FORMA UGOVORA O PROMETU NEKRETNINA U PRAVU BOSNE I HERCEGOVINE: AD SOLEMNITATEM ILI AD PROBATIONEM?
FORM OF THE CONTRACT ON SALE OF REAL ESTATE UNDER THE LAW OF BOSNIA AND HERZEGOVINA: AD SOLEMNITATEM OR AD PROBATIONEM?

Summary/Abstract: The classic division of legal transactions into formal and informal in modern contract law gained a new dimension by introducing into the positive legislation of national legal systems new forms of legal transactions, which are often condition for validity validity of such affairs. By introducing the Latin type of notary in the legal system of Bosnia and Herzegovina, the legislator separated certain legal affairs in the area of property law, family and inheritance law, and company law and made their legal validity conditional on the form of a notarial deed. Such solutions of the entity laws as well as the laws in the Brčko District that regulate the service of notaries since the beginning of their application have caused public polemics as well as professional discussions among members of different legal professions. As a result of the aforementioned discussions, certain provisions of these laws, including those regulating the form of separate legal transactions (including contracts with real estate transactions as their subject), were subject to constitutionality evaluation before the entity constitutional courts. The Constitutional Court of the Federation of Bosnia and Herzegovina and the Constitutional Court of the Republika Srpska, deciding on requests for constitutional review of the provisions of the law on notaries, which prescribe the obligation of the form of a notarized document for legal transactions whose subject is the transfer or acquisition of ownership or other real rights to real estate, took different positions. The Constitutional Court of the Republic of Srpska rejected the proposal to determine the unconstitutionality of, among other things, Article 68 of the then valid Law on Notaries of the Republic of Srpska, which regulates the issue of mandatory form, while the Constitutional Court of the Federation of Bosnia and Herzegovina decided that, among others, Article 73 of the still valid Law on to FBiH notaries is not in accordance with the Constitution. With such decisions of the courts, the issue of the form of the real estate transaction contract received different interpretations and degrees of obligation in two entities of the same legal system, thus contributing to the legal uncertainty of citizens and investors. The subject of this paper is the analysis of the valid regulations governing the form of real estate contracts in the legal system of Bosnia and Herzegovina, as well as the role of the notary as a public service in increasing the degree of legal security and protection of parties in contracts with real estate as their subject.

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