V.V. Trophimov. Reciprocity Principle as a Basic Element of Contractual Right: Theoretical Designing

Abstract: The article stresses out the importance of understanding the phenomena of a contract not taken as a dogma of policy or law history, but also taking into consideration the viewpoint of its basic ideas (principles) which possess the potential of practical implementation of its legal ideal. It is stated that the development of principles (basic elements) of contractual right as well as its “disclosure” within the system of the present legal norms can be considered to be one of the key trends of civil law researches. The legal basing is made on a general theory (from the viewpoint of law theory) for using the word-combination “reciprocity principle” as a definition of a lawful conception, at this, the answer is given to the question whether to consider “reciprocity” to be the principal legal element in general and contractual juridical structures, in particular. The basic features of “reciprocity” as a main element of social-legal relations are determined: two-sidedness, tie-up of actions and moves of members of correspondent relations, mutual orientation of carried out actions which can be primary or a response one. Attention is attracted to the fact that the reciprocity principle and connected with it equivalence principle have deep social roots and due to this private law (and its basic institutes) should show the basic social rules, actions within the system should be mutually balanced and equivalent. This principle is compared with the causa (basis) of a contract. It is determined that general basis of “reciprocity” actually makes it possible to disclose (synthesize) causa (basis) of a contract. The principle of equivalent reciprocity or mutual equity (iustitia commutativa), as it is stressed in the article, is really possesses the correspondent keyrole in systems of private-legal regulations. In the systems of modern contractual rights (national (including rights of the Soviet period), foreign, international) reflection of this principle can be found as well as its efficiency and practical application. To confirm the initial hypothesis of meaning of reciprocity in the system of contractual right the article also gives analysis of juridical constructions known since Roman legislation and updated juridical constructions: “fair price” (iustum pretium), “excessive loss” (laesio enormis), “mutual fairness” (iustitia commutativa), “counter satisfaction” (“consideration”), which show in their own forms the discussed principle legal origin. As a result it is stated that the intention to make the ground for legal nature of a contract on the position of justice, consideration of mutual interests has always been the main goal uniting different trends оf developments of contractual theories. The modern Russian science of contractual right is evolving within the same parameters.

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