1. If an obligation is terminated before the start of its execution by agreement of the parties or due to the impossibility of fulfillment (Article 416), the deposit must be returned.

2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit.

In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.

Comments on Article 381 of the Civil Code of the Russian Federation

1. Clause 1 of the commented article determines the fate of the deposit upon termination of the obligation before the start of its performance by agreement of the parties or due to the impossibility of performance (due to force majeure or other circumstances that arose not through the fault of the parties). In such a situation, the deposit is returned in the amount received, i.e. in single size. Thus, the deposit received by the seller of the car must be returned in a single amount if the car was destroyed or damaged by a flood before it was transferred to the buyer.

2. In para. Clause 1, paragraph 2 of the commented article sets out the essence of the security function of the deposit. It boils down to the fact that the party who gave the deposit, if it fails to fulfill the agreement, loses it. If the contract is not fulfilled by the party that received the deposit, it is obliged to pay the other party a double amount, i.e. return the received deposit amount and pay an additional amount equal to the deposit. It should be emphasized that this rule applies only in case of failure to fulfill obligations in general and does not apply to cases of improper performance, i.e. violation of only individual terms of the contract, when the overall obligation remains in force. In addition, these consequences are permissible only in relation to the party that committed the offense and is “responsible” for the failure to fulfill the contract. In other words, the loss of the deposit by one party (the one who paid the deposit) or payment of it in double amount by the other party (who received the deposit) is possible only if there are grounds for the liability of the relevant party. In this case, the rules of Art. 401 of the Civil Code of the Russian Federation on the grounds of liability, including the provisions of paragraph 3 of this article on the increased liability of the entrepreneur. The stated circumstances allow us to consider the deposit as one of the measures of liability for violation of an obligation.

3. By virtue of paragraph. 2, paragraph 2 of the commented article, simultaneously with the loss of the deposit given or its return in double amount, the obligation of the party responsible for failure to fulfill the contract remains to compensate the other party for losses incurred as a result. In other words, the deposit, as a general rule, does not serve as compensation (see commentary to Article 409). The loss of the deposit by the paying party or its payment by the counterparty in double amount does not entail the termination of the obligation and does not relieve the corresponding party from compensation for losses. In this case, it is assumed that the deposit is of an offset nature. Losses are compensated in the part not covered by the deposit, exceeding its amount. The presumption of the need to compensate for losses can be changed if the parties provide in the contract a condition excluding the possibility of compensation. In this case, the deposit plays the role of compensation.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

1. If the obligation is terminated before the start of its performance by agreement of the parties or due to the impossibility of performance, the deposit must be returned.

2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit.

In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.

§ 8. Security payment

(introduced by Federal Law dated 03/08/2015 N 42-FZ)

Comments on the article

1. In paragraph 1 comment. Art. The question of the fate of the deposit upon termination of the main obligation is resolved only for two cases.

It is apparently impossible to develop a general rule for other cases of termination of the main obligation (Chapter 26 of the Civil Code). When resolving the issue in each individual case, one should proceed from the functions (goals) of the deposit. As is known, the latter performs both the function of securing payment and the function of a measure of liability (see paragraph 3 of the commentary to Article 381), and therefore the creditor can keep it only for the specified purposes. In other words, he must, by virtue of law or contract, have the right either to receive payment under the contract or to apply liability measures to his counterparty.

In addition, unless the parties agree otherwise, the deposit must be returned in the event of termination of the main obligation by novation (clause 3 of Article 414 of the Civil Code).

2. Point 2 comments. Art. is devoted to the fate of the deposit in case of non-fulfillment of the contract. It should be emphasized that in the comment. We are talking specifically about the non-fulfillment of the contract, and not about its improper performance (on the fate of the deposit in the event of improper performance of the contract, see paragraph 4 of the commentary to Article 380 of the Civil Code).

3. Analysis of paragraph 2 comments. Art. allows us to classify the deposit, along with the penalty, as interim measures, which are also measures of liability. If the contract is not fulfilled, and the party who gave the deposit is responsible for this, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit. Ultimately, the party who is responsible for failure to fulfill the contract suffers property losses in the amount of the deposit. The deposit in this case is very similar to a fine (Article 330 of the Civil Code). More precisely, for an offset penalty (clause 1 of Article 394 of the Civil Code), since, having lost the deposit, the violator of the contract must compensate the other party for losses, offset by the amount of the deposit.

4. In the case described in paragraph 2 of the comment. Art., the main obligation is terminated on the basis of the analogous

1. If an obligation is terminated before the start of its execution by agreement of the parties or due to the impossibility of fulfillment (Article 416), the deposit must be returned.

