Article 324. Consequences of compulsory confiscation of pledged assets
1. When the right to own of the pledgor in respect of the assets which are pledged items, terminates on the basis and in the procedure provided by legislative acts, as result of seizure (redemption) for state needs, requisitions for nationalization, and the pledgor is granted other assets or appropriate compensation, the right of pledge shall apply to assets which are granted instead or appropriately the pledgeholder shall acquire the right of priority satisfaction which is due to the pledgor. The pledgor holder may also require a premature fulfillment of the obligation which is secured with pledge (paragraph I article 3 2 1).
2. In the cases which the property which is pledged are confiscated from the pledgor in accordance with the procedure established by law on the grounds that in reality the owner of that property is another person or in form of a sanction for commitment for a crime or any other violation of law, the pledge in respect of that asset shall cease. In those cases the pledgeholder shall have the right to claim a premature fulfillment of the obligation secured with the pledge.
Article 325. The assignment of rights in accordance with a pledge agreement
1. A pledgeholder shall have the right to assign his rights in a pledge agreement to any other person with the observance of the rules concerning the conveyance of rights of the creditor by way of assigning the claims (article 339, 302, 347 of the present Code).
2. The assignment by pledgeholder of his rights in a pledge agreement to any other person shall be valid it to the same rights of claim in respect of debtor on the principal obligations secured with the debt are assigned.
3. Unless otherwise a mortgage agreement shall signify of the obligation which is secured with the mortgage.
Article 326. The transfer of debt in an obligation secured by pledge
The pledge shall terminate with the transfer to any other person of the debt in an obligation secured with pledge where the pledgor does not give his consent of the creditor to be responsible for the new debtor.
Article 327. Pledge of goods in circulation
1. The pledge of goods in the circulation shall be recognized as the pledge of goods when storing them with the pledgor and with granting to the pledgor of the right to change the composition and a physical shape of the pledged assets (merchandise stock, raw materials, materials, semi-finished products, finished products and the like) provided that the total value does not become less than the on indicated in the pledge agreement.
Reduction of the value of the pledged goods in circulation is allowed commensurate with the fulfilled part of the obligation provided in the agreement.
2. Goods in circulation which are alienated by the pledgor shall cease to be a subject of the pledge from the moment of their transfer to the ownership, business authority or operational management of the acquirer and the goods acquired by the pledgor indicated in the pledge agreement shall become subject to pledge from the moment of the emergence of the right to them with the pledge business authority.
3. The pledgor of goods is circulation shall be obliged to keep the book of records of pledgor's income which the interest concerning the conditions of pledging goods or any other transactions which result in the changes in the composition or the natural form of pledge assets or pledged goods including the processing on the date of the last transaction shall be entered.
4. In the event that the pledgor violates conditions of pledging goods in circulation the pledgeholder shall have the right by way of affixing to the goods his signs and seals to suspend transaction with them prior to the identification of the violation.
Article 328. Pledging items in a pawnshop
1. The acceptance from citizens as pledge of movable assets which are intended for personal use for securing short term loans may be carried out as entrepreneurial activities by specialized enterprises, pawnshops which have licenses therefor.
2. The agreement concerning pledging items in a pawnshop shall be formulated by the pawnshop issuing pledge ticket.
3. The pledged items should be transferred to the pawnshop, a pawnshop should be obliged to insure for the benefit of the pledgor at its expense that items accepted for pledge in full amount of their evaluation which is established in accordance with the prices for items of that kind and quality which are usually labeled in trade of the moment of their acceptance to pledge. A pawnshop shall not have the right to use and dispose of pledged items.
4. The pawnshop shall bear the responsibility for the loss and damage to pledged items unless approved that the loss or damage have occurred as a result of a force-major circumstances.
