few). It is allowed to use private property facilities not only for personal consumption, but in the prescribed manner and in order to extract profits (in business). It is not forbidden to apply hired labor.
28. Total property, its varieties.
The object of the right of common property, as well as any other type of ownership, is an individually-specific thing or a set of such things.
A characteristic feature of the right of common ownership is the multiplicity of subjects, which are called participants of the common property or owners.
General property is referred to as the equity when each of its participants has the right to a certain proportion. In general joint ownership, such a right is not defined in advance, it is recorded only with the termination of joint ownership. With its section or separated from it.
Common share ownership may arise due to any law permissible or contract.
The total property of two or more people on the same indivisible property is the equity, with the exception of cases provided for by legislative acts.
Much attention in total share ownership is given to the definition and change in the shares belonging to co-owners. The size of the share is determined by the participants of the common property themselves, and only if there are differences between them, the size of the share can be determined by the court.
Spouses on equal rights are dominated and disposed of common property. In the event of a transaction, the concerns of another spouse.
To the common property of spouses applies:
Property stated by spouses during marriage;
Personal property includes:
Property received by spouses as a gift during a marriage;
The property obtained by inheritance;
Property, is owned by the spouse before marriage;
Personal things.
29.Ruzhdan-legal protection of ownership. WINDICATION AND NEWORAL ISKI.
Protection of ownership is carried out using both general methods and means of protecting civil rights and special.
Ways to protect property rights:
civil law claims:
a) real-legal claims:
Windiculture
Non-vehicle
B) Compact and legal:
Claims about the recovery of losses
On labor compensation
Return things
WINDICATIONAL - ACCOUNT ABOUT THE CHILDREN OF PROPERTY OF ALLAN, illegal possession. The right of the Wing Claim is provided to the owner for returning things, the ownership of which it is lost, and is the compulsory extermination of property from someone else's illegal ownership. Thus, the WINDICATION CAST - the claim is not owned by the owner to owning the owner of the removal of property in nature.
The object of the Wine Claim is the property that has dropped out of ownership of the owner and is at the illegal owner.
Negator - a claim for the elimination of violations that impede the implementation of the right of ownership, but not related to the deprivation of the right of ownership. The negative lawsuit is a requirement to eliminate obstacles in the implementation of ownership, that is, the termination of such violations that are not connected to the deprivation of ownership of property ownership.
The purpose of the presentation of a negative claim is the elimination of an indispensable offense, which remains for the presentation of the claim.
recognition of violated or challenged law
restoration of the situation existing before violation of the right
termination or change of legal relations
recognition of the transaction is invalid
recognition of non-compliance with the legislation of the State Body Act or local authority and self-government
30.Thenium, content and foundation of obligations.
Obligations - civil legal relationship, by virtue of which one person is obliged to make a certain action in favor of another person or refrain from committing certain actions, and another person has the right to demand from the debtor of his duties.
The obligation has its own specific features that distinguish it from other legal relations, but there is a close connection between it and other types of legal relations. The person acquires ownership, and also terminates it, entering into obligational legal relations with other persons, for example, in obligations on sale and sale, delivery, donation.
Obligations may arise as a result of actions and events with which the law or other legal act connects the offensive of civil law consequences.
Subjects of the obligations are the lender and the debtor. The lender is a person managed to demand a certain action or abstinence from another person. On the side of both the lender, and the debtor may not be one, but at the same time several persons. Such obligations are called the obligations with multiple persons.
The object of the obligation is the action that is obliged to make a debtor. The actions of the debtor are most often associated with things or other benefits, for example, products of intellectual creativity, which are recognized by the objects of execution.
Obligations does not create duties for third parties, that is, not participating in it as a party. However, in cases stipulated by law or agreement of the Parties, the obligation can create rights and obligations for third parties in relation to one or both of the obligation.
In any society, the right of the first party corresponds to the duty of another. Obligations arise from the contract due to harm and other.
Types of commitment .
Obligations are:
Negotiable - the basis of the occurrence of which is a contract;
Non-base - the basis for their occurrence is the corresponding actions;
One-, two, multilateral
Equity - each of the lenders has the right to demand execution from the debtor in an equal share with other creditors;
Solidarity- If there are many persons on the side of the debtor, the lender in the right to demand execution both from all debtors together and from any of them individually, moreover, both fully and in terms of debt. The lender, who did not fully receive fully satisfying from one of the solidarial debtors, has the right to demand a non-faithful from the other solidarity debtors. Solidarity debtors remain obliged until the obligation is completely repaid. In solidarity, the demands of any of the solidar creditors have the right to make a demand to the debtor in full. The fulfillment of the obligation is fully one of the solidar creditors frees the debtor from execution to other lenders;
Subsidiary - the obligations of legal representatives of minors.
