Unnamed and mixed contracts: features of qualification and identification of applicable rules

Abstract

The problem of legal regulation of contracts not provided for by the current positive civil legislation has long been the object of scientific research of many generations of scientists. Providing the participants of civil relations with the freedom necessary for them to carry out their activities should be recognized as an essential condition for the effective development of the economy of states based on the principles of a free market. The legal recognition of various atypical private law constructions is precisely one of the manifestations of such freedom. As the main such atypical constructions, most often encountered in practical activity, it is customary to single out unnamed and mixed contracts, which are understood as agreements of counterparties, in respect of which the current civil legislation does not provide for any positive regulation. In this regard, the main objectives of this article are to describe the historical development of the Russian normative regulation of mixed and unnamed contracts; to identify a clear distinction between these atypical agreements among themselves, as well as with the named contractual constructions enshrined in the current civil legislation; to analyse the main doctrinal positions regarding the essence and specificity of mixed and unnamed contracts, including foreign researchers; to find the optimal mechanism for the application of rules for the following types of agreements.

References

1. Agarkov, M.M. (1940). The Subject and System of Soviet Civil Law. Soviet State and Law, 8–9, pp. 52–72 (in Russ.).
2. Braginsky, M.I. and Vitryansky, V.V. (2011). Contract Law. Book One: General Provisions. Moscow (in Russ.).
3. Gordon, M.V. (1954). The System of Contracts in Soviet Civil Law. Kharkov  (in Russ.).
4. Grave, K.A. (1947). Labor Assignment Agreement. Moscow (in Russ.).
5. Karapetov, A.G. (Ed.). (2020). Contract Law (General Part): Article-by- Article Commentary to Articles 420–453 of the Civil Code of the Russian Federation. Moscow (in Russ.).
6. Kantorovich, Y.A. (1928). Fundamental Ideas of Civil Law. Kharkov (in Russ.).
7. Fleishits, E.A. (Ed.). (1966). Scientific and Practical Commentary to the Civil Code of the RSFSR. Moscow (in Russ.).
8. Novitsky, I.B. and Lunts, L.A. (1950). General Doctrine of Obligation. Moscow (in Russ.).
9. Romanets, Y.V. (2013). The System of Contracts in Russian Civil Law. Moscow (in Russ.).
10. Ryasentsev, V.A. (1950). Issues of Invalidity of Transactions in Judicial Practice. Socialist Legality, 8, pp. 27–37 (in Russ.).
11. Zhuchenko, S.P. (2016). Mixed contracts in the context of the European (continental) legal tradition. In M. A., Rozhkova (Ed.). Freedom of contract: Collection of articles (pp. 159–194). Moscow (in Russ.).
12. Saveliev, A.I. (2011). Certain issues of legal regulation of mixed contracts in Russian and foreign civil law. Bulletin of the Supreme Arbitration Court of the Russian Federation, 8, pp. 6–39 (in Russ.).
13. Sadikov, O.N. (1979). Atypical Institutions in Soviet Civil Law. Soviet State and Law, 2, pp. 32–39 (in Russ.).
14. Tal, L.S. (1912). Positive Law and Unregulated Contracts. Law Magazine, 42, pp. 386–434 (in Russ.).
15. Yakovlev, V.F. (1972). Civil Law Method of Regulating Social Relations. Sverdlovsk (in Russ.).
16. Henning, W.H. and Lawrence, W.H. (2009). Understanding sales and leases of goods. Durham.