The first and subsequent liens are how the requirements are satisfied. Civil Code of the Russian Federation (Civil Code of the Russian Federation)

New edition of Art. 342 Civil Code of the Russian Federation

1. In cases where the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders.

The seniority of pledges can be changed:

agreement between mortgagees;

agreement between one, several or all mortgagees and the pledgor.

In any case, these agreements do not affect the rights of third parties who are not parties to these agreements.

2. Subsequent pledge is allowed unless otherwise provided by law.

If a previous pledge agreement provides for the conditions under which a subsequent pledge agreement may be concluded, such pledge agreement must be concluded in compliance with the specified conditions. If these conditions are violated, the previous pledgee has the right to demand compensation from the pledgor for losses caused by this.

3. The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of property, provided for in paragraph 1 of Article 339 of this Code, and is responsible for losses caused to subsequent pledgees as a result of failure to fulfill this obligation, unless he proves that the pledgee knew or should have known about previous pledges .

4. The pledgor who has entered into a subsequent pledge agreement must immediately notify the pledgeholders of the previous pledges and, at their request, provide information about the subsequent pledge provided for in paragraph 1 of Article 339 of this Code.

5. If a subsequent pledge agreement is concluded in violation of the conditions stipulated for it by the previous pledge agreement, which the pledgee under the subsequent agreement knew or should have known, his claims against the pledgor are satisfied taking into account the terms of the previous pledge agreement.

6. A change in a previous pledge agreement after the conclusion of a subsequent pledge agreement, if the subsequent pledge agreement was concluded in compliance with the conditions provided for by the previous pledge agreement, or such conditions were not provided for by the previous pledge agreement, does not affect the rights of the subsequent pledgee, provided that such a change entails deterioration of the security for his claim and was made without the consent of the subsequent mortgagee.

Commentary to Art. 342 Civil Code of the Russian Federation

Arbitrage practice.

The mortgagor and the mortgagee have the right, on the basis of one agreement on the mortgage of one real estate, to ensure the fulfillment of mutually independent obligations arising from several independent agreements. According to paragraph 1 of Article 43 of the Mortgage Law, property pledged under a mortgage agreement to secure the performance of one obligation (previous mortgage) may be pledged to secure the performance of another obligation of the same or another debtor to the same or another mortgagee (subsequent mortgage) ( information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 N 90).

Another comment on Art. 342 of the Civil Code of the Russian Federation

1. Paragraph 1 of the commented article refers to situations where the pledged property is pledged several times. In this case, the general rule applies according to which the claims of subsequent mortgagees are satisfied only after the claims of previous mortgagees have been satisfied.

2. Paragraph 2 of the commented article allows for a subsequent pledge, if it is not prohibited by previous pledge agreements. This provision is explained by the fact that the value of the pledged property, as a rule, significantly exceeds the amount of debt under the main obligation secured by the pledge, and the claims of a subsequent pledgee can be satisfied from the value of the pledged item after the claims of the previous pledgee have been satisfied.

In the event that the pledgee does not want to take the risk and does not give permission for a subsequent pledge, such permission must be included in the pledge agreement. A note about the impossibility of a subsequent pledge must be made when registering the pledge agreement in cases where such registration is provided (pledge of real estate, vehicles). However, the right of subsequent pledge may also be limited by a regulatory act. Thus, according to clause 4.3 of the Order of the State Customs Committee of the Russian Federation of February 22, 1994 No. 71 “On the use of collateral by customs authorities” (BNA. 1994. No. 7), subsequent pledge of goods and vehicles pledged to secure obligations to customs authorities is prohibited.

3. In cases where previous pledge agreements do not prohibit subsequent pledges, the legislator imposes the obligation on the pledgor to inform each subsequent pledgee of information about all existing pledges of this property. If the pledgor has not done this, the agreement on the subsequent pledge is considered valid, but the pledgor is obliged to compensate for possible losses incurred by any of the pledgees due to the fact that he was not aware of the previous pledge agreements.

A subsequent pledge may affect the interests of the previous creditor-mortgagee if the terms of the subsequent creditor's claims come earlier than those of the previous one, and the subsequent pledgee insists on the sale of the pledged property if the main obligation - timely repayment of the debt to the subsequent pledgee - is not satisfied. The sale of the pledged property leads to the termination of the pledge. The interests of the previous creditor will be respected if the amount of proceeds from the sale of the pledged property is distributed among the creditors as a pledge.

