Gaming Agreement - an agreement by virtue of which the organizers promise one of the participants to receive a certain winnings, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill, and abilities of the participants in the game.
In the game, participants have the opportunity to influence its results.
Betting agreement - an agreement in which one of the parties asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them: the parties only state its occurrence.
The agreement on games and betting is: a) real - considered concluded from the moment when the players made bets and formed the prize fund; b) consensual - is considered concluded if the bet is made in the form of a promise to pay a reward in case of loss; c) paid – in the case when the prize fund is formed from players’ bets; d) gratuitous – in order to receive winnings it is necessary to perform an action not related to the property investment; e) equivalent – the winnings are proportional to the bet made.
The parties to the contract are players. A peculiarity of the subject composition of agreements on games and bets is that the participant in the games and bets, who does not act on either side, is the organizer of the games and bets.
The subject of the agreement is any property that has not been withdrawn from civil circulation. Form of agreement – oral, written. The claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection.
However, other obligations indirectly related to agreements on games and bets (loan agreement of the loser with another person), as well as those specified in clause 5 of Art. 1063 of the Civil Code of the Russian Federation are not subject to this provision and are protected in the general manner. A winning participant in games (bet) organized in the cases provided for in Article 1063 of the Civil Code of the Russian Federation has the right to submit in court a demand addressed to the organizer who has not fulfilled his obligations under the relevant agreement to pay the winnings, as well as to compensate for losses caused by the violation of the agreement by the organizer of the games (bet).
The basis for the emergence of games and betting
The basis for conducting games and betting is a well-known civil law category - risk. Since the times of Ancient Rome, risk-based transactions have been called aleatory (from the Latin. alea- game of dice). Currently, certain issues of civil law regulation of games and betting are enshrined in Chapter. 58 Civil Code of the Russian Federation.
It seems that the basis for conducting games and betting is an agreement that connects the organizer’s proposal (offer) with reaching an agreement to participate in the game or bet (acceptance). The responses of persons to the offer of the organizer or another participant to participate in the game under no circumstances give rise to rights and obligations and cannot be considered unilateral transactions.
Gaming and betting agreement
In most cases, the agreement on participation in games and betting is compensated(based on material gain) and real(requires payment in advance). In relation to games and betting, accession agreements are widely used, which are expressed in standard forms (forms) developed by the organizer and accepted by the participant under the terms of Art. 428 Civil Code of the Russian Federation.
In each specific case, the procedure for concluding an agreement is determined by the organizers independently, including in the rules of the games. The proposal to conclude an agreement must contain essential conditions, which include: the duration of the games, the procedure for determining the winnings.
In order to protect the rights and interests of game participants, the law establishes conditions that cannot be changed unilaterally by the organizers. In particular, the winnings must be paid in the amount, form and period specified in the conditions of the games. If the payment period for winnings is not specified, then it must be paid within 10 days from the date of the games.
Game of games. In the game, participants have the opportunity to influence its outcome.
A bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them. The parties only note its onset.
The claims of citizens and legal entities related to the organization of games and bets involving participation in them are not subject to judicial protection (Article 1062 of the Civil Code), with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of games or bets.
Claims related to participation in transactions involving the obligation of the parties to pay sums of money depending on changes in prices for goods, securities, inflation, etc., are subject to judicial protection if at least one of the parties to the transaction is a legal entity. the person who received the license and the transaction was concluded on the exchange.
Lotteries, sweepstakes and other risk-based games conducted by the state, municipalities or on their behalf have special regulations.
A lottery is a mass game during which the lottery organizer conducts a drawing of the lottery prize pool among the lottery participants - the owners of lottery tickets. At the same time, winning any lottery ticket does not depend on the will and actions of all subjects of lottery activity, is a matter of chance and cannot be specially arranged by anyone.
Tote is a game in which the participant makes a forecast (bet) on a possible variant of a gaming situation, where the winnings depend on the partial or complete coincidence of the forecast with the resulting consequences, documented by facts.
System (electronic) game is a game in which bets are fixed and participants’ forecasts are carried out using electronic devices.
Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and period stipulated by the conditions of the games, and if the period is not specified in these conditions, not later than ten days from the moment the results of the games are determined. In case of failure to fulfill these conditions by the game organizer, the participant has the right to demand from the game organizer payment of winnings, as well as compensation for losses caused by violation of the contract by the organizer (clauses 4 and 5 of Article 1063 of the Civil Code).
-
Carrying out games And bet. A game- this is an obligation by virtue of which the organizers promise one of the participants to receive a certain win, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants games. -
Carrying out games And bet. A game- this is an obligation by virtue of which the organizers promise one of the participants to receive a certain win, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants games. -
Carrying out games And bet. A game- this is an obligation by virtue of which the organizers promise one of the participants to receive a certain win, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants games. -
Carrying out games And bet. A game is an obligation by virtue of which the organizers promise one of the participants to receive. PUBLIC COMPETITION. -
“Previous question. Carrying out games And bet. A game -
“Previous question. Carrying out games And bet. A game is an obligation by virtue of which the organizers promise one of the participants to receive. Loading. Download Receive on your phone.
Legal regulation of relations arising during the organization and conduct of games and bets. General and distinctive features of games and betting.
A game is an agreement by virtue of which the participants in the game promise one of them a certain gain, depending on the degree of dexterity of the participants, their combinational abilities, or to one degree or another on chance.
A bet is an agreement on a winning bet concluded by one or more participants with the organizer of games and bets, the outcome of which depends on an event about which it is unknown whether it will occur or not and which the parties to the bet do not have the opportunity to influence by their actions.
The basis for obligations arising from the conduct of games and bets is an agreement concluded between the organizer of the game and the participant or directly between the participants.
Depending on the type of game and its subject composition, the contract in question can be either consensual or real. The agreement to conduct games and bets is compensated, since the material provision in the form of a bet made by one party is opposed by the likelihood of receiving material provision in the form of a win from the other party in the event of a positive result of the game. Depending on the type of game and the subjective composition of the participants, the agreement on conducting games and betting can be either bilaterally binding or unilateral.
The claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of the games or bets, as well as the requirements specified in paragraph 5 of Article 1063 of this Code.
The difference between a game and a bet is that, unlike a bet, when playing a game, the parties can influence its outcome.
Rights and obligations of the parties under the game agreement. Refusal to hold games (bet) or to pay winnings to the winner of games (bet) and its consequences.
Lottery is a group or mass game during which the lottery organizer conducts a drawing of the lottery prize fund among the lottery participants - owners of lottery tickets; Moreover, the occurrence of a winning on any of the lottery tickets does not depend on the will and actions of all subjects of lottery activity, is solely a matter of chance and cannot be specially arranged by anyone.
Tote is a game in which the participant makes a forecast (bet) on a possible variant of a gaming, sports or other socially significant situation, where the winnings depend on the partial or complete coincidence of the forecast with actual, documented facts. In connection with the adoption of the second part of the Civil Code, the Temporary Regulations’ definition of betting as a game seems outdated. According to Part 1 of the commented article, betting is a mutual bet.
Other games include: casino games (roulette, card games, craps), instant lotto (bingo), slot machine games with cash or in-kind winnings, as well as other games for which licenses are issued.
The transaction can be concluded under a suspensive or disqualifying condition.
A transaction is considered completed under a suspensive condition if the parties have made the emergence of rights and obligations dependent on the occurrence of the condition (clause 1 of Article 157 of the Civil Code). Therefore, rights and obligations in a transaction with a suspensive condition arise not from the moment it is completed, but from the moment the condition occurs. The emergence of rights and obligations is, as it were, postponed until the condition occurs. The parties to the agreement are participants in games and bets and organizers.
The agreement can be concluded orally. In some cases, the contract is concluded by issuing a lottery ticket, receipt, etc., which confirms the conclusion of the contract.
The organizers of the games can be both public entities (Russian Federation, constituent entities of the Russian Federation, municipalities), as well as legal entities and citizens who have received the appropriate license. Participants in the games can be both individuals and legal entities.
Essential terms of the game agreement: duration, procedure for determining the winnings, its size and issuance procedure, etc. The terms of the lottery agreement must be contained in a document, which in the Temporary Regulations is called “Lottery Conditions”. In accordance with the Temporary Regulations, the conditions of the lottery are approved by its organizer for each lottery (lottery draw) and are registered with the authorized government agency when issuing a certificate for the right to conduct the lottery. The lottery organizer and lottery ticket distributor are obliged to familiarize persons wishing to take part in the lottery or its participants with the conditions of the lottery.
