The conditions of validity of a bargain.

For having a nature of juridical fact, that generates the legal result that was wanted by the parties, a bargain is needed to be valid. Thus, a law establishes a presumption of legitimacy of bargain, if only its unvalidity is directly set by law or if it is considered void by a court. As it set in art. 204 of Civil Code of Ukraine: “transactions are valid, if the invalidity does not directly set by law or considered as invalid by the court”.

The conditions of reality of bargain are:

1) legality of maintenance, id est maintenance of bargain can not conflict with Civil Code of Ukraine, other acts of civil legislation, and also moral principles of society;

2) ability of individuals and corporate bodies to participate a bargain, id est a person that realizes a bargain must have a necessary volume of civil capacity.

3) accordances of will and volition in a bargain, id est a person’s volition have to be free and be in accordance to his/her will.

4) observances of form of a bargain, id est a bargain must be exercised in a form which is stated in law.

5) reality of a bargain, id est a bargain must be aimed to the real occurrence of legal consequences which are conditioned in bargain.

In English legal classical theory the paradigmatic bargain has the following characteristics:

(1) It is based on an exchange of promises.

(2) It is executory. This means that the contract is formed, and obligations under it arise, before either side has performed any part of it.

(3) It involves an “exchange”, so that each side is giving something in return for the other’s promise. It is the existence of this mutuality (given effect through the doctrine of “consideration”) which generally gives rise to enforceability.

(4) Disputes about a contract can generally be determined by asking what the parties expressly or impliedly agreed (or should be taken to have agreed) in the contract itself. This is sometimes referred to as the “will theory” of contract.

(5) The transaction is discrete, rather than being part of a continuing relationship.

(6) The role of the court is to act as “umpire” or “arbiter”, giving effect to the parties’ agreement. In particular, it has no role in deciding whether or not the transaction is “fair”.

There is probably also an underlying assumption that the parties are of equal bargaining power.

In practice, however, most bargains are not of this kind, and attempts to apply to them rules which were designed to be suitable for the paradigmatic case are likely to produce tensions and problems. Nevertheless, the classical theory of bargain, and its model of the typical bargain, can still be seen to cast its shadow over English law. In the latter part of the 20th century, it was the subject of sustained attack by academic commentators, and many judicial decisions can be seen to have moved, in practice at least, from the strict classical formulations. There is still reluctance, however, to abandon them, and it is frequently the case that the courts when involved in a development away from the classical model will continue to use language that suggests that they are being faithful to it.

Date: 2015-12-24; view: 869