N. 6 – 2007 – Note &
Rassegne
Error in Russian civil Law: Brief Overview of Legal Regulation from the
Standpoint of Certainty and Stability of Business Relations
One of the most important problems in the
sphere of legal relations is the problem of certainty. The problem of certainty
of law acquires the highest significance with respect to the regulations, which
deal with evaluative notions. An illustrative example is provided by the rules,
concerning the so-called “relevant” or “essential”
error. Error, which can serve grounds for invalidation of legal transaction.
It’s common knowledge, that in cases
of invalidation error (or mistake) acts negatively, being a cause of
elimination of legal consequences, that is why, the correct assessment of
it’s relevance is extremely important for any legal system and Russian
civil law is not an exception.
Trying to trace the historical background
of the issue in focus, one can notice that, unfortunately, Russian civil law
traditionally suffers from disadvantages as concerns the issues of error in transaction.
The main source of the private law of the
imperial czar’s
The situation did not change much in the
Soviet period, though direct indications of error had already appeared in legal
texts. But, for instance, the Art. 32 of the 1922 RSFSR Civil Code did not go
beyond the general principle of taking error into account, and stated that
every transaction concluded under the influence of relevant error could be
invalidated at the claim of the party in error. The problem of certainty
remained open, because the article did not provide any single criterion for
assessing the relevance of mistake. Similarly, the Art. 57 of the subsequent
RSFSR Civil Code, which appeared in 1964, also left the decision about
relevance of mistake to the discretion of the court. Such approach obviously
ignored all the achievements of the error doctrine. Nevertheless, being twice
reproduced in the Soviet civil codes, it become a kind of characteristic of the
socialist legal order.
In fact, this, at first glance, evident
lack of the law technique had it’s certain benefits: among the civil law
norms there appeared another so-called “rubber paragraph”, which
allowed to invalidate on the ground of error nearly any transaction and nearly
any contract that for any of several reasons could seem to contradict the
social equity. In the socialist literature there was emphasized that «it
must be accepted as basically correct, that in Soviet Civil Code there is no
detailed regulation of single error cases», and that, under the
circumstances, the law leaves to the court, «which takes into account
political situation and social-economical moments, find the proper
decision»[1].
No need to mention that transition to the
principles of market economy required from Russian civil law securing the
higher degree of certainty for the business relations.
The “wind of change” did not
pass over the regulation of error in transaction, and the abovementioned
technical drawbacks seem to be eliminated in the Civil Code of Russian
Federation.
Though the first part of the Art. 178
actually repeats the corresponding one of previous 1964 RSFSR Civil Code,
establishing the general principle, that relevant error should be taken into
account and be grounds for the invalidation of transaction at the claim of the
party in error, this statement now is accompanied by the explanation of what
types of error should be regarded as relevant and operative.
Respectively, the error is considered to
be operative as far as it refers to:
(1) the nature of transaction, or
(2) the identity of it’s object, or
(3) those qualities of the latter, which
considerably reduce the possibility of using it according to it’s
function.
Readers, familiar with history of the
error doctrine can easily find a parallel to the old Roman
“standard” categories of error
in negotio, and error in corpore,
(which both date back to Ulpianus[2]),
as well as to the so-called “error in the essential qualities”,
which was developed by the European legal doctrine rather later and involve the
whole three Roman types of error, namely: error
in materia, error in substantia,
and error in qualitate[3].
Actually, the Russian legislator
reproduced some categories of Roman law and ius
commune. This fairly old solution, though, can not be regarded as totally
obsolete. A number of other legal orders also follow this Romanist pattern. For
instance, such categories as error in
negotio and error in corpore are
also employed by the Swiss Civil Code (Art. 24 (1)), the Italian Civil Code
(Art. 1429 (1)), and, among the newest codifications, the Quebec Civil Code
whose Art. 1400 (1) states that
«error vitiates consent of the parties or of one of them where it relates
to the nature of the contract, the object
of the prestation or anything that was essential in determining that
consent».
But, such a wide distribution of the
abovementioned approach does not, of course, imply it’s full perfection.
As it turned out, it can have it’s weak points. One of the main
disadvantages arouses from the fact of employing doctrinal categories for the
purpose of making laws. In Russian jurisprudence it became apparent due to
persistent discussions concerning the capacity of the respective notions.
Thus, by taking into account “error
in the nature” and “error in the object” of transaction, the
Russian Civil Code does not provide any definitions or comments for the respective
terms.
For instance, the so-called “object
of transaction”, in terms of Russian law, can be understood quite
differently.
