Pledge. Types of collateral and their characteristics. Types of pledge. General characteristics List of references

The main features of the pledge and the grounds for its occurrence. Types of collateral and scope of its application. Essential terms of the pledge agreement. Foreclosure on real estate. Rights and obligations of the parties under the contract. Sale of mortgaged property.
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Introduction

1. The concept of pledge

1.1 General concept of pledge

2. general characteristics pledge

2.1 Subject of pledge

2.2 Terms of the pledge agreement

2.3 Rights and obligations of the parties under the pledge agreement

2.4 Foreclosure on pledged property

2.5 Sale of pledged property

Conclusion

Bibliography

Introduction

Entering into this or that legal relationship, the subject must be sure that the other party will fulfill its obligations properly. Therefore, there must be measures according to which each of the parties would fulfill its obligations properly.

Now, in the conditions of low contractual discipline, unreliability and simply dishonesty of counterparties, various methods of ensuring the fulfillment of obligations should be increasingly developed.

In accordance with paragraph 1 of Art. 329 of the Civil Code Russian Federation fulfillment of obligations may be secured by a forfeit, pledge, retention of the debtor's property, surety, bank guarantee, deposit and other methods provided for by law or the contract.

Methods that ensure the fulfillment of obligations are of a property nature and are established in the interests of the creditor. One of these means is a pledge, which compels the debtor to fulfill the obligation, and if it is not fulfilled, it ensures the protection of the interests of the creditor by allowing satisfaction at the expense of the property belonging to the debtor.

Pledge has been known since the time of Roman law, in which the interests of the creditor were considered a priority. Roman law provided for three main types of collateral: fiduciary transactions, manual mortgage, and mortgage. More details: Roman private law / Ed. I. Novitsky and I. Peretersky. Among the Russian civil scientists of the pre-revolutionary period, there was no unified view on the nature of the pledge, which was largely due to the imperfection of the legislation on pledge that was in force at that time. At that time, not only was there no unified point of view on the legal nature of a pledge, but it also seemed rather difficult to establish the very definition of a pledge.

The mortgage of the pre-revolutionary period was differentiated into a pledge of movable and real estate. Its forms largely depended on the object (real estate - mortgaged fortress; movable - the act of transferring movable property) and on who acted as the subject of the pledge (church, treasury, etc.). In addition, the remortgage of property was allowed.

With the abolition of the NEP by the Soviet government, including private capital, in the late 1920s and early 1930s, mortgage legal relations lost their significance. Suffice it to say that collateral legal norms were represented by only 11 articles of the Civil Code of the RSFSR of 1964, provisions that were traditionally contained in the Instructions of the State Bank of the USSR, regulating the procedure for lending to enterprises and economic organizations, as well as the provisions of the Model Charter of a pawnshop, approved by the Resolution of the Council of Ministers of the RSFSR of June 7, 1968. It should be noted that these acts had many gaps and contained rather outdated norms. Zavidov B.D. Analysis of pledge in the civil law of Russia.

Life itself in Russia, with its spontaneous laws of the market, forced the legislator to issue a whole package of legal documents regulating pledge. At the beginning of 1992, the Law "On Pledge" was adopted, Vedomosti of the Congress of People's Deputies of the RSFSR and the Supreme Council of the RSFSR, 1992. No. 23. p. 1239, then paragraph 3 appeared in Chapter 23 of the first part of the Civil Code of the Russian Federation under the title "Pledge", and, Finally, on July 22, 1998, the Federal Law “On Mortgage (Pledge of Real Estate)” dated July 16, 1998 No. 102-FZ came into force. Russian newspaper of July 22, 1998.

Pledge is one of the most important instruments in the legal regulation of market relations. It is also important because otherwise it is closely connected with issues of ownership, means of possible, and perhaps even initial, protection of an entrepreneur from an unscrupulous counterparty. In collateral legal relations, the creditor acts according to the principle “I believe not in a person, but in things”.

The object of research is the concept of collateral, in turn, the subject is the general characteristics of collateral.

The purpose of this work is to study the pledge as an institution of civil law.

1. Describe the main features of collateral;

2. To reveal the concept and grounds for the emergence of a pledge;

3. Determine the types of collateral and the scope of its application;

4. Consider the rights and obligations of the parties under the pledge agreement.

Work structure. The work consists of an introduction, two chapters, a conclusion, a list of references.

1. The concept of pledge

1.1 General concept of pledge

Pledge is a legal relationship by virtue of which the creditor under the obligation secured by the pledge (pledgee) has the right, in case the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), with exceptions established by law. Gros L. Pledge: issues of civil law and civil process // Economy and law. - 2008. - No. 2. - With. 69

Establishment of a special right to the pledgor's property, combined with the right to a pre-emptive right over other creditors of the pledgor to levy execution on the subject of pledge, makes the pledge one of the most reliable ways to ensure the fulfillment of obligations. It should also be taken into account that privatized housing in market conditions is often the only sufficiently valuable property, by pledging which a citizen can receive initial capital for entrepreneurial activity. In addition, obtaining a loan for the purchase of housing with the subsequent mortgage of this housing is one of the real ways to solve the housing problem.

According to paragraph 1 of article 334 of the Civil Code, the pledgee has the right to receive satisfaction on the same basis from the insurance compensation for the loss or damage to the pledged property, regardless of in whose favor it is insured, unless the loss or damage occurred due to reasons for which the pledgee is responsible .

We can say that the pledge ensures the performance of obligations through two functions:

1. The pledge stimulates the debtor to fulfill his obligations, since undesirable consequences may occur for him: the collection will be levied on the subject of the pledge (stimulating function).

2. If the debtor fails to fulfill his obligations, the possibility of foreclosure on the pledged property is realized in order to compensate for all losses of the creditor (compensation function).

The mortgagee receives satisfaction at the expense of the pledged property primarily over other creditors. This means that if the pledgor is a debtor under two or more obligations and has not fulfilled them, then the interests of the creditor-mortgagee are satisfied at the expense of the pledged property.

1.2 Grounds for the occurrence of a pledge

The legal basis for collateral relations can be a contract and a law. Most often, a pledge arises by virtue of a contract. According to paragraph 1 of Art. 339 of the Civil Code, in order to recognize such an agreement as concluded, it must contain all the essential conditions: the subject of pledge; its cost; the essence, amount and term of performance of the main obligation secured by the pledge; as well as an indication of which of the parties to the agreement will have the pledged property. In the absence of any of these conditions in the agreement or if their definition is insufficiently clear, the pledge agreement shall be considered not concluded.

A pledge may also arise on the basis of the law upon the occurrence of the circumstances specified in it.

1.3 Types of pledge and scope of its application

Pledge can be subdivided into separate types based on various criteria.

Article 338 of the Civil Code distinguishes two main types of pledge: with the abandonment of the pledged property with the pledgor and with its transfer to the pledgee (mortgage). As a general rule, the pledged property remains with the pledgor, in connection with which he retains the rights of possession and use of it. However, in accordance with the terms of the agreement, the subject of pledge may be transferred to the pledgee or a third party; left with the pledgor under lock and key of the pledgee, with the imposition of signs indicating the pledge (firm pledge), which makes it impossible to use the pledged property.

The scope of application of the pledge is expressly indicated in Art. 4 of the Law "On Pledge" Law of the Russian Federation of May 29, 1992 No. 2872-1 "On Pledge" .. This article lists four points or types of areas for the application of pledge:

1. A valid claim may be secured by a pledge, in particular, arising from a loan agreement, including a bank loan, purchase and sale agreements, property lease, cargo transportation and other agreements.

2. The subject of pledge may be things, securities, other property and property rights. Claims of a personal nature, as well as other claims, the pledge of which is prohibited, cannot be the subject of a pledge.

3. A pledge may be established in relation to claims that arose ...

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There are two main types of collateral:

• 1) a pledge with the transfer of the property of the pledgee (mortgage);
• 2) pledge with leaving the property with the pledgor.

When a pledge is made, the pledged property comes into the possession of the pledgee, who may use the subject of the pledge, if it is provided for by the agreement. When the use is accompanied by the extraction of income, then everything that is acquired in this way should be used to cover the costs of maintaining the pledged property or be counted towards the repayment of the debt secured by the mortgage (interest on the debt). The subject of pledge can be any property, with the exception of items withdrawn from circulation (Article 336 of the Civil Code). Thus, it is not allowed to pledge a “golden share” issued or issued by decision of the Government of the Russian Federation or the Ministry of State Property of the Russian Federation during the corporatization of enterprises; enterprises should not allow corrections of objects and property of civil defense as collateral; Objects that are in the operational management of ministries are not subject to pledge; cultural values ​​stored in state and municipal museums, art galleries, libraries, archives and other cultural organizations cannot be pledged.

