Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 09/09/2021 Aceptado el 28/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Pe rio di cals Di rec tory, EBS CO. Se en cuen tra acre di ta da al Re gis tro de Pu bli ca cio-
nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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Vol. 39, Nº 71 (2021), 147-165
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Legal Mechanisms for Protection of the
Rights of Participants in Contractual and
Non-Contractual Legal Relations
DOI: https://doi.org/10.46398/cuestpol.3971.07
Serhii S. Sviatoshniuk *
Liliia O. Bakalo **
Oleg V. Bilostotskyi ***
Serhii F. Gut ****
Oleg I. Chaikovskyi *****
Oleksandr M. Zaiets ******
Abstract
The aim of this study is a comprehensive analysis of legal
mechanisms to protect the rights of participants in contractual
and non-contractual relations based on the experience of
foreign countries, namely: Australia, Brazil, Spain, Mexico,
Germany, Portugal, Turkey, France, and Switzerland. This research
involved the following methods: sociological analysis, system-structural
and comparative methods, logical-semantic and formal-logical methods,
as well as the dialectical method. Our study resulted in identication of
the main characteristics and features of legal mechanisms to protect the
rights of participants in contractual and non-contractual relations of each
of the studied countries. As a result, we drew conclusions about the need
to update the regulatory framework of most of the said countries. The
further use of mechanisms for legal protection of the rights of participants
* Postgraduate Student, Department of the Civil Law Disciplines, Faculty of Economics and Law, Odessa
I. I. Mechnikov National University, 65082, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-
0001-5371-753X
** Postgraduate Student, Department of Constitutional Law and Justice, Faculty of Economics and
Law, Odessa I. I. Mechnikov National University, 65082, Odesa, Ukraine. ORCID ID: https://orcid.
org/0000-0002-2948-3945
*** Postgraduate Student, Department of Constitutional Law and Justice, Faculty of Economics and
Law, Odessa I. I. Mechnikov National University, 65082, Odesa, Ukraine. ORCID ID: https://orcid.
org/0000-0003-0692-3247
**** Postgraduate Student, Department of Constitutional Law and Justice, Faculty of Economics and
Law, Odessa I. I. Mechnikov National University, 65082, Odesa, Ukraine. ORCID ID: https://orcid.
org/0000-0002-8175-8870
***** Postgraduate Student, Department of Constitutional Law and Justice, Faculty of Economics and
Law, Odessa I. I. Mechnikov National University, 65082, Odesa, Ukraine. ORCID ID: https://orcid.
org/0000-0001-9694-3406
****** PhD in Law, Professor, Department of Cybersecurity and Information Support, Odessa State
University of Internal Aairs, 65014, Odesa, Ukraine. ORCID ID: https://orcid.org/0000-0002-4426-
5241
148
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
in contractual and non-contractual relations will help ensure their real and
eective protection.
Keywords: protection of rights; legal relations; obligations; legal
mechanisms; Contractual and non-Contractual legal
relationships.
Mecanismos Legales para la Protección de los
Derechos de los Participantes en las Relaciones Legales
Contractuales y no Contractuales
Resumen
El objetivo de este estudio fue un análisis integral de los mecanismos
legales para proteger los derechos de los participantes en las relaciones
contractuales y extracontractuales basado en la experiencia de varios países,
a saber: Australia, Brasil, España, México, Alemania, Portugal, Turquía,
Francia y Suiza. Esta investigación involucró los siguientes métodos:
análisis sociológico, métodos sistémicos-estructurales y comparativos,
métodos lógico-semánticos y formal-lógicos, así como el método dialéctico.
El artículo resultó en la identicación de las principales características
y rasgos de los mecanismos legales para proteger los derechos de los
participantes en las relaciones contractuales y extracontractuales de cada
uno de los países estudiados. Como resultado, sacamos conclusiones sobre la
necesidad de actualizar el marco regulatorio de la mayoría de dichos países.
El uso adicional de mecanismos para la protección legal de los derechos de
los participantes en relaciones contractuales y extracontractuales ayudará
a asegurar su protección real y efectiva.
Palabras clave: protección de derechos; relaciones legales; obligaciones;
mecanismos legales; relaciones legales Contractuales y
no Contractuales.
Introduction
Research topicality: Legal mechanisms for the protection of the rights
of participants in contractual and non-contractual legal relations, rst of
all, allow preventing, ceasing violations of rights or restoring the violated
rights of participants in such legal relations. It should be noted that any
person has the right to protection of his/her right and interest, which does
not contradict the principles of law, the requirements of fairness, integrity
and reasonability.
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Vol. 39 Nº 71 (2021): 147-165
Ways and methods of protection of participants in contractual and non-
contractual legal relations are directly enshrined in law, which gives certain
guarantees to participants in the proceedings to restore (recognize) violated
(disputed) rights and to inuence such an oender through the state.
