It is important for individual entrepreneurs and founders of legal entities to understand the difference between joint and several liability and subsidiary liability. These are two types of property obligations provided for by Russian civil legislation. However, there are a number of serious differences between them. The main characteristics of these types of liability and the areas of their application are discussed in this article.

Characteristics of types of property obligations

Before examining in detail what the difference is between joint and several liability and subsidiary liability, it is necessary to describe both concepts in detail. The main common feature of these terms is their relation to the civil law sphere and their use in resolving property issues.

A common feature of these terms is their relationship to the civil law sphere.

What is “joint and several liability”

The first type of civil liability that we will consider is joint and several. This is a broad concept that implies the general, collective responsibility of a group of persons that arose during the joint conduct of business. If losses are caused to another party, for example, creditors, persons jointly and severally liable will compensate them through joint efforts.

An important feature of this type of obligation is the right of the creditor to independently select a person or several persons among the participants who will be obliged to repay the debt. That is, he can demand payment of the debt only from one person, for example, from one of the founders of the company, or maybe from a group of people, for example, from all the founders.

In some cases, debtors are allowed to independently distribute shares of the debt within the parties to the joint claim. Also, if the creditor makes claims to only one person, the debtor has the right to demand compensation for personal losses from other accomplices.

The legislative basis for this concept in the Russian Federation is enshrined in Articles 322 and 323 of the Civil Code.

In particular, these articles clarify that the creditor has the right to demand from the joint participants the full repayment of the obligation.

This is a narrower concept that describes the obligation of a third party to repay a debt to a creditor in a situation where the borrower is unable to pay it. In practice, the term “guarantee” is often used to simplify the name of subsidiary liability.

An important feature of this type of liability is that the third party compensating for losses may either be the culprit for their occurrence or have nothing to do with them at all. As a rule, the source of subsidiary liability is a “guarantee” agreement. Article 399 of the Civil Code of the Russian Federation is devoted to this type of property relationship.

What makes shared liability different?

The types of liability that exist in the Russian practice of property relations are not limited to the above-mentioned joint and several and subsidiary ones. It is important to know another concept - “shared responsibility”. This is the name for a type of obligation in which the share of responsibility of each debtor (defendant, borrower) is set at a specific amount. This share is determined by agreement or legal norms.

It is obvious that with this nature of obligations, the lender can make claims against each of the borrowers only within the limits of his responsibility. It is impossible to compensate for losses caused by one borrower at the expense of another borrower under any circumstances.

Solidary and subsidiary liability are not opposite and do not exclude each other.

Examples of obligations

To more specifically imagine how joint and several liability differs from subsidiary liability, let's look at several specific practical examples. Also keep in mind that these types of obligations are not opposite and do not exclude each other.

A classic example of a combination of two types of liability is a general partnership. Currently, this form of management is almost never used, but its participants jointly and severally bear subsidiary liability - this means that a participant in the partnership, even if he is not its founder, is liable for the property obligations of the collective, even if they arose before he joined the organization.

Example of joint claims

In the economic sphere, the most obvious example of this type of obligation is compensation of losses to creditors in the event of bankruptcy of an enterprise by all founders of a legal entity. That is, when an organization is liquidated through bankruptcy, each of its founders risks losing part of their own funds or property in order to pay debts to creditors.

In the field of regulation of offenses, the concept of joint and several claims is also used quite often. For example, if a group of people causes material losses to a person or organization, each group member will compensate them in an equal or different amount (depending on the proven degree of participation).

IN in this case The creditor has the right to independently choose which of the debtors to contact and in what volume to demand repayment of the loan. In fact, he may demand damages from any co-partner in full until the debt is fully repaid by one or more of them.

Example of subsidiary obligations

Good and clear An example of this type of property relationship is a guarantee when issuing a loan. or mortgages. In a situation where the debtor is unable to fulfill his financial obligations, his guarantor will have to pay the debt to the bank.

Sometimes there are situations where the court finds that one person or one organization somehow caused the bankruptcy of another person or organization. In this case, the culprit will also be held vicariously liable.

This type of obligation does not always arise as a result of signing an agreement. In the same case of bankruptcy of an enterprise, liability for the founders and other responsible persons will occur only if the main debtor is unable to fulfill his obligations, but without any contract or agreement.

In the area of ​​crime, the function of guarantee is always performed by the parents of minor children. In the case where a child has caused any material damage, due to the legal incapacity of the culprit, compensation for damages is the duty of the parents or guardians, again without any agreement.

The creditor has no right to directly demand repayment of the debt from the guarantor, until the borrower refuses in writing to fulfill his financial obligations. This type of responsibility assumes a significant role of the court and appropriate documentation of all procedures. On the other hand, subsidiary liability actually guarantees the creditor the return of funds in full.

Vicarious liability actually guarantees the creditor the return of funds in full.

