Polyakova, V.E. Consent to conclusion as a condition for validity of a preliminary contract: German and Russian experience

Abstract: The article contains analysis of legal approaches of Russia and Germany towards the issue of the need for approval of preliminary contract, providing for conclusion of the main contract, requiring consent (of organs of a legal entity, third parties, state and municipal bodies). It is noted that in Russia the range of deals requiring approval and necessary formulae is quite diverse. At the same time a preliminary contract is not directly included into the list of deals, which need to be approved. Both the doctrine and practice have ambiguous approaches towards application of requirements on approval for the main contract to a preliminary contract as well. At the same time the German scholars have attempted to find common rules for resolution of the relevant situation. Methodological basis for the article includes traditional scientific and specialized research methods – dialectic, formal logical, method of analysis, synthesis, induction, deduction, comparison. An important accent is made upon the comparative legal method. As a result of the study the author concludes that developments of the German doctrine are not alien to the Russian reality, and they may be extrapolated onto the Russian soil: application of requirement on approval of a deal to a preliminary contract is viable when provision of a permission is due to the social goals (such as protection of persons with limited legal capability). In other cases the requirement of approval of the preliminary deal is not reasonable.

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