Abstract
Property right is one of the foundations of economic freedom and entrepreneurial activity. The legal regulations provided by contracts act as instruments by which individuals can realize their freedoms. A history of the development of contracts is at the same time a history of economic initiative and a picture of economic and social relations. At one time economic relations were very primitive and tended to be uniform; in the modern world they have become complex and varied.
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References
Henry J. Maine, Ancient Law, Ch. V; cf. also Ch. IX.
‘Social Contract’ had been considered for a long time to be the foundation of state and law, but certainly not as an historical fact, it has only been considered as a theoretical formulation of the principle governing the interrelations of the state and the individual. In the course of two hundred years this formula remained a customary part of juridical literature. We meet with it in Locke, Rousseau and Fichte.
Ancient Roman law was very formalistic: ‘Si nexum faciei mancipiumque, uti lingua nuncupassit, ita jus esto.’ (Every word of a party binds it in the strictest manner). ‘Volenti non fit injuria.’ (He who has expressed his consent cannot claim to be wronged.) ‘Coactus tarnen voluit.’ (Do not appeal against constraint if you have expressed your consent.) ‘Vigilantibus jura sunt scripta.’ (The law presumes vigilance.) The same maxims have been incorporated into the Civil Code of California: ‘He who consents to an act is not wronged by it.’ (Art. 3516); ‘The law helps the vigilant before those who sleep on their rights’ (Art. 3527).
Cf. Art. 1134 Code Napoleon: ‘Les conventions légalement formées tiennent lieu de loi a ceux qui les ont faites’; Art. 1536 and especially Art. 1537 Zakonov Grazhdans-kikh (vol. X, p. 1, Svoda zakonov rossiiskoi imperii): ‘Contracts concluded with private persons by official institutions or officials cannot be violated in any manner, but must be executed with such exactness as if they were signed by His Majesty himself;’ etc.
Contracts in contradiction to the statutes are not valid (Publicum jus privatorum pactis mutari not potest). Cf. Art. 1596 of the California Civil Code.
‘Vertraege deren rechtliche Anerkennung mit einem gesunden, in diesem Sinne guten, socialen Zustande unvereinbar ist.’ Dernburg, Das Buergerliche Recht, B. I. 1902, p. 375; ‘Wider sprueche zwischen dem positiven Recht und dem Rechtsideal (der Gerechtigkeit) sind denkbar.’ L. Enneccerus, Lehrbuch des Buergerlichen Rechts, Marburg, 1931, p. 93.
Even Roman law softened the original rigidness of its formalistic maxims by proclaiming: ‘neque malitiis indulgendum est’ (Malice cannot be allowed). German law which started with the same rigidity as the Roman (Ein Man ein Wort) included in its civil code, Buergliches Gesetzbuch, secs. 138, 157, 242, and 317, principles of Gutte Sitten, Treu und Glaube and Verkehrsitten as the criteria of legality of a contract. According to these principles all contracts incompatible with good morals, faithfulness, and fair business may be rescinded. The same may be found in Swiss law (Art. 2 of the S.C.G.B.). Civil codes of various nations, issued after the German and Swiss codes, have included similar provisions: Panama, Código Civil, 1926, Art. 1106: ‘… los pactos que non sean contrarios a la ley, a la moral ni al or den publico…’; Chile, Codigo Civil, 1937, Art. 1467, part 2: causa ‘contraria a las buenas costumbres 0 al or den publico.’ Código Civil Brasiliero, 1942, Art. 145, II, as interpreted: ‘… éuon ato illicito e offensivo da sã moral.’ (Ed. anotado por Ach. Bevilaqua, 1944). Codice Civile dTtalia, 1942, Art. 1343: ‘La Causa eillecita quando e contraria a norme imperative, all’ ordine publico o al buon costume.’ Art. 1374: ‘Il contralto obbliga le parti non solo a quanto e nel medesimo espresso, ma anche a tutte le conseguenze che ne derivano secondo la legge, o, in manconza, secondo gli usi e I’equita. Code Civil de la Republique de Chine, 1929, Art. 72: ‘L’acte juridique contraire a l’ordre public ou aux bonnes moeurs est nul.’ (Cf. Art. 1133, Code Napoleon).