5. In the case of the failure to return on the established date of the amount of credit which was secured with the pledge of items in a pawnshop shall have the right on entry of the notary upon expiration of the privileged month term to sell the assets in a procedure which is established for selling pledged assets. After that the claim of the pawnshop towards the debtor shall be redeemed even if the amount which is received in selling pledged assets is insufficient for the full satisfaction.
6. The rules for citizens by pawn shop under the pledge of the items which belong to citizens and also the procedure for licensing pawnshops shall be established in accordance with the present Code in the legislative acts.
7. The conditions of the pledge agreement of things in pawnshops which restricts the rights of the pledgor is compared to the rights which are granted to him by the present Code and the appropriate legislative acts shall be invalid from the moment of the conclusion of the agreement. Instead of such conditions the relevant provisions of the present Code and that legislative acts shall apply.
4. Surety and Guarantee
Article 329. Surety
1. By virtue of surety, the surety shall be obliged to the creditor of any other person (debtor) to be liable for the fulfillment of an obligation of that person entirely or partially, jointly with the debtor.
2. The persons who issue a surety, shall be jointly liable to the creditor, unless it is otherwise provided in the warranty agreement.
3. A surety agreement may be concluded also for ensuring an obligation which will arise in the future.
Article 330. Guarantee
By virtue of a guarantee the guarantor shall be obliged to the creditor of ally other person (debtor), to be liable for the fulfillment of the obligations of that person, entirely or in part, subsidiarily.
Article 331. The bases and form of surety and guarantee
1. A surety and a guarantee shall arise on the basis of a surety or guarantee. The use of a guarantee may be established by the legislation.
2. Surety or guarantee agreements must be concluded in writing. Failure to comply with the written form shall result in invalidity of the warranty or guarantee agreement.
3. The written from of warranty and guarantee agreements shall be deemed to be complied with, provided the warrantor or guarantor notified in writing the creditor if his liability for the fulfillment of the obligation by the debtor, and the creditor did not refuse from the proposal of the warrantor or the guarantor during the period of time which is normally required for that.
Article 332. The liability of the surety and guarantor
1. The surety and guarantee shall secure only valid claims. However, the surety and the guarantor shall not be exempt from the liability, when they warranted for a debtor whose deed-incapacity was known to them before-hand, while the creditor did not know about that.
2. A surety shall be liable to the creditor in the same volume as the debtor including the payment of interest, court expenses associated with the levying of the debt and other losses of the creditor which are caused by the failure to fulfill or improper fulfillment of the obligation by the debtor, unless it is otherwise established in the warranty agreement.
3. A guarantor shall be liable to' the creditor within the amount indicated in the guarantee, unless it is otherwise provided in the conditions of the guarantee. Prior to the presenting any claim, to the guarantor who bears the subsidiary liability, the creditor must adopt reasonable measures to satisfy that claim by the debtor, in particular, by way of reckoning a counter claim and making a claim, in accordance with the established procedure, on the property of the debtor.
Article 333. The right and obligations of a warrantor
1. A warrantor shall be obliged to notify the debtor prior to the satisfaction of the claim of the creditor, and where an action is filed against the warrantor, - to bring the debtor to participation in the case. If the contrary is the case, the debtor shall have the right to make any objections against the regress claim of the warrantor, which he had against the creditor.
2. A warrantor shall have the right to make objections against the claim of the creditor, which may be presented by the debtor, unless it otherwise follows from the warranty agreement. The warrantor shall not lose the right to those, objections even in the case where the debtor refused from them, or recognized his debt.
Article 334. The right of a warrantor and guarantor who fulfilled their obligation
1. To the warrantor who fulfilled the obligation, all the rights of the creditor shall be transferred associated with that obligation, and the rights which belonged to the creditor as pledgeholder, in the amount in which the warrantor satisfied the claims of the creditor. The warrantor shall also have the right to claim from the debtor the payment of interest in the amount paid to the creditor, and coverage of any other losses incurred in relation to the liability for the debtor.
