Civil law course. Part Three: Treaties and Obligations

Part 1 • Part 2 • Part 3 § 1. General concept of contracts and obligations. – The essence of rights under obligations and the difference from real rights. – The meaning of liabilities as part of property. – Division of the doctrine of obligations into a general and a special part. The entire sphere of legal relations regarding property is divided by subject into two main sections: property rights and personal rights. The engine of legal relations in both spheres is personal will. She subordinates to her influence: a) unfree nature and b) other people (see more about this in Volume I, § 1). Certain, limited parts of unfree nature—things—are subject to domination. Power over a thing is the subject of property rights and real rights. Here the subject of law is the material part of nature, something that exists in reality, in the world of material things. The human will relates to a thing directly, and through the thing it relates to all other people. I am the owner of the thing. By virtue of this quality, I enter into certain relationships with anyone who touches my thing or directs his will towards it. I do not create, I do not create these relationships separately; they are created, arise due to the fact that I am the owner of a thing, and from the moment I acquired it, and continue as long as I am its owner, owner. A different kind of relationship arises between famous persons. The subject of law is not the thing itself, but the action of another person regarding the thing. Each of us is in a free, normal relationship with a third party. This relationship is not without legal properties, but it is not entirely definite. So, for example I expect justice from everyone in every encounter with myself, and I myself owe him the same (alterum non laedere, suum cuique tribuere). I must not offend him; he me too. As the owner of a thing, I repel any encroachment of a third party on my thing: I don’t touch someone else’s, no one should touch mine. This is my attitude – the same towards everyone, towards everyone who can come into contact with me. Attitude to everyone, i.e. to face the unknown; it becomes known only from the minute it comes into contact with me, in the sphere of my rights, my property. However, civil life is not content with such an attitude. Every person, living in a civil society, needs others, needs help, assistance. As long as this assistance is voluntary, unilateral, caused and controlled by free sympathy, it does not leave the moral sphere and does not concern the legal sphere. In this form, it does not have that certainty, that firmness, that constancy that is required for legal activity and for achieving a legal goal. In order to establish a firm legal relationship, it is necessary to bind someone else’s will, to gain the opportunity to control someone else’s actions, to correctly count on him, to have a claim on him. This goal is achieved through a contract, a transaction, by virtue of which one person receives power over the action of another person and the right to demand this action - and the other, by his own free consent, binds his will and makes part of his activity in an obligatory relation to the first. An agreement must have two wills, two parties, one against the other: it requires the participation of several, at least 2, persons. The agreement must be complete, joint, mutual, and both parties must have in mind the same known subject; when the agreement has not yet been completed or is still indecisive, or one party has in mind a different or not quite the same thing that the other has in mind, there is no agreement yet. The agreement must be conscious; each party must know what it wants: a secret thought, a secret goal, a secret desire cannot legally be part of the contract. The subject of the agreement must be a legal relationship of interest; Only under this condition does the contract enter the sphere of legal relations and acquire legal significance and binding force. When several people agree to help each other for mutual success in virtue, in art, in science only by advice and example, this cannot yet be called an agreement in the proper sense. It will be a moral, not a legal agreement, and will have only moral, not legally binding, force. Members of the court in its collegial composition after a dispute agree with each other on a legal subject and come to a common decision, but this is not an agreement. In order for the concept of an agreement to be formed, it is necessary that each party is personally interested in the legal relationship about which the agreement occurs. So, a contract is a conscious agreement of several persons, in which they all jointly express their will in order to determine a legal relationship among themselves in their personal interest, in terms of property 1. An agreement is possible in the sphere of not only civil, but also international and state law, but here the scope of its action is very limited, and there is no general coercive power that would ensure its operation and execution. Only in civil law does a contract achieve complete certainty and firmness. Here it appears in various forms, takes on various forms and extends to all kinds of legal relations. Its main, although not exclusive, purpose in civil law is the establishment of an obligation, the right to act of a person, and this right, when arising, becomes firm and definite. In this sense, it can be called the property of the person to whom it belongs, who is interested in it - and this is precisely one of the main properties of the contract, that in it the person’s action receives certainty, is subject to evaluation, and is resolved into material value through comparison with a common unit of value - money. Thus, both the real right - the right of ownership, and the personal right, contractual, are collectively included in the property of the person to whom they belong; and contract law, so to speak, is intertwined with property law, without being confused with it in the least and always differing from it. The subject of the contract is property, things of the material world are the same ones that constitute the subject of ownership and possession, and most contracts are aimed precisely at the acquisition of property or its use, use of it. (In property law the dividing principle of property law is expressed, in contractual law it is the connecting principle.) The contractual relationship is transitory: the special purpose for which it arose has been achieved - the obligation has been fulfilled - and its effect has ceased, and the property right exists as long as the thing exists. Property right is something material, tangible, subject to immediate assessment. Taking possession of a thing, increasing the mass of property, the desire to own a thing - this is what constitutes the interest and content of both the property right and the right of obligation, personal. But in property law this desire has already received satisfaction in relation to a known thing. And in personal law it still seeks to satisfy itself, it still stands at the level of aspiration that is not at all satisfied or not completely