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. SPb., 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 authorized capital economic society A. Yanovsky, with reference to Russian pre-revolutionary practice and legislation, also gives the following examples of risky transactions: “purchase for luck” (i.e. the purchase and sale of an item whose value cannot be determined in advance or changes periodically), “ sale of a future harvest... an opened inheritance... or a process... bodmer loans... and forward transactions for the supply of exchange-traded goods and exchange-traded securities" (Yanovsky A. Risky transactions // encyclopedic Dictionary 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 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. So, “ 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).

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 a definition of a gaming agreement in a broad sense: “a gaming agreement is a risk-based agreement between its participants to receive one or more of them 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 events 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 individual entrepreneur. 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 - individual, regarding the settlement forward and entity participating in a game of chance and entering into a risk-based agreement to win 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 the gambling zones), the age of 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 requirements for winnings are not simply a requirement from a contract, but a requirement from securities, which will provide higher protection of the right to win secured 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.

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 “betting” in Chapter 58 of the Civil Code of the Russian Federation distinguishes this chapter from other chapters of the Code devoted to regulation various types 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 the federal law Russian Federation No. 244-FZ dated 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 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 in this case the relationship between the concepts of “gambling” and “betting” is clearly visible, both generic and specific, where betting is a type of gambling. 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. If there is a possibility of such influence, we're talking about about the game, in the absence of this opportunity, 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 the 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, formed prize fund(aka "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 classifying bets. 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; 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.

1. The term "games" used in Chap. 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 denotes is much narrower.

Games, the conduct of which is specifically regulated by legal norms, do not mean all games, but only gambling with a property nature possible winnings. It is the games of this category that are meant in Chapter. 58 of the Civil Code “Games and betting”.

2. A game of chance is a risk-based agreement to win, concluded by the 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.

The key words here are “risk-based”: the outcome of the game depends on chance (the placement of cards in the deck, the rotation of the dice, the movement of the roulette ball, etc.), and is unpredictable.

Thus, a gambling participant is defined as an individual who has reached the age of 18 years.

A gambling organizer is a legal entity that has received either a permit to organize and conduct gambling activities (for example, opening a casino or 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 betting shops, if they have a license, can operate outside special gambling zones.

Separate regulations 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 lottery organizer engages 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 laws and based on agreement.

The agreement between the participant and the game organizer (lottery operator) has a specific feature: once concluded, it does not immediately give rise to the main obligation for which it is concluded (to pay the winnings). Purchasing a lottery ticket or placing a bet in a casino does not give you the right to claim payment of your winnings. Moreover, the probability of the right to winnings arising 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 concluded under a suspensive condition (clause 1 of Article 157 of the Civil Code). However, this statement is not controversial: there is, for example, an opinion that in reality these are obligations from unilateral actions like a public promise of a reward. The law, however, deals specifically with the contract (see, for example, paragraph 2 of Article 1063 of the Civil Code); “The agreement between the lottery operator and the lottery participant is concluded on a voluntary basis and is formalized by issuing a lottery ticket, lottery receipt or electronic lottery ticket” (clause 1 of article 2 of the Law on Lotteries).

The form of such an agreement may vary. In addition to the document in paper or in electronic format(receipt, ticket, electronic lottery ticket, etc.) the conclusion of an agreement may be evidenced by the completion of implicit actions (including on the Internet): from placing a coin in the receiver slot machine before filling out the forms on the lottery website.

The agreement between the participant and the organizer of games (lotteries) is always of an aleatory (risky) nature, since winning or losing depends on random factors that the parties do not control.

This is a paid agreement, since game participants pay a fee for participation in them in the form of bets, the price of a lottery ticket, etc. (As of July 1, 2014, the rules on lotteries do not apply to all kinds of prize draws, for example, between store customers.)

Mostly, this agreement can be qualified as real (until the moment a bet is made or a lottery ticket is purchased, the parties can hardly demand execution). Although the terms of a game or lottery may also provide for the conclusion of a consensual agreement, only one party (the game participant) will be able to demand its execution in court and only in a limited number of cases (in particular, according to paragraph 5 of Article 1063 of the Civil Code).

Depending on the type of games, the contract can be unilaterally binding (lottery, bet in a bookmaker’s office, etc.) or bilaterally binding (for example, in a card game, when the parties undertake to adhere to certain rules).

