The concept and conditions of tort liability.

Career and finance 16.07.2021

The question of the basis and conditions of civil liability in general and tort liability in particular is one of the most difficult, and therefore controversial in the theory of civil law. Often the terms "foundation" and "conditions" are considered as synonyms, although the prevailing opinion is that these are different concepts, which can be distinguished in the most general way as follows: conditions are those requirements of the law that the foundation must meet.

As already noted, the obligations due to the infliction of harm are not homogeneous and can be classified according to various criteria. In this case, it is important to classify depending on whether as a result of which - illegal or lawful - actions harm was caused. Harm caused as a result of illegal behavior, according to Art. 1064 of the Civil Code is subject to compensation in full by the person who caused the harm. Obligations to compensate for unlawfully caused harm are based on a civil offense, which, in turn, is a type of a more general category of offense.

It is easy to see that it is also the basis of tort liability and must meet certain conditions established by law, which together form the composition of the offense.

Thus, the basis of tort liability should be recognized as the fact of causing harm to the property of a citizen or legal entity or non-property benefits - the life or health of a citizen.

Some authors consider an offense to be the basis of civil law, including tort liability. But this does not take into account that it is possible to qualify certain behavior as an offense only if the conditions of liability provided for by law are established. The basis of liability justifies the possibility of its application, but subject to the conditions established by law. Thus, the basis of tort liability is not an offense, but only the fact of causing harm. The conditions necessary for recognizing this fact as an offense (wrongfulness, causation, guilt) must be discovered (established) in the case of application of measures of responsibility (compensation for harm).

Harm caused by lawful actions, as a general rule, is not compensated, unless otherwise provided by law, for example, caused in a state of emergency. The obligation to compensate for lawfully caused harm cannot be considered as a measure of responsibility, since it is devoid of the content, grounds and functions of responsibility. The obligation to compensate for the lawfully caused harm rests with the tortfeasor because there are no other ways to protect the rights and interests of the victim. Therefore, the legislator, implementing the principle of preferential protection of one of the conflicting interests, imposes on the tortfeasor the obligation to compensate him, since the latter retained his own or others' interests by violating the rights of the victim. Compensation for lawfully caused harm is a measure of protection of civil rights, the basis for which is the fact of lawful infliction of harm. In addition, for the emergence of obligations to compensate for such harm, it is necessary to have a special law providing for the obligation to compensate for the lawfully caused harm. A causal relationship must also be established between the actions of the tortfeasor of legitimate harm and the resulting harm. There is no reason to talk about the guilt of the perpetrator of such harm, since only unlawful, but not lawful behavior can be guilty.

Other opinions have been expressed in the legal literature regarding the basis of tort liability. So, V.V. Vitryansky considers the violation of subjective civil rights, and not the composition of a civil offense, to be the basis for civil liability, noting that it is unreasonable to extend the provisions of criminal law on the composition of a crime to civil law relations, since this, in fact, "introduces into civil law, which has centuries-old traditions, criminal -legal teachings. However, later V.V. Vitryansky notes that for the application of civil liability, it is necessary to have the conditions provided for by law - violation of subjective civil rights, the presence of losses (harm), a causal relationship between the violation of rights and losses (harm), the guilt of the offender. In other words, the same conditions of civil liability are called, which constitute the composition of the offense criticized by him, and the violation of subjective civil rights is nothing more than unlawful behavior that causes harm.

V.S. Em believes that the basis of tort liability is not an offense, but only the fact of causing harm. As already noted, the infliction of harm may be lawful, and then in most cases the obligation to compensate for it does not arise at all. In addition, the author further points out that “the conditions necessary for recognizing this fact as an offense (wrongfulness, causation, guilt) must be discovered (established) in the case of applying measures of responsibility (compensation for harm).

In the literature, the view that harm is one of the conditions of tort liability has become widespread. Such a view contains a contradiction in itself: if there is harm, then it is incorrect to say that it (harm) is a condition of responsibility for this harm. In fact, harm (presence of harm) is, as already mentioned, the basis for the possible application of liability to a person who violated the subjective right of another person.

(Kuznetsova L. V.) (“Statute”, 2010)

DISPUTE ISSUES OF TORT LIABILITY

L. V. KUZNETSOVA

Kuznetsova Lyubov Viktorovna Ph.D. in Law, Deputy General Director for Legal Affairs of CJSC Slavimpex. She was born on December 27, 1976 in Samara. Graduated from the Faculty of Law of Samara State University. In 2003, she defended her dissertation at Kazan State University for the degree of candidate of legal sciences. Specialist in corporate and contract law. The main range of scientific interests: issues of implementation and protection of civil rights, corporate law, law of obligations. Author of more than 20 scientific publications in leading legal publications, including the monograph “Priority rights in the civil law of Russia” (2007), articles “Protection of preemptive rights in civil law: problems of theory and law enforcement” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2005), “Foreclosure on securities” (Law. 2006), “Exclusion of a participant from a limited liability company” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006), “Controversial issues of termination of an obligation by the coincidence of the debtor and creditor in one person” (Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008).

Liability for a tort, that is, non-contractual liability for an offense expressed in causing harm, is one of the types of civil liability along with, for example, contractual or conditional. At the same time, tort liability has the most pronounced universal character and serves as one of the most effective components of the mechanism for protecting absolute rights, primarily property rights. Despite the importance of such liability in the system of protection of civil rights, as well as the very detailed legislative regulation of the relations caused by it, to date, the institution of tort liability remains associated with a number of controversial and controversial problems and issues, the resolution of which is extremely important both for judicial practice and for a correct understanding of both tort and civil liability in general.

Tort Liability and Tort Liabilities: Controversial Correlation Issues

One of the complex issues of the topic under consideration so far remains the problem of the correlation of tort liability with obligations from causing harm, or, in other words, with tort obligations. In the literature and judicial practice, the concepts of "tort obligation" and "tort liability" are often confused, used as identical or interchangeable.<1>. In addition, tort liability is assessed by the courts as an element of the content of a tort obligation.<2>or, on the contrary, the obligation itself is considered as the content of liability for causing harm<3>. ——————————— <1>See, for example: Decisions of the Federal Antimonopoly Service of the North-Western District of July 22, 2003 in case No. F04 / 3371-629 / A70-2003; FAS of the East Siberian District of October 25, 2005 in case N A19-6173 / 04-7-F02-5227 / 05-C2 and others.<2>See, for example: Decrees of the Federal Antimonopoly Service of the Volga District of October 4, 2007 in case N A12-6718 / 06-C62; FAS of the North-Western District of June 24, 2008 in case N A56-21029 / 2007 and others.<3>Decree of the Federal Antimonopoly Service of the West Siberian District of October 6, 2003 in case N F04 / 5142-864 / A75-2003.

The basis of such uncertainty is the law itself. Within the framework of Ch. 59 of the Civil Code of the Russian Federation "Obligations as a result of causing harm" we are talking only about tort liability. It is generally accepted that the noted use of the concepts under consideration does not contain a contradiction, since it is due to their close relationship.<1>. As noted, the latter is due to the fact that it is tort liability that constitutes the content of the obligation from causing harm, since “in this case, liability does not supplement, does not “accompany” some other obligation (as in contractual liability), it constitutes the content of the offender’s obligation in obligation arising from the infliction of harm "<2>. ——————————— <1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. M.: Wolters Kluver, 2005. S. 561.<2>There.

Without disputing the fact of an unconditional relationship that exists between tort liability and obligations from causing harm, one should, however, pay attention to the need to place emphasis in a different way on the issue of characterizing the correlation of these legal institutions. It is known that tort obligations (obligations from causing harm) are a kind of civil law obligations, by virtue of which one party (the tortfeasor, delinquent) is obliged to compensate the property damage caused by it to the other party (victim) (in kind or by compensation for losses), as well as in the cases provided for by law, compensate for non-property (moral) damage, suspend or terminate production activities, and the victim has the right to demand from the tortfeasor the performance of this obligation<1>. ——————————— <1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V. P. Mozolin. M.: Yurist, 2004. S. 312.

In such an obligation, the victim acts as a creditor, and the tortfeasor (delinquent) acts as a debtor. The basis for the emergence of a tort obligation, namely the civil obligation of the tortfeasor to compensate for the latter and the counter subjective right of the victim to demand appropriate compensation from the delinquent, by virtue of the provisions of subpara. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, is the legal fact of causing harm or, otherwise, a tort. In turn, liability under civil law, including tort as its particular manifestation, is the application of coercive measures defined by law to the offender - sanctions or measures of responsibility, which are characterized exclusively by property content and are expressed in the imposition on the offender of additional obligations that have, from the point of view of view of the property sphere of the latter negative value. Thus, like civil liability in general, tort liability has as its actual content a property obligation, namely the obligation of the delinquent to compensate the harm caused to the victim. In this case, the specified obligation acts as an integral element of the legal relationship for compensation for harm and arises, like the legal relationship as a whole, from the legal fact of its infliction (from the tort). In other words, it is more correct to say that property liability does not act as the content of an obligation from causing harm, but, on the contrary, it is necessary to characterize the obligation of the delinquent to compensate for harm, which is an element of the content of the corresponding tort obligation, as a tort liability imposed on the offender and, as a result, evaluate the latter precisely through the specified obligation, and not vice versa. The analyzed obligation to compensate for the harm caused cannot always be regarded as liability. So, the obligation to compensate for harm caused as a result of lawful actions (see paragraph 3 of Article 1064 of the Civil Code of the Russian Federation), as well as compensation for harm caused in a state of necessary defense or extreme necessity, cannot be assessed in the named capacity. In these cases, the legislator either completely refuses to compensate for the harm caused, or, by establishing an appropriate obligation, pursues the goal of compensating the victim for the losses he has suffered.<1>. ——————————— <1>Civil Law: Textbook. T. 2 / Ed. O. N. Sadikova. M.: INFRA-M, 2007. S. 451.

