Nikitin, V.V. Fundamental conditions and declaring a contract not concluded: Russia and the world

Abstract: The article concerns of declaring a contract not conclude due to the absence of agreement of parties on its fundamental conditions. The author discusses the problem of correlation between the contract clauses and the elements defining the type of contract. The author refers to a contradictory influence of the broadly applied practice of recognizing the contracts not concluded on the civil law turnover. The author then discusses an issue on why in some cases the lack of fundamental conditions, also serving as characteristic features of the type of contract, leads just to changing a type of contract, and in some other cases lack of fundamental conditions leads to recognizing a contract void and not concluded. The conclusion is made that the contract is recognized as void and not concluded when imperative norms of law are violated. When an imperative norm of law, establishing the requirements to the contents of the contract, it is offered to apply the rules of law on the deals concluded in violation of the legislation, unless the law expressly provides for the consequences of the voidance of a contract. The article also contains an overview of the foreign experience on the issue. The author formulates conclusions that the contracts not concluded are known in the continental European legal orders, but this institution is being criticizes, and it is not widely applied. The key European model documents in the sphere of private law do not have the definition of the contracts not being concluded. The provisions of the foreign legal and model law acts are aimed at formation of the mechanism for “healing” the incomplete deals.

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