Types of pledge.

There are the following types of collateral:

• - pledge of movable property,
• - pledge of real estate,
• - pledge of property rights.

The pledge of movable property includes the pledge of inventory items, valuable papers, pledge of goods in circulation, in processing, pledge of vehicles.

The property, in order to refer it to the object of pledge, must meet the criteria: acceptability of quality, possibility of control, sufficiency.

Forms of pledge of inventory items:

• 1. Sliding - when all stocks of goods and materials from raw materials to finished products. Most beneficial to the borrower.
• 2. security receipt. The loan is issued to finance sales of consumer durables. The ownership of these goods is transferred to the bank, the borrower receives a power of attorney for the right to use the goods until the moment of its sale and repayment of the loan. After the loan is repaid, the bank's ownership is annulled. It is used when lending to dealers selling cars and equipment. The Bank periodically checks the availability of goods for which payment has not yet been received.
• 3. A mortgage on movable property gives the creditor the right to dispose of the mortgaged property. The mortgage contains an article that gives the Pledgee the right to sell the pledged property in case of non-payment, and use the proceeds to repay the loan.
• 4. Warrant. Lending against warehouse receipts, which are divided into transferable and non-transferable.

Transferable (order) allow you to transfer the goods to another person with the help of an endorsement. When non-transferable goods are issued only to the original owner. As a rule, it is issued to a bank that controls the safety of valuables and the procedure for issuing a receipt. The bank allows the withdrawal of goods from the warehouse only if it is sold and the proceeds are used to repay the loan.

5. Bill of lading - a document issued by the carrier confirming the acceptance of goods for transportation to the destination. A special type of contract between the sender and the carrier and can serve as collateral for a loan against shipped goods.

Real estate includes land plots, subsoil plots, separate water bodies and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including forests, perennial plantations, buildings, buildings, structures, residential and non-residential premises, as well as civil, air, sea and river vessels, rolling stock of railways, space objects.

Depending on who retains the subject of pledge, two types of pledge are distinguished: a pledge with the leaving of property with the Pledgor and a pledge. A pledge with the abandonment of property by the Pledgor may be in the following forms:

• - pledge of goods in circulation,
• - pledge of goods in processing,
• - pledge of real estate.

When pledging rights, documents are pledged that testify to the transfer to the bank as collateral for a loan of the right to own and use property, rights to intellectual property, etc.

Not all property can be pledged. So, for example, a number of documents of the State Property Committee of Russia established that state property cannot be pledged. According to the degree of liquidity, they distinguish (in descending order):

• 1. Pledge of precious metals, precious stones, jewelry.
• 2. Pledge of currency.
• 3. Pledge of securities.
• 4. Pledge of bills.
• 5. Pledge of inventory items.
• 6. Pledge of goods in circulation.
• 7. Pledge of goods in processing.
• 8. Pledge of real estate.

Liquidity is determined by the term of the possible sale of the collateral object.

The deposit happens:

• - full,
• - partial,
• - mixed.

With partial and mixed, the risk of the bank is much higher, since the obligations are partially or not secured, or secured by the less liquid assets of the borrower.

According to the method of possession of the subject of pledge:

• - without the right to sell,
• - with the right to sell,
• - with the right to rent.

Different types of collateral, distinguished by the type of property used for collateral, have their own specifics. The biggest differences characterize the mortgage.

Mortgage is a pledge of real estate. Mortgage is recognized as a pledge of an enterprise, structure, building, structure or other object directly related to land, together with the relevant land plot or the right to use it.

Introduction ................................................ ................................................. ...... 3

Chapter I. The concept and types of ways to ensure the execution of civil law contracts .................................................................. ................................................. ................ 6

1.1. Ways to ensure the execution of a civil law contract: general characteristics .............................................................. ................................................. .... 6

1.2. The concept of pledge. Pledge agreement ............................................... .......... 7

Chapter II. Peculiarities of certain types of collateral ............................................................... 12

2.1. Peculiarities of pledge of goods in circulation .............................................................. .... 12

2.2. Peculiarities of pledge of things in a pawnshop (type of pledge) ........ 13

2.3. Features of the pledge of rights .............................................................. ........................ fourteen

2.4. Peculiarities of pledge of real estate (mortgage agreement) .................................... 15

2.5. Features of the sale of property pledged under a mortgage agreement 22

Conclusion................................................. ................................................. .25

List of normative legal acts and literature used .............................. 27

Introduction

To date, addiction has become a pattern economic processes from civil law. The basis or foundation of entrepreneurship are contractual relationship on the exact implementation of which depends on the commercial well-being of the organization or entrepreneur. Violation of the terms of the contract, in whole or in part, can lead to undesirable consequences in the form of losses, loss of confidence on the part of partners, and even the initiation of bankruptcy proceedings.

The reasons for non-performance of the contract may be: force majeure, which led to the impossibility of carrying out certain actions; non-fulfillment of obligations by a third party; the lack of interest of the obligated party to fulfill the obligations imposed by the contract, as well as the profitability of the untimely fulfillment of them.

For example, if the service provided in accordance with the terms of the contract is not paid or is paid late, then the creditor (the person who received the service and is in this case an obligated person) has the opportunity to use the unpaid, therefore, essentially additional working capital to benefit. In this case, the creditor bears losses, both direct and indirect.

The civil legislation, which contains norms on ways to ensure the fulfillment of obligations, is called upon to correct or exclude such a situation from the very beginning.

“Securing the fulfillment of obligations in general and ways to ensure the fulfillment of obligations in Russian civil law occupy a special place in the analysis of the effectiveness of civil law norms and their impact on economic relations. Enforcement of obligations is one of the traditional and quite detailed

ny areas of civil law of states of both continental and Anglo-American systems of law. A market economy requires new effective incentives for the fulfillment of contractual obligations.”

Ways to ensure the fulfillment of obligations are economic incentives that encourage the parties to obligations to properly fulfill them.

An analysis of judicial and arbitration practice shows that the pledge has a particular effectiveness among all classical methods of security. In Russia, elementary methods of securing the fulfillment of obligations in the form of a mortgage were known as early as the 19th century, which originate from Roman law. The general concept of a lien is one of the most controversial points in modern jurisprudence. Despite the fact that the fundamental source of the pledge right is the Civil Code of the Russian Federation (§ 3, Chapter 23), other norms of other federal laws are also associated with the right of pledge.

For example, as Z. Tsyblenko notes, "the meaning of the Federal Law of July 16, 1998 "On Mortgage (Pledge of Real Estate)" in the conditions market economy due to the fact that such a pledge is one of the most reliable instruments that ensure the fulfillment of obligations by all participants in civil transactions. Firstly, in case of a pledge, specific real estate is allocated in advance, the value of which exceeds the amount of the debt, which guarantees its repayment after the sale of the property if the debtor violates the obligation; secondly, the parties know about it already at the time of the obligation; thirdly, the creditor-mortgagee has the right by law to receive satisfaction of his monetary claims against the debtor primarily over other creditors of the pledgor at the expense of the pledged property, with exceptions provided for by federal laws (Article 334 of the Civil Code of the Russian Federation, clause 1 of Article 1 of the Mortgage Law) ; fourthly, in addition to significant value, such property usually plays an important role in the life of the mortgagor and he will try not to lose it ( land plot, enterprise, residential building, apartment, cottage, etc.)”.

Pledge can be subdivided into separate types based on various criteria. Article 338 of the Civil Code distinguishes two main types of pledge: with the abandonment of the pledged property with the pledgor and with its transfer to the pledgee (mortgage). As a general rule, the pledged property remains with the pledgor, in connection with which he retains the rights of possession and use of it. However, in accordance with the terms of the agreement, the subject of pledge may be transferred to the pledgee or a third party; left with the pledgor under lock and key of the pledgee, with the imposition of signs indicating the pledge (firm pledge), which makes it impossible to use the pledged property. Real estate and goods in circulation by virtue of the direct indication of paragraph 1 of Art. 338 of the Civil Code cannot be transferred to the pledgee.