Legal protection of contractual and/or non-contractual legal relations
is carried out in the manner prescribed by law, that is through the use of
appropriate forms, means and methods of protection. It should be noted
that the legal protection of participants in legal relations directly depends
on the country to which the parties are residents, because the regulations of
such a state are applied in the event of a dispute.
Problems of legal mechanisms to protect the rights of participants
in contractual and non-contractual relations in the scientic literature
are also considered as contractual and non-contractual obligations. A
comprehensive analysis of research by European scholars shows that the
scope of legal mechanisms for the protection of participants in contractual
and non-contractual relations is quite ambiguous.
As of 2021, Ukraine has the provisions on legal protection of both
contractual and non-contractual legal relations, but the level of their
protection cannot guarantee the protection of the rights and interests of the
participants in these legal relations. The same trend is observed in other
foreign countries.
The object of the study is the social relations that have developed in the
process of legal protection of the rights of participants in contractual and
non-contractual relations.
The subject of the study are the conditions of contractual and non-
contractual legal relations, the violation of which may evoke a need for a
legal mechanism to protect their participants.
The aim of this study is a comprehensive analysis of legal mechanisms
to protect the rights of participants in contractual and non-contractual
relations on the example of the experience of foreign countries. The
identication of the main legal provisions, which are the basis for the
regulation of the legal protection for participants in contractual and non-
contractual legal relations, allowed determining the eectiveness of the
legal protection for participants in such legal relations in these countries.
The main objectives include:
• the issue of understanding of contractual and non-contractual legal
relations by the participants as a type of legal relations that requires
eective legal protection.
• analysis of legal mechanisms for protection of the rights of
participants in contractual and non-contractual legal relations and
the practice of their application in foreign countries.
150
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
• determining the level of eectiveness of laws and regulations on the
legal protection of the rights of participants in contractual and non-
contractual relations.
1. Literature Review
Complex qualication issues often arise when concluding unnamed
contracts in the regulation of contractual and non-contractual relations.
Kanashevskii (2019) notes that due to dierences in national legal norms,
certain types of legal relations can be included only in the legislation of one
country (so-called contracts) and can be considered as mixed contracts (a
special type of agreements).
The Brazilian Civil Code describes the civil law system with strong
legislation and relatively predictable case law on complex legal relations,
remedies, and rights against breach of obligations. In regulating the legal
protection of contractual and non-contractual legal relations in the next few
years, the market expects the development of legislation to introduce new
rules with appropriate changes in the legal protection of contractual and
non-contractual legal relations (Cardoso, 2002).
Germany, according to the Civil Code, has a highly developed legal
system, where claims for legal protection of contractual and non-contractual
legal relations can be satised through eective courts, complemented by
a prosperous and well-maintained arbitration scene. However, there is a
problem that includes the question of how to maintain a set of precedents
in this area of legal relations (Federal Ministry of justice and Consumer
Protection, n. d.).
Portugal is well aware of the importance of contractual and non-
contractual relations. The Portuguese Civil Code has shaped its rules under
the inuence of EU law. The legal system and practice of Portugal in terms
of contractual and non-contractual relations are constantly adapting to the
conditions of the modern world (Government of Goa, 2018).
Particular attention is paid to contractual and non-contractual
obligations in the Turkish Civil Code (International Labour Organization,
2001) and the Turkish Penal Code (European Commission for democracy
through law, 2015). Turkey is a representative of the civil law system, and
has a very liberal view, formed around the freedom of legal relations in this
context. Turkish contractual relations contain reliable decisions on the
conclusion of contracts, their invalidity or the consequences of the failure
to full or improper fullment of contractual obligations, as well as to
compensate for losses that may be incurred by the parties.
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Swiss contractual and non-contractual relations are fully governed by
the Swiss Civil Code, which has a long tradition and usually gives the parties
more freedom to formalize their contractual relationship. Its basic legal
principles have not changed for years, and no major changes are planned
in the near future. This contributes to the legal certainty and predictability
of the parties. Swiss civil and commercial courts tend to specialize and try
to resolve disputes in a competent, pragmatic and ecient way. Besides,
international commercial arbitration is very common and eective in
Switzerland. Due to the independence and stability of the Swiss legal
system, as well as its high level of freedom of contract, international parties
often choose Swiss law as the applicable law of their contracts, and they
provide for jurisdiction in Switzerland (Fedlex, 2021).
The Spanish Civil Code (Gobierno de España, n. d.), the French Civil
Code (Legifrance, 2016) and the Federal Civil Code of Mexico (Portes Gil,
1928) set out the main provisions on the legal protection of participants in
contractual and non-contractual relations, indicating the key principles on
which legal protection is based in these countries.