Thus, the concept of "tort liability" in its content is a characteristic (from the point of view of the institution of civil rights protection) of the obligation of the delinquent to compensate for the harm caused to him, which exists within the framework of the obligation to compensate for harm (tort obligation). Such a characteristic is characteristic of the named obligation throughout the development of the obligation, despite the fact that the obligation legal relationship itself, arising as a result of causing harm, may be subject to change, for example, when a right (claim) is assigned or a debt is transferred. In other words, the considered obligation of the delinquent should be characterized as a tort liability, regardless of the person to whom the corresponding obligation exists. This conclusion is conditioned by the content of the very concept of responsibility, defined as the imposition on the offender of additional obligations that have a negative property value for the tortfeasor. A tort obligation, as noted above, always develops as a consequence of the occurrence of a legal fact of causing harm. And from the very beginning of the existence of the obligation, the obligation of the delinquent to compensate for harm, which is the content of such an obligation, arises and is further characterized as the property liability of the tortfeasor for the offense committed by him. This duty can be performed by the delinquent voluntarily, otherwise the victim has the right to apply to the court with a claim for compensation for the damage caused. The possibility of such state coercion to fulfill the obligation is a quality inherent in almost any legal relationship of obligations, and is not related to the characterization of the obligation in question as a liability. The peculiarity is that the responsibility itself in this case acts as the essence and meaning of the obligation, which means that the judicial protection of the rights of the victim is carried out not in the form of bringing the delinquent to responsibility, but as coercion to fulfill the obligation in kind. However, the issue of liability for failure to fulfill a tort obligation can also be raised and resolved positively. However, unlike another type of extra-contractual obligations, for example, obligations due to unjust enrichment (Chapter 60 of the Civil Code of the Russian Federation), in tort obligations, liability for the delinquent's failure to fulfill the obligation to compensate for harm (i.e., failure to implement the mechanism of property tort liability) is not directly established normatively. So, according to, for example, paragraphs 1 and 2 of Art. 1107 of the Civil Code of the Russian Federation, a person who has unjustly received or saved property is obliged not only to return the latter to the victim, but also to reimburse him for all the income that he has derived, or to pay the victim interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation) in the amount of unjust monetary enrichment from the time when the acquirer knew or should have known about his unjust enrichment. At the same time, the absence of a direct legislative fixing of the rule on the liability of the tortfeasor for failure to fulfill his obligation to compensate for it does not cancel the possibility of applying such liability to him on the basis of the general provisions of civil law on compensation for losses (Article 15, 393 of the Civil Code of the Russian Federation) or the payment of interest for the use other people's money (Article 395 of the Civil Code of the Russian Federation). Thus, the damage caused can be compensated in kind (by providing a thing of the same kind and quality, correcting a damaged thing, etc.) or by compensating for the losses caused according to the rules of Art. 15 of the Civil Code of the Russian Federation. The problem is that, based on the meaning of Art. 1082 of the Civil Code of the Russian Federation, the question of in what form the harm caused should be compensated is decided solely at the discretion of the court in accordance with the specific circumstances of the case. This feature, of course, does not mean that the obligation to compensate for harm arises only by virtue of a court decision and as a result of its adoption (it is known that a court decision is recognized as an independent legal fact that can give rise to civil rights and obligations) (see subparagraph 3 of paragraph 1 article 8 of the Civil Code of the Russian Federation). The tort serves as the basis of the analyzed legal relationship. However, the specific form of compensation for harm, and hence the expression of the obligation that serves as the content of tort liability, is determined only by agreement (oral or written) of the participants in the obligation from causing harm.<1>or based on a court order. This, on the one hand, creates a theoretical problem of assessing such a form of “clarification” of the obligation of the delinquent, on the other hand, it causes insufficiently effective application of liability measures for violation of the obligation of the tortfeasor to compensate for it, which, of course, does not contribute to the implementation of the mechanism of tort liability. ———————————<1>Despite the wording of Art. 1082 of the Civil Code of the Russian Federation, which directly establishes that the question of the method of compensation for harm is decided by the court, it seems unacceptable to limit the ability of participants in civil legal relations to resolve this issue on the basis of a free agreement between the tortfeasor and the victim. This conclusion is all the more true because the law does not contain a direct or indirect prohibition on such a resolution of the named issue.

With regard to the first of the identified problems, it should be recognized that the obligation to compensate for harm, which is the content of tort liability, in itself arises directly from the tort as a fact of causing harm to another person (victim), but finds a change and (or) addition on the basis of other legal facts (transactions or court decisions). Such a change does not affect the essence and content of the obligation to compensate for harm, and hence tort liability, and, moreover, does not entail the emergence of a new obligation, however, it directly affects the form of implementation of responsibility (the way the obligation is fulfilled). With regard to the problem of liability for non-fulfillment of a tort obligation, it should be noted that the agreement of the parties to such an obligation or a court decision on the method of compensation for the harm caused determines not only whether the harm will be compensated in kind or by collecting damages, but also, importantly, the point in time from which the participants in the relevant legal relations have the right to count the emergence of the right of the victim to bring the delinquent to responsibility for failure to fulfill the obligation to compensate for harm and, of course, the emergence of the corresponding obligation of the harm-doer. Thus, JSC "Penzadieselmash" (plaintiff) filed a claim with the arbitration court for the recovery of interest from JSC "Russian Railways" (defendant) for the use of other people's money on the basis of Art. 395 of the Civil Code of the Russian Federation. As follows from the materials of the case, the amount of damage caused by the shortage of cargo transported by the defendant was recovered from the defendant in favor of the plaintiff. The decision of the court to compensate for the harm caused came into force, but was not properly executed by the defendant. For the period of delay in the execution of this court decision, the plaintiff filed a claim for the collection of interest for the use of other people's money. The court of cassation, canceling the judicial acts held in the case and satisfying the claims of the plaintiff, pointed out the fallacy of the conclusions of the lower courts. The courts of the first and appellate instances concluded that the decision to recover the damage caused to the plaintiff by the shortage was not the basis for the emergence of the obligation for the defendant to pay the cost of the shortage to the plaintiff, since they only established a circumstance confirming that the defendant's obligation to pay the cost of the shortage really takes place , while the obligation to pay the defendant the cost of the shortage arose, according to sub. 6 p. 1 art. 8 of the Civil Code of the Russian Federation, as a result of the defendant causing harm to the plaintiff. In connection with the above, the court of cassation, satisfying the plaintiff's requirements, referred to the provisions of Art. 395 of the Civil Code of the Russian Federation, as well as on paragraph 23 of the joint Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 13/14, according to which “when resolving disputes by courts related to the application of liability for causing harm, it must be taken into account that, on the basis of Article 1082 of the Code, upon satisfaction claims for compensation for damage, the court has the right to oblige the person responsible for causing damage to compensate for the damage in kind (provide a thing of the same kind and quality, repair the damaged thing, etc.) or compensate for the losses caused (paragraph 2 of Article 15 of the Code). In the event that the court imposes on the party the obligation to compensate for the harm in money, a pecuniary obligation arises on the side of the tortfeasor to pay the amounts determined by the court. From the moment when the court decision entered into legal force, unless otherwise specified in the law, the creditor has the right to charge interest on the amount determined in the decision in case of delay in paying it by the debtor on the basis of paragraph 1 of Article 395 of the Code. Interest is also accrued in the event that the obligation to pay monetary compensation is established by agreement of the parties.<1>. ——————————— <1>Decree of the Federal Antimonopoly Service of the Volga District of February 26, 2008 in case N A55-5065 / 2007.

It seems that the conclusions of the courts of first instance and appellate instances in the above case are generally correct, with the exception that the court decision on compensation for the harm caused to the victim in terms of the possibility of applying certain statutory measures of responsibility for failure to fulfill the obligation to compensate it really has a right-establishing role , with the above content. As for the conclusions made in the judicial acts of the courts of higher judicial instances, in our opinion, it cannot be argued that in the case when the court imposes on the party the obligation to compensate for the harm in money, a new monetary obligation arises on the side of the tortfeasor to pay the amounts determined by the court. In this situation, the obligation of the delinquent to compensate for harm, of course, remains, acquiring a specific form of its expression and execution. No new obligation arises in this case, since this would require raising the question of the termination of the previously formed tort obligation or its existence in parallel with a new obligation (monetary or obligation to provide certain property, perform certain work, designed to eliminate the harm caused), which, definitely not happening. It has already been noted above that in the obligation due to the infliction of harm, the parties are the victim - the person who suffered the harm (creditor), and the debtor - the direct tortfeasor or the person responsible for the actions of the direct tortfeasor. For the debtor, the obligation imposed on him by law to compensate for the harm caused to the victim, being an integral element of the corresponding obligation, is at the same time a tort liability, i.e. property liability imposed on the tortfeasor for the offense committed by him. Such a description of the named obligation does not change, in essence, either its content or the features of its execution. However, given the fact that this obligation is also the content of property liability, it is necessary to answer the question of whether, for example, the rules of civil law on the transfer of debt (Article 391 of the Civil Code of the Russian Federation) apply to cases of its execution or whether the obligation can be fulfilled by a third party (Article 313 of the Civil Code of the Russian Federation). The transfer of the delinquent's debt to another (third) person should be recognized as possible and admissible. As in all other cases of debt transfer, in the situation under consideration such a transfer is carried out only with the consent of the creditor. 1 st. 391 of the Civil Code of the Russian Federation), which ensures the observance of the interests of the victim and taking into account the influence of the personality of the debtor. As for the possibility of fulfilling such a tortious obligation by a third party according to the rules of Art. 313 of the Civil Code of the Russian Federation, it should be borne in mind that in tort relations the identity of the debtor may be of significant importance to the victim, which is also reflected in the performance of this obligation. For example, the law allows for the possibility of taking into account the property status of the tortfeasor when determining the amount of compensation (Article 1083 of the Civil Code of the Russian Federation), if the harm was caused by a citizen through negligence. In the above, as well as in other cases, when the personality of the delinquent may be of significant importance in terms of the peculiarities of imposing tort liability on him and its implementation, the fulfillment of the obligation constituting the content of such liability by a third party should be recognized as unacceptable. The basis for such a conclusion can also serve as paragraph 1 of Art. 313 of the Civil Code of the Russian Federation, according to which "the fulfillment of an obligation may be assigned by the debtor to a third party, unless the obligation of the debtor to fulfill the obligation personally follows from the law, other legal acts, the terms of the obligation or its essence." Thus, the possibility of fulfilling the obligation to compensate for harm within the framework of a tort obligation by a third party must be assessed in each specific case and taking into account the specifics of causing harm and the essence of the named obligation. Finally, another important issue related to the problem of the correlation of tort liability and tort obligation is the question of how to compensate for the harm caused (about the specific form of implementation of tort liability), which has already been partially touched upon above. In the current legislation, unfortunately, there are no unambiguous answers to the questions of whether the delinquent, as a general rule, should compensate for the harm in kind or do it by compensating for the damages caused (in monetary form), and also whether the harm tortfeasor himself has the right to determine the specific method of his reparation or it can only be done with the consent of the victim. In our opinion, the obligation to cause harm in this respect meets the sign of alternativeness and therefore should be subject to the general regulation of the performance of an alternative obligation. So, according to Art. 320 of the Civil Code of the Russian Federation "a debtor who is obliged to transfer one or another property to the creditor or to perform one of two or more actions has the right to choose, unless otherwise follows from the law, other legal acts or conditions of the obligation." The application of this rule to tort obligations means that the tortfeasor, who voluntarily compensates for the harm caused, has the right to do this in any of the ways permitted by law, and the victim, in turn, is obliged to accept such execution from the delinquent as proper. In other words, if the obligation of the delinquent to respond in a certain specific way is not enshrined directly in the agreement of the parties to the obligation and is not established by a court decision, the victim is not entitled to demand compensation for harm in kind if the harm is compensated by the delinquent in cash and vice versa, and also to refer to improper compensation for the harm caused .