In the vast majority of its varieties, this agreement is an agreement of adhesion (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 the participant and the game organizer (lottery operator) must include the conditions:

• about the timing of the games;
• on the procedure for determining winnings;
• about the amount of winnings.

These conditions can be considered essential for this type of contract. The term for payment of winnings is not an essential condition: if this period is not specified, payment is made no later than 10 days from the date of determining the results of the games (clause 4 of Article 1063 of the Civil Code), unless a different period is established by law. Other deadlines are established, for example, for lotteries: depending on the type of lottery and the size of the winnings, they vary from “at the time the winning lottery ticket is determined” to “no later than 30 days after the corresponding draw or presentation of the winning lottery ticket.”

The demand of a game participant for payment of winnings and compensation for losses caused by the failure of the game organizer or lottery operator to fulfill the obligation to pay winnings is included in established by law exceptions subject to judicial protection (clause 5 of Article 1063 of the Civil Code).

If the games did not take place or the date of their holding was changed, the participant in the games can also demand compensation for losses, but only in part of the actual damage incurred. Recovery of lost profits in the form of uncollected winnings is impossible in this situation, since the obligation to pay winnings to the organizer of games cannot arise without them being held.

Chapter 52. Conducting games and betting § 1. General provisions

Concept of games and betting. The word game in Russian has several meanings, which can vary depending on the context and the specific life situation. In the institution of civil law under consideration, a game is understood as a phenomenon that is traditionally designated by the phrase gambling (from the French hazard - chance, chance, risk). Based on the legal definition of gambling contained in Art. 4 of the Federal Law of December 29, 2006 “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as the Gambling Law) *(973) , a game in civil law is understood as a risk-based agreement to win, concluded by two or more participants in such an agreement between themselves or with the organizer of a gambling game according to pre-established rules. An integral feature of a game in civil law is its risky nature, which requires the parties to consciously various options changes in their property, the occurrence of which may depend on their own actions as players, on the actions of third parties or on the forces of nature.

A bet is a type of gambling in which the outcome of a risk-based winning agreement concluded by two or more bettors among themselves or with the organizer of this type of gambling depends on an event for which it is unknown whether it will occur or not (Article 4 of the Law about gambling). As can be seen from this definition, the occurrence of changes in the property sphere of bettors is in no way connected with their own behavior, but depends solely on the actions of third parties or the forces of nature.

Current legislation pays significant attention only to a narrow range of gambling games, including lotteries, games played in casinos, slot machine halls, bookmakers and betting shops. Lack of detailed regulation of other games, in particular various card games, which have become widespread outside the walls of casinos, does not at all mean that they are outside the scope of civil law. Relations arising between participants in such games are regulated by general rules on games and betting, as well as general rules of civil law.

Sources of legal regulation. The rules governing the conduct of games and bets and participation in them are dispersed among several regulations. The most general provisions are enshrined in Chapter. 58 of the Civil Code, consisting of two articles - 1062 and 1063. They define: the grounds for the emergence of obligations from the conduct of games and bets; the range of subjects of the obligations under consideration; general requirements for the content of agreements on gaming and betting; rules for the protection of rights arising from the obligations in question.

One of the main sources of regulation in this area is the Gambling Law, which contains legal definitions of such key concepts for the legal institution under consideration as gambling, betting, bet, winning, gambling establishment; the rules for organizing and participating in games held in casinos, slot machine halls, betting shops and bookmakers have been established, including the definition of subjects, objects and features of the content of obligations from the conduct of the relevant games. The conceptual innovation of the Gambling Law is the establishment of territorial boundaries for the occurrence and fulfillment of obligations to conduct games in casinos and slot machine halls. According to Art. 9, 16 of the Law on Gambling, from July 1, 2009, the occurrence and fulfillment of these obligations will become possible not throughout the entire territory of the Russian Federation, but only in its certain parts, called gambling zones. Gambling zones will be located in certain areas of the Altai Territory, Primorsky Territory, Kaliningrad Region, Krasnodar region and Rostov region. Outside the gambling zones, transactions aimed at the emergence and fulfillment of the obligations in question will be considered invalid from July 1, 2009 on the basis of Art. 168 Civil Code.