The Civil Code of Ukraine (Verkhovna Rada of Ukraine, 2003) fully
regulates the issues of contractual and non-contractual legal relations
starting from their conditions and ending with legal protection in case of
disputes. However, there is still a problem of the eectiveness of these rules
and assessment of the practical protection of the parties.
Besides, the General Data Protection Regulation, which sets out
contractual provisions and, in some cases, non-contractual ones that
provide appropriate data protection guarantees, can be used as a basis for
data transfer from the EU to third countries (European Commission, 2021).
Despite an extended legislative framework that seems to be exhaustive
in regulating the protection of the rights and interests of participants in
contractual and non-contractual legal relations, it can be observed that the
eectiveness of legal protection cannot be called high in many countries.
This is natural, on the one hand, because the requirements and needs of the
parties are constantly changing and need other methods and approaches
to their legal protection, and on the other — determines the readiness of
states to seek new legal mechanisms to protect parties to contractual and
non-contractual relations.
2. Methods and Materials
For a comprehensive analysis of the study of legal mechanisms to protect
the rights of participants in contractual and non-contractual relations, we
analysed the activities of some foreign countries, namely: Australia, Brazil,
152
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
Spain, Mexico, Germany, Portugal, Turkey, France and Switzerland. These
countries provide legal protection of the rights of participants in contractual
and non-contractual legal relations in completely dierent ways, which
allows a more specic approach to the study of this issue.
The study is based on an in-depth analysis of the legal framework of
selected countries (Australia, Brazil, Spain, Mexico, Germany, Portugal,
Turkey, France and Switzerland), which reects the balance between
dierent rules of legal protection and dierent intensity of protection.
Despite some similarities in the application of legal mechanisms to
protect the rights and interests of participants in contractual and non-
contractual legal relations and/or obligations, the level of their eectiveness
and scope dier. Besides, the level of regulation and assessment of legal
mechanisms to protect the rights and interests of participants in contractual
and non-contractual legal relations in each country also dier.
This analysis was formed on the basis of ocial Internet resources of the
studied countries and the current legal framework, so it fully complies with
the mechanisms of legal protection of the rights and interests of participants
in contractual and non-contractual relations in general.
The study involved methods of sociological analysis, which contributed
to the generalization of international practice of legal mechanisms to protect
the rights of participants in contractual and non-contractual relations, as
well as analysis of empirical information, which further allowed comparing
legal mechanisms to protect the rights of participants of the countries.
System-structural and comparative methods allowed exploring the legal
background for the protection of the rights of participants in contractual
and non-contractual relations and to compare them with each other.
Logical-semantic and formal-logical methods were used in the study of
the level of legal protection of the rights and interests of participants in
contractual and non-contractual legal relations, as well as determining the
level of their eectiveness. Denitions are formulated within the research
topic on their basis. The dialectical method was used in considering the
studied problems and determining the main directions of development
of legal mechanisms to protect the rights and interests of participants in
contractual and non-contractual relations.
The theoretical background for the study was the works of domestic and
foreign scientists, the regulatory framework of foreign countries, analytical
information on legal mechanisms to protect the rights of participants in
contractual and non-contractual relations in particular.
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3. Results
Today, the protection of the rights of participants in contractual and
non-contractual legal relations directly depends on their legal protection
mechanisms. For a comprehensive analysis of this issue, we propose to
consider international experience in the eld of legal mechanisms for the
protection of contractual and non-contractual relations. Therefore, we
propose to consider Table 1 and analyse the example of Spain, Germany,
Turkey and France sanctions, which are conditions for the legal protection
of these legal relations.
Table 1. Conditions of protection of the rights of participants
of contractual and non-contractual legal relations
Sanction Description
Spain
Germany
Turkey
France
Performance Performance of the contract + + + +
Termination of
the contract The damaged party has the right to
terminate the contract if the breach of
contract is signicant and violates essential
terms
+ + + +
Price reduction in
some contracts There is a judicial tendency to provide a
price reduction in case of breach of contract + – + –
Liability for
hidden defects Obliges sellers to provide a warranty for
hidden defects + + + +
Compensation for
damages Breach of contract entails an obligation
for the violating party to compensate the
damage caused to the other party due to
failure to full obligations
+ + + +
Source: Authors.
According to Table 1, we can see that Spain and Turkey have the highest
legal protection of contractual and non-contractual relations. However, it
should be noted that each country has its own peculiarities regarding their
regulation. However, Germany and France involve more than one item of
sanctions in the legal protection, which fully compensates for the other
sanctions, which we will consider below.
154
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
It is worth noting that under Spanish contract law, the parties have
several remedies in the event of a breach of contract, which are not
necessarily related to a particular type of breach. As a general rule, each
party can choose the remedy that it considers most appropriate to protect
its rights and interests, as there is no legal provision in Spanish law
regarding the primacy of remedies. In fact, the plainti may also bring joint
actions on a subsidiary basis (for example, the claim may be based on a
specic performance and, if this is not possible, on damages) (Vendrell and
Cepero, 2021). However, non-contractual relationships are governed by the
parties themselves and, for the most part, if the parties cannot agree among
themselves, their dispute is still resolved with an emphasis on contractual
obligations.
