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Journal of law and social sciences of the Law Faculty of University J.J. Strossmayer in Osijek = Zeitschrift für Rechts-und Sozialwissenschaften der Fakultät für Rehtswissenschaften der Universität J.J. Strossmayer in Osijek = Journal des sciences juridiq, Vol. 39 No. 3-4, 2023.

Original scientific paper

https://doi.org/10.25234/pv/25648

APPARENT CONTRACTS BETWEEN NULLITY AND INEXISTENCE

Armando Demark orcid id orcid.org/0000-0001-9986-2169 ; Faculty of Law, University of Rijeka, Hahlic 6, 51 000 Rijeka, Croatia *
Josip Dešić orcid id orcid.org/0000-0001-9679-798X ; Faculty of Law, University of Rijeka, Hahlic 6, 51 000 Rijeka, Croatia *

* Corresponding author.

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Abstract

In this paper, the authors discuss apparent contracts as regulated by Article 285 paragraph 1 of the Croatian Civil Obligations Act as a cause of either the nullity or the inexistence of the contract. In several recent decisions of the Supreme Court of the Republic of Croatia, one can notice the standpoint that apparent contracts are not null contracts, but inexistent contracts. The aforementioned standpoint resulted in the rejection of many claims for the determination of nullity of apparent contracts. Therefore, in the first part of the paper, the authors analyze the subject case-law, as well as apparent contracts in Croatian and comparative law. At the same time, inexistent contracts have been the subject of discussion exclusively from the point of view of legal theory. The second part of the paper is consequently focused on the analysis of inexistent contracts, their practical value and their comparison to null contracts. The authors also give specific attention to the difference between the moment of entering into a contract and the creation of the contract’s legal effects, as well as the need for the differentiation between legal consequences of contracts that are not formed, contracts that are not entered into, contracts that do not produce legal effects and contracts that are explicitly null. In the conclusion, the authors discuss the practical necessity of distinguishing null and inexistent contracts and propose de lege ferenda suggestions for normative improvement of the Civil Obligations Act in the part that pertains to contracts with no legal effect.

Keywords

apparent contracts; inexistent contracts; null contracts; legal effect; misunderstanding

Hrčak ID:

312959

URI

https://hrcak.srce.hr/312959

Publication date:

29.12.2023.

Article data in other languages: croatian

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