Storage contract - Civil law. The special part

Storage contract

In accordance with paragraph 1 of Art. 886 CC under the contract of storage, one party (the keeper) undertakes to keep the thing transferred to it by the other party (bailor), and to return this thing in safety.

The above rule contains the classic definition of a storage contract, according to which this contract is one-way (obliged custodian), royalty and real. However, such a definition basically corresponds to the relationship that arises about the storage of things in the domestic sphere. In the same cases, when a commercial legal entity or an individual entrepreneur who is storing as one of the purposes of his business acts as a custodian sional activities, ie professional custodian , the storage contract takes on a different character. In the professional sphere, he acts as a bilateral, reimbursable and, as a rule, consensual contract.

Under the thing as storage object is meant movable property (other than storage in order of sequestration, the object of which are immovables). In this case, we mean an individually-defined thing, a hack and a thing determined by generic attributes.

The admissibility as a storage object of a thing, determined by generic characteristics, allows using the storage option with the depiction (item 890 GK), which involves mixing things of one bailor with things of the same kind of other bailors. However, this kind of storage is allowed only when its application is directly stipulated by the parties in the contract.

As with other types of services, as a general rule, storage must be performed by an obligated subject personally.

In contrast to the subject of the contract, the term of storage within the meaning of Art. 889 CC is not an essential condition of the contract. It is established in the contract or is determined on the basis of the terms of the contract, i.e. in accordance with the reasonable period of preservation of the thing deposited, or its preservation of any useful property. Shelf life can also be determined by the moment the goods are claimed by the bailor (clause 2, article 889 of the Civil Code).

Form when concluding a storage contract is determined depending on the type and circumstances of its conclusion under the general rules of Art. 161 CC. If the parties to the contract are citizens (household storage), they must enter into this agreement in writing only in cases where the value of the thing transferred to storage exceeds not less than 10 times the law minimum wage. Consensual storage contract, i.e. the contract providing for the duty of the custodian to accept the thing for storage in the future must be concluded in writing, regardless of the composition of the participants of this contract and the value of the thing transferred for safekeeping. In the presence of extraordinary circumstances (fire, natural disaster, sudden illness, threat of attack, etc.), the storage contract can be concluded orally. Accordingly, the fact of transfer of a thing for storage in the specified cases can be confirmed by a testimony.

A simple written form of a storage contract is considered to have been met if the acceptance of the thing for storage is certified by the custodian by issuing to the depositor:

• a secure receipt, receipt, certificate or other document signed by the custodian;

• a numbered token (number), a different (legitimate) sign certifying the receipt of things for storage, if such a form of confirmation of storage is provided for by law or other legal act or is customary for this type of storage.

Failure to comply with the simple written form of the storage contract does not deprive the party of the right to refer to the testimony in the event of a dispute over the identity of the storage item and the thing returned by the keeper (Article 887 of the Civil Code).

The duties of the depositor include the obligation to deliver the item for safekeeping to the custodian about the dangerous properties of the thing.

After the expiration of the stipulated storage period or the period provided by the custodian for of the return receipt of the item on the basis of cl. 899 ГК, the depositor is obliged to immediately pick up the thing transferred for safekeeping.

If the storage is carried out on a reimbursable basis, the most important duty of the depositor is to pay the custodian remuneration for storage. According to Art. 896 CC, unless otherwise provided by the storage agreement, the storage fee shall be paid to the custodian at the end of storage, and if the storage payment is provided for by periods, it shall be paid by the relevant parts upon expiry of each period.

If, after the expiry of the period of storage, the thing stored in storage is not taken back by the depositor, he must pay the custodian a commensurate remuneration for the further storage of the thing. This rule applies also in the case when the bailor is obliged to pick up a thing before the expiration of the storage period.

Unless otherwise provided by the contract, the storage costs of the thing to be carried by the custodian shall be included in the fee for storage. In case of unpaid storage of things, the depositor is obliged to reimburse the custodian for the necessary expenses incurred for the storage of the thing, unless otherwise stipulated by law or a storage contract (Article 897 of the Civil Code).

The duty of the custodian is, first of all, the obligation to take the thing for storage. However, unless otherwise provided by the contract, he is released from this obligation in the event that in the period stipulated by the contract the thing will not be transferred to him (paragraph 2 of Article 888 of the Civil Code).