In Germany, the simplest remedy is a performance claim. In sales
contracts and work agreements, the buyer or customer should usually give
the seller or contractor the opportunity to remedy the defect. This does not
prevent the buyer or customer from claiming damages for the defect, such
as property damage. German law on damages requires that the damaged
party be placed in the position in which it would be if it hasn’t incurred
any losses through full compensation, lack of enrichment due to damages,
limitation of liability, and repair work (Sattler, 2021). At the same time,
contractual relations between the parties may arise much more often, as
German law emphasizes the good faith of both parties. Therefore, when
resolving disputes, both contractual and non-contractual legal relations are
taken into account equally.
Examining the legal protection of Turkey on this issue, we traced such a
feature as the fact that the parties are free to decide on the amount of the ne,
which is not always dependent on the amount of damage. If the parties set
the penalty less than the damage, the creditor may claim damages in excess
of the ne, given that the debtor is at fault (Namli, 2021). Thus, Turkish law
directly shows that it provides legal protection for any legal relations that
arise between the parties. Moreover, if there are clearly dened terms of
performance in the contractual obligations, but the parties have decided to
change them on a non-contractual basis, they are considered equally legally
signicant.
The analysis of French contractual law is quite interesting, which
provides ve remedies available to the damaged party:
− exception in case of non-performance of obligations: a party may either
refuse to perform its own obligation if the failure to perform of the contracting
party is serious enough, or suspend the performance of its obligation when it
is obvious that the other party will not perform.
− enforcement: the creditor of the obligation may receive enforcement of the
specied obligation or assume the fullment of the obligation upon ocial
notication.
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− price reduction: the creditor may accept, upon ocial notication, partial
performance of the contract and demand a proportional price reduction.
− termination for violation: termination for violation can be applied on three
grounds: application of the termination provision, court decision or unilateral
termination. Unilateral termination of relations is the main innovation of the
2016 reform, according to which obligated persons may terminate contracts
by notifying their debtors, if they have not eliminated the breach of contract,
despite the ocial notication.
− damages: the creditor can receive compensation for the damage.
Compensation will be reimbursed provided that the non-compliance is nal
or that a formal notice has been issued.
Besides, under French law, contractual liability applies between the
contracting parties for any damage resulting from non-performance of
a contractual obligation. Therefore, if these conditions are not met, the
liability is non-contractual. In addition, in accordance with the principle of
non-accumulation of contractual and non-contractual obligations, where
the conditions of contractual liability are met, the party to the contract can
no longer claim non-contractual liability. However, the case law recognises
that the parties to a case may claim damages for both a contractual claim
based on non-performance of a contract, and a non-contractual claim based
on the abrupt termination of established commercial relations, even if these
requirements are based on the same facts (Fages and Saarinen, 2021).
In Brazil, in case of breach of commercial agreement, the non-violating
party has the opportunity to use various remedies, including:
− demand fullment of the overdue obligation.
− application of penalties provided for in the contract, if any;
− termination of the contract due to non-fullment of obligations by other
parties.
− demand compensation in order to compensate for losses caused by non-
fullment of obligations by counterparties (Gonçalves et al., 2021).
Based on the above provisions, it is clear that Brazilian law generally
protects only contractual obligations, and only in the case of exceptions,
can accept non-contractual relations by mutual agreement of the parties.
In the event of a breach of contract, the Portuguese legal system provides
the non-violating party with several remedies: it may bring a declaratory
action and demand specic enforcement in order to compel the infringing
party to actually full the contractual obligation. If the declaratory
proceedings are successful, the creditor may le enforcement proceedings
against the debtor, if the latter does not voluntarily comply with the court
decision.
156
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
A non-violating party may also claim compensation from the infringing
party (including loss of prots) incurred as a result of breach of contract.
However, the losses are not punitive but compensatory in Portugal. The
non-violating party may also terminate the commercial contract in case of
violation. However, under Portuguese law, termination is lawful only if the
non-performance of the contract is serious and nal. In the event of a delayed
performance, the non-violating party will be able to terminate the contract
only if it is no longer interested in the performance of the contract or if it has
issued the defaulting party a fair notice to remedy the breach. In the event
of termination, the non-violating party may demand compensation for the
damage. However, as mentioned, the method of calculating compensation
is controversial in Portugal (Aguilar De Carvalho, 2021). Thus, it should be
added that contractual relations are more regulated in Portugal, while non-
contractual obligations are rarely used by the parties.