The rights and obligations of the parties are established by the contract itself; the legislator only provided for the obligation of the organizers to pay the winnings within the prescribed period, or within a period no later than 10 days from the date of determination of the results.
The legislation establishes the obligation of the game organizer to pay winnings. Often, in the rules and conditions of lotteries, the obligation to pay out (issue) winnings is assigned to a third party - a bank that carries out settlements for the lottery, an organization that sells lottery tickets, etc. However, in case of failure to fulfill the obligation to pay the winnings by a third party, the lottery participant has the right to demand payment directly from the lottery organizer, since the lottery agreement was concluded with him. If the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from their organizer compensation for real damage incurred due to the cancellation of the games or the postponement of their dates.
Conducting lotteries, sweepstakes and other games by the state and municipalities or with their permission
Relations between the organizers of lotteries, sweepstakes (mutual betting) and other risk-based games - the Russian Federation, constituent entities of the Russian Federation, municipalities, persons, and for lotteries - legal entities who have received from an authorized state or municipal body the right to conduct such games in accordance with the procedure established by law - and the participants of the games are based on an agreement. In cases provided for by the rules of organizing games, the agreement between the organizer and the participant of the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way. The proposal to conclude an agreement must include conditions on the period of the games and the procedure for determining the winnings and its amount. If the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from their organizer compensation for real damage incurred due to the cancellation of the games or the postponement of their dates. Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and period stipulated by the conditions of the games, and if the period is not specified in these conditions, not later than ten days from the date of determining the results of the games or within another period established by law. If the game organizer fails to fulfill the obligation specified in paragraph 4 of this article, a participant who wins a lottery, sweepstakes or other games has the right to demand payment of winnings from the game organizer, as well as compensation for losses caused by violation of the contract by the organizer.
According to Art. 1062 of the Civil Code of the Russian Federation, the claims of participants in games and bets and persons associated with the organization of these events are not subject to judicial protection. However, two exceptions have been made to this rule. Firstly, this article provides that the claims of persons who took part in a bet under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of games or bets are subject to judicial protection. Such protection is provided only to participants of a particular event, and not to its organizers. General provisions on invalid transactions and their consequences apply to such transactions (Article 179 of the Civil Code of the Russian Federation). Secondly, protection in the form of demands from the organizer of games for payment of winnings, as well as compensation for losses caused by violation of the contract on the part of the organizer, is provided to the participant in the game organized by the state, municipality or with their permission.
When conducting research on such complex and multifaceted phenomena as gambling and betting, it is necessary, first of all, to make an attempt to define these concepts, identify and show their distinctive features.
The study of civil law norms regulating relations arising during the organization and conduct of games and bets is significantly complicated due to the lack of definitions of these concepts in the current legislation. The absence of a legal definition of the concepts of “game” and “bet” in Chapter 58 of the Civil Code of the Russian Federation distinguishes this chapter from other chapters of the Code devoted to the regulation of various types of contractual structures, which already in the first article of each chapter contain a definition of the concept of the corresponding contract.
The absence in the Civil Code of the Russian Federation of a legal definition of the concepts of “game” and “bet” necessitates turning to the analysis of legal norms, as well as to theoretical research by civil scientists.
For example, A.Yu. Kabalkin points out: “The term “game” has several meanings and therefore it is hardly possible to express its universal concept in relation to these relationships. In the literature, a game is recognized as an obligation by virtue of which the organizer must give a reward to the winning person, and victory in the game depends simultaneously on chance and on the abilities, dexterity and other qualities of the participant. As a result, the property of the game is that participants can influence its outcome. A bet also represents an obligation, but unlike a game, its participants express diametrically opposed positions regarding the existence of a certain circumstance. The latter may occur regardless of the will of the participants in the bet, or it has already occurred, but the participants do not know the essence of the circumstance or do not assume that it has already arisen” 1.
Having considered the most interesting civil law views on the definition of the concepts of “game” and “betting”, it is necessary to turn to the analysis of normative sources regulating the relations developing in the sphere of organizing and conducting gambling and betting.