2. Upon fulfillment by the surety of an obligation, the creditor shall be obliged to hand to the warrantor the documents which certify the claim towards the debtor and to convey the rights which provide for that claim.
3. The rules which are established in paragraphs 1 and 2 of this Article shall apply, unless it is otherwise provided in the legislation or in the agreement of the warrantor with the debtor or follows from the relations between them.
4. A guarantor shall acquire the same rights in respect of the part in which he fulfilled the obligation of the debtor to the creditor.
Article 335. Notification of the warrantor and guarantor of the fulfillment of an obligation by the debtor
A debtor who fulfilled an obligation secured with a warranty or guarantee shall obliged to immediately notify of that the warrantor and the guarantor. If the contrary is the case, the warrantor or guarantor, who in their term who fulfilled the obligation, shall have the right to claim front creditor what he received undeservedly, or to present a regress claim to the debtor. If the latter is the case, the debtor shall have the right to claim from the creditor only the amount which was received undeservedly.
Article 336. Cessation of warranty or guarantee
1. A warranty and a guarantee shall cease with the termination of the obligation secured with them, and also in the case of amending that obligation, which result ins the increase of the liability or any other unfavorable consequences for the warrantor and guarantor without their consent.
2. A warranty and a guarantee shall cease with the transfer to any other person of the debt associated with the obligation which is secured with a warranty or guarantee, unless the warrantor or the guarantor gave to the creditor their consent to be liable for the new debtor.
3. A warranty and a guarantee shall terminate, when upon the arrival of the date of the fulfillment of the obligation secured by them, the creditor refuses to accept the duly fulfilled which was offered the debtor or the warrantor and guarantor.
4. A warranty and a guarantee shall cease upon expiration of the term for which they are issued, which is provided in the warranty or guarantee agreement. Where such term is not established, they shall terminate, unless the creditor within one year from the date of the arrival of the deadline for the fulfillment of the obligation secured with the warranty or guarantee, files an action against the warrantor or guarantor. When the date of the fulfillment of the principal obligation is not indicated and may not be identified or determined by the moment of claim, the warranty or guarantee shall terminate, unless the creditor files the action against the warrantor or guarantor within two years from the date of concluding of the warranty or guarantee agreement.
5. Advance Payment
Article 337. The concept of advance payment. The form of the advance payment agreement
1. A sum in money which is issued by one of the patties to an agreement, at the expense of the payments which are due by it in accordance with the agreement to the other party, and in order to secure the conclusion and the fulfillment of the agreement, shall be recognized as advance payment.
2. Am advance payment agreement irrespective of the amount of the advance payment must be concluded in writing. This rule shall also apply in the case where the principal obligation must be notarized. The failure to comply with the written form shall result in invalidity of the advance payment agreement.
Article 338. The consequences of the termination and the failure to fulfill an obligation secured with an advance payment
1. In terminating an obligation prior to the beginning of its fulfillment, by agreement of the parties, or as a consequence of impossibility to fulfill it, which emerged without their guilt, the advance payment must be returned.
2. When the failure to fulfill an obligation is the responsibility of a party which issued the advance payment, it shall remain with the other party, and if the party which received the advance payment is the guilty patty, it shall be obliged to pay to the other party a double amount of the advance payment. Moreover, the party which is responsible for the failure to fulfill the obligation shall be obliged to compensate to the other party the losses, taking into account the amount of the advance payment, unless it is otherwise provided in the agreement.
Chapter 19. Replacing Persons in An Obligation
Article 339. The bases and the procedure for the conveyance of the rights of the creditor to any other person
1. Any right (claim) which belongs to the creditor on the basis of an obligation may be transferred by him to any other person in a transaction (assignment of the claim) or transferred to any other person on the basis of a legislative act. The rules for the conveyance of the rights creditors to any other persons shall not apply to regress claims.
2. For the conveyance to any other person of the rights of a creditor, the consent of the debtor shall not be required, unless it is otherwise provided in the legislative acts or the agreement.