Subsidiary liability for the obligations of a legal entity In the event of its economic insolvency and deficiency of property assigned to the founders of this legal entity, who have the right to give a mandatory instructions to or otherwise determine its actions, especially if the economic failure of this legal entity is caused by the actions of such founders.
Execution of obligations. Principles of fulfillment of obligations.
Principles of fulfillment of obligations:
Proper performance - the action provided for in the obligation, properly comply with the instructions of the law or in accordance with the requirements of the obligation;
Real performance - the need to fulfill obligations in kind;
Business cooperation is the need for each party to fulfill their duties in the most economical way.
The term, place and method of execution are important for fulfilling the obligation.
According to Art. 295 GK, if the obligation provides for a day or period of fulfillment of the obligation, then the obligation must be executed on this day or at any time within the specified period.
In cases where the obligation does not provide for its execution, the obligation must be executed within a reasonable time.
If the obligation is not fulfilled within a reasonable time, the debtor is obliged to fulfill it for 7 days, from the date of the presentation of the written creditors and its execution.
The long-term fulfillment of the obligation is possible unless otherwise provided by law, or the condition of obligation.
If the local fulfillment of the obligation is not determined by law or contract, then:
Commitment to convey to real estate;
Obligation to transfer the goods or other property to the carrier, along with the prostate of the carrier;
Obligations to transfer goods or other property in the place of manufacture or storage of goods;
According to the monetary obligation, at the place of residence of the lender.
Methods of execution:
Takes place in the case when the fulfillment of obligations in parts is provided;
Performance of obligations in kind.
31. Performance of obligations. Principles of proper fulfillment of obligations.
In Chapter 22, the fulfillment of the obligations of the Civil Code of the Republic of Belarus considered all aspects of the fulfillment of obligations:
Article 290. General
Obligations must be appropriate in accordance with the terms of the obligation and the requirements of the legislation, and in the absence of such conditions and requirements - in accordance with the usually presented requirements.
Article 291. Inadmissibility of one-sided refusal to fulfill the obligation
One-sided refusal to fulfill the obligation and one-sided change of its conditions are not allowed, unless otherwise follows from legislation or contract.
Article 292. Performance of obligations in parts
The lender is entitled not to accept the fulfillment of obligations in parts, unless otherwise provided by law, the conditions of the obligation and does not follow the obligation.
Article 293. Performance of the obligation to the appropriate person
Unless otherwise provided by the Agreement of the Parties and does not follow the obligation, the debtor has the right to require the evidence that the execution is adopted by the lender itself or the person managed to them, and is the risk of the consequences of non-compliance with such a requirement.
Article 294. Performance of the obligation to a third party
1. The fulfillment of the obligation may be entrusted with the debtor on a third party, if from the law, the conditions of the obligation or its being does not follow the responsibility of the debtor to fulfill the obligation personally. In this case, the lender is obliged to take the execution proposed for the debtor by a third party.
2. The third person who is dangerous to lose their right to the property of the debtor (the right to lease, pledge or other) due to the creditor of the lender for this property, may at its own expense to satisfy the creditor's requirement without the consent of the debtor. In this case, the lender is transferred to a third party under the obligation in accordance with Articles 353-358 of this Code.
Article 295. The term of fulfillment
1. If the obligation provides or allows you to determine the day of its execution or period of time during which it should be executed, the obligation is subject to execution on this day or, accordingly at any time within this period.
2. In cases where the obligation does not provide for its execution and does not contain conditions that allow you to determine this period, it must be executed within a reasonable time after the occurrence of the obligation.
The obligation not fulfilled within a reasonable period, but equal to the obligation, which is determined by the moment of demand, the debtor is obliged to fulfill within the seven-day period from the date of receipt of the written claim of the creditor about its execution, if the obligation of execution within another period does not follow from the act of legislation, the conditions of obligation or creature obligations.
Article 296. Early fulfillment of the obligation
The debtor has the right to fulfill the obligation to the term, unless otherwise provided by the legislation or conditions of the obligation or does not follow from its being. However, the early execution of the obligation related to the implementation of its entrepreneurial activities is allowed only in cases where the ability to fulfill the obligation is prematurely foreseen by law or conditions of the obligation or follows from the essence of the obligation.