As already noted, in Chapter 58 of the Civil Code of the Russian Federation there are no definitions of the concepts of “game” and “betting”, which is partly compensated by their inclusion in tax legislation. Thus, in Part Two of the Tax Code of the Russian Federation, Chapter 29 “Tax on the Gambling Business” contains Article 364, which sets out the definitions of the basic concepts most often used in the gambling business.
Having abandoned the concept of “game”, the Tax Code of the Russian Federation operates with the terms “gambling” and “betting”, formulating its own definition for each of them. Thus, in accordance with Article 364 of the Tax Code, gambling is “a risk-based agreement on winnings concluded by two or more participants among themselves or with the organizer of a gambling establishment (totalizator organizer) according to the rules established by the organizer of a gambling establishment (totalizator organizer)” . From the meaning of the above norm it follows that the legislator excludes the situation when an agreement on winnings is concluded by one participant with the organizer of a gambling establishment, since he introduces the condition that the agreement must be concluded by at least two participants, therefore, the concept of gambling does not apply to business activities in the field of operation of slot machines, since a participant playing a slot machine essentially enters into an agreement to win with the organizer of a gambling establishment in one person. Consequently, Chapter 29 of the Tax Code of the Russian Federation does not apply to the relationship between the participant and the gambling establishment carrying out business activities in the field of operating slot machines.
The noted legislative shortcomings and the absence of a single regulatory act, including not only a list of basic concepts in the field of organizing gambling, but also regulating in detail the social relations emerging in this area, determined the objective need to develop a single regulatory act aimed at eliminating the existing legal vacuum in the area under consideration. , the adoption of which was delayed for several years for various reasons. New Federal Law of the Russian Federation No. 244-FZ of December 29, 2006 “On state regulation of activities related to the organization and conduct of gambling and betting and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as the Gambling Law), which came into force on January 1, 2007, included a whole set of rules regulating the gambling industry.
Thus, Article 4 of the Gambling Law, along with other concepts, defines “gambling” and “betting”. The Law recognizes as a game of chance a risk-based agreement between the parties to win, concluded between two or more participants in such an agreement among themselves or with the organizer of the game of chance according to the rules established by the organizer of the game of chance (Clause 1, Article 4).
A bet, in turn, is defined by the legislator as a game of chance in which the outcome of a risk-based agreement on winning, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event regarding which it is unknown whether it will occur or not (Clause 2, Article 4).
In this case, the relationship between the concepts of “gambling” and “betting” as generic and specific, where betting is a type of gambling, is clearly visible. At the same time, the legislator again excludes the possibility of a situation in which an agreement on winnings is concluded with the organizer of gambling activities by only one participant. It should be noted that, while revealing the content of the concept of “gambling,” the legislator does not indicate the dependence of a risk-based agreement on winnings on circumstances, the occurrence of which the parties have the opportunity to influence by their actions. And finally, the presence of an element of chance in a game of chance is the main feature of such a game in the field of civil law.
Social relations arising in the field of gambling and betting give rise to various rights and obligations among participants, for the protection and protection of which it is necessary to correctly qualify the substantive part of such legal relations. Such qualification will be impossible without establishing the characteristics characteristic of gambling and betting and allowing to identify the issues under consideration. institutions from a host of others.
The main distinguishing feature of the categories under study is the unpredictability of the result, its random nature, the occurrence of which, as already indicated, the parties either can or cannot have a certain influence on through their actions.
Due to the fact that the unpredictability of the result is the main qualifying feature of gambling and betting, their risky, or aleatory (from the Latin alea - case) nature is beyond doubt.
Despite the fact that those games that involve the possibility of winning or losing have legal significance, not every win (loss) transfers the game to the level of legal regulation. Only winnings of a property nature have legal significance, therefore, awarding a medal to the winner of a sports competition does not provide grounds for qualifying the corresponding game as gambling under Article 1062 of the Civil Code of the Russian Federation, since a medal, even if it is gold, is just a symbol of victory, but not its monetary equivalent. Along with winning, in all gambling games there must be a risk of loss, which is also of a property nature. For this reason, a tennis tournament with a prize fund will not be classified as a game of chance, since the loser in it does not lose anything except prestige. This conclusion is not negated by the fact that for players participation in some sports competitions is paid. This fee is charged to cover the overhead costs of the competition organizers and is in no way related to the size of the possible cash prize, i.e. is not a bet in the game. The above allows us to attribute their property nature to one of the characteristics of aleatory transactions.
