A CONTRACT AS A NORMATIVE SOURCE OF PRIVATE LAW

Abstract

Introduction: the article looks at the contract as a source of the private law of the parties and shows that in this capacity the contract performs the function of legal regulation of actions to be taken under the contractual obligation. Purpose and objectives: to characterize the contract as a normative (norm-establishing) agreement and reveal the regulatory function of the contract, proving that its content is the regulatory terms of the private law agreement agreed upon by the parties and binding on them, while the rights and obligations of the parties, derived from the terms of the agreement, are the content of a civil legal relationship. Methods: a set of methods of scientific cognition, including the comparative legal method, systematic approach, analysis. Results: the article shows that the contract is traditionally considered as the basis of contractual obligations, which were originally institutionalized as an independent type of civil legal relations. This is explained by the fact that the Russian legislator includes general provisions on the contract in the general part of the law of obligations, and the contract is named among the grounds for the emergence of civil rights and obligations. However, in the modern period of the development of civil law, scientists and law enforcers should not consider the contract only as a legal fact, as a legal relationship, and as a document. The legal nature of the agreement of the parties in the form of a binding contract allows us to substantiate its special role as a means of fulfilling regulatory functions – the contract performs these as a source of private law. This necessitates determining the role and place of sources of contract law in the system of sources of civil law and the improvement of contract lawmaking. The approach outlined in the article supplements theoretical provisions on the contract not only as a legal fact and legal relationship but also as an agreement of the parties containing their private law. Conclusions: the effect of the contract is triple in nature: a contract legalizes the legal relationship of the parties in the form of an obligation, creates the source of the content of this legal relationship, and, as a source of the private law of the parties, regulates the ‘breakoff’, i.e. termination of the legal relationship. The private law of the parties to a contract is woven into the legal matter and performs a regulatory function; the law-generating effect of the contract is expressed not only in the consequences of concluding the agreement but also in the consequences resulting from the execution by the contract of its regulatory function.