Inaudible words, but an important rule of civil and international law - restitution. What it is and how it applies is the topic of this article.
Restitution in the system of law of the ancient Romans
It is generally known that the modern Western legal system is based on Roman law. It was in Rome that for the first time the areas of private and public law were singled out. Civil law - these are the rules governing civil legal relations, which entered the Romans, including as a result of the conclusion of transactions. Restitution in Roman law was used as a norm, allowing the praetor to return the state of affairs to the position that it was before the conclusion of the transaction. For this, the contract was declared invalid. The term itself in Latin means "restoration", a return to the original state. Thus, a direct consequence of the invalidity of the transaction in Rome was restitution. What did this mean in practice? Pretor in exceptional cases could come to the conclusion that the concluded transaction was not fair, therefore it recognized it as invalid, and each side received what it had before it.
Russian Civil Law
Restitution in the civil law of the Russian Federation has acquired some changes in its content. The court recognizes the invalidity of the transaction, and then the consequences of its invalidity come into effect. Proceeding from the fact that the conclusion of the transaction from the outset had no legal basis, each of the parties must return their property.
If it is a question of rendering services, carrying out works, then they need to be compensated in monetary terms. Thus, there are two mechanisms for the return of property under the transaction, which is recognized as invalid. The former is called conditionally restitution of possession. With it, each side receives the property that it owned before the concluded contract. This rule comes into force, even if one of the parties does not have rights to property that was transferred under the contract. For example, a thirteen-year-old boy sold his father's motorcycle. In the course of restitution, property must be returned to him, although he is not the real owner.
The second mechanism is compensatory restitution. It is characterized by monetary compensation for those works, services or use of property that took place as a result of the legal relationships that arose. Also, this rule comes into force if the property was transferred to a third party or destroyed, damaged.
Unilateral and bilateral restitution in civil law of the Russian Federation
The Civil Code distinguishes the following types of restitution: one-sided and two-sided. The latter applies in the event that each of the parties entering into the legal relationship did not have malicious intent, but still there were offenses, such as: non-compliance with the form, rules of state registration, going beyond the legal capacity of the legal entity or limiting the powers to conclude a transaction. Proceeding from this, bilateral restitution involves the return to each participant of the transaction of its original property or monetary compensation.
In the event that in the arising legal relations on the part of one of the participants malicious intent and the use of threats, deception or violence took place, unilateral restitution takes effect. She assumes that her property or his compensation will be received only by the victim, a conscientious party. Values belonging to another participant are transferred to state ownership or the state receives compensation for them in monetary terms.
Additional property consequences of transactions recognized as invalid
In some cases, when restitution is carried out by the court, additional property consequences are assigned. To put it simply, they relate to compensation for possible lost profits or losses incurred during the conclusion of a transaction by one of the parties. For example, the property may be in the hands of the counterpart for a while, otherwise it would be leased. So, this amount of lost profits may be required to be compensated in court.
First of all, this applies to transactions committed by incapacitated or underage, who, due to objective circumstances, could not calculate all material losses, entering into legal relations of purchase and sale, rent and so on. But other, quite capable persons may well rely on this same situation by filing a lawsuit in court.
Cases in which restitution is impossible
We found that restitution is a restoration of property rights or compensation in cases where the transaction is declared invalid. The law provides for situations in which restitution can not be carried out with respect to one or even two parties. What are these circumstances? If the transaction is declared invalid, but it is also proved that one or both legal entities violated the legal order and the principles of morality with intent, through violence or other unlawful means, then all property or monetary compensation is transferred to the state. That is, property relations are liquidated, but one of the parties, and sometimes both, lose that property or money that was used in these relations.
Restrictions on the application of restitution rules in the Civil Code
There are legal precedents that relate to the recognition of the invalidity of a transaction, the consequences of which have already affected the interests of many other persons or even the whole of society. Often they relate to the economic relationships of commercial organizations. For example, there is an illegal sale of the enterprise. If it is illegal, then all other legal relations that arose with his participation are illegal. Thus, there is a whole slew of contradictions, the subjects of which are many other organizations with their own private economic interests. In such situations, restitution is not provided for, as it would violate the rights of other participants in legal relations.
The statute of limitations on the application of restitution
The law establishes a period during which the plaintiff has the right to apply to the court with the demand to recognize the transaction as invalid and to conduct restitution. If the transaction is concluded with violations of legal norms or incapacitated persons, it had an imaginary character - it is called insignificant. Within ten years from the day of its execution, it is possible to sue the court to recognize it invalid and to apply the consequences of this, that is, restitution. If the plaintiff solicits the recognition of the disputable transaction as invalid, since it was concluded by means of pressure or deception, then he must file an application within one year after the cessation of the pressure on him or the discovery of fraud in the contract. The violation of the statute of limitations makes it impossible to examine these civil cases in court.
Restitution laws in Eastern Europe
In the countries of Eastern Europe, after the fall of the socialist system, laws were enacted almost everywhere to provide for restitution. What does this mean in practice? Prior to all the deprivations of property of citizens in the period from 1917 to 1945 are recognized as illegitimate. This gives the opportunity for the entry into force of the property consequences of the recognition of the transaction as invalid. In the Baltic States, the Czech Republic and Hungary, there was a wave of mass return of illegally taken property to the descendants of former owners. So, in Riga many residents of apartments of old buildings were surprised to learn that they live in someone else's property and must pay for renting their apartments to new owners, or even completely move out. And there were no statute of limitations here. In the light of recent events in Ukraine, many lawyers are seriously afraid of a large wave of restitution in this country.