Depending on the subject, the pledge is divided into special types that have features in legal regulation. These include a pledge of real estate (mortgage), a pledge of goods in circulation, a pledge of things in a pawnshop, a pledge of rights.

Different types of collateral, distinguished by the type of property used for collateral, have their own specifics.

Thus, my goal term paper is a characteristic of various types of collateral.

To achieve this goal, the following tasks should be considered:

1. Describe the concept of "method of ensuring the fulfillment of obligations."

2. Give a legal description of the pledge as a way to ensure the fulfillment of obligations.

3. Determine the specifics of various types of collateral.

ChapterI. The concept and types of ways to ensure the execution of civil law contracts

1.1. Ways to ensure the execution of a civil law contract: general characteristics

Civil law provides for a number of measures aimed at forcing the debtor to properly fulfill the obligation by applying methods to ensure the fulfillment of the obligation. They consist:

In imposing additional burdens on the debtor in case of non-performance or improper performance of an obligation,

Or in attracting third parties to fulfill the obligation along with the debtor, as happens, for example, with a guarantee,

Or in the reservation of property, at the expense of which the fulfillment of the obligation can be achieved (deposit, pledge),

Or in the issuance of an obligation by authorized bodies to pay a certain amount of money (bank guarantee).

Methods stimulating the proper fulfillment by the parties of their obligations are determined by law or established by agreement of the parties.

Methods that ensure the fulfillment of obligations are established in the interests of the creditor.

Clause 1 of Article 329 of the Civil Code of the Russian Federation provides that the fulfillment of obligations is secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit, as well as by other means provided by law or an agreement.

Among the contractual methods not indicated in the law, O. Mironova, R. Khametov name the following:

§ commodity penalty;

§ fiduciary;

§ reservation of property rights;

§ conditional sale.

Thus, under the methods of securing the performance of obligations, we mean special measures that sufficiently guarantee the performance of the main obligation and encourage the debtor to behave appropriately.

1.2. conceptpledge. Pledge agreement

Pledge, that is, a method of securing the fulfillment of obligations, in which the creditor under the secured obligation has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property.

The pledge secures the claim to the extent that it exists at the time of satisfaction. The pledge secures the principal debt, the expenses of the creditor related to the maintenance of property, the payment of interest, the organization of a public sale of property and other losses of the creditor, if they arise from the non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge. Other claims of the creditor, even if against the same debtor, but on obligations not secured by a pledge of this property, are not subject to preferential satisfaction and are repaid on a common basis.

There are two way the occurrence of a pledge legal relationship - by virtue of the contract and on the basis of the law upon the occurrence of the circumstances specified in it, that is, if the law provides for what property and to secure what obligation is recognized as property in pledge (for example, mortgage credit lending provides for the pledge of real estate until the loan with interest issued for the purchase of housing is repaid).

The pledge agreement may be independent, i.e. separate in relation to the contract under which the secured obligation arises, but the pledge clause can also be included in the main contract.

Parties: pledger and pledgee.

Pledgor — person who pledges property. The pledger of a thing may be its owner or a person who has the right of economic management over it. A person who owns a thing by the right of economic management has the right to pledge it without the consent of the owner, unless a ban on this is established by law or other legal act. The immovable property owned by the enterprise on the right of economic management may be pledged only with the consent of the owner. Organizations that have the right to operational management of property cannot be mortgagors.

Personality mortgagee always matches the identity of the lender.

Essential terms of the pledge agreement (Article 339 of the Civil Code of the Russian Federation):

collateral and its valuation,

The current legislation is based on the fact that subject of pledge there can be any property, with the exception of things withdrawn from circulation (Article 336 of the Civil Code).

The legislator also allows a pledge of such things that may arise in the future, for example, a pledge of a future crop, livestock offspring, etc.

The nature, amount and term of fulfillment of the obligation secured by the pledge,

An indication of which party has the pledged property.

But the contract, at the discretion of the parties, may provide for other conditions, which, after their inclusion in the contract, also acquire the value of essential, necessary conditions.

Form of a pledge agreement written form . In some cases, the pledge agreement must be registered in in due course. A pledge of land, an enterprise as a whole, vehicles or other property subject to state registration must be registered with the body that carries out such registration (clause 1, article 131 of the Civil Code).

Foreclosure on pledged property. Foreclosure on the pledged property may be levied in the event of non-fulfillment or improper fulfillment by the debtor of an obligation secured by law due to circumstances for which he, the debtor, is responsible. Foreclosure may be refused if the violation committed by the debtor is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property. In the absence of at least one of the above conditions, the court has the right to refuse the pledgee to foreclose on the pledged property.

Claims of a pledgee secured by a pledge of immovable property shall be satisfied from the value of such property. By the tribunal's decision. Foreclosure on real estate that has become the subject of pledge is excluded by the notary's executive inscription. The pledgee may foreclose on the pledged immovable property without filing a claim in court, when there is a notarized agreement between the pledgee and the pledgor, and concluded after the grounds for foreclosure on the subject of pledge arise.

The claim of the pledgee at the expense of the pledged movable property shall be satisfied by a court decision, unless otherwise provided by the agreement between the pledger and the pledgee. At the same time, this agreement can be concluded not only after the grounds for foreclosing the pledged property arise, as is the case with real estate, but also at earlier stages of the development of relations between the pledgor and the pledgee.

A special rule has been established for foreclosing movable property transferred into the possession of the pledgee (mortgage). Execution on such property may be levied by the pledgee in the manner prescribed by the agreement of the parties, unless otherwise established by law.

Execution may be levied on the pledged property only by a court decision in three cases when:

1) the consent or permission of another person or body was required to conclude a pledge agreement;

2) the subject of pledge is property that has a significant historical, artistic or other cultural value for society;

3) the pledgor is absent, and it is impossible to establish his location (clause 3, article 349 of the Civil Code of the Russian Federation).

The sale of the pledged property can be carried out both by bailiffs and specialized commercial organizations with the appropriate licenses. Realization (sale) of pledged property, which is foreclosed, is carried out by sale at public auction (clause 1, article 350 of the Civil Code of the Russian Federation). The Civil Code of the Russian Federation excludes the possibility of a commission sale of the pledged property. The sale of pledged property at public auction allows you to get the highest price for it and thereby protect the interests of the mortgagor. The interests of the pledgor are also served by the rule that the court (in case of foreclosure by a court decision) has the right to defer the sale of the pledged property for up to one year, for example, in cases where the subject of pledge is an apartment or residential building in which the pledgor lives (p. 2 article 350 of the Civil Code of the Russian Federation).

It should be noted that judicial and arbitration practice proceeds from the fact that modern pledge law is a complex institution of civil law, which combines not only different types of pledge, the distinction between which can be made according to the subject (object), but also the fact that one the type of pledge includes both the features of property law and the law of obligations.

Chapter 2. Features of certain types of pledge

2.1. Features of the pledge of goods in circulation

A pledge of goods in circulation is recognized as a pledge of goods with leaving them with the pledgor and granting him the right to change the composition and physical form of the pledged property, provided that their total value does not become less than that specified in the pledge agreement (clause 1, article 357 of the Civil Code).

Reducing the value of pledged goods in circulation is allowed in proportion to the fulfilled part of the main obligation (return of part of the debt).

Features of the pledge of goods in circulation (Article 357 of the Civil Code) are as follows:

The subject of pledge are goods having generic features;

Goods are considered to be pledged as long as they are in the ownership or economic management of the pledgor (the goods acquired by the pledgor specified in the pledge agreement become the subject of pledge from the moment the pledgor acquires the right of ownership or economic management to them);

Collateral encumbrances do not follow the property in the event of its alienation;

The pledgor of goods in circulation is obliged to keep a ledger of pledges, in which entries are made on the terms of the pledge of goods and on all operations involving a change in the composition or natural form of the pledged goods, including their processing, on the day of the last operation;

The pledge agreement may provide for the pledgor's right to replace the subject of pledge without reducing the total value of the pledged property;

For the pledge of goods in circulation, it is essential to indicate the location of the pledged goods, so that the creditor, if necessary, can check the availability, quantity and condition of the goods.

2.2. Features of the pledge of things in a pawnshop (a kind of mortgage)

This type of collateral can only be used by organizations that have a special license for this.

The subject of pledge can only be movable property intended for personal use.