The main duty of the custodian is to keep things. Storing things is nothing more than ensuring its safety. According to Art. 891 CC of the custodian is obliged to take all measures provided for by the storage agreement in order to ensure the safety of the thing transferred for storage. In any case, the custodian must take measures to keep the thing passed to him, the legality of which is prescribed by law, other legal acts or in the order established by them (fire, sanitary, security, etc.). In the absence of conditions on such measures or incompleteness of such conditions in the contract, the custodian must take measures to preserve the thing that correspond to the customs of business turnover and the essence of the obligation, including the properties of the thing transferred to storage, unless the need for taking these measures is excluded by the contract. If the storage is free of charge, the custodian is obliged to take care of the thing not less him about his things.

The custodian is not entitled without the consent of the bailor to use a stored item, as well as granting the possibility of using it to third parties, except when the use of a stored item is necessary to secure it safety and does not contradict the storage contract (Article 892 GK).

The custodian who accepted the thing is obliged to keep it during the period stipulated by the contract of storage or within the period determined on the basis of the terms of the contract, or until the goods are claimed by the bailor. If the period of storage of a thing is determined by the moment of its demand, the custodian has the right after the usual period of storage of the thing to demand from the transferor to take back the thing, having given him a reasonable time for this. The failure of the pledgee to perform this obligation entails the consequences provided for in Art. 899 GK.

The custodian is obliged at the first request to return to the bailor or linden specified by him as the recipient, the very thing that was deposited, unless the contract provides for storage with depersonalization . The thing must be returned by the custodian in the state in which it was accepted for storage, taking into account its natural deterioration, natural loss or other change due to its natural properties. Simultaneously with the return of the thing, the custodian is obliged to transfer the fruits and incomes received for the time of its storage, unless otherwise stipulated by the storage contract (Articles 900, 904 of the Civil Code).

The custodian is responsible for the loss, shortage or damage of things taken for storage on the general grounds specified in Art. 401 CC. A professional custodian is responsible for the non-preservation of the things handed over to him unless he proves that their loss, shortage or damage occurred due to force majeure, or because of the properties of the thing that the custodian, when taking it into storage, did not know and should not have known, or as a result of intent or gross negligence of the depositor. For the loss, shortage or damage of the things accepted for storage after the bailor's duty has come to take these things back, the keeper responds only if there is intent on his part or gross negligence.

On the nature of the obligation arising from the contract of storage, and some features of termination of this contract. So, the bailor has the right to refuse this contract at any time, including before the beginning of its execution, which follows from the content of the norms of Cl. 1, Art. 888, art. 904 GK.

The above rules relating to the storage contract apply to storage obligations arising from the law, ie. without entering into an agreement, unless other rules are established by law (Article 906 of the Civil Code).

Under a storage contract, a warehouse (custodian) undertakes for a fee store > (item 1 of item 907 ГК).

A warehouse recognizes an organization (or an individual entrepreneur) that performs as an entrepreneurial activity storage of goods and providing related to the storage of services. Among the existing warehouses are warehouses of general use. In accordance with Art. 908 CC of a commodity warehouse is considered to be a general warehouse if from a law, other legal acts or a permit (license) issued to this commercial organization, it follows that it is obliged to take goods for storage from any goods owner. Accordingly, a storage contract concluded by a public warehousing warehouse is recognized as a public contract (Article 426 of the Civil Code ).

The storage contract in the warehouse is consensual, paid and bilateral.

The object of storage under the contract of storage in a commodity warehouse is not simply a thing, but a thing as a commodity, i.e. product of labor, intended for subsequent sale, and not for consumption. At the same time, as a general rule, we are talking about things defined by generic attributes.

An essential feature of this type of storage contract is that the custodian (commodity warehouse) has the right to dispose of the goods transferred to him, if such condition is provided by law, other legal act or contract. At the same time, the rules of Ch. 42 GK on the loan, but the time and place of return of goods are determined by the rules of Ch. 47 GK on storage (item 918 GK). From the foregoing it follows that in the case of the sale of goods in the possession of a commercial organization recognized as a commodity warehouse, the latter is obliged to return to the depositor the amount of things of the same kind and quality that have been deposited for storage.

When transferring the goods with the goods to the warehouse, the right to dispose of this commodity ownership for this product arises from the custodian (ie at the commodity warehouse), and the depositor remains claim right to return the same amount of a homogeneous product.

Although when storing in a commodity warehouse, the object of storage is most often the items determined by generic attributes, it is assumed separate storage of these things, i.e. without their depersonalization and confusion with homogeneous goods. Storage in a stock of things with depersonalization should be directly stipulated by the contract.

