Origin of the category of compliance in civil law

Abstract

The article is devoted to the category of counterness in civil law. The author notes that the Civil Code of Ukraine contains the concept of conflict in various legal constructions, such as "counter  performance", "counter  homogeneous claims", "counter  claims of the debtor", etc. However, at present, a comprehensive study of the counterness category is absent in modern domestic civil studies.

The article focuses on the fact that the category of counterness appears primarily in contractual obligations, in particular, in synallagmatic contracts. Such contracts are characterized by the presence of counter-duties to which corresponding rights correspond. The content of these rights and corresponding obligations is determined by the legal purpose (causa) for which the contract is concluded. The author analyzed the concept of synallagma, causa in the Roman concept of contract. It was determined that synallagmatic contracts in Roman law were considered to be contracts of sale, hire, partnership, as well as innominate contracts. The author also found that the concept of synallagmaticity does not coincide with the concept of counterness of a contractual obligation. Thus, the synallagmatic character inherent in the partnership agreement does not determine the existence of counter-duties. The gratuity of the contract also does not coincide with the concept of reciprocity, since some contracts, which are gratuitous in their subject matter (non-competition agreement, agreement on satisfaction of the mortgagee's requirements), have signs of mutuality of obligations.

In synallagmatic contracts, non-fulfillment of the obligation of one of the parties entitles the other party to raise "exceptio non adimpleti contractus" - "objection to non-fulfillment of the contract". In the Civil Code of Ukraine, this is manifested in the fact that the party that has not received performance under the contract has the right to stop the performance of its obligation or refuse to perform it (Part 3 of Article 538 of the Civil Code of Ukraine). At the same time, such duties that are functionally related will be considered to be counter.