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1. 2. The concept of not taken place transactions, their general characteristic

Though object of the present research are not taken place transactions, however, objectivity for the sake of, we will notice, that the juridical fact inconsistency along with its invalidity in the general file of the legislation is known not only to civil law.
So, in a constitutional law the void and not taken place can be elections and a referendum. Thus, for example, elections of deputies of the State Duma of Federal assembly of the Russian Federation are not taken place if in elections has taken part less than 25 percent from number of voters or if a poll of the voters submitted for the candidate who have won elections, less, than a poll of voters, submitted against all candidates. Void such elections will be recognised, if dopushchejnye at carrying out of voting or an establishment of results of voting of infringement of the legislation on elections do not allow to define with reliability results of will of voters, or under the decision суда45. Similar positions of the legislation contain also concerning procedures of presidential elections Russian Федерации35, elections in bodies local самоуправления36 and carrying out референдума37. Thus, there are certain distinctions between invalidity and a juridical fact inconsistency in a constitutional law. If we address to the remedial legislation also we will see, that and not become effective (in other words, invalid, not taken place) standard legal acts can be recognised void. Thus not taken place standard legal acts are, if they are not registered (for standard legal acts of federal enforcement authorities) or officially not опубликованы49; void — such standard legal acts which contradict standard legal acts bolshej a validity (item 1 of item 251 GPK). It turns out, that not taken place in the specified cases juridical facts are when conditions of their fulfilment are not observed so, that it is impossible to speak about them as about the facts; nedej - stvitelnymi such facts which validity is cancelled because of infringements taking place at the moment of their fulfilment are admitted. As to civil law the concept of an inconsistency along with invalidity in this branch of law meets more often, than in the others. Void and not taken place in civil law can be: — General meetings of the collegiate bodies of management of legal bodies (item 58 of the Federal act from 26.12.1995 № 208-FZ «On joint-stock companies» 38); — Issues of securities (sections 4, 5 decisions of Federal Commission on Securities of the Russian Federation from 31.12.1997 № 45 «About the Position statement about an order of stay of issue and a securities issue recognition not taken place or void both modification and additions in certificates of the federal commission on a securities market» 39); — The auctions, competitions (item 447 item 5, item 1 of item 449 GK, also is spoken about not taken place auctions in item 58 of the Federal act from 16. Ь7.1998г. № 102-FZ «About the mortgage (real estate pledge)» ""); — Transactions and договоры40.
Thus, the institute of an inconsistency of the juridical fact is not something unique for the legislation in general, however its basic reserves disappear in the civil legislation, including at institute of transactions. Before to start consideration of not taken place transactions, we will stop on one question of the theory without which, in our opinion, in general there is no sense to consider this problem. As is known, in the legislation and in the legal literature the concept "transaction" ("contract") acts in following values: the transaction (contract) as legal факт41 and the transaction (contract) as legal relation. Thus the transaction — the juridical fact is understood as the actions directed on occurrence sdelochnogo of legal relation, and as the transaction-legal relation — the mutual rights and duties of the parties of the contract arising from these actions. O.A.Krasavchikov in this occasion absolutely fairly noticed, that, «analyzing the maintenance of item 26 GK (GK RSFSR 1922 — Century, our lawyers mean the contract (transaction) as the juridical fact. However when they pass to consideration of positions of item 139-141, 143, 144, 145, etc., that, using the term« the contract », understand as it the relation which has arisen from the contract, — contractual legal relationship» 42. Discriminated the transaction — the juridical fact and the transaction-pravootnoshenie and others исследователи43, and, in general, this position of the theory anybody seriously is not challenged till now. In this occasion still O.A.Krasavchikov fairly wrote, that «the similar different interpretation of the same term should lead to various misunderstanding and difficulties theoretical, and is equal also practical usages. With a view of elimination of the specified mixture follows... The contract (transaction) to call only that phenomenon about which speaks item 26 GK, that is the action directed on movement of concrete legal relation. The legal relation which basis of occurrence is the contract (transaction), toch - 57 It to call contractual (sdelochnym) legal relation ». B.I.Putinsky suggests to call its obligation", that we consider expedient. However, researchers, 44 along with these two values of concept of the transaction (contract), allocate their following value: the transaction (contract) as the document. However to understand as the transaction (contract) only the uniform document signed by contracting parties, containing the mutual rights and duties, would be wrong. The Contract-document is not value of concept "contract" ("transaction"), and the objective form of its expression. And this way of expression of will not the unique: transactions (dogovory) can orally consist, implicative actions, and also by an exchange of documents. Thus the juridical fact the transaction (contract) will be and as the uniform document, and as an exchange of documents, both as implicative actions, and as verbal agreement (will) if conditions of the legislation concerning a conclusion order are observed; all these ways of expression of will, being the juridical fact, will generate and corresponding правоотношение45. Thus, as the transaction (contract) it is understood either the juridical fact, or legal relation (obligation) depending on a situation and a context. However constantly to differentiate both is chenija concepts "transaction" ("contract") not следует46 as they are different displays of uniform complete object (the different parties of one medal): one focuses attention on an occurrence order (the contract as the juridical fact), another reflects the "life" form (the contract as legal relation). One (the contract as the juridical fact) is a necessary condition of occurrence of another (the contract as legal relations). As precisely notices 3. I.Tsybulenko, «unlike other juridical facts (for example, events, injury etc.) Which attract only an establishment, change or the termination of civil matters, the contract, besides, directly and regulates according to the law and the agreement of the parties behaviour of the parties, defines their rights, a duty and responsibility »47. Therefore transaction-fact and transaction-legal relation differentiation is necessary for full representation about essence of transactions only in some cases, outside of these cases it is deprived sense. Studying of a question on not taken place and void transactions - it just that case. In this connection it would be desirable to address to concept of the transaction which is used by the legislator. According to item 153 GK of the transaction are actions of citizens and the legal bodies, directed on an establishment, change and the termination of the civil rights and обязанностей48. Proceeding from legislative definition of the transaction, it turns out, that all actions directed on an establishment, change or the termination of the civil rights and duties, are transactions. However in a reality not it is possible to name all such actions with confidence transactions, i.e. The concept