The specifics of the storage contract at the warehouse, which is carried out by issuing one of three types of warehouse documents. According to Art. 912 Civil Code the commodity warehouse issues one of the following documents in confirmation of acceptance of the goods for storage:

• A double warehouse certificate;

• a simple warehouse certificate;

• warehouse receipt.

The warehouse document certifies:

• the fact of entering into a storage contract in a warehouse in writing;

• The fact of taking the goods for storage by a warehouse.

Double and simple warehouse certificates are Commodity securities , which allow the owners of these documents to exercise the turnover of the rights to the goods without moving the goods that remain in the warehouse.

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Double warehouse certificate is a security consisting of two parts: warehouse receipt itself and a security certificate (warrant - warrant), which can be separated from each other and each of which is also a security. In each of these parts must contain the same details specified in paragraph 1 of Art. 913 CC. A double warehouse certificate is issued to the goods owner by a commodity warehouse in the certificate of acceptance of a certain goods for storage and the right of the holder of this security to receive the transferred goods in person or to transfer this right to another person by making a transfer inscription. Thus, a double warehouse certificate is simultaneously a order security and a document of title.

The peculiarity of storage carried out with the issuance of a double warehouse certificate is that the commodity owner who has handed over the goods belonging to him for storage has two specific possibilities. Firstly, he can transfer to a third party the right to receive the goods handed over to him for storage, passing on the transfer inscription to that person the warehouse certificate itself. Secondly, if necessary, the owner of the goods transferred to the custodian has the right to lay it to a third party, transferring the last mortgage certificate as a security confirming the holder's right to pledged goods. Since both the warehouse and the pledge certificate are order securities, they can pass from hand to hand repeatedly, both together and separately (Article 915 of the Civil Code). The absence of a pledge certificate from the holder of the warehouse certificate indicates the existence of a pledge charge by a third party.

In accordance with the above, the actual warehouse certificate as a separate document in the absence of its holder of a security certificate acts as a document certifying /strong> for a product that is under collateral. A security certificate (warrant), also taken as a separate document, in the absence of its holder's own warehouse certificate certifies lien for the goods. The presence of a set of both parts of the document certifies the real right for the goods free of the encumbrance.

Accordingly, the holder of warehouse and pledge certificates has the right to dispose of the goods in full stored in the warehouse and to give him the goods in a warehouse (item I, article 914, p. 1 item 916 GK). He has the right to demand the delivery of goods in parts. In this case, in exchange for initial certificates, new certificates for the goods left in the warehouse are issued to him (clause 4, article 916 of the Civil Code). The holder of the warehouse certificate, separated from the pledge certificate, has the right to dispose of the goods, but can not take it from the warehouse to the repayment of the loan issued on the mortgage certificate (clause 2 of article 914 CC). The presentation by the seller of receipts, confirming the payment of the secured debt, compensates for the lack of a pledge certificate. In this case, the owner of goods on the basis of paragraph 2 of Art. 916 CC may require the goods warehouse to issue goods, as if a double warehouse certificate was included. The holder of the security certificate, other than the holder of the warehouse certificate, is entitled to the right of re-negotiation of the goods in the amount of the loan issued, taking into account the interest payable. Before the maturity of the loan, the holder of the warrant is entitled to dispose of it at his own discretion as a new pledgor. On the subsequent committed pledges on the warrant should be taken appropriate marks (paragraph 3 of Article 914 GK).

The goods warehouse that issued the goods to the holder of the warehouse certificate, which does not have a pledge certificate and did not pay the amount of debt on it, in accordance with cl. 916 CC is liable to the holder of the security certificate for payment of the entire amount secured by it.

The simple warehouse certificate differs from the double one in that, firstly, it is a bearer secondly, it is a single, indivisible document. This certificate simultaneously certifies the proprietary right of the owner of the goods, the lien of the creditor of the goods owner and the obligation of the goods warehouse. A simple warehouse certificate must contain the same requisites as a double warehouse certificate (Article 913 GK), except for the name and location of the goods owner. This certificate must also state that it was issued to the bearer.

Warehouse receipt is not a security. It only confirms the fact of the conclusion of the storage contract in the commodity warehouse and certifies the right of the transferor to demand the return of the goods.

In Section 3 of Ch. 47 GK contains the rules regulating special types of storage. The latter include storage, which is carried out:

• pawnshop;

• bank;

• The public transport organization that manages the storage chambers;

• an organization that offers its customers storage services in the wardrobe;

• hotel (as well as an equivalent organization that provides hotel services);

• a subject that provides services for storing a thing that is the subject of a dispute (sequestration).

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