3. Where a debtor is not notified in writing of the conveyance of the creditor's rights to any other person, the new creditor shall bear the risk of negative consequences caused by associated with that) shall bear the risk of consequences which are unfavorable to him, caused by that. In that case the fulfillment of the obligation to the initial creditor, shall be recognized as fulfilled to the proper creditor.
Article 340. The rights which may not be transferred to any other persons
Transfer of the rights to any person, which are inseparably associated with the person of a creditor, in particular, the claims of alimony and of compensation of damage caused to life or health, shall not be permitted.
Article 341. The volume of the rights of the creditor which are transferred to any other person
Unless it is otherwise provided in the legislative acts or the agreement, the right of the initial creditor shall be transferred to the new creditor in the same volume and on the same terms which existed at the moment of the conveyance of the right. In particular, the rights shall be conveyed to the new creditor, which secure the fulfillment of the obligation, and also any other rights which are related to the right to claim, including the right to unpaid interest.
Article 342. Proofs of the rights of a new creditor
1. A debtor shall have the right not to fulfill obligations to the new creditor until he is presented with the proofs of the transfer of the claim to that person.
2. A creditor who assigned a claim to any other person shall be obliged to transfer to him the documents which certify the right to claim and to communicate the information which has significance for the exercise of the claim.
Article 343. Objections of the debtor against the claims of a new creditor
A debtor shall have the right to put forward against the claims of the new creditor, the objections which he had against the initial creditor prior to the moment of receipt of the notification of the conveyance of the rights associated with the obligation to the new creditor.
Article 344. The transfer of the rights of a creditor to any other person on the basis of the legislative acts
The rights of a creditor in a obligation shall be transferred to any other person on the basis of the legislative acts, and of the arrival of the circumstances which are indicated in them as follows:
1) as a result of the universal legal successorship in the rights of the creditor;
2) upon decision of the, court on the transfer of the rights of the creditor to any other person where the possibility of such transfer is provided in the legislative acts;
3) as a result of the fulfillment of the obligation of the debtor by his warrantor or pledgor who are not debtors in that obligation;
4) in the subrogation to the insurer of the rights of the creditor to the debtor who is guilty of the occurrence of the insurable event;
5) in any other cases provided in the legislative acts.
Article 345. The terms for assignment of a claim
1. Assignment of a claim by a creditor to any other person shall be permitted, unless it contradicts the legislation or the agreement.
2. It shall not be allowed to assign claims in an obligation in which the person of the creditor has significance for the debtor without consent of the debtor.
Article 346. The form of assignment of a claim
1. Assignment of a claim which is based on a transaction committed in a written (simple or notarized) form, must be committed in an appropriate written form.
2. The assignment of a claim associated with the transaction which requires the state registration, must be registered in accordance with the procedure provided for the registration of treat transaction.
3. The assignment of a claim associated with an order security shall be committed by way of inscription in that security (paragraph 3 of Article 132 of the present Code).
Article 347. The responsibility of a creditor who assigned a claim
The initial creditor who assigned a claim shall be liable to the new creditor for the invalidity of the claim transferred to him, but he shall not be liable for the non-fulfillment of that claim by the debtor, except for the case where the initial creditor assumed upon himself the warranty for the debtor to the new creditor.
Article 348. Transfer of debt
1. The transfer by a debtor of his debt to any other person shall be permitted only with the consent of the creditor.
2. A new debtor shall have the right to make objections against the claims of the creditor, which are based on the relations between the creditor and the initial debtor.
3. The rules which are contained in paragraphs 1 and 2 of Article 346 of the present Code shall appropriately apply to the form of the transfer of the debt.