During the period of the NEP, for example, Soviet judges had been considered as standing ‘above the law,’ and subject to the policy of the government rather than to the text of the law. (Cf. Circular Letter of Instruction of the Supreme Court, 1927, No. 1, cited by B. Eliashevitch, ed., Traité de Droit Civil et Commercial des Soviets, Vol. I, ‘Introduction,’ p. 63. There has since been a change, since private rights were reduced to a minimum and a conflict between private and state interests proved to be impossible.
Some jurists, deceived by the apparent similarity of legal wording (Cf. H. Freund, Das Zivilrecht Sovietrusstands, Mannheim, 1924, pp. 29, 34–45; also S. V. Zavadsky in Pravo Sovetskoi Rossii, Prague, 1925, Vol. II, pp. 43–97), treated Soviet legislation on contracts as if it were of the same pattern as the legislation of the western world. This error was happily eliminated by A. Halpern in his survey ‘Theorie generale des obligations’ in Eliashevitch, op. cit., Vol. II, pp. 1–63; but was not eliminated by Boris Nolde in the same work, pp. 71–128.
If, for example, a nationalized or a municipal enterprise is leased on terms which do not guarantee production corresponding to its real value and potential efficiency, then the contract can be annulled by the courts as prejudicial to the state. (See Grazhdanskii kodeks R.S.F.S.R., kommentarii pod redaktsiei Goikhbarga, Pereterskogo i Tettenbom, Vol. I, p. 73.)
Cf. Pravo Sovetskoi Rossii, II, pp. 65–66; Eliashevitch, op. cit., Il, pp. 51–56.
Ezhenedelnik sovetskoi iustitsii, 1927, No. 4.
Arts, 136, 153, 184, 211, 218, 238, 266, 275 (b) of the Civil Code.
Arts. 138, 185, and 266 of the Civil Code.
Cf. R.S.F.S.R. Supreme Court, Letter of Instruction, 1927, No. I, cited by Gsovski in his comments to Article 29 of the Civil Code, op. cit., II, pp. 54–56. Gsovski also cites (II, p. 146) the following ruling of the Supreme Court of the R.S.F.S.R. of August 13, 1928: ‘Under Section 211 of the Civil Code, contract of loan for a sum exceeding fifty rubles not made in writing shall be invalid in toto and not merely in the sum exceeding fifty rubles. But in cases where the court arrives at the conclusion that in the given concrete case the violation of form should not result in the invalidity of contract, the court may declare the contract valid also for the sum exceeding fifty rubles.’
Molotov, in his report concerning the national economic plan for 1932, emphasized that the contract is the best means of combining economic planning with the principles of cost accounting. Obligations arising from contracts secure the achievement of the goals for the sake of which khozrashchet was established. Izvestia, No. 354, 1931.
Agarkov and others, Grazhdanskoe pravo, 1944, Vol. I, p. 310.
See the Soviet periodical Arbitrazh, Nos. 11–12, 1940. Many interesting details concerning the organization and functions of Gosarbitrazh may be found in Harold Berman’s ‘Commercial Contracts in Soviet Law,’ California Law Review, Vol. 35, pp. 191–234. See also his Justice in Russia: An Interpretation of Soviet Law. Cambridge: Harvard University Press. 1950. p. 66 ff.
‘Government plans and regulations concerning the national economy are administrative acts in conformity with which obligations arise as they arise from contracts.’ ‘These acts can establish an obligation to transfer certain goods, to render certain services, to deliver a certain commodity, and to carry out a certain job.’ Agarkov, op. cit., pp. 296, 298.
Ibid., p. 304.
