See more
Publication date: 21.02.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
Civil legislation provides for cases in which the legal relationship between the main parties to the obligation is lost, that is, rights and obligations are lost. Conventionally, all types of grounds for termination of obligations can be divided into two groups: those that depend on the will of the parties, and those that arise independently of their will. Termination can be accompanied by the conclusion of relevant deeds (assignment, settlement agreement, transfer of assignable property, etc.), or in non-contractual form (liquidation of a legal entity, impossibility of performance, combination of creditor and debtor in one person, etc.). In this case, analysis of a contract by a lawyer may be required.
Termination of obligations at the will of the parties:
Implementation. It is indisputable that the main reason that arises in most obligations is their fulfillment, that is, the debtor's performance of those actions that he was obliged to perform in accordance with the concluded contract. If the principles of proper and real performance are observed by the debtor, he took into account the circumstances of the time, place, and method of performance, then it will be a matter of terminating the obligation precisely on this basis. In most cases, the fulfillment of the obligation rests with the debtor, which makes it impossible to transfer the debt to another person. If the debtor did not comply with the circumstances described above, it will be considered that the obligation was performed improperly, and the creditor will have the opportunity to refuse to accept the performance.
Assignment. This basis is also called cession, which is one of the ways to replace the creditor. An agreement is concluded between the assignor (primary creditor) and the assignee (new creditor), according to which the assignor cedes its right of claim to the assignee for a certain fee. The debtor's consent to the assignment is not required, but it is important to inform him about it. It is worth noting that the replacement of the creditor is inadmissible in obligations to compensate for damage caused by mutilation or other health damage, that is, when the obligation is directly related to the person of the creditor.
Enrollment. This reason for termination of obligations is effective if they are equal in amount. Enrollment can satisfy the interests of both parties, as it frees them from the need to demand compliance in court. At the same time, it is worth paying attention to the terms of enrollment, namely: enrollment is possible only with uniform requirements, obligations must be mutually exclusive, at least one of the parties must show the appropriate will to terminate enrollment, enrollment is not prohibited by law.
Novation. A novation is an agreement between the creditor and the debtor to replace the original obligation with another. The agreement must provide for a new subject and method of performance of the obligation. An important feature of novation is that it is the basis for interrupting the statute of limitations.
Fix. This reason for the termination of the obligation provides for the creditor to receive, instead of the subject of the obligation, a ceded amount in the form of a sum of money, or certain property. The basis of the concession is an agreement concluded between the parties to the obligation, which should provide for the size of the concession, the procedure for its provision, etc. This agreement can be concluded by the parties at any stage of the existence of the obligation.
Debt forgiveness. The creditor may release the debtor from the obligation to fulfill the obligation provided for in the contract, if this does not violate the rights of third parties. As a result of forgiveness, an appropriate contract is concluded between the parties.
Termination of obligations regardless of the will of the parties:
Combination of creditor and debtor in one person. In the event of a combination of the main parties of the obligation, one is formed, which accordingly eliminates the need for the further existence of the obligation. Usually, the combination of several parties in one person takes place during the reorganization of legal entities (merger, merger) or in the case of the inheritance process. You can argue that. that due to the presence of such a basis, the so-called legal succession will take place, because the scope of rights and obligations belonging to one party is transferred to the other.
Impossibility of performance. In this case, we will be talking about the occurrence of such circumstances that will exclude the possibility of the debtor fulfilling his obligation. Such circumstances can have both factual and purely legal nature. Actual circumstances related to force majeure (floods, earthquakes). As for legal ones, obstacles in the form of legal requirements or moral standards can prevent the debtor from fulfilling his obligations. In any case, the presence of the debtor's will is excluded.
Death of a natural person. There are certain types of obligations that are directly related to the identity of the creditor or debtor. The death of one of the parties to such obligations leads to their termination. For example, testamentary refusals, power of attorney contracts, sureties, etc.
Liquidation of a legal entity. Liquidation is considered one of the types of termination of activity of a legal entity. A characteristic feature of liquidation is the absence of legal succession. Together with this legislation, the liquidation procedure is clearly regulated, during which a liquidation commission is created, which will satisfy the demands of creditors in order of priority.
Assistance of a lawyer in the termination of obligations and analysis of contracts:
It is extremely important to have a proper contractual provision for the termination procedure where it is necessary, and therefore the parties may need the services of a lawyer. The lawyer will take into account all the peculiarities of the situation, conduct a legal analysis of a contract, the requirements of the legislation and the wishes of the parties. Consultation and analysis of documents by a lawyer may also be necessary in case of non-fulfillment of obligations by the debtor, because for this it may be necessary to go to court.