Controversial issues of the basis and conditions of tort liability

Basis for tort liability. Speaking about the basis of tort liability, it must be taken into account that the very concept of “ground” is characteristic of the theory of civil legal relations and is defined as a legal fact that generates, changes or terminates civil rights and obligations. Therefore, it seems that the basis of tort liability, given the above on the relationship between the latter and the tort obligation, is a legal fact that gives rise to such an obligation and, as its key element, the obligation of the delinquent to compensate for harm, which serves as the content of tort liability. Therefore, the basis of a tort obligation and tort liability is the same - an offense or a delict. The delict is one of the most ambiguous and underdeveloped concepts in the science of civil law today. The legal antiquity of the said legal phenomenon and its apparent simplicity ensured, unfortunately, the almost complete absence of a theoretical analysis of the concept of "delict", determining the place and role of the tort in non-contractual obligations, identifying certain types of torts, as well as constructing their system in modern civil law. At the same time, it is known that any knowledge that is not based on a thorough analysis of the cornerstone concepts and is devoid of a coherent system cannot be sufficiently theoretically complete and practically significant. The delict is one of those legal phenomena that belong to the deepest legal past of mankind. It is extremely widely believed that obligations in general, in all their current diversity, arose precisely from the tort. As noted on this occasion by the outstanding Russian civilist and researcher of Roman law I. A. Pokrovsky, “the oldest germ of obligations lies in the area that we currently call civil offenses or torts; the contract as an independent source of obligations appears much later ... "<1>. With all the controversy of the specified, "tort" theory of the origin of obligations<2>the importance of the tort itself for the formation and development of civil law is difficult to deny. ———————————<1>Pokrovsky I. A. Main problems of civil law. M.: Statut, 1998. S. 236.<2>See, for example: Civil Law: Actual Problems of Theory and Practice / Ed. ed. V. A. Belova. M.: Yurayt-Izdat, 2007. S. 654 - 655.

Delict - from the Latin delictum, which literally means "error", "mistake", "lawlessness", "sin", "crime" or "misdemeanor". The authors of one of the most popular textbooks on Roman law, edited by I. B. Novitsky and I. S. Peretersky, along with the concept of “delicta”, also mention the term “maleficia”, which was probably used along with the first and is translated as “charm”, in meaning of various injuries or disturbances suffered by people, animals or property. Thus, in Roman law, "a delict is an unlawful act, an offense"<1>. ——————————— <1>Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Peretersky. M.: Yurist, 2004. S. 327.

The noted is supported by other authors, for example, M. Kh. Khutyz<1>. Some scholars of Roman law define a tort as "arbitrary transgression of the law"<2>. M. Bartoszek characterizes the concept under consideration as follows: from the point of view of Roman law, a tort is an offense, causing harm to an individual, his family or property by violating a legal establishment or prohibition, as a result of which, regardless of the will of the offender, new rights and legal obligations arise<3>. ——————————— <1>Khutyz M.Kh. Roman private law: a course of lectures. M.: Bylina, 1994. S. 137.<2>See, for example: Mackenzie A. Roman law compared with the laws of France, England and Scotland / Per. from English. M.: Type. L. I. Stepanova, 1864. S. 256.<3>Bartoszek M. Roman law: concepts, terms, definitions / Per. from Czech. M.: Yurid. lit., 1989. S. 92.

Torts in Roman law were divided into delicta publica (public torts) and delicta privata (private torts). The former "were recognized as violating the interests of the state as a whole and entailed corporal punishment, and sometimes the death penalty - crimina capitalia - or a property penalty, which, as a general rule, came to the state's income"<1>. Private torts, which are of interest to us, included an infringement exclusively on the interests of private individuals, despite the fact that their consequences could be both fines or compensation for harm (property consequences) and corporal punishment.<2>. ——————————— <1>Roman private law: Textbook / Ed. I. B. Novitsky and I. S. Peretersky. S. 327.<2>See: Kosarev A.I. Roman law. M.: Yurid. lit., 1986. S. 32.

There was no general generic concept of a tort in Roman law. From the point of view of law enforcement, only certain types of torts were of interest, of which there were a fairly large number. These are, in particular: injuria (translated from Latin - violence, insult, damage, damage: included all forms of encroachment on a person, on her life and health, other non-material benefits, as well as personal non-property rights); furtum (translated from Latin - robbery, deceit, fraud: a tort against the property rights of the victim); damnum injuria datum (in translation from Latin - loss created by causing damage: concerned the infliction of property damage, which, however, was not associated with enrichment for the delinquent); rapina (in translation from Latin - robbery: it was separated from furtum mainly in connection with the peculiarities of the responsibility of the delinquent); metus and dolus (translated from Latin - threat and deceit: a delict involving the infliction of property damage as a result of the named actions of the delinquent); fraus creditorum (translated from Latin - fraud against creditors: a special delict committed in order to hide the debtor's property from his creditors). In fact, there was no coherent system of torts, and even more so general criteria for classifying an act as torts in Roman law, although in the process of development public torts finally separated from private torts and completely moved into the sphere of regulation of criminal and administrative law, and private torts were formed as an independent and unified group of phenomena of an exclusively civilistic nature. The history of the development of ideas about the tort in the Middle Ages, and in the future, was determined by the active reception of Roman law, with the corresponding adaptation of local laws, customs and precedents.<1>. But, in essence, neither the progress of legislation nor the evolution of scientific thought has added almost anything to the solution of the problem of the concept of a tort, its criteria, or the system of torts. ———————————<1>For more on this, see: Vinogradov PG Roman Law in Medieval Europe. M.: Ed. A. A. Kartseva, 1910. S. 99.

It seems that we are forced to observe a similar situation to this day. Despite the intensive development of civil science and civil law, the doctrine of delict has not gone far forward since the days of Roman law. And first of all, we are talking about the lack of a single, universal and, to the necessary extent, a deep understanding of such a definition as “delict”. Today, the tort is defined in the scientific literature and practice in the same way as in the days of Roman law - as a harmful offense or the very fact of causing harm.<1>. In the practice of arbitration courts, in the vast majority of cases, the delict is regarded as an "offense"<2>, in some cases - as "unlawful infliction of harm"<3>. This emphasizes the legal result of the tort in the form of harm and specifically indicates its wrongfulness. However, such a meager definition, of course, does not give an idea of ​​either the actual content of the evaluated concept, or the potential of its practical application. ———————————<1>See, for example: Civil Law: Textbook. Part two / Rev. ed. V. P. Mozolin. S. 355; Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. 2005. S. 437.<2>See, in particular: Decisions of the Federal Antimonopoly Service of the Urals District of July 3, 2000 in case No. F09-873/2000-GK; FAS of the Northwestern District of June 21, 2006 in case N A56-43996 / 2005.<3>See: Decree of the Federal Antimonopoly Service of the West Siberian District of July 7, 1999 in case No. F04 / 1376-290 / A75-99.

First of all, it should be noted that a delict is an act, i.e., an action or inaction committed by a delinquent (harm-doer). Thus, from the point of view of the theory of obligations, a delict is a legal fact, i.e. a specific, specific life circumstance, a fact of reality, with which the current laws and other legal acts associate the emergence, change or termination of civil rights and obligations, i.e. .civil relations<1>. Therefore, from the point of view of the analysis of such a concept as "delict", it is fundamentally important to first of all decide on the question of what exactly the assessed institution is as a legal fact. ———————————<1>See, for example: Civil Law: Textbook: In 2 vols. T. 1 / Resp. ed. E. A. Sukhanov. M.: BEK, 1998. S. 324.

The fact that a delict is a legal fact can be characterized as an action, no doubt. At the same time, the inaction of a person can also be, if all the necessary signs are present, assessed as a tort. Thus, in one of the cases, satisfying the claim for compensation for losses in connection with the provision of benefits for paying for natural gas to certain categories of citizens, the arbitration court indicated that a civil offense was expressed in the case under consideration in the illegal inaction of the Ministry of Finance of the Republic, which did not properly fulfill its obligations to compensate gas suppliers of losses incurred in connection with the provision of the above benefits<1>. ——————————— <1>See: Decree of the Federal Antimonopoly Service of the Urals District of December 4, 2003 in case No. F09-444/2003-GK.

An event as a kind of legal fact, of course, in itself cannot act as a tort and thus be the basis of tort liability. A delict as a legal phenomenon matters only as a legal fact that can give rise to a legal connection between the delinquent and the victim, outside this ability there is no place for the delict itself. If we are talking about an event, i.e., a circumstance that does not depend on the will of people, in such relations there is not and cannot be a subject (delinquent), and therefore such an event itself, even if it can give rise to any other legal relations , cannot be assessed as a tort. Consequently, only an action (inaction) and its consequence, a relative event, can act as a tort - a legal fact. By the way, the question of the will and its expression is one of the most difficult in tort theory. It is important to take into account that the designated obligatory presence of will and its manifestation in a tort has one essential feature - the definition of what exactly such a will should be directed to. The will of the delinquent is actually focused primarily on the occurrence of that legal fact (event or action), which is further characterized by us as a delict, and secondly, depending on the assessment of the guilt of the delinquent, on the onset of certain legal consequences in the form of harm, but never to the creation of the most tortious non-contractual obligation to indemnify. As M. Bartoszek rightly points out in this regard, the obligation to compensate for harm always arises regardless of the will of the offender<1>. ——————————— <1>Bartoszek M. Decree. op. S. 92.

However, the event quite often takes place in tort obligations. In support of what has been said, here are a few examples from arbitration practice. The plaintiff applied to the arbitration court with a claim for damages in the amount of the value of the burnt property. As it was established by the court, between the plaintiff and the defendant was concluded a contract for the sale of property. After the delivery and unloading of the goods, a fire broke out in the plaintiff's warehouse (an event from the point of view of the theory of legal facts). According to the results of the examination, it was revealed that the cause of the fire was spontaneous combustion of the delivered goods due to the presence of an oxidizing agent (oil stains) on the floor of the container in which the goods were transported by rail. The court found that the ignition of the goods did not occur due to its natural properties, but in connection with violations committed by the defendant when loading the goods<1>. ——————————— <1>Decree of the FAS of the East Siberian District of September 20, 2000 N A19-11829 / 99-22-Ф02-1668 / 00-С2.

In another case, the court found lawful and justified the claim addressed to the owner of the leased building for compensation for damages caused by water flooding (event) of the premises occupied by the plaintiff's tenant's enterprise, and regarded such a claim as a claim from a tort<1>. ——————————— <1>Resolution of the Federal Antimonopoly Service of the Urals District of July 3, 2000 in case No. F09-873/2000-GK.

Another example is the infliction of harm as a result of snow or ice falling from the roof of a house (an event) that occurred as a result of the defendant's improper performance of his duties to maintain a residential building<1>. ——————————— <1>

In all these cases, the legal circumstance with which the occurrence of harm is associated is an event, although the latter in each of these situations has a relative character, i.e. direct, and decisively depends on the will of the relevant subject of civil law. It seems that in the situation under consideration, in fact, the action (inaction) that caused the occurrence of the event should be recognized as a tort (which is why we can only talk about relative events). The foregoing must also be taken into account when characterizing the causal relationship between the delict and the harm that has occurred: in this case, there will be no necessary sign of immediacy between the action that causes harm and its harmful consequences. The fact is that in this chain, in such circumstances, one more legal fact appears - a relative event. In view of the foregoing in the analyzed situation, it is necessary to proceed from the fact that the basis of tort liability, and hence the corresponding obligation to compensate for harm, is a complex legal composition, including not only the tort itself, expressed in this case in the form of an action or inaction, but also due to it a relative event that, although it exists as an independent legal fact, acts as a basis for tort liability only as an element of a complex legal composition. Another issue that needs to be discussed in relation to the problem of analyzing a tort as a basis for tort liability is the question of general and special tort. Of course, in this case we are not talking about any special types of tort, but rather about the principles of assessing the tort as a whole and in each individual case. The principle of general tort, which is the basis of tort law, is formulated in the literature in relation to tort liability as follows: "... according to this principle, harm caused by one person to another is in itself the basis for the emergence of an obligation to compensate for the harm caused." Consequently, the victim does not have to prove either the unlawfulness of the actions of the tortfeasor or his guilt. Their presence is presumed. In this regard, the tortfeasor can be released from liability only by proving their absence. It is believed that the principle of general tort received its most complete expression in Art. 1382 of the French Civil Code, according to which “any act of a person that caused damage to another obliges the person through whose fault the damage occurred to compensate for the damage”<1>. ——————————— <1>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. S. 442.