S. Asknasi, ‘Nekotorye voprosy metodologii sovetskogo grazhdanskogo prava,’ Sovetskoe gosudarstvo i pravo, 1940, Nos. 8–9, pp. 83–84.
‘Contracts become a means of formulating the detailed relationships called for in the plan’s general terms.’ J. N. Hazard, ‘Soviet Government Corporations,’ Michigan Law Review. Vol. 41, 1943, p. 860. On April 21, 1949, the Council of Ministers of the U.S.S.R. issued a new decree concerning contracts. The central economic organizations conclude, in conformity with the national economic plan, ‘general’ contracts. These contracts must regulate distribution of the production between various enterprises and, consequently, indicate contractors for each kind of production. The basic terms of the contracts between the economic organizations controlling the most important branches of industry have to be approved by the government. Then, on the basis of the general contracts, ‘local,’ contracts have to be concluded between the particular enterprises in regard to quantity, quality, dates of delivery, and terms of payment. ‘Direct’ contracts between parties may be concluded only if there are not responsible central institutions or if the object of a contract has special specifications, as, for example, special equipment. The decree of 1949 is explained by I. Baranov, ‘Khoziastvennyi dogovor—orudie vypolneniia gosudarstvennykh planov.’ (Planovoe Khoziastvo, 1949, No. 5., pp. 63–72).
See Gsovski, Vol. I, Ch. 12, Sec. 6.
A. Venediktov, ‘Dogovomye sanktsii v sovetskom prave,’ Sovetskoe gosudarstvo, 1934, No. 5, p. 21.
Decree of the Council of People’s Commissars of the U.S.S.R. of January 15, 1936, ‘On the conclusion of contracts,’ Collection of Laws of the USSR, 1936, No. 3, text 27; and the decree of the Council of People’s Commissars of the R.S.F.S.R. of January 17, 1936, Coll. of Laws of the RSFSR, 1936, No. 3, February 29.
Statute of the State Arbitrage of May 3,1931, Collection of Laws of the U.S.S.R., 1931, No. 26, section 203.
V. N. Mozhaiko, ‘Opravovoi prirode sovetskogo gosudarstvennogo arbitrazha,’ Sovetskoe gosudarstvo i pravo, 1947, No. 6.
A. Venediktov characterizes this as ‘signalization.’
There are a series of illustrations in A. V. Venediktov’s Gosudarstvennaia sotsia-listicheskaia sobstvennost, pp. 408–427. See above Ch. VIII, note 38.
Mozhaiko, op. cit., p. 23. Schlesinger writes: ‘This organ (State Arbitrage) when giving its decisions is bound to pay attention not only to the letter of the law, but also to the economic interests of the State in the name of which one of its agents sues another.’ Soviet Legal Theory (New York, 1945), p. 14. Harold Berman emphasizes that Gosarbitrazh, although it is ‘closely linked with the administrative branch of the government’ maintains ‘judicial standards and is subordinate to civil law… The various organs of Gosarbitrazh have little in common with arbitration boards. They are rather “economic courts,” where jurisdiction is independent of the will of the parties, whose procedure, though informal by American standards, is similar to that of regular courts and whose decisions are governed by the Civil Code and by relevant statutes.’ ‘Commercial Contracts,’ p. 205, also his Soviet Justice, pp. 247–249. This characterization omits the most essential point, namely that Gosarbitrazh is an agency of the owner which reconciles and regulates the interrelations between the owner’s various enterprises. ‘Pre-contract disputes,’ which H. Berman considers as an evidence of ‘parental law’ of the Soviet legal system, is nothing else but a coordination of business relations between several enterprises of the same master, the Soviet Union. In the practice of the capitalist countries this coordination takes place in the central office with the aid of legal advisers.
The purely administrative functions of the Gosarbitrazh, as, for example, reconciliation of the interests of various enterprises concerning quantity, assortments and dates of delivery, are indicated by I. Baranov in his article cited above (See note 22).
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Guins, G.C. (1954). Contracts. In: Soviet Law and Soviet Society. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0869-8_11
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