of the transaction completely does not reflect sense put in it. So, for example, the offer is in understanding of the legislator the transaction, i.e. Action of citizens and the legal bodies, directed on an establishment, change or the termination of the civil rights and обязанностей49. However the offer - it yet the transaction in habitual for the lawyer and the inhabitant understanding, i.e. As the basis for occurrence of the obligation from the transaction. Others slo - you, the offer — the juridical fact for occurrence of certain legal relations (for example, relations concerning making contract in the form of impossibility of unilateral refusal of the offer — item 2 of item 435 GK), but in any way the juridical fact for occurrence of the obligation from the transaction. The transaction, i.e. Such juridical fact which is the basis for occurrence sdelochnogo legal relations (the contractual obligation), will be only accepted оферта50. Also assignation from one party another is the transaction proceeding from the definition used by the legislator in item 153 GK (under real contracts assignation is a necessary condition of their conclusion (item 2 of item 433 GK)). However in itself assignation by the transaction is not. So, if one party without the basis takes and will transfer property to other party (in our opinion, even in case this party intended to make the real contract) it is impossible to say that §yla the transaction as the transaction in any case is the agreement on assignation conditions is made. Transfer and property acceptance will be only the proof of presence of this agreement and simultaneously its execution. The in itself "naked" fact передачи* property testifies to presence of the agreement on transfer conditions, however does not define uslory this agreement. In the example resulted above if it will be established, that the agreement on transfer conditions between the parties was absent, to relations of the parties norms about unjust enrichment should be applied. Without the basis it is necessary to distinguish assignation from assignation to execute the agreement which have taken place between the parties on transfer conditions (i.e. Assignation under the transaction). In the legal literature the given actions rassmatriva - jutsja as the unilateral contracts having auxiliary характер51. However, in our opinion, such assignation by the transaction is not. In itself assignation is not directed on an establishment, change or the termination of the civil rights and duties, on what the agreement on assignation is directed. Assignation is only realisation of the agreement which have taken place between the parties, «a transaction life», i.e. Other, rather than the transaction, the juridical fact (and irrespective of, assignation at the moment of the agreement is carried out or it is delayed from it in time). It proves to be true also that the Russian civil legislation, in difference, for example, from German, does not perceive a design of the real transfer, which supporters allocate the obligations contract (i.e. Actually the agreement on transfer), establishing only obligations relation, and the real real contract of transfer which are directly carrying out transition of the property right. As fairly notices With. G.Shevtsov, «articles 218, 223 GK provide occurrence of the property right on the basis of the obligations contract (for example, purchase and sale) and connect property right transition not with the transfer transaction (the real contract), and with the transfer fact» 52. Thus, assignation by the transaction is not. Here we agree from O.A.Krasavchikovym and M.I.Braginskim which noticed, that «on the legal nature execution is not the transaction, and a legal act, i.e. The given action was the lawful act which legal effects come irrespective of, is directed on achievement of these consequences 69 Or not », i.e. The party which has carried out execution under the contract according to its conditions, has not the right to refer that has made it by mistake, in a state of intoxication and t. Item 53 Also it is possible to find examples of in judiciary practice that assignation is not the transaction. So, for example, the court specified, that the reception-transfer certificate issues only assignation in discharge of duties under the contract, and the transaction is this contract. Therefore the reception-transfer certificate, not being the transaction, 71 By void it is recognised cannot be. However, frequently happens so, that actually agreement on assignation as the transaction has not taken place (for example, in view of absence of essential conditions, non receipt on the acceptance offer), however the parties have taken measures to its execution (have transferred property on a waybill, the reception-transfer certificate etc.). In this case it is necessary to mean, that actually between the parties the transaction will be made. Thus the transaction arises not with the assignation fact as the juridical fact, and with the fact soglashe - \nija between the parties about assignation. Last fact also will be the transaction. Assignation in itself, being only agreement execution (other, rather than the transaction, the juridical fact), will testify only to the agreement available between the parties — that the transaction has been made. Therefore to speak about transactions not only as about dejst-* vijah citizens and the legal bodies directed on an establishment, change and the termination of the civil rights and duties more correctly, i.e. Exclusively as about juridical facts. Under the general rule about transactions it is necessary to speak as about such actions of citizens and legal bodies with which the legislator connects possibility of an establishment, changes and the terminations of the obligation corresponding to the transaction. Hence, it is impossible to consider the transaction separately as The juridical fact and separately as legal relation. The transaction is a multilevel concept, it only such juridical fact which is capable to generate certain legal relation (the contractual obligation). Other juridical facts to concept of the transaction of any relation to have should not. With a view of the given work we will place emphasis on the making contract fact as the juridical fact. What is so-called «not taken place transactions», «not prisoners dogovory»? We will try to understand it. As is known, the transaction is understood as actions of citizens and the legal bodies, directed on an establishment, change or the termination of the civil rights and duties (item 153 GK). However not all actions of citizens and the legal bodies, directed on an establishment, change or the termination of the civil rights and duties, are transactions. So, nobody begins to approve, that «I something will transfer the type promise to you» is the transaction. That this action formally falling under concept of the transaction, containing in item 1 of item 153 GK, became the transaction, it is necessary to define, first of all, an obligation subject, i.e. The name and quantity transferred, other essential conditions and also that this will has been made by the appropriate person in due form etc. Only in this case undertaken actions become the transaction. Otherwise is not the transaction in that understanding which is given to it by norms of civil law. Under the general rule for transaction fulfilment — expression of will of the person, its making (item 2 of item 154 GK), and for making contract is necessary expression of the adjusted will of two parties (two-way deal) or three or more parties (the multilateral transaction) — item 3 of item 154 GK. Thus the contract is considered the prisoner if between the parties in the form demanded in coming under cases the agreement under the essential treaty provisions (item 1 of item 432 GK) is reached. If according to the law for making contract assignation is necessary also, the contract is considered the prisoner from the moment of transfer of corresponding property (item 2 of item 433 GK), and the contract which is coming under to the state registration, it is considered the prisoner from the