Civil liability in the Russian legislation: the concept and conditions of the offensive

Civil turnover is a legal field in which actors interact freely with each other to satisfy their needs through free will. Relationships and obligations arising between people in this case are regulated not only by legislation, but also by the provisions of the contracts they signed. A guarantee of fulfillment of each of the parties of their duties under the contract is a civil liability.

Some authors consider this category as a form of bona fide and proactive implementation of activities, which is supposed to be a relevant treaty. According to the group of theorists, civil liability is positive.

Critics of this approach lead to more convincing arguments. They point to the difference between the concepts of "fulfillment of obligations" and "civil liability". The difference lies in the fact that these categories belong to different institutions, in addition, the obligations of the contract party and the debtor under the contract do not coincide.

The essence of this opposition lies in the fact that a conscientious subject of legal relations to achieve his goals and in accordance with the contract of his own free will grant the opponent tangible or intangible benefits, reasonably counting on commensurate compensation - full fulfillment of obligations by the other party.

As a debtor, a person is forced to suffer additional losses and other negative consequences. Thus, the benefits obtained and the efforts expended are no longer proportionate. Unequal exchange, by definition, does not correspond to the idea of a voluntary agreement, therefore the concept of civil liability can not be equated with the obligations of the subject under the contract. The latter in this regard can not be called positive.

Civil liability is a kind of state-sanctioned coercion. It is expressed in the application to the guilty party of property sanctions with a view to restoring the rights of the subject and to the extent that it fulfills this task. In addition, this legal category was introduced to stimulate normal economic relations between people.

The terms of civil liability include:

• Harm to one of the participants in the transaction. Here we mean the depreciation of the good that a person (organization) should have received. Financial assessment and compensation for harm to the transaction participant is called a loss.
• Causal correlation between the failure of one party to the contract and the occurrence of harm for another.
• The unlawful nature of the act of the guilty person (the commission of actions that contradict the rule that applies to this participant in the transaction).

Responsibility can be contractual and extra-contractual. In the first case, the obligations arise from violation of the terms of the contract, in the second, the reason is to cause the person harm, not connected with a legal agreement with him or in the absence thereof.