Accessority as an effect of functional derivativeness of civil legal relationship

In generally accepted understanding, the accessory obligation is the obligation, which exists only along with another obligation, the basic one. However, the question about the reasons due to which one obligation cannot exist without another is of great significance. A traditional doctrine of accessority cannot give the adequate answer to this question, despite obvious problems with the interpretation of a concept of accessority. It is necessary to solve the problem recognizing the fact that not only security obligations and not obligations in general have the property of accessority. Accessority is a cross-institutional concept. To ensure the identity of the concept "accessority" and its uniform application to various legal institutes, it is impossible to expand and alter it depending on the peculiarities of a definite legal construction. One of the problems of a modern concept "accesority" is an unjustified expansion of volume of the concept. Accessority as a civil category had a long way of its development. In Roman law, the accessory obligation was considered an obligation the existence of which was caused by the presence of the main obligation. Due to the characteristics of economic turnover in ancient society, the concept of the accessory obligation in Roman law cannot correspond fully to the requirements of modern society in the sphere of regulation of commodity-money relations. Therefore, to look for the truth taking into account only ancient texts is not the best thing. However, a genetic code of accessority will enable us to define its nature more precisely. The surviving sources of Roman law do not have signs of a deeply elaborated theory of accessority. The doctrine of accessority was created later, by glossators. However, the initial idea was rather simple and laconic. In Roman law accessority initially assumed a complementarity to the main obligation. Complementarity itself could mean only one thing. The translation of a well-known quote from Digest Ulpian (In omnibus speciebus liberationum etiam accessiones liberantur, puta adpromissores hypothecate pignora) means that termination of the main obligation terminates additional obligations. Thus, the initial idea of accessority was: there is no additional obligation in the absence of the main one. It means that accessority is a property of a unilateral effect. The additional obligation has no reverse influence on the main one.

Keywords

Authors

References