That the risk is accidental. Destruction or damage to property - sample act

But when a private owner, having retained the right of property for strengthening, separates possession from it and transfers or assigns it to another by agreement, deed of deed or some other act, then this separated possession constitutes in itself a special right, of which space, life or urgency is determined by the very act by which it is established (the Code of Civil Laws of the Russian Empire).

Ownership is a basic, "basic", maximally complete property right. Other proprietary rights are sometimes called limited proprietary rights, since they are to a certain extent derived from property rights, and the powers of their owner are much narrower.

In the legal literature, rental and pledge rights are sometimes considered property rights. Undoubtedly, some features of property (ownership) rights are present in both the tenant and the mortgagee, but there are no grounds to classify these rights as an independent type of property rights. In general, these rights are obligatory, the owner of rental or pledge rights, having property rights among the methods of protection, nevertheless, basically realizes them through positive actions of other persons.

§ 2. Ownership - fundamental property right

The concept of ownership. Initial provisions of law

property. The owner's relationship with the thing. Right

property is the basis of life.

1. Property is the possession of certain things. Moreover, the possession is complete, absolute, when the owner has exclusive rights in relation to these things, acts in relation to them as the owner.

At the same time, all other persons must recognize the status and rights of the owner, refrain from any actions that violate this status and rights, and the state, the entire public order, must ensure and protect them with an appropriate system of state-power measures.

From the history of civil law: The right to a thing stirs up a universal unconditional negative obligation regarding the owner of the thing - not to do anything that could violate this right. This obligation equally lies with everyone who is not the owner himself (K.P. Pobedonostsev).

Property right as a basic, fundamental institution is based essentially on three simple, starting points:

a) things, other externally objectified objects as an object of ownership;

b) the attitude of the owner to things "as to his own";

c) complete, absolute possession of the property.

The first position is a direct and immediate connection of property with its defining object - a thing. Accordingly, the property has proprietary character, and such when the property right as a property right has the most complete, absolute character.

From the history of civil law: The right of ownership is inextricably linked with a thing and does not lag behind it, passes with it, in whose hands, in whatever position the thing is, is attached to it. The property of exclusivity, advantages, preferences is associated with the right to a thing. Ownership presupposes not only the actual relationship of a person to a thing, not only the belonging of a thing to a person, not only the use of a thing as a tool for an everyday purpose, even if this tool was exclusively subject to man. It presupposes more - it presupposes a living, indissoluble and unconditional connection of a person with a thing (K.P. Pobedonostsev).

"Thing" as a defining object of property should be understood in its broadest sense - not only in terms of content (from the earth - the original, primordial object, to advanced devices and mechanisms of modern technology and technology), but also in relation to the external characteristics of things understood in the sense of any objectively objectified phenomena of the material and spiritual world around people.

The second position - property is the attitude to things "as to their own"(Prof. A.V. Venediktov). From the philosophical side, property is a kind of extension (projection) of the absolute, exclusive and all-embracing power of man in relation to his own flesh and mind to external objects. And as a result of this, they become yet another, moreover, powerful "hands" or even, if you like, "parts of the human body itself" - instruments for realizing his activity, creativity, productive activity, living and leisure.

The third position - complete, absolute possession of things, other objects means the power of a person, the same, in principle, as the personal (more precisely, personified) power of a person over himself; in any case, over their physical capabilities, abilities, skills, etc. Power "proprietary", closed mainly on things, economic, economic activity, is a constitutive element of property.

From the history of civil law: A distinctive property of real law is that it contains domination over property that has the value of a thing, and, moreover, domination is direct, so that the owner extends the entire effect of his right directly to his face on the thing itself, without relation to any to another person, and not through another person, by itself. Hence - protection, protection, the right to return, correction and reward (K.P. Pobedonostsev).

2. Property, in all its original principles and its essence, is precisely something "one's own", "one's own" for a person. That is, as it were, a continuation of a person. The continuation of his personal domination, absolute and exclusive power in relation to external objects, which become conditions and factors of his existence, overcoming the natural and other difficulties of life, and most importantly, one more, moreover powerful, “hands” or even “parts of the person himself”, his being (in the conventional sense - his "body"), manifestations or instruments of his physical capabilities and mind, skills and abilities, activity and creativity.

In itself, the continuation of a person, his strength, abilities and reason in external objects are purely objective phenomena related to things - technology, professional work, to other objects that objectify the mind and spiritual forces of a person.

But such external objects are still only objects of property, although they are fundamentally important, including and above all for its philosophical vision. And the property itself is domination and absolute power over these objects, other objects.

And here turns out to be necessary the right(civil law), with the help of which external objects acquire the qualities of integral parts of the person himself, as if his continuation - natural and organically own, belonging to a given person, supports and means for the continuation and intensification of his activity, his life as a rational being. It is here, from a legal point of view, that external objects (goods) acquire the qualities of "universality", "absoluteness", "exclusivity".

Such objects, and as a result of the "property effect", as it were, particles of the very flesh and spirit of man and the corresponding legal qualities became first things themselves as particles of the material world, then - objectified "achievements of the mind" - somehow objectified results of authorship, invention, professional skills and abilities (objects and forms of intellectual property), and then - and "signs" of such objects and "achievements of the mind" (securities, other outwardly expressed signs in the electronic information world).

3. Due to the fact that property is characterized by the widest, most complete possession of things and other goods by a person, which in itself requires its consolidation and development, property becomes a factor in the activity and concern of a person with its use and fate, a powerful stimulus for extremely intense risky activity, an impulse to the opposite investment in production. And at the same time - the responsibility of the owner.

It is clear that property in the entire volume of its qualities and merits (however, also negative, contradictory sides, a source of greed, material egoism, passion for hoarding, etc.) is private property, that is, the property of a person, a specific person (or a group of specific individuals ), the complete possession of which things, other benefits directly comes into contact with, contacts his will, interests, intensely, sometimes inevitably affects them.

Only private property (the absolute right to things and intellectual property - the exclusive right to intangible goods, "property marks") gives its subject the broadest, generally permissible rights of ownership and, in this regard, is able to exert a powerful and diverse influence on a person, on his will and interests ... Such an impact that activates the personality, its creative potential and in this way brings benefit to the person himself and the entire community of people. In these qualities, private property, although it is the source and arena of a number of negative aspects in people's lives, is at the same time included, like its mediating right, in the rigid mechanisms of the progressive upward development of society.

§ 3. General provisions on ownership

Ownership in the objective and subjective sense.

Ownership traits. Content of the law

property. Ownership, use rights

and orders. Permissibility of ownership.

Restriction of ownership. Burden of containment and risk

accidental loss of property. "Indivisibility" of the law

property. Determination of ownership.

1. The right of ownership is a fundamental real right that defines all others, in essence - derivatives, rights, other real and, to a certain extent, obligatory. It is necessary to strictly distinguish between:

a) property right as a system of legal norms on property (ownership in an objective sense) and

b) the ownership of a person as his authority in relation to certain items (ownership in the subjective sense).

