Real Contract As Judicial Structure. Legal Nature of Real Contract

Abstract

In this article the author explores the nature of real contract. Real contract is a contract that is concerned to be concluded only after transfer of agreement object. There is determined that the legislator does not define clearly which of the contracts are real. There is mentioned that a contract is considered to be concluded from the moment of money transfer only in the regulations of loan, bank credit and deposit. The author considers that such cases are not sufficient for creation too artificial classification on consensual and real contracts which is contrary to the essence of contract and obligation in contract law theory and the principle of it «pacta sunt servanda». At the same time a real contract causes significant legal consequences: there is no relationship even with the concluded contract, it occurs only after things transfer. The author has investigated that the moment of conclusion of certain contracts coincides with contract objects transfer but that fact does not make them real. Transfer of property is an action for exercising of contract obligation but not a stage of contract concluding. As a result of research the author argues that there is necessity to refuse from the classification of contracts for real and consensual. The practical significance of such classification is not clear. Existence of real contract is contrary to the legal nature of the contract, undermines its importance as a legal fact and the basis of relationship. However the author notes that there can be requested transfer of contract object immediately at the moment of contract conclusion as a prerequisite for purchaser interest. Such cases should be clearly defined in legislative act and can not be based on theoretical classifications.