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Definition of a bargain.

BARGAINS.

Taking into account the specific of Civil law of Ukraine, one of the most widespread legal grounds of origin, changing and terminating of civil relations is a bargain.

As a bargainin Ukrainian texts is used to understand an action, which is aimed at origin, change and termination of civil rights and duties.

Similar legal definition of a bargain is given in art. 202 of the Civil Code of Ukraine.

However, this formulation requires clarifications.

At first, it follows to specify, who can execute a bargain.

In an art. 202 of Civil Code of Ukraine is said, that bargain can be executed by “persons”. In accordance with part 1 art. 2 the of Civil Code of Ukraine, that is named “Persons”, only such participants of civil relations, as individuals and corporate bodies may be called “persons”. Thus, on the face of it, bargains can be executed only by the noted persons.

However part 2 art. 2 provides for, that the participants of civil relations, except persons, also is the state of Ukraine, Autonomous Republic of Crimea, territorial communities and other public legal subjects. Thus, according to art. art. of the Civil Code of Ukraine 167 - 168 the mentioned public legal subjects operate in civil relationships on equal rights with other participants of these relations. So, it follows, bargains can be executed by the abovementioned subjects as well.

Secondly, it follows to specify consequences, on achievement of which there can be directed the action, which is a bargain.

It has to be taken into account that position of part 1 art. 202 of the Code in relation to that a bargain is an action of a person aimed at origin, change or termination of civil rights and duties, it follows to interpret in that sense, that legal transactions can be also a ground of other modifications of legal relationships. For example, a bargain can be a ground of halt, renewal, realization and other similar legal relationships. Thus, it can be at the same time a ground of termination of one legal relationships and ground of origin or change of other legal relationships.

Bargains differ from other legal facts by such signs:

1) a bargain is a volitional act, aimed at achievement of a certain legal result. In this way bargains differ from such types of legal facts, as events, which take place and create legal consequences regardless of will of civil legal subjects;

2) bargains always are the actions of subjects of civil relations. This differs bargains from administrative acts (management acts) which public and management authorities as public legal subjects give out;

3) bargains always are legitimate actions which pull an origin or modifications of regulative civil legal relationships. Bargains in this way differ from such type of legal facts, as delicts, which violate civil rights and originate regulative relations;

4) will in bargains is always aimed exactly at establishment, change, stopping of civil rights and duties. They differ by this from legal acts, wherever will is not specially aimed at creation of legal consequences;



5) bargains mediate the dynamics of civil legal relationships between different civil legal subjects. Bargains differ in this from such type of legal facts, as acts of civil state, which, firstly, unite events and actions; and secondly, are indissolubly related to the individuals and do not concern corporate bodies; thirdly, serve as pre-condition of origin for the individuals of possibility to be subjects of civil rights and duties.

Thus, bargain is characterized by such basic signs:

1) a bargain is a volitional act, that is an unity of will (internal desire of person to attain certain purpose) and volition (external display of will, which can be legally assessed);

2) a bargain is a legal action which is made in accordance to the requirements of law;

3) bargains are aimed at the origin, changing and termination of civil legal relationships, as a result of requirement of law.

 


Date: 2015-12-24; view: 1184


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