The property right by its nature (nature) is such that, unlike the rights of a permissive order, when certain actions are performed only on the basis of the permission of authorized persons, it is generally permissible: allows the person (owner) on the basis and within the limits of the law to build their behavior in relation to the property at your own discretion.

In civil law, the main features of property rights are determined:

a) like any real right, the right of ownership is absolute;

b) the property right simultaneously contains all "property" powers: use, possession and disposal;

c) ownership is indefinite character;

d) object of ownership - mainly individually defined things.

2. The property right as a subjective civil law is revealed by its content.

Legal act: The owner owns the rights to own, use and dispose of his property (Article 209 of the Civil Code of the Russian Federation).

It is the specified triad - the rights of ownership, use, disposal - that constitutes the content of the property right, determines the powers of the owner.

Possession as the right of the owner means the possibility of the latter to have the thing in its real possession, "actual domination" over the thing, to exercise direct control over the thing, to "occupy" it.

A citizen who owns a residential building, cuts in locks, installs an alarm, takes out insurance for the house, and fences it. The citizen owns the house.

The legal entity manufactured the machines and placed them under security in the warehouse. The legal entity owns the machines.

The state ensures the safety of forest funds, organizes control over their use, and creates special forest services. The state owns the forest.

Use as the right of the owner is, in fact, the use of the object, the use of the object "in their favor", the extraction of useful properties from the thing, a certain property or other benefit.

A citizen who owns a residential building lives with his family in this building. The citizen uses the house.

The legal entity moved the machines from the warehouse to the workshops, included them in the production process, and manufactures goods with their help. A legal entity uses machines.

The state ... (with the right to use in the right of state ownership, everything is not so simple - see forms of ownership).

Order as the right of the owner - the ability to perform in relation to the property any legal and factual actions. The owner can sell his thing, donate it, rent it out, or simply throw it away.

The citizen, having sold his residential building, has fulfilled his authority of the order.

The legal entity leased the machines, thereby disposing of them.

The state has transferred a plot of the forest fund for the use of a commercial organization. The state disposed of its property.

Ownership as the right of the owner should not be confused with the broader concept of the same name (see § 1 of this chapter). The latter is recognized as a special proprietary right and is protected by proprietary means. The possession of a thing by a non-owner on a legal basis also legally mediates the connection of the subject with the thing and is sometimes called title possession (in this case, the title is a legal, legitimate basis). The dual structure of ownership is recognized by both civil science (M.V. Malinkovich, V.A.Tarkhov, M.V. Samoilova, etc.) and the practice of law enforcement.

3. The right of ownership as a "higher" property right is permissible: the owner determines the fate of his right exclusively by their own will and in their interest.

Legal act: The owner has the right, at his discretion, to perform any actions in relation to the property belonging to him that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons (clause 2 of article 209 of the Civil Code of the Russian Federation).

The owner's discretion is thus limited only and exclusively by legal regulations (the rights and legitimate interests of others arise only from legal rules). In other words, the owner owns, uses and disposes of his property in a "space" limited only by the rights and interests of others. This is a general rule regarding ownership of negotiable objects. The restriction in the turnover of objects also determines the restriction of rights, in particular, laws may establish restrictions on the ownership, use and disposal of land and other natural resources.

From the history of civil law: Recognizing in principle the right of ownership as full power over a thing, the state at the same time reserves for itself the right to impose certain restrictions on it, which it finds necessary, up to complete expropriation in the interests of the common good (I.A. Pokrovsky).

It would seem that property rights do not know any other positive (legal) restraining principles besides the law and legal acts. At the same time, the property right, with all its breadth and absoluteness, cannot be unlimited. The property right is restrained not only by law, but also by:

a) the designation of a thing as an object of law (apartment, forest area, etc.) and

b) a transaction (agreement, testament, etc.).

Contracts, in particular - rent, lease, pledge, testamentary refusal, in a known way, constrain the right of ownership. At the same time, it should be noted that these restrictions do not "diminish" the property right, but set the limits for the exercise of this right.

To a certain extent, the limits of the exercise of property rights are also established by the general civil prohibition of abuse by a person of his subjective rights.

It is necessary to distinguish legal restrictions on the exercise of property rights from the socio-economic and moral-psychological aspects of both property itself, and unequal (this is the essence of property relations) of its distribution between people. These are, undoubtedly, very important and "explosive" circumstances, but nevertheless they go beyond the boundaries of the legal structure of property rights.

4. Civil law, like, in fact, all human existence, is built on the presence and a certain balance of positive and negative principles. Retribution, counter granting are just separate manifestations of these principles. In the right of ownership, the supreme real right, the positive powers of possession, use and disposal in a certain way are "balanced" by negative, unfavorable, but necessary legal elements:

a) burden of property maintenance;

v) risk of accidental loss of property.

Burdens and risks inevitably and constantly accompany ownership, motivating the prudence of the owner.

Legal act: The owner bears the burden of maintaining his property (Article 210 of the Civil Code of the Russian Federation).

The legislator did not accidentally use the term "bears a burden", avoiding the words "bears responsibilities." It is known that any civil legal obligation is always opposed by someone's right to demand the fulfillment of this obligation. The burden of maintaining the property, therefore, is not such a legal obligation (the law does not allow third parties to seek in court for coercion of the owner to actually fulfill the burden, unless, of course, this obligation follows from the law, but this is no longer a burden ...). The primary sources of the burden of maintaining property should, in all likelihood, be sought not in the legal, but in the economic and socio-moral aspects of property.

The risk of accidental loss or damage to property is also a certain "minus" of property rights. If the destruction of the thing is caused by the guilty actions of third parties, the damage shall be compensated by the tortfeasor, random (that is, independent of the will and fault of the subjects) loss or damage to property is always "property reduction".

5. The universality and absoluteness of the property right is expressed not only and not so much in the possession, use and disposal as in the aggregate of powers, but simultaneously in the harmony and independence of these powers. The owner can transfer to another person (s) both the right to own, and the right to use, and the right to dispose and remain the owner.

Legal act: The owner ... has the right to alienate his property into the ownership of others, transfer to them, while remaining the owner, the rights of ownership, use and disposal of property ... (Clause 2, Article 209 of the Civil Code of the Russian Federation).

On the other hand, a person who has legitimately received the entire triad of powers from the owner does not become a new owner; in civil circulation, it will act, at best, as the title owner. The Russian (with Romano-Germanic roots) civilistic doctrine proceeds from the indivisibility and inviolability (indivisibility) of property rights as such. In accordance with the current civil legislation, property is always personified - a thing by right of ownership belongs to a specific subject (in common ownership - two or more persons). The owner has the right to dispose of either his own powers (one or more), or the right of ownership in general. The owner cannot, while remaining so, transfer the property to the ownership of another person. "Two-tiered" ownership (trust, trust) is allowed only by Anglo-American legal systems based on different conceptual principles.

