Вісник Харківського національного університету внутрішніх справ (Sep 2024)
Problems of applying incentives in civil law
Abstract
The article notes that incentives are rarely used in civil law due to both objective and subjective reasons. The objective reason is the peculiarities of the law-regulatory methodology of civil law itself, but they are not an obstacle to the use of incentives in civil law. The specifics of the civil law methodology only determine a certain secondary importance of incentives as legal means of regulating civil relations, but do not exclude the possibility and necessity of their application in general. The subjective reasons are the lack of sufficiently developed general provisions in the civil law doctrine and the lack of provisions of similar content in civil law. Elimination of the latter two subjective obstacles will in the future allow intensifying the use of incentives in the self-regulation of civil relations. Based on the principles of freedom of contract and freedom of unilateral transactions, civil law subjects are free to choose the methods of regulating their relations. This freedom also applies to their choice of incentives as legal means of regulating their individual relations. Increased use of incentives in civil law should be expected primarily in self-regulatory relations. The advantage of using incentives, as compared to the methods of ensuring proper performance of obligations (pledge, surety, retention, etc.), as well as measures of civil liability or other legal consequences, is that incentives are positive sanctions by their nature, i.e. a reward for making maximum efforts to achieve a certain legal result by the subject. This circumstance allows the parties to contractual legal relations to strengthen their ties and create an atmosphere of trust rather than suspicion. This is especially important for contractual relations in the business sector, where the duration of economic and legal relations is one of the determining factors of business success. The use of methods to ensure the proper fulfilment of contractual obligations, and even more so, measures of liability or other legal consequences for breach of obligations, generates negative tension or even leads to the termination of business relations.
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