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The article discusses the specific mode of existence of values – balancing or optimization when it comes to deontological values. The authors using examples of values such as the principles of law and human rights, the rules of balancing are analyzed, which, according to G. Hart's classification, are secondary norms. The critical issue for the legal balancing procedure is the relationship between legal reality and values as such. Are the constitutional and legal values set by the Basic Law (Constitution), or do they objectively exist in society as a general (pre-constitutional) order of values? Should the Basic Law be confined to its own text and remain value-neutral in this sense? Are legal values purely deontological, or can they be related to utilitarian goals and interests? The second part of the article explores the value of balancing as one of the methods for resolving the most complex legal conflicts. The well-known dispute between J. Habermas and R. Alexy about the admissibility of balancing of human rights demonstrates how complex and philosophically rich the legal balancing procedure is. Based on Luhmann’s concept of the cognitive openness of law, at the end of the article, the authors substantiate their own position on the role of values in modern
At the articke authors are analyzing contractual constructions that
are not directly provided for by the Part IY of the Civil Code of the Russian Federation, but follow from
the meaning of its norms.
The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the mid-19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative's fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is pre-contractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.
This article analyzes the pros and cons of choosing a “negative” or “positive” contractual strategy in a crisis environment.
The authors draw attention to the difficulty of making an appropriate decision and the need to take into account many factors. In particular, on the basis of the provisions of legislation and judicial practice, it is concluded that in order to apply to the court with any requirement (terminate the contract, seek of penalties, establish the impossibility to perform obligation or a substantial change in circumstances), evidence of pre-trial settlement, manifestations of cooperation and good faith will be required. Otherwise, there is a high probability of either a refusal to consider the claim or a refusal to satisfy the claim on the merits.
In addition, a refusal to discuss concessions can be used to justify in court a counterparty’s dishonesty and abuse of the situation, a court decision may be not enforceable, and the debtor may go into bankruptcy. Force majeure is not a panacea and only in exceptional cases relieves from liability for non-fulfillment of an obligation, but not from fulfillment of an obligation itself. In any case, it is necessary to collect in advance the evidence base of the extraordinary and unavoidable impact on specific obligations of restrictive quarantine measures and evidence that the parties have taken all possible actions to reduce losses.
Therefore, according to the authors, in some casesa maintaining the old relationship on the changed terms is more profitable than looking for a new counterparty, since the conclusion of a new contract during the crisis and after it means taking on higher risks of its unfulfillability.
The article attempts to substantiate the existence of the problem of interaction and the influence of Russian rules of procedural law on the course of the limitation period, determined by foreign substantive law agreed by the parties to the contract. The reason for the collision is the attribution in Russian law of the institution of limitation of actions (and the rules for its calculation, interruption, suspension) to substantive law, while the norms of Russian procedural law, for example, due to the existence of such a specific procedural institution as the pre-trial order, can influence the course limitation period. The author illustrates the problem using the example of the recent judicial practice of arbitration courts and suggests possible ways to overcome the problem.