Authoritative opinion: It turns out that a single property right is, as it were, "split" between several subjects ... In the Anglo-American system, such a situation does not give rise to contradictions, because there the property right, consisting of a dozen different powers (elements), is capable of giving up to one and a half thousand options for completely independent property rights. These are complex constructions based on centuries-old traditions of case law and rooted in the feudal legal order, completely alien to the continental legal system (E.A. Sukhanov).

A certain, still very timid step towards a legislative understanding of the Anglo-American interpretation of property rights was made by the Civil Code, for the first time providing for the structure of trust management of property (Chapter 53 of the Civil Code of the Russian Federation). But the initial approach has not changed - the ownership does not pass to the trustee.

6. The foregoing makes it possible to determine that the right of ownership, as the most complete subjective real right, is the established and legally protected ability of a person to own, use and dispose of his property at his own discretion.

§ 4. Types (forms) of property rights

The concept of forms of ownership. Types of subjects of law

property. Types (forms) of property rights.

Property of citizens and legal entities. Right

state property.

Municipal property right.

1. The right of ownership as an absolute, fundamental subjective civil law, which ensures the entire economic sphere of society, is a legal structure of such an extensive and universal nature that the classification into types, types and forms is very conditional.

Legal act: Private, state, municipal and other forms of ownership are recognized in the Russian Federation (Article 212 of the Civil Code of the Russian Federation).

The law defines forms of ownership, and not the forms and types of property rights.

2. The current legislation and modern civil law doctrine in the recognition and definition of forms of ownership do not proceed from the essence of real rights, but from the characteristics of the bearer of subjective law, the type of subjects of ownership.

Only in a few years of the changes that began in Russian society in the late 1980s - early 1990s. such "forms" of property were named in legislative acts - "property of citizens", "collective property", "state property" (the USSR Property Law of 1990), property - "private", "state", "municipal", " public associations "(Law on Property of the RSFSR 1990), property -" citizens "," legal entities "," state "(Fundamentals of Civil Legislation<...>1991). In addition, the Constitutions of Soviet society (both all-Union and republican) very strictly delineated such "types" of property as "socialist property (state and cooperative-collective farm)" and "property of citizens". And in the ideological, official worldview plan, the "types" of property were strictly isolated - primitive communal, slaveholding, feudal, bourgeois, socialist and, in the long term, communist (according to the official gradation of that time - the "highest" type of property in general).

In a situation when ideological criteria for the classification of property were rapidly losing their significance in the aforementioned years, and in law and in practice, some of the mentioned "forms" and "types" were deprived of their legal advantages, the fundamental importance remained with the subdivision of types and forms of ownership. by subject.

The foregoing makes it possible to determine the following types (forms) of property rights:

a) the right to private property (property of citizens and legal entities);

b) the right of state property;

c) the right of municipal property.

The rights of all owners (citizens, legal entities, the state and municipalities) are protected equally.

The peculiarities of the acquisition and termination of all types (forms) of ownership, the powers of the owner (triad), regardless of the subject of ownership rights, can be established only by law. The law, however, determines the types of property that can only be in state or municipal ownership.

3. Owned by citizens and legal entities any property can be located. This is a general, conceptual provision that legalizes private property in Russian civil law, the basis of private law.

As a general rule, the quantity and value of privately owned property is not limited.

Legal entities as owners of their property, by virtue of their legal specifics, are certainly different from citizens, "end consumers" of all benefits generated by property. But legally, the law equalizes citizens and organizations in the rights of owners. Commercial and non-commercial organizations (except for cases provided for in the law) are the owners of the property transferred to them in the form of contributions, contributions, etc. and acquired by them in the future.

Commercial organizations are inherently designed to generate profits, in other words, to increase property. Such persons have the right to use their own property in any way (subject to tax and other public legislation).

Public and religious organizations, charitable and other foundations are the owners of the property they have acquired and can only use it to achieve the goals stipulated in their constituent documents. The founders (participants, members) of these organizations lose the right to the property transferred by them to the ownership of the organization.

Authoritative opinion: Any type and any form of ownership, no matter how high in a particular case the level of socialization ... can exist only on the condition that someone treats the conditions and products of production as their own, and someone as strangers. Without this, there is no property at all. From this point of view, any form of ownership is private ... (YK Tolstoy).

4. State property right belongs to the Russian Federation and the constituent entities of the Russian Federation (federal property and property of the constituent entities of the Federation) and, due to the specifics of its bearer, is intended to perform public, state tasks. The state owns its property and protects it on the same grounds as other owners.

In state property, which exists in the general infrastructure of private property, certain power, public elements find a certain expression, which, with a consistently democratic organization of society, should be limited by law.

State (and, to a decisive extent, municipal) property occupies a special place for the reason that it fancifully combines certain qualities of property in general (and only in a certain, incomplete volume) with state power, its ability to imperatively rule under the guise of "property." In this regard, it is necessary to bear in mind the following: what is called "state property" is completely devoid of the above-mentioned qualities of property in general (private property). Public property is mainly a form of fixing "wealth", "wealth", in one way or another has the features of a state-power phenomenon, mainly serves as the basis for the distribution and power redistribution of material resources among the population (budget), and in the field of production can participate in solving economic problems mainly through administrative coercion and forced labor.

Land and other natural resources not owned by citizens, legal entities, municipalities are state property.

State property is assigned, in accordance with the Civil Code of the Russian Federation, to individual enterprises and institutions in economic management or operational management.

Treasury the state (the entire Federation, its constituent entities) form the funds of the corresponding budget and other state property not assigned to state enterprises and institutions.

5. Municipal property right belongs to urban and rural settlements, as well as other municipalities. Like state, municipal property is of a public, administrative nature. And the procedure for exercising the right of municipal property is built in the image and likeness of the right of state property.

On behalf of the municipality as the owner, its bodies (heads, mayors, etc.) act in the manner prescribed by the relevant normative act. The issues of assigning property to individual enterprises and institutions and concerning the municipal treasury are resolved on the same grounds as in state ownership (Article 215 of the Civil Code of the Russian Federation).

6. Recognition in Russia of the diversity of property by type (more precisely, by subject) does not exclude the fact that the developing Russian society is based on the principles of private property, which receive modern civil law expression in civil law and its institutions.

Kanev Dinar Rinatovich , postgraduate student of the Department of Civil Law, St. Petersburg State University.

The article examines the relationship between civil liability and the risk of accidental loss (damage) of property as ways of distributing risks in civil law. Based on the analysis, it was concluded that the risk of accidental loss (damage) of property is a collective concept that includes various types of negative property consequences of loss or damage to property. In this regard, the author believes that the specified risk and responsibility in the obligations to ensure the safety of someone else's property should not be opposed: the debtor's risk in such obligations determines the limits of his liability.