1. If the property that is pledged becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders.

2. Subsequent pledge is allowed if it is not prohibited by previous pledge agreements.

3. The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of this property, provided for in paragraph 1 of Article 339 of this Code, and is responsible for losses caused to pledgees by failure to fulfill this obligation.

4. In the event of foreclosure on the pledged property on claims secured by a subsequent pledge, early fulfillment of the obligation secured by the pledge may be simultaneously demanded and foreclosure on this property may also be made on claims that are secured by the previous pledge and the deadline for filing for foreclosure has not yet arrived. If the pledgee under the previous pledge agreement has not exercised this right, the property that has been foreclosed on claims secured by the subsequent pledge passes to its acquirer as encumbered by the previous pledge.

1. In cases where the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders.

The seniority of pledges can be changed:

agreement between mortgagees;

agreement between one, several or all mortgagees and the pledgor.

In any case, these agreements do not affect the rights of third parties who are not parties to these agreements.

2. Subsequent pledge is allowed unless otherwise provided by law.

If a previous pledge agreement provides for the conditions under which a subsequent pledge agreement may be concluded, such pledge agreement must be concluded in compliance with the specified conditions. If these conditions are violated, the previous pledgee has the right to demand compensation from the pledgor for losses caused by this.

3. The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of property, provided for in paragraph 1 of Article 339 of this Code, and is responsible for losses caused to subsequent pledgees as a result of failure to fulfill this obligation, unless he proves that the pledgee knew or should have known about previous pledges .

4. The pledgor who has entered into a subsequent pledge agreement must immediately notify the pledgeholders of the previous pledges and, at their request, provide information about the subsequent pledge provided for in paragraph 1 of Article 339 of this Code.

5. If a subsequent pledge agreement is concluded in violation of the conditions stipulated for it by the previous pledge agreement, which the pledgee under the subsequent agreement knew or should have known, his claims against the pledgor are satisfied taking into account the terms of the previous pledge agreement.

6. A change in a previous pledge agreement after the conclusion of a subsequent pledge agreement, if the subsequent pledge agreement was concluded in compliance with the conditions provided for by the previous pledge agreement, or such conditions were not provided for by the previous pledge agreement, does not affect the rights of the subsequent pledgee, provided that such a change entails deterioration of the security for his claim and was made without the consent of the subsequent mortgagee.

Commentary to Art. 342 Civil Code of the Russian Federation

1. The same property may be pledged more than once and to secure different obligations. In paragraph 1 of the commented article, the so-called principle of seniority is enshrined in this regard: the claims of subsequent mortgagees are satisfied after the demands of previous mortgagees.

2. If a subsequent pledge is prohibited by previous pledge agreements and nevertheless the pledgor transfers the pledged property into a subsequent pledge, then the courts will recognize such transactions as invalid (void) as contrary to the law (Article 168 of the Civil Code).

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See, for example: Resolutions of the Federal Antimonopoly Service of the Volga Region dated February 18, 2008 N A49-5604/07; dated March 4, 2009 N A06-2886/2008; FAS Moscow District dated June 13, 2007 N KG-A40/5161-07; dated July 10, 2009 N KG-A40/4446-09; dated September 25, 2009 N KG-A40/9493-09, as well as the Determination of the Supreme Arbitration Court of the Russian Federation dated October 24, 2007 N 11439/07.

3. If property that has previously been pledged to someone is pledged, then the security of the obligation is reduced, or even reduced to zero, due to the fact that the first (original) pledgee has an advantage (principle of seniority). Therefore, when accepting property as collateral, it is important to know that it has not previously been mortgaged.

The obligation of the pledgor to inform the pledgee about previous pledge agreements seems self-evident. If real estate is pledged, the pledgee can easily check whether there are any previous pledges by obtaining an extract from the Unified State Register of Rights to Real Estate and Transactions with It. If we are talking about a pledge of movable property, then it would seem that the pledgee (potential pledgee) can find out about existing pledge agreements by reading the book of pledges. Pledgors who are legal entities, as well as individuals registered as individual entrepreneurs (Article 18 of the Pledge Law) are required to maintain such a book. As a general rule, such a book cannot be trusted, since the pledgor may or may not keep one. Moreover, you can each time create a new book of pledges “for each pledgee”, without mentioning in it the previously arisen pledge relationships.