Another source of legal regulation in this area is the Federal Law of November 11, 2003 “On Lotteries” (as amended and supplemented) *(974) (hereinafter referred to as the Law on Lotteries). The Law on Lotteries contains legal definitions of the concepts of lottery, winnings, lottery ticket, defines the subject composition of the obligations of conducting lotteries, the objects of the obligations in question, the features of their content, types of lotteries, requirements for lottery tickets.

In order to implement certain provisions of the Law on Lotteries, in particular, the norms on all-Russian and regional lotteries, on maintaining a register of lotteries, authorities executive power The Russian Federation and the legislative and executive authorities of the constituent entities of the Federation have adopted relevant laws and by-laws regulations. Thus, the Government of the Russian Federation adopted Resolution No. 338 of July 5, 2004 “On measures to implement the Federal Law “On Lotteries” *(975) (hereinafter referred to as the resolution on lotteries). As for regional regulations, for example, in St. Petersburg the Law of St. Petersburg of 2005 “On state register regional lotteries of St. Petersburg" *(976) , as well as Decree of the Government of St. Petersburg dated October 1, 2004 N 1637 “On measures to implement the Federal Law of November 11, 2003 N 138-FZ “On Lotteries” *(977) (hereinafter referred to as the St. Petersburg resolution on lotteries). It should be noted that these regulations do not contain civil law norms, but regulate exclusively the relations of persons applying for the organization of regional lotteries with the authorities of the Russian Federation and its constituent entities.

The basis for the emergence of obligations from the conduct of games and bets.

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. For example, an agreement between two citizens concluded on the outcome of a football match, based on general rule clause 1 art. 433 of the Civil Code and in the absence of any special rules will be consensual. On the contrary, an agreement concluded between the organizer of casino games and visitors, on the basis of clause 2 of Art. 433 of the Civil Code will be real, since according to paragraph 3 of Art. 4 of the Gambling Law, placing a bet is a mandatory condition for participating in the game. Reaching an agreement between the participant and the organizer in this case is not enough; The moment the contract is concluded is the moment the participant places a bet.

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. Due to the fact that the bet is not opposed to the winnings themselves, but only the probability of receiving them, this agreement is usually referred to as the so-called risk (aleatory) contracts.

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 contract in question is a conditional transaction, since the emergence of the rights and obligations of the parties depends not only on the fact of concluding the contract and its terms, but also on whether the result of the game turns out to be positive for at least one of the parties.

The agreement on holding games and betting concluded between the organizer and the participant is, as a rule, an agreement of adhesion. However, despite the fact that a commercial organization usually acts on the side of the game organizer, the contract in question is not public, since the entrepreneurial activity of the game organizer cannot be reduced to the sale of goods, performance of work or provision of services, which is necessary by virtue of Art. 426 Civil Code.

The essential terms of the agreement on holding games and bets concluded between the organizer and the participant, in addition to the condition on the subject, are the conditions on the period of the game and the procedure for determining the winnings (clause 3 of Article 1063 of the Civil Code). The only essential condition of the agreement on holding games, the parties to which are exclusively the participants, is the condition on its subject.

The price is not considered by law to be an essential term of the contract for conducting games and betting. However, in the vast majority of cases, price acts as an essential condition of the contracts in question, since the need to agree on it arises at the will of the parties.

The form of the agreement on conducting games and betting is subject to the general rules of the Civil Code. Norm clause 2 art. 1063 of the Civil Code, according to which, in cases provided for by the rules for organizing games, an agreement between the organizer and a participant in the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way, in essence, it does not establish any special requirements for the form of the agreement in question. This rule contains only an approximate list of documents that can act as a written form of an agreement if, firstly, this is provided for by the rules of organizing games and, secondly, they include all the essential terms of the agreement. Taking into account Art. 12 of the Law on Lotteries, which contains mandatory content requirements lottery tickets, we can conclude that from the moment this Law came into force, a lottery ticket represents a written form of an agreement on participation in the lottery. As for receipts and other documents issued during other gambling, since they are usually not detailed enough, they should be regarded mainly as possible evidence of the conclusion of an agreement in the event of a dispute.

Questions about the subject and parties of the agreement, the rights and obligations of the parties will be discussed in the next paragraph in relation to obligations from the conduct of games and bets.

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. The peculiarity of the subject composition of contracts 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 general procedure. 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. Ever since Ancient Rome Transactions based on risk are usually called aleatory (from lat. 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.