Key words: liability, risk, accidental loss (damage) of property, insurance interest in the preservation of property.

In civil law, there is a view of civil law from the point of view of risk distribution. So, M.M. Agarkov, considering the theory of securities, noted that "the problem of risk distribution runs through all civil law"<1>.

<1>Agarkov M.M. Bearer securities // Selected works on civil law: In 2 volumes. M., 2002. T. I. S. 121; see also: Ya.M. Magaziner Soviet commercial law. L., 1928.S. 297.

One of the ways to distribute the risk is the assignment of the risk of accidental loss (damage) of property to one of the subjects of the legal relationship (for example, to the owner in the legal relationship of property - Article 211 of the Civil Code of the Russian Federation, to the debtor or creditor in the obligation - Articles 459, 600, 669, 696, 705, 741 of the Civil Code of the Russian Federation). Moreover, at present, this technique is used much more often than before.<2>.

<2>So, the Civil Code of the RSFSR of 1964 mentioned the risk of accidental death in only two articles. Article 138 established the distribution of the risk of accidental death when acquiring a thing under a contract, and Art. 375 of the said Code - distribution of the risk of accidental loss of material provided under a work contract.

At the same time, civil law knows other ways of distributing risks. So, the legislator allows responsibility without fault (for example, in clause 3 of article 401 of the Civil Code of the Russian Federation)<3>... In this regard, the doctrine reasonably notes that civil liability also performs the function of distributing risks<4>.

<3>In the literature, responsibility without fault is sometimes called objective responsibility (see, for example: Sinyavskaya M.S. Violation of the contract and its consequences: comparative legal analysis // Actual problems of civil law: Sat. st. M., 2005. Issue 9 . P. 214). Taking into account that the author of this article does not share the subjective concept of risk, in what follows, when referring to innocent responsibility, the term "objective responsibility" is used.
<4>See: M.S. Sinyavskaya. Decree. op. P. 214; Vyacheslavov F.A. Distribution of risks in contractual obligations: Dis. ... Cand. jurid. sciences. M., 2008.S. 158; Arkhipov D.A. Distribution of contractual risks in civil law. Economic and legal research. M., 2012.S. 34 - 35.

Thus, the risk of accidental death<5>, and objective responsibility is aimed at distributing risks. The question of the ratio of this risk and liability can be formulated as follows: are the risk of accidental loss of property and objective liability mutually exclusive categories? The solution of a number of practical questions depends on the answer to it.

These include, for example, the question of the insured interest in the preservation of property (Article 930 of the Civil Code of the Russian Federation). In the doctrine, there is an opinion according to which "the interest in preserving the property, mentioned in Article 930 of the Civil Code, is only for the one who bears the risk of loss and damage to this property, but not for the one who is responsible for its loss and damage"<6>... At the same time, it is argued that for the debtor the risk of loss is expressed "in the possibility of a duty(bold by us. - D.K.) restore the property and return it to the owner or reimburse the owner for the entire actual value of the lost or damaged property "<7>.

<6>Fogelson Yu.B. Insurable interest in property insurance // Economy and Law. 1998. N 9.S. 100.
<7>In the same place. E.Yu. Lomidze, in whose opinion "if the rule of Article 211 of the Civil Code of the Russian Federation is changed by the lease agreement and the risk of accidental death is transferred to the lessee, he will have the obligation to reimburse the owner for the cost of the lost thing, even if there is no possibility of applying to him measures of responsibility for non-return of the leased property" ( see: Lomidze E.Yu. Distribution between the parties to the agreement of the risk of accidental failure to achieve the goal. M., 2011. S. 82, 83).

According to this logic, if, for example, the lease agreement establishes the liability of the lessee regardless of fault, such a lessee is not entitled to insure the thing in his favor, but if he is entrusted with the risk of accidental destruction of the rented thing, then he has the right to insure the thing in his favor. At the same time, in both cases, the tenant experiences the same negative property consequences - the obligation to compensate for losses in the value of the thing. The considered position consistently leads to the following: when the specified obligation is expressed through the risk category, the lessee can insure his interest in the form of property insurance, and when through the category of liability - in the form of liability insurance. The validity of this approach can be questioned.

As we can see, the initial thesis of this position is that the risk of loss<8>and responsibility is mutually exclusive. However, upon closer examination, it is not always possible to find clear criteria for distinguishing between the risk of accidental death and objective responsibility.

<8>Strictly speaking, the loss and destruction of property are concepts that do not coincide in scope. Loss of property is a broader concept that includes not only its destruction (termination of existence as an object of law), but also such disposal from the possession of its legal owner, which makes it impossible to exercise the right to this property or fulfill the obligation associated with it. At the same time, for the purposes of this work, this difference is insignificant.

First, you need to determine what the risk of accidental loss of property is. We must agree with the position that accidental death is death that occurs in the absence of guilt. subjects of legal relationship <9>. Accordingly, the risk of accidental death in its most general form can be defined as the possibility of negative property consequences that occurred without the fault of the subjects of the legal relationship.

<9>See: Haskelberg B.L., Rovny V.V. Individual and generic in civil law. M., 2004.S. 109.

At the same time, the destruction of property can entail various consequences, depending on what interests are violated during its destruction. For example, the interest of the owner (Article 211 of the Civil Code of the Russian Federation), the interest of the mortgagee (Article 334 of the Civil Code of the Russian Federation), the interest of the buyer (Article 459 of the Civil Code of the Russian Federation), the interest of the lessee (Article 669 of the Civil Code of the Russian Federation), the interest of the borrower (Article 696 of the Civil Code of the Russian Federation) and other interests. In this regard, the risk of accidental death, depending on the legal relationship in which it exists, will be expressed in various negative property consequences. So, for the pledgee, the risk is the inability to take advantage of the guarantees that the law provides him in the event of the destruction of the pledged item, in particular, the right to early collect the amount of the secured debt (Articles 351, 813 of the Civil Code of the Russian Federation)<10>... For the buyer, the risk in question means that he "is obliged to pay the seller the purchase price, without the right to counter-grant"<11>... The borrower's risk is expressed in the obligation to compensate the lender for losses caused by the destruction of the thing transferred for free use.

<10>See: Rasskazova N.Yu. Insurance of risks of the pledgee bank // Law. 2008. N 11.P. 140.
<11>Haskelberg B.L., Rovny V.V. Decree. op. S. 109. This consequence is directly indicated in Art. 66 of the UN Convention on Contracts for the International Sale of Goods of April 11, 1980 (see: International Private Law: Collection of Normative Acts / Compiled by G.K. Dmitriev, M.V. Filimonova. M., 2004. . 193.

Common in all the examples given is only the reason for the negative property consequences - the accidental death of a thing. The consequences themselves, in which the risk is realized, depend on the relationship in which the subject of the risk participates in the legal relationship associated with the thing. From this, the following conclusion can be drawn.

