Normative models of sanctions of absolute nullity and non-existent juridical act
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The article discusses the concept of the so-called negotium non existens (non-existent juridical act, especially contract) from the point of view of various normative models of absolute nullity i.e. this type of nullity which makes an juridical act automatically legally ineffective (in common law an equivalent of void contracts). The main objective of the article is to justify a thesis that in the light of the general model features of sanctions of absolute nullity and invalidity features, the rejection of this structure should be postulated. Both void and non-existent juridical acts are treated by the law as if they had never existed or happened and cannot be enforced. The scope of the article covers Polish law and also main occurrences of non-existent juridical acts presented in some legal systems of ius civile and the common law tradition. There is no consistent approach as to where defects make contract non-existent or “only” void - e.g. in the contracting process. Special attention was paid to the French legal viewpoint, where the concept of non-existent contracts has gained a particularly strong position and was widely accepted. According to the reform in the realm of the law of obligation (the so-called Catala’s draft) the drafters proposed that the concept of non-existent contracts (juridical acts) should be rejected by law. The article also takes into account the standpoints expressed in the so-called private projects of contract law unification with regard to the concept of non-existent juridical acts, where only the so-called Gandolfi draft European contract code has codified this concept as an alternative to void contracts. The distinguishing of the category of the so-called non-existent juridical act refers to a reflection of a much wider problem, namely the impact of the adopted model of the sanction of absolute nullity upon a given system of private law. The concept of the so-called “non-existent” juridical act may even be an object of codification, as a separate remedy to invalidate juridical acts. Due to significant variations in understanding the notion of nullity in the area of private law, especially contract law, the article also discusses basic features of nullity as a sanction – i.e. a sanctioning norm which means that a juridical act does not produce any intended legal effects.
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