Original scientific paper
Legal Instruments for the Avoidance of Invalid Legal Transactions
Saša Nikšić
orcid.org/0000-0001-6170-1781
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
Different legal systems solve problems of invalid legal transactions in different ways. Differences are particularly emphasized in respect of so-called avoidable legal transactions. In some legal systems of continental Europe such legal transactions are avoided on the basis of a unilateral declaration of will of one contracting parties. In the words of German legal terminology it is Gestaltungsrecht. On the other hand there are legal systems in which invalid legal transactions are avoided by a decision of the court. In such cases, if one party wants to avoid an invalid legal transaction it is necessary to initiate proceedings before a court.
In Croatian law it is generally assumed that avoidance of invalid legal transactions occurs on the basis of a court decision. Thus, it is necessary to initiate proceedings to avoid such legal transactions. This approach is questionable for several reasons. Unlike the legal regime of fraudulent conveyance that explicitly provides that in order to avoid a legal transaction a lawsuit must be filed in court, the legal regime of invalid legal transaction is silent in this respect. Furthermore, avoidance of invalid legal transactions in its essence is much closer to idea of avoidance on the basis of a unilateral declaration of will. However, there are arguments in favour of the mainstream approach, meaning that avoidance must be conducted within proceedings before a court, such as for example grammatical interpretation of the law. Therefore, it would be helpful if law were to be amended in order to clear up this ambiguity in Croatian law. There was an opportunity to do this when the Croatian law of obligations was amended in 2006, and it is unfortunate that the opportunity was missed, because it is not very likely that another one will rise in the near future.
Keywords
invalid legal transactions; void legal transctions; voidable legal transactions; unilateral declaration of will
Hrčak ID:
149391
URI
Publication date:
31.8.2015.
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