Loss of the Right to Challenge the Transaction by the Person Who Consented to the Transaction

Abstract

Application of the requirements of Article 173.1 (§ 3) of the Civil Code of the Russian Federation (which has not yet become the object of close attention in science) is associated with some interpretive difficulties. In this regard, a comprehensive analysis of the construct enshrined in the specified norm, aimed at healing a voidable transaction (in a situation of unfair inconsistency in the behavior of the subject of consent), becomes relevant, first of all, from the perspective of its conceptual basis, scope, conditions and consequences of application, as well as in terms of the relationship with the related institution of confirmation of a contested transaction by its party (Article 166 (§ 2) of the Civil Code of the Russian Federation). The methodological basis of the study was made up of general theoretical (formal and dialectical logic) and specific scientific (legal-dogmatic, comparative legal, interpretation of legal norms, etc.) methods. As a result, the author, in particular, supports the dogmatic position regarding the confinement of the construction of the loss of the right to challenge transactions only to situations of their contestability (pointing out that to reflect this common-sense idea, the rule on the inadmissibility of challenging a transaction is sufficient); comes to the conclusion about the rationality of the “universal” use of the rehabilitation mecha­nism in question (irrespective of the type of act introducing the licensing procedure for the transaction); substantiates the thesis that of Article 173.1 (§ 3) of the Civil Code of the Russian Federation implies the defeat of the right to challenge a transaction that requires third-party authorization, and not consent itself; proves the legality of invalidating consent on the basis of which the subject of its expression knew or should have known (since there is no direct correlation between the defectiveness of consent and the contestability of the transaction itself), and also defends the possibility of extending the rules of Article 166 (§ 2) of the Civil Code of the Russian Federation on confirmation of a transaction for consent.