Examining the legal protection of legal relations in Switzerland, it was
noted that in the event of a breach of contract, the non-violating party
usually has the option of either seeking specic enforcement or suing for
damages. Depending on the type of contract and breach, a party may also
have the right to terminate the contract, enforce warranty rights (such as
repair or subsequent delivery), or go to court with reservations or other
remedies (Rohn, 2021). That is, although non-contractual relations can still
be applied, contractual obligations have much better legal protection.
Mexico is of particular interest to the study, where, as in most
Latin American countries, Mexico’s Federal Civil Code is based on the
Napoleonic Civil Code, which means that Mexico adheres to the civil law
system as opposed to the general (judicial) system. Therefore, the rules for
concluding and interpreting treaties, breach of contract, and remedies are
largely codied, as in other civil law countries. However, with regard to
commercial litigation, Mexico is introducing a predominantly oral system,
which is likely to become faster and more ecient. Thus, non-contractual
obligations are the most common in Mexico, which helps to carry out
proceedings in certain cases much faster (Obscura and Juarez, 2021).
The regulation of contractual and non-contractual relations in Australia
It is quite interesting, where there is such a thing as a common law estoppel
— a legal doctrine that can come into force in circumstances where the
parties have departed from the strict terms of this agreement but did not
enter into a new agreement to give eect to their new agreement. In essence,
the common law of estoppel prevents a party in this situation from asserting
its legal rights under the original agreement against the other party when
it would be unfair, as this would lead the other party to assume that their
basic agreement had changed. Common law applies only to assumptions
about the current state of aairs, not to ideas about what will happen in
the future (Lacey and Lewis, 2018). Thus, Australia has established the
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protection of non-contractual obligations to avoid possible bad faith of one
of the parties.
Having analysed the foreign experience of contractual and non-
contractual legal relations, it should be noted that in Ukraine contractual
and non-contractual obligations are fully regulated by current legislation.
However, its eectiveness should be considered quite controversial. This
is due to the fact that, although the regulations provide for the protection
of contractual relations and there is an exhaustive list of non-contractual
relations, which include obligations arising from the public promise of
remuneration; committing actions in the property interests of another
person without his/her order; saving the health and life of an individual,
property of an individual or legal entity; creating a threat to life, health,
property of an individual or property of a legal entity; reparation; in practice
the parties are not always convinced of their legal protection.
One of the reasons is that non-contractual obligations are very dicult
to prove, which is not the case for the contractual obligations, where the
terms of the legal relations are clearly dened. Besides, the ground for non-
contractual obligations is not a contract, but legally signicant actions that
also need proof, as such actions can be both legal and illegal.
Thus, having carried out a comprehensive analysis of contractual and
non-contractual obligations, it can be argued that all the conditions and
further consequences that require legal protection are concentrated in their
life cycle, which can be illustrated as shown on Figure 1.
Figure 1: Life cycle of legal relations.
Source: Prinsley and Yaros (2019)
158
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
So, having studied the foreign experience of legal protection of
contractual and non-contractual legal relations, it can be argued that their
regulation and protection is not ambiguous. Therefore, we propose to
consider Table 2 and determine which criteria provide legal protection in
contractual and non-contractual relations, where “+” means “provide”, and
“-“—“do not provide”.
Table 2. Assessment of legal protection of contractual and
non-contractual legal relations by criteria
Criteria Contractual
relations Non-contractual
relations
Eective performance of the contract /
agreement + –
Legislative requirements to support the
performance of contracts + –
Alternative dispute resolution processes + +
Source: Organization of Economic Cooperation and Development (n.d)
On the basis of the countries that we studied, we propose to consider whether
the protection of contractual and non-contractual relations is equal, where “+”
means “full”, and “-“ — “not full” (Table 3).
Table 3. Level of legal protection of contractual and
non-contractual legal relations
Item no. Countries Contractual relations Non-contractual relations
1 Australia + +
2 Brazil + –
3 Spain + –
4 Mexico – +
5 Germany + +
6 Portugal + –
7 Turkey + +
8 Ukraine + +
9 France + +
10 Switzerland + –
Total 9 6
Source: Authors
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Vol. 39 Nº 71 (2021): 147-165
So, having made a comparative analysis of contractual and non-
contractual legal relations in Ukraine and foreign countries, we can see
that although contractual obligations still occupy a higher position than
non-contractual ones, the dierence is quite small. Besides, it should be
noted that most countries have a position of equal legal protection for both
contractual and non-contractual obligations.
Based on the above, it should be emphasized that it is necessary to
improve the regulation of non-contractual relations in modern conditions,
as well as to pay attention not only to the legal protection of contractual
and non-contractual obligations provided by the country on this issue,
but also its eectiveness. Despite the availability of legal protection of
both contractual and non-contractual legal relations in Ukraine, their
eectiveness is quite low and needs legislative revision. The same applies
to foreign countries, there are countries that focus on non-contractual
relations, while the protection of contractual relations is imperfect, and
vice versa. Therefore, there is an urgent need to review the legal framework
for the eectiveness of protection of contractual and non-contractual
obligations in accordance with modern conditions and needs of the parties
to the existing legal relations.
