WAIVER OF CLAIM, WAIVER OF OBLIGATION AND WAIVER OF CONTRACT AMONG LEGAL FACTS

Abstract

The article analyzes the right-extinguishing mechanism of a waiver of claim in comparison with waiver of obligation and waiver of contract. Due to the system-like interdependence of the claim, which is a subjective right of the creditor, of the obligation itself and of the contract, a waiver of any of above phenomena will terminate the legal relationship. It is noted that a waiver should be classified both as a transaction and terminating legal fact. It is further pointed that the doctrinal vision of the sources of the right to waive a claim, an obligation and a contract, differs. The waiver of claim is deemed a way of exercising a subjective right, while the waiver of obligation and, to some extent, of contract are considered in the context of protecting the right being infringed. By waiving a claim, the creditor uses the authority contained in the claim itself, while the mechanism for waiving an obligation or contract is based on the exercise of the authority to defend, for which there is no consensus in the doctrine as to its belonging to the content of the relevant subjective right. In legal science, the right to defend is sometimes viewed as a way of self-defense of the right or as a measure of operational influence on the violator. It is indicated that this view does not cover cases of waiving a contract without its violation by the other party. The article provides a brief analysis of the concept of “secondary rights”, borrowed from German civil law doctrine, which explain the mechanism of unilateral termination of an obligation or contract. The difference between the concept of secondary rights and the concept of measures of operational influence or methods of self-defense is emphasized, since the latter characterize activities aimed at eliminating the consequences of a violation of the law, which determines their target orientation, while secondary rights justify the right of a person to unilaterally change a legal relationship, regardless of the reason. It is concluded that there is no single concept of the right to refuse, given the different theoretical vision of the source of such a right. However, it is noted that such a difference is rather epistemological in nature, based on the classification of subjective rights.