О ДИХОТОМИИ КОНСТРУКЦИИ СМЕШАННОГО ДОГОВОРА

Abstract

Introduction: the article deals with the problems of the legal nature of mixed contracts in comparison with the related constructions of non-defined (innominate), complicated, and complex contracts. The possibility of individual regulation excluding the effect of imperative prohibitions (subject to compliance with the principles of law) contradicts the essence of a mixed contract. Purpose: to formulate the features of the mixed contract that distinguish it from non-defined, complicated, and complex contracts. Methods: along with traditional theoretical and empirical methods, the author used the teleological approach, which makes it possible to consider the target orientation of a particular norm or contractual structure. Results: the study reveals contradictions in the legal regulation of mixed contracts; defines their constitutive features; determines the legal nature and legal regime; differentiates the mixed contract from the complicated contract, non-defined contract, and complex contract. Conclusions: the existing priority of individual regulation in the construction of the mixed contract is in logical contradiction with its features and with the prohibition against inclusion of elements of non-defined contracts in its content. It appears that this conflict can be overcome through establishing: a ban on changing the imperative norms that establish the rules of conduct in relation to defined contracts included in a mixed contract; a permission to exclude (not to change) the effect of imperative norms; a permission to use non-defined contracts in the construction of the mixed contract. A contract must be classified as mixed if there are two or more obligations included in it. Additional features are the object, the parties, and other characteristics that determine the contract type. The interest of the parties in a mixed contract should be focused on a single object. If there are different subjects focused on different objects, this is a complex agreement. If various elements of defined contracts are used in the construction, with the exception of the subject of the contract, the contract should be classified as complicated, not mixed. In a complicated contract, all additional (auxiliary) obligations ‘work’ to achieve the goal of the main one and are directly dependent on it. In a mixed contract, the structure is represented by two or more independent obligations that are equivalent. Complex contracts should be understood as such contracts that have a multiobject and multi-subject structure, whereas a mixed contract combines subjects and other contractual terms aimed at one object. In a complex contract, there should be no cross-regulation, each subject has its own object and is regulated by the rules that exist in the legislation for a certain type or kind of contract. This approach allows solving the problem of determining the priority of legal norms, which exists in the construction of the mixed contract.