In other words, this principle expresses the fact that any harm is assumed to be unlawful and subject to compensation. For us, it is important that from the principle under consideration it directly follows that the very fact of causing harm characterizes the action (inaction) or event, as a result of which the harm occurred, as a tort. This circumstance determines the presumption of the wrongfulness of the tort, but, of course, does not prejudge the question of the guilt of the tortfeasor or the existence of a causal relationship between the actions (inaction) of the tortfeasor and the harm itself. The obligation to prove when considering a claim for compensation for harm should be redistributed accordingly: the victim is obliged to prove, first of all, the fact of causing harm to him and the existence of a causal relationship between the actions (inaction) of the tortfeasor and the harm that has occurred, but is free from the need to prove the wrongfulness and guilt of the delinquent ; the duty to prove their absence lies with the latter. Thus, the principle of general tort means only that any harm is unlawful and accordingly characterizes the action (inaction) or event as a tort and is subject to compensation. At the same time, today, both in theory and in judicial practice, it is generally accepted that the scope of the concept of "general tort" includes, as its mandatory elements, the wrongfulness of the behavior of the tortfeasor, the causal relationship between his unlawful behavior and harm, as well as the guilt of the tortfeasor.<1>. ——————————— <1>See, for example: Decree of the FAS of the East Siberian District of October 25, 2005 N A19-6173 / 04-7-Ф02-5227 / 05-С2.

In our opinion, this point of view is fundamentally erroneous. The fact is that the listed signs constitute the conditions of tort liability, i.e., the conditions for fulfilling the obligation of the delinquent (the tortfeasor) to endure the adverse consequences of his unlawful behavior, resulting in harm to the victim. In other words, they do not at all constitute the content of the general tort, but determine those additional conditions, the presence of which, by virtue of the law, is mandatory for the onset of tort liability: the harm caused, according to the rule of the general tort, must always be compensated - this is precisely the principle that follows from the need for unconditional protection the rights and legitimate interests of participants in civil circulation and maintaining its stability. However, a specific person may be both obliged to such compensation and exempted from it due to the presence or absence of the above conditions of tort liability. By the way, based on the foregoing, it can be argued that the concept of "special delict" does not and cannot exist at all. The fact is that a delict as an action (inaction) or an event that results in harm cannot have either a general or a special character. It is more correct in this case to speak of “special conditions of tort liability”, under which there may be no separate general conditions of liability for causing harm (for example, guilt in case of causing harm by a source of increased danger; Article 1079 of the Civil Code of the Russian Federation) or there may be additional (special conditions characterizing guilt of the victim or his property status; Articles 1078, 1083 of the Civil Code of the Russian Federation). The harm caused itself may be subject to compensation even in the case when the delinquent (harm-maker) is not responsible for it due to the absence of the necessary conditions for such liability (for example, delinquency): this can best be demonstrated in cases where the harm was caused to a minor or disabled citizen. Taking into account the above, the following, for example, interpretation of the terms of tort law looks incorrect: “... the specified rule of law contains a special tort in the form of innocent liability of the plaintiff ...”<1>. ——————————— <1>Resolution of the FAS of the East Siberian District of June 14, 2000 in case N A19-12484 / 99-14-Ф02-1020 / 00-С2.

Illegality of actions to cause harm as a condition of tort liability

It is known that actions as legal facts can also be subjected to a dichotomous division and, on the basis of their compliance with the norms of objective law, are classified into lawful and unlawful. The general opinion is that a tort is always a wrongful act. Moreover, "the wrongfulness of the conduct of the tortfeasor"<1>is considered in judicial practice as a mandatory and integral property of a tort and tort liability. As a general rule, based on a literal understanding of paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation, harm caused by lawful actions is not subject to compensation. Relevant examples are quite numerous in judicial practice. Thus, in one of the cases, the court directly stated that “harm caused by lawful actions is not subject to compensation. The materials of the case established that ... the customs (the tortfeasor. - L.K.) acted in accordance with the current ... legislation ... "<2>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of March 19, 2008 N 2962/08.<2>Decree of the Federal Antimonopoly Service of the Moscow District of February 18, 2002 in case No. KG-A40 / 448-02.

Thus, the harm caused by the delinquent, while complying with the latter norms and requirements of objective law, is not recognized by the current legislation as subject to compensation. There are many cases of establishing the obligation to compensate for harm caused by lawful actions. First of all, we should mention the compensation for losses caused by securing a claim, which is quite common in practice. Article 98 of the Arbitration Procedure Code of the Russian Federation provides that the defendant and other persons who have suffered losses by securing the claim, after the entry into force of the judicial act of the arbitration court on the refusal to satisfy the claim, have the right to demand from the person petitioning for securing the claim, compensation for losses by filing an appropriate claim. Thus, in one of the cases, the Supreme Arbitration Court of the Russian Federation indicated that it follows from the materials of the case and the courts established that as a result of taking measures to secure a claim at the request of the defendant in another case, the plaintiff and his creditors suffered losses. With reference to paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation and Art. 98 of the Arbitration Procedure Code of the Russian Federation, on this basis, the court satisfied the claim for damages<1>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of October 12, 2007 N 12724/07.

The same category of compensation for damages caused by lawful actions should also include cases of reimbursement of court costs (Chapter 9 of the Arbitration Procedure Code of the Russian Federation). Further, in a number of examples of torts that do not have signs of illegality, one can also mention the Law of the Russian Federation of May 14, 1993 N 4979-1 “On Veterinary Medicine”<1>(as amended on July 21, 2007). According to Art. 19 of the said Law, when eliminating foci of especially dangerous animal diseases, by decisions of the highest executive bodies of state power of the constituent entities of the Russian Federation, animals and (or) animal products may be seized with payment to the owner of the animals and (or) animal products of the cost of animals and (or) animal products at the expense of funds from the budget of the corresponding subject of the Russian Federation and issuance to this owner of the relevant document on such withdrawal. ———————————<1>Gazette of the SND and the Armed Forces of the Russian Federation. 1993. N 24. Art. 857.

The delict, consisting in the commission of lawful acts, is also mentioned in Art. 242 of the Civil Code of the Russian Federation (“Requisition”), according to which in cases of natural disasters, accidents, epidemics, epizootics and under other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, can be withdrawn from the owner in the manner and on conditions that established by law, with the payment to him of the value of this property. Another example: the case under Art. 57 of the Land Code of the Russian Federation<1>, according to which owners, land users, landowners and tenants of land plots are compensated for losses, including lost profits, caused by the lawful seizure of land plots for state or municipal needs. ———————————<1>SZ RF. 2001. N 44. Art. 4147.

All of the above allows us to argue that tort liability can also arise as a result of an unlawful action (inaction), which was originally determined by the very legal nature of the tort, and a lawful action (inaction), i.e., corresponding to the requirements and regulations of the law and other legal acts . Any harm is a priori unlawful and subject to compensation, since it is a violation (destruction, termination or derogation) of the subjective rights and legitimate interests of other persons, which, from the point of view of the basic principles of civil law, is unacceptable, with the exception of the possible restriction of civil rights on the basis of federal law and only to the extent that this is necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (Article 1 of the Civil Code of the Russian Federation). The theoretical expression of this rule is the so-called principle of general tort. In other words, any legal fact, the result of which is the infliction of harm, is presumed to be unlawful and should be recognized as a tort. Therefore, the fact that in the event of a lawful infliction of harm (in the case of a lawful delict) no tort liability arises and the harm is not subject to compensation is an exception and it is precisely as such an exception that it is enshrined in paragraph 3 of Art. 1064 of the Civil Code of the Russian Federation. In other words, as an exception, one should consider not those cases in which the harm caused by lawful actions is subject to compensation, but those in which such harm is not subject to compensation. It seems that from the point of view of the tort theory, "wrongfulness" should be understood broadly, as a concept that covers the violation of not only the norms of objective law, but also any subjective civil rights and legitimate interests of participants in the turnover. And the delict itself, being, in view of what has been said above, is always unlawful, from the point of view of violation of the norms of objective law, can be characterized both as corresponding to such norms and as an act (action or inaction) contrary to them. In support of the foregoing, the provisions of Art. 1067 of the Civil Code of the Russian Federation (“Infliction of harm in a state of emergency”). According to the said article, harm caused in a state of emergency, i.e., to eliminate the danger that threatens the inflictor of harm himself or other persons, if this danger under the circumstances could not be eliminated by other means, must be compensated by the person who caused the harm. Thus, the legislator, in fact, recognized that the delict (infliction of harm) in this case is unlawful, and therefore the harm is subject to compensation, despite the fact that by virtue of the direct assumption of Art. 14 of the Civil Code of the Russian Federation, self-defense of civil rights is allowed, provided that the methods of self-defense must be proportionate to the violation and not go beyond the limits of the actions necessary to suppress it. The reason for such a normative decision can only be that in reality any delict is illegal, since the harm itself is also illegal, in any case violating the subjective civil rights and (or) legitimate interests of the victim.

Harm as a condition of tort liability (concept and characteristics)

The significance of harm from the point of view of tort liability is so great that it is very often erroneously characterized even as its basis. As a rule, “harm as the basis of tort liability is understood as property or non-property consequences that are unfavorable for a subject of civil law, resulting from damage or destruction of property belonging to him, as well as from causing injury or death to a citizen (individual)”<1>. At the same time, the concept of "damage" is evaluated as a synonym for the word "harm", and the loss is understood as a monetary assessment of property damage, i.e. the same harm, only expressed in money<2>. ——————————— <1> <2>Civil Law: Textbook: In 2 vols. T. 2. Polutom II / Ed. E. A. Sukhanova. M.: Volters Kluver, 2004. S. 439.

The above traditional point of view seems to us not quite consistent with both the tort theory and the established practice of applying the current legislation. First of all, despite the apparent simplicity of the concept of “harm”, its current interpretation in the theory of civil law is completely ambiguous. In particular, the noted is manifested in the issue of property damage. On the one hand, property damage refers only to the consequences resulting from damage or destruction of the property of the victim, on the other hand, any negative consequences that occur when a property right or benefit of a person is violated, which can be expressed not only in damage or loss of a thing, but and, for example, in "not receiving the income that the victim would have received if there had not been a harmful act"<1>. ——————————— <1>Civil law. Part two: Textbook / Otv. ed. V. P. Mozolin. S. 358.

