Comment to Article 364. Creditor's fault of the Civil Code of the Republic of Kazakhstan
1. It was said above that the extent of the debtor's liability for breach of an obligation does not depend on the degree of guilt, and therefore guilt in civil law, as a rule, serves as a basis, but not as a measure of responsibility.
2. However, there are exceptions: in cases where not only the debtor is guilty of non-fulfillment or improper fulfillment of an obligation, but also the creditor, who, for his part, did not take measures beyond his control to prevent or limit the amount of losses as much as possible, the amount of liability may be reduced taking into account the form and degree of the debtor's guilt and the lender. For example, during the trial operation of a newly built railway line, a freight train derailed. The investigation revealed that both the construction company (the trackbed was not sufficiently reinforced) and the maintenance service (the maximum weight of the train was exceeded) were guilty. The arbitration court ruled to compensate the maintenance service for losses from the train wreck in half the amount.
3. The creditor's guilt can manifest itself in any form and to any degree. But in some obligations, the debtor's liability for damage caused to the creditor is reduced not by any fault of the latter, but only by his intent or gross negligence (see, for example, Articles 450 and 453 of the CCKSSR).
If the debtor demands a reduction in the amount of liability (and recoverable damages and penalties), referring in accordance with paragraph 1 of the commented article to the creditor's guilt, he (the debtor) is obliged to prove both the existence of such guilt and its degree.
Comments on The Civil Code The Code of Criminal Procedure The Criminal Code The Normative resolution of the Supreme Court The criminal legislation The normative legal acts of the Republic of Kazakhstan
The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases Declaration Decree Order Resolution Decision Report Conclusion Statement Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Resolution Regulations Protocol Draft Program Rules Messages