satisfied. In any obligation, some value that should go into the mass of the creditor’s property is still in the hands, in the power of the debtor. Therefore, the essence of any obligation lies in faith and expectation, in credit, which constitutes the connection between the person who has the claim and the person obligated. So, the right under an obligation is presented as something that has to be realized in the future. But at the same time, from the moment of its conclusion, it exists in itself, is part of the property and corresponds to the legal state of ownership and use, serving as the subject of both. In this sense, it, as a right (jus obligationis s. nomen), is a thing belonging to the creditor (res incorporalis), can serve as the subject of circulation - through transfer and transfer. The obligated party, from the very moment of concluding the contract, even if the moment of fulfillment has not yet arrived, is guilty of recognizing its obligation, so forcing it to this recognition, when it is in the interest of the creditor, may be the subject of a claim (act. praejudicialis). The right under an obligation, in this sense, as a subject of ownership, must be recognized not only by the obligated party, but also by all third parties: by virtue of this, when a third party intentionally violates this right (for example, intentionally, by the action of a third party, the creditor is deprived of satisfaction from the debtor’s property, satisfaction is intentionally reduced by placing imaginary claims on the insolvent, etc.), the perpetrator of the violation is subject to liability to the creditor. The number and types of real rights are strictly defined; all of them are contained within the boundaries of property, possession, use, disposal. Here the introduction of new types and qualities is almost impossible or extremely difficult; Centuries pass until, from among the recognized and conscious property rights, some new type of property relationship, hidden in the unconscious life of the people, emerges and is determined. On the contrary, in the sphere of contractual rights there is a constant movement, and their types change, increase, and multiply in accordance with the needs of civil life. A thing has its own nature, independent of human will; on the contrary, in contract law, personal will – there is complete freedom to create new types of relationships, and therefore contract law is particularly flexible. The types of contractual relations develop and become more complex along with the movement and development of civil life (plura negotia, quam vocabula). As long as life in society is simple and there is little movement, obligations and contracts are not important. But we live in a time when property, things and values ​​are in constant motion, in circulation between people, and property serves not so much as a goal of acquisition, but as a means for acquiring new things and values. At such times, obligations become especially important and become the most developed part of civil law. Most civil cases now arise from obligations under contracts. Of all the subjects of civil law, contract is least applicable in the field of family rights. It's clear why. And in family law, a connection exists between famous persons, but this connection is of a very special kind. The family union arises directly from human nature, and in its essence does not entirely depend on his personal will. Family relations, embracing a person in his entirety, are naturally moral, and not just legal. A person enters into a family union in the same way as into a civil union, by the very act of birth, unconsciously, before he is able to recognize, choose and express his will. Then, founding a new family himself, he enters into marriage, albeit by free agreement. But his life in this union, the continuation of the union, is determined not by the terms of the contract, but by the highest moral and natural principles of his nature and the relationship arising from them. Property rights, once formed, in one way or another, always remain the same in nature. On the contrary, each obligation retains its special, individual meaning in continuous connection with the motivating cause of its origin (causa), and the relationship arising from it can be modified without limit, in accordance with the actions of one or the other party, or with random events. Although recently, as mentioned above, many new types of contractual agreement have arisen and are emerging, but all these new types, of necessity, must be included in the general system of contract law and are adjacent to its basic legal principles. These general principles in contract law are more definitive and precise than in other parts of civil law, and in their notes the strict consistency of legal thinking is most clearly expressed. That is why these general principles in contracts require, first of all, detailed explanation. It is usually proposed in the so-called general part of the doctrine of contracts. In all legislations, the general provisions on contracts are usually allocated to a special part and are replete with firm, definite rules, based for the most part on provisions taken from the classical source - Roman law. So, in French civil. the code has a special lengthy title: Des contrats ou des obliga-tions conventionnelles en géneral, contains 268 articles (990 articles related to obligations); in the Austrian code there are about 185 articles devoted to the same subject. Only in our legislation this part is meager, dry and left completely without definitions. In our Part I of Volume IV, the book, which contains about 500 articles (with the allocation of regulations on government contracts to a special provision in the same part), is devoted to obligations under contracts, and in it less than 25 articles contain general provisions on the preparation, execution, execution and termination of contracts. When publishing the Code of Laws. and it could not be otherwise, for it was compiled according to old decrees and statutes, in which almost no general provisions were expressed and there was no classical foundation in mind. But it’s amazing how since 1832 this deficiency has not yet been filled. But he is very sensitive, and our judicial practice is inevitably supplemented to this day either with fragments of general expressions found in individual articles of the entire Code, or resorts, where possible, by analogy, to generalizations taken from the theory of law and from the essence of legal relations. In the vault Zak. Citizen In the Baltic provinces, 1,692 articles (out of 4,600 in the entire code) are devoted to contracts and obligations, or the so-called law of claims: of which 733 articles are devoted to the general part. She was given a very complex development. Not every voluntary agreement can be recognized as a contract that is subject to civil laws, i.e. generating the right to someone else's action, which has value in the community. Therefore, for example the agreement of several executors in a joint decision made by them to execute a will does not give rise to a binding contractual relationship between them. Cass. decide 1873, No. 1485.