Assignment to performance of duties in kind as a way to protect the rights of the creditor in a contractual obligation

One of the most popular ways of protecting the rights of a creditor in an obligation in court practice is the award of performance of the obligation in kind. Formed in the depths of the pre-revolutionary legal order and developed in Soviet civil law, it was only expressed quite definitely in a specific rule of the general part of the law of obligations in 2015. Article 308.3 of the Russian Civil Code gave the creditor, in the form of a general rule, the right to demand from the court the performance of an obligation in kind, unless otherwise provided by law, a contract or arising from the substance of the obligation, and secured its realisation by a sum of money which the court may award in its favour at the creditor's request in the event of non-performance of a judicial act (a judicial penalty). At the same time, the legislator failed to form a proper legal image of this method of protection: its concept, forms (methods) of implementation are not defined, the areas and limits (boundaries) of application are not established. The lack of guidance in the law has traditionally been compensated for by legal positions developed in judicial practice. The most important issue is the cases that exclude the application of this method of protection. In the case law, these cases are caused by the impossibility of enforcing the obligation; the impossibility of enforcing the judgement that granted the creditor's claim to enforce the obligation in kind; and the failure to meet the requirements of efficiency, expediency and adequacy. The latter is manifested in the effectiveness of this method of protection, in its ability to ensure the achievement of the objective of protection in the form of restoration of the violated right. This approach is inconsistent with the principles of dispositiveness on which civil law regulation is based. By virtue of these principles, the persons concerned are free to exercise their civil rights and to choose at their own discretion the forms and means of protecting their rights which are not prohibited by law; no one may be compelled to choose a particular means of protecting an infringed right. This freedom may be restricted only on the basis of federal law. The opinion of the court that the method of protection chosen by the person concerned cannot lead to the restoration of the infringed right is not a basis for refusing to satisfy a legally declared claim, including such a claim as to perform the obligation in kind, unless the court finds evidence of abuse of the right of protection (Article 10 of the Civil Code). The Civil Code should be the appropriate level of solution to the problems that exist in the area of such a method of protection as the in-kind performance of an obligation, which should form a set of rules clarifying its concept, defining the areas of application, as well as cases where forcing the debtor to actually perform an obligation is not allowed.

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