The article considers practical aspects of applying the definition of the element to regulation of combined contracts and contracts which are not combined but can be fallaciously qualified as such. It is determined fallacious to qualify a named contract as a combined contract when it is complicated by rights and obligations, which are provided for another named contract but are not essential for it. It is concluded that the typical qualifying mistake is to consider as a combined contract the document which involves two or more agreements as legal relationships. In the case of the contract determining rights and obligations in regard to civil defense facilities it is shown how the identification of the element through the essential rights and obligations for any named contract helps to solve the problems of using combined contracts. It is proposed to refrain from absolutization of the concept of essential contract`s performance when distinguishing between unnamed contracts and combined contracts in so far as agreement combining the elements of various named contracts sometimes can be qualified as unnamed contract. It is found that in addition to a composition of basic elements of contract it is necessary to take into account the constancy of the composition from one contract to another, which becomes an indicator of the unique legal purpose of such contracts. It is concluded that the example of the combined contract with the unique legal purpose is a distribution agreement that has gone from contract with random set of elements to unnamed contract characterized by a stable combination of elements and the legal purpose that is unique to this contract.

combined contract, unnamed contract, element of combined contract, essential performance

Rainikov Artem Sergeevich – Candidate of Juridical Sciences, Associate Professor of the Department of Civil law and Process, Institute of Justice, Baikal State University (11, Lenin st., Irkutsk, 664003, Russian Federation); advocate, Managing Partner of Raynikov, Andreev and Partners Law Office (68B, Gagarin blvd, Irkutsk, 664025, Russian Federation), ORCID: 0000-0001-5268-4588, ResearchID: CAF-0361-2022, e-mail: raynikov@gmail.com

Rainikov A. S. Prakticheskoe znachenie ponyatiya ob elemente smeshannogo dogovora [The practical significanceof the definition of the element of combined contracts] Sibirskij yuridicheskij vestnik [Siberian Law Herald]. 2022, no 4(99), pp. 51 - 55. DOI 10.26516/2071-8136.2022.4.51. (in Russian).

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1. Batler E.A. Nepoimenovannye dogovory: Nekotorye voprosy teorii i praktiki [Unidentified Contracts: Some questions of theory and practice. Cand. sci. diss.]. Moscow, 2006, 185 p. (in Russian)

2. Baturina A.A. Sistema i sistemnost’ smeshannykh dogovorov v grazhdanskom prave Rossii [The System and Systemic Nature of Mixed Contracts in Civil Law of Russia. Cand. sci. diss.]. Krasnoyarsk, 2019, 199 p. (in Russian)

3. Braginskii M.I. Obshchee uchenie o khozyaistvennykh dogovorakh. [General doctrine of economic contracts]. Minsk, Nauka i tekhnika Publ., 1967, 260 p. (in Russian)

4. Lamm T.V. Mnogostoronnie dogovory v grazhdanskom prave. Obshchie polozheniya [Multilateral contracts in civil law. General regulation]. Irkutsk. BGUEP Publ., 2002, 112 р. (in Russian)

5. Savel’ev A.I. Otdel’nye voprosy pravovogo regulirovaniya smeshannykh dogovorov v rossiiskom i zarubezhnom grazhdanskom prave [Particular questions of legal regulation of combined contracts in Russian and foreign civil law]. Vestnik Vysshego Arbitrazhnogo Suda Rossiiskoi Federatsii [Bulletin of the Supreme Arbitration Court of the Russian Federation], 2011, no. 8, pp. 6-39. (in Russian)

6. Romanets Y.V. Sistema dogovorov v grazhdanskom prave Rossii [The system of contracts in Russian civil law]. Moscow, Yurist Publ., 2004, 496 р. (in Russian)

7. Baldi R. Le droit de la distribution commerciale dans l’Europe communautaire. Bruxelles, Bruylant Publ., 1988, 292 р. (in French)

8. Karin Ribmann. Die kartellrechtliche Beurteilung der Markenabgrenzung. München, Herbert Utz Verlag GmbH, 2008, 266 р. (in Deutsche)