Контрольные вопросы для итоговой аттестации мгюа, 2006 I. Методические рекомендации курс «Гражданское к торговое право промышленно развитых зарубежных стран»

(1) If the place of performance of a contractual obligation is not fixed by or determinable from the contract it shall be:

(a) in the case of an obligation to pay money, the creditor's place of business at the time of the conclusion of the contract;

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(2) If a party has more than one place of business, the place of busi­ness for the purpose of the preceding paragraph is that which has the closest relationship to the contract, having regard to the circumstances known to or contemplated by the parties at the time of conclusion of the contract.

(3) If a party does not have a place of business its habitual residence is to be treated as its place of business.

CHAPTER 8: NON-PERFORMANCE AND REMEDIES IN GENERAL

Article 8:101 Remedies Available

(1) Whenever a party does not perform an obligation under the con­tract and the non-performance is not excused under Article 8:108, the aggrieved party may resort to any of the remedies set out in Chapter 9.

(2) Where a party's non-performance is excused under Article 8:108, the aggrieved party may resort to any of the remedies set out in Chapter 9 except claiming performance and damages.

(3) A party may not resort to any of the remedies set out in Chapter 9 to the extent that its own act caused the other party's non-performance.

Remedies which are not incompatible may be cumulated. In particu­lar, a party is not deprived of its right to damages by exercising its right to any other remedy.

A non-performance of an obligation is fundamental to the contract if:

(a) strict compliance with the obligation is of the essence of the con­tract; or

(b) the non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract, unless the other party did not foresee and could not reasonably have foreseen that result; or

(с) the non-performance is intentional and gives the aggrieved party reason to believe that it cannot rely on the other party's future perform­ance.
Article 8:104 Cure by Non-Performing Party

A party whose tender of performance is not accepted by the other party because it does not conform to the contract may make a new and conforming tender where the time for performance has not yet arrived or the delay would not be such as to constitute a fundamental non-per­formance.

(1) The creditor is entitled to recover money which is due.

(2) Where the creditor has not yet performed its obligation and it is clear that the debtor will be unwilling to receive performance, the credi­tor may nonetheless proceed with its performance and may recover any sum due under the contract unless:

(a) it could have made a reasonable substitute transaction without sig­nificant effort or expense; or

(b) performance would be unreasonable in the circumstances.
Article 9:102 Non-monetary Obligations

(1) The aggrieved party is entitled to specific performance of an obli­gation other than one to pay money, including the remedying of a defec­tive performance.

(2) Specific performance cannot, however, be obtained where:

(a) performance would be unlawful or impossible; or

(b) performance would cause the obligor unreasonable effort or expense; or

(c) the performance consists in the provision of services or work of a personal character or depends upon a personal relationship, or

(d) the aggrieved party may reasonably obtain performance from another source.

(3) The aggrieved party will lose the right to specific performance if it fails to seek it within a reasonable time after it has or ought to have become aware of the non-performance.
Article 9:103 Damages Not Precluded

The fact that a right to performance is excluded under this Section does not preclude a claim for damages.

(1) A party who is to perform simultaneously with or after the other party may withhold performance until the other has tendered perform­ance or has performed. The first party may withhold the whole of its per­formance or a part of it as may be reasonable in the circumstances.

(2) A party may similarly withhold performance for as long as it is clear that there will be a non-performance by the other party when the other party's performance becomes due.
CHAPTER 10. Plurality of parties

Section 1: Plurality of debtors

ARTICLE 10:101: SOLIDARY, SEPARATE AND COMMUNAL OBLIGATIONS

(1) Obligations are solidary when all the debtors are bound to render one and the same performance and the creditor may require it from any one of them until full performance has been received.

(2) Obligations are separate when each debtor is bound to render only part of the performance and the creditor may require from each debtor only that debtor's part.

(3) An obligation is communal when all the debtors are bound to ren­der the performance together and the creditor may require it only from all of them.
ARTICLE 10:102: WHEN SOLIDARY OBLIGATIONS ARISE

(1) If several debtors are bound to render one and the same perform­ance to a creditor under the same contract, they are solidarity liable, unless the contract or the law provides otherwise.

(2) Solidary obligations also arise where several persons are liable for the same damage.