moment of its registration if other is not statutory (item 3 of item 433 GK). According to paragraph 2 of item 1 of the item 434 GK if the parties have agreed to conclude the contract in oprede - lennoj to the form it is considered the prisoner after giving to it of the agreed form. Transactions are considered not taken place (dogovory as not prisoners) and in other cases of infringement of an order of their fulfilment (conclusion), for example, in case of acceptance non receipt on the offer, the untimely acceptance of the offer etc. Some from specified, containing regarding the first GK, positions develop in second part GK according to which non-observance of the rules specified above does not attract occurrence • the transaction (contract). So, in some cases it is spoken about not concluded contract at absence in the contract of essential conditions. According to item 1 of item 555 GK («the Price in the real estate sale contract»), the real estate sale contract should provide the price of this property. At absence in the contract adjusted by the parties in writing conditions about the real estate price, the contract on its sale is considered not prisoner. According to item 1 of item 654 GK the building or construction rent contract should provide the size of a rent. Thus rules of definition the prices provided by item 3 of item 424 GK about the price for similar service under comparable circumstances, in this case are not applied. At absence in the contract of a condition on the size of a rent such contract is considered not prisoner. About not concluded contract in case of absence of essential conditions it is spoken and in other cases (see, for example, item 4 of the Law from 72 30.12.2004г. №214-ФЗ «about participation in share building...», item 7 of the Law from 24.07.2002 № 102-FZ «About the arbitration courts in the Russian Federation» 54). A number of norms of a part of the second GK provides, that on occasion the contract which is coming under to the state registration, it is considered the prisoner from the moment of such registration. By point 2 of item 558 GK it is defined, that the sale contract of an apartment house, apartment, an apartment house or apartment part comes under to the state registration and it is considered the prisoner from the moment of its registration. According to item 3 of item 560 GK, the enterprise sale contract comes under to the state registration and it is considered the prisoner from the moment of such registration. In item 2 of item 651 GK it is said that the building or construction rent contract, the prisoner for the term of not less year, comes under to the state registration and it is considered the prisoner from the moment of such registration. In item 2 of item 658 GK it is specified, that the enterprise rent contract comes under to the state registration and it is considered the prisoner from the moment of such registration. As about not prisoner at requirement non-observance about the state registration of the transaction it is spoken and in a number of other cases, (Law item 11 «About pledge» 55 see, for example, item 32 of Wood code РФ56, item 55 of Water code РФ57, Law item 4 «About participation in share building...» 58, etc.). Also about not concluded contract it is spoken in the absence of assignation when according to the law for making contract (so-called real contracts) such transfer is necessary (item 2 of item 433 GK). For example, according to item 3 of item 812 GK («loan for consumption Contest») if in the course of contest by the borrower of the loan for consumption on its lack of money it will be established, that money or other things actually have not been received from the creditor, the loan for consumption is considered not prisoner. Hence, the transaction is considered made (the contract the prisoner), if an order and conditions of their fulfilment (conclusion), i.e. Actual requirements to their fulfilment are observed so, that it is possible to approve, that they as juridical facts have taken place, i.e. Have taken place as circumstance with which the law connects occurrence sdelochnogo legal relations. In this connection O.A.Krasavchikov, considering not complete legal structure, absolutely fairly noticed, that «until then while the legal structure is not finished in the volume and the maintenance, until then and elements constituting it remain only the facts... The Finishing moment of accumulation of structure represents that jump which translates structure from one condition — actual, in other condition - legal. The quantity passes in quality — the facts become legal, generating the legal consequences established by the rule of law» 59. Therefore if the transaction (is more true, not the transaction, and the action similar to the transaction), say, does not contain all essential conditions (i.e. In this case quantity insufficient for new quality) it simply is considered not taken place as the transaction — the juridical fact and consequently, and not generating sdelochnogo legal relations. Thus, («not concluded contracts») it is necessary to understand as «not taken place transactions» such actions of citizens and the legal bodies, directed on an establishment, change or the termination of the civil rights and duties, conditions of which fulfilment (conclusion) are not observed so, that it is impossible to consider these perfect actions by transactions (contracts). Proceeding from the legal nature so-called «not taken place transactions», they are characterised by following signs: — First, they are made as the actions directed on an establishment, change or the termination of the civil rights and duties. In this respect they differ from the actions which have been not made at all, i.e. From bezdejstvy, and from other actions - the reality facts. From the last not taken place transactions are distinguished by an orientation on legal result (on an establishment, change and the termination of the civil rights and duties); — Secondly, they though are made as action, however are considered not made as transactions, i.e. As actions-facts of reality they have taken place, but as action-transaction — is not present. In this respect they differ and from transactions; — Thirdly, except non-observance of an order of fulfilment of transactions (The conclusions of contracts), actual requirements to their fulfilment, » These actions of other defects have no. «Actions of the parties here concern non-observance of an order of fulfilment of the transaction» 60. «Allocation of not taken place transactions in independent group is caused by that deficiency of transactions can be predetermined not only legal requirements of the validity, but also actual» 61. If to consider not taken place transactions more widely as those various precontractual agreements (protocols of intent will act, memorandums of mutual understanding etc.), actually valid "gentlemen's" agreements if, of course, according to item 429 GK it is impossible to recognise them as preliminary contracts. Preliminary dogovory are not not taken place transactions as de facto it is transactions about transactions. So, in judiciary practice as the transaction the agreement on the price of sale of uninhabited premises has been recognised by not taken place (a type design «the party present have come to the agreement on the price of sale of the uninhabited premises located., in the sum...» ). In the decision on the given case the court has specified, that the given agreement by the legal nature is not the transaction (contract) as does not create the obligation, does not establish, does not change and does not cease the mutual rights and duties of each of the parties which have signed the agreement, does not define the maintenance of their rights and duties, and only fixes intention of the parties about sale and acquisition of uninhabited premises for a determined price. So it is not applicable to obzhaluemomu to the agreement and item 429 GK about the preliminary contract as in the agreement there is no obligation of the parties to conclude in the future the contract.o to transfer uninhabited pomeshche - ABOUT 1 ny, and also