Law is a complex phenomenon that was created to regulate social relations. It should be noted that the system of legal norms did not always coordinate society. The forerunners of law were violence and religion. Over time, such regulators of public relations have shown their complete inefficiency. In turn, law has shown itself to be excellent in the sphere of influence on society and the processes of interaction that arise in it.
It should be noted that jurisprudence today regulates just a huge number of specific legal relations that are completely different from each other. Their appearance is caused by special legal factors. The population of the Russian Federation in the process of its life can enter into legal relations, the coordination of which is carried out by the civil law branch. One of these can be called obligations. Such legal relations have their own specifics and unique forms. As a rule, obligations are expressed in contracts. The latter category is also endowed with a mass of various and extremely interesting points. For example, in the theory of civil law, real and consensual agreements are distinguished. Categories are similar to each other, however, the specificity of their occurrence and implementation makes many scientists remain in deep thought.
The concept of a contract in civil law
Modern civil engineering is largely built precisely on commitment relations and only then on all other types of interconnection. Therefore, the contract is a key category of the civil industry. According to article 420 of the current Civil Code of the Russian Federation, a contract is an agreement of several persons aimed at terminating, establishing or changing any legal relationship. The category appears in various forms. An example is real and consensual agreements. Civil law at the same time provides an exhaustive list of legal issues that stipulate these categories quite fully.
Basic concepts of the contract
The agreement of several persons is a legislative interpretation of the category mentioned in the article. But, as we understand it, there are a large number of doctrinal judgments about the concept of a treaty. Thus, this term is used in the following meanings:
- as a written document fixing a specific obligation;
- as a specific fact of legal significance;
- as a specific legal relationship.
In this case, we are trying to find out what the real and consensual agreements are. Therefore, these categories must be considered in the form of an integrated legal relationship.
Differentiation of contract and obligation
Many legal terms are incomprehensible to modern people. This leads to the fact that in everyday life, certain concepts are confused with each other. This is the case with terms such as contract and obligation. It should be noted that the first term is broader in meaning and nature. After all, an obligation is a legal relationship in which one party must commit or abstain from performing certain actions. As a rule, this category exists under the existing agreement between persons. Thus, a contract is a specific legal position of several parties, the basis of which is an obligation or several relations of this nature.
Real and Consensual Contracts in Civil Law
Without exception, all relations between the parties in civil law can be classified on the basis of different criteria. Today, scientists distinguish preliminary, basic, simple, free, multilateral, public, non-public and other types of contracts. Separation of concepts is made according to some common feature. Real and consensual agreements are a specific type of agreement. Their classification is based on the moment when the obligation actually arose. Thus, real and consensual agreements arise as a result of completely different legal facts.
The value of dividing agreements into two types
Classification of contracts makes sense for the scientific field of activity. In addition, the separation of agreements by any principle has always been doctrinal, because the legislator does not group obligations in any way. Real and consensual agreements in a special part of civil law are entered in a chaotic manner. However, in the scientific community, a theory was put forward about the existence of the presented types of obligations and their specifics. The judgment was accepted, which helped to identify the key points of real and consensual agreements. Theoretical development allowed to significantly modernize the mechanism of their conclusion and implementation. But in order to understand all the key aspects of real and consensual agreements, it is necessary to analyze the categories separately.
Real agreement
All real contracts without exception are fairly simple legal constructions. This thesis emerges from the very essence and moment of the real occurrence of the agreement. According to most civilistic theories and regulations, the reality of the contract is expressed in the need to transfer things to "launch" the obligation into action. In other words, the parties in a legal relationship of this kind are only interested in the subject matter of the agreement, which plays a very large role. In fact, the absence of the fact of transferring things does not allow us to talk about the end of the process of concluding a contract. Among the obligations of this kind are the following:
- a lease agreement for a vehicle (the obligation is deemed to be fulfilled from the moment the tenant is given the opportunity to drive a car, motorcycle, etc.);
- loan agreement (the entry into force begins after the actual transfer of the agreed amount of money);
- storage agreement.
The real and consensual treaties of the Civil Code of the Russian Federation are not proportionate to each other. In other words, agreements of the first type are less common than obligations of a consensual nature. Therefore, this category arouses an order of magnitude greater interest in the scientific community.
Consensual agreements
The second type of civil law contracts is based on the fact that the parties come to a single decision at the time of agreement of all significant conditions. In other words, an obligation does not require the transfer of ownership of any thing. Real and consensual treaties of the Civil Code of the Russian Federation in this sense are different. Because the structure of the mechanism of their implementation and action is completely different. In the theory of civil law, it is consensual agreements that are most often developed than real-type agreements. This is due to the features of the obligations that the legislator has established. The bottom line is that most of the contracts enshrined in the Civil Code are of a consensual type, but more on that later.
Theoretical Description of the Category
The very existence of consensual treaties proceeds from the doctrine of civil law, which implies the equality of the parties in almost all mutual relations. In other words, such obligations are an expression of a free, developed civil-state system. The basis of consensus in the agreements is the mutual trust of the parties. Persons prior to the conclusion of the relevant agreement allocate subjective rights and obligations, which should be further realized. A consensual contract implies the fulfillment of the agreed rights and obligations, that is, emphasis is placed on the good conscience of the parties. A characteristic feature of such agreements is also a simple form in which persons do not give each other any significant guarantees.
It should be noted that the agreements of the type presented are in all cases bilateral. This fact was deduced not only in the doctrine, but also in the legislative framework. The peculiarity of consensual agreements is that the parties to such agreements equally have both rights and obligations. Therefore, relations arising from obligations are the most complete and legally correct.
Historical prototype
Most of the existing civil types of agreements came to us from Roman private law. Real and consensual agreements are no exception. The Civil Code of the Russian Federation provides an exhaustive list of such agreements. But if real contracts have not left a significant imprint in history, then consensual obligations have their own prototype. In Roman private law, such an institution as stimulation existed. It was a kind of oral contract, characterized by a high level of formalism and abstractness. But its distinguishing feature was the obligatory verbal formula.
That is, to establish such an obligation, it was necessary to pronounce certain words in order to obtain a positive or negative answer. The main difference between a stipulation and a consensual agreement is the lack of a mandatory formula of words in the structure of the latter.
Legal examples of obligations
Real and consensual agreements are forms of obligations provided for in most of the Civil Code of the Russian Federation. Therefore, examples of such agreements must be sought in this normative act. Among the consensual can be considered a large number of different agreements, namely:
- purchase agreement;
- employment contract;
- delivery contract;
- contract agreement, etc.
Output
So, we examined the real and consensual agreements. Examples can be found in the current Civil Code. It should be noted that the classification of agreements is of great importance for both theory and practice. After all, understanding the characteristics of contracts makes it possible to improve the mechanism for their implementation and direct implementation.