The subject of the pledge is transferred to the pawnshop, which is obliged to insure it in favor of the pledger in the full amount of the assessment. An agreement on the pledge of things in a pawnshop is drawn up by issuing a pledge ticket confirming the transfer of things as a pledge against the loan received.

The pawnshop is responsible for keeping the property accepted as collateral. The value of things is determined by the prices of things of the same kind and quality, which are usually established in trade at the time they are accepted as collateral. The pawnshop is not entitled to use and dispose of the pledged things.

The responsibility of the pawnshop for the storage of things is based on the principles of risk, since the pawnshop is a professional custodian (responsibility arises if the pawnshop does not prove that the loss or damage to the thing was due to force majeure).

The pawnshop has the right to foreclose on the pledged property on the basis of the notary's executive inscription after the expiration of the grace period provided for repaying the loan. (The proceeds from the sale go toward repaying the debt, after which the pawnshop's claims are paid off, even if the proceeds from the sale of the thing are insufficient to fully repay the loan.)

2.3. Features of the pledge of rights

The subject of pledge may be property rights (claims) belonging to the pledgor, with the exception of claims inextricably linked with the personality of the creditor, in particular, claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law.

Pledge of rights means that from the funds received by the pledgor in connection with the execution of the pledged right, first of all, the requirements of the pledgee must be satisfied.

Peculiarities:

It is possible to pledge this or that right only if the owner of the corresponding right can dispose of it;

Pledge of the right to someone else's thing is not allowed without the consent of its owner or the person having the right of economic management to it, if the law or the contract prohibits the alienation of this right without the consent of these persons;

In the agreement on the pledge of rights, along with the usual conditions, it is necessary to indicate the person who is the debtor in relation to the pledgor;

The pledgor is obliged to notify his debtor of the completed pledge of rights;

The pledgor is obliged not to take actions that entail the full or partial termination of the pledged right or its assignment;

The pledgor is obliged to take measures necessary to protect the pledged right from encroachment by third parties;

The pledgor is obliged to inform the pledgee of information about the changes that have taken place in the pledged right, about its violation by third parties and about the claims of third parties to this right;

If the pledgor fails to comply with the listed requirements, the pledgee may demand that the pledged right be transferred to himself;

Upon receipt of monetary amounts from its debtor, the pledgor is obliged, at the request of the pledgee, to transfer the corresponding amounts towards the fulfillment of the obligation secured by the pledge;

If the pledger's debtor fulfills his obligation before the pledger fulfills the obligation secured by the pledge, everything received by the pledger becomes the subject of pledge, of which the pledger is obliged to immediately notify the pledgee (clause 1, article 58 of the Law of the Russian Federation "On Pledge").

2.4. Features of real estate pledge (mortgage agreement)

Features of real estate pledge follow from the Federal Law of July 16, 1998 No. 102-FZ "On Mortgage (Pledge of Real Estate)". Their essence is as follows:

A pledge of real estate may arise by virtue of a contract or by virtue of law;

Mortgage as an encumbrance of property, regardless of how it arises, is subject to state registration;

Under a mortgage agreement, only that immovable property that belongs to the pledgor on the right of ownership or on the right of economic management can be pledged. At the same time, the right to this property must be registered in the prescribed manner;

The mortgage agreement is considered concluded from the moment of its state registration at the location of the real estate;

The subject of mortgage is determined in the contract by indicating its name and location, as well as by a description sufficient to identify this subject;

Unless otherwise provided in the contract, the thing that is the subject of mortgage is considered to be pledged together with accessories as a whole;

A part of immovable property, the division of which in kind is impossible without changing its purpose (an indivisible thing), except for apartments in a multi-apartment residential building, cannot be an independent subject of mortgage;

Mortgage of subsoil plots is not allowed; specially protected natural areas; other property withdrawn from circulation; property, which, in accordance with the law, cannot be levied; apartment buildings; apartments in state or municipal ownership, as well as property in respect of which privatization is prohibited by law;

On property that is in common joint ownership (without determining the share of each of the owners), a mortgage can be established with the written consent of all owners;

The rules on the mortgage of immovable property shall accordingly apply to the pledge of the tenant's rights under a lease agreement for such property, unless otherwise provided by law and does not contradict the essence of the lease relationship;

The contract must specify the right by virtue of which the property that is the subject of mortgage belongs to the pledgor, as well as the body for state registration of rights to real estate;

The appraised value of the subject of mortgage is determined by agreement between the mortgagor and the mortgagee, while the appraised value of a land plot cannot be set below its standard value. The parties may entrust the appraisal of the subject of mortgage to a commercial organization of appraisers;

An obligation secured by a mortgage must be named in the mortgage agreement with an indication of its amount, the grounds for the occurrence and the deadline for fulfillment; in cases where this obligation is based on any contract, the parties to this contract, the date and place of its conclusion must be indicated; if the amount of the obligation secured by the mortgage is to be determined in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination;

If the obligation secured by a mortgage is subject to performance in installments, the mortgage agreement must indicate the frequency of the relevant payments and their amount;

If the mortgagee's rights are certified by a mortgage, this is indicated in the mortgage agreement;

When concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all the rights of third parties to the subject of mortgage known to him at the time of state registration of the agreement (rights of pledge, life use, lease, servitudes and other rights);

The pledgor has the right to use the property pledged under the mortgage agreement in accordance with its purpose, as well as to extract fruits and income from this property;

Mortgage of a building or structure is allowed only with simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right belonging to the pledgor to this plot or its corresponding part. If, under a mortgage agreement, only a building or structure is pledged, and the land plot or the right to lease it is not the subject of pledge, then such an agreement should be considered a void transaction (Article 168 of the Civil Code);

When using the pledged property, the mortgagor is obliged to maintain the property in good condition and bear the costs of maintaining and repairing this property until the mortgage is terminated;

Unless otherwise provided by the mortgage agreement, the mortgagor is obliged to carry out current and major repairs of the property pledged under the mortgage agreement;

Insurance of the pledged property is carried out in accordance with the terms of the contract. In the absence of conditions in the contract on insurance of the pledged property, the pledgor is obliged to insure at his own expense this property in its full value against the risks of loss and damage, and if the total value of the property exceeds the amount of the obligation secured by the mortgage - for an amount not less than the amount of this obligation;

The pledgee has the right to satisfy his claim under the obligation secured by a mortgage directly from the insurance indemnity for the loss or damage to the pledged property, regardless of in whose favor it is insured. This claim shall be subject to satisfaction primarily before the claims of other creditors of the pledgor and persons in whose favor the insurance has been carried out, with exceptions established by law;

Unless otherwise provided by law or the mortgage agreement, the pledgor has the right, without the consent of the pledgee, to lease the pledged property, transfer it for temporary free use and, by agreement with another person, provide the latter with an easement; it is impossible to alienate the subject of mortgage in any other way without the permission of the mortgagee, unless it is provided for by the mortgage agreement;

If the property that is the subject of a mortgage is withdrawn from the pledgor by the state in the form of a sanction for committing a crime or other offense, the mortgage remains in force, however, in this case, the mortgagee has the right to demand early performance of the obligation secured by the mortgage and foreclosure on the confiscated property;

Property pledged under a mortgage agreement to secure the performance of one obligation may be pledged to secure the performance of another obligation of the same or another debtor, to the same or another mortgagee (subsequent mortgage) (in this case, a mortgage is not allowed);

Claims of the pledgee under the subsequent mortgage agreement are satisfied from the value of the pledged property subject to the requirements that the pledgee under the previous mortgage agreement has the right of priority to satisfy his claims. If he did not use this right, then the property, which is foreclosed on the claims arising from the subsequent mortgage, is transferred to its acquirer encumbered by the previous mortgage;

When levying execution on individual residential houses, apartments in an apartment building, the owners living in them, as well as other persons, are not subject to eviction. These persons may be evicted to judicial order if the mortgage agreement was concluded to secure a loan for the construction of an individual residential building or the purchase of an apartment in an apartment building, at the expense of which the mortgagor purchased housing.

The rights of a pledgee under a mortgage-secured obligation and under a mortgage agreement may be certified by a mortgage.

A mortgage bond is a registered security certifying the following rights of its legal owner:

the right to receive performance under a monetary obligation secured by a mortgage of the property specified in the mortgage agreement, without presenting other evidence of the existence of this obligation;

the right to pledge the property specified in the mortgage agreement.