there are no conditions of such contract. Actually the court has counted the given agreement "gentlemen's", i.e. Executed only at will of the parties. Not taken place transactions will be there where an assignation consequence is application of norms about unjust enrichment. In case of assignation without the agreement on conditions pe - redachi arises kondiktsionnoe the obligation as consequence of that the contract is not concluded and consequently there is no statutory basis for assignation, in other words, there is not concluded contract. In connection with obligation execution not to the creditor, and other (extraneous) person (goods sending to the incorrect address means, for example, ', delivery by its carrier on? To an error not to the addressee, transfer of the money which has arrived in bank on і the account of other client etc.) also there is an obligation from neos - 1 novatelnogo enrichments because there is no prisoner between the creditor and the contract third party. Here again it is a question besides about ' not concluded contract. Not concluded contract in a broad sense frequently takes place and in case of infringement of an order of execution (inadequate execution) the concluded contract, somehow: assignation under the contract over caused or outside of the currency of the contract, assignation with other infringements of conditions of transfer (with infringement of treaty provisions about quality, completeness, assortment, container, etc.). As under the concluded contract execution is carried out only according to its conditions, requirements of the law, other legal acts, and in the absence of such conditions and requirements — according to customs of a business turn or usually shown requirements (item 309 GK) concerning deviations from the order of execution adjusted between the parties the agreement should take place; if the given agreement is not reached, in this part the transaction is not considered taken place, and execution — ought. Besides, not taken place in a broad sense will be also so-called «substitute transactions» (substitutes of transactions definitely - go a kind) % i.e. Transactions, which owing to non-observance of their order Fulfilment are considered not taken place as transactions of one kind, however can be recognised by taken place as transactions of other kind. Differently, in this case that transaction which the parties actually meant, is considered not taken place because of non-observance of conditions of its fulfilment. So, absence in the bill of any obligatory requisite for the bill in some cases allows to consider it as the usual promissory note, instead of as the bill; similarly credit contract, the creditor in which is not bank or other credit organisation, can be considered as the loan for consumption. Thus, not concluded contract can be considered very widely. However for the present work of concept of not taken place transactions (not concluded contracts) actions of citizens very similar to transactions and legal bodies, though and directed on an establishment, change or the termination of the civil rights and duties, but owing to infringement of an order of the conclusion not being the basis for this purpose will be considered as outwardly. Meanwhile there is a question, the transaction is not taken place as the contract, i.e. How the agreement of two or more persons on an establishment, change or the termination of the civil rights and duties, or as well as unilateral will-transaction? We consider, that not taken place mainly are two-and the multilateral transactions, sometimes not taken place can be recognised and 83 g\ Unilateral contracts. It is connected by that according to item 156 GK to unilateral contracts general provisions on obligations and contracts so far as as it does not contradict the law are accordingly applied, to unilateral character and a transaction being. In GK, for example, in some cases directly it is underlined recognition possibility not taken place some unilateral contracts. So, check delivery is the unilateral contract. In item 878 GK obligatory requisites which should be the decree - are listed 3 With reference to two-and to multilateral transactions to speak «not prisoners dogovory», placing emphasis on the coordination of wills as on the moment of fulfilment of the transaction (making contract) more correctly. If to speak about unilateral contracts for them correctly to use concept «not taken place transactions». Differently, the transaction is made, and the contract, first of all, consists.; •> ny in the check. Absence any of the specified obligatory requisites deprives the document of force of the check. Bill drawing up also is the unilateral contract. In Position item 1 about translation and the promissory note (the decision of the Central Electoral Committee of the USSR and SNK the USSR from 07.08.1937 № 104/1341 «About introduction in 84 Position action about translation and the promissory note ») is specified, that should contain in the draught. If something does not appear in the document it will not be valid the draught. Thus, not taken place can be both two-and multilateral transactions (dogovory), and unilateral contracts. Let's consider in more details, that such not taken place transactions, whether are they juridical facts in general, and transactions in particular. Proceeding from the legal nature of not taken place transactions, it is possible to establish, that it — not transactions; and actions to the transaction, more likely, transaction subquality work. They do not contain that necessary element with which reality actions-facts become juridical facts — transactions, i.e. Such facts of reality with which the law connects possibility of occurrence, changes or the terminations of a special sort of legal relation — sdelochnogo obligations (the public relation settled, more likely, not norms of the law, and the free will of the parties having for them force of the law, and sometimes, in view of an optionality principle, and force big, than the law). Thus, not taken place transactions are not juridical facts — transactions. Under the general rule not taken place transactions are not also juridical facts in general as in itself do not generate any legal effects because with them the law not svjazy - 85 vaet this possibility. From the point of view of logic and Russian, «not taken place fact» is that fact which has no place to be as the fact. However, in some cases not taken place transactions, not being juridical facts — transactions, can sometimes be legal the facts in general. So, not accepted offer is for the present not the transaction, but already the juridical fact of other sort (paragraph 1 of item 2 of item 435 GK) as the law does not connect with it possibility of a response from the moment of reception by the addressee. It, of course, a rare exception. In this connection we consider erroneous O.V.Gutnikova's categorical statement that not taken place transactions are legal фактами86. Under the general rule, «if the transaction has not taken place, it is not the juridical fact, and sledova - 87 telno, and the transaction ». There is a question, and how void transactions? (Void transactions if in a context other especially is not reserved, will be understood as such void transactions which do not concern to not taken place.) Let's notice, that «in spite of the fact that in the Russian legislation the institute of invalidity of transactions is used for a long time already, in To civil law science till now there is no common opinion 88 About definition of concept of void transactions ». On many questions on invalidity of transactions throughout a long time interval the legal discussion is led, which end it is not visible and at the moment, including for the reason that the answer to one of questions of this discussion (is or not the void transaction the juridical fact in general, and the transaction in particular?), indirectly depends on the answer to other question (whether not taken place transaction a kind of the void transaction is or not?). Of, whether the void transaction the transaction and the juridical fact is, there were two opposite points of view. Nb L shenija, i.e. The public relation settled by rules of law, does not create. These actions are more likely in morals plane, but not the rights, and can voluntary be executed by the parties under the influence of their internal 87 88 About Gutnikov O.V.Ukaz. soch. With. 100. 