RUDN Journal of Law (Dec 2017)
THE LEGAL NATURE OF CONTRACTUAL PERFORMANCE IN THE GERMAN DOCTRINES OF THE 19TH AND 20TH CENTURIES
Abstract
The performance of the obligations in contract law is the complicated legal phenomenon. The Ar-ticle observes the theoretical aspects of the legal nature of contractual performance, which is the contro-versial matter and it’s have no unity in German legal doctrine and case law. However, without the clear and common understanding of the essence of performance of the con-tractual obligation, it is impossible to establish common performance criteria and its caused of incon-sistency of law enforcement. The purpose of Article is to conduct a comprehensive analysis of the legal nature of the perfor-mance of the obligations and the selection of its basic elements. In this regard, the author refers to the materials of the German civil doctrine of the 19-20 centuries. First, the Article analyzes the ideas of pandect law as the basis for the research of the essence of the contract performance and to this day does not lose its significance for the modern understanding of the legal nature of the contractual performance. In particular, the fundamental ideas of pandect law such as the fulfillment through acts of omission, determination, purpose etc., found its development in the theories of German legal thought of the twentieth century and in the German legislation and case law. Turning to the German legal thought of the twentieth century the Article observes the general contrac-tual theory, the limited contractual theory and the purpose agreement theory. In conclusion, the author singles our the three main elements - the act, will and purpose through the prism which should be considered the performance of contractual obligations and to determine its legal nature.
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