The ratio of the requirement to recognize the transaction as...

The ratio of the requirement to recognize the transaction as invalid with the requirement to recognize the transaction as not concluded, as well as other ways of protection, including protection of ownership

What is a failed transaction (not concluded contract)?

Difficulties in determining the non-concluded contract begin with the fact that the US Civil Code does not contain a single understanding of the concluded contract. According to paragraph 3 of Art. 154 of the US Civil Code for the entering into a contract it is necessary to express the agreed will of the two parties (bilateral transaction) or three or more parties (multilateral transaction). In accordance with paragraph 1 of Art. 432 of the US Civil Code the contract is considered concluded , if an agreement has been reached between the parties (in the form required in the cases required) in all material terms of the contract. Essential are the terms of the subject matter of the contract, the conditions that are called in the law or other legal acts as essential or necessary for contracts of this type, as well as all those terms concerning which an agreement must be reached upon the request of one of the parties. According to the rule established by Art. 433 of the US Civil Code, the contract is recognized by the prisoner at the time of receipt by the person who sent the offer, its acceptance. If, in accordance with the law, the transfer of property is also necessary for the conclusion of a contract, the contract is considered concluded from the moment of transfer of the relevant property. A contract subject to state registration, is considered concluded from the moment of its registration, unless otherwise established by law. As indicated in Clause 1, Art. 434 of the US Civil Code, the contract may be entered into in any form provided for the performance of transactions, unless a specific form is established for contracts of this type. If the parties have agreed to conclude the contract in a certain form, it is considered concluded after giving it an agreed form, although the law for contracts of this type did not require this form.

Summarizing the given norms, it is possible to define the concluded contract as the agreed will of two or more persons in relation to the conditions specified in the law or the agreement itself as substantial, appropriated in the appropriate form, conjugated in the cases established by law , with the transfer of the thing and (or) state registration and aimed at the emergence, modification or termination of civil rights and obligations. Accordingly, unconnected should be considered a contract, if it lacks at least one of the above elements. For example, if the contract of sale of real estate does not contain the price of real estate, ie. the parties have not reached an agreement on one of the essential conditions of the contract, it is considered not concluded (Article 555 of the Civil Code of the United States).

What are the differences in the nature of the non-concluded contract (the failed transaction) and the invalid transaction?

The essence of the non-concluded contract is the absence of the composition necessary to be considered as a contract itself. On the contrary, an invalid transaction has an entire set of elements, but one of them is vicious. For example, if an apartment house is purchased under a contract of sale, but the parties did not specify the price, the contract is considered not concluded (Article 555 of the Civil Code of the United States). If an apartment house is purchased and the price is indicated, but it is indicated in the amount obviously not in the interests of the seller (is significantly underestimated), because the provision is included under the influence of the buyer's violence towards the seller, the transaction can be declared invalid (Art. 179 Civil Code of the United States). Hence, it follows that failed transactions, as opposed to invalid transactions, do not refer to legal facts and can not attract any civil-law consequences. For the same reason, non-concluded contracts can not be invalidated. In particular, in one of the cases, the arbitral tribunal refused to the prosecutor in satisfying the requirement to invalidate the lease of the land plot, indicating that, since the lease of the land plot in violation of the norms of Art. 4 of the Law on Registration of Rights to Immovable Property is not registered in accordance with the established procedure, it is not concluded, and an unincorporated contract can not be recognized as invalid (FAS Resolution No. A78-6E64/07-F02-2598/08 of 18.06.2008) .

Another difference in nature is the possibility of the prevalence (healing). A non-concluded deal as an action that does not get the required composition can become effective if the parties fill in the missing element. So, in the example given by us regarding the lack of price in the contract of sale of real estate, a deed can consist in signing an additional agreement that would contain a price clause. As for the invalidation of the invalid transaction, it is in principle allowed, although with two "but": first, only nullified but not contested transactions are possible; secondly, the validation for insignificant transactions is more strictly regulated and is named in the US Civil Code as recognition of an insignificant transaction as valid. If we talk specifically about the example when an apartment house is purchased and the price is indicated under the influence of violence against the seller, then there can not be any healing here, since violence is applied, the contract is signed. Now, in order for a treaty to lose its force, it is necessary either to terminate it or to invalidate it, or re-imprisonment. We foresee objections, they say, the law does not deny the healing of a disputable transaction, which means it is permissible. For example, the buyer, frightened of the adverse consequences for themselves, generated by violence, offers the seller to conclude an additional agreement in which, on the basis of freely formed will, a fair price would be indicated. Yes, it is possible, but only here will be another transaction, because it contains a different condition. Consequently, there was no validation.

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