CIVIL LAW AND PROCEDURE

The application of civil legislation norms to non-defined contracts inKazakhstan, Latvia and Germany

Abstract

An analysis of the general rules on obligations, transactions and contracts in Kazakhstan, Latvia and Germany showed that, along with general similarities, there are differences in the legal regulation of non-defined contracts. To a greater extent, this is due to a different approach in the legal assessment and differentiation of imperative and dispositive norms in the civil law of Kazakhstan, Latvia and Germany. In the civil law of Kazakhstan, the dominant approach is that a norm of civil law is recognized as imperative if the norm does not contain such a requisite as “unless otherwise provided by agreement of the parties”. Despite the fact that the Kazakh legislator singled out the concepts of dispositive and imperative norms in the general provisions on the contract, the formal methodology in their differentiation seems to be controversial. The article discusses legislative tools to fill the gap in the terms of the non-defined contracts. The author comes to the conclusion that the use of the analogy of the law in order to fill the contractual gap in the non-defined contract is allowed in the civil law of Kazakhstan, Latvia and Germany. However, this institution can be used only in exceptional cases.