Example of shared liability

Shared liability also has many application aspects. Most often it is used in simple partnerships, in relation to owners of residential premises and in similar areas. In the field of business and entrepreneurship, shared liability is established for employees who cause material damage.

Summary - main features of each type of obligation

To consolidate our understanding of the characteristics of each type of obligation, let us once again briefly highlight their main parameters. The common features of all three types of liability are their civil nature (regulated by the Civil Code), widespread use in the field of regulation of property relations, and also their non-mutually exclusive nature (different types of liability can coexist within the same case).

Basic parameters of a joint and several claim

1. It comes from the joint activities of people or founders of an organization who have assumed common obligations.
2. Joint and several debtors are liable to the creditor until full repayment of the debt.
3. The creditor has the right to contact one or several accomplices at once at his own discretion.
4. A participant in a collective obligation who has paid off a debt may demand repayment of personal losses from other partners.

Main parameters of a subsidiary obligation

1. Occurs in a situation where the debtor is unable to fulfill his obligations.
2. It can arise either by contract or be considered natural (for example, parental liability for material damage caused by children).
3. The creditor has the right to demand compensation for the debt from the participant in subsidiary liability only if the main debtor refuses to pay the debt.
4. Widely used by banks when issuing loans for large sums of money.
5. For greater clarity, the term “guarantee” can be substituted.

Basic parameters of shared liability

1. The obligations of each participant are known in advance and are defined in exact scope.
2. Accordingly, the creditor can demand repayment of debt from each participant only within the limits of his share.
3. It is widely used in the housing and communal services sector, in various types of partnerships, as well as for compensation of material losses by guilty employees of organizations.

Conclusion

Regulation of the sphere of property relations involves the use of different types of liability - joint, subsidiary and shared. Each type of relationship differs in application parameters, obligations imposed on participants and the possibilities of action of creditors. The legislative basis in all three cases is the Civil Code.

3. Shared, joint and subsidiary liability are differentiated according to the signs of the plurality of persons on the obligated party and the method of fulfilling protective duties.

Plurality of persons on the debtor's side in protective relations can arise when there is a plurality of persons in a contractual obligation, when harm is jointly caused by several persons in the non-contractual sphere, when a transaction is declared invalid if several persons participated in such a transaction on the debtor's side.

Shared and joint liability arises according to the rules of Art. 321-325 Civil Code of the Russian Federation, subsidiary - Art. 399 of the Civil Code of the Russian Federation.

Shared responsibility in the contractual sphere is that each of the obligated co-debtors is liable in an amount commensurate with his share in the obligation. By virtue of Art. 321 Civil Code, the shares are assumed to be equal. For example, if three citizens borrowed 3 thousand rubles from S., then each of them is obliged to repay the principal debt in the amount of 1 thousand rubles, as well as interest for the use of money and a penalty for late repayment based on his share. Since Art. 321 of the Civil Code of the Russian Federation is dispositive; debtors can determine unequal shares by agreement.

In the non-contractual sphere, shared liability arises among parents (adoptive parents, guardians of different children) for damage caused by several minors (under 14 years of age). The parents of each of the direct perpetrators are held accountable for their own guilty behavior, expressed in an inappropriate attitude towards the upbringing or supervision of the child, and therefore are held accountable in proportion to their share of the guilt. Shared liability also arises in cases where harm is a consequence of acts of guilty unlawful behavior of several persons, but there is no reason to consider them co-directed to jointly cause harm. Thus, if an official was negligent in carrying out his activities, which was taken advantage of by thieves of the company’s property, then the official and the thieves cannot be considered as acting jointly.

Joint responsibility(Article 322 of the Civil Code of the Russian Federation) is that any of the joint debtors (causers) is obliged, at the request of the injured party, to assume the burden of responsibility to the extent that it is assigned to him by the injured party (in full, in part of the debt) . If it is impossible to obtain compensation from one debtor, the creditor may assign the rest of the debt to the other or all remaining debtors.

Joint and several liability arises in the contractual sphere if the solidarity of the obligations of the defendants is provided for by the contract or follows from the law.

The law provides for solidarity when the subject of the agreement is indivisible, as well as in obligations related to entrepreneurial activity (Article 322 of the Civil Code of the Russian Federation). Norm clause 2 art. 322 of the Civil Code of the Russian Federation is dispositive: the law, other regulations or terms of the obligation may establish shared liability.

Legislative acts may establish other cases of the emergence of joint and several obligations of debtors. For example, by virtue of paragraph 3 of Art. 363 of the Civil Code of the Russian Federation, the guarantor, as a general rule, is liable for the debtor’s violations jointly with the latter. This norm is dispositive. The law or contract may provide for the subsidiary liability of the guarantor.

In the non-contractual sphere, joint liability arises for persons who jointly caused harm. Joint causation involves the actions of several persons co-directed to achieve the same goal. This goal may be the very infliction of harm through intentional actions or another goal, the achievement of which is associated with the occurrence of harm to another subject (in case of negligence in the forms of negligence or arrogance). This could be an accidental injury to a third party through joint actions, such as a car collision.