The concept of "risk of accidental death" in itself does not have a strictly defined legal content and, in fact, indicates only the cause of negative consequences, which is accidental, that is, occurred without the fault of the subjects of legal relations, the loss of property. If this conclusion is correct, then the thesis that the indicated risk and liability exclude each other is highly doubtful.

According to the prevailing opinion, liability is expressed in property deprivation, for example, in the obligation to compensate for losses. But the obligation to compensate for losses may also be imposed on the debtor due to the accidental destruction of the thing entrusted to him (clause 3 of article 401 of the Civil Code of the Russian Federation).

Let us assume that such a duty is defined through a risk category, as in Art. 696 of the Civil Code of the Russian Federation. In accordance with this article, the borrower bears the risk of accidental loss or accidental damage to the thing received for free use, if the thing died or was damaged due to the fact that he used it not in accordance with the contract for free use or the purpose of the thing, or transferred it to a third party without the consent of the lender. The borrower also bears the risk of accidental loss or accidental damage to the thing if, taking into account the actual circumstances, he could have prevented its loss or damage by donating his thing, but chose to keep his thing.

Let's try to find the criteria by which the risk in Art. 696 of the Civil Code of the Russian Federation could be delimited from liability. Such a criterion in the doctrine is called the absence of a legally significant causal relationship between the behavior of the borrower and losses<12>... However, the lack of a causal relationship between borrower behavior and losses is far from obvious. Moreover, in some cases, there is not only a causal link between the borrower's behavior and losses, but also his fault.

<12>See: Commentary on the Civil Code of the Russian Federation. Part two (article by article) / Ed. A.P. Sergeeva, Yu.K. Tolstoy. M., 2006.P. 374 (the author of the commentary is A.V. Konovalov).

So, in the literature, a classic example is given of imposing on the borrower the obligation to compensate the lender for losses due to the accidental loss of a thing, when "one person asked another for a loan for silver dishes for setting the table for a dinner party; having received silver, the lender went with him across the sea"<13>... Further, with reference to Guy, it is noted that "the lender in this case should also be responsible for the accidental loss of silver in an attack by pirates or in a shipwreck."<14>... At the same time, it is indicated that "Guy adds "sine ulla dubitatone"(without any doubt), i.e., according to Guy, this question is quite simple - the fact is that the very fact of transporting silver taken for a specific purpose is a fault, and therefore the death of a thing from reasons associated with finding it on the way, ceases to be an accident "<15>... As you can see, the consequence, which is defined in Art. 696 of the Civil Code of the Russian Federation through the risk category, in this case it is qualified as responsibility for guilt.

ConsultantPlus: note.

The textbook "Roman Private Law" (under the editorship of IB Novitsky, IS Peretersky) is included in the information bank according to the publication - Yurist, 2004.

<13>Roman private law: Textbook / Ed. I.B. Novitsky, I.S. Peretersky. M., 2010.S. 448 (section author - I.B. Novitsky).
<14>In the same place.
<15>In the same place.

However, even if we consider that there is no causal link between the behavior of the borrower and the losses, the assertion that compensation by the borrower of losses (Article 696 of the Civil Code of the Russian Federation) is not a liability is debatable. The thesis that, as a rule, in order to impose liability in the form of compensation for losses, it is necessary to establish a causal relationship between the behavior of the subject of responsibility and losses, is correct. But does this mean that compensation by the debtor of losses that are not causally related to his behavior is never a responsibility?

Civil law notes that failure to fulfill an obligation, as a result of which the debtor incurs losses, may be caused not only by the behavior of the debtor, but also by other circumstances, including the behavior of third parties not participating in its performance<16>... Is this an unconditional circumstance to release the debtor from liability? Apparently, this question should be answered in the negative.

<16>See: Braginsky M.I. On the issue of responsibility for other people's actions under Soviet civil law // Braginsky M.I. Proceedings. M., 1961.S. 39; Sinyavskaya M.S. Decree. op. T. 1.P. 214.

So, in accordance with par. 2 p. 1 art. 901 of the Civil Code of the Russian Federation, a professional keeper is responsible for the loss, shortage or damage of things, if he does not prove that the loss, shortage or damage occurred due to force majeure, or because of the properties of the thing, which the keeper, taking it for storage, did not know and should not was to know, either as a result of intent or gross negligence of the depositor. Let's say the keeper took all the measures stipulated by the contract in order to ensure the safety of the thing. Despite this, the thing entrusted to him was lost, for example, due to the actions of third parties. In this case, on the one hand, it cannot be said that the loss was the result of the custodian's behavior, and on the other hand, there are no grounds for exemption from liability. Accordingly, the custodian will be obliged to bear responsibility in the form of compensation to the depositor for losses, despite the fact that the losses were caused not by his (the custodian's) behavior.

Even more obvious is the lack of a causal relationship between the behavior of the debtor and losses, if the reason for the failure to fulfill the obligation was force majeure, which is unavoidable by any, even increased, measures of care and discretion<17>.

<17>See: Meyer D.I. Russian civil law: 2 hours M., 2003. S. 246.

The basis of the debtor's liability in such cases is the failure to fulfill the obligation to return the thing in safety (clause 1 of article 886 of the Civil Code of the Russian Federation). Such non-performance may be caused, among other things, and the impossibility of performance<18>... The literature indicates that the impossibility of performance, which is due to the circumstance for which the debtor is responsible, terminates the main obligation (in this case, to return the thing in safety) and gives rise to a new one - the obligation to compensate for losses<19>... The circumstances for which the debtor is responsible may be not only his unlawful and guilty behavior, but also the case (including his unlawful but innocent behavior, actions of third parties, other circumstances) and force majeure<20>.

<18>D.M. Genkin wrote: "Non-performance can be conditioned either by the will of the debtor, or by the impossibility of performance; in turn, the latter can be caused either by the fault of the debtor, or by a circumstance in the occurrence of which the debtor is innocent" (see: Genkin D.M. obligation of impossibility of performance // Collection of articles on civil and commercial law. In memory of professor GF Shershenevich. M., 2005. S. 177).
<19>See: Civil Law: Textbook: In 3 volumes / Ed. A.P. Sergeeva. M., 2008.Vol. 1.P. 994 (chapter author - A.A.Pavlov).
<20>The possibility of establishing responsibility for force majeure is determined by the dispositive nature of paragraph 3 of Art. 401 of the Civil Code of the Russian Federation. In Roman law, responsibility for any loss of a thing could be established by an agreement between the creditor and the debtor and was called responsibility for omne periculum, which included responsibility for force majeure (see: Passek E.V. The concept of force majeure (vis major) in civil law // Non-property interest and force majeure in civil law. M., 2003. S. 242).