(3) The fact that the debtors are not liable on the same terms does not prevent their obligations from being solidary.

Debtors bound by separate obligations are liable in equal shares unless the contract or the law provides otherwise.

Notwithstanding Article 10:101(3), when money is claimed for non-performance of a communal obligation, the debtors are solidarity liable for payment to the creditor.

(1) As between themselves, solidary debtors are liable in equal shares unless the contract or the law provides otherwise.

(2) If two or more debtors are liable for the same damage under Article 10:102(2), their share of liability as between themselves is deter­mined according to the law governing the event which gave rise to the liability.
CHAPTER 11. Assignment of Claims

Section 1: General Principles

ARTICLE 11:101: SCOPE OF CHAPTER

(1) This Chapter applies to the assignment by agreement of a right to performance («claim») under an existing or future contract.

(2) Except where otherwise stated or the context otherwise requires, this Chapter also applies to the assignment by agreement of other trans­ferable claims.

(3) This Chapter does not apply:

(a) to the transfer of a financial instrument or investment security where, under the law otherwise applicable, such transfer must be by entry in a register maintained by or for the issuer; or

(b) to the transfer of a bill of exchange or other negotiable instrument or of a negotiable security or a document of title to goods where, under the law otherwise applicable, such transfer must be by delivery (with any necessary indorsement).

(4) In this Chapter «assignment» includes an assignment by way of security.

(5) This Chapter also applies, with appropriate adaptations, to the granting by agreement of a right in security over a claim otherwise than by assignment.
ARTICLE 11:102: CONTRACTUAL CLAIMS GENERALLY ASSIGNABLE

(1) Subject to Articles 11:301 and 11:302, a party to a contract may assign a claim under it.

(2) A future claim arising under an existing or future contract may be assigned if at the time when it comes into existence, or at such other time as the parties agree, it can be identified as the claim to which the assign­ment relates.
ARTICLE 11:103: PARTIAL ASSIGNMENT A claim which is divisible may be assigned in part, but the assignor is liable to the debtor for any increased costs which the debtor thereby incurs.
ARTICLE 11:104: FORM OF ASSIGNMENT

An assignment need not be in writing and is not subject to any other requirement as to form. It may be proved by any means, including wit­nesses.

(1) The assignment of a claim transfers to the assignee:

(a) all the assignor's rights to performance in respect of the claim assigned; and

(b) all accessory rights securing such performance.

(2) Where the assignment of a claim under a contract is associated with the substitution of the assignee as debtor in respect of any obligation owed by the assignor under the same contract, this Article takes effect subject to Article 12:201.
CHAPTER 12. Substitution of New Debtor: Transfer of Contract
Section 1: Substitution of New Debtor
ARTICLE 12:101: SUBSTITUTION: GENERAL RULES

(1) A third person may undertake with the agreement of the debtor and the creditor to be sub-sti-tuted as debtor, with the effect that the original debtor is discharged.

(2) A creditor may agree in advance to a future substitution. In such a case the substitution takes effect only when the creditor is given notice by the new debtor of the agreement between the new and the original debtor.
ARTICLE 12:102: EFFECTS OF SUBSTITUTION ON DEFENCES AND SECURITIES

(1) The new debtor cannot invoke against the creditor any rights or defences arising from the relationship between the new debtor and the original debtor.

(2) The discharge of the original debtor also extends to any security of the original debtor given to the creditor for the performance of the obli-ga-tion, unless the security is over an asset which is transferred to the new debtor as part of a transaction between the original and the new debtor.

(3) Upon discharge of the original debtor, a security granted by any person other than the new debtor for the per-formance of the obli-ga-tion is released, unless that other person agrees that it should continue to be available to the creditor.

(4) The new debtor may invoke against the creditor all de-fences which the original debtor could have invoked against the creditor.
Section 2: Transfer of Contract
ARTICLE 12.201: TRANSFER OF CONTRACT

(1) A party to a contract may agree with a third person that that per­son is to be sub-sti-tu-ted as the contracting party. In such a case the sub­stitution takes effect only where, as a result of the other party's assent, the first party is discharged.

