The USA Journals Volume 03 Issue 05-2021
22
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
May 17, 2021 |
Pages:
22-28
https://doi.org/10.37547/tajpslc/Volume03Issue05-04
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‘
ABSTRACT
The emergence of rights and obligations between citizens and legal entities is based on a specific event
or phenomenon. Such events are called legal facts in civil law. Article 8 of the Civil Code of the Republic
of Uzbekistan lists the types of such legal facts, according to which civil rights and duties arise from
contracts and other agreements provided by law, as well as from contracts and other agreements that
do not contradict the law. The contract and its structure are the basis for the creation of civil rights
and obligations as a legal fact. The conclusion of a contract is primarily an expression of the will of the
parties. [3]
This article describes in detail the concept of contract and its importance in the context of market
relations, the types and content of contracts, the conclusion of contracts, freedom of contract.
KEYWORDS
Civil law, legislation, contract, civil code, contract terms, foreign experience, freedom of contract.
INTRODUCTION
Civil law is a fundamental, important and
integral part of the field of law. Although the
elements of this science are related to the
emergence of humanity, the emergence of the
National And Foreign Experience In Determining The
Conclusion Of Civil Law Contracts
Abdullayev Nurulla Abdulla O'g'li
Listener Of The Master's Degree In Economics Group, High School Judges With The Supreme
Judicial Council Of The Republic Of Uzbekistan, Tashkent, Uzbekistan
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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term "civil law" dates back to ancient Roman
times. The term "civil law" is derived from the
Latin jus civile (civil law) in the ancient Roman
legal system - "civil law", which means Roman
citizens - the law of the Quirits (cives) and the
law of the state (city) (civitas). Later, the terms
of private Roman law (Zivilrecht, droit civil, civil
law) entered the modern legal system. The
development of commodity-money relations in
European countries and the need to improve
the legislation governing economic relations
necessitated the legal system of these
countries to take as a model the rules
governing property relations regulated in
ancient Roman private law. [6]
The concept of a contract and its importance in
the context of market relations as required by
Article 8 of the Civil Code, contracts are one of
the foundations for the emergence of civil
rights and obligations between the parties.
Undoubtedly, special attention is paid to
contracts today. Because in contracts, in other
legal facts, the will of the parties is fully
expressed. The parties to the contract decide
independently with whom, how much, when to
conclude the contract, due to which the
money, goods, items to be delivered, in what
terms, in what means of transport, in what
form the payment will take place. They are free
to enter into contracts, and coercion to enter
into a contract is not allowed.
MATERIALS AND METHODS
The content of the principle of freedom of
contract is enshrined in Article 354 of the Civil
Code. According to him, citizens and legal
entities are free to conclude a contract. What
this means is that no one can force them to sign
a contract. The contract is concluded at the
discretion of citizens and legal entities. Of
course, the reasons (motives) that motivate
them to enter into a contract can be different:
to meet their needs, to seek profit, to achieve
the goals and objectives set out in the founding
documents, and so on. Occasionally, other
third parties may request, offer, or request a
contract. However, in any case, the decision to
enter into a contract is made by a citizen or
legal entity independently, on a voluntary
basis. At the time of concluding the contract,
the citizen (head of the legal entity,
representative)
must
be
clear-minded,
mentally normal, self-governing, able to see
the consequences of their actions. If the
disturbances in the internal mental state of the
subject, in his mind, are forced to enter into a
contract due to external influences, such a
contract is not considered valid. It can be said
that this is a specific legal guarantee of real
freedom of contract. Practice shows that the
freedom to conclude contracts, the mutual
interest of the parties, the strength of
contractual discipline in the contract (ie, in the
vernacular, "the value of the contract is more
than money"), the broader definition of
property liability than administrative-command
liability attracts full use of the tool (contract).
[6]
The importance of contracts can be explained
in detail. But their contracts strengthen the
payment discipline, stimulate the activities of
the parties in all respects, which in turn
increases the responsibility of the parties,
improves the receivables and payables of the
economy, and ultimately ensures the stability
of the parties. This, in turn, is a guarantee of an
abundance of goods, services and capital in
society. In this regard, in order to create a fast
and effective legal mechanism of the industry,
to ensure the conclusion and implementation
of contracts, the country has adopted the Law
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"On the legal framework of business entities",
monitoring the conclusion and implementation
of contracts. These, in turn, help make
contracts work faster and more realistically.
A contract is a mutual agreement between two
or more persons aimed at establishing,
modifying or revoking civil rights and duties.
The term contract has three meanings: legal
fact; a legal relationship of material interests
based on any legal fact; it is used in the sense
of a document that reflects what individuals
(citizens and organizations) mutually agree on.
Here it is seen and studied as a legal fact in its
first meaning. The contract serves as the basis
for the establishment, modification or
termination of the legal relationship. But the
action of the contract is not limited to this. If
other legal facts result in the establishment,
change or termination of a legal relationship as
a general rule, the contract, unlike these legal
facts, regulates the actions of the parties to the
legal relationship within the limits established
by law, except for the establishment,
modification or termination of the legal
relationship. defines the rights and duties of
the participants of the legal relationship.