Chapter 20. The Liability for Violation of Obligations
Article 349. The concept of violation of obligations
1. The failure to fulfill or fulfillment in an improper manner (untimely, with shortage of goods and work, with violating any other conditions determined in the contents of the obligation), improper fulfillment, shall be understood to be violation of the obligations. Where impossibility arises of a proper fulfillment, the debtor shall be obliged to immediately notify thereof the creditor.
2. The holding of the debtor responsible for the violation of an obligation shall be carried out upon the claim of the creditor.
Article 350. Compensation of losses, which are caused by the breach of an obligation
1. A debtor who breached an obligation shall be obliged to compensate to the creditor any losses caused by the violation (paragraph 4 of Article 9 of the present Code). Compensation of losses in obligations which are secured with a forfeit, shall be determined by the rules which are provided in Article 351 of the present Code.
2. The agreement of the parties which is adopted prior to the breach of the obligation, concerning the exemption of the debtor from the compensation of losses which are caused by the violation shall be invalid, however, the parties by mutual consent may provide the penalty only for the actual damage to property.
3. Unless it is otherwise provided in the legislation or agreement, which determining losses, the prices shall be taken into account, which existed in that place where the obligation should have been fulfilled, on the date of a voluntary satisfaction by the debtor of the claim of the creditor, and if the claim was not satisfied voluntarily, on the date of the filing of the action.
On the basis of the circumstances, the court may satisfy a claim for compensation of the losses, taking into account the prices which existed on the date of passing the decision, or on the date of the actual payment.
4. When determining the amount of lost profits, the measures shall be taken into account which are adopted by the creditor for its receipt and the preparations made for that purpose.
5. A creditor shall have the right to claim the recognition as an invalid of an action by the debtor, provided he proves that it is committed for the purpose to evade the responsibility for the violation of the obligation.
Article 351. Losses and forfeit
1. When a forfeit is established for a failure to fulfill or for improper fulfillment of an obligation, then the losses shall be compensated in the part which is riot covered by the forfeit. The legislation or the agreement may provide the cases where it is permitted to claim only forfeit but not the losses, where losses may be levied in full amount in addition to the forfeit; and where at the discretion of the creditor either forfeit or losses may be claimed.
2. In the cases where for a failure to fulfill or improper fulfillment of an obligation a limited liability is established, the losses which are subject to compensation in the part which is not covered by the forfeit, or in addition to it or instead of it, may be claimed up to the limits established by such limitations.
Article 352. Compensation of moral losses inflicted by violation of obligations
Moral losses inflicted by violation of an obligation shall be compensated in addition to the losses provided in Article 350 of the present Code.
Article 353. The responsibility for illegal use of somebody else's monetary resources
1. For an illegal use of somebody else's monetary resources as a result of a failure to fulfill a monetary obligation, or for a delay in their payment, or for their unfounded receipt or saving at the expense of any other person, interest on the amount of those resources shall be subject to payment. The amount of interest shall be calculated on the basis of the average interest rate of the banking interest which is determined by the National Bank of the Republic of Kazakstan on the date of the fulfillment of the monetary obligation or its relevant part. When levying a debt in a judicial procedure, the court may satisfy the claim of the creditor on the basis of the average interest rate of the banking interest on the date of the filing of the action, or on the date of the passing the decision, or on the date of the actual payment. These rules shall be apply, unless any other amount of interest is established in the legislative act or agreement.
2. Interest for the use of somebody else's resources shall be levied on the date of the payment of those resources to the creditor, unless the legislation or the agreement established a shorter term for the calculation of the interest.
3. When losses inflicted upon the creditor through an illegitimate use of his monetary resources, exceeds the amount of interest which is due to him on the basis paragraph 1 of this Article, he shall have the right to claim from the debtor compensation of losses in the part which exceeds that amount.
4. The accrual of interest upon interest shall not be allowed, except for the cases where the legislation envisages the inclusion of the interest for the expired year into the principal amount of debt.
