SOME ISSUES OF TEMPORAL LIMITS OF CIVIL RELATIONS - Наукові конференції
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Рік заснування видання - 2014

SOME ISSUES OF TEMPORAL LIMITS OF CIVIL RELATIONS

28.04.2020 19:39

[Секція 3. Цивільне та сімейне право. Цивільне процесуальне право. Комерційне право. Житлове право. Зобов’язальне право. Міжнародне приватне право. Трудове право та право соціального забезпечення]

Автор: Guyvan Petr Dmitrievich, Cand. legal Sciences, Honored Lawyer of Ukraine, professor of the Poltava Institute of Business


Quite peculiarly, temporary regulation of contractual relations is carried out when a certain obligation is performed in favor of a third party. In particular, under a contract for the carriage of goods (Article 919 of the Civil Code), cargo that was not issued to the recipient at his request within thirty days after the expiration of the delivery period, if a longer period is not established by the contract, transport codes (charters), is considered lost. However, the consignee must accept the goods that arrived after the expiration of the above periods and return the amount paid to him by the carrier for the loss of goods, unless otherwise provided by the contract, transport codes (charters). According to the terms of the insurance contract, the insurer is obligated to make insurance payments to a third party, the beneficiary, in case he reaches a certain age or another insured event occurs (Article 985 of the Civil Code of Ukraine). As is commonly believed, a third party that is not a party to the contract, but in whose favor the implementation is pending, acquires a virtually independent right. The specified person may demand the performance of the obligation by the debtor, that is, it acquires the rights of the creditor. In the literature, the idea has been expressed that these rights of a third party can arise only after it has shown its agreement with the terms of the contract [1, p. 40-41]. One can agree with this, a third party may not accept performance in their favor and a liability relationship does not arise. This is quite logical, since the performance of an agreement in favor of a third party often repays existing obligations, so it is fair to assume that the lender has the right to disagree with replacing the way of fulfilling the obligation. But the question arises: does such an agreement come into force in the absence of the consent of a third party, in what time should such consent be provided and how should it be manifested?

In our opinion, the third party in whose favor the fulfillment of the contract is to be performed must reveal its consent to the acquisition of creditor rights under the obligations established by the agreement. Otherwise, you should qualify the contract as such that did not take place. Since the legislator does not establish specific temporal measurements, the rule on reasonable terms for the commission of the corresponding positive act, which should have an unambiguous manifestation, should be applied here. The consent of a third party can be expressed both by active actions (the statement itself, the presentation of a claim against the debtor, etc.), and, for example, by acceptance of execution. From this moment on, the lender acquires subjective substantive law. And only in such circumstances does the debtor-creditor relationship become certain and the possibilities of legal protection of the authorized party are fully realized. In this case, the right to claim arises, and the limitation period begins on the day the debtor violates the creditor's substantive right.

The deadline for the consent of a third party, in whose favor fulfillment is carried out in accordance with the terms of the contract, as a general rule, is the period of time from the conclusion of the agreement to the start of fulfillment by the debtor of the obligation. However, sometimes the situation looks a little more complicated. Firstly, a third party can find out about the contents of the contract later than its conclusion and this circumstance postpones the initial term of such approval. Secondly, the obligation to fulfill the obligation can be assigned to the debtor immediately after the conclusion of the contract. In such circumstances, the delay is delaying the emergence of a protective relationship, therefore, the general rules for calculating the limitation period should be applied taking into account the characteristics of these relations. If a third party agrees to the fulfillment by the debtor of an obligation in his favor after the deadline has already begun for the fulfillment of such an obligation in accordance with the terms of the contract from which it arose, it becomes, as already noted, a party to such an obligation from the moment the consent is granted. It is from this time that it becomes possible to violate his subjective right, since without the existence of law there is no corresponding violation by anyone. From this date begins and the limitation period for the specified requirements. So, as it is proved, the course of fulfillment of the obligation established by the contract in favor of the third party may not coincide with the deadlines for the third party to exercise his right to claim.

On the other hand, it does not seem entirely appropriate to provide the opportunity for a third party to acquire the rights of a creditor at any time, regardless of the beginning of the term for the performance of an obligation by the debtor under the contract. This can lead to inadequate legal regulation situations. For example, the parties to the contract stipulated the fulfillment of a monetary obligation under an insurance contract in favor of a third party. The refusal of a third party to obtain compliance leads to the recognition of the fact that the contract has not been concluded, with the application of the relevant legal consequences for its participants. The consent of a third party with the performance of an obligation in his favor gives rise to a commitment and the possibility of judicial protection of the rights of the creditor. Long-term uncertainty regarding the provision of consent by a third party for the adoption of execution makes the contractual relationship itself uncertain. Therefore, we repeat that the acceptance or rejection of the execution by agreement of a third party in their favor should be carried out within a reasonable time. Such a period may be determined, for example, in seven days, unless otherwise provided by law or contract. At the end of the specified period, the performance is considered not accepted by a third party, but the contract is such that has not taken place (not concluded).