(2) To the extent that the substitution of the third person as a con­tracting party involves a transfer of rights to performance («claims»), the provisions of Chapter 11 apply; to the extent that obligations are trans­ferred, the provisions of Section 1 of this Chapter apply.
CHAPTER 13. Set-Off
ARTICLE 13:101: REQUIREMENTS FOR SET-OFF If two parties owe each other obligations of the same kind, either party may set off that party's right to performance («claim») against the other party's claim, if and to the extent that, at the time of set-off, the first party:

(a) is entitled to effect performance: and

(b) may demand the other party's performance.
ARTICLE 13:102: UNASCERTAINED CLAIMS

(1) A debtor may not set off a claim which is unascertained as to its existence or value unless the set-off will not prejudice the interests of the other party.

(2) Where the claims of both parties arise from the same legal rela­tionship it is presumed that the other party's interests will not be preju­diced.
CHAPTER 14. Prescription
Section 1: General Provision
ARTICLE 14:101: CLAIMS SUBJECT TO PRESCRIPTION

A right to performance of an obligation («claim») is subject to pre­scription by the expiry of a period of time in accordance with these Principles.

The general period of prescription is three years.

(1) The period of prescription for a claim established by judgment is ten years.

(2) The same applies to a claim established by an arbitral award or other instrument which is enforceable as if it were a judgment.
ARTICLE 14:203: COMMENCEMENT

(1) The general period of prescription begins to run from the time when the debtor has to effect performance or, in the case of a right to damages, from the time of the act which gives rise to the claim.

(2) Where the debtor is under a continuing obligation to do or refrain from doing something, the general period of prescription begins to run with each breach of the obligation.

(3) The period of prescription set out in Article 14:202 begins to run from the time when the judgment or arbitral award obtains the effect of res judicata, or the other instrument becomes enforceable, though not before the debtor has to effect performance.

The running of the period of prescription is suspended as long as the creditor does not know of, and could not reasonably know of:

(a) the identity of the debtor; or

(b) the facts giving rise to the claim including, in the case of a right to damages, the type of damage.

(1) The running of the period of prescription is suspended from the time when judicial proceedings on the claim are begun.

(2) Suspension lasts until a decision has been made which has the effect of res judicata, or until the case has been otherwise disposed of.

(3) These provisions apply, with appropriate adaptations, to arbitra­tion proceedings and to all other proceedings initiated with the aim of obtaining an instrument which is enforceable as if it were a judgment.

A contract is of no effect to the extent that it is contrary to principles recognised as fundamental in the laws of the Member States of the European Union.

(1) Where a contract infringes a mandatory rule of law applicable under Article 1:103 of these Principles, the effects of that infringement upon the contract are the effects, if any, expressly prescribed by that mandatory rule.

(2) Where the mandatory rule does not expressly prescribe the effects of an infringement upon a contract, the contract may be declared to have full effect, to have some effect, to have no effect, or to be subject to mod­ification.

(3) A decision reached under paragraph (2) must be an appropriate and proportional response to the infringement, having regard to all rele­vant circumstances, including:

(a) the purpose of the rule which has been infringed;

(b) the category of persons for whose protection the rale exists;

(c) any sanction that may be imposed under the rule infringed;

(d) the seriousness of the infringement;

(e) whether the infringement was intentional; and

(f) the closeness of the relationship between the infringement and the contract.

(1) If only part of a contract is rendered ineffective under Articles 15:101 or 15:102, the remaining part continues in effect unless, giving due consideration to all the circumstances of the case, it is unreasonable to uphold it.

(2) Article's 15:104 and 15:105 apply, with appropriate adaptations, to a case of partial ineffectiveness.

ARTICLE 15:104: RESTITUTION

(1) When a contract is rendered ineffective under Articles 15:101 or 15:102, either party may claim restitution of whatever that party has sup­plied under the contract, provided that, where appropriate, concurrent restitution is made of whatever has been received.

(2) When considering whether to grant restitution under paragraph (1), and what concurrent restitution, if any, would be appropriate, regard must be had to the factors referred to in Article 15:102(3).

(3) An award of restitution may be refused to a party who knew or ought to have known of the reason for the ineffectiveness.

(4) If restitution cannot be made in kind for any reason, a reasonable sum must be paid for what has been received.

(1) A party to a contract which is rendered ineffective under Articles 15:101 or 15:102 may recover from the other party damages putting the first party as nearly as possible into the same position as if the contract had not been concluded, provided that the other party knew or ought to have known of the reason for the ineffectiveness.

