Not an articulate word, but an important rule of civil and international law is restitution. What it is and how it is applied is the topic of our article.
Restitution in the legal system of the ancient Romans
It is well known that modern westernThe legal system is based on Roman law. It was in Rome that the areas of private and public law were first identified. Civil law is the rules governing civil law relations entered into by the Romans, including as a result of transactions. Restitution in Roman law was used as the norm allowing the praetor to return the state of affairs to what it was before the conclusion of the transaction. For this contract is recognized as invalid. The term itself, translated from Latin, means "restoration", a return to the original state. Thus, a direct consequence of the invalidity of the transaction in Rome was restitution. What does this mean in practice? In exceptional cases, the pretor could come to the conclusion that the concluded deal was not fair, therefore recognized it to be invalid, and each party received what it had before it.
Russian civil law
Restitution in Russian civil lawThe Federation has acquired some changes in its content. The court recognizes the invalidity of the transaction, and then the consequences of its invalidity come into force. Based on the fact that the conclusion of the transaction had no legal basis from the very beginning, each of the parties must return its property.
If we are talking about the provision of services,works, they need to be compensated in monetary terms. Thus, there are two mechanisms for the return of property in a transaction that is invalidated. The first is called conditional restitution of possession. When it is each of the parties receives the property, which owned to the concluded contract. This rule comes into force, even if one of the parties has no rights to the property that was transferred under the contract. For example, a thirteen-year-old teenager sold his father’s motorcycle. During the restitution of the property must be returned to him, although he is not the real owner.
The second mechanism is compensatory restitution.It is characterized by monetary compensation of those works, services or use of property that occurred as a result of legal relations that have arisen. Also, this provision comes into force if the property was transferred to a third party or destroyed, damaged.
Unilateral and bilateral restitution in the civil law of the Russian Federation
Гражданский кодекс выделяет следующие виды restitution: unilateral and bilateral. The latter applies if each of the parties entering into a relationship has no malicious intent, but there have nevertheless been offenses, such as: noncompliance with the form, rules of state registration, going beyond the legal capacity of a legal entity or restricting the authority to conclude a transaction. On this basis, bilateral restitution involves the return of each person’s original property or monetary compensation.
In the case when in the resulting legal relations withThe parties to one of the participants had malicious intent and the use of threats, deception or violence, comes into force unilateral restitution. It assumes that only the injured, bona fide party will receive its property or its compensation. Values belonging to another participant are transferred to state ownership or the state receives compensation for them in monetary terms.
Additional property consequences of invalidated transactions
In some cases, during the restitution by the courtadditional property consequences are assigned. Simply put, they relate to compensation for possible loss of profits or losses incurred during the conclusion of a transaction by one of the parties. For example, the property may be in the hands of the counterpart for some time, otherwise it would be leased. So, this amount of lost profits may be required to be compensated by the court.
First of all it concerns the transactions madeincapacitated or under-aged, who, due to objective circumstances, could not calculate all material losses, entering into legal relations of sale and lease, and so on. But other quite capable persons may well count on the same provision when filing a lawsuit.
Cases in which restitution is impossible
Мы выяснили, что реституция - это восстановление in property rights or receipt of compensation in cases where the transaction is invalid. The law provides for situations in which restitution cannot be carried out in respect of one or even two parties. What are these circumstances? If the transaction is invalidated, but it is also proved that one or both subjects of legal relations violated the legal order and the foundations of morality with intent, by violence or other unlawful means, then all property or monetary compensation is transferred to the state. That is, property relations are liquidated, but one of the parties, and it happens that both of them, lose that property or money that was used in these relations.
Restrictions on the use of restitution rules in the civil code
There are legal precedents that relate torecognition of the invalidity of the transaction, the consequences of which have already affected the interests of many other individuals or even the entire society. Often they relate to the economic relations of commercial organizations. For example, there is an illegal sale of an enterprise. If it is unlawful, then all other legal relations that arose with its participation are illegal. Thus, there is a whole tangle of contradictions, the subjects of which are many other organizations with their own private economic interests. In such situations, no restitution is envisaged, as it would violate the rights of other participants in legal relations.
The limitation period of the application of the norms of restitution
The law establishes the period during which the claimantshall have the right to apply to the court for the recognition of the transaction as invalid and restitution. If the transaction was concluded with violations of legal norms or by incapable persons, was allegedly in character - it is called insignificant. Within ten years from the date of its execution, a lawsuit can be filed to invalidate it and to apply the consequences of this, that is, restitution. If the claimant petitions for the recognition of a voidable transaction as invalid, since it was concluded by means of pressure or deceit, then he must submit an application within one year after the cessation of pressure on him or the discovery of deception in the contract. Violation of the statute of limitations makes it impossible to consider these civil cases in court.
Restitution laws in Eastern Europe
In Eastern Europe after the fallThe socialist system almost universally passed laws that provide for restitution. What does this mean in practice? All deprivation of property of citizens in the period from 1917 to 1945 are recognized as unlawful. This allows the entry into force of the property consequences of the recognition of the transaction invalid. In the Baltic States, the Czech Republic and Hungary, there was a wave of mass return of illegally taken property to the descendants of the former owners. So, in Riga, many residents of apartments of old buildings were surprised to learn that they live in someone else’s property and have to pay for renting their apartments to new owners, or even to move out. And no statute of limitations was taken into account here. In the light of recent events in Ukraine, many lawyers seriously fear a big wave of restitution in this country.
