| Abstract [eng] |
Institute of novation is not a new phenomenon, its beginning is associated with the Roman law. However, this institute is neither very popular nor widely applied. Research work attempts to reveal the reason for the unpopularity of novations by analyzing its concept, conditions of the application, separation from other legal institutions, legal consequences to obligatory relationship and to legal position of parties. By assessing positions and opinions of legal scholars and case law interpretations (not only on the scale of Lithuania but also foreign country wide), the research work analyze the peculiarities of the concept of novation, conditions of the application, qualificatory features. The debating questions of separating novation from debt cession and transfer institutes is raised and problematic interface with settlement agreement, court novation, debt recognition, modification of the obligation and contract amendment is revealed in the course of study. The importance, necessity and problem of inter novas personas (the change of party) as the element of novation is thoroughly examined in the context of foreign countries and history. A lot of attention is paid to thorough examination of conditions of application, it is attempted to precisely define its content and scope. Since Lithuanian courts often qualify novation in context of clear intention of the parties (animus novandi), in this work the importance of this condition analysis is emphasized. In the course of the study problematic questions of obligations nature definition, description of non essential elements of obligation, separation from other institutes criteria’s, several parties change by novation, novation agreement form, clear expression of novation, additional obligations expiration by novation features are being raised. Given the specificity of this institute we may state that it is not attractive to parties, that is why it is rarely applied. However, many legal aims that parties pursue can be implemented by novation, therefore law scholars and law practitioners should in joint effort promote promising trends of this institute. |