87 Krasavchikov O. A. The decree. soch. With. 58. Gutnikov O.V.Ukaz. soch. With. 15. Opponents of a recognition of void transactions juridical facts in general, and transactions in particular appeal to that the juridical fact is such fact of reality with which the law connects approach of certain legal consequences, and the void transaction of any consequences under the general rule does not attract. « The void transaction is an absence of the juridical fact, action, for the right indifferent »62. If it also attracts consequences, only not such on which the will of the parties has been directed, and only what are consequences of invalidity of the transaction which approaches of the party in any way did not wish. Followers of such point of view in a civil law science were, for example, S.F.Kechekjan, J.K.Tolstoy and M. of M Агарков63. Last even suggested not to apply the term"transaction"to void transactions as they, in its opinion, those are not, and to call their void wills. Supporters of a recognition of void transactions and juridical facts, and transactions (for example, D.I.Meyer, G.F.Shershe-nevich, D. M.Genkin, I.B.Novitskij64) noticed, that void transactions nevertheless exist. If they also do not lead to those consequences on which have been directed it still means nothing as such transaction in any case involves other legal consequences. The juridical fact involves certain legal effects, however from the nature of the juridical fact with necessity does not follow, that it generates those consequences on which the will of the parties has been directed. Recognising void transactions juridical facts in general and transactions in particular, we will note the following. Rather on - gljadno this point of view is presented at N.L.Djuvernua in. V.Ra- Q0 binovich. The first compared void transactions to false coins. He marked, if the coin is false, it will not generate payment force, i.e. Will be void. However the false coin as well as present, all the same remains and will be called as a coin. It is absolutely fair. Continuing N.L.Djuvernua's thought, we will notice, that the legislation the false coin interests not as a coin (though it and is a coin) more. The False coin is interesting to the legislation as falseness, i.e. As an offence. In this connection argument N is represented to the most convincing. V.Rabinovich which notices: «the Void transaction is the transaction under the maintenance, the form and an orientation. At the same time it represents an offence as breaks norm of the law, the established law and order. It concerns the void transactions... However the void transaction — an offence of the special order, one of kinds of offences in the broad sense of the word...» 65. Further she marks: «... From this does not follow, that it (the void transaction. — Century ceases to be the transaction, represents the tort, in the same way, as that certificate which is does not cease to be the administrative act 94 Illegal, wrong... » Invalidity of the transaction has no relation to the fact of making contract from the point of view of presence pravoobrazujushchego structure, i.e. To the transaction as to the juridical fact. It concerns only that legal relation which of the making contract fact can возникнуть66. Therefore void transactions as transactions-facts are considered taken place, i.e. Contain all necessary elements (structure) with which reality actions-facts become transactions, however owing to other reasons (legislation infringement) they do not generate legal effects wished by the parties (sdelochnogo legal relation). Such transaction «is void as the transaction, owing to inherent in it as to the transaction of lacks» 67. As the juridical fact the void transaction is the transaction, «but without legal effect belonging to it» 68. « Invalidity is a legal estimation of a corresponding reality, structure of the social phenomenon which shows transaction structure as the social phenomenon »69. Hence, the void transaction represents action which though is made in the form of the transaction, however does not possess ability of the valid transactions to generate any consequences, except what are directly connected with invalidity of the transaction, in view of its discrepancy to the civil legislation. The void transaction is under the form, the maintenance (structure) the transaction, and as a matter of fact — civil-law infringement, and the legislation it interests not as the transaction, and as civil-law infringement more. The void transaction, being under the form and the maintenance (structure) the transaction, does not generate consequences peculiar to transactions, i.e. To speak about them as about high-grade transactions also it is impossible. The transaction it is only under the form, the maintenance. And all. As a matter of fact are the civil-law infringements which way of fulfilment outwardly represents the transaction. «Arisen under the form as the transaction, action actually javlja - 99 etsja not the transaction, and an offence ». The void transaction is also the juridical fact in general as generates in case of execution application possibility to it of consequences in the form of invalidity. Including void transactions and juridical facts, and transactions, it would be desirable to add the argument of those who considers void transactions as transactions following three moments, on which researchers did not pay attention till now. First, the paragraph «Invalidity of transactions» from the point of view of legislative technics structurally is in "Transaction" chapter 9. If the legislator did not consider void transactions as transactions it should allocate them in the separate, independent chapter, instead of in the paragraph in the head of "Transaction". Differently, their location in structure GK says that void transactions is a kind of transactions. Thus such arrangement is not casual, it cannot be regarded as oversight of the legislator as it is traditional for Russian tsi - vilisticheskoj науки70. Secondly, and in the legal definition of the void transaction containing in item 167 GK (the void transaction does not attract legal consequences, except for what are connected with its invalidity, and it is void from the moment of its fulfilment), and in other norms GK the legislator, speaking about the void transaction, operate with concept "transaction". The third argument missed many from kind: the word "void" in a word-combination «the void transaction» from the point of view of Russian is an adjective, i.e. A sign of the subject (a noun "transaction"), its qualitative characteristic. From this point of view of the transaction happen favourable and unprofitable, valid and void etc. All is kinds, qualitative forms of display of transactions which from the point of view of Russian are expressed by adjectives. Thus, void transactions are also juridical facts (the truth, a special sort), and transactions (the truth, also rather). It distinguishes not taken place transactions from недействительных71. If we consider the making contract fact as the juridical fact it is possible to allocate the taken place and not taken place transactions. Thus taken place transaction generates certain legal relation, and not taken place — is not present. Here this legal relation which is generated taken place as the juridical fact by the transaction, in some cases and is nullified. Proceeding from it a place of not taken place transactions in system grazhdansko - legal institutions and in system of juridical facts and the facts re - alnoj the validity can present as follows (see the scheme 5). L 1 v'i. ·a ] s.f, Actions? — The facts real | the validity і Actions legal fakga [Actions — 1 I nejuridicheskie] h (Other actions jur. The facts The taken place transactions Other actions Not taken place transactions (Transactions) і Valid! Transactions