Unpredictability of the result, proprietary nature and publicity , which are characteristic features of gambling and betting, are also inherent in some other civil contracts, for example, an insurance contract. Consequently, there is a need to distinguish them from other aleatory transactions, which is discussed in paragraph 1.2. of this work.
Risk in games and bets is never associated with the occurrence of an event that negatively affects the economic (entrepreneurial, commercial) activities of their participants. The loss itself, of course, affects the player’s property status, often quite negatively, but the loss is a consequence of participation in the game, and not of entrepreneurial activity.
Now we can highlight the following main distinctive features of gambling and betting:
1. The unpredictability and random nature of the result, the occurrence of which the parties either can or cannot have a certain influence on;
2. Risky (aleatory) nature;
3. The property nature of the winnings and the risk of losing;
4. Public in nature, except for cases when agreements are concluded between two or more participants in a game or bet without the participation of a professional organizer;
5. Conditional nature of concluded agreements;
6. The basis for participation in a game or bet is to place the same risk of an unfavorable outcome of the game (resolution of the bet) on the counterparty as your own;
7. The motive for participating in a game or bet is either enrichment or satisfaction of personal non-property needs (for example, recognition, confirmation of leader status);
8. Participation in a game or bet does not lead to optimization of the distribution of economic, entrepreneurial and commercial risks of their participants.
Of great interest is the question of the criteria by which gambling and betting differ from each other.
In modern literature, the distinction between games and bets is almost unanimously accepted based on the ability of participants to influence the occurrence of winning or losing conditions. In the event that there is a possibility of such influence, we are talking about a game; in the absence of this possibility, the presence of a bet should be stated.
In support of the position under consideration, one can cite the statement of N.P. Vasilevskaya: “In a game, participants have the opportunity to influence its results. The situation is different with betting. A bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them” 2.
Along with identifying the features inherent in gambling and betting, establishing criteria that allow us to distinguish these concepts from each other and distinguish them from the general mass of aleatory transactions, it is also advisable to determine the legal nature of these categories.
This question has not found an unambiguous solution in science. This is explained by the fact that in most cases the contract for gambling or betting is formulated as real, i.e. is considered concluded from the moment when the players made their bets and formed the prize fund (otherwise the “bank”). This design is convenient for the organizer of games, since after drawing the winnings, he will not need to force the loser to pay the debt, however, as rightly noted in the literature, nothing prevents the conclusion of a consensual agreement on holding games or bets, if the rules of the relevant game allow it.
The question of what types of transactions gambling and betting should be classified as: those that involve consideration (compensated) or those that do not need such representation (gratuitous). On the one hand, if a participant in a gambling game or bet loses, then he loses his bet, that is, he transfers the money free of charge to the winner without receiving anything in return. On the other hand, if the winning bidder receives an amount (property) several times greater than his own contribution (stake), he thus not only regains his own property, but also, in fact, receives money for free, while how remuneration involves reciprocal and comparable provision.
Having examined the concepts of “gambling” and “betting”, establishing their most important distinctive features, and determining the legal nature of these phenomena, it is advisable to consider the question of the types of gambling and betting.
For example, A.P. Sergeev and Yu.K. Tolstoy proposes to classify all gambling according to two indicators. The first of these is the degree of influence of chance on the outcome of the game, according to which gambling is divided into three types: prestigious, commercial and gambling.
The authors include sports competitions as prestigious gambling games, the result of which mainly depends on the skills, abilities and other personal qualities of the player. As for commercial games, for example, bridge or preference, their rules already introduce an element of chance into the game (card layout), but an equally important role in this case is also given to the skills of the players: combinatorial abilities, memory, etc. In gambling, the influence of chance is so great that the personal qualities of the players are practically unable to influence their outcome.
