Neįmanomumo įvykdyti prievolę įtaka sandorių galiojimui : |b principo "impossibilium nulla obligatio est" taikymas šiuolaikinėje teisėje.
The article deals with the issue of initial impossibility of performance of an obligation and the influence of such impossibility of performance on the validity of the legal transaction that establishes such an obligation. The legal doctrine convincingly demonstrates that for Roman lawyers the rule Impossibilium nulla obligatio est merely meant that nobody can be obliged to perform something that cannot be performed; however, it did not necessarily follow that a contract establishing such an obligation was void. Modern civil codifications overlook another significant feature of the Roman law -- the uncontested application of the principle Impossibilium nulla obligatio est only in case of stipulatio, whereas modern contract law has its origins in the Roman law of consensual contracts. Legal regulation of the issue at hand in the civil codes of various European countries, in the UNIDROIT Principles of International Commercial Contracts, and in the Principles of European Contract Law is contradictory. Therefore, the position of Lithuanian law needs to be examined closely, especially since Lithuanian court practice tends to read the sanction of absolute nullity into the provision of Article 6.3 (4) of the Lithuanian Civil Code. However, the exact wording of the said article only suggests that something impossible to perform may not form the subject matter of an obligation. The word "nullity" is not used in this article. The author takes a view that Lithuanian Civil Code does not establish a clear rule, which would unamiguously lead to the conclusion that a legal transaction, the performance whereof is impossible, is null and void. Therefore, the author believes that the courts have the possibility to treat such cases in a flexible manner in order to provide the aggrieved party with the possibility to claim his or her positive interest (expectation damage) as opposed to merely a negative interest (reliance damage) in cases where the other party knew or should have known about the impossibility of performace. Such practice would be in line with the general tendency of modern law to avoid the use of the technique of the nullity of legal transactions and to allow, where appropriate, other remedies, for instance, a remedy for non-performance. Alternatively, the party, which has promised an impossible performance, could be exempted from the liability upon proving that the contract was concluded under the influence of essential mistake as to the existence of the subject matter of the obligation or as to the possibility of performace thereof. However, such an excuse would not be allowed if, upon proper construction of the contract, it was established that the party’s mistake is due to his or her own gross negligence or if the mistaken party had taken the risk of the mistake or should be seen as ought to have taken such a risk. In such a case the contract could not be avoided and the general remedy for non-performance should prevail.
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