Non-contractual guarding obligations: the state 205 of legislation and civil doctrine

During the modern period one of the most significant criterion for differentiation of obligations are their functions or their orientation. According to this criterion, all obligations can be differentiated into two groups: regulatory obligations and guarding ones. The first group covers obligations, which mediate normally arising economic relations. The second group of obligations arises when the movement of material benefits and their reservation for certain persons in this or that link is broken. It is remarkable that a guarding legal relationship was the first type of a binding legal relationship, and delictual relations form the source of liability law. The most prominent Russian civilian of the beginning of the last century I. A. Pokrovsky investigated the general historical evolution of obligations and concluded that the most ancient germ of binding relations lies in the field of torts, in the sphere of delicts. The history of emergence of such a division of obligations is interesting. In Rome, they separated the following obligations on the bases of their origin: 1) contractual (excontractu); 2) obligations arising from offences (exdelicto); 3) obligations as if under the contract (qua-siexcontractu); 4) obligations as if from an offence (quasiexdelicto). In their turn, obligations as if under the contract included: a) acting without mandate (negotiorum gestio) and b) infliction of harm without evil intention. Thus, Roman law had no accurate division of obligations into guarding and regulatory ones. However, when classifying obligations according to the will parties, the Roman sources separate two groups: 1) obligations arising from lawful actions of the parties and 2) obligations arising from offences (delicts) [2. Page 370]. There was no general category of guarding obligations in the legislation of Russia. The Code of civil laws of the Russian Empire did not have separate sections on guarding obligations, only Chapter 5 contained norms on negative civil consequences of illegal actions out of the contract. In the current Civil Code of the Russian Federation, the number of chapters devoted to obligations out of the contract has significantly increased: Chapter 50 (acting in others' interests without a mandate); Chapter 56 (pledge of an award); Chapter 58 (holding games and bet). Nevertheless, the general rules about guarding obligations continue to be absent. New Article 307.1 of the Civil Code of the Russian Federation cannot claim to a role of the general norm on guarding obligations.

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