Article 297. The place of execution of the obligation
If the place of execution of the obligation is not determined by law or contract, does not appear from the essence of the obligation, the execution should be produced:
1) under the obligation to transfer land, building, building or other immovable property - at the location of the property;
2) upon the obligation to transfer goods or other property providing for its transportation - at the place of delivery of the property to the first carrier to deliver it to the lender;
3) According to other obligations of the debtor, transfer the goods or other property - at the place of manufacture or storage of property, if this place was known to the lender at the time of the occurrence of the obligation;
4) According to the monetary obligation - at the place of residence of the creditor at the time of the occurrence of the obligation, and if the lender is a legal entity, - at the place of its location at the time of the occurrence of the obligation. If the lender, by the time of the fulfillment of the obligation, changed the place of residence or the place of stay and informed about this debtor, - in the new place of residence or the location of the lender with the classification of the creditor of the costs associated with the variability of execution;
5) For all other obligations - in the place of residence of the debtor, and if the debtor is a legal entity, - at the place of his location.
Article 298. Currency of monetary obligations
1. Monetary obligations must be expressed in Belarusian rubles (Article 141).
In a monetary obligation, it may be envisaged that it is subject to payment in Belarusian rubles in an amount equivalent to a certain amount in foreign currency or in conditional monetary units ("Special Rights of Borrowing", etc.). In this case, the amount payable in rubles is determined at the official rate of the relevant currency or conditional monetary units on the day of payment, unless the course or other date of its definition is not established by law or agreement of the parties.
2. The use of foreign currency, as well as payment documents in foreign currency in the implementation of settlements on the territory of the Republic of Belarus for obligations is allowed in cases, but on the conditions defined by law.
Methods for termination of obligations.
Execution of obligations.
The concept and types of obligations.
Forms of ownership.
The foundation of the emergence and termination of the right of ownership.
The concept of real rights. The content of property rights.
Ownership and other real rights. Fundamentals of obligatory rights
Lecture number 8.
Ownership is one of the types of real rights.
In an objective sensethe real law is a set of legal norms that enshrine affiliation of things (property) to the subjects of real rights regulating the empower these subjects about things and establish responsibility for their violations. The concept of "real law" has a long-time origin and is associated with the word "thing", which was previously understood as a subject of nature or a product of labor with physical, chemical, biological, mechanical and similar properties, i.e. genuine form. In a subjective sense The real law is the right of a specific person who enshrines the belonging to this person to concrete relevance and formulating the protection of these specific rights.
Types of real rights are enshrined in Art. 217 GK RB. These include:
· ownership;
· The right of economic management and the right of operational management;
· The right of lifelong inherited ownership of the land plot;
· The right to continuous use of the land plot and the right of temporary use by the land plot;
· Merchant.
As for the right of ownership, it arises later the property as an economic category, i.e. Property precedes ownership and is associated with the need to protect property.
Ownership, regulating public relations, enshrines in its norms possession of material benefits (objects, property), their belonging to specific owners, and also provides for the conditions and procedure for acquiring property to ownership, the ability to own, use and dispose of them in relation to one or another public Economic formation. For these purposes, a special apparatus is created to protect, compliance with the right of ownership.
In contrast to the economic property relations, ownership characterized by both A certain system of legal norms established by the state in order to regulate economic relations, i.e. belonging (assistance) of material goods is fixed not economically, but with the help of the rules of law . In this sense, the ownership is indefinitely.
The owner belongs to the rights of ownership, use and disposal by their property.
Possession - This is a legally secured possibility of economic domination over the thing, the opportunity to have this property to keep it in its own farm (number on the balance sheet). As a rule, the owner is the subject, in the farm of which is the thing. However, the right of ownership can also belong to a misconception, in particular, on the basis of the contract.
Use- based on the law the possibility of exploitation, economic or other use of property by extracting useful properties from it, its consumption for production and personal needs. It is closely related to the authority of possession, as the owner can use its property only under the condition of simultaneous possession of them. The use is based on the law and is protected by it.
Order This means the possibility of determining the legal fate of the property by changing its belonging, state or appointment (in the form of alienation under the contract, transmission by inheritance, destruction, etc.) is the most significant authority of the owner, since the owners may not own and use the property. The owner performs the authority of possession, use and orders in his will, in accordance with the law, while other persons can exercise them depending on the will of the owner.
The owner at its discretion is entitled to commit any actions that do not contradict the law, public benefits and security that do not harm the environment, historical and cultural values \u200b\u200band not infringe upon rights and protected by the law of interests of others, including their property. Property to others, to transfer them, remaining the owner, the rights of possession, use and disposal of property, to give property to a deposit and burden it in other ways, and also dispose of them in a different way (paragraph 2 of Art. 210 GK of the Republic of Belarus).
