Participants in games and bets. Actual problems associated with the conduct of games and betting. The origin of games and betting
Without knowing about the characteristics that games and betting should have, it will not be possible to give a correct qualification of the rights that arose from the actions of interest. What actions are recognized as games and bets?
Both in modern and pre-revolutionary literature, it was customary to characterize a game and a bet as transactions, rights and obligations, in which they occur depending on the case, i.e. as risky or aleatory transactions Little known is the antonym for the word "aleatory" - "commutative". Pobedonostsev called these transactions "agreements about the wrong and accidental" Pobedonostsev K.P. Civil law course. Ed. 4th. Part 3. Contracts and obligations. SPb., 1896. S. 557. In this case, it becomes necessary to distinguish between transactions of the game and betting with other aleatory transactions, primarily with insurance (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 a thing whose value cannot be determined in advance or changes periodically), “sale of the future harvest ... of the opened inheritance ... or a process ... bodily loans ... and urgent transactions for the supply of exchange goods and exchange papers "(Yanovsky A. Risk transactions // Encyclopedic Dictionary of Brockhaus and Efron. T. 26-A. SPb., 1899. P. 804) ..
In civil law, games and betting are given chapter 58: “carrying out games and betting”. It is interesting to note that prior to the introduction 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 can we find a definition of such transactions, and even more so of agreements for games and bets. In civil law, there are disagreements about classifying games and bets only as transactions, or as special types contracts. However, the Civil Code of the Russian Federation itself in paragraph 1 of Article 1063 indicates that the relationship between the organizer of the games and the bet and the participant is based on an agreement.
The Tax Code of the Russian Federation defines exactly the agreement on holding games and betting in Art. 364. So, " gambling there is a risk-based winning agreement concluded by two or more participants between themselves or with the organizer of the gambling establishment (the organizer of the sweepstakes) according to the rules established by the organizer of the gambling establishment (the organizer of the sweepstakes).
A bet is “a risk-based winning agreement concluded by two or more participants between themselves or with the organizer of a gambling establishment (the organizer of a sweepstakes), the outcome of which depends on an event, regarding which it is not known whether it will occur or not.”
Despite this division, there are disputes in civil law about the ratio of games and bets, which is the result of an inaccuracy in 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 the participants in the games, in the latter case, includes under the concept of the game both a lottery, which is justified, and a bet, which is doubtful.
Resolving such inaccuracy, Erdelevsky A.M. argued that “the concept of a game includes the concept of a bet and “the game itself”. From this provision, he derived the definition of an agreement on the game of broad sense: "a game agreement is a risk-based agreement of its participants on the receipt by one or more of them of a win depending on the outcome of the game unknown in advance." A counterargument was cited at one time by Nerush M.Yu.: “the concept of a bet is wider in scope than the concept of games, one can give the following definition of a bet: this is an agreement under the terms of which each of the parties undertakes, if the other party’s assertion is correct regarding the occurrence of a certain, but unknown to the parties of the event, pay a certain amount of money in favor of the other party, or perform another action ”“ Aleatoric transactions in the aspect of contract law ” / website of the Russian legal newspaper Jurist http://www.gazeta-yurist.ru.
One should still agree with the first provision, however, making some adjustments. Summing up the controversial problem of correlating the game and betting as a generic or specific contract, 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, sweepstakes are equated with "risk-based games", let me remind you that the sweepstakes is a kind of betting.
Most of the obligations from games and bets are of a natural nature, that is, a citizen, concluding a game and bet agreement, is deprived of the right to claim protection. However, an exception is made for the claims of persons who took part in games and bets under the influence of deceit, violence, threat, malicious agreement of their representative with the organizer of games or bets, as well as in case of non-payment of winnings by the organizer, which gives rise to the right to claim damages caused by violation of the contract. The wording of Art. 1062, art. 1063 of the Civil Code, in particular paragraph 3 and paragraph 5, seems to be incorrect.