The obligation of the pledgor to inform each subsequent pledgee about all existing pledges of this property is secured by a sanction: the pledgor is responsible for losses caused by failure to fulfill this obligation (clause 3 of the commented article, clause 2 of Article 18 of the Pledge Law). It appears that failure to fulfill this obligation in itself cannot lead to losses for the pledgee. It leads to a weakening of the security of the main obligation or to a complete lack of security. And these circumstances arise not as a result of the pledgee’s failure to fulfill his information obligation, but due to the fact that there are previously established collateral relations.

The law's indication of the possibility of recovering damages in this case is declarative.

4. Clause 4 of the commented article specifies the principle of seniority enshrined in clause 1 of this article. If a subsequent mortgagor has filed a demand to foreclose on the pledged property, then the previous mortgagee may, at his option:

a) demand early fulfillment of the obligation secured by the pledge and (including) foreclosure on the subject of the pledge in order of seniority;

5. In the Mortgage Law, subsequent mortgages are addressed in Chapter. VII, combining Art. Art. 43 - 46. In particular, it is established here that if a previous mortgage agreement provides for the conditions under which a subsequent mortgage agreement can be concluded, the latter must be concluded in compliance with these conditions (paragraph 2, paragraph 2, article 43).

A subsequent mortgage agreement, concluded despite the prohibition established by the previous mortgage agreement, may be declared invalid by the court at the claim of the mortgagee under the previous agreement, regardless of whether the mortgagee under the subsequent agreement knew about such prohibition. If a subsequent mortgage is not prohibited, but the subsequent agreement is concluded in violation of the conditions provided for by the previous agreement, the mortgagee’s claims under the subsequent agreement are satisfied to the extent that their satisfaction is possible in accordance with the terms of the previous mortgage agreement (clause 3 of Article 43 ). The mortgagor is obliged to inform each subsequent mortgagee, before concluding an agreement with him on a subsequent mortgage, information about all existing mortgages on this property. Failure of the mortgagor to fulfill this obligation gives the mortgagee under the subsequent agreement the right to demand termination of the agreement and compensation for losses caused, unless it is proven that he could obtain the necessary information about previous mortgages on the basis of Art. 26 of the Law on Mortgages from data on their state registration (clause 1 of Article 44).

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. Civil law norms contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.

The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, Section III “General part of the law of obligations”). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law (various types of property and property rights), transactions, representation , limitation of actions, property rights, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, came into force on March 1, 1996. It is entirely devoted to Section IV of the code “Certain types of obligations”. Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, retroactive reference, and establishing the content of norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions - norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, fundamentally changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.

On July 18, 2008, Decree of the President of the Russian Federation No. 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. Civil Code of Russia - its role in the development of a market economy and the creation of a rule of law // Bulletin of Civil Law. 2007. N 2. T.7.

1. In cases where the pledged property becomes the subject of another pledge to secure other claims (subsequent pledge), the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgeholders.

The seniority of pledges can be changed:

agreement between mortgagees;

agreement between one, several or all mortgagees and the pledgor.

In any case, these agreements do not affect the rights of third parties who are not parties to these agreements.

2. Subsequent pledge is allowed unless otherwise provided by law.

If a previous pledge agreement provides for the conditions under which a subsequent pledge agreement may be concluded, such pledge agreement must be concluded in compliance with the specified conditions. If these conditions are violated, the previous pledgee has the right to demand compensation from the pledgor for losses caused by this.

3. The pledgor is obliged to inform each subsequent pledgee of information about all existing pledges of property, provided for in paragraph 1 of Article of this Code, and is responsible for losses caused to subsequent pledgees as a result of failure to fulfill this obligation, unless he proves that the pledgee knew or should have known about the previous pledges.

4. The pledgor who has entered into a subsequent pledge agreement must immediately notify the pledgeholders of the previous pledges and, at their request, provide information about the subsequent pledge, provided for in paragraph 1 of Article of this Code.

5. If a subsequent pledge agreement is concluded in violation of the conditions stipulated for it by the previous pledge agreement, which the pledgee under the subsequent agreement knew or should have known, his claims against the pledgor are satisfied taking into account the terms of the previous pledge agreement.

6. A change in a previous pledge agreement after the conclusion of a subsequent pledge agreement, if the subsequent pledge agreement was concluded in compliance with the conditions provided for by the previous pledge agreement, or such conditions were not provided for by the previous pledge agreement, does not affect the rights of the subsequent pledgee, provided that such a change entails deterioration of the security for his claim and was made without the consent of the subsequent mortgagee.