4. Discussion
Having conducted research in the eld of legal mechanisms for
the protection of the rights of participants in contractual and non-
contractual legal relations, it should be noted that it is dicult to call them
unambiguous. Countries such as Australia, Germany, Turkey, Ukraine and
France prefer to exercise legal protection to the same extent, although there
are countries that adhere to the regulation of legal protection of mostly
contractual obligations only — Brazil, Spain, Portugal, Switzerland, while
some countries focus on non-contractual relations, such as Mexico.
Upon analysing the views of foreign scholars, we can agree with the
statement that the legal protection of the rights of participants in contractual
and non-contractual legal relations constantly requires legislative changes,
as the eectiveness of legal protection of these obligations in the world is
constantly changing.
Hryniak et al. (2018) conducted a study of the legal protection of
contractual relations, which claried the main reasons for the occurrence
of contractual obligations and their relationship with non-contractual
obligations.
The study of Wol (2020), who examined the relationship between
contract law and non-contract law in the eld of property rights, is
160
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
quite interesting. In his work, he provided comprehensive comparative
characteristics of contractual legal relations that arise in this area with non-
contractual ones.
Researchers Taylor and Taylor (2017) have noted that contractual and
non-contractual relations are generally considered part of contract law.
He explains this by the fact that regardless of the type of legal relations,
there is a certain obligation of one party to another, and it depends not only
on the existence of separately dened terms of the contract, but on non-
contractual legal relations between the parties as well.
The research of Svirin et al. (2021) is worth being mentioned, as it
analysed the current problems of legal qualication in international private
law of contractual and non-contractual relations.
In analysing contractual and non-contractual relations, Brownsword
(2017) identies three broad goals that govern the predictable, real, and
ideal functions of modern contract law, namely, to facilitate exchange,
protect the public interest and the parties themselves, and provide a
private dispute resolution mechanism. In his study, he identied the main
characteristics of contractual and non-contractual relations.
However, Ramaekers (2017) emphasises in her research that contractual
and non-contractual legal relations are completely dierent areas that need
a dierent legal protection, although they may address the same issue.
Petrova’s (2019) research is quite interesting, where in distinguishing
between contractual and non-contractual legal relations she notes:
...when distinguishing between contractual and non-contractual obligations,
in order to determine the applicable legislation, the rst question to be resolved is
whether this obligation corresponds to the contractual one or is closely related to
the contractual one. If there is a close relationship with the contract, the obligation
is primarily classied as contractual. Accordingly, when an obligation cannot be
classied as a contractual, the obligation should be treated as a non-contractual
obligation (Petrova, 2019: 37).
In his research on contractual and non-contractual legal relations, Teo
(2021) focused not only on their characteristics and analysis, but also on the
legal protection of the rights of participants and their legality. At the same
time, he took into account the claims relating to both contractual and non-
contractual legal relations, which led him to conclude on the dierent legal
protection of contractual and non-contractual legal relations, depending on
the country.
Besides, taking into account the current features, which include the
COVID-19 pandemic, we reviewed the results of studies conducted by
Zagonek and Boulatov (2020) who examined the legal impact on contractual
obligations in a pandemic. They partially carried out a comparative analysis
161
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 147-165
with non-contractual legal relations, which allowed tracing the main eects
of the pandemic on these legal relations.
Györ-Tóth (2020) also conducted research on this issue, who also
studied the impact of coronavirus as a potential force majeure event on
contractual and non-contractual relations, while identifying the main
characteristics of legal protection of participants in such relations.
Conclusions
The study of contractual and non-contractual legal relations as a legal
mechanism to protect the rights of their participants is undeniably important
for each country and society as a whole. The topic of this article attracts the
attention of researchers and scholars not only to theoretically consider this
topic, but also to provide their recommendations for improving the legal
protection of the rights of participants in legal relations.
Based on the study of foreign experience, the scope of regulation of
legal mechanisms of protection through legal acts is considered and their
eciency is assessed in such countries as Australia, Brazil, Spain, Mexico,
Germany, Portugal, Turkey, France and Switzerland.
Having conducted a comprehensive analysis of the mechanisms for legal
protection of the rights of participants in contractual and non-contractual
legal relations on the example of foreign countries, it should be noted that
there is a need to expand legal mechanisms for legal protection of the rights
of participants in legal relations. In particular, amendments should be made
to the regulations of most of the countries we studied, because they either
do not regulate this area of legal relations in full, or there are problems
with the eectiveness of already established rules that should provide legal
protection for both contractual and non-contractual relations. As a result,
this is directly reected in the statistics compiled to analyse the activities of
countries, which allows us to realistically assess the position of a country in
the context of protecting the rights of the parties to the legal relations.