Based on Art. 1062, the claims of citizens and legal entities related to the organization of games and bets with participation in them are not subject to judicial protection, except, except for the cases indicated above, the provisions of paragraph 5 of Art. 1063. However, paragraph 5 states that only if the organizer of games fails to fulfill the obligation specified in paragraph 4 of this article, the participant who won the lottery, totalizator or other games has the right to demand from the organizer of games the payment of winnings, as well as compensation for losses caused by violation of the contract with side of the organizer.
Thus, the provision of paragraph 3 of Art. 1063 that if the organizer of the games refuses to hold them within the prescribed period, the participants in the games have the right to demand from their organizer compensation for the real damage incurred due to the cancellation of the games or the postponement of their term, with a literal interpretation of the norm is not subject to judicial protection. However, it seems necessary and true to extend the wording of paragraph 5 “breach of the contract by the organizer” to the provision of paragraph 3, that is, to “the organizer’s refusal to hold the games within the established time limit” and “cancellation of the games and postponement of the deadline”.
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 an appropriate permit, 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 default by the legal organizer or violation of the rights of the player, including to indicate the applicability of the terms of nullity to aleatory transactions. An agreement on games and betting concluded with a person under the age of 18 is void, as well as in a place not intended for games and bets, except for lotteries.
The nature of the 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 its presentation. With regard 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 a prize on a security, but does not depend on the will of both the creditor and the debtor.
A lottery ticket has a dual nature of legal and title documents, which defines it as a security only from the moment the winning is established. When concluding a lottery contract, it is the ticket that is a written confirmation of this legal fact, but the right to demand the game does not arise from the ticket, but from the contract itself.
Regarding the characteristics of the contract of games and bets, it is consensual, since the rights and obligations come 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 when the players made bets, that is, they formed a bank .
The contract of the game and the bet is bilaterally binding, that is, the player, by making a bet, enters the game, therefore, agrees to the obligation to comply with the conditions of the game in order to determine the winner. Regarding the obligation 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 gambling - the Russian Federation, a constituent entity of the Russian Federation, a municipality, a person engaged in organizing and conducting gambling; gambler - a natural person, regarding the settlement forward and a legal entity, participating in a game of chance and entering into a risk-based winning agreement with the organizer of the game of chance or another participant of 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 points out, visitors to a gambling establishment cannot be persons under the age of eighteen years (clause 2, article 7 of the Federal Law “On state regulation of the organization and conduct of gambling and on introducing amendments to some legislative acts of the Russian Federation No. 244 - FZ").
The form of the contract can be both oral, including by performing conclusive actions, and 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, should include the conditions on the duration 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 provided only the obligation of the organizers to pay the winnings on time, or within a period no later than 10 days from the moment the results were determined.
Based on the above provisions, civilists consider it necessary to make the following adjustments to the legislation:
- 1. Fix in Art. 1062 of the Civil Code of the Russian Federation, an exact definition of aleatory transactions, subordinating the terms game and bet to this definition, while maintaining the essence of the contract on games and betting as an agreement formalizing this transaction.
- 2. Extend the provisions on the nullity of transactions to agreements on games and betting, taking into account the place of conclusion of the agreement (gambling establishments within the gambling zones, bookmakers and sweepstakes outside the gambling zones), the age of the players, and also change the wording of Art. 1062 of the Civil Code of the Russian Federation, granting 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 player 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 noted that the claim to win is not just a claim from the contract, but a claim from a security, which will provide higher protection for the right to win, enshrined in a lottery ticket. In fact, when presenting a ticket, it is not required to provide other documents of title, since the fulfillment of an obligation does not provide for grounds other than possession of a ticket.
Play is an activity that is voluntary, enjoyable, and has no apparent purpose other than enjoyment. This concept is enshrined in the Big Explanatory Sociological Dictionary of David D., Jerry J. This is one of the fundamental concepts of modern philosophy and sociology. In the context of these sciences, the game is understood as an activity, the meaning and value of which are contained in itself, in the very process of the game.
