Who should be charged with restitution if the transaction was...

Who should be charged with restitution if the transaction was made on behalf of the United States?

If we continue the line that was started earlier, then the obligation to restitution must be assigned to the United States, regardless of which body the deal is made, since in any case the public authority acts on behalf of the United States, and not on its own behalf, which makes this construction similar to the contract of commission. However, here we are dealing with an exception, the justified specificity of the United States as a subject of civil legal relations. The fact is that in relations governed by civil legislation, the United States acts through its own bodies (clauses 1, 3 of Article 125 of the Civil Code of the United States), just as a legal entity does (paragraph 1 of Article 53 of the Civil Code of the United States). And just as the bodies of a legal entity are not representatives of a legal entity, state bodies are not state representatives. And if so, government bodies should not be seen as "intermediaries"; between the United States and other subjects of civil rights and not as its representatives, but as one of the incarnations of the United States. Consequently, it is quite justifiable to place the obligation of restitution on them.

The arguments set forth above are corroborated by the practice of the courts, which is clearly seen in examples of disputes involving the United States Federal Property Fund (RFBR (before its liquidation and creation of the Federal Agency for State Property Management in accordance with Presidential Decree No. 724 of 12.05.2008. In particular, in one of the cases the court pointed out that, in accordance with the legislation on privatization, the authority of the seller of federal property is exercised by the RFFI and the body specially authorized to repay the funds Invalid Transactions privatization, the legislator has not determined at this organization and implementation of the requirements of paragraph should be entrusted. 2, Art. 167 of the US Civil Code on the return of funds received under an invalid transaction (FAS Resolution of the Urals District No. F09-7040/06-C2 of August 21, 2006). In another case, in satisfying the claim for the application of the consequences of the invalidity of the transaction, the court indicated that the RFFI was the party to the sale of federal property, and the law specified the source of the funds to be returned - cash received from other completed state property purchase transactions, therefore, there is a basis for recovering the money received through an illegal transaction with the RFBR (FAS resolution of the Urals District No. F09-7399/06-C6 of August 28, 2006).

Is it possible to apply restitution in addition to the will of the person restored in the original position?

In the practice of courts of general jurisdiction, difficulties arose in determining the consequences of the invalidity of a transaction in cases where the immovable property that was the subject of the invalid transaction was in common shared or joint ownership before its alienation, with one of the owners (or its successors) require the recognition of the transaction as invalid and the return of all immovable property to the property, but does not the other owner of such claims present or object to it? Is it possible to satisfy the demands for the return of the real estate object (and not the stake) to the ownership of both owners, when one of the co-owners does not demand the return of property to the property or objects to it, but the subject of the contract is defined as a real estate object (apartment, house and etc.), rather than a share in the right to this real estate? (see the information on the results of the generalization of the judicial practice for 2006-2008 on the consideration by the courts of civil cases related to the protection of rights to immovable property made by the judge of the Supreme Court of the Udmurt Republic A. V. Solonyak).

On the one hand, restitution, in addition to the will of one of the subjects of the right of common property, is unacceptable, since the demand for restitution can be considered one of the types of requirements for the introduction into the possession. In this case, according to Art. 247 of the US Civil Code possession is carried out by agreement of all participants of the right of common share ownership. A similar rule applies to the law of common joint ownership: members of joint ownership, unless otherwise provided by an agreement between them, together own and use common property (Article 253 of the Civil Code of the United States). Thus, the application of restitution, in addition to the will of one of the co-owners, could be regarded as the imposition of possession, which is not permitted by virtue of the principle formulated in paragraph 2 of Art. 1 of the Civil Code of the United States: citizens (individuals) and legal entities acquire and exercise their civil rights by their will and in their interest, and also by virtue of the provisions of Art. 247, 253 of the US Civil Code.

On the other hand, the recognition of a transaction as invalid entails a loss of ownership of the acquirer, if the transaction is contested, or a statement of the lack of such right of the acquirer, if the transaction is negligible (paragraph 1 of Article 167 of the Civil Code of the United States). In either of these cases, the alien is again recognized as the owner, and the acquirer of this right is deprived. From these positions, restitution should be regarded as an act of combining the powers of possession with possession as an actual state. With this approach, the argument for the acquisition of a right is not justified, in addition to the will, as well as any other argument based on a violation of law, since restitution is aimed at restoring the actual state.

In addition, if one's reluctance to own property is put on one scales of the balance, and the need to restore the violated right to another, the latter should be weighed down by the principle of "least evil": if the co-owner who does not agree with restitution does not seek to own property, he can refuse to exercise the powers of possession or from the property right as a whole, thus restoring the desired position for himself; if you allow a refusal to restitution, the one requiring its co-owner will not regain the status you seek.

As for the question of the return of all property or a share in the law in it, then one can say unequivocally: the entire object is subject to return, if it was the subject of the transaction. Indeed, the US Civil Code contains a provision according to which the invalidity of a part of the transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without including an invalid part thereof (Article 180 of the Civil Code of the United States). However, this provision does not allow the return of a share in the right of common shared property for the alienation of all property, since the share in the right of common ownership is not even part of the transferred object, not to mention the part of the transaction.

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