(1) On the one hand, the term object can
denote almost everything, that parties kept in mind by concluding the contract
and what their intentions were directed at. So it can be both things and
actions of the parties. Taking it for granted, one could say that, for
instance, the services can be the object of the Contract for the compensated rendering of Services, no less than the
thing can be the object of the Contract
of sale.
(2) On the other hand, it is possible to
cover the meaning of the wording “object of transaction” as
property per se. But, as far as among
the property objects one can distinguish between the material and the
immaterial ones, in this case one would have to choose between: (1) the
property in the narrow sense (i.e. things), or (2) the property in the wide
sense (which implies not only things, but also property rights, demands,
obligations etc.). Taking into account the wide interpretation of the notion
property, that is generally accepted in the Russian Civil Code (Art. 128
attributes to the property not only things, i.e. res corporales, but also property rights, i.e. res
incorporales), it should be admitted that at any occasion error in
the object of transaction relates to immaterial objects as well.
If resort to a comparative analysis, one
can also find, that Russian law seem to be the rare legal system where this
particular issue turned to the subject of wide speculation.
This problem is of less importance even in
the most of legal systems, which, just like the Russian Civil Code, also employ
“standard” Roman categories of error. For instance, the Quebec
Civil Code (Art. 1400), explicitly and unambiguously speaks about the
“object of the prestation”, that leaves no doubt that the matter
concerns primarily the property.
Other codes, like, for instance, the Swiss
Code (Art. 24 (2)), or the Austrian Code (§§ 871, 872), operate directly with the
term “thing” (in German respectively: Sache, or Hauptsache).
These codifications strictly follow the
Romanist pattern, because, as it evidently follows from the famous fragment of
the Digest D. 18. 1. 9. pr., Ulpianus,
speaking about corpore obviously
meant material objects, and namely,
things (two lots in the first example, and two slaves in the second).
Hence, we can come to conclusion that in
case the Russian error in the object of
transaction corresponds to the Roman error
in corpore, it must refer to the property only (though, including
immaterial objects). Otherwise, there can be no correspondence between these
categories and we could state that the Russian legislator provided error in the
object of transaction with it’s own, special meaning.
Thus, due to the vagueness of the notion
“object of transaction” in the legal doctrine and in the court
practice there appeared uncertainty as to the correct variant of it’s
interpretation. Such uncertainty surely could be avoided by the use of a bit
more precise definitions.
The same kind of uncertainty can also
arise with respect to the error in the
nature of transaction, or, in terms of Roman law and ius commune, error in negotio.
There can be no doubt, that the nature of
transaction is something that characterizes it’s main point, it’s
essence. Hence, as far as any legal transaction is aimed at some definite legal
consequences, it’s obvious that the latter are able to characterize the
main point of transaction most exhaustively.
But right at this point one have to avoid
inaccuracy.
First, the nature of transaction should
not be described within the scope of legal rights and obligations arousing from
the transaction. As far as legal consequences of transaction may include not
only rise of obligation, but also alteration or even cessation of the latter,
as well as the transition of some property right, it is not correct to describe
the nature of transaction referring to the content of the contractual
obligation or even to the substantial conditions of the contract. Both mentioned
solutions are applicable only as far as the matter concerns transactions which
give rise to some obligations (first of all, obligatory contracts), and, at the
same time, pass by the transactions which do not lead to such consequences.
Such approach would be a serious restriction of the notion “nature of
transaction”.
On the other hand, any exaggerations also
should be avoided. It has to be borne in mind, that any transaction in fact is
aimed at it’s own, unique consequences, that is why for the purpose of
characterizing the nature of transaction only typical characteristics of them
should be taken into account. These typical characteristics reveal themselves
in the causa of transaction.
Trying to make an intermediate total to
the aforesaid, it should be pointed out that the main difficulty arousing in
connection with the discussed types of error rests upon the vagueness of the
doctrinal concepts. But still, the evident contribution to the stability of
contractual relations is already reached by the contemporary Russian Civil Code
due to the mere fact of restricting the scope of operative mistakes, and no
matter if it results from using the old formal categories of error in negotio and error in corpore.
Speaking about the last type of error that
is recognized to be relevant in contemporary Russian law, the error in the substantial qualities, the
Russian legislator managed to avoid great troubles, having set in the Civil
Code rather clear and effective rules which are more or less adequately applied
in court practice. This became possible due to employment of the famous
Savigny’s approach, by which he managed to abandon the old
“material” chemical criteria, and made any differentiations between
the old doctrinal categories error in substantia and error in qualitate
useless, for he stated that substantial
qualities are those, which, according to notions prevailing in everyday
life, cause a thing to belong to a specific class of objects, and the chemical
substance is not the only possible choice[4].