Another fundamental issue relating to this sphere of relations is the possibility of the parties to the agreement, under which the obligation is performed in favor of a third party, to make adjustments to such transactions. In fact, this means that the parties to the contract can change the content of subjective law or even deprive a third party of this right. But in this case, if the specified third party has already acquired the rights of a creditor, these rights are subject to legal protection. Moreover, if a third party already has the right to claim in connection with a violation of his property right. The cancellation of the right itself in this situation by the parties to the agreement also means the termination of the possibility of its protection. The limitation period is terminated. The de facto duration of substantive law for a third party is determined by the parties to the contract to which it is not a party. The parties to the agreement may make such changes more than once. And each time a violation of the subjective right of a third party begins a new course of limitation. This situation does not contribute to the stability of civil relations.

The content of protection law arising from a regulatory violation includes the authority to terminate the offense and eliminate its negative consequences [2, p. 26]. The cessation of the violation eliminates the possibility of the enforcement of the relevant protection right by its implementation in kind, although it leaves the holder of the right to receive compensation. And in practice, situations may arise when a certain circumstance that affects the impossibility of judicial protection subsequently disappears. For example, an act of a non-normative nature that violates the subjective rights of a certain circle of people was canceled by the publisher himself, but after some time the decision to cancel it was canceled by him or a higher authority. As a general rule, the limitation period for claims to be declared unlawful and the repeal of such an act begins from the moment a person receives information about it. However, during the period when the act was invalid, the presentation of the claim could not entail the defense of the right, since there was no violation of it. The court must refuse to satisfy the claims presented during this period on their groundlessness. When the impugned act restores its effect, the person whose rights it affects will have a new claim. It cannot be considered that in the commented situation, the prescription flow stopped [3, p. 46-47], or its interruption. A new term has begun for the limitation period for a new offense.

In general, a change, as agreed by the participants, to the deadline for the fulfillment of the obligation before the end of the moment does not affect the course of the statute of limitations, since the limitation of actions will begin only after the violation, that is, after the default on the deadline. In fact, in this case, there is a change in the conditions of the regulatory relationship with respect to execution time. If the parties agree to change the deadline for the performance of an already overdue debt, we observe a slightly different picture. The statute of limitations for a request related to a delay arises after such an offense. In the event that the parties during the course of its course agree to postpone the execution period to a future period, they actually eliminate the existing violation and terminate the violated state of subjective law. The legal relationship from the violated state again passes to the undisturbed, therefore the protective claim of the holder of the right ceases. The limitation period for the relevant requirements also ceases. We repeat, the statute of limitations ceases in connection with the termination of the violation, but does not end. If the debtor fails to fulfill the obligation within the new agreed period, a new violation of the same subjective right occurs, which entails the beginning of a new prescription.

Thus, the delay in the fulfillment of the protective obligation de facto turns it into another regulatory one. The duration of the protective relationship that has begun (including the claim) is terminated. Indeed, the sanction can be applied if the regulatory debt is not fulfilled, and it is postponed to another period. So, the next claim period will begin after default in the new term [4, p. 46].

From the foregoing, we can draw certain conclusions. At the legislative level, more attention should be paid to issues of legal regulation of obligations in favor of a third party, in particular temporally. It is proposed to introduce normatively certain criteria for determining a reasonable period for a third party to accept the rights of a creditor under an obligation in his favor. The implementation of this proposal will significantly affect the existing state of relations of entities under similar agreements in favor of a third party. The current practice indicates that subjective substantive law arises from a third party after the conclusion of an agreement in his favor. The right is considered violated, and the limitation period begins from the moment of conclusion of the agreement, and if the deadline for fulfillment of the obligation is remote from the time of its conclusion, then - after the deadline for such performance. It also seems appropriate to establish a rule at the legislative level when recognition by a third party of the performance of an obligation in its favor deprives counterparties under an agreement of the ability to revoke or change the content of the rights granted by them to the specified person.

References: 

1. Novitsky I.B. Transactions. Statute of limitations. Moscow: Госюриздат, 1954. 247 р.

2. Eliseikin P.F. Security norms (concept, types, structure). / In the book: Protection of subjective rights and Soviet civil proceedings. Yaroslavl, 1977. 148 р.

3. Rosenberg M.G. Statute of limitations in the international commercial turnover: practice of application. Moscow: Статут, 1999. 144 р.

4. Frolov Yu., Frolova G. Some problems of application of time limits of statute of limitations, their difference from other terms in civil law. Підприємництво, господарство і право. 2001. № 10. P. 45-47.



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