Commentary to article 270. Participants in the obligations of the Civil Code of the Republic of Kazakhstan  

In the commented article, a new term is introduced into civil legislation, which did not exist before and which does not exist in the civil codes of other CIS member countries, parties to obligations. Participants include two categories of subjects:

1) the parties to the obligation (debtor and creditor);  

2) third parties.  

The inclusion of third parties in the orbit of the obligation is related to the special role they play in the process of the emergence, fulfillment and termination of the obligation. It is due to the importance of the figure of a third person in civil law that there is a category of obligations involving third parties.  

Third parties are defined as persons who are bound by obligations or other legal relations with one of the parties to the obligation.

The first sign of a third party is that it must be connected by some kind of legal relationship with one of the parties to the obligation. Such a legal relationship may be an obligation to supply (for example, a third party is bound by a supply agreement with a person who, in turn, is himself a supplier and instructs a third party to supply products directly to the buyer), an ownership relationship (a third party is a participant in common ownership), a copyright relationship (a third party is a co-author), an inheritance relationship (testamentary refusal), an administrative legal relationship (assignment of performance of obligations to an organization under administrative subordination), etc.  

The second feature of a third party is its connection with only one of the parties to the obligation (either the debtor or the creditor). In this way, a third party differs from a party in an obligation with a plurality of persons, in particular in a subsidiary obligation. The person who bears subsidiary responsibility is related to both the debtor and the creditor to whom he is responsible. Therefore, this person is not a third party, but a debtor. The third party is connected either only with the debtor, or only with the creditor.  

In principle, a third-person figure can arise in any commitment. However, practice has developed some typical types of obligations, where the participation of a third party is crucial for establishing the nature of the obligation.  

There are at least three types of obligations involving third parties.:  

1) recourse obligations (see Article 289 of the Civil Code and its commentary);  

2) obligations in favor of a third party (see the commentary to paragraph 3 of this article);  

3) obligations performed by third parties or performed by third parties, that is, reassignment or redirection of performance (see art. 276 CC and commentary thereto).  

Paragraph 3 refers to contracts in favor of a third party.

Obligations cannot be imposed on a third party without his consent through an obligation between the debtor and the creditor. This can be done by entering into a contract with a third party or when such an opportunity is provided by law.  

Only rights can be transferred to third parties through an obligation. The basis for such an obligation is usually a contract in favor of a third party (see Article 391 of the Civil Code and its commentary).

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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.