To the issue of classification of contracts into consensual and real contracts
In the article on the basis of analysis of current and former Ukrainian legislation and doctrinal sources are considered some issues of classification of civil law contracts into consensual and real contracts. Approach to divide contracts into two aforementioned groups originates in Roman law; howev...
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| Format: | Article |
| Language: | English |
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Yaroslav Mudryi National Law University
2020-03-01
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| Series: | Проблеми Законності |
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| Online Access: | http://plaw.nlu.edu.ua/article/view/193001 |
| _version_ | 1818992123336196096 |
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| author | Сергій Ярославович Вавженчук |
| author_facet | Сергій Ярославович Вавженчук |
| author_sort | Сергій Ярославович Вавженчук |
| collection | DOAJ |
| description | In the article on the basis of analysis of current and former Ukrainian legislation and doctrinal sources are considered some issues of classification of civil law contracts into consensual and real contracts. Approach to divide contracts into two aforementioned groups originates in Roman law; however, its sufficient theoretical model is produced only in XIX century. In Soviet period this method to classify contracts was sharply criticized. Current Civil code of Ukraine uses both types (models): consensual and real contracts.
Contract is to be treated as consensual unless the opposite is prescribed in civil legislation. In order to conclude real contract, in addition to sufficient agreement, transfer of property or execution of other action is needed. Such transfer of property or other action are not considered as a part of fulfillment of contractual obligation; they take place at the stage of contract formation and are prerequisite for the very existence of real contract. Based on these considerations, direct application of norm regulating contractual transfer of ownership to conclusion of real contract is complicated and cannot be conducted without certain adjustments.
Another issue related to the formation of real contract is transfer of non-documentary securities and non-cash money. These civil law objects following a common approach are not regarded as things (res). Therefore, transfer of non-documentary securities and non-cash money in a procedure of formation of real contract cannot be qualified as transfer of property in its traditional meaning. |
| first_indexed | 2024-12-20T20:21:09Z |
| format | Article |
| id | doaj.art-2ce7aba2acdd4a31a17e1ab2ee81c6b5 |
| institution | Directory Open Access Journal |
| issn | 2224-9281 2414-990X |
| language | English |
| last_indexed | 2024-12-20T20:21:09Z |
| publishDate | 2020-03-01 |
| publisher | Yaroslav Mudryi National Law University |
| record_format | Article |
| series | Проблеми Законності |
| spelling | doaj.art-2ce7aba2acdd4a31a17e1ab2ee81c6b52022-12-21T19:27:34ZengYaroslav Mudryi National Law UniversityПроблеми Законності2224-92812414-990X2020-03-010148455110.21564/2414-990x.148.193001193001To the issue of classification of contracts into consensual and real contractsСергій Ярославович Вавженчук0Yaroslav Mudryi National Law UniversityIn the article on the basis of analysis of current and former Ukrainian legislation and doctrinal sources are considered some issues of classification of civil law contracts into consensual and real contracts. Approach to divide contracts into two aforementioned groups originates in Roman law; however, its sufficient theoretical model is produced only in XIX century. In Soviet period this method to classify contracts was sharply criticized. Current Civil code of Ukraine uses both types (models): consensual and real contracts. Contract is to be treated as consensual unless the opposite is prescribed in civil legislation. In order to conclude real contract, in addition to sufficient agreement, transfer of property or execution of other action is needed. Such transfer of property or other action are not considered as a part of fulfillment of contractual obligation; they take place at the stage of contract formation and are prerequisite for the very existence of real contract. Based on these considerations, direct application of norm regulating contractual transfer of ownership to conclusion of real contract is complicated and cannot be conducted without certain adjustments. Another issue related to the formation of real contract is transfer of non-documentary securities and non-cash money. These civil law objects following a common approach are not regarded as things (res). Therefore, transfer of non-documentary securities and non-cash money in a procedure of formation of real contract cannot be qualified as transfer of property in its traditional meaning.http://plaw.nlu.edu.ua/article/view/193001consensual contractreal contractcontractclassification of contractscontract lawmethods of classification of contractscriteria for classification of contracts |
| spellingShingle | Сергій Ярославович Вавженчук To the issue of classification of contracts into consensual and real contracts Проблеми Законності consensual contract real contract contract classification of contracts contract law methods of classification of contracts criteria for classification of contracts |
| title | To the issue of classification of contracts into consensual and real contracts |
| title_full | To the issue of classification of contracts into consensual and real contracts |
| title_fullStr | To the issue of classification of contracts into consensual and real contracts |
| title_full_unstemmed | To the issue of classification of contracts into consensual and real contracts |
| title_short | To the issue of classification of contracts into consensual and real contracts |
| title_sort | to the issue of classification of contracts into consensual and real contracts |
| topic | consensual contract real contract contract classification of contracts contract law methods of classification of contracts criteria for classification of contracts |
| url | http://plaw.nlu.edu.ua/article/view/193001 |
| work_keys_str_mv | AT sergíjâroslavovičvavženčuk totheissueofclassificationofcontractsintoconsensualandrealcontracts |