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  • Последствия нарушения должником залогодателя обязанности по исполнению заложенного требования в пользу залогодержателя (п. 3 ст. 358.6 ГК РФ)

Article

Последствия нарушения должником залогодателя обязанности по исполнению заложенного требования в пользу залогодержателя (п. 3 ст. 358.6 ГК РФ)

Волчанский М. А.

The article studies the consequences of the debtor’s breach of the obligation to fulfill the pledged
claim (receivable) in favour of the mortgagor, as opposed to the nominal creditor who pledged the
claim. The author criticises the literal interpretation of the rules of the Civil Code of the Russian
Federation, which in fact allows the debtor and the mortgagor to ignore the right of the pledgee to
receive performance under the pledged claim, giving him only the right to debt acceleration. As an
alternative interpretation, it is proposed that, as a general rule, a debtor duly notified of the pledge
of a claim and of a change of the person authorised to accept execution may only terminate its
obligation by giving perfomance to the mortgagee. At the same time, the right to debt acceleration
is an additional protection mechanism for the latter, which does not exclude the use of the main way
to extract value from a claim — the right to independently receive the performance of the pledged
obligation. The author notes that dogmatic explanation of this mortgagee’s right can be seen: 1) in the
institute of creditors’ subordination (where the mortgagee, being one of the creditors along with the
mortgagor, has the exclusive right to receive execution under the pledged obligation); 2) in the institute
of substituting representation (where the mortgagee, being the legal representative of the mortgagor,
substitutes the latter in terms of powers related to obtaining execution under the pledged obligation).
At the same time the paper argues that the said right of the mortgagee to receive performance should
be excluded in the event of bankruptcy of the mortgagor, taking into account the need to protect
interests of other creditors of the latter. Such restriction should not deprive the pledgee of the right
to receive satisfaction of his claims (within the limits established by the Law on Bankruptcy) prior to
unsecured creditors from the property delivered to the bankrupt’s assets by the debtor under the
pledged obligation.