During the legal relationship established by the
contract, the contract also provides an
opportunity to verify the legality of the actions
of the parties. [4]
The main feature and condition of the concept
of a contract is the mutual agreement of the
parties to achieve a certain result. Although the
rights and obligations of the parties under the
contract are different, they give a single legal
result, for example, the right to use an item is
obtained, etc.
A civil law contract is concluded mainly for the
formalization of property relations. In some
cases, the contract also formalizes personal
and non-property rights and obligations. This is
typical for contracts related to creative activity
in the field of creation of works of literature,
science and art, for example, a publishing
contract, a play, a screenplay and other
contracts. Such agreements not only define
the property rights and obligations of the
parties, such as liability for infringement of
copyright terms and conditions, but also
personal and non-property rights, such as
whether the author may appear anonymously
in his work or allow changes to the text. also
defines rights.
The contract is divided into unilateral, bilateral
and multilateral agreements, depending on the
mutual distribution of rights and obligations
between the parties involved. One of the
parties to a unilateral contract has only a right
and no obligation, while the other party has
only an obligation. For example, in a loan
agreement, the borrower has an obligation to
pay the amount received on time to the lender
and the creditor has the right to demand it. In
a bilateral agreement, both parties have
independent rights and obligations. An
example of such a contract is a contract of sale.
Under this contract, the seller has the right to
demand the price of the goods sold and is
obliged to hand over the goods sold to the
buyer, and the buyer is obliged to pay the price
of the goods received and has the right to
demand the purchased goods. Most civil
contracts are bilateral, that is, in addition to the
above-mentioned contract of sale, the supply
of goods, lease of property, contract, and
other contracts. There are also multilateral
agreements in which the parties are three or
more. Such conditions are characterized by the
fact that at the same time each party has
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certain rights and obligations. For example,
franchising, leasing agreements [5].
First of all, it should be noted that according to
Article 1 of the Civil Code of the Republic of
Uzbekistan, civil legislation recognizes the
equality of participants in the relations
regulated by them, inviolability of property,
freedom
of
contract,
unauthorized
interference in private affairs, the unimpeded
exercise of civil rights. based on the need to
ensure their recovery and their judicial
protection.
Contract and tort law. In the English-American
legal system, contract and tort are important
and fundamental concepts. There is no general
part of the right of obligation that applies to
any obligation. The general part still exists only
in contract and tort law, not in legal form, but
in doctrinal form. There is also no abstracted
(formalized) concept of obligation. The focus is
on delicacy and contract. There is also no
formal classification of liabilities. The basis for
the formation of obligations is the contract,
quasi-contractual obligations (similar to the
contract) - unreasonable enrichment, acting
without assignment in the interests of others,
and tort.
An agreement under English-American law is a
promise of redistribution that provides for the
possibility of seeking protection in a
sanctioned court. Hence, the contract implies
the satisfaction of alternative claims: in order
to obtain the right of claim, the creditor must
first have promised the debtor this or that. This
leads to the rule that the parties will not bind
each other until the offer (offer to enter into a
contract) is accepted (with some exceptions).
You can freely withdraw it until the offer is
accepted. In the continental legal system,
however, we see a different situation: the
person who sent the offer is, to one degree or
another, related to that offer.
The condition of alternative executions
prevents the existence of unjust, free-standing
contracts. For this reason, separate contracts
(constructions) called “with a seal” are
concluded, which allow debtors to impose
obligations even in the absence of alternative
execution. Of course, mutual submissions
(alternative executions) can be made only on
the basis of the agreement of the parties, but
in this case, the existence of an alternative
execution, not an agreement, is crucial.
Contract law develops in response to practical
needs. There is no formal classification of
contracts. Certain types of contracts arising
according to practical needs are regulated by
separate laws, which in one way or another are
explicit and cannot be distinguished by the
same criteria. Liability for breach of contract is
determined on the basis of the principle of
infringement: the debtor is liable regardless of
the guilt for the breach committed by him. This
follows from an important rule of Anglo-
American law under which a debtor may
terminate a contract at any time with full
compensation for damages to the creditor.
Another reason why English -American law
focuses on contract law is that there are no
doctrines on transactions that have been
developed to a certain extent in this legal
system. For this reason, the norms on
transactions are expressed in the law of the
contract. The right to tort is manifested as a set
of specific torts developed by jurisprudence.
There is no general delicacy, only its doctrinal
models. A tort is defined as the infliction of
harm to a person or property. There is also no
official classification of specific delicacies.
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In short, the conclusion of a contract is
primarily an expression of the will of the
parties. By concluding a contract, two or more
parties agree on the creation, modification or
termination of civil rights and duties. For
example, by concluding a contract of sale, the
seller has the right to demand payment for the
goods, but the ownership of the goods is
terminated, and vice versa, the buyer has the
right to claim the goods, as well as the right to
pay for the goods.
