ПРАВНЕ ПОСЛЕДИЦЕ ПОВРЕДЕ БИТНЕ ФОРМЕ УГОВОРА
The Legal Consequences of Breaching the Legal Form of Contract

Summary/Abstract: In this paper, the author discusses the legal consequences stemming from the breach of the legal form of contract. On the basis of a detailed analysis of relevant legislation, the doctrinal heritage and the abundant case law, the author concludes that the traditional principles of contract law on nullity (ensuing from the breach of the ad solemnitatem form of contract) must be adapted to the special regime governing the consequences of nullity. These particularities are reflected in a series of rules which are (in principle)inherent only to formal contracts;some of these rules necessarily lead to restitution as a regular legal consequence of nullity while others prevent the termination of contract (by means of convalidation and conversion). Given that the legal form is an instrument which is always aimed at protecting certain private or public interests, this objective is used asthe essential criterion for determining a relevant sanction for the violation of formalities. However, in case of breaching the legal form of contract which is undoubtedly aimed at protecting the public interest, the breach of legal form does not encroach on the basic principles of the public policy, which is the case in forbidden contracts. Consequently, it implies that the most serious civil law sanction (confiscation) is inapplicable.

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