Article 354. The liability and fulfillment of an obligation in kind
1. Payment of a forfeit and compensation of losses cases of an improper fulfillment of an obligation, shall not exempt the debtor from the fulfillment of the obligation, unless it is otherwise provided in the legislative acts or agreement.
2. Compensation of losses in case of a failure to fulfill an obligation and payment of a forfeit for its non-fulfillment shall exempt the debtor from the fulfillment of the obligation in kind, unless it is otherwise provided in the legislative acts of the agreement.
3. The refusal of a creditor to accept a fulfillment, which as a result of a delay lost interest for him (Article 365 of the present Code), and also the payment of a monetary sum which is established as smart money (Article 369 of the present Code) shall not exempt the debtor from the fulfillment of the obligation in kind.
Article 355. The consequences of non-fulfillment of an obligation to transfer an individually defined item
1. In the case of a failure to fulfill the obligation to transfer an individually defined item into ownership, business authority or operational management or for the use to the creditor, the latter shall have the right to claim the confiscation of that item from the debtor and its transfer to the creditor, except for the cases where a third party has a priority right to that item.
2. The transfer of the item shall not exempt the debtor from the compensation of losses.
Article 356. Fulfillment of an obligation at the expense of the debtor
In the case of a failure by the debtor to fulfill an obligation to manufacture and transfer an item to his creditor, or to perform for him certain work or render a service, the creditor shall have the right within a reasonable period to delegate the fulfillment of the obligation to third pat-ties for a reasonable price or to fulfill it himself, unless it otherwise follows from the legislation, agreement or the essence of the obligation and to claim from the debtor to compensate the necessary expenses and any other losses.
Article 357. Subsidiary liability
1. Prior to the presentation of a claim to the person who in accordance with the legislation or conditions of an obligation bears the responsibility in addition to the responsibility of any other person who is the principal debtor (subsidiary responsibility), the creditor must present the claim to the principal debtor.
When the principal debtor refuses to satisfy it or failed to fulfill entirely that claim of the creditor, or the creditor has lot received from him within a reasonable period the response to the claim presented, that claim in the part unfulfilled may be presented to the person who bears the subsidiary responsibility.
2. A creditor shall not have the right to claim the satisfaction of his claim to the principal debtor from the person who bears the subsidiary liability where such a claim may be satisfied by way of reckoning against a counter claim to the principal debtor (Article 370 of the present Code) or by levying the resources from the account of the principal debtor.
3. A person who bears a subsidiary liability must prior to the satisfaction of the claim which is presented to him by the creditor, notify thereof the principal debtor, and if a claim is mode to such person, to bring the principal debtor to the participation in the case. When the contrary in the case, the principal debtor shall have the right to issue against the regress claim of the person who bears subsidiary liability, the objections which he had against the creditor.
Article 358. Limiting the amount of liability in obligations
1. In certain types of obligations and in the obligations which are associated with certain types of activities, the legislative acts may limit the right to full compensation of losses (limited liability).
2. An agreement to limit the amount of liability of the debtor in an agreement of jointing or in any other agreement which the creditor is a citizen who acts as a consumer, shall not be valid where the amount of liability for that type of obligations or for that violation is established by law.
Article 359. The bases of responsibility for violating obligations
1. A debtor shall be responsible for the failure to fulfill and (or) improper fulfillment of an obligation if the guilt exists, unless it is otherwise provided in the legislation or agreement. A debtor shall be recognized as innocent, if he proves that he adopted all the remedies under his control for a proper fulfillment of the obligation.
2. A person who failed to fulfill or improperly fulfilled an obligation carrying out entrepreneurial activities, shall bear a financial responsibility, unless he proves that a proper fulfillment turned out to be impossible as a result of force majeure, that is extraordinary and unpreventable under those conditions, circumstances (natural calamities, military actions, etc.). The lack in the market place of the goods, work or services which are required for the fulfillment, specifically shall not be referred to such circumstances.
The legislation or agreement may provide in any other bases for liability or exemptions therefrom.