In our opinion, the need to cover the estimated concept not only the consequences in the form of destruction or damage to someone else's property, but also the income not received by the victim is very doubtful. On the one hand, property damage in the literal sense of the word is damage in one form or another to the property sphere of the victim or, otherwise, a violation of the existing property status of the latter, without taking into account the income he has not received. On the other hand, it is unacceptable to understand harm only in a narrow sense, as the destruction or damage to someone else's property. After all, harm can be caused not only in connection with the indicated circumstances, but also, for example, due to a violation of the order of repayment of creditors' claims during the liquidation of a legal entity: such harm is not “physical”, but exclusively “economic” in nature. The characteristic of property damage in judicial practice is also of interest. Most often, property damage is assessed as the expenses actually incurred by the victim, regardless of how the actual damage caused to property is assessed, i.e., regardless of how much the value of the damaged property has decreased. For example, in one of the cases considered by the Supreme Arbitration Court of the Russian Federation, the defendant in the case compensated the plaintiff for the damage caused to the plaintiff's car, taking into account the wear and tear of the damaged vehicle, i.e., based on how much the value of the damaged property decreased. The Supreme Arbitration Court of the Russian Federation, pointing out the correctness of recovering from the defendant the amount of the plaintiff's actual expenses, which turned out to be higher than the amount of the reduction in the value of the damaged property, noted that there was no need to take into account the state “in which the property was at the time of the damage. Such a limitation would be contrary to the provision of civil law on full compensation for damages.<1>. ——————————— <1>Determination of the Supreme Arbitration Court of the Russian Federation of February 28, 2008 N 17730/07 "On the refusal to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation."

In other cases, when determining damages, the court, on the contrary, points out the inadmissibility of proceeding from the expenses actually incurred by the plaintiff and, when making a decision, starts from those incomes that were not received by the plaintiff. Thus, a municipal enterprise applied to the arbitration court of the Russian Federation, represented by the Ministry of Finance of the Russian Federation, with a claim for reimbursement of expenses for the transportation of certain categories of citizens at reduced rates. The court of first instance dismissed the claim. The courts of appeal and cassation upheld the decision of the court. At the same time, refusing to satisfy the claim, the courts proceeded from the following: “... the company did not document the amount of actually incurred expenses for the transportation of the preferential category of passengers, since according to clause 5 of Article 790 of the Civil Code of the Russian Federation, it is the carrier’s expenses that are subject to reimbursement, and not the cost (price ) discount tickets, on the basis of which the amount of the claim was actually calculated ... the amount of the claim was calculated based on the maximum fare (cost) of the ticket for the carriage of passengers, and not on the actual costs incurred”<1>. ——————————— <1>

The Supreme Arbitration Court of the Russian Federation considered the judicial acts held in the case to be canceled and, in particular, indicated: “... organizations that directly provided services to consumers free of charge or at a reduced price have the right to receive compensation from an appropriate public legal entity in the form of fees not received from consumers ... Russian The Federation, having established by law ... benefits in the form of free travel, assumed the obligation of the transport company to fully reimburse the costs of providing these benefits at the expense of the federal budget "<1>. Thus, in the case under consideration, the court found it necessary to assess the damage not on the basis of the actual costs incurred by the carrier in connection with the transportation of passengers entitled to reduced fares, but on the basis of the ticket sales price not received by the carrier in full. However, such damage cannot be regarded as a loss of profit - this is real damage, since the violation of the plaintiff's right is not connected with the transportation of passengers at reduced rates, but with the fact that the amount of the fare not received by the carrier was not properly reimbursed from the treasury due to the illegal inaction of the competent state body . ———————————<1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 5, 2008 N 16069/07.

All of the above allows us to argue that harm is the adverse consequences expressed in the termination or derogation of the property or personal non-property subjective civil rights of a person or his intangible benefits. Harm is a consequence of the tort, its actual (material) and legal result. The concept of "damage" can probably be recognized as a complete synonym for the concept of "harm", with the same content indicated above. So, in one of the cases, the Supreme Arbitration Court of the Russian Federation directly stated that “the concept of “damage” ... covers both damage determined according to the rules of Article 15 of the Civil Code of the Russian Federation, and adverse consequences associated with infringement of honor, dignity and business reputation”<1>, i.e., it can have both property and non-property content. ———————————<1>Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 83 “On some issues related to the application of part 3 of article 199 of the Arbitration Procedure Code of the Russian Federation”.

At the same time, it is certainly impossible to regard losses as a simple designation of the monetary value of property damage or damage, since losses are, of course, a broader concept. And the main thing that you need to pay attention to in the question of the concept of "losses" in its relationship with the concept of "property damage" is the fact that losses, in addition to the actual damage in its valuation, also include income not received by the victim, in other words , lost profits. The inadmissibility of covering the concept of "harm" also with lost profits is explained by the fact that harm in any case is expressed in the termination or derogation of the property or personal non-property subjective civil rights of a person or his intangible benefits. The existence of a subjective civil right to receive income, which is possible in itself, means that its violation will entail the infliction of real damage to the victim; lost profit - a consequence of a violation of the legitimate interest of a participant in the turnover, not secured by a counter subjective obligation, which can be most clearly seen, in particular, on the example of an abstract lost profit<1>. ——————————— <1>On this occasion, see, for example: Egorov A.V. Lost profit: problems of theory and contradictions in practice // Losses and the practice of their compensation: Collection of articles / Ed. ed. M. A. Rozhkova. M.: Statut, 2006. S. 78.

Thus, a tort as its consequences can have not only harm, but also lost profits. What has been said gives us, in particular, grounds for asserting that the title of Ch. 59 of the Civil Code of the Russian Federation - "Obligations as a result of causing harm" - does not fully reflect the features of the named category of obligations arising not only in connection with compensation for harm, but also as a result of the loss of profit for the victim. Finally, another issue that we consider important to discuss in the framework of the analysis of tort liability is the question of the relationship between such concepts as "delict" and "debt". The term itself (“debt”) is extremely widely used by civil law in relation to a variety of relations. In general, it is understood as any obligation of the debtor (to transfer property, perform work, pay money, etc., or refrain from a certain action), although most often a debt in civil law is a monetary obligation. The concept of "duty" also has a general philosophical meaning, within which "duty" is an ethical category that expresses the moral task of a certain individual or group of people (community) in specific social conditions, which becomes an internally accepted obligation for them. It is also interesting that the original meaning of the Latin "culpa" (translated from Latin - guilt, which is one of the key concepts of tort law) was precisely "debt (expressed in monetary or other material equivalent)" (= aes alienum), whence the appearance of the meanings “(objective) need to repay the borrowed” > “consciousness of the need to repay the debt, (internal) state of the debtor” should be assumed; surviving texts record the history of the word…: “responsibility (for doing something wrong)…” > “guilt”… > “guilt”<1>. ——————————— <1>Solopov AI Etymology and the original meaning of the Latin culpa // Ancient law. IVS ANTIQVVM. N 1(3). 1998. M.: Spark, 1998. S. 83.

Analyzing the concept of "delict" in its relationship with the concept of "debt", it can be argued that the debt, along with harm (damage) or loss, is one of the legal consequences of the tort. Debt as an obligation to compensate for harm is a consequence of a tort, which has the distinctive feature that it arises on the side of the delinquent (the tortfeasor), while harm (damage or loss) characterizes the consequences of the tort on the part of the victim (creditor). At the same time, it should be borne in mind that it is debt that characterizes tort liability as a special institution of civil law, within which the imposition of a duty (debt) on a person occurs outside the will of the said person (delinquent): as noted above, the will of the delinquent is never directed to the emergence of an obligation to compensate for harm, and always, with some exceptions, only to cause this latter. Interestingly, based, for example, on the general meaning of paragraph 3 of Art. 308 of the Civil Code of the Russian Federation, rights may arise for participants in the turnover, including regardless of their will, as is the case, in particular, in the case of a tort and the emergence of an obligation as a result of causing harm, and hence the corresponding right of claim on the part of the victim. However, the emergence of an obligation against the will, as a general rule, is impossible. The delict is characterized by the peculiarity that when it is committed, the obligation to compensate for harm (debt) arises by virtue of the law, regardless and even against the will of the delinquent. It is this feature that characterizes the debt within the framework of tort legal relations: it is a consequence of the tort, which has the character of a civil law obligation that arises on the side of the delinquent and regardless of the will of the latter, i.e., tort liability. In addition to debt (in the form of an obligation to compensate for harm, which is the content of tort liability), the consequence of a delict for a delinquent may also be property enrichment arising on his side. As the literature correctly notes, “the law does not in any way imply the impossibility of imposing liability on a person under the rules of torts if he has derived a property benefit for himself by causing harm to another. All our many years of judicial practice contradicts this understanding of obligations from causing harm.<1>. However, for a correct assessment of the rights and obligations in this case, the direction of the will of the participants in the relationship is important first of all - the latter consists precisely in causing harm, even with the aim of enriching the delinquent, but not vice versa. ———————————<1>Commentary on the Civil Code of the Russian Federation (Part Two) / Ed. O. M. Kozyr, A. L. Makovsky, S. A. Khokhlov. M.: MTsFER, 1996. S. 236.

For the most complete analysis of the concept of "harm" and the assessment of its place and role as a condition for tort liability, it is necessary, in our opinion, to discuss the question of, we will say, the depth of the property tort, that is, not about the nature, but about the degree of harm caused , defined as the ratio of the value of the damage caused to the total value of the property. An analysis of this issue can also be of great practical importance, since the specifics of compensation for harm often depend on the depth of the tort. A property delict can be expressed in the destruction of property, i.e., in the complete cessation of its material existence, in damage to property, which excludes the possibility of further use of such property for its intended purpose and, consequently, the extraction of useful properties and qualities from it, as well as in such damage that its further use does not preclude. At the same time, it should be taken into account that in the case when the property is completely lost as a result of damage, a claim cannot be made for the recovery of the cost of the costs of its restoration. Thus, an individual entrepreneur filed a lawsuit against the company for compensation for damage caused to the property (car) of the plaintiff as a result of a traffic accident that occurred through the fault of the driver of the defendant's car. The claim was granted, but the amount recovered for the repair of the damaged car turned out to be twice the full cost of a car of the same brand and the same quality. This circumstance gave rise to an appeal against the decision of the court of first instance. The court of appeal, after evaluating all the materials and arguments of the parties available in the case, came to the conclusion that the disputed car was lost (disposaled) by the plaintiff, and therefore its restoration is impossible. Considering that the plaintiff claimed to recover the costs of repairing property that was actually lost, and not to reimburse the value of this property, the court considered the stated claim unfounded and dismissed it. The court of cassation, canceling the decision of the appellate instance, indicated that by virtue of Art. 15 of the Civil Code of the Russian Federation, the plaintiff rightfully demanded damages in the amount of expenses that he would have to make to restore the violated right. Since the plaintiff, in accordance with the requirements of Art. 1064, 1079 of the Civil Code of the Russian Federation, proved the infliction of damage to his property, the unlawfulness of the behavior of the tortfeasor and the causal relationship between such behavior and the harm that occurred, and the defendant did not provide evidence of the absence of his guilt, the refusal to satisfy the stated claim, according to the court of cassation, was made unlawfully. At the same time, the court of appeal did not give a proper legal assessment to the conclusions of the court of appeal that the damaged car was disposed of by the plaintiff and the alleged costs of its repair have no real basis. The Supreme Arbitration Court of the Russian Federation, canceling the judicial acts held in the case, in particular, indicated that the plaintiff had to prove that the alleged costs of repairing property are real, i.e. there is a thing for the restoration of which they will incur such costs: “In the event of a complete loss of property who has suffered damage, the claim for reimbursement of the costs of its restoration cannot be considered as having a legal basis.<1>. ——————————— <1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 13, 2000 N 8904/99.

