Kazachenok O.P. Controversial Issues of Deposit Application as a Way of Securing Obligations Under the Preliminary Agreement
Kazachenok Olesya Pavlovna
Candidate of Juridical Sciences, Associate Professor, Department of Civil and International Private Law, Volgograd State University, Base Department of Southern Scientific Center of the Russian Academy of Sciences (SSC RAS)
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Abstract. The article discusses the different academic views on the possibility of securing obligations under the preliminary agreement by means of deposit. Most academicians suggest that the deposit may be applied only to monetary obligations in contrast to the preliminary agreement. The author carries out thorough analysis of judicial practice, which has been divided into two opposite positions. The system of arbitration courts rejects the claims on the validity of consequences of violated obligations secured by the deposit. According to the arbitration, the payments upon preliminary agreement cannot be considered as the deposit, even if they are referred to as the deposit in the agreement. The courts of general jurisdiction, including the Supreme Court of the Russian Federation, declare in their decisions that the civil legislation does not exclude the application of the deposit to the preliminary agreement. These contradictions provoke destabilization in the system of civil legal relations. The author gives recommendations to the economic entities to refrain from including provisions on the deposit into preliminary agreements and to apply other forms of securing obligations, such as penalty. The author also proposes to make appropriate amendments to the Civil code of the Russian Federation for regulating studied legal relations.
Key words: deposit, preliminary agreement, securing obligations, problems of deposit use, reform of the civil legislation.
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