Problems with the application of civil law measures of operative influence on a contractual counterparty

The legal regulation of measures of operative influence enshrined in the norms of the Civil Code of the Russian Federation, both in their general form for all contractual obligations (Articles 328, 359, 397, 450.1) and in the special norms of the Civil Code of the Russian Federation for certain types of contracts, is not flawless. Certain provisions of these norms remain unresolved and raise specific questions, which have become the subject of this research. Using the formal legal method, systems approach, and comparative analysis, the author aims to identify and demonstrate specific current problems in applying measures of operative influence used by parties to a civil law contract. The analysis of the provisions of Article 397 of the Civil Code of the Russian Federation highlights the problem of practical implementation of the legislator’s intended scheme for substituting one contractual party with another, when the creditor and the third party are forced to act within statutory constraints, adhering to requirements of a reasonable timeframe and a reasonable price. This creates significant obstacles for the creditor in finding a third party willing to accept such limitations. The author believes that the application of this measure is quite suitable for cases of improper performance of an obligation, although the provisions of Article 397 of the Civil Code of the Russian Federation do not explicitly state this. The study of the provisions of Article 328 of the Civil Code of the Russian Federation revealed a problem in interpreting the very wording “to suspend performance”, which implies performance already commenced by the creditor but does not indicate the possibility of its application in the format of “not to commence performance”. The author considers such a format possible, as well as its application in case of a delay in performance by the debtor, foreseen by the creditor (paragraph 2, clause 2, Article 328 of the Civil Code of the Russian Federation). The study of the provisions of Article 359 of the Civil Code of the Russian Federation points to the problem of establishing different legal regimes for applying a measure of influence on the debtor depending on the nature of the obligation. The author believes the legislator’s approach is not entirely justified. The study of Article 450.1 of the Civil Code of the Russian Federation identifies a problem related to such a primary measure of influence as a warning to the counterparty about a possible repudiation of a contract. This measure is deemed more suitable for the parties than a completed refusal without the intent to preserve the contract.