OBAVEZNA FORMA UGOVORA NAKON PRESUDE USTAVNOG SUDA FEDERACIJE BOSNE I HERCEGOVINE U-22/16: NEKA OTVORENA PITANJA
MANDATORY FORM OF THE CONTRACT AFTER THE BIH FEDERATION CONSTITUTIONAL COURT’S DECISION U-22/16: SOME OPEN QUESTIONS

Summary/Abstract: The paper analyzes the essential form of the contract and the legal consequences that arise in case of its violation. Obligation contracts are valid without any form, and could be concluded in any form that is consistent with the will of the contracting parties. Although there are certain legal exceptions when form is a condition for the legal validity of the contract. The general sanction for breaching that specific form (form ad solemnitatem) is nullity of contract. The paper is structured in a way as to first provide a the toretical overview of the notion and types of forms, implications for the breaching form provided by law, especially from the perspective of jurisprudence until notary regulations entry in force. The authors then analyze the form of a notarial document on certain legal transactions, paying attention to the sale of land contract. Considering that the motive for writing this paper is the judgment of Constitutional Court of the Federation of BiH no.U-22/16, which, like the previous judgment no. U-15/10, has not yet been implemented, and by which the form of a notarial document on certain legal transactions is unconstitutional, the authors raise a number of issues. They point out, through certain scenarios, the current situation in area of immovable property transactions, where for the first time, until the adoption of a new notary act, there are no formal requirements for the sale of land contract.

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