The scheme 5 nedsjstvt elnye transactions Thus, it is obvious, that attempts of researchers of void transactions unequivocally to answer a question, are or not void transactions, including not taken place transactions, the juridical fact and the transaction in particular, are doomed to failure as in this case under void transactions the various phenomena by the legal nature (and what are juridical facts, and not being those) are consolidated. In this connection it is necessary to pay attention to the terminological characteristic. All definitions, in which not taken place transactions are formed through concept of the transaction (not become effective transaction, the imperfect transaction, not taken place transaction, not concluded contract) logically are not absolutely exact as such phenomenon as follows from its legal nature, the transaction is not. It - actions to the transaction to tell more precisely, transaction subquality work. Under laws of logic the reality facts can be defined by the negative description if they as the facts do not cease to exist. Differently, negation should concern not the fact (not taken place transaction — not-transaction), and to its description (favourable — the unprofitable transaction). If the fact of reality new definition should be entered is denied. Therefore, as so-called «not taken place transactions» is not transactions, and something another working out and application to them new terminology are expedient. Besides, from the point of view of Russian, expression «not taken place transaction», «not concluded contract», «the imperfect transaction», «not become effective transaction» is oksimorony (grech. oxymoron — letters, is witty-silly), i.e. The stylistic turns combining opposite on word meaning, or bessmysli - 1 CP tsy type «dead souls», «a live corpse» etc. ~ Oksimorony for giving to expressiveness and colour language can be used only in literary speech, but in any way in the scientific. Available terminology («not taken place transaction», «not concluded contract», and especially «the imperfect transaction») includes, along with the studied phenomenon, and potentially any inactivity of citizens and legal bodies, i.e. It is a little bit wider than the studied phenomenon. And expansion of the studied phenomenon to such sizes is inexpedient, as inactivity from this point of view civil law do not interest at all. Therefore consider expedient for designation of the studied phenomenon to enter new definitions: «not taken place as transactions of action (will)», «not adjusted wills» 72. The given definitions, in our opinion, reflect essence of the studied phenomenon because not only underline more successfully, that made with infringement of rules about transactions of action transactions are not, but also define more accurately, that these actions though are made, but have not taken place as the transaction. Besides, these definitions exclude nonsense in the maintenance which is inadmissible in scientific categories. As to so-called «not taken place transactions» words "not taken place", "not prisoner", "imperfect" in definitions «not taken place transaction», «not concluded contract», «the imperfect transaction» by Russian rules are not verbal adjectives, i.e. Signs of a noun "transaction" (as in examples «the unprofitable transaction», «nedejstvitel - naja the transaction» adjectives "unprofitable", "void"), and participles, i.e. Actions which the noun tests on itself as are formed from perfective aspect verbs (to take place (not taken place transactions), to conclude (not prisoners dogovory), to make (imperfect transactions)). The told means, that words "not taken place", "not prisoner", "imperfect" in definitions «not taken place transaction», «not concluded contract», «the imperfect transaction» are not intrinsic signs of a noun "transaction", its qualitative characteristics (as in a word-combination «the void transaction»), and actions, which this noun (the word "transaction") undergoes (if has taken place — the transaction if has not taken place — not-transaction. Not taken place transaction). Thus, in reference of this or that word to a certain part of speech (to an adjective or a participle) also it is underlined deep logically and legally accented semantic difference. The specified difference can be tracked and concerning concepts "not taken place" and "void". Not taken place — what had no place to be actually, void — what was, but owing to infringements it is not considered, that it was. Hence the main difference of void transactions from не* taken place consists that void transactions is under the form, to the maintenance (structure) all the same transactions, and not taken place transactions are actions to the transaction, transaction subquality work. In this respect N. V.Rabinovich fairly noticed, that «void the transaction not taken place differs from the transaction the following... Not taken place transaction represents legal" anything ", in general the transaction is not... Unlike not taken place transaction the void transaction is a transaction which has taken place, however owing to lacks inherent in it admits the deprived legal force» 73. Developing sights N. V.Rabinovich, has rather figuratively expressed in this occasion M.I.Braginsky, having noticed, that «not taken place contract (" not concluded contract ") is always" anything ", and nedej - stvitelnyj — can be" something ", meaning those special consequences which are specified in the law in this respect» 74. Having analysed not taken place transactions from the point of view of the theory of juridical facts, we will address to their consideration as legal relations. Not taken place transactions as legal relations are actions of citizens and the legal bodies, not being the basis for occurrence of the obligation peculiar to the transaction. This narrow understanding not taken place as transaction legal relation. However there is also a wide value not taken place as transactions - of legal relation of actions, i.e. Prisoners as the juridical fact, but not executed as legal relation dogovory mean. Differently, from the fact of making contract, the contract as juridical fact in any case can arise sdelochnoe legal relation (the obligation settled by norms of the contract and the law). However if to present arising of the contract — the juridical fact the obligation in the form of an iceberg at which the insignificant part is over a water surface, and its basic weight - under water from the fact of making contract one party will have only an incorporeal right of enforcement of the contract another, i.e. It is only surface top of an iceberg in the arising obligation — legal relation in the narrow sense of the word. The basic rights and the duties of the parties constituting a being of the obligation (legal relation in a broad sense, debt relationship), will arise a little bit later — with the fact of execution of the contract concluded by the parties. If the parties, having concluded the contract of purchase, further voluntary mutually have not undertaken measures to its execution debt relationship in a broad sense this word as sets of the mutual rights and duties of the parties, do not arise, and there is only an obligation in narrow sense — the hypothetical duty of one party to execute such contract according to its conditions (voluntary or compulsorily through court), and the right of other party to demand execution. The unsatisfied contract which actually is not taken place as the contract-legal relation in the usual sense in this case means. However such contract has no anything the general with so-called «not taken place transactions». This contract is considered taken place as the juridical fact, generates the obligation in a narrow sense its values, being unsatisfied (other words - not taken place) legal relation in usual (wide) understanding. And not taken place transaction, as shown above, the juridical fact is not, occurrence of obligations (even in their narrow understanding) in itself does not attract. Thus, the transaction inconsistency concerns, first of all, the transaction-fact. The inconsistency cannot