2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit.

In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.

Commentary on Article 381 of the Civil Code of the Russian Federation

1. Before the start of performance or due to the impossibility of fulfilling the obligation, if the failure is caused by circumstances for which the parties cannot be held responsible, the deposit must be returned. The issue is resolved differently if there is fault of the party who received the deposit; she is obliged to return the deposit in double amount.

The law does not answer the question about the possibility of considering a deposit as compensation in the event of termination of the obligation by agreement of the parties. Interpretation of Art. 409 of the Civil Code leads to the conclusion that an obligation can be terminated by presenting compensation in return for execution, including the payment of money. The amount, terms and procedure for providing compensation are established by the parties by agreement. Thus, if the agreement of the parties defines the payment of a deposit as a method of terminating the obligation, this agreement is valid. Moreover, it should be assumed that the parties to the compensation agreement have the opportunity to apply the provisions of paragraph 2 of the commented article both in part and in full.

2. Failure to fulfill an obligation entails for the party that gave the deposit its loss once, and for the party that accepted the deposit - its loss twice, while, of course, the party responsible for the failure to fulfill the contract is obliged to compensate the other party for the losses incurred by it. Thus, another function of the deposit is revealed - penalty. If a party incurs losses from failure to fulfill an obligation, then the deposit is counted towards losses, unless otherwise provided by the agreement.

Another commentary on Article 381 of the Civil Code of the Russian Federation

1. The inclusion in paragraph 1 of the commented article of the words about the termination of the obligation “before the start of its fulfillment”, obviously, should be recognized as a mistake. After all, a deposit is a sum of money given by one of the contracting parties in payment of payments due from it under the contract. Thus, the transfer of a deposit is always a partial fulfillment of the obligation of one of the parties. In other words, with the transfer of the deposit, execution has already begun.

Apparently, in this case it is meant that the performance has not been started by the party who received the deposit. An agreement between the parties to terminate the obligation may provide for the return of the deposit. It may be established that it remains with the pledgee (this is similar to debt forgiveness (Article 415 of the Civil Code)). If the fate of the deposit is not determined by agreement, then it must be returned.

In accordance with Art. 416 of the Civil Code of the Russian Federation, an obligation is terminated by the impossibility of performance if it is caused by a circumstance for which neither party is responsible. The deposit must be returned. Naturally, the agreement of the parties may provide otherwise.

2. The rules provided for in paragraph 2 of the commented article are valid only in the event of failure to fulfill an obligation (in case of improper fulfillment of an obligation, they do not apply).

The party responsible for failure to fulfill the obligation loses the amount of the deposit. This is a measure of responsibility. Its peculiarity is that it applies regardless of whether the other party has incurred losses. Accordingly, there is no requirement to establish a causal link between the unlawful act and the losses.

The conditions for applying the liability measure in question are:

1) illegal behavior - violation of the subjective right of the counterparty under the contract;

2) the guilt of the offender (if in the appropriate case liability occurs regardless of the presence or absence of guilt, then this condition is not required (see also paragraph 6 of the commentary to Article 330 of the Civil Code)).

3. The rule established in paragraph. 2 paragraph 2 of the commented article is similar to the provisions on offset penalties (see paragraph 5 of the commentary to Article 330 of the Civil Code). Losses, if any, are reimbursed to the extent not covered by the deposit amount. The contract may provide that liability is limited to the loss of the deposit amount; damages are recovered in excess of the deposit amount. The corresponding agreement can be reached both when concluding an agreement secured by a deposit, when concluding an agreement on a deposit, and subsequently at any stage of the existence of an obligation regarding the deposit.

The agreement cannot provide that the party responsible for failure to fulfill the obligation is obliged to compensate for losses, and is exempt from liability in the form of loss of the deposit amount, since such a condition would contradict the imperative instructions contained in paragraph. 1 paragraph 2 of the commented article.

4. For decades, on the pages of legal literature, the point of view has almost completely dominated, according to which a deposit can be turned into compensation (used as compensation). The basis for such a statement is the possibility established by law, by agreement of the parties, to limit liability for failure to fulfill an obligation to the amount of the deposit (paragraph 2, paragraph 2 of the commented article). It is believed that, in essence, the deposit in this case represents a price by paying which one can waive the obligation.

Meanwhile, termination of the obligation by providing compensation can only occur by agreement of the parties. In order for the amount of the deposit to become compensation, it must be accepted as compensation by the party in respect of whom the obligation is not fulfilled. If we agree that in the situation under consideration, the deposit (more precisely, the amount of the deposit) is the price for deviation from the obligation, then this price (precisely as a payment for failure to fulfill the obligation) must be accepted by the other party.

