The unreality of the bargains.

Failure of the terms of validity of bargain, that where mentioned above, as a rule leads to its unreality.

Invalid legal transactions are actions of civil legal subjects, which are sent to establishment, change or terminating of civil rights and duties, but does not generate desirable legal results because of disparity of accomplished actions to the requirements of law.

By general groundof acknowledging a legal transaction invalid is its disparity to the requirements of law. This common rule is specified in special norms that fix the special grounds and concrete consequences of acknowledging of legal transactions invalid.

Speaking about the specific grounds of acknowledging of legal transaction invalid, it should be noted that its invalidity is determined by the presence of defects of signs or elements of legal transaction, failure of requirements that are necessary for validity of a bargain (art. 215, 203 of the Code).

In particular, it can be:

1) defects of subject composition (signing a bargain by a person who does not have a necessary volume of capacity);

2) defects of party’s will (disparity of will and volition);

3) defects (nonobservance) of form of a bargain;

4) defects (unreality and / or amorality) of content and order of signing of legal transaction.

The presence of these defects results invalidity of legal transaction. An exception is made by the cases of nonobservance of requirement in relation to the form of legal transaction, specially set by law. As a rule, a failure to observe of simply-writing form of legal transaction does not cause an invalidity of a bargain, and only complicates proving of its existence. As in the case of violation of writing form of a bargain is impossible to prove its validity by eyewitness testimony, then it is necessary to search for writing proofs, audio records, videotape recording and others like that.

Invalidity of bargain means that such bargain does not create legal consequences, except for those which are related to its invalidity. Thus it is distinguished absolute invalidity (voidance) and relative invalidity (voidability) of bargains. Absolutely unreal (void) bargain is such bargain which invalidity is specially stated by law. In the case of voidance of the bargain there is no need in court admission of such invalidity. But in cases specially fixed in the Civil Code of Ukraine void bargain can be considered by court as valid. Relative unreal (voidable) is a bargain which invalidity isn’t specially set by law, but one of the parties or other interested person denies its reality on grounds set by law. In such case invalidity of the bargain is considered by court.

To the absolutely unreal (void) bargains a legislator refers:

1) Execution of a bargain with failure of obligatory notarial or simple written form, if such consequence is foreseen by law.

2) execution of a bargain by a minor under 14 years old outside of their capacity, except cases, when the execution of such bargain was approved afterwards by his/her parents (adoptive parents) or one of those who he/she lives with, or by a guardian.

3) execution of a bargain without permission of guardianship authorities in the case when such consent is obligatory, except for cases when the court would set that this bargain satisfies the interests of legally incapable person under guardianship.

4) execution of a bargain by legally incapable person except cases, when this bargain will be approved by a guardian or this bargain will be executed for benefit of legally incapable person.

5) execution of a bargain that violates a public order, id est directed to breaching of constitutional human and citizens rights and freedoms, destroying, damaging or illegal pernancy of property of individuals or corporate bodies, the state, Crimea, territorial society.

To in relation to invalid (contested) it follows to take:

1) Execution of a bargain, which a minor after 14 years old had accomplished outside his/her civil capacity without the consent of parents (adoptive parents), custodian, except for cases, when such bargain was approved afterwards by these persons.

2) execution of a bargain by individual, whose civil capacity is limited, outside of his/her civil capacity without the consent of custodian, except for cases, when such bargain was approved afterwards by custodian, or it will be considered that such bargain does not breach statutory rights and interests of ward, his/her family or persons he/she is obliged to support under the law.

3) execution of a bargain by a capable individual who has done this bargain in the moment, when he/she did not realize the value of such actions and (or) could not manage them.

4) execution of a bargain by a corporate body, which it had no authority to transact, for example, as a result of absence of corresponding permission (licenses).

5) execution of a bargain as a result of mistake. Thus, into account is taken just a mistake in relation to substantial circumstances, id est, a mistake in relation to nature of bargain, rights and duties of parties, the properties and grades of object, that considerably reduces a value or capability of purpose use.

6) execution of a bargain under the influence of fraud. Thus, a fraud takes place in the case when a party denies the presence of substantial circumstances that can prevent to execution of a bargain, or if party withholds of an existence of such circumstances.

7) execution of a bargain under influence of violence, id est against the real will of person, as a result of application to him/her a physical or psychical pressure from other party or other person.

8) execution of a bargain as a result of ill-intentioned agreement between party and representative of other party.

9) execution of a bargain under influence of heavy circumstance, id est on extremely unprofitable terms, irrespective of who was the initiator of such bargain.

10) execution of a fictitious bargain, id est without intention to create legal consequences, which were stipulated by this bargain.

11) execution of a sham bargain, id est for the concealment of other bargain which the parties have done indeed.

A void bargain or bargain, that was adjudged by a court as invalid, are of this kind from the moment of their execution. If by invalid bargain the rights and duties are foreseen only in future, the possibility of their occurrence in the future would be terminated.

There is the presumption in English Law that all minors’ bargains are either void or voidable. There are two main exceptions to this, namely contracts for “necessaries”, and “beneficial contracts of service”. Such contracts may be fully enforceable. In addition, certain contracts which involve a minor obtaining an interest in property which involves continuous or recurring obligations may be voidable.

“Necessaries” include not only things which are absolutely necessary for survival, but also all those which are required for a reasonable existence. Food and clothing are obviously covered, but so are medical assistance and education. Once the goods or services are of a kind which can be put in the general category of “necessaries”, there is then a further question as to whether they are appropriate to the particular minor. Items of “mere luxury”, however (as opposed to “luxurious articles of utility”), will not be regarded as necessaries, nor will articles bought as gifts for others normally be so regarded.

The English Law recognizes that contracts of employment, training or apprenticeship may be enforceable. The contract, taken as a whole, must not, however, be oppressive.

Certain contracts are regarded as being valid, unless the minor repudiates them, either during minority or within a reasonable time of becoming 18. In general, these contracts involve the minor obtaining an interest in property that involves continuous or recurring obligations. So, this rule applies, for example, to contracts involving obligations of shareholding, such as the duty to pay ‘calls’; partnership agreements; marriage settlements; and contracts relating to interests in land, such as leases.

The repudiation of one of the above contracts during minority is always possible.

The English law also provides protection for those who make contracts while under some mental disability. Contracts made by such people are binding, unless affected by the rules relating to “undue influence”.

The only exception to the above rules relates to contracts for necessaries. Thus, a person who lacks capacity to contract for the supply of such goods and services must pay a reasonable price for them if they are supplied. “Necessary” means suitable to a person’s condition in life and to his or her actual requirements at the time when the goods or services are supplied.

Interesting rule is set in English Law concerning those who as a result of drunkenness, whether voluntary or involuntary, are incompetent to contract. By Ukrainian civil law their contracts are regarded as voidable if persons because of chronic taking of alcohol, drug or toxicants were considered as limited in capacity in legal form. But they are not under law protection concerning civil liability and are liable to pay by themselves the compensation for damages.

As opposed in English Law the bargains of such category are voidable as well and such persons are liable to pay a reasonable price for necessary goods sold and delivered. Incompetent to contract presumably means unable to understand the nature of the transaction. Beyond this, there appears to be little authority on contracts made by those who are intoxicated. It is assumed, however, that similar rules apply as in the case of incapacity through mental disability. This means, amongst other things that, in contrast to the position in relation to minors, there must be an awareness of the incapacity on the part of the other party before the contract will be unenforceable.

Such cases as there are on this topic are concerned with intoxication through the consumption of alcohol. There seems no reason why the same rules should not apply to a person who is incapacitated through drug taking.

Date: 2015-12-24; view: 842