Will and expression of will as conditions for the transaction’s validity

Abstract

Despite the fact that the work on improving and upgrading civil law is going on, the issues related to the problems of recognition of transactions as invalid are not fully covered.

Although there is a huge range of research in modern science that has accumulated around the block of invalid transactions, there is no single opinion within civil law doctrine concerning the legal nature of the will and expression of will as a condition for the transaction’s validity and their place in the system of legal facts. Analyzing the literature on this issue, there are several basic approaches to determining the will and expression of will as a condition for the transaction’s validity and their place in the system of legal facts. The opinions of scholars on this subject were divided, as the result, we can divide the positions of the authors into three groups. The first argue that since the transaction – is the action, then its consequences are associated with the expression of will. The second position is based on the link that the expression of will is impossible and, most important, is generated by the will, therefore, the main thing in the transaction – is the internal will of a person. The third position, and the author agrees with it, evaluates the will and expression of will only in their combination.

The author has conducted the analysis of the transaction and the invalid transaction in the light of the will and expression of will for the domestic legal theory and classification of legal facts that allows assigning them to the group of lawful or unlawful actions. It has been concluded that the transaction committed with the violation of the will and expression of will as a legal fact belongs to unlawful actions, and therefore – to the offenses. However, despite the invalidity of the transaction in terms of the objective law, such transactions, under certain conditions, may be recognized as valid by the court, because they do not violate specific subjective rights of others.