Thus, if the harm caused as a result of the commission of a tort entails the complete destruction of property, then compensation for harm by claiming the amount of expenses for its restoration is impossible. In this case, damage can be compensated either in kind (by providing property of the same kind and quality) or in cash (by paying the cost of such property). Here is another example illustrating the named problem of the depth of the tort from the reverse side. So, the plaintiff recovered from the defendant in the order of compensation for damage the cost of damaged property. When considering the case, the court found that the property remained in the possession of the plaintiff and the latter continues to actually use it for its intended purpose. Given these circumstances, the court dismissed the claim and drew attention to the following: “... in such a situation, the damage is compensated in the amount by which the value of the property has decreased. In the amount of the value of the property, damage is compensated in case of its loss or unsuitability for its intended use, with the determination of the legal fate of the damaged property in order to prevent unjust enrichment of the victim.<1>. ——————————— <1>Decree of the Federal Antimonopoly Service of the Urals District of July 3, 2000 N F09-873/2000-GK.

Considering the indicated problem, we are faced with another issue that requires attention - with the question of the legal fate of the property that was damaged, but not completely lost, although it cannot be used for its intended purpose. The corresponding problem often arises, for example, in the practice of insurance. So, when an insured event occurs as a result of causing harm, the insured often, after compensating for the damage, requires the insurer to transfer the damaged property or the corresponding part of the property (for example, parts of a damaged car) to the insurer. The legislator does not offer a solution to the problem, but the need for it today is obvious. The only means currently available to the participants in the turnover in resolving this issue is the contract, in particular, the inclusion of relevant conditions in the insurance contract. However, contractual regulation is not always possible. In any case, in our opinion, when determining the legal fate of damaged property (in the case of compensation to the victim of its full value), one should proceed from the inadmissibility of unjust enrichment of the victim and therefore, if the property cannot be used for its intended purpose as a result of damage, but is not completely destroyed and by virtue of this, continues to represent some value, the person obliged to compensate for the damage has the right either to demand the transfer of such property to him, or to reduce the amount of compensation by the estimated value of such damaged property or its corresponding part. These are some of the controversial issues related to the basis and conditions of tort liability.

Controversial issues of the subject composition of the tort obligation

One of the most complex and ambiguous issues related to tort liability is the problem of determining the victim in a situation where the damage subject to compensation is caused to property, the interest in which several persons have an interest in preserving at once. Such a situation occurs, for example, when damage is caused to leased property, property held in trust or gratuitous use, property transferred under a storage agreement, when property is pledged and in other similar cases. When causing damage to property in these situations, the question arises as to who actually acquires the right to compensation for damage in this case: the direct owner of the property or its owner (a person endowed with respect to this property by another right in rem)? Let's take an example. Altai Tire Company OJSC filed a lawsuit against Barnaulmetallurgmontazh CJSC with an arbitration court to recover, by way of recourse, the amount of money previously paid by the plaintiff in favor of Altai Tire Plant OJSC. As it was established by the case materials, a lease agreement was concluded between the plaintiff and Altai Tire Plant OJSC, under the terms of which an industrial water pipeline owned by the plaintiff was transferred to the temporary possession and use of Altai Tire Plant OJSC. In the course of excavation by the defendant and as a result of a gross violation of the rules for their implementation, the specified water supply was damaged. In connection with these events and guided by the norms of civil law on lease, JSC "Altai Tire Plant" filed a lawsuit against JSC "Altai Tire Company" to the arbitration court for compensation for losses (including lost profits) associated with the restoration of leased property, downtime of personnel . The plaintiff acknowledged these requirements, and later filed a lawsuit against the direct tortfeasor, CJSC Barnaulmetallurgmontazh, determining the amount of damage caused based on the costs incurred by the plaintiff in connection with payments to the lessee (JSC Altai Tire Plant). By the decision of the court of first instance, left unchanged and by the court of appeal, the claim was satisfied. However, the court of cassation dismissed the claim on the following grounds: “As can be seen from the materials of the case, the water supply system owned by OJSC Altai Tire Company was transferred to OJSC Altai Tire Plant under a lease agreement ... Damage was caused to OJSC Altai Tire Plant (the lessee . - L.K.) due to damage to the water supply by the defendant. By virtue of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, damage caused to the property of a legal entity is subject to compensation in full by the person who caused the damage. By law, the obligation to compensate for harm may be imposed on a person who is not the tortfeasor... The relationship between Altai Tire Plant OJSC and Altai Tire Company OJSC, arising from the lease agreement, is not related to obligations due to the infliction of harm... The court found that the person, which has been harmed is OJSC "Altai Tire Plant"<1>(highlighted by me. - L.K.). ———————————<1>

Thus, the court recognized that the tenant should be considered the victim in the situation under consideration. The owner of the damaged property was, in fact, denied the right to satisfy the claim for damages. In other words, the court apparently considered that the owner did not suffer from the fact of damage to the leased property, since in any case he has the right to return the property upon termination of the lease agreement in the condition in which he received it, taking into account normal wear and tear or in condition stipulated by the contract (clause 1, article 622 of the Civil Code of the Russian Federation). From these positions, the logic of the court is quite understandable and justified. However, in this case, the tenant is also protected by contractual mechanisms, since, firstly, he has the right to lease property in a condition corresponding to the terms of the contract and the purpose of the property (Article 611 of the Civil Code of the Russian Federation), and, in continuation of this general right, is endowed the right to demand the elimination of deficiencies, reduction of rent, termination of the contract, and also the right to withhold the amount of expenses incurred by him in connection with the elimination of deficiencies from the rent (Article 612 of the Civil Code of the Russian Federation), and secondly, the tenant is also protected by the obligation established by law the lessor to make major repairs in relation to the leased property (clause 1, article 616 of the Civil Code of the Russian Federation). In other words, on the one hand, the owner, who is certainly interested in the safety of his property, is protected by the tenant's obligation to return the property upon termination of the contract in good condition, on the other hand, the tenant, who is also interested in ensuring the safety of the same property located in his direct ownership is also protected by liability instruments, i.e., the statutory obligations of the lessor (owner) to maintain the leased property and eliminate deficiencies. Of course, in the situation we are considering, both participants in the lease relationship are interested in preserving the property: both the landlord and the tenant. The first - since the property belongs to him by right of ownership and is one of the components of his property sphere, the second - since most often he is the direct owner, carries out use of the property and is interested in continuing to extract useful properties and qualities from such property. And, in our opinion, it would not be right to pose the question in such a way that the decision determines which of the participants in the legal relations being assessed is more interested in preserving such property and, accordingly, who has the right to compensation for damage caused to property. It seems that from the point of view of assessing the economic interests of the participants in the turnover, in this case, both the lessee and the lessor should be recognized as victims, since both of them, although to a different extent, experience certain inconveniences in connection with damage to property belonging to them on the right of lease or ownership. . However, the law does not provide an unambiguous solution to the question of who exactly - the tenant or the landlord - should bear the property consequences of causing harm in this case. In our opinion, the solution of this issue directly depends on who exactly the law entrusts with the risk of accidental loss or damage to property. Risk as a danger of adverse consequences of a property or personal nature, regarding which it is not known whether they will occur or not, is characterized in contractual relations as “the probability of losses or other expenses that are not subject to compensation at the expense of the other party to the obligation, the condition for the occurrence of which is not the fault of the person, on whose property sphere they will be assigned by virtue of law or contract”<1>. In other words, when deciding who exactly should be recognized as the victim of damage to property leased, it is necessary to rely on whose property area (lessor or tenant) the adverse consequences of such damage belong to, in other words, which of the two carries the risk of accidental loss or damage to property. ———————————<1>Arkhipov D. A. Experience in the theory of risk in a contractual obligation // Actual problems of civil law. Issue. 9. M.: Norma, 2005. S. 399.

The indicated problem is solved in different ways in relation to different lease relations. So, according to Art. 669 of the Civil Code of the Russian Federation, which regulates financial lease (leasing) relations, the risk of accidental loss or accidental damage to the leased property passes to the tenant at the time of transfer of the leased property to him, unless otherwise provided by the financial lease agreement. In contrast to the general rule noted, the risk of accidental loss or damage to property is borne by the lessor<1>. ——————————— <1>Civil Law: Textbook: In 2 vols. T. 2. Polutom I / Ed. E. A. Sukhanova. M.: Wolters Kluver, 2004. S. 478.

Based on the foregoing, it is necessary to recognize the lessor as the victim of damage to property leased, except in cases of financial lease, in which, by direct indication of the law, the risk of accidental loss or damage to property is borne by the lessee. The correctness of the formulated thesis is also confirmed by the fact that, in accordance with Art. 639 of the Civil Code of the Russian Federation, which regulates relations related to the rental of a vehicle with a crew, in the event of the death or damage to the leased vehicle, the lessee is obliged to compensate the lessor for the losses caused only if the latter proves that the death or damage to the vehicle occurred due to circumstances for which the tenant is liable in accordance with the law or the lease agreement. Thus, as a general rule, the lessor bears the risk of accidental loss or damage to property; he, based on the logic adopted above, should be recognized as a victim in tort legal relations. In other words, in the case cited above, the court incorrectly concluded that when damage is caused to property leased, the damage is considered to be caused to the tenant; damage in such a situation should be considered caused to the lessor as the owner of the property. Based on the foregoing, we can draw two conclusions that are significant from the point of view of characterizing tort liability. Firstly, the landlord, not the tenant, should be recognized as the victim of damage to the leased property. Secondly, when determining the amount of harm caused, and hence the property equivalent of tort liability, only adverse consequences for the property sphere of the owner of the property should be taken into account, but not the impact of harm on the property status of the tenant. However, in this state of affairs, the lessee may also suffer non-contractual property damage, primarily due to the impossibility of using the leased property and extracting useful qualities and properties from such property. In addition, when damage is caused to the leased property, damage may be caused to the property of the tenant itself (for example, separable improvements to the leased property or property located in the leased premises). Thus, in one of the cases, the court recognized the tenant's claims for compensation for damage caused to the tenant's own property as a result of flooding of the leased premises as justified and subject to satisfaction.<1>. In the above cases, the harm expressed in the loss of profit of the tenant or in real damage caused to property owned by the tenant by right of ownership is subject to compensation by delinquent in favor of the tenant himself. Accordingly, claims for compensation for such damage can only be made by the tenant. ———————————<1>Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of May 25, 2007 in case N A28-2558 / 2006-146 / 9.

