Fiksni formalni ugovori – raskid po sili zakona

Abstract

The issue of ex iure termination of fixed contracts becomes significant during the termination of fixed formal contracts. More precisely, this refers to bilateral contracts on real estate transactions which are made in the form of a notary public record or in the form of a notarized (solemnized) act. When concluding a contract for real estate transactions, if based on the entry in the records of concluded contracts, the notary determines that the same seller has already concluded a contract for the same real estate transactions, he is obliged to warn the contractors and to make this information visible in the contract in accordance with the rules which regulate the activity of notaries, and if the contracting parties oppose the introduction of a warning, the notary public is obliged to refuse to undertake the requested official action. Based on the positive legal regulation of termination of contracts in which the fulfillment of the deadline is an essential component of the contract, for the termination of the contract ex iure it is not necessary to meet any additional conditions, although in the records of legal transactions ex iure termination of the contracts is not legally recognized. The practical implication of introducing a warning that the seller has already concluded a real estate contract is contrary to the actual state of affairs, bearing in mind that such a contract would have ceased to exist by force of law. Furthermore, if the change of the situation in the register of concluded contracts would be conditioned by passing a determining judgment, such a judgment would risk losing its determining character, and thus the automatic termination of the contract in a specific case would be called into question. Therefore, the authors of this paper will try to address the above-mentioned issues from the aspect of the purposefulness of the rules on ex iure termination of fixed bilateral real estate contracts. Recognizing the protection of legal security and legal transactions as one of the main purposes of form in these contracts, and preventing multiple transactions of the same real estate and protection of interests of the contracting parties, the authors address the issue of preserving the purpose of form in these contracts in order to find de lege ferenda solutions.