Security Purchase and Sale as an Unnamed Method of Ensuring the Fulfillment of Obligations

Proper fulfillment of obligations is the key to stability of property turnover. Participants in civil legal relations strive to create maximum guarantees for the fulfillment of obligations by their counterparties, they resort to various methods of ensuring the fulfillment of obligations, including those directly unnamed in the law. In scientific literature and law enforcement practice, an ambiguous attitude has been formed to such an unnamed method as a security purchase and sale. Due to the lack of appropriate legal regulation, a number of questions arise about the implementation of this institution in modern conditions.

The purpose of the article is to form a scientifically based approach to a security purchase and sale as an unnamed method of ensuring the fulfillment of obligations and the features of its implementation in the domestic legal order. The goal of the article is achieved by solving the following problems: determining the distinctive features of a security purchase and sale, identifying the principles of the rule of law applicable to these relations, establishing the prospects for the development of the corresponding institution in the domestic legal order.

The article was prepared using general scientific methods (systemic, logical) and special legal methods (comparative-legal, formal-legal).

The authors come to the conclusion that at the moment there are not sufficient prerequisites for the use of secured sale and purchase in the Russian legal order. Due to the lack of appropriate legal regulation, many questions do not have a clear answer, in terms of ensuring the proportionality of satisfying the creditor’s claim, the fate of the subject of sale and purchase in the event of bankruptcy of the creditor, etc. Thus, the lack of appropriate legal regulation carries significant risks of violating the balance of interests of the parties, which is the reason for the courts to recognize this transaction as fictitious (covering up the pledge). At the same time, in the presence of appropriate legal regulation, secured sale and purchase can be a very effective way to ensure the fulfillment of obligations.