Is the landlord entitled to compensate the tenant in this situation, guided by Art. 612 of the Civil Code of the Russian Federation and the consideration that the shortcomings resulting from the damage prevent the use of property? The answer to this question should generally be positive. After all, the lessor is bound by the need, due to the existing obligation, to transfer to the tenant property suitable for the use established by the contract, and the obligation to carry out major repairs in relation to this property, if the actual need so requires (Article 616 of the Civil Code of the Russian Federation). However, the lessor has no obligation to compensate for damage in the form of lost profits of the lessee or the damage caused to the lessee's own property, since these losses are not related to the non-performance (improper performance) by the lessor of its obligations under the lease agreement. Thus, in the litigation we are considering at the very beginning of this section, the landlord should have been denied only part of his claims, namely those based on compensation for the tenant’s losses, expressed in downtime of his staff and the formation of lost profits, but not those that associated with the restoration by the tenant of the most damaged property (water supply). Accordingly, in this last part, the landlord had the right to turn to the delinquent with a claim for damages. Based on the foregoing, it can be argued that the same actions of a delinquent can give rise to obligations to compensate for harm to various persons, while the subject composition of such obligations will be determined not only by the property of the damaged property belonging to one or another person, but also by the nature of the harm caused to the victim, and in particular, whether such harm is expressed in real damage or in lost profits. The question of the right of the landlord in the situation under consideration to compensate the tenant for the damage caused in full and file a claim in recourse against the direct tortfeasor is not unambiguously resolved. Thus, in the court dispute considered above, the court refused the lessor, who compensated the lessee for the damage caused in full (including the part determined by the costs of restoring the damaged property), referring to the fact that the lessor is not a person who is assigned by law obligation to pay damages. At the same time, the court pointed out, in particular, that “by law, the obligation to compensate for harm can be assigned to a person who is not the tortfeasor (paragraph 2 of paragraph 1 of Article 1064 of the Civil Code of the Russian Federation). The relations of JSC Altai Tire Plant (lessee. - L.K.) and JSC Altai Tire Company (lessor. - L.K.), arising from the lease agreement, are not related to obligations due to damage. Another law, on the basis of which the obligation to compensate for harm should be assigned to a person (OJSC "Altai Tire Company"), who is not the tortfeasor, was not cited by the plaintiff. The court found that the person who was harmed was OJSC Altai Tire Plant. Considering the foregoing, the arbitral tribunal reasonably concluded that the plaintiff did not prove that he had the right of a retroactive claim (recourse) ... "<1>. ——————————— <1>Resolution of the Federal Antimonopoly Service of the West Siberian District of September 18, 2008 in case N F04-3012 / 2008 (9548-A03-16).

In other words, the court considered that the person who compensated the harm caused to the victim has the right of a retroactive claim (recourse) to the direct causer of the assessed harm only if the law directly imposes on the specified person the obligation to compensate for the harm caused to the victim, and such an obligation exists outside contractual relationship between the parties. Otherwise, in the opinion of the court, the person who compensated for the harm is deprived of the right to claim back (recourse) against the tortfeasor. Unfortunately, in the dispute being assessed, the court did not give a legal assessment of the relations that have developed between the tenant and the landlord as a result of compensation by the latter to the former for the damage caused. Probably, given that the landlord was neither the tortfeasor nor the person legally obliged to compensate for the damage, according to the above logic of the court, the funds received by the tenant in compensation should probably be regarded as his unjust enrichment (Article 1102 of the Civil Code of the Russian Federation). In our opinion, the decision of the court, which denies the landlord in the situation under consideration the right of a retroactive claim (recourse) against the delinquent, is fundamentally erroneous. Firstly, when compensating the lessee for the damage caused, the lessor acted within the legal framework defined by the contractual relations of the lease, being guided by the obligations arising from such relations to carry out, as necessary, major repairs of the leased property and to ensure the lessee the opportunity to use such property freely and in the manner established by the contract. . Secondly, paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation does not directly establish such restrictions as the need to establish by law an obligation to compensate for harm in relation to a person who has actually compensated for harm and is not at the same time its inflictor (delinquent). According to the literal text of this norm, “a person who has compensated for the harm caused by another person (an employee in the performance of his official, official or other labor duties, a person driving a vehicle, etc.) has the right to claim back (recourse) against this person in the amount of the compensation paid, unless a different amount is established by law. Some doubts, however, may be caused by the specific examples given in the article and by the indication that all other cases covered by the norm being assessed must be “similar”. We believe that the legislator, of course, could not proceed from the fact that any person, without any established legal grounds, has the right to compensate for the harm caused by a third party, and then apply to this latter in the manner of recourse. At the same time, the provision that the obligation of a person to compensate the harm caused to the victim should follow only from the norms of the law regulating obligations from causing harm is clearly not justified in any way. Such an obligation can equally follow from other norms of the law, and even from a contract. It is important that such a duty must have the necessary legal basis. Specific requirements for the characteristics of such a legal basis are not established by the legislator. In other words, in the situation we are considering with causing damage to leased property, as a general rule (unless otherwise provided by law or contract), the obligation of the landlord to compensate for the damage caused to the tenant (in terms of the costs of restoring damaged leased property) follows from Art. 612, 616 of the Civil Code of the Russian Federation, and therefore the lessor, who compensated for the harm caused in this part, should be recognized the right of a retroactive claim (recourse) against the delinquent. In support of what has been said, we will give an example from another contractual area - a storage agreement. It is known that, as a general rule, the custodian is liable to the bailor for the loss or damage to the property transferred for storage (Articles 891, 902 of the Civil Code of the Russian Federation). Despite the fact that the obligation of the custodian to compensate for the harm caused arises from contractual relations, judicial practice proceeds from the fact that in this case the custodian is endowed with the right to claim back against the tortfeasor (delinquent). In one of the cases, the judicial acts on which were subsequently canceled on a different basis, the court made precisely such conclusions. Thus, LLC "Master" filed a claim with the Arbitration Court against OJSC "Metallopttorg" for the recovery of a sum of money in accordance with paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. Stroydom LLC was involved in the case as a third party. As it was established by the court, Metallopttorg OJSC (lessor) and Master LLC (tenant) signed a lease agreement for non-residential premises used by the tenant as warehouses, including for storage of property of Stroydom LLC. By virtue of the terms of the storage agreement, the custodian (LLC "Master") was responsible for the loss, shortage or damage of the goods accepted for storage, unless he proves that such loss, shortage or damage occurred due to force majeure circumstances or as a result of intent or gross negligence of the bailor. A fire broke out in the indicated warehouse, as a result of which part of the goods stored in it was destroyed, the other part was damaged. LLC "Master", guided by the terms of the storage agreement, assumed the obligation to compensate for the damage caused to the bailor - LLC "Stroydom", after which, referring to the occurrence of a fire due to the fault of the lessor (JSC "Metallopttorg"), LLC "Master" went to court with a claim for damages by way of recourse on the basis of paragraph 1 of Art. 1081 of the Civil Code of the Russian Federation. The courts of all instances, resolving this dispute, proceeded from the fact that the right of a retrospective claim for compensation for harm to the delinquent in the situation under consideration, undoubtedly, should be recognized by the custodian<1>. ——————————— <1>Resolution of the FAS of the Central District of October 5, 2006 in case N A14-23079/2005/726/9.

Thus, an authorized person in a tort obligation should be recognized as a subject endowed with a property interest in preserving damaged property. These are some of the controversial issues of the institution of tort liability, regarding which there are no clear and unambiguous solutions in the practice and theory of civil law, the need for which nevertheless exists.

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Tort liability is liability for non-contractual damage caused. Its concept is formulated in Article 1064 of the Civil Code of the Russian Federation: harm caused to the person or property of a citizen, as well as harm caused to the property of a legal entity, will be compensated in full by the person who caused the harm.

The basis of tort liability is a legal fact, which is associated with a violation of the subjective right of the victim - the presence of harm. Liability conditions are the requirements specified in the law that characterize the basis of liability and are necessary for the application of appropriate sanctions. Thus, the basis and conditions of liability are closely interrelated categories. It is noted in the literature that the concepts of "grounds" and "conditions" of responsibility are often confused and mistakenly used as identical.

A number of authors recognize the "composition of a civil offense" as the basis for civil liability in the sense of a set of general, typical conditions, the presence of which is necessary for imposing responsibility on the offender. In addition, it is noted that the provision is unacceptable that in some cases a "limited" (truncated) corpus delicti is possible (for example, when the law provides for liability regardless of guilt and guilt is excluded from the elements of the corpus delicti).

The basis of civil liability (the only and general one), according to one of the opponents of the concept of the composition of the offense V.V. Vitryansky, is a violation of subjective civil rights, since civil liability is the responsibility of the offender to the victim, its general goal is to restore the violated right. But along with this, it is indicated that in order to apply civil liability, in addition to the grounds, it is necessary to have the conditions provided for by law, and the same conditions are called that the supporters of the civil offense are also investigating - violation of subjective civil rights, the presence of losses (harm), causal the relationship between the violation of rights and losses (harm), the fault of the offender.

In my opinion, in relation to tort obligations, the violation of subjective civil rights means the fact of causing harm. Thus, the basis of tort liability should be recognized as the fact of causing harm to the property of a citizen or legal entity or non-property benefits - life, health of a citizen.

In the literature, the view that harm is one of the conditions of tort liability has become widespread. However, such a view contains a contradiction in itself: if there is harm, then it is incorrect to say that harm is a condition of responsibility for this harm. In fact, harm (presence of harm) is the basis for the possible application of liability to a person who violated the subjective right of another person.

Harm is understood as property or non-property consequences unfavorable for the subject of civil law, resulting from damage or destruction of property belonging to him, as well as as a result of causing injury or death to a citizen (individual).

As stated in paragraph 1 of Article 1064 of the Civil Code of the Russian Federation, harm can be caused to a person "or" property ". Causing damage to property (property damage) means a violation of the property sphere of a person in the form of reducing his property benefits or detracting from their value. Sometimes property damage is determined as the difference between the financial situation of the victim before and after harm.

In the event of harm to a person, the object of the offense is intangible benefits - the life and health of a person. But when an obligation arises from causing such harm, mainly property consequences are taken into account, that is, property damage is subject to compensation. Only in cases provided for by law, compensation for non-pecuniary damage is also allowed (clause 1, article 151, clause 2, article 1099 of the Civil Code of the Russian Federation).

Property damage is often referred to as damage. For example, in Article 53 of the Constitution of the Russian Federation, the right of a citizen to compensation for damage is enshrined. The Civil Code of the Russian Federation consistently uses the term "harm". However, the word "damage" is sometimes used. For example, Article 1088 of the Civil Code of the Russian Federation provides for compensation to persons who have suffered damage as a result of the death of a breadwinner.

With the concepts of "harm", "damage" adjoins the concept of "loss". Loss is harm (damage), expressed in money. Thus, a loss is a monetary value of property damage.

The concept of "moral harm" has an independent meaning. Causing harm as an offense can be associated not only with property consequences, but also with consequences that do not have an assessment or are of little value.