concern only the transaction-pravootnosheniju because otherwise it will be concluded, but unsatisfied dogovory. Therefore the transaction-legal relation inconsistency in any case is a consequence of a transaction inconsistency as juridical fact (invalidity of transactions, as well as them neispolnennost, concerns exclusively the transaction as to legal relation). Hence, not taken place transactions will be understood as such actions of citizens and legal bodies behind which the law in case of non-observance of its requirements does not recognise force of the juridical fact for occurrence of legal relations corresponding to the transaction. Thus, the contract (transaction) is not taken place, first of all, as the juridical fact, and consequently, and as legal relation. Thus, considering ways of making contract as private and most widespread case of the transaction, it is necessary to notice, that the transaction (contract) is, as a rule, the uniform document expressing will of the parties, its components. However, as it was marked above, to understand as the transaction (contract) only the uniform document would be неправильно75 as as the transaction (contract) can be understood also: 1> g m, g, ; CH L • • "• — Exchange of documents (item 2 of item 434 GK). Variations here can be the most different. The main thing that it was accurately possible to track the documentary offer and its documentary acceptance; — The document and implicative actions (item 3 of item 438 GK), i.e. The documentary offer is followed by unequivocally expressing intentions of action on its performance (the actual acceptance); — Verbal contracts (item 159 GK), i.e. documentary in any way not issued actions directed on an establishment, change and the termination of the civil rights and duties. It would be desirable to notice, that the transaction as the juridical fact can be not taken place in the presence of corresponding conditions, at all ways of its conclusion: that it can be and as the uniform document, and as an exchange of documents, and as oral will, and as the acceptance implicative actions of the documentary offer. Thus the contract-document having all bases to consider by its not prisoner as the document, that not always is as the transaction and as legal relation (about it see in paragraph 3.1 of the present work more in detail). In more details it is necessary to stop and on a question of a parity of the void and not taken place transactions. At once we will be reserved, that the parity of concepts «not taken place transaction» and «the void transaction» is the biggest problem in investigated area. Casually therefore some researchers at all do not see a difference between the void and not taken place transactions, and many though see, but specify in loss of its practical value. Therefore there is a question: not taken place transactions have the independent legal nature or they, along with insignificant and voidable contracts, are a version of void transactions, and there can be they — a kind of void contracts? The special terminology applied to not taken place transactions, is an oversight of the legislator, a sign of independent and distinct from void transactions of the legal nature of not taken place transactions or it not that other how reflexion only some features, allowing to allocate them in a special subgroup among transactions void? Let's try to understand it. As is known, transactions are void on the bases established in item 168-179 GK, owing to their recognition those court (voidable contracts) or irrespective of such recognitions (void contracts). Thus according to item 168 GK the transaction mismatching requirements of the law or other legal acts, is insignificant, if the law is not established, that by such transaction osporima, or does not provide other consequences of infringement. In the legal literature on the legal nature of not taken place transactions actually there were two opposite points зрения76. According to the first not taken place transactions are void on the discrepancy basis to their rules of law about an order of fulfilment of transactions (the conclusion of contracts). Actually followers of this point of view refer to the rule of law containing in the beginning of item 168 GK on which «the transaction mismatching requirements of the law or other legal acts, is insignificant». On other point of view, not taken place transactions have distinct from void the legal nature, and in a substantiation of the point of view its followers refer already to continuation of item 168 GK according to which «the transaction mismatching requirements of the law or other legal acts, is insignificant if the law is not established, that by such transaction osporima, or not predusmatriva - - et other consequences of infringement». Not taken place transaction, they consider, provides other consequences of infringement — application to them of norms about unjust enrichment. In a substantiation of the point of view they refer and that the law, along with concept «invalidity of the transaction», in some cases uses special terminology (concepts «not concluded contract», «not valid transaction»). They also mark the excellent legal nature of not taken place transactions, not including their transactions, unlike void which, in their opinion, are transactions. In our opinion, not taken place transactions is distinct from void the legal phenomenon. So, above it was already noticed, that not taken place transaction is an absent fact of making contract as the juridical fact. Invalidity of the transaction is void (cancelled) of the taken place fact of making contract as juridical fact legal relation. The void transaction frequently is action wrongful, as mismatches law requirements (reguljativnym to norms), and in some cases and illegal (i.e. To - 108 gda breaks guarding norms-interdictions). However hardly it is possible to say that not taken place transaction mismatches those or other rules of law so, is a kind of the void transaction on the basis of discrepancy to the legislation. So, apparently, not taken place transactions are wrongful acts because at their fulfilment those or other requirements shown to an order of fulfilment of transactions are not observed. But, on the other hand, in case of non-observance of the requirements shown to an order of fulfilment of transactions, it is possible to say that made actions simply are not transactions, i.e. Those juridical facts with which fulfilment there come statutory consequences. They are not juridical facts in general, i.e. Such facts of reality with which there are legal effects. With their fulfilment of any consequences does not come, and they in itself do not generate any legal relations. They do not suppose other infringements. «The right estimates already available structure of the social phenomenon, an existing reality if it is not present, to the right, actually, and there is nothing to estimate» 77. Therefore the actions which have not taken place as the transaction, in our opinion, should be indifferent from the point of view of their legal regulation that is why they and cannot be wrongful as will not be Wrongful (if from them, of course, it is not seen misuses of right), for example, following actions: non-acceptance of the offer or the request of the counterpart to direct it the price-list with the subsequent refusal of the order on it. «Nobody challenges that negotiations about making contract cannot be considered as the transaction and prizna - ~ 110 vatsja insignificant by rules about void transactions » Actions on execution of such transactions, but it already other question will be wrongful. If all the same to consider not taken place transactions as actions wrongful not taken place transactions on the basis of discrepancy of the legislation have one rather specific line. At I their fulfilment actual requirements of the legislation to transactions are not observed, at fulfilment of void transactions — legal. Here we completely agree with JU. P.Egorovym78 underlining this difference though we consider the given criterion conditional enough. Besides, by consideration of the void and not taken