Let's go back to the borrower example. How does the indemnification of losses by the borrower differ from the liability of a professional custodian? In both cases, the destruction of the thing entails the impossibility of returning it to the creditor (depositor, lender). The impossibility of returning the thing causes non-fulfillment of the obligation (clause 1 of article 886, clause 1 of article 689 of the Civil Code of the Russian Federation), for which the debtor, due to the absence of circumstances exempting him from liability, is responsible. In other words, in this case, the same phenomenon takes place - responsibility for failure to fulfill the obligation to return the thing. The only difference is that in one case it is expressed by direct indication of responsibility, and in the other - at risk.

In this regard, we note that Art. 187.3 of the draft Civil Code of the Russian Empire, which provided for a norm similar to Art. 696 of the Civil Code of the Russian Federation, and did not at all indicate the risk of death of the thing. This article established that the borrower who uses the thing for other purposes, as well as retains the thing beyond the term specified in the contract, is responsible for the loss or damage of the thing that occurred at least from an accidental event.<21>.

<21>See: Civil Code. Draft of the Imperially established Editorial Commission for the preparation of the draft Civil Code. SPb., 1905.S. 173 - 174.

Analysis of judicial practice shows that courts often do not distinguish between risk and liability.

Thus, the Supreme Arbitration Court of the Russian Federation, considering the dispute over the claim of the lender against the borrower for compensation for losses caused by the loss of the refrigeration equipment transferred to the loan, pointed out the following: "By virtue of the provisions of paragraphs 1 and 3 of Article 401 of the Civil Code of the Russian Federation, the borrower is responsible for the loss either in the presence of guilt, or in the presence of grounds on which the law places the risk of accidental death on him(bold by us. - D.K.).

By imposing responsibility on the borrower for the loss of the thing, the courts did not take into account the stated provisions of the law, did not take into account the arguments of the defendant about the circumstances of the destruction of the equipment and charged the borrower with liability for failure to fulfill the obligation to return the thing, without indicating whether there were the mentioned grounds for this "<22>... As you can see, the court interpreted Art. 696 of the Civil Code of the Russian Federation as a special rule in relation to Art. 401 of the Civil Code of the Russian Federation, which establishes the grounds for the debtor's liability for violation of an obligation. No opposition of risk and responsibility is seen here.

<22>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 12.12.2005 N 10678/05. This approach is being developed in lower courts (see: Resolution of the Federal Antimonopoly Service of the West Siberian District of 09.11.2012 in case N A81-490 / 2012).

The same approach can be traced when considering disputes related to the destruction (damage) of the object of the financial lease (leasing) agreement. In accordance with Art. 669 of the Civil Code of the Russian Federation, the risk of accidental loss or accidental damage to the leased property passes to the lessee at the time the leased property is transferred to him, unless otherwise provided by the financial lease agreement.

Article 22 of the Leasing Law<23>stipulates that responsibility for the safety of the leased asset from all types of property damage, as well as for the risks associated with its destruction, loss, damage, theft, premature breakdown, mistake made during its installation or operation, and other property risks from the moment of actual acceptance the leased asset is borne by the lessee, unless otherwise provided by the lease agreement.

<23>See: Federal Law of October 29, 1998 N 164-FZ "On Financial Lease (Leasing)".

Although in Art. 669 of the Civil Code of the Russian Federation we are talking about risk, and in Art. 22 of the Leasing Law - on liability, the courts proceed from the fact that both of these norms establish the liability of the lessee<24>.

<24>In the doctrine, F.A. Vyacheslavov (see: Vyacheslavov F.A.Risk allocation in contractual obligations: Dis .... Candidate of Legal Sciences. M., 2008. S. 141).

So, in one of the cases, the court considered a dispute on the collection by the insurance company from the lessee by way of subrogation (Article 965 of the Civil Code of the Russian Federation) of the amount of insurance compensation paid by the insurance company to the lessor. Opposing the satisfaction of the claim, the defendant referred to the absence of his fault in the loss of the leased object. However, the courts satisfied the insurer's claim and noted that, in accordance with Art. 669 of the Civil Code of the Russian Federation and Art. 22 of the Leasing Law, the person responsible for the safety of the leased asset is the lessee. These norms were interpreted as developing paragraph 3 of Art. 401 of the Civil Code of the Russian Federation, according to which a debtor who has not fulfilled (has performed improperly) an obligation in the course of entrepreneurial activity is liable regardless of fault<25>.

<25>See: Determination of the Supreme Arbitration Court of the Russian Federation of November 16, 2012 N BAC-14477/12.

The courts' approach to the balance of risk and liability is in accordance with the law. If responsibility rests on the basis of guilt, guilt is one of its conditions. When responsibility is imposed regardless of fault, then the risk itself may be such a beginning.<26>, including the risk of death of the thing.

<26>Innocent responsibility is associated with risk, but not subjective, but objective. In the case of contractual liability - an objective risk assumed by the debtor under the contract, which is reasonably indicated in the doctrine (see: Arkhipov D.A. Decree. Cit. Pp. 34, 35).

Let us consider in more detail the position on the ratio of risk and liability in the context of the insured interest of the lessee in the preservation of things. According to Yu.B. Fogelson, the criterion for differentiating risk and responsibility is that one can get rid of responsibility by proving the absence of guilt or the action of force majeure<27>... However, this statement is debatable. Liability can also be unconditional (i.e. for any loss of property, including as a result of force majeure), and in this case, the criterion proposed by the author does not allow us to delimit liability from the consequences of risk bearing.

<27>See: Fogelson Yu.B. Decree. op. P. 100.

This leads to the next conclusion. The obligation to reimburse damages, which is imposed on the renter due to the risk that he bears, is no different from liability regardless of fault. There are no criteria by which it would be possible to delimit this obligation from responsibility for the accidental loss of a thing.

This criterion cannot be the failure of the lessee to take the necessary measures to ensure the safety of the rented item. In the event that the tenant does not take such measures, there is both unlawfulness and guilt, i.e. responsibility for failure to take these measures is imposed for the guilty behavior. What, then, is the risky nature of the liability of a tenant engaged in entrepreneurial activity (clause 3 of article 401 of the Civil Code of the Russian Federation)? The risk of such a tenant is expressed in the fact that in the event of the destruction of the thing, he will be obliged to compensate for losses in the value of the thing even if he took all measures to ensure its safety.

In itself, the designation of the tenant's obligation to compensate for losses in the value of the thing in case of its loss or damage (this conclusion also applies to the obligations of other persons who are obliged to ensure the safety of someone else's thing, in particular the custodian, borrower, commission agent) through the risk category without direct mention of responsibility does not mean that that this obligation does not apply to civil liability.

Proceeding from this, the imposition of the risk of accidental death on the debtor, who is obliged to ensure the safety of someone else's property, from the point of view of insured interests, leads to the following. Since the risk of accidental death for such a debtor is expressed, in fact, in the risk of liability, he can insure his interest related to the safety of the thing in the form of contractual liability insurance (Article 932 of the Civil Code of the Russian Federation)<28>.

<28>The exception in this sense is the finance lease. By virtue of paragraph 1 of Art. 21 of the Leasing Law, the lessee can insure his interest in the form of property insurance. This situation is most likely explained by the special position of the lessee as the economic "owner" of the leased asset.

