The obligations «not to alienate the thing» and «not to assign» as separate types of negative obligations

Abstract

The relevance of the stated topic is determined by the lack of scientific developments in the national law regarding the obligations "not to alienate the thing" and "not to assign". These obligations are types of negative obligations that consist in refraining from certain actions. The subject of the obligations "not to alienate the thing" and "not to transfer the right" is to refrain from the act of transferring a certain thing or right to a third party by the debtor. The author has set a goal to investigate the specifics of obligations regarding non-alienation of a thing (pactum de non alienando) and non-assignment of rights (pactum de non cedendo). In the course of the study, the author offered answers to the questions regarding the features of the obligations "not to alienate" and "not to assign " compared to other negative obligations, regarding the validity of the acts committed in violation of these obligations and the legal consequences for the debtor who, contrary to the prohibition alienated the thing or assigned the right.

The following types of obligations were analyzed: "not to alienate the subject of the pledge without the consent of the creditor", "not to sell the goods, in respect of which there is a clause on the retention of ownership by the seller until full payment", "not to assign the right of claim to a third party". All these obligations are accessorymas they are established only if the main obligation exists. The article clarifies that the consequences of the specified obligations differ depending on the powers of the obligated person.

The pledgor, in whose possession the object of pledge remains, is the owner of the thing, and therefore cannot lose the authority to dispose of it. The author emphasizes that the absence of the pledgee's consent to its alienation should not affect the validity of the deed itself regarding the alienation of the subject of the pledge. Alienation by the pledgor of the pledged thing does not terminate the pledge, which is the right to someone else's property, and therefore the creditor under the pledge does not lose the opportunity to collect in case of non-fulfillment of the main obligation by the debtor. However, in the judicial practice of Ukraine, such deeds regarding alienation of the subject of pledge without the consent of the creditor are recognized as invalid.

Regarding the transaction by the buyer of the goods, the ownership of which is retained by the seller until payment (on the basis of the norm of Article 697 of the Civil Code of Ukraine), a different solution is proposed: since the buyer has not acquired the right of ownership, he cannot transfer it to another person, and therefore the transaction regarding alienation of this product will not create legal consequences for the acquirer.

Acts committed in violation of the obligation "not to assign" should be considered valid, since the contractual prohibition in itself is not a reason for declaring the acts invalid. The lack of consent of the debtor for the main obligation does not  affect  the validity of the assignment agreement. This conclusion is not supported by judicial practice, in which debt recovery is denied to new creditors who have acquired the right of claim, which the original creditor withdrew without the debtor's consent, contrary to the terms of the contract.

In case of violation of the obligations "not to alienate the thing" and "not to assign", general legal consequences should be аpplied, in particular, the collection of the contractual penalty, termination of the main contract, collection of damages.