place transactions simultaneously with execution these concepts also do not coincide. In connection with the subsequent erroneous execution of not taken place transaction can arise kondiktsionnye legal relations, i.e. Obligations arising from unjust enrichment — a duty of one party to return another unreasonably received. In a case with execution of the void transaction there is a legal relation on application of consequences of its invalidity. In other words, from the fact of execution of different kinds of transactions there are different kinds of legal relations (the difference in arising legal relations will be analysed in chapter 3). The subsequent execution of not taken place transaction sometimes can testify to presence sdelochnogo legal relations. The following situation Means, for example. The parties conclude the contract of purchase in which it is specified, that such essential characteristics of the transferred goods as the name and quantity, will be adjusted in the specification which are an integral part of the contract, i.e. Before signing of the specification data The contract is considered not prisoner. If to assume, that not concluded contract is a kind of the void transaction its execution should entail consequences of invalidity of the transaction in the form of the bilateral restitution. However if one party under such contract transfers on unprofitable the goods in which as the basis this contract is specified, and it will be accepted by the authorised person from the buyer, the court never will apply consequences of invalidity of the transaction. On the contrary, it will collect goods cost, as if the contract is considered the prisoner. In this case it turns out, that legal relation does not arise with not taken place up to the end as the transaction action (contract-document), it will arise only with the subsequent execution which in aggregate with the previous actions of the parties testifies to the agreement and consequently is the juridical fact generating corresponding legal relation. Execution of the void transaction sdelochnoe never and under no circumstances will not create legal relation (obligation): in any case there should be a legal relation connected with application of consequences of a recognition of the transaction void. It not taken place transaction also differs from the transaction void. Differently, not concluded contract is not complete structure (on expression JI. Ennektserusa, «the transaction in an uncertain condition» 79) which at any moment can become finished, i.e. Basically its lacks from will of the parties carry ustranimyj character. The void contract is «as though a deadborn organism which cannot be cured any means» 80. The void contract has complete structure, without change of a being of the legal relation it cannot become valid (valid it becomes if the essence of mutual relations of the parties changes) 81, the parties will be forced to conclude the new contract deprived of those lacks because of which previous it has appeared void. Besides differences between the void and not taken place transactions there is also one rather important similarity. So, not taken place transaction in itself is not the juridical fact for obligation occurrence. Therefore not taken place transactions, under the general rule, is the and not taken place legal relations. As M.I.Braginsky fairly marks, «there is no corresponding juridical fact (contractual treaty) so, there is no consequence of this fact (the contract - legal relation)» 82. However, in this respect they differ nothing from transactions void which also in itself, without the execution, do not create any legal relation. Here, perhaps, it is necessary to agree with O.V.Gutnikovym who noticed, that «if under the transaction to mean legal relation expression" not taken place transaction "is an expression synonym" the void transaction "83». Differently, if to consider not void transactions (i.e. Them, first of all, as juridical facts), and inability of the transaction and other actions to make peculiar result for transactions (i.e. As legal relation) the concept «not generating consequences peculiar to the transaction» will be collective and to include and void transactions (the actions which have taken place as the transaction), and not taken place as action transactions. However such decision, in our opinion, has certain lacks. The difference between the void and not taken place transactions as transactions-facts has been above shown, and at last approach the concept of the transaction as juridical fact will be washed away, that is undesirable. Besides, the legislator frequently uses concept «the void transaction» or, speaking about it, categorically names its transaction. From our point of view, division of void transactions and the actions which have not taken place as the transaction, in independent groups will be more expedient. We completely agree from prof. O.N.Sadikovym that «differentiation of the void and not taken place transactions lays in the tideway of modern lines of civil-law regulation which gradually becomes more exact and differentiated that allows to consider features of separate vital situations and to achieve their more adequate legal settlement though, it is necessary to recognise, and does by its more difficult for practical application» 117. All preconditions and the bases to it, in our opinion, are available. Therefore with a view of uniform understanding of the current legislation, in our opinion, not acceptance on this question the higher degrees of jurisdiction of the decision of Plenum as it is offered some исследователями84 would be superfluous and is made, for example, in Белоруссии85. In summary we will notice, that under not taken place transactions we will consider such actions, though and taking place to be as the reality facts, but behind which the law because of non-observance of an order of fulfilment of the transaction (actual requirements to the transaction) does not recognise the transaction — the juridical fact (the making contract fact) as basis for occurrence, change and the termination of the obligation peculiar to the transaction. That is not taken place transactions will be understood as actions, though and directed on establishment, change and the termination of civil matters but which by the legal nature are not juridical facts in general and transactions in particular. As not taken place transactions are not transactions working out and application to them new terminology, in our opinion, are expedient. We consider, that they should be defined as «dejst - vija, not taken place as transactions». The made definition opens an essence of this legal phenomenon as the facts of reality which are not the legal facts-transactions more full. Besides, made definition excludes understanding under not taken place transactions bezdejstvy which from this point of view civil law do not interest at all and consequently their expansion to such sizes is inexpedient. Concerning a parity of not taken place transactions with void various decisions are possible. However, from our point of view, allocation of not taken place transactions as the independent legal institution along with void insignificant and voidable contracts would be the most expedient. In this connection following definitions of invalidity and an inconsistency of transactions are offered. Invalidity of the transaction is a negation by the right of consequences of the transaction — the juridical fact on the legal lacks which were taking place at the moment of fulfilment of the transaction. The transaction inconsistency is an absence of the fact of fulfilment of the transaction (the transaction as juridical fact) and failure of consideration of consequences peculiar to the transaction owing to actual lacks to an order of its fulfilment.
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A source: Kijashko V. A.. Not taken place transactions: a sketch of the legislation, the theory and pravoprimenitelnoj experts. — SPb.: R.Aslanova's publishing house «the Legal centre the Press». — 240 with.. 2007

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