Non-conclusion of a contract as a legal category and its legal significance

Author(s):  N.P. Orlova, candidate of Sciences, associate Professor, Belgorod Law Institute of Ministry of the Interior of Russia after I.D. Putilin, Belgorod , Russia,

Issue:  Volume 43, № 4

Rubric:  Actual Problems of Legal Regulation

Annotation:  This article analyzes the problems of using the category of non-concluded contract (transaction) in the legal field. The normative basis for the appearance of this legal structure is investigated. Defining the legal nature of non-conclusion and its correlation with invalidity, the statements of various scientists are given, on the basis of which two approaches are formed in the article. The first point of view is based on the postulate of non-conclusion as a type (special case) of invalidity. This position is derived on the basis of identifying internal similarities, the need to apply the same effects. The second position takes into account the presence of individual signs of non-conclusion and, as a result, the independent significance of this legal category. This approach is currently dominant. The main difference between the non-conclusion of a contract is the fact that an un-concluded contract does not have the quality of a legal fact, unlike an invalid contract. With this in mind, the article proposes the classification of contractual relations based on the ratio of non-conclusiveness and invalidity.

Keywords:  fundamental conditions, contracts not concluded, invalidity of the contract, civil law, voidance

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