The obtained results can be used in research, law-making, law
enforcement and educational process. For example, research provides a
background for further theoretical studies of legal mechanisms to protect
the rights of participants in contractual and non-contractual relations,
which are aimed at improving the system of protection of citizens’ rights.
It is necessary to take into account the obtained results in law-making,
because the study resulted in proposals to improve the legal protection
of the rights of participants in contractual and non-contractual relations.
Application in law enforcement activities will allow improving the legal
protection of the parties to legal relations and increasing the eectiveness
162
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
of the introduction of mechanisms for legal protection of participants in
contractual and non-contractual legal relations. The use of the results of
this study in the educational process is equally important, as they can be
introduced in educational materials on the subjects that involve studying
the legal protection of contractual rights in law and other educational
institutions.
Bibliographic References
AGUILAR DE CARVALHO, Fernando. 2021. The complex commercial litigation
law review: Portugal. Available online. In: https://thelawreviews.
co.uk/title/the-complex-commercial-litigation-law-review/portugal.
Consultation date: 25/04/2021.
BROWNSWORD, Roger. 2017. General considerations. In: Michael Furmston
(Ed.), The Law of Contract, 6th edition (pp. 23-25). LexisNexis. London,
UK.
CARDOSO, Fernando Henrique. 2002. Brazilian Civil Code. Law No. 10.406.
Available online. In: https://wipolex.wipo.int/en/text/226198.
Consultation date: 25/02/2021.
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW. 2015. Penal
Code of Turkey 2004. Available online. In: https://www.legislationline.
org/download/id/6453/file/Turkey_CC_2004_am2016_en.pdf.
Consultation date: 25/02/2021.
EUROPEAN COMMISSION. 2021. Standard contractual clauses. Available
online. In: https://ec.europa.eu/info/law/law-topic/data-protection/
international-dimension-data-protection/standard-contractual-clauses-
scc_en. Consultation date: 25/10/2021.
FAGES, Fabrice; SAARINEN, Myria. 2021. The complex commercial litigation
law review: France. Available online. In: https://thelawreviews.
co.uk/title/the-complex-commercial-litigation-law-review/france.
Consultation date: 25/04/2021.
FEDERAL MINISTRY OF JUSTICE AND CONSUMER PROTECTION. n. d.
Bürgerliches Gesetzbuch [Civil law book.]. Available online. In: https://
www.gesetze-im-internet.de/bgb/BJNR001950896.html. Consultation
date: 25/02/2021.
FEDLEX. 2021. Swiss Civil Code 1907. Available online. In: https://www.fedlex.
admin.ch/eli/cc/24/233_245_233/en. Consultation date: 25/02/2021.
163
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 147-165
GOBIERNO DE ESPAÑA. n. d. Código civil [Civil code]. Available online. In:
https://www.boe.es/eli/es/rd/1889/07/24/(1)/con. Consultation date:
25/02/2021.
GONÇALVES, Diógenes; SILVA, Elder Avelino; ARDITO, Gianvito; ZANETTI,
Pedro Ivo Gil. 2021. The complex commercial litigation law review:
Brazil. Available online. In: https://thelawreviews.co.uk/title/the-
complex-commercial-litigation-law-review/brazil. Consultation date:
25/04/2021.
GOVERNMENT OF GOA. 2018. Portuguese Civil Code 1867.Ocial translation
with notes. First edition. Available online. In: https://www.indiacode.
nic.in/bitstream/123456789/8312/1/ocrportuguesecivilcode.pdf.
Consultation date: 25/02/2021.
GYÖRFI-TÓTH, Рeter. 2020. Impact of Coronavirus as a potential force
majeure event on private law contractual relationships in Hungary.
Available online. In: https://www.dlapiper.com/ru/russia/insights/
publications/2020/04/impact-of-coronavirus-on-private-law-
contractual-relationships-in-hungary/. Consultation date: 25/03/2021.
HRYNIAK, Andrii B; KОT, Oleksii O; PLENIUK, Mariana D. 2018. “Contractual
regulation of relations of joint ownership of individuals in Ukraine (on
the example of agreements on the transfer of property into ownership)”
In: Utopía y Praxis Latinoamericana. Vol. 23, No. 82, pp. 209–221.
INTERNATIONAL LABOUR ORGANIZATION. 2001. Civil Code Turkey. Act
No. 4721. Available online. In: https://www.ilo.org/dyn/natlex/natlex4.
detail?p_isn=61757&p_lang=en. Consultation date: 25/02/2021.
KANASHEVSKII, Vladimir Aleksandrovich. 2019. Private International Law:
Textbook. Mezhdunarodnye otnosheniya. Moscow, Russia.
