The dissertation is devoted to a comprehensive study of theoretical and practical problems of the essence and content of material named and unnamed methods of securing the performance of obligations.
The dissertation substantiates an approach to understanding material methods of securing the performance of obligations as methods of protecting civil rights, which are applied by the creditor in case of breach of obligation. Based on this, the paper concludes that the main functions of methods of securing the performance of obligations are stimulating and protective, of which the protective is the main function.
Based on the analysis of doctrinal sources, it is determined that the main feature of methods of securing the performance of obligations, which distinguishes them from other methods of protecting the creditor’s rights, is the presence of a security source – certain property or the obligation of a third party to the creditor. Based on the composition of the security source, it is proposed to consider the division of methods of securing the performance of obligations into material and personal as determinative.
The study proves that material methods of security are more reliable than personal ones, since the satisfaction of the creditor’s claims occurs at the expense of certain property, and does not depend on the solvency of the debtor.
The definition of material methods of securing the performance of obligations is formulated as methods of protecting civil rights of participants in contractual relations established by contract, law or court decision, which are established in case of possible breach by the debtor of the main obligation and give the creditor the right in such a case to receive satisfaction of their claims at the expense of certain property or sum of money (a specially designated property security source).
It is substantiated that the implementation of the material method of security is carried out by the creditor both in the form of self-defense and in the jurisdictional form of rights protection. The right to implement the material type of security for the performance of the obligation always belongs to the creditor under the secured obligation and cannot be assigned without the transfer of rights of claim under it.
Based on the classifications of methods of securing the performance of obligations existing in the scientific literature, a classification of material methods of security is provided according to various criteria:
– according to the basis of establishment: legal, contractual, on the basis of a court decision;
– according to the type of property that creates a security source: movable property (pledge of movable property, retention, trust ownership), immovable property (pledge of immovable property (mortgage), trust ownership), monetary funds (guarantee payment), property rights (pledge of property rights);
– according to the effect of security: direct action (trust ownership, pledge), indirect action (retention, realization of unclaimed property);
– depending on the method of satisfying the creditor’s claim: by transferring to the creditor the right of ownership to the security property (pledge, trust ownership, security purchase and sale under condition, repo agreement), receiving a sum of money from the realized security object (pledge, retention, trust ownership, realization of unclaimed property), direct crediting of funds by the creditor (guarantee payment);
– according to normative certainty: named – fixed in law as methods of security (pledge, retention, trust ownership), unnamed – not legally fixed as methods of security (guarantee payment, security purchase and sale under condition, security storage of things, realization of unclaimed property, repo agreements).
It has been established that the imposition by a court, upon the creditor’s request, of an arrest on property that was the subject of a pledge (in case the pledge agreement is declared invalid) is an example of a pledge based on a court decision. In this way, the court preserves the security source (previously pledged property) in the interests of the creditor in case of possible violation by the debtor-borrower of the court-established obligation to return the funds borrowed from the creditor.
It has been proven that provisions concerning the right of pledge should be placed in the Civil Code of Ukraine among other property rights (Book Three of the Civil Code of Ukraine "Ownership and Other Property Rights").