This approach will help to overcome contradictions in practice, when identical insurance interests are insured in different types of insurance. So, judicial practice is not entirely consistent in deciding in what type of insurance should the debtor's interest be insured, connected with his obligation to compensate for losses in the value of someone else's thing entrusted to him. In some cases, the courts proceed from the fact that this interest can be insured in the form of contractual liability insurance<29>... In other cases, it is admitted in judicial acts that this interest can be insured in the form of property insurance.<30>... At the same time, identical interests should be insured, from our point of view, in the same legal form.<31>... In this case - in the form of liability insurance, moreover, regardless of how the specified obligation is expressed: as a consequence of bearing risk or literally as responsibility.

<29>See: clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 28, 2003 N 75.
<30>See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04.21.1998 N 1540/98; Determination of the Supreme Arbitration Court of the Russian Federation dated 09.12.2010 N VAS-2385/10; Resolution of the Federal Antimonopoly Service of the North-West District of 09/22/2010 in case N A56-49204 / 2008.
<31>This position is based on the fact that the insured interest is the basis of the insurance legal relationship and determines its elements (in particular, the subject composition, rights and obligations of the parties), the specificity of which is expressed in the types of property insurance. So, the interests of the owner and the user are different things (the user, unlike the owner, does not incur losses in its value), respectively, they must be insured according to different rules. The point of view that we adhere to can be supported by the authoritative opinion of V.I. Serebrovsky (see: Serebrovsky V.I. Essays on Soviet insurance law // Selected works on inheritance and insurance law. M., 2003. S. 369). Accordingly, from the opposite: identical interests (for example, the interests of users) should be insured according to the same rules.

It may be objected to us that the proposed approach practically deprives the debtor, who is obliged to ensure the safety of someone else's thing, of the opportunity to insure his interest associated with the obligation to compensate for losses in the value of the thing, since Art. 932 of the Civil Code of the Russian Federation allows insurance of contractual liability only in cases where it is directly established by law. Therefore, if the possibility of insuring his liability for the specified case is not directly established by law, the debtor is not entitled to insure it. Consideration of this problem deserves special attention. Here, we note that, in our opinion, there are no grounds for limiting contractual liability insurance only to cases directly established by law. Accordingly, the debtor should be given the opportunity to insure his contractual liability, whether the law expressly permits it or not.

So, the main conclusions are as follows. The risk of accidental death is a collective category that includes various types of negative property consequences of the destruction of a thing. These consequences depend on what are the rights and obligations of the risk subject with respect to the property.

The risk of accidental death is not limited to responsibility. In some cases, this risk determines the fate of mutual contractual obligations in the event of the destruction of property, in others - the rights and obligations of the subjects of the obligation secured by the pledge.

However, in a number of cases, this risk is expressed in the imposition of losses on the debtor associated with non-performance (improper performance) of the obligation. This applies to obligations to ensure the safety of someone else's thing (in particular, obligations from storage agreements, lease with the transfer of the thing into the possession of the tenant, loans, commissions). In such cases, the risk is not opposed to liability: the debtor's risk determines the limits of his liability. So, unless otherwise established (for example, that the debtor is liable only as a result of a simple case), imposing on the debtor the risk of accidental death means that he is responsible for the failure of the thing, regardless of the reasons for which it died, including due to the action force majeure.

RISK OF ACCIDENTAL DEATH RISK OF ACCIDENTAL DEATH (property) - the risk of possible losses in connection with the loss or damage of property for reasons beyond the control of the parties to the obligation (case, force majeure). According to civil law, the decision on who is responsible for the possible adverse consequences of accidental death (damage) of things alienated by the owner (losses) is associated with determining the moment of transfer of ownership (operational management rights). R.S.G. passes to the acquirer simultaneously with the emergence of his right of ownership, unless otherwise provided by the contract. Consequently, according to the general rule, losses (risk) in connection with the loss or damage of a thing are borne by its owner, but the parties may establish a different procedure in the contract, for example, that the RCC. passes to the buyer from the moment of payment of its value. However, if the alienator has delayed acceptance, he bears the R.C.G. as a late party. The rules on contracts for work establish the principle of contractor risk. In accordance with this, in case of accidental destruction of the subject of the contract or the impossibility of completing the work through no fault of the parties, the contractor has no right to demand from the customer either remuneration or compensation for losses, and in case of accidental deterioration of the subject of the contract or delay in work, he is obliged to compensate the customer for the losses incurred.

A large legal dictionary. - M .: Infra-M. A. Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva. 2003 .

See what "RISK OF ACCIDENTAL DEATH" is in other dictionaries:

risk of accidental death- (property) the risk of possible losses in connection with the loss or damage of property for reasons beyond the control of the parties to the obligation (case, force majeure). Under civil law, the decision of the question of who is entrusted with possible ... ... Big Law Dictionary

RISK OF ACCIDENTAL DEATH- (property) - the risk of losses from the destruction (damage) of property, which occurred for reasons for which neither the debtor nor the creditor is responsible (accidental death). According to Soviet civil law, R. s. property, as a general rule, is borne by the owner. ... ... Soviet legal dictionary

The risk of a possible solution of losses in connection with the loss or damage of property for reasons beyond the control of the parties to the obligation (case, force majeure). According to civil law, the decision of the question of who is entrusted with possible unfavorable situations ... Financial vocabulary

- (English property risk) in civil law, the risk of possible losses from death, shortage or damage to property due to reasons beyond the control of the parties to the obligation, for example, as a result of a case ... Encyclopedia of Law

RISK OF ACCIDENTAL DEATH OF PROPERTY Legal encyclopedia

Direction of insurance against adverse consequences, against accidental loss or accidental damage to things (property). Accidental destruction of a thing means its loss, damage, damage as a result of circumstances not related to the fault of the owner of the thing ... Economic Dictionary

The risk of losses in connection with the loss or damage to property for reasons beyond the control of the parties' obligations. Dictionary of business terms. Academic.ru. 2001 ... Business glossary

RISK OF ACCIDENTAL DEATH, ACCIDENTAL DAMAGE, OR ACCIDENTAL DAMAGE TO PROPERTY- in accordance with Art. 212 of the Civil Code, the risk of accidental death, accidental damage or accidental damage to property is borne by its owner, unless otherwise provided by law or contract. Resolving the question of who is responsible for the possible ... ... Legal Dictionary of Modern Civil Law

Risk of accidental loss of property- (English property risk) in civil law, the risk of possible losses from death, shortage or damage to property for reasons beyond the control of the parties to the obligation, for example, as a result of an accident, force majeure. As a general rule, the risk ... ... Big Law Dictionary

The risk of possible incurring losses in connection with the loss or damage of property for reasons beyond the control of the parties to the obligation (case, force majeure). Under civil law, the question of who is responsible for possible ... ... Encyclopedic Dictionary of Economics and Law

Distribution of Risks of Accidental Loss or Accidental Damage to Things Between the Parties to the Agreement for Free Use

Under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for free temporary use to the other party (the borrower), and the latter undertakes to return the same thing in the condition in which it received it, taking into account normal wear and tear, or in the condition stipulated by the contract (clause 1 of article 689 of the Civil Code of the Russian Federation).