3. An agreement concluded previously for the elimination or limitation of liability for deliberate violation of an obligation shall not be valid.
Article 360. Entrepreneurial risk in an obligation
When an obligation envisages the fulfillment of certain work in accordance with the order of an entrepreneur, the risk of impossibility or inexpedience to use the results of the work shall rest with the entrepreneur. A person who properly fulfilled a work, shall have the right to receive the payment in proportion to the degree of the fulfillment, except for the cases where the agreement provides any other distribution of the entrepreneurial risk.
Article 361. Consequences of the impossibility to fulfill a bilateral agreement
When in a bilateral agreement it became impossible for one party to fulfill, as a result of a circumstance for which neither of the parties is responsible, then neither of the parties shall have the right to claim the fulfillment of the agreement, unless the legislative act or agreement provides otherwise. Either of the parties shall have the right to claim in that case the return of everything that it fulfilled without receiving any appropriate counter fulfillment.
Article 362. The liability of a debtor for his workers
Actions of the officials or any other workers of the debtor associated with the fulfillment of his obligations shall be deemed to be actions of the debtor. The debtor shall be liable for those actions where they entailed non-fulfillment or improper fulfillment of an obligation.
Article 363. The liability of a debtor for actions of third parties
1. A debtor shall bear to the creditor the liability also in the cases where a violation of an obligation was caused by were the actions or by the failure to act in accordance with the obligations to the debtor by third parties.
The debtor shall bear the responsibility also for the actions or failure to act by third parties to whom the debtor delegated the fulfillment of his obligation to the creditor, unless the legislation establishes, that the responsibility shall be borne by the direct executor.
2. A debtor may be exempt from the liability for violation of an obligation caused by the actions or failure to act by third parties, having proven their innocence.
When carrying out entrepreneurial activities, a debtor may be exempted from the responsibility for a violation caused by the action or failure to act by third parties, provided that was caused by the force majeure (paragraph 2 of Article 359 of the present Code).
3. In the event of violation of an obligation which is associated with the encumbering the subject of the obligation by the rights of third parties, the debtor shall be exempt from the liability only in case where such encumbrances arose prior to the conclusion of the agreement with the creditor and a latter, when concluding the agreement was warned of them.
4. The legislation or agreement may provide any other conditions for the liability of a debtor for the actions of third parties.
Article 364. Creditor's fault
1. When a failure to fulfill or improper fulfillment of an obligation took place for a fault of both parties, the court shall appropriately reduce the amount of the liability of the debtor. The court also shall reduce the amount of the liability of the debtor where the creditor deliberately or through negligence assisted to the increase of the amount of losses inflicted by the failure to fulfill or by improper fulfillment, or did not adopt any reasonable measures to reduce those.
2. The rules of paragraph 1 of this Article shall appropriately apply also in the cases where a debtor by virtue of law or agreement bears the responsibility for non-fulfillment or improper fulfillment of the obligation irrespective of his guilt.
Article 365. Debtor's delay
1. A debtor who delay fulfillment shall be responsible to the creditor for the losses inflicted by the delay and for the consequences of the impossibility to fulfill which emerged by accident during the time of the delay.
2. When as a result of a delay by the debtor, the fulfillment has lost interest for the creditor, he may reject the acceptance of the fulfillment and to claim compensation of losses.
3. A debtor shall not be deemed to be delaying for as long as the obligation may not be fulfilled as a result of the delay by the creditor (Article 366 of the present Code).
Article 366. Creditor's delay
1. A creditor shall be deemed to be delaying where he refused to accept the properly fulfilled, offered by the debtor, or has not committed any actions which are provided in the legislation or agreement, or which follow from traditions of business practice or from the essence of the obligation, prior to the commitment whereof the debtor could not fulfill his obligation.
A creditor shall be deemed to be delaying also in the case of his refusal to properly confirm the fulfillment of obligations performed by the debtor.