Drawing up and issuing a mortgage bond is not allowed if:

1) the subject of mortgage is:

enterprise as a property complex;

land plots from the composition of agricultural land;

the right to lease the property listed above;

2) a mortgage secures a monetary obligation, the amount of debt for which is not determined at the time of conclusion of the contract and which does not contain conditions that allow determining this amount at the appropriate time.

The mortgage bond is drawn up by the mortgagor, and if he is a third party, also by the debtor under the obligation secured by the mortgage.

The mortgage bond is issued to the initial mortgagee by the body carrying out the state registration of the mortgage after the state registration of the mortgage.

When concluding agreements on changing the subject of mortgage or changing the amount of security under a mortgage agreement, as well as when transferring a debt on an obligation secured by a mortgage, these agreements provide for:

or making changes to the content of the mortgage bond by attaching to it a notarized copy of this agreement and indicating in the text of the mortgage bond itself the agreement as a document that is an integral part of the mortgage bond;

or the annulment of the mortgage bond and the simultaneous issuance of a new mortgage bond drawn up taking into account the relevant changes.

In the latter case, simultaneously with the application for making changes to the data of the unified state register of rights to real estate, the pledgor transfers to the body that carries out the state registration of the mortgage a new mortgage, which is handed over to the mortgagee in exchange for the mortgage that is in his legal possession.

The canceled mortgage bond shall be kept in the archives of the body that carries out the state registration of the mortgage until the mortgage registration record is cancelled.

Exercise of mortgage rights

Any lawful owner of the mortgage bond (mortgage mortgagee) has the right to demand from the body that carried out the state registration of the mortgage to register him in the unified state register of rights to real estate as a mortgagee indicating his name and place of residence, and if the owner of the mortgage bond is a legal entity - his name and location.

When exercising his rights, the owner of the mortgage bond shall be obliged to present it to the obligated person in respect of whom the respective right is being exercised, at his request.

Upon fulfillment of an obligation fully secured by a mortgage, the pledgee is obliged to transfer the mortgage to the pledgor, and in cases where the obligation is fulfilled in parts, to provide the debtor with the opportunity to make a mark on the mortgage on the fulfillment of the corresponding part of the obligation.

A person liable under a mortgage bond has the right to refuse the bearer of the mortgage bond to exercise his rights under the mortgage bond in cases where:

the court accepted for consideration a claim to invalidate the assignment of rights under this mortgage bond or to apply the consequences of the invalidity of this transaction;

the presented mortgage bond is invalid in connection with its loss by the legal owner and the issuance of a duplicate of the mortgage bond or in connection with a violation of the procedure for issuing the mortgage bond or its duplicate, for which the persons liable under them are not responsible.

The transfer of rights under a mortgage bond is carried out by making an endorsement on it in favor of another person and transferring the mortgage bond to this person.

The owner of a mortgage bond is considered legal if his rights to the mortgage bond are based on the last endorsement and on a continuous series of previous endorsements on it. He is not considered the legal owner of the mortgage bond if it is proved that the mortgage bond has left the possession of any of the persons who made the endorsements, as a result of theft or otherwise against the will of this person, of which the owner of the mortgage bond knew or should have known when acquiring it.

A mortgage bond may be pledged by transferring it to another person (mortgage mortgagee) to secure an obligation under a loan agreement or another obligation that has arisen between this person and the mortgagee or its other legal owner (mortgage mortgagee).

In the event of default on an obligation secured by a pledge of a mortgage bond, the mortgagee pledgee is obliged, at the request of the pledgee of the mortgage bond, to transfer to him his rights under the mortgage. In case of refusal to transfer these rights, the pledgee of the mortgage bond may demand in court the transfer of these rights to himself.

The mortgagee of the mortgage bond, to whom the rights under the mortgage bond have been transferred or transferred by the court, shall have the right to foreclose on the subject of mortgage in accordance with the terms of the mortgage bond. The amounts received as a result of the sale of the subject of mortgage are used to repay the debt of the mortgage pledgee, and the remaining amount is transferred to the mortgage pledgee to repay the debt due to him under a loan agreement or other obligation secured by a mortgage on a mortgage, to other creditors of the pledgor and to the pledgor himself.

A mortgage pledgee may make a special mortgage transfer inscription on a mortgage, giving the mortgagee the right to sell the mortgage after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge.

2.5. Features of the sale of property pledged under a mortgage agreement

The procedure for the sale of pledged property is determined by Art. 56-59 of the Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate). In accordance with the above articles, the pledgee has the right to foreclose on property pledged under a mortgage agreement in order to satisfy, at the expense of this property, claims caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage, in particular, non-payment or late payment of the amount of the debt in full or in part, unless otherwise provided by the agreement.

Foreclosure on property pledged to secure an obligation fulfilled by periodic payments is allowed in case of systematic violation of the terms for their payment, i.e. in case of violation of the terms of making payments more than three times within 12 months, even if each delay is insignificant.

Foreclosure on mortgaged property is possible in court and out of court. In both cases, the property is sold by auction. The sale of pledged property at an auction is allowed if the auction is open. The sale of pledged property at a closed auction is allowed only in cases provided for by federal law. The auction is held at the location of the property.

The organizer of the public auction shall notify about the upcoming auction not later than one month and not earlier than two months before its holding in the official periodical publication of the executive authority of the relevant subject of the Russian Federation, indicating the date, time and place of the public auction, the nature of the property being sold and its initial selling price.

Persons wishing to take part in the auction make a deposit. The amount of the deposit may not exceed 5% of the initial sale price of the pledged property. The person who won the auction must, within five days after the end of the auction, deposit the amount for which he bought the pledged property, minus the previously paid deposit, to the account indicated by the organizer of the public auction. Within the next five days, after the purchase price has been paid, the organizer of the auction concludes a contract of sale with the person who won the auction. This agreement and the protocol on the results of public auctions are the basis for making the necessary entries in the unified state register of rights to real estate.

If the public auction did not take place, then within 10 days after the relevant announcement, the pledgee has the right, by agreement with the pledgor, to purchase the pledged property at its initial sale price and set off against the purchase price its claims secured by the mortgage of this property. If the agreement on the acquisition of property by the pledgee has not taken place, then no later than one month after the initial auction, repeated auctions are held. At the same time, the initial sale price of the pledged property is reduced by 15%. In the event that the repeated auction is declared invalid, the pledgee has the right to purchase the pledged property at a price not more than 25% lower than its initial selling price.

If the pledgee has retained the pledged property, which by its nature and purpose cannot belong to him, including property of significant historical, artistic or other cultural value for society, a land plot, he is obliged to alienate this property within a year in accordance with from Art. 238 GK.

If the mortgagee does not exercise the right to retain the subject of mortgage within a month after the announcement of repeated public auctions as failed, the mortgage is terminated.

Conclusion

Ways to ensure the fulfillment of obligations historically arose as a natural need for increased guarantees of the rights and interests of participants in legal obligations.

The main ways of providing are: forfeit; pledge; retention; guarantee; bank guarantee; deposit.

A pledge is understood as a method of securing the fulfillment of an obligation, allowing the pledgee to receive satisfaction at the expense of the pledged property primarily over other creditors of this debtor (clause 1, article 334 of the Civil Code). Pledge is regulated not only by the Civil Code of the Russian Federation, but also by two laws: the Law of the Russian Federation "On Pledge" and the Federal Law "On Mortgage (Pledge of Real Estate)".

The subject of pledge can be things and rights of claim (Article 336 of the Civil Code). The parties to the pledge are: the pledgor and the pledgee (Article 335 of the Civil Code). The form of a pledge agreement must be in writing, and in relation to a mortgage - notarized and registered. The grounds for the occurrence of a pledge are the contract (clause 1 of article 341 of the Civil Code) and the law (for example, clause 5 of article 488 of the Civil Code).

The types of collateral are distinguished on the following grounds:

At the location of the pledged property (Article 338 of the Civil Code): a fixed pledge - without the transfer of property, a type of a firm pledge is a pledge of goods in circulation (Article 357 of the Civil Code), and a pledge - with the transfer of pledged property, a type of pledge is a pledge in a pawnshop (Art. .358 GK);

On the subject of pledge (pledge of property and pledge of rights);

According to the degree of connection of the pledged property with the land - a pledge of movable property and a pledge of immovable property (mortgage).

A special type of pledge is a subsequent pledge (Article 342 of the Civil Code).