LACEY, Andrew; LEWIS, Guy. 2018. The non-contractual ties that bind.
Available online. In: https://www.lexology.com/library/detail.
aspx?g=4c8f2a95-a987-43bc-8280-8bafad800059. Consultation date:
25/02/2021.
LEGIFRANCE. 2016. Code civil français [French civil code]. Available online. In:
https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006070
721?etatTexte=VIGUEUR&etatTexte=VIGUEUR_DIFF. Consultation
date: 25/02/2021.
NAMLI, Mert. 2021. The complex commercial litigation law review:
Turkey. Available online. In: https://thelawreviews.co.uk/title/the-
complex-commercial-litigation-law-review/turkey. Consultation date:
25/04/2021.
164
Serhii S. Sviatoshniuk, Liliia O. Bakalo, Oleg V. Bilostotskyi, Serhii F. Gut, Oleg I. Chaikovskyi
y Oleksandr M. Zaiets
Legal Mechanisms for Protection of the Rights of Participants in Contractual and Non-Contractual
Legal Relations
OBSCURA, Javier Curiel; JUAREZ, Ernesto Palacios. 2021. The complex
commercial litigation law review: Mexico. Available online. In: https://
thelawreviews.co.uk/title/the-complex-commercial-litigation-law-
review/mexico. Consultation date: 25/04/2021.
ORGANIZATION OF ECONOMIC COOPERATION AND DEVELOPMENT.
n. d. Contract enforcement and dispute resolution. Available
online. In: https://www.oecd.org/investment/toolkit/policyareas/
investmentpolicy/contractenforcementanddisputeresolution.htm.
Consultation date: 25/03/2021.
PETROVA, Galina Vladislavovna. 2019. Private International Law: Textbook
for Academic Bachelor’s Degree in 2 Volumes. Vol. 1. Urait. Moscow,
Russia.
PORTES GIL, Emilio. 1928. Federal Civil Code. Available online. In: https://
www.global-regulation.com/translation/mexico/560097/federal-civil-
code.html. Consultation date: 25/02/2021.
PRINSLEY, Mark A; YAROS, Oliver. 2019. Using performance of a contract as
a legal basis for processing in the context of online services. Available
online. In: https://www.mayerbrown.com/en/perspectives-events/
publications/2019/05/using-performance-of-a-contract-as-a-legal-
basis-for-processing-in-the-context-of-online-services. Consultation
date: 25/02/2021.
RAMAEKERS, Eveline. 2017. “What is property law?” In: Oxford Journal of
Legal Studies. Vol. 37, No. 3, pp. 588-591.
ROHN, Patrick. 2021. The complex commercial litigation law review:
Switzerland. Available online. In: https://thelawreviews.co.uk/title/the-
complex-commercial-litigation-law-review/switzerland. Consultation
date: 25/04/2021.
SATTLER, Maximilian. 2021. The complex commercial litigation law review:
Germany. Available online. In: https://thelawreviews.co.uk/title/the-
complex-commercial-litigation-law-review/germany. Consultation
date: 25/04/2021.
SVIRIN, Yury Alexandrovich; MOKHOV, Alexandr Anatolievich; FOMENKO,
Elena Vladimirovna; ARTYUKHOV, Eduard Eduardovich; SHESTOV,
Sergej Nikolaevich. 2021. “Problems of legal qualication in private
international law” In: Geintec. Vol. 11, No. 4, pp. 812-825.
TAYLOR, Richard; TAYLOR, Damian. 2017. Contract Law: Directions, 6th
edition. Oxford University Press, 392 p. Oxford, UK.
165
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 147-165
TEO, Marcus. 2021. Foreign law illegality and non-contractual claims. Available
online. In: https://conictoaws.net/2021/foreign-law-illegality-and-
non-contractual-claims/. Consultation date: 25/03/2021.
VENDRELL, Carles; CEPERO, Miguel Ángel. 2021. The complex commercial
litigation law review: Spain. Available online. In: https://thelawreviews.
co.uk/title/the-complex-commercial-litigation-law-review/spain.
Consultation date: 25/02/2021.
VERKHOVNA RADA OF UKRAINE. 2003. The Civil Code of Ukraine. The Law
from 16.01.2003 № 435-IV. Available online. In: https://zakon.rada.
gov.ua/laws/show/435-15#Text. Consultation date: 25/02/2021.
WOLFF, Lutz-Christian. 2020. “The relationship between contract law and
property law” In: Common Law World Review. Vol. 49, No. 1, pp. 31-55.
ZAGONEK, Julia; BOULATOV, Pavel. 2020. COVID-19: Legal impact on
contractual obligations. Available online. In: https://www.whitecase.
com/publications/alert/covid-19-legal-impact-contractual-obligations.
Consultation date: 25/03/2021.
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