(2) When considering whether to award damages under paragraph (I), regard must be had to the factors referred to in Article 15:102(3).

(3) An award of damages may be refused where the first party knew or ought to have known of the reason for the ineffectiveness.

A contractual obligation may be made conditional upon the occur-

re nee of an uncertain future event, so that the obligation takes effect only if the event occurs (suspensive condition) or comes to an end if the event occurs (resolutive condition).
ARTICLE 16:102: INTERFERENCE WITH CONDITIONS

(1) If fulfilment of a condition is prevented by a party, contrary to duties of good faith and fair dealing or co-operation, and if fulfilment would have operated to that party's disadvantage, the condition is deemed to be fulfilled.

(2) If fulfilment of a condition is brought about by a party, contrary to duties of good faith and fair dealing'or co-operation, and if fulfilment operates to that party's advantage, the condition is deemed not to be ful­filled.
ARTICLE 16:103: EFFECT OF CONDITIONS

(1) Upon fulfilment of a suspensive condition, the relevant obligation takes effect unless the parties otherwise agree.

(2) Upon fulfilment of a resolutive condition, the relevant obligation comes to an end unless the parties otherwise agree.
CHAPTER 17. Capitalisation of Interest
ARTICLE 17:101: WHEN INTEREST TO BEADDED TO CAPI­TAL

(1) Interest payable according to Article 9:508(1) is added to the out­standing capital every 12 months.

(2) Paragraph (1) of this Article does not apply if the parties have pro­vided for interest upon delay in payment.

СОДЕРЖАНИЕ

I. Методические рекомендации......................................................3

II. Тематический план лекций по курсу «Гражданское и торговое право промышленно развитых зарубежных стран».......................5

III. Программа курса «Гражданское и торговое право промышленно развитых зарубежных стран»..................................6

IV. Рекомендуемая литература......................................................17

V. Нормативные акты и документы...............................................19

VI. Задания для самостоятельной работы студентов...................20

Тема 1. Общая характеристика гражданского и

торгового права развитых зарубежных стран..............................20

Тема 2. Источники гражданского и торгового права..................22

Тема 3.Унификация и гармонизация частного

(гражданского и торгового) права в современном мире.............26

Тема 4. Субъекты гражданского и торгового права....................27

Часть I. Физические лица как субъекты права.............................27

Часть II. Юридические лица...........................................................30

Тема 5. Коммерсанты и торговые сделки......................................34

Тема 6. Торговые товарищества и общества................................37

Тема 7. Представительство.............................................................39

Тема 8. Право собственности и иные вещные права....................41

Часть I. Общая характеристика вещных прав..............................41

Часть II. Право собственности.......................................................41

Часть III. Владение..........................................................................41

Тема 9. Общие положения об обязательствах..............................45

Тема 10. Обязательства из договоров............................................46

Тема 11. Заключение договора.......................................................50

Тема12. Исполнение, обеспечение и прекращение обязательств.....................................................................................52

Тема 13. Договор купли-продажи..................................................55

Тема 14. Договоры по оказанию услуг..........................................60

Тема 15. Договор страхования.......................................................63

Тема 16. Обязательства из причинения вреда и

неосновательного обогащения.......................................................64

Тема 17. Вексель и чек....................................................................67

Тема 18. Несостоятельность...........................................................72

Тема 19. Законодательство о монополиях и конкуренции..........72

Тема 20. Общая характеристика наследственного права

зарубежных стран............................................................................75

Тема 21. Общая характеристика и источники семейного

права зарубежных стран..................................................................76

VII. Контрольные вопросы к зачету по курсу «Гражданское и торговое право промышленно развитых зарубежных стран»................................................................................................78

VIII. Приложение

Французский гражданский кодекс.................................................83

Германское гражданское уложение...............................................90

Французский торговый кодекс (на франц. яз.).............................99

Германское торговое уложение....................................................107

Единообразный торговый кодекс США......................................111

Принципы европейского договорного права (на анг. яз.)……..138

Редактор И. Дмитриева

Корректор Л. Гордеева

Подписано в печать 30.06.06. Формат 60x84/16 Объем 10,5печ.л.