The legal definition of the concept of "gambling" is contained in the federal law of December 29, 2006 N 244-FZ "On state regulation of activities for the organization and conduct of gambling and on amendments to certain legislative acts Russian Federation”, where gambling means “a risk-based winning agreement concluded by two or more participants in such an agreement between themselves or with the organizer of the game of chance according to the rules established by the organizer of the game of chance. A bet is a game of chance, in which the outcome of a risk-based agreement on winning, concluded by two or more participants in the bet between themselves or with the organizer of this type of gambling, depends on an event regarding which it is not known whether it will occur or not. .2006 N 244-FZ (as amended on 10/16/2012) "On state regulation of the organization and conduct of gambling and on amendments to some legislative acts of the Russian Federation" (ConsultantPlus). A bet in the form of a conflict of forecasts is actually a dispute not between the caller and those who have responded, but only between the latter. The caller accepts bets, forecast options and sums up the results.
Conducting games (bets) is almost always (with the exception of the so-called charitable lotteries) a commercial activity for the caller, whose profit is the sum of the difference between the amount of risky contributions of the callers and the amount that is prize fund and the costs of organizing and conducting the game.
The main distinguishing feature of games and bets in civil law is their risky or aleatory nature, which is expressed in the fact that the parties are aware of the possibility of equally or with a certain probabilistic ratio of both favorable and unfavorable consequences, in other words, winning or losing. In addition, their important feature is the property nature of the win, as well as the loss.
The concepts of the game and the bet are very close in nature. Traditionally, the distinction between them is made by the ability of participants to influence the result. Thus, a game is defined as an agreement by virtue of which the participants in the game are promised (one or more of them) a certain gain, depending on the degree of dexterity of the participants, their combinational abilities, or to some extent on the occasion, i.e. usually the participants in the game have a significant influence on the result. With a bet, this possibility is absent, since one side claims and the other denies the existence of a certain circumstance that occurs independently of them. When betting, the participation of the parties in the occurrence of these circumstances is excluded or minimized and only verification of the facts is assumed. In essence, betting is a kind of game. The significance of the special attention paid to this type of game is probably that betting is more specific than other types of games, as well as its wide distribution.
1. The term "games" used in Ch. 58 of the Civil Code, does not mean, of course, that this chapter refers to all types of games (including children's, sports, computer, etc.). The concept he refers to is much narrower.
Under the games, the conduct of which is specifically regulated by legal norms, are not understood to be all games, but only gambling with the property nature of a possible win. It is the games of this category that are meant in Chap. 58 GK "Conducting games and betting".
2. A game of chance is a risk-based winning agreement concluded by the participants of such an agreement between themselves or with the organizer of the game of chance according to the rules established by the organizer of the game of chance.
The key words here are "risk-based": the outcome of the game depends on chance (location of cards in the deck, turn dice, movement of the ball in roulette, etc.), unpredictable.
Thus, a gambler is defined as an individual who has reached the age of 18 years.
The organizer of gambling is a legal entity that has received either a permit to organize and conduct gambling (for example, opening a casino or a slot machine hall) on the territory of a gambling zone, or a license to carry out activities to organize and conduct gambling in bookmakers and sweepstakes . Bookmakers and totalizators, if they have a license, can operate outside special gambling zones.
Separate rules apply to lotteries. Currently, all private, regional state and municipal lotteries are prohibited in Russia. From July 1, 2014, only all-Russian state and international lotteries can be held. The organizer of the lottery is the federal executive body authorized by the Government of the Russian Federation in accordance with the established procedure to conduct the lottery. To conduct the lottery, the organizer of the lottery attracts on a competitive basis a legal entity - the lottery operator.
According to paragraph 1 of Art. 1063 of the Civil Code, relations between the organizers of risk-based games and participants in such games, as well as between lottery operators and lottery participants, are regulated by law and are based on an agreement.