As another criterion for classifying gambling, the authors propose to consider the ability of players to participate in the process of determining the winner, that is, depending on whether the winning procedure is carried out or not. According to this criterion, A.P. Sergeev and Yu.K. Tolstoy divides gambling into betting and gambling itself (in the narrow sense of the word). It is noted that after the betting agreement is concluded, the winning party is determined automatically: depending on whether the disputed event occurred or not. In the same case, if to determine the winner it is necessary to carry out an additional procedure - drawing, i.e. the sequence of actions (for example, card moves) of participants determined by the rules does not take place as a bet, but as a game of chance in the narrow sense of the word.
Unlike gambling, there are no criteria for betting classification. A.P. Sergeev and Yu.K. Tolstoy divides betting into two types - betting and bookmaker betting - depending on the method of determining the amount of winnings. In a bookmaker's bet, the amount of winnings is absolutely fixed and does not depend on the number of players, the amount of bets made or the number of winners; on the contrary, the winnings in a sweepstakes will be greater, the larger the prize fund, the higher the amount of the winning bet and the lower the probability of winning 3 .
The logic of the concept considered is not objectionable, but it seems to require some addition and the inclusion of another criterion of “legal (civil) significance”, depending on which three types of gambling and betting should be distinguished.
1. Games and bets that give rise to obligations to pay winnings, but are not subject to judicial protection. This rule, enshrined in Article 1062 of the Civil Code of the Russian Federation, means that violation of obligations from the organization of games and bets, or obligations from participation in them, does not give rise to any protective civil legal relationship, the content of which would be the right to go to court for the protection of violated subjective right In this case, the protection of civil subjective rights arising from the organization and participation in gambling and betting, contrary to Article 11 of the Civil Code of the Russian Federation, is not carried out by the court. The winner does not have the right to sue (neither in a material nor even in a procedural sense); to the loser for the recovery of a bet in a game or bet; therefore, property transferred in fulfillment of an obligation from a game or bet cannot, under any circumstances, be reclaimed, except in cases provided for by law.
2. Games and bets that give rise to obligations to pay winnings, subject to judicial protection. Such games and bets are listed in clause 5 of Art. 1063 of the Civil Code of the Russian Federation and include games conducted by the state and its subjects; municipalities; by third parties with permission from the state or municipalities. In this case, the legal fact underlying the requirement for the issuance of winnings is the completed game or bet.
Clause 3 of Article 1063 of the Civil Code of the Russian Federation stipulates that if the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from the organizer compensation for real damage incurred due to the cancellation of the game or the postponement of the game. Considering that the list of claims of game participants that are subject to judicial protection given in Article 1062 of the Civil Code of the Russian Federation is exhaustive, claims for compensation for actual damage incurred in connection with the cancellation of games or the postponement of their dates must be recognized as not subject to judicial protection.
3. Games and bets that do not give rise to obligations to pay winnings, but are subject to judicial protection. In this case, demands for the return of lost money, arising in the event of violence, the influence of deception, threats or malicious agreement of their representative with the organizer of games or bets, are also subject to judicial protection (Article 1062 of the Civil Code of the Russian Federation). The legal fact underlying the emergence of a claim for the return of lost money, in this case, is the recognition of the completed game or bet as an invalid transaction and the fulfillment by the losing party of a non-existent obligation.
Without knowing the characteristics that games and bets must have, it will be impossible to give the correct qualification to the rights arising from the actions of interest. What actions are considered games and bets?
In both modern and pre-revolutionary literature, it was customary to characterize games and bets as transactions, rights and obligations in which they arise depending on the case, i.e. as risky or aleatory transactions. The antonym to the word “aleatory” is “commutative”.. K.P. Pobedonostsev called these transactions “agreements about the wrong and accidental” Pobedonostsev K.P. Civil law course. Ed. 4th. Part 3. Agreements and obligations. St. Petersburg, 1896. P. 557. In this case, there is a need to distinguish between gaming and betting transactions with other aleatory transactions, primarily with insurance (of property), rent and the contribution of property to the authorized capital of a business company A. Yanovsky, with reference to the Russian pre-revolutionary practice and legislation, also gives the following examples of risky transactions: “buying for luck” (i.e., buying and selling an item whose value cannot be determined in advance or changes periodically), “selling a future harvest... an inheritance... or process... bodmer loans... and forward transactions for the supply of exchange goods and exchange-traded securities" (Yanovsky A. Risk transactions // Encyclopedic Dictionary of Brockhaus and Efron. T. 26-A. St. Petersburg, 1899. P. 804) ..
