Issue 1 (19) 2013

Golubeva On Some Principles of the Obligation Law

On Some Principles of the Obligation Law

N.U. Golubeva

National University “Odessa Academy of Law”
2, Pionerskaya str., Odessa, Ukraine, 65009,
E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

Peculiarities of the obligation implementation in respect to the principles of good faith, reasonableness and equity are described in the article, it is noticed that these principles have different meaning and content depending on the person to whom the compliance requirements are directed.

Application of the principle of equity in the law of oblation is: firstly, a guideline in determining the concrete amount of compensation given to the obligations for moral damage; secondly, it is a guideline to establish the equivalence of exchange to a retaliatory contractual obligation; thirdly, it is a gap filling in the law, and fourthly, it is a way by means of which the application of hard consequences of civil law norms in concrete legal relationship is leveled.

It is concluded that in cases where the principles of equity and reasonableness are applicable, they cannot have pre-defined parameters, limits in determining the amount of moral damages. Equity and reasonableness will never be accurately measured by a mathematical figure. In the end, its validity they will find only in the judgments, which are not subject for further appeal.

Principle of good faith in the law of obligation provides a fair and honest behavior of persons in carrying out their duties and execution of their subjective rights in the obligation legal relationships.

The principles of obligation performance can be determined, for example, by institutional principles in the law of obligation. Besides proper discharge of an important principle of contractual obligations is a principle of specific performance, by which penalty recovery does not release the debtor from the performance of duty in kind. It is concluded that the principles of good and specific performance are not absorbed by each other. The principle of specific performance is displayed / implemented in the event of violation of the obligation if the debtor in bad faith treated his duties, the question of indemnification and their correlation with the performance of the obligation in kind is raised. It is concluded that the principle of specific performance is losing its importance in modern legislation and is not consistent with the Civil Code of Ukraine.

It is concluded that the principle of cooperation between the parties is absorbed by the principle of equity and the principle of economy is limited by a number of contracts and cannot be considered as a principle of the law of obligation accordingly.


Keywords: principles; law of obligation; the fulfillment of obligations; the principles of good faith; equity; reasonableness; the principle of economy; the principle of business cooperation

 

Bibliograficheskij spisok

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