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Сделки, требующие и не требующие восприятия: теоретические и практические основания классификации
The impact of academic study is not always apparent, especially when it comes to theoretical developments applicable to practical jurisprudence. The theory of transaction classification is one of the most striking examples of this thesis.
In the course of developing contract theory, German pandectists proposed dividing contracts according to the attributes of the occurrence of legal effect – into those requiring and those not requiring recognition. Subsequently, this conceptual model was woven into the framework of domestic legislation: rules on waiver of ownership, termination of obligations by set-off, debt forgiveness, and others.
As a rule, provisions of law inevitably become part of controversial situations in practice and begin to be applied by courts, where problems arise that can only be solved by looking at the theoretical foundations. For example, does Rospatent have the right to terminate a patent early in a situation where the receipt for payment of the patent fee was received by the state authority after the deadline for payment, but was sent before its expiry? Must the previous owner of immovable property find a replacement before ceasing ownership?
This article is devoted to the theoretical and practical justification of the need to divide transactions into those requiring and those not requiring recognition. The first part of the work examines the dogmatic prerequisites for distinguishing between these types of transactions, including through an analysis of the problem of the effect of declarations of intent over time.
The second part of the article highlights ways to apply the proposed theoretical classification of transactions into those requiring and those not requiring recognition: (1) justification of the restrictive interpretation of the provisions of the CC RF on the moment of termination of ownership as a result of its waiver; (2) resolution of the contradiction between the provisions of Article 165.1 of the CC (on the moment of occurrence of the effect of legally significant messages) and para. 2 of Article 192 of the CC (on the expiry of time limits for the delivery of legally significant messages to post offices).
In the last part of the work, the author briefly outlines possible directions and issues for further research on the application of the classification of transactions into those requiring and those not requiring perception.