Елементи на сравнителноправен анализ върху теорията за недействителност на договорите
ELEMENTS FOR A COMPARATIVE ANALYSIS OF THE THEORY OF NULLITY OF CONTRACTS

Author(s): Michel Boudot
Subject(s): Law, Constitution, Jurisprudence, Comparative Law
Published by: Издателство „Сиби“
Keywords: contract; invalidity; nullity; annullability; right to criticize; comparative approaches
Summary/Abstract: In order to compare the theories of invalidity in the different legal systems, three approaches can be adopted. These three divergent ways of considering the formation of acts may be seen as potentially incoherent or paradoxical. Each approach focuses its attention on distinct areas: 1° – fi rst, on the object of interpersonal relationship, i.e. on the content of the act; 2° – then, on the parties interested in the act, i.e. on the persons entitled to bring actions capable of contesting it; 3° – on the authority empowered to decide on its legal effectiveness. Depending on the nuances of each legal system regarding the classification of the causes of invalidity, the first approach is adopted by continental systems, which make a distinction between nullity/existence and annullability (voidability), as in Italian and Bulgarian law. The second approach is adopted by French law, which focuses on the right to criticize acts whose legality is less clear: where these are the minimum criteria for invalidity of the act relevant to the procedural conditions for its annulment. The third approach focuses neither on the object of the act nor on the person entitled to criticize it but takes the point of view of the authority empowered to rule on invalidity (which may be the legislator, the judge or one of the parties); in this case, the essential question is what is binding on the judge when a dispute is brought before him. Should he recognize the invalidity ex officio? Or can he validate an act that has been irregularly formed? This third approach allows for comparative reflection, and it is the one we will adopt to shed light on the ambiguities of the first two.

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