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The form of the bargain.

An important role for validity of bargain is playing its form.

A form of legal transaction is a method of expression of will of persons who participate it.

A civil legislation and practice of conclusion of bargains allows the various forms - from the simplest to complicated by special procedures like state registration and others like that. In particular, widespread enough in domestic practice are such forms of bargains: 1) by implied actions; 2) by silence; 3) orally; 4) in writing; 5) in writing with a notarial certification; 6) in writing with observance of special requirements (state registration and others like that).

The Civil Code of Ukraine provides that a bargain can be concluded in verbal or written form.

Bargains that are fully executed by parties at the moment of execution can be concluded verbally, except bargains, for which in law is stated notarial certification and (or) state registration, and also bargains for which failure of written form has a consequence of voidance. In some cases, a conclusion of the bargain can be confirmed by giving a certain document or legislative sign (badge), but it does not change a verbal form of the bargain. Most of the bargains that are concluded verbally are made in an oral way. However sometimes the verbal form of executing of the bargain can be mediated in a way of implied actions or silence. As implied actions, it follows to understand a conduct, as a result of which the desire of person to make a legal bargain is discovered, for example, an inserting a telephone card in coin box set and dialing corresponding number already shows a desire of person to conclude a communication contract.

A bargain can also be concluded in form of silence (by inactivity) if such opportunity is afforded by law. So, for example, some agreements are considered continued on the same period and on the same terms, if the parties don’t object to the continuance of a deal.

The written form of bargain means that will of persons is fixed in a document. A bargain is considered such such as made in writing if it is signed by its party (by parties), and for corporate bodies - signed by persons, delegated for this by constituent documents, warrant, law or other acts of civil legislation, and sealed. Instead of manual signature, parties get legal possibility to verify own will by mechanical or other printing-down facilities, electronic-digital signature or other analogue of manual signature. If an individual because of illness or physical defect can not sign with own hand, the bargain can be signed by other entrust person in his (her) presence.

The written form of bargain can be executed in a simple writing form, including electronic; in the notarial form; and in the form of state registration.

In a simple writing form must be executed:

1) bargains between corporate bodies;

2) bargains between individual and legal person, except bargains which are fully executed by parties in the moment of their execution;

3) bargains between individuals on a sum which exceeds 20 and more non-taxable income of citizens, except for bargains which are fully executed in the moment of their execution;



4) other bargains for which a required written form is set by law.

General rule is that a failure of requirements of written form does not have a consequence of its voidance, except cases specially set by law. In such case party who is insisting on bargain’s reality can not allude to witnesses’ testimony. For confirmation of reality, they must use writing evidences, facilities of the audio-, videotape recording and other evidences.

Notary form is necessary for bargains for which it’s specially stated by law, for example contracts concerning real estate; contracts for life maintenance, a will, hereditary contract, in relation to any bargain with her participation. Also the notary form can be used by request of one of the party.

The notarial certification of bargain is confirming by a notary or judicial functionary officer who is specially authorized for such notary confirming by law. Notary certification is carried out by mentioned persons in a way of exercising an authentication sign on the text of the bargain.

A failure of the notarial certification invalidates the bargain, except for cases which are straight foreseen in law, for example Part 2 Article 219 and Part 2 Article 220 of Civil Code of Ukraine.

A state registration is required for bargains in cases specially set by a law, where the state control is necessary, for example, mortgage, agreement of purchase and sale of land, enterprises, houses and flats and other bargains with real estate disposal. Such bargains (for which state registration is required by law) are executed from the moment of they state registration. List of organs which carry out state registration, and also the order of conduct of appropriate registers are stated by law.

As opposed to national legislation English Law usually doesn’t insist on special form of the bargain. It’s simply seek for the agreement between the parties and the will as former to the agreement. In English Law the existence of a deed will be regarded as indicating that there is an agreement. There are certain contracts where a deed is required, but the device can be used for any type of contract if the parties so wish. This type of formality should be distinguished from the situations where some special procedure is required in addition to the finding of an agreement. In this situation there may be an agreement, but the courts will not enforce it unless certain formalities have been complied with. Three examples will be mentioned here. First, all contracts involving the sale, or other disposal, of an interest in land must be in writing and signed by the parties.

A second type of contract where there is a requirement of a certain degree of formality are contracts of hire purchase, and other credit transactions, should be in writing and signed. This is a protective provision, designed to make sure that the individual consumer has written evidence of the agreement, and has the opportunity to see all its terms.

A third situation where formality is required is when an agreement to guarantee the debt of a third party must, in order to be enforceable, be in writing and signed by the guarantor.

In other cases, however, English law imposes no formal requirements and looks simply for an agreement between two parties. In other words, the contract does not have to be put into writing, or signed, nor does any particular form of words have to be used. A purely verbal exchange can result in a binding contract. All that is needed is an agreement.

 


Date: 2015-12-24; view: 816


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