THE RESTRICTION OF FREEDOM OF CONTRACT WITH A SUBSTANTIAL CHANGE OF CIRCUMSTANCES IN ENGLISH, GERMAN, RUSSIAN AND AZERBAIJANI LAW

Abstract

The article discusses the possibility of changing or terminating contracts in English, German, Russian and Azerbaijani law in case of a vital changes of circumstance. Thus, the Civil Code of the Republic of Kazakhstan doesn’t provide the possibility of changing or terminating contracts in case of a vital changes of circumstance. Despite the limited request in the legal community, the analysis of the practicability of the implementation of this institution is very interesting, since it allows a compliant demonstration of the development of law and how English and German law works with the principles of law and how its adaptation to new conditions are achieved. Furthermore, the article presents the Russian and Azerbaijani experience that shows the typical problems of legal systems in the process of transformation.

Developed legal systems are primarily characterized by the ability to develop based on fundamental principles in the absence of the legislative regulation or even contrary to the law. Moreover work with abstract categories does not destroy, but rather develop and strengthen legal system. At the same time, each legal system has developed its own approaches that meet its own needs. So in English law, which is very sensitive to the observance of the principle of pacta sunt servanda and strictly adheres to it, the institute of frustration was developed, and in German law the concept of Wegfall der Geschfätsgrundlage developed by the courts was subsequently fixed in the German Civil Code. In addition, the specific content of the rules of a vital changes of circumstances are significantly differs.

In this article, will be presented various approaches to restricting freedom of contract due to a vital changes of circumstances and analyzed the possibility of Kazakhstan’s use of foreign, in particular English, experience, as well as leading new model codifications - the Principles of the European Contract Law 1998/2002¹ and the Unidroit Contractual Principles of 2010².