The owner can convey its property into confidential control to another person (trust manager). Property transfer to trust management does not entail the transition of ownership of the trust manager, which is obliged to manage property in the interests of the owner or the third person specified.
Certain responsibilities are assigned to the owner. It bears the burden of the content of the property belonging to him, the risk of random death, random damage or accidental damage to the property. The owner cannot go beyond the realization of civil rights established by Article 9 of the GC of the Republic of Belarus.
Depending on the nature of the foundations, the initial and derivative ways of acquiring ownership are distinguished. Initial Methods of acquisition occur in cases where the ownership of property arises for the first time or regardless of the will of the previous owner. For derivatives The methods of the new owner receives its right to the item by the will of the previous owner of this thing.
Initial methods Acquisition of ownership:
1) Production or creation of a new thing for themselves in compliance with legislation.
2) the emergence of ownership of derivatives (things that appeared as a result of using other things - fruits, products, income). They can belong both to the owner and another person using this property on legal grounds.
3) the emergence of ownership of the building under construction, building and other newly created immovable property. Ownership of such property arises from the moment the creation of this property is completed, and if the real estate is subject to state registration - from the moment of registration.
If the thing is created by the face of his materials, then such a person becomes the owner of this thing. If the thing is manufactured from materials belonging to another person, ownership of the created thing can belong to either the manufacturer or the owner of the materials.
4) The ownership of the movable thing, made by the person by processing the materials belonging to it, is purchased by the owner of the materials. However, if the cost of processing significantly exceeds the cost of materials, the ownership of the new thing acquires a person who, acting in good faith, made processing for himself. If the ownership of the manufactured thing arises from the owner of the materials, it is obliged to reimburse the cost of recycling to his face, and in case of acquiring ownership of the new thing, it made it, it is obliged to commemorate the owner of the materials of their value.
5) the basis of the acquisition of property rights is to collect berries, fishing, the collection and mining of other publicly available things and animals, in cases where in accordance with the legislation, a general resolution, this owner or in accordance with local custom, this is allowed in forests, water bodies or Another territory. Ownership of the relevant things acquires a person who has taken their collection or prey.
6) A variety of manufacturing (creation) of things is the construction of real estate construction. Ownership arises to such a property of the street that has implemented construction for himself, or from the Customer who has committed to the construction of the construction to another person. Ownership of the constructed object arises only under the observance of legislation imposed on construction work. Violation of such requirements should exclude the possibility of ownership of the result of construction. The person who fulfilled the unauthorized construction does not acquire the right of ownership and the person is obliged to demolish the unauthorized construction or lead it to the previous state (Art. 223 of the Republic of Belarus).
7) In order of the initial method, the ownership of things is purchased, for one reason or another, who have retired from the possession of the previous owner and have no confirmation of their belonging to them or another person. The procedure for the acquisition of ownership of defenseless things is established by law, depending on the specific situations - abandoned things, find, hopeless animals, treasure.
Nakhodka Is the found thing that retired from the possession of the owner, the other legal owner (tenant, the keeper), lost, forgotten, mistakenly left at another person. Nakhodka does not become the property of a person who discovered it and should be returned to the legal owner. The founded thing is obliged to immediately notify the person who lost her or the owner of the thing, or anyone from those who have known to him who have the right to get it and return it to these persons. If the place of stay of a person who has the right to demand the found thing is unknown, the found thing is obliged to declare a find in the police or local government or local government. If a for 6 months From the moment of the statement of finding a police or local government or self-government, the person who is managed to receive a lost thing will not be established and will not be revealed to the lost thing, the found thing acquires ownership of it. If the found thing refuses to acquire it to the property, the thing found goes to communal property.
The same relationships arise in the finding of non-post-free or intensive livestock or other non-television pets.
Cladom Money or valuable items, the owner of which, cannot be buried in Earth or hidden in a different way, or by virtue of the law of legislation raised them. The treasure enters the ownership of the person who owns the land plot, the structure, etc., where the treasure was hidden and the persons who found the treasure in equal shares if the agreement between them was not established otherwise. If the treasure was found by a person who made an excavation or search without agreement on this is the owner of a land plot or other property, where the treasure was hidden, the treasure is subject to the transfer of land or other property to the owner in which the treasure is detected. The person who has discovered treasure containing things related to the monuments of history and culture is obliged to convey them to state ownership. In this case, the owner of the land plot, where the treasure was hidden, and the face that discovered the treasure is paid 50% of the value of the treasure. This rule does not apply to persons, in the circle of labor or official duties of which was to carry out excavations and search aimed at detecting the treasure.