An inconsistent word, but an important norm of civil and international law is restitution. What it is and how it is applied is the topic of our article.
Restitution in the system of law of the ancient Romans
It is well known that the modern Western legal system is based on Roman law. It was in Rome that the first areas of private and public law were identified. Civil law - these are the rules governing civil relations that the Romans entered into, including as a result of transactions. Restitution in Roman law was used as the norm, allowing the praetor to return the state of affairs to the situation that it was before the conclusion of the transaction. For this, the contract was declared invalid. The term itself, translated from Latin, means "restoration", a return to its original state. Thus, the direct consequence of the
invalidity of the transaction in Rome was restitution. What does this mean in practice? The praetor in exceptional cases could come to the conclusion that the transaction was not fair, therefore recognized it as invalid, and each party received what it had before it.
Russian civil law
Restitution in the civil law of the Russian Federation has acquired some changes in its content. The court recognizes the invalidity of the transaction, and then the consequences of its invalidity enter into force. Based on the fact that the conclusion of the transaction from the very beginning had no legal basis, each of the parties should return its property.
If we are talking about the provision of services, work, then they need to be compensated in monetary terms. Thus, there are two mechanisms for the return of property in a transaction that is declared invalid. The first is called conditionally restitution of ownership. Under him, each of the parties receives the property that it owned before the conclusion of the contract. This norm comes into force even if one of the parties does not have rights to the property that was transferred under the contract. For example, a thirteen-year-old teenager sold his father's motorcycle. During restitution, property must be returned to him, although he is not the real owner.
The second mechanism is compensatory restitution. It is characterized by monetary compensation for those works, services or use of property that occurred as a result of legal relations. Also, this norm shall enter into force if the property has been transferred to a third party or destroyed, damaged.
Unilateral and bilateral restitution in the civil law of the Russian Federation
The Civil Code identifies the following types of restitution: unilateral and bilateral. The latter applies if each of the parties entering into a legal relationship does not have malicious intent, but nevertheless there have been violations, such as: non-compliance with the form, rules of state registration, going beyond the legal capacity of a legal entity or restricting authority to conclude a transaction. Based on this, bilateral restitution involves the return to each participant of the transaction of its original property or monetary compensation.
In the event that in the legal relations arising on the part of one of the participants there was malicious intent and the use of threats, deception or violence, unilateral restitution takes effect. It assumes that only the injured, conscientious party will receive their property or its compensation. Values belonging to another participant are transferred to the ownership of the state or the state receives compensation for them in monetary terms.
Additional property consequences of invalidated transactions
In some cases, during a restitution, the court appoints additional property consequences. To put it simply, they relate to compensation for possible lost profits or losses incurred during the conclusion of a transaction by one of the parties. For example, the property may be in the hands of the counterparty for some time, otherwise it would be leased. So, this amount of lost profits may require compensation in court.
This primarily concerns transactions committed by a legally incompetent or a minor who, due to objective circumstances, could not calculate all material losses, entering into the legal relationship of sale, lease, and so on. But other, quite capable persons can very well count on the same situation by filing a lawsuit.
Cases in which restitution is not possible
We found that restitution is a restoration of
property rights or compensation in cases where a transaction is declared invalid. The law provides for situations in which restitution cannot be carried out with respect to one or even two parties. What are these circumstances? If the
transaction is declared invalid, but it is also proved that one or both of the subjects of legal relations violated the legal order and the foundations of morality with intent, violence or other unlawful means, then all property or monetary compensation goes to the state. That is, property relations are liquidated, but one of the parties, and it happens that both of them, lose that property or money that was used in these relations.
Restrictions on the Application of Restitution Rules in the Civil Code
There are legal precedents that relate to the invalidity of a transaction, the consequences of which have already affected the interests of many other persons or even the whole society. Often they relate to the economic relations of commercial organizations. For example, an illegal sale of an enterprise takes place. If it is unlawful, then all other legal relations that arose with his participation are illegal. Thus, a whole bunch of contradictions arises, the subjects of which are many other organizations with their private economic interests. In such situations, restitution is not provided, as it would violate the rights of other participants in the legal relationship.
Statute of limitations of restitution
The law establishes the period during which the plaintiff has the right to apply to the court with the requirement of declaring the transaction invalid and restitution. If the transaction was concluded with violations of legal norms or by incapable persons, had an imaginary nature - it is called void. Within ten years from the date of its execution, it is possible to file a lawsuit in court to declare it invalid and apply the consequences of this, that is, restitution. If the plaintiff seeks to declare the disputable transaction invalid, as it was concluded by pressure or deception, then he must file an application within one year after the cessation of pressure on him or the detection of fraud in the contract. Violation of the statute of limitations makes it impossible to consider these civil cases in court.
Restitution Laws in Eastern Europe
In the
countries of Eastern Europe, after the fall of the socialist system, laws were passed almost everywhere that stipulate restitution. What does this mean in practice? All deprivations of property of citizens in the period from 1917 to 1945 are recognized as priority unlawful. This makes it possible for the property consequences of declaring the transaction to be invalid. In the Baltic states, Czech Republic and Hungary, a wave of mass return of illegally taken property to descendants of former owners took place. So, in Riga, many residents of apartments of old buildings were surprised to learn that they live in someone else's property and must pay for renting their apartments to new owners, or even completely move out. And no statutes of limitations were taken into account here. In the light of recent events in Ukraine, many jurists are seriously afraid of a large wave of restitution in this country.