In Russian legal doctrine this approach was shared by the famous scholar
Gabriel Shershenevich who
considered that «error in quality lead to invalidation of transaction in
case, when, due to the corresponding qualities, the thing became unsuitable for
the assumed purpose of use»[5].
In fact, the purpose of use is surely one
of the basic criteria for attributing the subject to one or another category.
Supposedly driven by the same idea the contemporary Russian legislator also
provided to take into account qualities which considerably reduce possibility
of using the object of transaction according to it’s function.
Long before that Savigny’s theory of
error in substantia inspired the authors of the German Civil Code (§
119 II), according to which a contract may be rescinded on the basis of
error as to those characteristics of a person or a thing, which are regarded in
business as essential. Following it the Art. 62 of the 1905 Imperial Russian
Civil Code draft stated that «the quality of an object or a person is
considered as essential if it is accepted to be the same in business».
And even though there is no full
coincidence between the abovementioned formulae, there is no doubt, that on the
whole approach is still the same whether we, following Savigny, speak about
characteristics which cause the thing to belong to a certain class of objects,
or, like the German Civil Code, point out characteristics which regarded as
essential in business, or, like the Russian Civil Code provides for, take into
account qualities which considerably reduce the possibility of using the object
of transaction according to it’s function.
The Russian Civil Code pays particular
attention to the error in motive,
which is explicitly indicated as irrelevant. This provision also seems to be
aimed at the certainty of law and stability of business relations. Nevertheless
the ultimate goal can hardly be reached because of the uncertainty as to the
very notion of error in motive. And
again it happens because of making use of doctrinal categories without
providing them with any legal interpretation. In Russian legal doctrine it is
generally accepted that «the motive remains outside the content of the
contract», but in fact this formula requires some further explanations,
otherwise one can come across insuperable obstacles. For instance, we know that
in the course of it’s development, the European error doctrine came to
opinion, that every mistake, relating to the quality of an object constituted
an error in motive and as such was
irrelevant[6].
Hence, by recognizing relevance of error
in essential qualities and, at the same time, explicitly proclaiming
irrelevance of error in motive,
Russian legislator either falls into the insoluble contradiction, or bears in
mind some different idea of the latter. Unfortunately, this issue also remains
open.
The Russian
Civil Code denies relevance of error as to the person of a contracting party.
The “moot point” since the old times of glossators. Today such
solution can be explained by a number of arguments.
First of all, the person of a contracting
party is as a rule of no moment in everyday transactions, but exactly this type
of transactions presents the majority in the contemporary commercial affairs.
Furthermore, the solution can be explained
by realities of the modern world, technical progress, accessibility and
availability of information. In such conditions only careless and even
negligent person can make such mistakes. At least, from such presumption seem
to proceed the Russian legislator.
For the purpose of assessing relevance of
mistake the contemporary Russian Civil Code, in contrast to some foreign
legislations, does not require to consider whether mistake was easy to
recognize or whether it was discovered before the beginning of the performance
(re integra). It has to be
emphasized, that similar criterion was employed by some representatives of the
natural law for the purpose of restricting relevance of error in motive. As soon as the latter is evidently pronounced as
irrelevant, there is no need to resort to such decision.
There is also no need to explore, whether
the mistake was excusable or not, or whether it was causal for committing the
declaration. According to the Art. 178, positive or negative answer of whether the
contract would have been concluded also without mistake, does not make any
difference as soon as the error match the requirements set by the Code and
refer to one of the “operative” categories.
There only one question of the criterion
remains open, which is supposed to be applied by investigating the inner will
of the party in error. Should it be an “objective criterion”, aimed
at some average person, or one have to take into account every single
peculiarity of the contracting party, such as the age-specific, mental,
medical, intellectual and other characteristics? The Code gives neither an
exact answer nor drops a hint, but in the court practice it had been repeatedly
emphasized, that for the purpose of establishing the inner will of the party in
error, the court has to take into account every circumstance of the case.
Summarizing the issue under discussion one
can come to the conclusion, that the Russian Civil Code, currently in force, as
compared to the previous Russian legislation, made the considerable step
forward, having become, in fact, the first legal act in the whole history of
Russian civil law, which provides some definite guidelines and criteria for
assessing the relevance of mistake. And
accepted in the Russian Civil Code variant of regulating consequences of error,
by which the transaction is not invalid ipso iure, but may only be
rescinded by means of declaration of the other party, also contributes to the
stability and certainty of business relations.