The basis for foreclosing the pledged property is non-fulfillment or improper fulfillment by the debtor of the main obligation (clause 1 of article 348 of the Civil Code).

The procedure for foreclosure - the claim of the pledgee (lender) is satisfied from the cost of selling the pledged real estate either by a court decision or on the basis of a notarized agreement (Article 349 of the Civil Code), and movable - without going to court. This means that the property received as a pledge cannot be converted by the pledgee directly to his own benefit in case the pledger fails to fulfill the main obligation, but must be sold at public auction.

List of used legal acts and literature

Regulations

1. Civil Code of the Russian Federation. Part one of October 21, 1994, amended and additional // Collection of legislation of the Russian Federation. - 1994. - No. 32.

2. Law of the Russian Federation of May 29, 1992 "On pledge" // Rossiyskaya Gazeta. - 1992. - dated June 6 - No. 129.

3. Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)" // Rossiyskaya Gazeta. - 1998. - dated July 22. - No. 137.

Official acts of the judiciary

4. Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 “On some issues related to the application of the first part of the Civil Code of the Russian Federation” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1996. - No. 9. - S. 5 - 20.

Literature

5. Braginsky M.I., Vitryansky V.V. Contract Law: General Provisions. - M.: Publishing house "Statut", 1998. - S.448-449.

6. Civil law: textbook. Volume 1. Fifth edition, revised. and additional / ed. A.P. Sergeeva, Yu.K. Tolstoy. - M.: “PBOYUL L.V. Rozhnikov", 2001. - 632 p.

7. Civil law. Part one: textbook / ed. A.G. Kalpina, A.I. Maslyaeva. - M.: Jurist, 1997.- 472 p.

8. Civil law: textbook / ed. E.A. Sukhanov. M.: Beck, 1999. - Part 1. - 432 p.

9. Illarionova T.I. Civil law: textbook / T.I. Illarionova, B.M. Gongalo, V.A. Pletnev. - M.: Norma, 1998. - Part 1. - 325 p.

10. Commentary on the Civil Code of the Russian Federation. Part one // ed. prof. T.E. Abova and A.Yu. Kabalkin - Yurayt-Izdat; Law and law, 2002. - 478 p.

11. Commentary on the Civil Code of the Russian Federation (item-by-article) // ed. HE. Sadikova - M.: Law Firm Contract; Infra - M, 1998. - 521 p.

12. Tarikanov D.V. The system of ways to ensure the fulfillment of obligations // Legislation. - 2006. - No. 5.

13. Tarkhov V.A. Civil law / V.A. Tarkhov. - Cheboksary, 1997. - 289 p.

14. Kastalsky V. Collateral security // Law and Economics. - 2002. - No. 9. - S. 21 - 25.

15. Mironova O., Khametov R. Enforcement of obligations:
contractual methods // Russian justice. - 2004. - No. 11.

16. Petrushkin V.A. Problems of theory and judicial arbitration practice on the application of methods for fulfilling obligations. Justice in the Volga region. - 2006. - No. 1.

17. Revenko O. Actual problems of enforcement of contractual obligations: Comparative legal analysis // Legal. newspaper. - 2001. - No. 3. - S. 3, No. 4. - S. 3.

18. Sarbash S.V. Some problems of ensuring the fulfillment of obligations // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2007. - No. 7.

19. Tsybulenko Z. Pledge of certain types of real estate // Russian justice. - 2000. - No. 1. - S. 15.

Petrushkin V.A. Problems of theory and judicial and arbitration practice on issues
application of methods of fulfillment of security obligations // Justice in the Volga region. - 2006. - No. 1.

Civil law: textbook / ed. E.A. Sukhanov. M.: Beck, 1999. - Part 1. - S. 423.

Introduction 3
Chapter I. The concept and types of ways to ensure the execution of civil law contracts 6
1.1. Ways to ensure the execution of a civil law contract: general characteristics 6
1.2. The concept of pledge. Pledge agreement 7
Chapter II. Features of certain types of collateral 12
2.1. Peculiarities of pledge of goods in circulation 12
2.2. Features of the pledge of things in a pawnshop (a kind of mortgage) 13
2.3. Features of the pledge of rights 14
2.4. Features of real estate pledge (mortgage agreement) 15
2.5. Features of the sale of property pledged under a mortgage agreement 22
Conclusion 25
List of used legal acts and literature 27

Introduction

Today, the dependence of economic processes on the norms of civil legislation has become a regularity. The basis or foundation of entrepreneurship is contractual relations, on the exact implementation of which the commercial well-being of an organization or entrepreneur depends. Violation of the terms of the contract, in whole or in part, can lead to undesirable consequences in the form of losses, loss of confidence on the part of partners, and even the initiation of bankruptcy proceedings.
The reasons for non-performance of the contract may be: force majeure, which led to the impossibility of carrying out certain actions; non-fulfillment of obligations by a third party; the lack of interest of the obligated party to fulfill the obligations imposed by the contract, as well as the profitability of the untimely fulfillment of them.
For example, if the service provided in accordance with the terms of the contract is not paid or is paid late, then the creditor (the person who received the service and is in this case an obligated person) has the opportunity to use the unpaid, therefore, essentially additional working capital to benefit. In this case, the creditor bears losses, both direct and indirect.
The civil legislation, which contains norms on ways to ensure the fulfillment of obligations, is called upon to correct or exclude such a situation from the very beginning.
“Securing the fulfillment of obligations in general and ways to ensure the fulfillment of obligations in Russian civil law occupy a special place in the analysis of the effectiveness of civil law norms and their impact on economic relations. Enforcement of obligations is one of the traditional and rather detailed areas of civil law of states in both the continental and Anglo-American systems of law. A market economy requires new effective incentives for the fulfillment of contractual obligations.
Ways to ensure the fulfillment of obligations are economic incentives that encourage the parties to obligations to properly fulfill them.
An analysis of judicial and arbitration practice shows that the pledge has a particular effectiveness among all classical methods of security. In Russia, elementary methods of securing the fulfillment of obligations in the form of a mortgage were known as early as the 19th century, which originate from Roman law. The general concept of a lien is one of the most controversial points in modern jurisprudence. Despite the fact that the fundamental source of the pledge right is the Civil Code of the Russian Federation (§ 3, Chapter 23), other norms of other federal laws are also associated with the right of pledge.
For example, as Z. Tsyblenko notes, “the significance of the Federal Law of July 16, 1998 “On Mortgage (Pledge of Real Estate)” in a market economy is due to the fact that such a pledge is one of the most reliable tools that ensure the fulfillment of obligations by all participants in civil circulation . Firstly, in case of a pledge, specific real estate is allocated in advance, the value of which exceeds the amount of the debt, which guarantees its repayment after the sale of the property if the debtor violates the obligation; secondly, the parties know about it already at the time of the obligation; thirdly, the creditor-mortgagee has the right by law to receive satisfaction of his monetary claims against the debtor primarily over other creditors of the pledgor at the expense of the pledged property, with exceptions provided for by federal laws (Article 334 of the Civil Code of the Russian Federation, clause 1 of Article 1 of the Mortgage Law) ; fourthly, in addition to significant value, such property usually plays an important role in the life of the mortgagor and he will try not to lose it (a land plot, an enterprise, a residential building, an apartment, a summer house, etc.) ” .
Pledge can be subdivided into separate types based on various criteria. Article 338 of the Civil Code distinguishes two main types of pledge: with the abandonment of the pledged property with the pledgor and with its transfer to the pledgee (mortgage). As a general rule, the pledged property remains with the pledgor, in connection with which he retains the rights of possession and use of it. However, in accordance with the terms of the agreement, the subject of pledge may be transferred to the pledgee or a third party; left with the pledgor under lock and key of the pledgee, with the imposition of signs indicating the pledge (firm pledge), which makes it impossible to use the pledged property. Real estate and goods in circulation by virtue of the direct indication of paragraph 1 of Art. 338 of the Civil Code cannot be transferred to the pledgee.
Depending on the subject, the pledge is divided into special types that have features in legal regulation. These include a pledge of real estate (mortgage), a pledge of goods in circulation, a pledge of things in a pawnshop, a pledge of rights.
Different types of collateral, distinguished by the type of property used for collateral, have their own specifics.
Thus, the purpose of my course work is to characterize the various types of collateral.
To achieve this goal, the following tasks should be considered:
1. Describe the concept of "method of ensuring the fulfillment of obligations."
2. Give a legal description of a pledge as a way to ensure the fulfillment of obligations.
3. Determine the specifics of various types of collateral.

