Violation of rights and legal interests as a condition of emergence of the right for protection of participants of a voidable bargain

An important innovation of civil legislation is the fixing of violation of rights and legal interests of the participants of voidable bargain as a condition of rescission of the bargain or (and) application of the consequences of invalidity of bargains. It is noted in program documents of the reform that this condition is aimed at the restriction of a widespread practice of rescission of bargains solely on formal grounds. However, court practice shows the absence of uniform approach in the definition of the violation of rights and legal interests in spite of positive sense of amended law rules. Usually this condition of rescission of the bargain or (and) application of the consequences of invalidity of bargains is interpreted as a definite property, economical or substantive interest in the claim. Such situation is unsatisfactory and inconsistent with neither theoretical nor practical significance of the institute of invalidity of bargains and its role in securing Russian civil commerce. A possible approach to the definition of the violation of rights and legal interests as a condition of rescission of the bargain or (and) application of the consequences of invalidity of bargains is proposed in this article. Taking into account a common economical nature of invalid bargains as commercial acts unprotected by the state and the essence of voidable bargains which are valid until their rescission, the author comes to conclusion about the need to define the concept of violation in its broad sense. It is proposed to consider the violation of rights and legal interests as a legal uncertainty in the dynamics of civil legal relations and accessory of property that results from the commission and (or) performance of an invalid bargain. Such uncertainty in the sphere in invalidity of bargains must have a negative influence on the subjects of civil commerce creating obstacles in the realization of their rights and legal interests which can be overcome with rescission of the bargain or (and) application of the consequences of invalidity of bargains. The emergence of this legal uncertainty (legal anomaly) in the sphere of any subject of civil commerce as a results of making or (and) performance of an invalid bargain entails the formation of a protective legal relationship for the protection of the rights and legal interests of such subjects. By analogy with other kinds of guarding legal relationship, the violators in this legal relation are both parties of invalid bargain in the case of the claim from other persons or for the benefit of the third party. In case of claim of one party, another party is considered a violator.

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