The Doctrine of Impossibility of Performance of Obligations and Improvement of Civil Legislation In Russia

Abstract

Review. This article is devoted to the main controversial issues of the doctrine of impossibility of performance. The author analyzes certain kinds of incapacity: factual and legal, objective and subjective, random and guilty, initial and subsequent. Despite a long history of analyzed statutory concept, it remains open to discussions. The subject of this study is the doctrinal view of impossibility of performance of obligations and the relevant norms of the Civil Code of the Russian Federation, which have undergone significant changes in 2015, 2011. There are two approaches in theory to the issue of the legal consequences of not accidental impossibility of performance of an obligation. The first approach: in case of such impossibility, the obligation is terminated, but a new protective obligation arises, whereby the responsible party for this specific sanctions should be applied. The second, more traditional, approach believes that an obligation is terminated by virtue of impossibility of performance in full only if the latter is caused by a circumstance for which neither side is responsible. The author concludes that the first of these two approaches prevails. Under this approach, the fair conclusion is that the obligation (regulatory) stops even when the impossibility of its performance is caused by a circumstance for which no party is responsible. Meanwhile, in order to apply this approach in practice, it is necessary to amend paragraph 1 of article 416 of the Civil Code of the RF. The author suggests such changes. In this regard, it is possible to recognize the justified denial of scientism for dividing the impossibility of performance of obligations into the objective and subjective, as well as random and guilty. The author also shares the position of those scholars who defend the use of incorrect initial impossibility of performance of obligations as unconditional grounds for recognition of the respective transaction null and void. The article provides critical assessment of some of the changes made to the articles 416 and 417 of the Civil Code of the RF in 2015 for implementing the concept of development of civil legislation of RF.