In civil legislation, games and betting are dealt with in Chapter 58: “conducting games and betting.” It is interesting to note that before the entry into force of the second part of the Civil Code of the Russian Federation, aleatory transactions had practically no serious legal regulation. However, neither in Article 1062 nor in Article 1063 will we be able to find a definition of such transactions, much less contracts for games and bets. In civil law, there are disagreements regarding the classification of games and bets only as transactions, or as special types of contracts. However, the Civil Code of the Russian Federation itself, in paragraph 1 of Article 1063, indicates that the relationship between the organizer of games and bets and the participant is based on an agreement.
The Tax Code of the Russian Federation defines the agreement on conducting games and betting in Art. 364. Thus, “a game of chance is a risk-based agreement to win, concluded by two or more participants between themselves or with the organizer of a gambling establishment (totalizator organizer) according to the rules established by the organizer of a gambling establishment (totalizator organizer).
A bet is a “risk-based agreement to win, concluded between two or more participants between themselves or with the organizer of a gambling establishment (the organizer of the totalizator), the outcome of which depends on an event that is not known whether it will occur or not.”
Despite this division, in civil law there are disputes about the relationship between games and betting, which is a product of the inaccuracy of paragraph 1 of Art. 1063. The legislator, indicating the subjects of the contract, the organizers of lotteries, sweepstakes and other games based on risk, as well as game participants, in the latter case includes under the concept of a game both a lottery, which is justified, and a bet, which is doubtful.
Resolving such an inaccuracy, Erdelevsky A.M. argued that “the concept of game includes the concept of betting and “the game itself.” From this provision, he derived the definition of a gaming agreement in a broad sense: “a gaming agreement is a risk-based agreement between its participants for one or more of them to receive a win depending on the outcome of the game, which is unknown in advance.” A counter-argument was given at one time by Nerush M.Yu.: “the concept of a bet is broader in scope than the concept of games; we can give the following definition of a bet: it is an agreement, under the terms of which each of the parties undertakes, if the other party’s statement regarding the occurrence of a certain, is correct, but unknown to the parties to an event, to pay a certain amount of money in favor of the other party, or to perform another action” “Aleatory transactions in the aspect of contract law” / website of the Russian legal newspaper LAWYER http://www.gazeta-yurist.ru.
You should still agree with the first position, however, making some adjustments. Summarizing the controversial issue of correlating games and bets as generic or specific contracts, it seems necessary to point out the very wording of paragraph 1 of Art. 1063 of the Civil Code of the Russian Federation, where lotteries and sweepstakes are equated to “risk-based games”, let me remind you that a sweepstakes is a type of bet.
Obligations from games and bets are mostly of a natural nature, that is, a citizen, by concluding a game and bet agreement, is deprived of the right to defend himself against a claim. However, an exception has been made for the claims of persons who took part in games and bets under the influence of deception, violence, threats, malicious agreement of their representative with the organizer of the games or bets, as well as in the event of non-payment of winnings by the organizer, which gives rise to the right to claim compensation for losses caused by violation of the contract. The wording of Art. 1062, art. 1063 of the Civil Code, in particular clause 3 and clause 5, seems incorrect.
Based on Art. 1062, the claims of citizens and legal entities related to the organization of games and bets involving participation in them are not subject to judicial protection, except, excluding the above cases, the provisions of paragraph 5 of Art. 1063. However, paragraph 5 states that only if the game organizer fails to fulfill the obligation specified in paragraph 4 of this article, a participant who wins a lottery, totalizator or other games has the right to demand from the game organizer payment of the winnings, as well as compensation for losses caused by violation of the contract with the organizer's side.
Thus, the provision of paragraph 3 of Art. 1063, which states that if the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from their organizer compensation for real damage incurred due to the cancellation of the games or the postponement of their dates; with a literal interpretation of the norm, this is not subject to judicial protection. However, it seems necessary and true to extend the effect of the wording of clause 5 “violation of the contract on the part of the organizer” to the provision of clause 3, that is, to “the organizer’s refusal to hold games on time” and “cancellation of games and postponement”.