According to the above norm, the borrower is obliged to return exactly the same, and not the same thing, therefore the loan agreement must contain a description of not only generic, but also individual characteristics of the thing, as well as its condition, allowing, when returning the thing, to avoid disputes about its identification (see. Resolution of the Eighteenth AAC dated 19.09.2008 N 18AP-5925/2008).

As a general rule, the risk of accidental loss or accidental damage to property is borne by its owner, unless otherwise provided by law or contract (Article 211 of the Civil Code of the Russian Federation).

In Art. 696 of the Civil Code of the Russian Federation provides for an exception from the general rule: the borrower bears the risk of accidental death or accidental damage to the thing received for free use:

If the thing has died or was damaged due to the fact that he used it not in accordance with the contract of gratuitous use or the purpose of the thing;

Transferred it to a third party without the consent of the lender;

If, taking into account the factual circumstances, he could have prevented its death or damage by sacrificing his thing, but chose to keep his thing.

The imperative nature of the provisions of Art. 696 of the Civil Code of the Russian Federation excludes the right of the parties to the contract of gratuitous use to provide for a different distribution of risks of accidental loss or accidental damage to things (see the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 12.12.2005 N 10678/05).

In cases where the borrower is liable for accidental loss or accidental damage to a thing, the lender has the right to demand compensation for losses in the amount of the value of the lost thing or expenses necessary for its restoration (Article 15 of the Civil Code of the Russian Federation). At the same time, as a general rule, he is obliged to prove the totality of circumstances that entail the satisfaction of claims for compensation for losses: the presence of losses, their size, unlawful non-fulfillment (improper performance) of obligations by the counterparty under the contract, his fault, a causal relationship between the unlawful behavior of the inflictor of losses and the incurred consequences (see the resolution of the Seventeenth AAC dated 20.10.2008 N 17AP-7676/08).

At the same time, since the law imposes on the borrower the obligation to return the property received at the end of the period of gratuitous use, the existence of losses may be evidenced by the fact that the item has not been returned (see, for example, resolution of the Federal Antimonopoly Service of the West Siberian District of 11/13/2013 N F04-6852 / 13 ). Proof of the fact that the thing was lost (was lost) or damaged accidentally is the responsibility of the borrower (Article 65 of the Arbitration Procedure Code of the Russian Federation, Article 56 of the Code of Civil Procedure of the Russian Federation, see resolution of the Federal Antimonopoly Service of the Moscow District of 08.14.2013 N F05-9283 / 13). On the other hand, if the fact of accidental destruction of the thing (for example, as a result of a fire, the culprit of which has not been established) or its accidental damage is proven, the court may impose on the lender the obligation to prove the circumstances with which Art. 696 of the Civil Code of the Russian Federation binds the responsibility of the borrower for accidental loss or accidental damage to things (see the resolution of the Twelfth AAS dated 05.08.2015 N 12AP-6709/15).

By filing a claim for the borrower to reimburse the value of the lost or damaged thing, the lender must first of all prove that it was actually transferred to the borrower, as well as the technical condition of this property at the time of its transfer (which is important, in particular, for reimbursing the cost of restoring the thing in court) ). Therefore, it seems advisable, when transferring property for free use, to record in detail its condition in the act of acceptance and transfer (see in this regard, the decree of the FAS of the East Siberian District of 06/20/2013 N F02-2087 / 13).

Accidental damage or loss of property is such loss or damage when there is no fault of any person. Therefore, there is no one to recover from the loss of such property or the cost of repairing the damage.

Such cases include, for example:

• loss of property in a flood;
• destruction of things in a fire caused by a lightning strike;
• destruction of real estate caused by an earthquake.

General provisions of the Civil Code of the Russian Federation on the risk of accidental loss or damage to property

In accordance with Art. 211 Civil Code of the Russian Federation risk of accidental loss of property(hereinafter referred to as the SG risk) shall be borne by the owner, unless otherwise prescribed by law or by agreement of the parties.

The right of ownership as the complete domination of the owner over a certain thing presupposes the possession, use and disposal of such property. On the other hand, this domination is balanced by such unfavorable moments for the owner as:

• the burden of maintaining property;
• bearing the risk of SG property.

For example, by the decision of the CA of the West Siberian District of 07/19/2016 in case No. А27-16884 / 2015, the risk of the SG of a non-residential building that occurred as a result of an earthquake is assigned to its owner.

The risk of the SG passes to the new owner of the property from the moment the seller fulfilled the obligation to transfer the property (Article 495 of the Civil Code of the Russian Federation).

At the same time, when accepting the property, it is necessary to take actions to identify its poor quality. Otherwise, the goods are recognized as accepted, and the risk of the SG passed to the buyer (Resolution of the CA of the Moscow District of November 24, 2016 in case No. A40-234994 / 2015).

Imposition of the risk of destruction of property on the user

The legislator has provided for a number of cases when the risk of accidental loss of property bears its user:

• lessee under a finance lease agreement (Article 669 of the Civil Code of the Russian Federation);
• the borrower, if the thing was damaged by using it for other purposes or by another person to whom it was transferred in the absence of the owner's consent (Article 696 of the Civil Code of the Russian Federation).

Moreover, in the first case, the norm is dispositive and can be changed by the contract. In the second case, the norm is imperative and when trying to change it, the judicial authorities take the side of the borrower (Resolution of the CA of the Ural District of November 22, 2016 No. F09-110269 / 16 in case No. A76-30669 / 2015).

IMPORTANT! The risk of the SG is borne by the guilty party if the transaction was declared invalid under Art. 179 of the Civil Code of the Russian Federation.

Risk of loss of property during the construction of real estate

The law establishes the following dispositive rules:

• the risk of SG materials is borne by the party that provided them (Article 705 of the Civil Code of the Russian Federation);
• the risk of SG of the entire facility burdens the contractor until such facility is accepted by the customer (Article 741 of the Civil Code of the Russian Federation).

So, by the ruling of the Supreme Court of the Russian Federation dated January 29, 2016 No. 305-ES15-18966 in case No. A40-97910 / 2014, the position of the court of cassation was adopted, based on the death of the disputed object before its acceptance by the defendant and, therefore, before the risk of such object.

In case of delay in the acceptance of the object by the customer, the SG risk falls on the latter (clause 2 of article 705 of the Civil Code of the Russian Federation).

So, the risk of SG property is the flip side of ownership. The owner dominates the thing and in the absence of the fault of third parties in its damage or destruction, bears such a risk himself, making restoration and repair at his own expense.