The legal fate of foreign institutions in the civil code of the Russian Federation: problems and contradictions

Abstract

The article discusses the institutions of foreign law established in sections I and III of the Civil Code of the Russian Federation as a result of the reform of law of obligations. The analysis of the rules of estoppel and indemnity provided an opportunity to highlight not only their legal structures, but also to show the gaps, inconsistencies and shortcomings in normative regulation of these institutions. The comparative legal analysis of the new rules of the Civil Code of the Russian Federation and similar foreign regulations showed that the institutions developed in the jurisprudence of the State case law and are based on the terminology and alien to our rule of law conceptual apparatus, thus these can not be cost-free for the Russian civil law. For example, when considering estoppel challenging transaction or statement of its invalidity under Art. 166 cl. 2 and 5 of the Civil Code of the Russian Federation, the author concludes that unscrupulous contractors may use the principle of estoppel for concluding agreements unlawful in content terms. Identifying features of the legal construction of indemnity under Art. 406.1 of the Civil Code of the Russian Federation, the author concludes that one more institute has appeared in our civil law whereby one party undertakes to carry out compensatory risk-sharing for those effects that are not related to its actions on good performance. Risk-sharing requires an answer to the questions not related to the issues of liability. Unfortunately, the relationship of the parties to the contract on possible restrictions on part of the risk, which a party to a contract including a damages clause is obliged to take (not take) are not regulated in the Civil Code of the Russian Federation.