As a legal fact, the process of concluding a
contract is reflected in the expression of the
will of the parties and the compatibility of their
wishes, and this is understood from the
essence of the construction of the contract,
that is, the agreement of the two parties. Any
condition that must be agreed upon at the
request of one of the parties shall be
recognized as an essential condition. Since the
contract is a document that represents the will
of the parties, it must, of course, agree on the
circumstances that each party deems
necessary. Such a condition is required to be
reflected in the contract as an important
condition, regardless of its significance and
content for the contract. For example, in a
product delivery contract, the buyer may
require that the product be delivered on a
specific day of the week and at what time of
day, and agree with the seller. In this case, such
a condition becomes the main condition of the
contract for the supply of goods. The fact that
a condition that is important to the relevant
contract is not expressed in the text of the
contract means that the contract has not been
concluded. A contract without an essential
condition may be declared invalid by a court at
the request of an interested party. A contract
that does not contain important conditions is
considered invalid as an agreement with
content that does not meet the requirements
of the legislation (Article 116 of the Civil Code).
There is no special need for the contract to
reflect the circumstances that are recognized
as a normal condition of the contract. Since
such conditions are provided for in the
legislation or can be determined even after the
conclusion of the contract, their non-inclusion
in the contract does not create a certain legal
consequence. For example, the method of
delivery of the product, the place of fulfilment
of the obligation, and so on. In particular, the
contract for the repair of housing does not
require the inclusion of the place of
performance in the contract, and this can be
done at the address where the house is
located, or the place of performance can be
determined in accordance with Article 246 of
the Civil Code [3].
RESULTS AND DISCUSSION
In addition to the important and common
conditions, random conditions may also be
taken into account when concluding a
contract. Typically, random conditions do not
affect whether a contract is valid or invalid
once it has been entered into. The fact that a
random condition is not reflected in the
contract also has no legal effect.
A contingent condition is a condition of a
contract that the parties agree to in addition to
the usual terms of the contract and express the
nature of their relationship and specific
requirements for the subject of the contract,
the order of performance of the contract,
liability for non-performance. For example, if
the lessee continues to use the property after
the expiration of the lease, the lease is deemed
to have been renegotiated for the same period
of time, with a prior notice period for the
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termination of the lease. Where the content of
a particular type of contract is specified in the
legislation, the parties will have to include this
condition in the contract. This rule, defined in
the fifth part of Article 354 of the Civil Code, is
an imperative norm and the parties are not
allowed to deny it. The imperative norm of the
law may explicitly prohibit the conclusion of
this or that condition or the conclusion of a
contract, or an instruction that a particular
condition or agreement is not valid in itself
(Article 332, part 2, Article 333, part 4 of the FC)
[7].
However, the imperative norm may take the
form of a recommendation by defining the
rights of the parties and may limit the parties'
deviation from this recommendation. In this
case, the impossibility of deviating from the
rule written in the imperative norm can be
expressed directly in the text of the norm (in
this case, the recommended norm is a direct
legal prohibition) or may arise from the
essence of the norm. The imperative norm may
prohibit the denial of any terms in the content
of the contract or prohibit certain forms of
such denial. For example, according to Article
21 of the Law of the Republic of Uzbekistan "On
Consumer Protection", the terms of the
contract, which restrict consumer rights and
contradict the legislation, are considered
invalid. If the consumer is harmed as a result of
their use, this damage must be compensated
by the manufacturer (seller, executor). The
seller (executor) has no right to force the
consumer to purchase additional goods or use
additional services for a fee, as well as to
charge for services not provided. This norm
stipulates that the conditions restricting
consumer rights are not valid.
CONCLUSION
At the same time, this norm does not prohibit
conditions that expand consumer rights, giving
it a priority. Due to the fact that the terms of
the contract are not stipulated by the
agreement of the parties, in the cases provided
by the applicable norm, the parties may
mutually agree to cancel its application or set a
different condition than provided for in it. In
the absence of such an agreement, the terms
of the contract are determined by the
dispositive norm. If the terms of the contract
are not determined by the parties or by a
dispositive norm, the relevant terms are
determined by the business practices that may
apply to the relationship between the parties.
Adherence to certain procedural principles,
rules and customs in the contracting process
serves to prevent conflicts that may arise in this
process. For this reason, the procedure for
proposing and responding to a contract differs
from the structure of the contract to be
executed and to be executed in the future. For
example, when a gift contract is executed with
a structure and it is not required in writing, it is
done by accepting the gift item. If the gift is
promised in the future, the contract must be in
writing. In all cases, the conclusion of a
contract means the formalization of the
agreements of the parties and the formulation
of their wishes. This process reflects the terms,
procedures, and conditions of the parties'
actions under the contract, as well as what
obligations the parties will assume in the future
and what rights they will have. Therefore, in
the process of concluding a contract, no
matter how much freedom and privileges are
given to the parties, it is necessary to take a
serious approach to its implementation and act
in accordance with the rules established by
law.
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