NEGATIVE OBLIGATIONS IN CIVIL LAW: PROBLEM STATEMENT

Abstract

The present article touches upon the issue of  negative obligation interpretation in civil law. The provisions of  foreign civil legislature concerning negative obligations are reviewed in detail. The article gives a detailed analysis of main issues in the scientific literature concerning the legal nature of negative obligations: impossibility of negative obligations delays, impossibility of  partial performance, impossibility of  negative obligation termination because of  failure to perform, impossibility to enforce debt assignment .

The opportunity of  negative obligation counter-performance is also  stressed. It is concluded that negative obligation counter-performance is considered to be possible in case such obligations are interrelated. The author comes to the conclusion that the existence of counter-negative obligations is possible that are also exposed to counter-performance provided they are interrelated.

The peculiarities of such negative obligations as distribution  agreements and agency contracts are pointed out.

The article goes on to say about the possibility of non-concurrence agreements conclusions under civil law of Ukraine. The author states that there are some legal obstacles to it: the correlation with the principle of freedom of contract, the limitations on active civil capacity, termination employment or contractual relationships termination with creditors. Domestic trial practice is given to illustrate the indicated positions.

The author draws reader`s attention to the correlation of negative obligation with such definitions as «prohibition», « right restriction» and « waiver of the right». The author justifies that negative obligations can be considered neither as right restriction nor waiver of the right. Taking into account the fact that negative obligations imposes a prohibition on a debtor to commit certain actions but such a prohibition is provided by the agreement and works in favor of creditors it is considered to be a personal prohibition. The author also draws the line between negative obligations and negative servitude that is characterized by the burden of real estate as property rights and not by establishing the commitment in respect of a person.