Commentary to article 359. Grounds for liability for violation of obligations of the Civil Code of the Republic of Kazakhstan  

The commented article is one of the most important among the legal norms governing liability for breach of an obligation. It establishes the subjective basis of responsibility for the violation, that is, it determines to what extent the debtor's guilt is (or, conversely, is not) a necessary condition for holding him accountable for the violation he committed.

For many decades, both from the text of the law and from its doctrinal interpretation, it followed that the guilt of the violator in the form of a general rule is a necessary condition of responsibility. If there is no guilt, there is no responsibility, even if the fact of the violation itself and the material damage caused to the creditor by this violation were indisputable.

At the same time, guilt was understood as the violator's psychological attitude towards the violation, in other words, responsibility depended on whether the debtor foresaw that his behavior would lead to a violation of the obligation, or at least could or should have foreseen this fact due to the circumstances of the case. If yes, then the debtor is guilty and should be held responsible, if not, he is not guilty and therefore should not be held accountable (see, for example, art. 212 of the Civil Code of the Kazakh SSR).  

Of course, there were exceptional cases of innocent liability, but the exceptions did not shake the general rule.  

With the adoption of the Fundamentals of Civil Legislation in 1991, and then the new Civil Code, the concept of guilt and its significance for bringing the violator of an obligation to justice changed.

First, the concept of guilt has changed. In the previous understanding, guilt was revealed in purely psychological categories (intent, carelessness). The commented article reveals guilt through behavioral categories: the violator did not take all measures in his power to prevent a violation of the obligation. At the same time, the fault of a legal entity is understood as the fault of its employees, which manifested itself in the course of their official activities and caused non-fulfillment or improper fulfillment of obligations (see art. 362 of the Civil Code).  

This, of course, does not mean that intent and negligence are not at all important in assessing the guilt of the violator of the obligation. Of course, it does, especially in cases where both parties to the obligation are guilty of a violation (see Article 364 of the Civil Code and the commentary thereto), but the criterion for establishing guilt has clearly shifted to assessing the debtor's use of the possibility of preventing a violation and limiting its scope.  

Secondly, the commented article establishes the ratio of guilty and innocent grounds of responsibility not as a rule and exception, as it was before (Article 212 of the Civil Code of the Kazakh SSR), but as equivalent grounds, but applied in different types of civil law relations (entrepreneurial and non-entrepreneurial activities).  

An entity that has violated an obligation unrelated to its business activities is responsible for the violation if it is guilty of it.

In this case, the debtor may be held liable not only when he is guilty of violating an existing obligation, but also when he intentionally or negligently assumed duties that he is unable to fulfill.  

On the contrary, the subject of an obligation related to entrepreneurial activity is responsible for its violation even when there was no personal fault in the violation, when the obligation was not properly fulfilled due to circumstances objectively beyond the debtor's control.  

Such innocent responsibility is based on the risk inherent in entrepreneurship (see art. 10 of the Civil Code and its commentary). By entering into an obligation, an entrepreneur consciously assumes the risk of fulfillment (the subjective risk of the entrepreneur) and has no right to shift losses from the violation to his business partner or consumer, referring to his innocence.

But even in business obligations, the basis of liability for violation is not unlimited, because it does not cover cases caused by circumstances insurmountable to the violator, which in law (see, for example, Article 182 of the Civil Code) or in practice are commonly referred to as force majeure or force majeure circumstances. Here we can already talk about an objective risk. Failure by an entrepreneur to fulfill an obligation due to force majeure releases him from responsibility for the violation.

The relationship of an obligation to entrepreneurship is taken into account both when an obligation arises between entrepreneurs and when the second participant in this obligation does not act as an entrepreneur.

For example, a citizen orders a construction company to build a house for his own residence. As you know, both the customer and the contractor are responsible for such an agreement. The customer (not the entrepreneur) is responsible for the violation of obligations to the contractor only if there is fault. The contractor will be responsible, even if he proves his innocence of non-compliance.  

Innocent liability is applied by virtue of a direct indication of the law or according to established practice also to a number of obligations not related to entrepreneurial activity, for example, compensation for damage caused by a source of increased danger (see art. 450 of the Civil Code of the Kazakh SSR).

Warranty liability is becoming more widespread, in which the debtor assumes the guarantee of proper performance, especially with regard to the quality of the subject of the obligation. A quality guarantee is issued upon delivery, purchase and sale of a product, during construction or repair work, and in some other cases. A guarantee may be issued for other conditions of proper performance. Warranty liability must also occur in the event of an innocent breach of an obligation.

Unlike criminal law, where the accused is presumed innocent of committing a crime until his guilt is proven and established by a court (the presumption of innocence applies), in violation of a civil obligation, the violator is usually presumed guilty and therefore can be held accountable. To do this, it is enough for the creditor to prove that a violation has taken place on the part of the debtor and that it caused losses in a certain amount. When liability is reduced to a penalty, only the fact of violation is proved.

In such a situation, the debtor who wants to be released from liability must prove that he is not guilty of the violation, that is, that he has taken all measures in his power to prevent the violation.  

Thus, in the sphere of civil obligations, there is a presumption of guilt of the violator. He is presumed guilty by virtue of the very fact of non-fulfillment or improper fulfillment of an obligation until he proves his innocence. Only in exceptional cases established by law, the guilt of the violator of the obligation must be proved by the creditor.  

Guilt, its degree, and the debtor's subjective attitude to the violation (intent, knowingly, negligence, etc.) serve as the basis for liability, but not as a measure of its scope, as is the case when determining the severity of punishment for a criminal offense. The degree of guilt is taken into account only in some cases stipulated by law (see, for example, art.364 of the Civil Code of the Republic of Kazakhstan).

The rule provided for in the commented article is not imperative, but dispositive. This means that the parties, by their agreement, have the right to establish other grounds for liability, including for liability for violation of obligations related to entrepreneurial activity.

There is only one prohibition: an agreement that releases the debtor from liability in advance, even if he intentionally violates the obligation, is invalid.

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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.