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2010, vol. 44, iss. 1, pp. 145-169
Cause (consideration in contracts) under the Serbian Law on Obligations
University of Novi Sad, Faculty of Law
Projekat Pravnog fakulteta Univerziteta u Novom Sadu: Harmonizacija prava Republike Srbije i prava Evropske unije - teorijskopravni, sociološkopravni, istorijskopravni, pozitivnopravni i ekonomski asp

Keywords: cause; causa; basis of contractual obligation; motives; purpose of contract; aim of contract
In this paper the author analyzes the various legal institutions under the Serbian Law on Obligations where the purpose for which parties conclude a contract gains legal relevance. The subject of the analysis is only the institutions that pertain to the so-called general theory of the law of contract. The author admits, however, that even though it was scientifically justified to perform a similar research in the domain of the rules on typical contracts in the Law, such an attempt would exceed the envisaged limits of this paper. The essential rules in the Law on the cause of contracts are the ones that refer to the basis of contractual obligation and motives for concluding a contract. The Law adopts the so-called objective-subjective theory on cause, which means that it requires the existence of a genuine and permitted basis of contractual obligations as one of the preconditions of formation of a contract and its validity, while it does not define what the basis of contractual obligations actually means. Surely, it cannot be subjective reasons, inner motives that drive parties to conclude a contract, since they are regulated in another article of the Law which prescribes that permitted inner motives do not effect the formation and validity of a contract in any way (such effect may only have illicit motives under specific conditions). The basis of contractual obligations and motives for concluding a contract are the two legal institutions in the Law where the question of the purpose for which parties intent to contract gains direct legal relevance. However, it has some legal relevance within the framework of other legal institutions as well. The Law in various wordings namely, takes into account the purpose of concluding a contract in relation with the notions of void contract and consequences of its nullity conversion, partial nullity, specific cases of rescission of contract (rescission of contract with successive obligations due to nonperformance and rescission of contract due to partial impossibility of the object of the contract), rescission or modification of contract due to supervening events (clausula rebus sic stantibus), nullity of certain provisions of general terms of trade, unjustified enrichment and novation. Finally, the author remarks that there are legal institutions in the Law where the wording does not uses the expression basis, purpose, motives or any other with a similar meaning, but their essence can only be explained by no other theory but the theory of cause. Thus, the author's opinion is that the justification of nullity of sham contracts, rescission of contract due nonperformance or impossibility, the objection of failure to perform (exceptio non adimpleti contractus), the rule according to which unclear clauses in a contract are to be construed in the light of the common intent of the parties, just as the fraudulent conveyance (actio Pauliana) where the law sanctions the illicit, fraudulent motive of the debtor to swindle, evade his creditors lies in the very theory of cause, even though such an inference cannot directly be drawn from the phrasing of the given article in the Law.
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article language: Serbian
document type: Original Scientific Paper
published in SCIndeks: 07/09/2010