If there is harm as a basis for tort liability, in order to apply coercive measures against the offender, it is necessary to establish the existence of conditions for tort liability. They are part of the general tort, that is, they have a general meaning and are subject to application, unless otherwise provided by law.

The conditions of tort liability are mandatory general requirements, the observance of which is necessary in the event that appropriate measures of responsibility - sanctions are applied to the offender, that is, to force him to fulfill the obligation to compensate for the harm.

A tort obligation and, accordingly, tort liability for causing harm arise under the following conditions:

The wrongfulness of the behavior of the person who caused the harm;

liability damage public authority

Causal relationship between the unlawful behavior of the tortfeasor and the resulting harm;

The fault of the person who caused the harm.

Behavior is recognized as illegal if, firstly, a person violates a rule of law and, secondly, simultaneously violates the subjective right of a particular person. For example, a citizen inadvertently thrown a metal object injured another citizen. As a result, the norms of objective law on the protection of human life and health and at the same time the subjective right of the victim to health were violated.

The law proceeds from the presumption of unlawfulness of the behavior that caused harm, which follows from the principle of general tort. In accordance with this principle, any infliction of harm to person or property should be considered unlawful, unless otherwise provided by law. It also follows from the named principle that the victim is not obliged to prove the unlawfulness of the behavior of the tortfeasor, since it is assumed.

Illegal behavior is expressed both in active actions (for example, the harm caused to a citizen as a result of the misuse of his name is subject to compensation) and inaction (for example, in connection with a violation of the mandatory rules on labor protection and safety at the enterprise, a group of workers was poisoned with poisonous gas).

In life, there are often situations when harm is caused, but the law does not recognize the behavior of the person who caused this harm as illegal. As a general rule, harm caused by lawful actions is not subject to compensation. For example, when extinguishing a fire, property in the fire zone is usually damaged, but the resulting damage is not recoverable if the actions of firefighters were carried out within the framework of the relevant rules.

Infliction of harm by an action is recognized as lawful, to the commission of which the consent of the victim himself is given, if it is expressed by a capable person and freely (for example, consent to organ transplantation).

A common case of lawful infliction of harm is infliction of it in a state of necessary defense. According to Article 1066 of the Civil Code of the Russian Federation, damage caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded. In addition, the law provides for the case when compensation for harm caused by lawful actions is allowed (Article 1067 of the Civil Code of the Russian Federation). The state of extreme defense is a situation when actions that cause harm are carried out in emergency conditions in order to eliminate the danger that threatens the tortfeasor himself or other persons, if this danger could not be eliminated by other means under the given circumstances.

A causal relationship between the action (inaction) of the tortfeasor and the harm is a prerequisite for the onset of tort liability. Causal relationship is a philosophical category that reflects such objective existing relationships in nature and society, in which some phenomena act as a cause, and others as a consequence. In the science of civil law, many theories of causality have been proposed. When considering specific cases on compensation for harm, when it is difficult to resolve the issue of a legally significant causal relationship, it is necessary to proceed from the fact that this result is almost always the result of a number of circumstances that are unequal in their significance - conditions.

The fault of the tortfeasor is one of the conditions of tort liability. For a long time in Soviet literature, the idea of ​​guilt as a mental attitude of a person to his behavior in the form of intent or negligence dominated. The law formulates the general rule on guilt as a condition of tort liability as follows: the person who caused harm is exempted from compensation for harm if he proves that the harm was caused through no fault of his (Clause 2, Article 1064 of the Civil Code of the Russian Federation). Thus, in civil law there is a presumption of guilt.

Guilt in civil law can be in the form of intent, gross and simple negligence. The form of guilt does not matter for the occurrence (non-occurrence) of liability, the condition of tort liability is not the form of guilt, but guilt as such. Guilt in the form of intent consists in intentional actions (inaction) aimed at causing harm. Guilt in the form of gross negligence is the failure to show any care and discretion in behavior; guilt in the form of simple negligence involves the failure to show due diligence and diligence in business. However, the form of guilt (degree of guilt) affects the size (volume) of liability, and in this case, the degree of guilt of both the tortfeasor and the victim must be taken into account.

Along with the general rule on guilt as a condition of tort liability, clause 2 of Article 1064 of the Civil Code of the Russian Federation indicates the possibility of an exception from it: the law may provide for compensation for harm even in the absence of the fault of the tortfeasor. Such exceptions are provided for by the rules on certain special torts, for example, on liability for harm caused by a source of increased danger (clause 1 of article 1079 of the Civil Code of the Russian Federation); on liability for harm caused by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 1070 of the Civil Code of the Russian Federation).

It should be said that the Civil Code of the Russian Federation plays an important role in protecting the rights and interests of citizens and legal entities that have been harmed. Firstly, there was an expansion of the spheres of legal regulation of property and related non-property legal relations. So, for example, there were norms providing for compensation for causing moral harm; secondly, if earlier many issues of this institution were enshrined in by-laws, in judicial practice, now they have been enshrined at the level of law. It should be noted that obligations from causing harm are mainly regulated in codification acts; thirdly, guarantees of the rights and interests of citizens and organizations that were harmed received further legal consolidation; fourthly, educational and preventive measures of influence were added to the guarantee and compensation measures (Article 1065 of the Civil Code of the Russian Federation).

The basis of tort liability is a legal fact, which is associated with a violation of the subjective right of the victim - the presence of harm. Liability conditions are the requirements specified in the law that characterize the basis of liability and are necessary for the application of appropriate sanctions. Thus, the basis and conditions of liability are closely interrelated categories.

A number of authors recognize the "composition of a civil offense" as the basis for civil liability in the sense of a set of general, typical conditions, the presence of which is necessary for imposing responsibility on the offender. Other authors, criticizing this concept, point to the unreasonableness of extending the provisions of criminal law on the elements of a crime to civil law relations, introducing into civil law, which has centuries-old traditions, criminal law doctrines alien to it. In addition, it is noted that the provision is unacceptable that in some cases a "limited" (truncated) corpus delicti is possible (for example, when the law provides for liability regardless of guilt and guilt is excluded from the elements of the corpus delicti).

The basis of civil liability (the only and general one), according to one of the opponents of the concept of the composition of a civil offense V.V. Vitryansky, is a violation of subjective civil rights, since civil liability is the responsibility of the violator to the victim, its general goal is to restore the violated right. But along with this, it is indicated that in order to apply civil liability, in addition to the grounds, it is necessary to have the conditions provided for by law, and the same conditions are called that the supporters of the civil offense are also investigating - violation of subjective civil rights, the presence of losses (harm), causal the relationship between the violation of rights and losses (harm), the fault of the offender. Thus, the criticism of the concept of a civil offense was not convincing enough.

Some authors consider an offense to be the basis of civil law, including tort liability. But this does not take into account that it is possible to qualify certain behavior as an offense only if the conditions of liability provided for by law are established. The basis of liability justifies the possibility of its application, but subject to the conditions established by law. Thus, the basis of tort liability is not an offense, but only the fact of causing harm. The conditions necessary for recognizing this fact as an offense (wrongfulness, causation, guilt) must be discovered (established) in the case of application of measures of responsibility (compensation for harm).

In the literature, the view that harm is one of the conditions of tort liability has become widespread. Such a view contains a contradiction in itself: if there is harm, then it is incorrect to say that it (harm) is a condition of responsibility for this harm. In fact, harm (presence of harm) is, as already mentioned, the basis for the possible application of liability to a person who violated the subjective right of another person.

If there is harm as a basis for tort liability, in order to apply coercive measures against the offender, it is necessary to establish the existence of conditions for tort liability. They are part of the general tort, i.e. are of general importance and are subject to application, unless otherwise provided by law.

The terms of tort liability are mandatory general requirements, the observance of which is necessary in the event that appropriate liability measures are applied to the offender - sanctions, i.e. to force him to fulfill the obligation to compensate for the damage.

A tort obligation and, accordingly, tort liability for causing harm arise under the following conditions:

  • - unlawfulness of the behavior of the person who caused harm;
  • - a causal relationship between the unlawful behavior of the tortfeasor and the resulting harm;
  • - the fault of the person who caused the harm.

The basis of tort liability is a legal fact, which is associated with a violation of the subjective right of the victim - the presence of harm. Liability conditions are the requirements specified in the law that characterize the basis of liability and are necessary for the application of appropriate sanctions. So, the basis and conditions of liability are closely interrelated categories Smirnov V.T., Sobchak A.A. The general doctrine of tort obligations in Soviet civil law. M., 1979. S. 56.

A number of authors recognize the "composition of a civil offense" as the basis for civil liability in the sense of a set of general, typical conditions, the presence of which? necessary to hold the offender liable.

Other authors, criticizing this concept, point to the unreasonableness of extending the provisions of criminal law on the elements of a crime to civil law relations, introducing into civil law, which has centuries-old traditions, criminal law doctrines alien to it. In addition, it is noted that the provision is unacceptable that in some cases a "limited" (truncated) corpus delicti is possible (for example, when the law provides for liability regardless of guilt and guilt is excluded from the elements of the corpus delicti). The basis of civil liability (the only and general one), according to one of the opponents of the concept of the composition of a civil offense V.V. Vitryansky, is a violation of subjective civil rights, since civil liability is the responsibility of the violator to the victim, its general goal is to restore the violated right. But along with this, it is indicated that in order to apply civil liability, in addition to the grounds, it is necessary to have the conditions provided for by law, and the same conditions are called that the supporters of the civil offense are also investigating - violation of subjective civil rights, the presence of losses (harm), causal the relationship between the violation of rights and losses (harm), the fault of the offender. So, the criticism of the concept of the composition of a civil offense was not convincing enough.

Some authors consider an offense to be the basis of civil law, including tort liability. But this does not take into account that it is possible to qualify certain behavior as an offense only if the conditions of liability provided for by law are established. The basis of liability justifies the possibility of its application, but subject to the conditions established by law. So, the basis of tort liability is not an offense, but only the fact of causing harm. The conditions necessary for recognizing this fact as an offense (wrongfulness, causation, guilt) must be discovered (established) in the case of application of measures of responsibility (compensation for harm). In the literature, the view that harm is one of the conditions of tort liability has become widespread. Such a view contains a contradiction in itself: if there is harm, then it is incorrect to say that it (harm) is a condition of responsibility for this very harm. In fact, harm (presence of harm) is, as already mentioned, the basis for the possible application of liability to a person who violated the subjective right of another person.

If there is harm as a basis for tort liability, in order to apply coercive measures against the offender, it is necessary to establish the existence of conditions for tort liability. They are part of the general tort, i.e. have a general meaning and are subject to application, unless otherwise provided by law Civil law. Textbook / Ed. A.P. Sergeev and Yu.K. Tolstoy. Part 2. M., 2006. S. 702.

The terms of tort liability are mandatory general requirements, the observance of which? it is necessary in the case of applying appropriate measures of responsibility to the offender - sanctions, i.e. to force him to fulfill the obligation to compensate for the damage.

A tort obligation and, accordingly, tort liability for infliction of harm arise in the presence of the following conditions: - the unlawfulness of the behavior of the person who caused the harm; - a causal relationship between the unlawful behavior of the tortfeasor and the resulting harm; - the fault of the person who caused the harm.

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