Chapter I. The concept and types of ways to ensure the execution of civil law contracts

1.1. Ways to ensure the execution of a civil law contract: general characteristics

Civil law provides for a number of measures aimed at forcing the debtor to properly fulfill the obligation by applying methods to ensure the fulfillment of the obligation. They consist:
- imposing additional burdens on the debtor in case of non-fulfillment or improper fulfillment of the obligation,
- either in attracting third parties to fulfill the obligation along with the debtor, as happens, for example, with a guarantee,
- either in the reservation of property, at the expense of which the fulfillment of the obligation can be achieved (deposit, pledge),
- or in the issuance of an obligation by authorized bodies to pay a certain amount of money (bank guarantee).
Methods that stimulate the proper fulfillment by the parties of their obligations are determined by law or established by agreement of the parties.
Methods that ensure the fulfillment of obligations are established in the interests of the creditor.
Clause 1 of Article 329 of the Civil Code of the Russian Federation provides that the fulfillment of obligations is secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit, as well as by other means provided by law or an agreement.
Among the contractual methods not indicated in the law, O. Mironova, R. Khametov name the following:
§ commodity penalty;
§ fiduciary;
§ reservation of property rights;
§ conditional sale.
Thus, under the methods of securing the performance of obligations, we mean special measures that sufficiently guarantee the performance of the main obligation and encourage the debtor to behave appropriately.

1.2. The concept of pledge. Pledge agreement

Pledge, that is, a method of securing the fulfillment of obligations, in which the creditor under the obligation secured by the pledge has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property.
The pledge secures the claim to the extent that it exists at the time of satisfaction. The pledge secures the principal debt, the expenses of the creditor related to the maintenance of property, the payment of interest, the organization of a public sale of property and other losses of the creditor, if they arise from the non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge. Other claims of the creditor, even if against the same debtor, but on obligations not secured by a pledge of this property, are not subject to preferential satisfaction and are repaid on a common basis.
There are two ways for the emergence of a pledge legal relationship - by virtue of an agreement and on the basis of a law upon the occurrence of the circumstances specified in it, that is, if the law provides for what property and to secure what obligation is recognized as property pledged (for example, mortgage lending provides for a pledge of real estate until the loan with interest issued for the purchase of housing is returned).
The pledge agreement may be independent, i.e. separate in relation to the contract, under which there is an obligation secured by a pledge, but a condition on a pledge can also be included in the main contract.
Contents of the pledge agreement.
Parties: pledger and pledgee.
Pledgor - a person who provides property as a pledge. The pledger of a thing may be its owner or a person who has the right of economic management over it. A person who owns a thing by the right of economic management has the right to pledge it without the consent of the owner, unless a ban on this is established by law or other legal act. The immovable property owned by the enterprise on the right of economic management may be pledged only with the consent of the owner. Organizations that have the right to operational management of property cannot be mortgagors.
The identity of the pledgee always coincides with the identity of the creditor.
Essential terms of the pledge agreement (Article 339 of the Civil Code of the Russian Federation):
collateral and its valuation,
The current legislation proceeds from the fact that any property can be the subject of pledge, with the exception of things withdrawn from circulation (Article 336 of the Civil Code).
The legislator also allows a pledge of such things that may arise in the future, for example, a pledge of a future crop, livestock offspring, etc.
- the nature, amount and term of performance of the obligation secured by the pledge,
- an indication of which party has the pledged property.
But the contract, at the discretion of the parties, may provide for other conditions, which, after their inclusion in the contract, also acquire the value of essential, necessary conditions.
The form of the pledge agreement is a written form. In some cases, the pledge agreement must be registered in the prescribed manner. A pledge of land, an enterprise as a whole, vehicles or other property subject to state registration must be registered with the body that carries out such registration (clause 1, article 131 of the Civil Code).
Foreclosure on pledged property. Foreclosure on the pledged property may be levied in the event of non-fulfillment or improper fulfillment by the debtor of an obligation secured by law due to circumstances for which he, the debtor, is responsible. Foreclosure may be refused if the violation committed by the debtor is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property. In the absence of at least one of the above conditions, the court has the right to refuse the pledgee to foreclose on the pledged property.
Claims of a pledgee secured by a pledge of immovable property shall be satisfied from the value of such property by a court decision. Foreclosure on real estate that has become the subject of pledge is excluded by the notary's executive inscription. The pledgee may foreclose on the pledged immovable property without filing a claim in court, when there is a notarized agreement between the pledgee and the pledgor, and concluded after the grounds for foreclosure on the subject of pledge arise.
The claim of the pledgee at the expense of the pledged movable property shall be satisfied by a court decision, unless otherwise provided by the agreement between the pledger and the pledgee. At the same time, this agreement can be concluded not only after the grounds for foreclosing the pledged property arise, as is the case with real estate, but also at earlier stages of the development of relations between the pledgor and the pledgee.
A special rule has been established for foreclosing movable property transferred into the possession of the pledgee (mortgage). Execution on such property may be levied by the pledgee in the manner prescribed by the agreement of the parties, unless otherwise established by law.
Execution may be levied on the pledged property only by a court decision in three cases when:
1) the consent or permission of another person or body was required to conclude a pledge agreement;
2) the subject of pledge is property that has a significant historical, artistic or other cultural value for society;
3) the pledgor is absent, and it is impossible to establish his location (clause 3, article 349 of the Civil Code of the Russian Federation).
The sale of the pledged property can be carried out both by bailiffs and specialized commercial organizations that have the appropriate licenses. Realization (sale) of pledged property, which is foreclosed, is carried out by sale at public auction (clause 1, article 350 of the Civil Code of the Russian Federation). The Civil Code of the Russian Federation excludes the possibility of a commission sale of the pledged property. The sale of pledged property at public auction allows you to get the highest price for it and thereby protect the interests of the mortgagor. The interests of the pledgor are also served by the rule that the court (in case of foreclosure by a court decision) has the right to defer the sale of the pledged property for up to one year, for example, in cases where the subject of pledge is an apartment or residential building in which the pledgor lives (p. 2 article 350 of the Civil Code of the Russian Federation).
It should be noted that judicial and arbitration practice proceeds from the fact that modern pledge law is a complex institution of civil law, which combines not only different types of pledge, the distinction between which can be made according to the subject (object), but also the fact that one the type of pledge includes both the features of property law and the law of obligations.

Chapter 2. Features of certain types of pledge

2.1. Features of the pledge of goods in circulation

Conclusion

Ways to ensure the fulfillment of obligations historically arose as a natural need for increased guarantees of the rights and interests of participants in legal obligations.
The main ways of providing are: forfeit; pledge; retention; guarantee; bank guarantee; deposit.
A pledge is understood as a method of securing the fulfillment of an obligation, allowing the pledgee to receive satisfaction at the expense of the pledged property primarily over other creditors of this debtor (clause 1, article 334 of the Civil Code). Pledge is regulated not only by the Civil Code of the Russian Federation, but also by two laws: the Law of the Russian Federation "On Pledge" and the Federal Law "On Mortgage (Pledge of Real Estate)".
The subject of pledge can be things and rights of claim (Article 336 of the Civil Code). The parties to the pledge are: the pledgor and the pledgee (Article 335 of the Civil Code). The form of a pledge agreement must be in writing, and in relation to a mortgage - notarized and registered. The grounds for the occurrence of a pledge are the contract (clause 1 of article 341 of the Civil Code) and the law (for example, clause 5 of article 488 of the Civil Code).
The types of collateral are distinguished on the following grounds:
- at the location of the pledged property (Article 338 of the Civil Code): a solid pledge - without the transfer of property, a type of solid pledge is a pledge of goods in circulation (Article 357 of the Civil Code), and a pledge - with the transfer of pledged property, a type of pledge is a pledge in a pawnshop ( article 358 of the Civil Code);
- on the subject of pledge (pledge of property and pledge of rights);
- according to the degree of connection of the pledged property with the land - pledge of movable property and pledge of immovable property (mortgage).
A special type of pledge is a subsequent pledge (Article 342 of the Civil Code).
The basis for foreclosing the pledged property is non-fulfillment or improper fulfillment by the debtor of the main obligation (clause 1 of article 348 of the Civil Code).
The procedure for foreclosure - the claim of the pledgee (lender) is satisfied from the cost of selling the pledged real estate either by a court decision or on the basis of a notarized agreement (Article 349 of the Civil Code), and movable - without going to court. This means that the property received as a pledge cannot be converted by the pledgee directly to his own benefit in case the pledger fails to fulfill the main obligation, but must be sold at public auction.