The claims of citizens and legal entities related to participation in games and bets, the organization and conduct of which was carried out by citizens without appropriate permission, with participation in lotteries, the organization of which was carried out by an individual entrepreneur, are not subject to protection. It seems necessary to extend the right of judicial protection to all cases of failure to fulfill an obligation by a legal organizer or violation of a player’s rights, including indicating the applicability of nullity conditions to aleatory transactions. An agreement on games and betting concluded with a person under 18 years of age is void, as well as in a place not intended for games and betting, except for lotteries.
The nature of a lottery ticket is also controversial. So, according to Art. 142, a security is a document certifying, in compliance with the established form and mandatory details, property rights, the exercise or transfer of which is possible only upon presentation. In relation to a lottery ticket, it should be recognized that it meets the requirements of the provisions of the above article: it has a written form established by the issuer, a legally designated open list of details, and certifies the right to participate in the lottery. It seems possible to define a lottery ticket as a security under a condition that determines the possibility of exercising the basic rights to receive winnings on the security, but does not depend on the will of both the creditor and the debtor.
A lottery ticket has a dual nature of title and title documents, which defines it as a security only from the moment the winnings are established. When concluding a lottery agreement, it is the ticket that is the written confirmation of this legal fact, but the right to demand the game arises not from the ticket, but from the agreement itself.
Regarding the characteristics of the gaming and betting agreement, it is consensual, since rights and obligations arise from the moment an agreement is reached, for example, a lottery (buying a lottery ticket is an expression of acceptance), or real - from the moment the players made bets, that is, formed a bank .
The game and betting agreement is bilaterally binding, that is, the player, by placing a bet, enters into the game, and therefore agrees to the obligation to comply with the terms of the game in order to determine the winner. Regarding the responsibility of the organizer, it is to pay the winnings. This agreement may be unilaterally binding in the case of a bet, when the obligation to pay the winnings lies with the organizer.
The parties to the agreement are the organizer of the gambling - the Russian Federation, a subject of the Russian Federation, a municipal entity, a person engaged in organizing and conducting gambling; Gambler - an individual, in relation to a settlement forward, and a legal entity who takes part in a game of chance and enters into a risk-based winning agreement with the organizer of the game of chance or another participant in the game of chance. In relation to the lottery, only legal entities, but not individuals, can be organizers.
Any capable individual can become a player, however, as the legislator indicates, visitors to a gambling establishment cannot be persons under the age of eighteen (clause 2, article 7 of the Federal Law “On state regulation of activities for the organization and conduct of gambling and on the introduction of amendments to some legislative acts of the Russian Federation No. 244 - Federal Law").
The form of the agreement can be either oral, including by performing implied actions, or written.
The price of the contract is the rate of the game or bet, as well as the cost of the lottery ticket. The essential terms of the contract, in addition to the price, include the terms of the games and the procedure for determining the winnings, its size. The rights and obligations of the parties are established by the contract itself; the legislator only provided for the obligation of the organizers to pay the winnings within the prescribed period, or within a period no later than 10 days from the date of determination of the results.
Based on the above provisions, civil experts consider it necessary to make the following amendments to the legislation:
- 1. Fix in Art. 1062 of the Civil Code of the Russian Federation provides a precise definition of aleatory transactions, subordinating the terms game and bet to this definition, while maintaining the essence of the agreement on games and bets as an agreement formalizing this transaction.
- 2. Extend the provisions on the nullity of transactions to agreements on games and bets, taking into account the place of conclusion of the agreement (gambling establishments within gambling zones, bookmakers and sweepstakes outside gambling zones), the age of the players, and also change the wording of Art. 1062 of the Civil Code of the Russian Federation, providing the right to judicial protection of violated rights (in paragraph 3 of Article 1063 of the Civil Code of the Russian Federation). Ensure that all players' rights are protected.
- 3. Extend the provisions on securities to the lottery ticket, naming it in Art. 142 of the Civil Code of the Russian Federation, and it should be pointed out that the requirement for winnings is not just a requirement from a contract, but a requirement from a security, which will provide higher protection of the right to winnings enshrined in the lottery ticket. In fact, upon presentation of a ticket, the provision of other title documents is not required, since the fulfillment of the obligation does not provide for any basis other than possession of the ticket.