In case of joint liability, one of the debtors (causers), who has compensated for the losses and paid the penalty in full (who has compensated for non-contractual damage), acquires the right of recourse against the others. In a recourse obligation, co-debtors are liable to the new creditor in the amount of their shares of compensation. However, if one of the debtors in a recourse obligation does not pay its share to the new creditor, this share is distributed in equal amounts between the new creditor and the remaining debtors (subclause 2, clause 2, article 325 of the Civil Code of the Russian Federation). So, if Sidorov compensated for the damage caused by the joint actions of Ivanov, Sidorov, Pakhomov in the amount of 6 thousand rubles, Ivanov and Pakhomov must return 2 thousand rubles to him in recourse. If it is impossible to recover Pakhomov’s share, Sidorov has the right to recover from Ivanov, in addition 2 thousand rubles, another 1 thousand rubles of debt, i.e. 1/2 share of Pakhomov.

Vicarious liability. Vicarious is the liability that a person bears in accordance with the law, other legal acts or the terms of the obligation for violations committed by the main debtor (or direct causer), in addition to the liability of the latter. The features of this type of responsibility include:

1) it is imposed on a person who is not a violator by virtue of a law (another legal act) or an agreement or other obligation between this person and the creditor of the principal debtor;

2) it is additional: claims to the person bearing subsidiary liability may be presented by the creditor (victim) after the same demands were presented to the main debtor (causer), but were either not satisfied by him, or by the creditor (victim) within a reasonable time did not receive a response from the main debtor to the demands presented. The creditor, in addition, should take the necessary measures to impose liability on the main debtor: use the possibility of indisputable collection of the amount, if it exists, take measures to offset the counterclaim against the main debtor;

3) the claims of the creditor (victim) are satisfied in the amount that the main debtor did not cover from his property;

4) an additional obligation within which a person is subject to subsidiary liability, as a rule, exists within certain time limits;

5) as a general rule, the person who has satisfied the subsidiary claims has the right of recourse to the main debtor (causer).

Vicarious liability may be assigned to the guarantor in accordance with the agreement between the creditor of the principal debtor and the guarantor. By law, it is imposed on parents, guardians and adoptive parents for harm caused by minor children (from 14 to 18 years old). The peculiarity of the responsibility of parents (guardians) is that they are responsible, although subsidiarily, for their own fault and do not have the right of recourse against the causer of harm. By virtue of the law, the Russian Federation bears subsidiary liability for the debts of state-owned enterprises, provided that the property of the enterprise itself is insufficient (clause 5 of Article 115 of the Civil Code of the Russian Federation).

According to the general rule (clause 3 of Article 399 of the Civil Code of the Russian Federation), a person bearing subsidiary liability is obliged to warn the main debtor about the demands made against him. If a claim is filed against him, he is obliged to involve the main debtor in participating in the case. If these obligations are violated, the principal debtor may raise against his recourse claims all the same objections as against the claims of the creditor.

The responsibility of the guarantor is of a special nature. Being subsidiary in nature, it is implemented within the framework of the obligation between the guarantor and the beneficiary, regardless of the main obligation secured by the guarantee. The guarantor's liability for unlawful actions of the principal is limited to the terms of the guarantee obligation and the amount specified in the guarantee (Articles 370, 376, paragraph 1 of Article 377 of the Civil Code of the Russian Federation). 4. Liability of the debtor for the actions of third parties. By virtue of Art. 313 of the Civil Code of the Russian Federation, the fulfillment of an obligation may be entrusted to a third party if the law, other legal acts, conditions or the essence of this legal relationship does not imply the obligation of the debtor to fulfill it personally. The third party is not a party to the obligation; it acts only as its executor. As a general rule, if a third party fails to fulfill an obligation or performs it improperly, liability is assigned to the debtor. Thus, a contractor may engage a subcontractor to perform certain types of work. For untimely or improper performance of his work, the contractor is responsible to the customer (Article 706 of the Civil Code of the Russian Federation).

However, the law may establish that liability is borne by a third party - the direct executor. So, by virtue of paragraph 1 of Art. 28 of the Civil Code of the Russian Federation, transactions on behalf of minors are carried out by their parents, adoptive parents and guardians, and some types - by the minors themselves (clause 2 of Article 28). The execution of transactions whose subjects are minors is entrusted to legal representatives. They are legally responsible for violation of obligations arising from such transactions.

In the non-contractual sphere, liability for the actions of third parties arises only from the law and is associated with special cases when it is necessary to distinguish between the responsible person and the direct cause. An example of liability for the illegal actions of a direct perpetrator is the state’s obligation to compensate for damage caused by officials of the bodies of inquiry, preliminary investigation, prosecutor’s office and court as a result of violations of the law during the investigation, trial or suppression of an administrative offense (Clause 1 of Article 1070 of the Civil Code of the Russian Federation) .