The parties to the obligation may initially program the possibility of terminating the primary and accessory obligations by offsetting as compensation the amount previously transferred as a deposit, or a double amount of the deposit. Nothing prevents the parties from reaching the same agreement subsequently, during the period of existence of the main and accessory obligation relations.

Such programming presupposes that each of the parties has the obligation to choose: terminate the obligation by transferring an item, performing work, providing a service, etc. or loss of an amount equal to the deposit. In this case, the subject of the obligation is one, but the debtor has the right to replace it with a sum of money. The inclusion of such conditions in the contract turns the corresponding obligation into optional.

It should be especially emphasized that the point is not that the contract eliminates the possibility of collecting losses, but that the parties have the will to use a sum of money equal to the amount of the deposit as compensation.

The foregoing leads to important practical conclusions. Suppose a purchase and sale agreement has been concluded. This agreement is secured by a deposit, and the parties have established that the liability of the party that fails to fulfill the obligation is limited to the loss of the deposit amount. Can the seller refuse to transfer the goods by returning double the deposit? If we agree that such a deposit is compensation, then the answer will be positive. However, the buyer has the right not to accept the double amount of the deposit offered to him and demand that the thing be taken away from the seller (Article 398, paragraph 2 of Article 463 of the Civil Code).

In this situation, the amount of the deposit will not become compensation. If the buyer accepts the specified amount, then in this way he expresses his will to set it off as compensation. Therefore, the point is not in the terms of the contract limiting liability, but in the will of the parties to use or not to use the amount of the deposit as compensation.

In fairness, it should be noted that situations are likely when the contract eliminates the right to recover losses caused by failure to fulfill an obligation secured by a deposit, practically leading to the possibility of transforming the amount of the deposit into compensation (at the will of either party or one of them).

1. If the obligation is terminated before the start of its execution by agreement of the parties or due to the impossibility of execution (), the deposit must be returned.

2. If the party that gave the deposit is responsible for the failure to fulfill the contract, it remains with the other party. If the party who received the deposit is responsible for non-fulfillment of the contract, he is obliged to pay the other party double the amount of the deposit.

In addition, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, minus the amount of the deposit, unless otherwise provided in the contract.

Commentary on Article 381 of the Civil Code of the Russian Federation

1. Upon termination of the obligation secured by a deposit, the deposit shall be returned. The security effect of the deposit does not occur. Termination of an obligation by agreement of the parties in the sense of clause 1 of the commented article should be understood not only in cases of concluding an agreement to terminate a contractual relationship (clause 1 of Article 450 of the Civil Code), but also other contractual methods of terminating an obligation, namely: provision instead of performance (Article 409 Civil Code), novation (Article 414 Civil Code), debt forgiveness (Article 415 Civil Code). The parties may agree to leave the deposit amount with the deposit recipient in whole or in part.

2. In para. Clause 1, paragraph 2 of the commented article reveals the security function of the deposit. Since it is associated with property losses for the party who violated the obligation, we can talk about the punitive effect of the deposit. For a penalty action to occur, a factual composition is required, which includes three elements: 1) issuance of a deposit; 2) conclusion of an agreement on the deposit; 3) failure to fulfill the obligation secured by the deposit.

The requirement to return the deposit amount in double amount (in the part exceeding the amount of the deposit issued) is similar in its legal nature to a claim for a penalty. Therefore, the court, applying by analogy Art. 333 of the Civil Code, may reduce the amount collected to the extent that exceeds the amount of the deposit issued (for example, when the amount of the deposit is 80% of the contract amount, and the amount of the deposit is double the amount - 160%).

Requirements par. 1 item 2 art. 381 are dispositive. Therefore, the parties can link the penal effect of the deposit with improper performance of the main obligation, and also change the penal effect of the deposit (for example, stipulate that in the event of non-fulfillment or improper performance of the main obligation by the deposit recipient, the latter returns the deposit in an amount other than that provided by law). In addition, they can enter into an agreement on a unilateral deposit, i.e. a deposit that secures the obligation of only one party.

3. From para. It follows from paragraph 2 of the commented article that the deposit, unless otherwise agreed by the parties, also performs a compensatory function - it is counted towards compensation for losses. In case of violation of the obligation by the depositor, the losses of the depositor are compensated only by the penalty part of the refunded amount, i.e. exceeding the amount of the previously issued deposit.