List of used legal acts and literature

Regulations

1. Civil Code of the Russian Federation. Part one of October 21, 1994, amended and additional // Collection of legislation of the Russian Federation. - 1994. - No. 32.
2. Law of the Russian Federation of May 29, 1992 "On pledge" // Rossiyskaya Gazeta. - 1992. - dated June 6 - No. 129.
3. Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)" // Rossiyskaya Gazeta. - 1998. - dated July 22. - No. 137.
Official acts of the judiciary
4. Decree of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 6/8 “On some issues related to the application of the first part of the Civil Code of the Russian Federation” // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 1996. - No. 9. - S. 5 - 20.
Literature

5. Braginsky M.I., Vitryansky V.V. Contract Law: General Provisions. - M.: Publishing house "Statut", 1998. - S.448-449.
6. Civil law: textbook. Volume 1. Fifth edition, revised. and additional / ed. A.P. Sergeeva, Yu.K. Tolstoy. – M.: “PBOYUL L.V. Rozhnikov", 2001. - 632 p.
7. Civil law. Part one: textbook / ed. A.G. Kalpina, A.I. Maslyaeva. - M .: Jurist, 1997. - 472 p.
8. Civil law: textbook / ed. E.A. Sukhanov. M.: Beck, 1999. - Part 1. – 432 p.
9. Illarionova T.I. Civil law: textbook / T.I. Illarionova, B.M. Gongalo, V.A. Pletnev. - M.: Norma, 1998. - Part 1. – 325 p.
10. Commentary on the Civil Code of the Russian Federation. Part one // ed. prof. T.E. Abova and A.Yu. Kabalkin - Yurayt-Izdat; Law and law, 2002. - 478 p.
11. Commentary on the Civil Code of the Russian Federation (item-by-article) // ed. HE. Sadikova - M.: Law Firm Contract; Infra - M, 1998. - 521 p.
12. Tarikanov D.V. The system of ways to ensure the fulfillment of obligations // Legislation. - 2006. - No. 5.
13. Tarkhov V.A. Civil law / V.A. Tarkhov. - Cheboksary, 1997. - 289 p.
14. Kastalsky V. Collateral security // Law and Economics. - 2002. - No. 9. - S. 21 - 25.
15. Mironova O., Khametov R. Enforcement of obligations:
contractual methods // Russian justice. - 2004. - No. 11.
16. Petrushkin V.A. Problems of theory and judicial arbitration practice on the application of methods for fulfilling obligations. Justice in the Volga region. - 2006. - No. 1.
17. Revenko O. Actual problems of enforcement of contractual obligations: Comparative legal analysis // Legal. newspaper. - 2001. - No. 3. - P. 3, No. 4. - P. 3.
18. Sarbash S.V. Some problems of ensuring the fulfillment of obligations // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2007. - No. 7.
19. Tsybulenko Z. Pledge of certain types of real estate // Russian justice. - 2000. - No. 1. - S. 15.

Article 334. Concept of pledge
1. By virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) shall have the right, in the event of non-fulfillment or improper fulfillment by the debtor of this obligation, to receive satisfaction from the value of the pledged property (subject of pledge) preferentially over other creditors of the person who owns the pledged property (pledger).
In cases and in the manner prescribed by law, the claim of the pledgee may be satisfied by transferring the subject of pledge to the pledgee (leaving it with the pledgee).
2. The pledgee, preferentially over other creditors of the pledgor, shall have the right to obtain satisfaction of the claim secured by the pledge also at the expense of:
insurance indemnity for the loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage occurred due to reasons for which the pledgee is responsible;

compensation due to the pledgor provided in exchange for the pledged property, in particular, if the pledgor’s ownership of the property that is the subject of the pledge is terminated on the grounds and in the manner established by law, as a result of the withdrawal (redemption) for state or municipal needs, requisition or nationalization, as well as in other cases provided by law;

income due to the pledgor or pledgee from the use of the pledged property by third parties;

property due to the pledgor in the performance of an obligation by a third party, the right to demand the performance of which is the subject of pledge.

In the cases specified in paragraphs two to five of this paragraph, the pledgee has the right to demand the amount of money or other property due to him directly from the obligated person, unless otherwise provided by law or the contract.
3. Unless otherwise provided by law or the agreement, if the amount received as a result of foreclosure on the pledged property is insufficient to pay off the claim, the pledgee shall have the right to satisfy his claim in the outstanding part at the expense of the other property of the debtor, without using the advantage based on the pledge.
If the amount received as a result of foreclosure on the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference shall be returned to the pledgor. An agreement on the pledger's waiver of the right to receive the specified difference is void.
4. General provisions on pledge shall apply to certain types of pledge (Articles 357 - 358.17), unless otherwise provided by the rules of this Code on these types of pledge.
The rules of this Code on rights in rem shall apply to the pledge of immovable property (mortgage), and, to the extent not regulated by the said rules and the law on mortgage, the general provisions on pledge.
5. Unless otherwise follows from the nature of the pledge relationship, the creditor or other authorized person, in whose interests the prohibition was imposed on the disposal of property (Article 174.1), has the rights and obligations of the pledgee in respect of this property from the moment the court decision, which demands such creditor or other entitled person were satisfied. The sequence of satisfaction of these requirements is determined in accordance with the provisions of Article 342.1 of this Code on the date on which the relevant prohibition is considered to have arisen.
2. Certain types of collateral

1) Pledge of goods in circulation;
2) Pledge of things in a pawnshop.

Depending on the subject:
Pledge of liability rights;
Pledge of rights under a bank account agreement;
Pledge of Participants' Rights legal entities;
Pledge of securities;
Pledge of exclusive rights.

Article 335
1. The pledger may be both the debtor himself and a third party.
In the event that the pledgor is a third party, the rules of Articles 364-367 of this Code shall apply to the relations between the pledgor, the debtor and the pledgee, unless otherwise provided by law or agreement between the relevant persons.
2. The right to pledge a thing belongs to the owner of the thing. A person having another right in rem may pledge a thing in the cases provided for by this Code.
If a thing is pledged to a pledgee by a person who was not its owner or was not otherwise duly authorized to dispose of the property, which the pledgee did not know and should not have known (a bona fide pledgee), the owner of the pledged property has the rights and bears the obligations of the pledgor provided for by this Code, other laws and pledge agreement.
The rules provided for in the second paragraph of this paragraph shall not apply if the thing pledged was lost before that by the owner or the person to whom the thing was transferred by the owner into possession, or was stolen from one or the other, or left their possession in any other way than their will.
3. If the subject of pledge is property, the alienation of which requires the consent or permission of another person or an authorized body, the same consent or the same permission is necessary for the transfer of this property as a pledge, except in cases where the pledge arises by virtue of law.
4. If the property of the pledgor, which is the subject of the pledge, has passed by succession to several persons, each of the successors (acquirers of the property) shall bear the consequences arising from the pledge of failure to fulfill the obligation secured by the pledge in proportion to the part of the said property transferred to him. If the subject of pledge is indivisible or, for other reasons, remains in common ownership of the legal successors, they become solidary co-pledgers.

Article 336. Subject of pledge
1. The subject of pledge may be any property, including things and property rights, with the exception of property against which foreclosure is not allowed, claims that are inextricably linked with the personality of the creditor, in particular claims for alimony, for compensation for harm caused to life or health , and other rights, the assignment of which to another person is prohibited by law.
Pledge of certain types of property may be limited or prohibited by law.
2. A pledge agreement or in relation to a pledge arising on the basis of a law may provide for a pledge of property that the pledgor will acquire in the future.
3. The pledge shall extend to the fruits, products and income obtained as a result of the use of the pledged property in the cases provided for by law or the agreement.
4. When concluding a pledge agreement, the pledgor shall be obliged to warn the pledge holder in writing about all the rights of third parties to the subject of pledge known to him by the time the agreement is concluded (property rights, rights arising from lease agreements, loans, etc.). If the pledgor fails to fulfill this obligation, the pledgee has the right to demand early performance of the obligation secured by the pledge or amendment of the conditions of the pledge agreement, unless otherwise provided by law or the agreement.