Russian Journal of Economics and Law (Sep 2020)
Oral agreement juridical technique at the stage of contract signing: features and composition
Abstract
Objective: to analyze the oral contractual legal technique and its component tools, to identify the features of technical and legal tools used at the stage of negotiating a contract.Methods: the dialectical approach to cognition of the legal phenomenon, allowing to analyze it from the point of view of the general theory of law, knowledge of individual branches of law and humanities; formal legal method (analysis of doctrinal provisions and practice of contractual law application), analysis, synthesis, comparison, classification, and other general scientific methods of cognition.Results: based on the analysis of theoretical and legal structures, legislation and practice of its application, conclusions are drawn about the existence of oral contractual legal technology and the criteria for distinguishing its legal tools from those of a non-legal nature. The legal tools of oral contractual legal techniques are expressed in the presence of specific rules for performing certain legally significant actions. These rules are characterized by: a) relative stability; b) direct focus on generating the main legal result: the emergence of rights and obligations in order to meet certain needs of the parties; c) dependence of the tools on the content of the contractual process stage. By the example of negotiating a contract as an important stage of the contractual process, one may regard good faith as the most significant rule in negotiations. The general model of signing a contract is also stable (sending a proposal to sign a contract, agreeing/disagreeing with the offer/agreeing to change the terms of the offer, sending a response to the offer, and signing the contract as a result). Negotiations can be organized in two ways: a) directly (based on the general provisions of Chapter 28 of the Russian Civil Code) and b) step-by-step (by signing an agreement on the procedure for conducting negotiations).Scientific novelty: oral contractual legal techniques rarely become the subject of scientific research. The proposed approach to the analysis of its tools is new for the Russian theory of legal technique.Practical significance: the main provisions and conclusions of the article contribute to the development of the legal technique theory aimed at improving the methods of professional legal activity, including in the field of contract signing.
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