The agreement between the participant and the organizer of the games (lottery operator) has a specific feature: being concluded, it does not immediately give rise to the main obligation for which it is concluded (on the payment of winnings). Buying a lottery ticket or placing a bet in a casino does not entitle you to claim the winnings. Moreover, the probability of the right to win is quite small.
The right to win arises only upon the occurrence of certain conditions established by the contract. Accordingly, such an agreement can be qualified as a transaction made under a suspensive condition (clause 1, article 157 of the Civil Code). However, this statement is undeniable: there is, for example, an opinion that in reality these are obligations from unilateral actions like a public promise of a reward. In the law, however, we are talking specifically about the contract (see, for example, paragraph 2 of article 1063 of the Civil Code); “an agreement between the lottery operator and the lottery participant is concluded on a voluntary basis and is formalized by the issuance of a lottery ticket, lottery receipt or electronic lottery ticket” (clause 1, article 2 of the Lottery Law).
The form of such an agreement may be different. In addition to a document in paper or electronic form (receipt, ticket, electronic lottery ticket, etc.), the conclusion of an agreement may be evidenced by the performance of conclusive actions (including on the Internet): from lowering a coin into a receiver slot machine before filling out forms on the lottery site.
The agreement between the participant and the organizer of games (lotteries) is always aleatory (risk) in nature, since winning or losing depends on random factors that the parties do not control.
This agreement is paid, since the participants in the games pay a fee for participation in them in the form of rates, the price of a lottery ticket, etc. (All kinds of prize draws, for example, between store customers, are not subject to lottery rules from July 1, 2014.)
Mostly, this agreement can be qualified as real (until the moment when a bet is made or a lottery ticket is bought, the parties can hardly demand performance). Although the terms of the game or lottery may also provide for the conclusion of a consensual agreement, however, only one party (participant in the games) can demand its execution in court and only in a limited number of cases (in particular, in accordance with paragraph 5 of article 1063 of the Civil Code).
Depending on the type of games, the agreement may be unilaterally binding (lottery, betting at a bookmaker, etc.) or bilaterally binding (for example, when card game when the parties agree to adhere to certain rules).
In the vast majority of its varieties, this agreement is an accession agreement (Article 428 of the Civil Code). By purchasing a lottery ticket or placing a bet at a bookmaker, the player accepts the standard terms of the contract.
In accordance with paragraph 3 of Art. 1063 of the Civil Code, a proposal to conclude an agreement between a participant and an organizer of games (lottery operator) must include the following conditions:
- about the duration of the games;
- on the procedure for determining the winnings;
- about the amount of the winnings.
These conditions can be considered essential for this type of contract. The term for paying out the winnings is not an essential condition: if this period is not specified, the payment is made no later than 10 days from the moment the results of the games are determined (clause 4 of article 1063 of the Civil Code), unless a different period is established by law. Other deadlines are set, for example, for lotteries: depending on the type of lottery and the amount of winnings, they vary from “at the time the winning lottery ticket is determined” to “no later than 30 days after the relevant draw has been held or the winning lottery ticket has been presented.”
The requirement of a participant in the games to pay the winnings and compensate for losses caused by the non-fulfillment by the organizer of the games or the lottery operator of the obligation to pay the winnings is one of the exceptions established by law that are subject to judicial protection (clause 5 of article 1063 of the Civil Code).
If the games did not take place or the period of their holding was changed, the participant in the games can also claim compensation for losses, but only in part of the actual damage incurred. Recovery of lost profits in the form of unreceived winnings in this situation is impossible, since the obligation to pay the winnings from the organizer of the games cannot arise without them.
A game agreement is a risk-based agreement between its participants that one or more of them will receive a prize depending on the occurrence of an unknown outcome of the game.
A game is a set of actions of its participants and organizers. The winning can be expressed in providing the winner with both a certain amount of money and other alienable objects of civil rights.
A bet is a special type of game in which participants make opposing predictions about the occurrence of a certain event that is not related to the will and actions of the participants. In other types of games, participants can contribute to a certain result by their actions.
Claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection. The exception to this general rule are the claims of persons who participated in games or bets under the influence of deceit, violence, threat or malicious agreement of their representative with the organizer of games or bets, as well as claims against the organizer of the game - the Russian Federation, a constituent entity of the Russian Federation, a municipality or persons who received from authorized state or municipal body the right to hold such games - in cases where the persons recognized as the winners were not paid the winnings in the amount, form and term stipulated by the conditions for holding the games or the Civil Code of the Russian Federation.
Relations between the organizers of lotteries, totalizators (mutual bets) and other risk-based games - the Russian Federation, constituent entities of the Russian Federation, municipalities, persons, and for lotteries - legal entities that have received from the authorized state or municipal body the right to conduct such games in the manner established by law - and the participants in the games are based on an agreement. In cases stipulated by the rules for organizing games, a game agreement is formalized by issuing a lottery ticket, receipt or other document. The proposal to conclude an agreement on participation in the game must include conditions on the duration of the game, the procedure for determining and the amount of winnings. This offer is addressed to an indefinite circle of persons and is a public offer.
After determining the results of the game, its organizer is obliged, within the period specified by the terms of the games, to pay to the persons who, in accordance with these terms, are recognized as winners, the winnings in the amount and form provided for by the terms of the games (in cash or in kind). If the term for paying out the winnings is not specified in the conditions, then the payment must be made no later than ten days from the moment the results of the games are determined or within another period established by law (Article 1063 of the Civil Code of the Russian Federation).
The origin of games and betting
Games and bets are based on a well-known civilistic category - risk. Ever since the time ancient rome based on risk, it is customary to call aleatory (from lat. alea- game of dice). Currently, certain issues of civil law regulation of the conduct of games and bets are enshrined in Ch. 58 of the Civil Code of the Russian Federation.
It seems that games and bets are based on an agreement that links the organizer's proposal (offer) with the achievement of an agreement on participation 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 entail the emergence of rights and obligations and cannot be considered unilateral transactions.
Agreement on holding games and betting
For the most part, the agreement on participation in games and betting is compensated(based on material gain) and real(includes advance payment). 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 of the Civil Code of the Russian Federation.
In each case, the procedure for concluding a contract 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 by the organizers unilaterally. In particular, the winnings must be paid in the amount, form and term specified in the terms of the games. If the payout period is not specified, then it must be paid within 10 days from the date of the games.
The concept and content of games and bets
The Civil Code of the Russian Federation, as well as other regulations, does not contain a definition of games and bets, which causes difficulties for the law enforcer in distinguishing these categories both among themselves and from other civil law transactions. The concepts of games and betting are very close in nature. The common thing for games and bets is that they are based on a contract, and the result is a win for one and, accordingly, a loss for the other side. Traditionally, the distinction between them is made according to the ability of participants to influence the result. So, if during the game its participants are able by their actions to influence the result, which must certainly occur, then when making a bet, the outcome of the event is unknown and its participants do not have the opportunity to influence it. Thus, the following definitions of games and bets can be given.
The game- this 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 some extent on the occasion.
Bet- 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, regarding which it is not known whether it will occur or not and on which the parties to the bet are not able to influence their actions.
In legislation and legal literature, the category of “gamble” is separately distinguished, which can be defined as a game in which participation allows you to acquire property or property rights, the result of which is determined by actions based on chance, while the participant bears the risk of losing the bet made for the right participation in the game.
According to Art. 1062 of the Civil Code of the Russian Federation, the requirements of participants in games and bets and persons associated with the organization of these events are not subject to judicial protection. However, there are two exceptions to this rule. Firstly, this article provides that the claims of persons who took part in a bet under the influence of deceit, 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 the participants of a particular event, but not to their organizers. Such transactions are subject to the general provisions on invalid transactions and their consequences (Article 179 of the Civil Code of the Russian Federation). Secondly, protection in the form of demands from the organizer of games for the payment of winnings, as well as compensation for losses caused by violation of the contract by the organizer, is provided to the participant in the game organized by the state, municipality or with their permission.
