Modus as an Accidental Element of Gratuitous Transactions: From Roman to Modern Civil Law

Introduction: the doctrine of transaction originates in Roman law; however, the fragmentary elaboration of theoretical material has led to the fact that of the three accidental elements of a transaction (accidentalia negotii): condition (conditio), term (dies), modus (modus), only the first two have received sufficient coverage in modern domestic civilistics. Modus as a theoretical concept has still not been researched sufficiently fully in Russian science; meanwhile, such a lacuna causes problems in law enforcement practice: in fact, modus is embedded in transactions, but the lack of its consistent legislative regulation does not allow, in particular, to draw an unambiguous conclusion about the nature of the revocation of a gift, which often leads to the judicial termination of already executed contracts. It is necessary to investigate in which gratuitous transactions modus is discernible, how it can be identified, and whether the modus of a gift is reflected in the current Civil Code of Russia. Purpose: substantiating the presence of modus in certain gratuitous transactions, identifying its essential features and differences from other accidental terms of a transaction. Objectives: to analyze the doctrine and norms of the current Russian legislation in order to identify modus, not named as such but reflected in law. Methods: 1) the general scientific ones: analysis, synthesis, induction, deduction, ascent from the abstract to the concrete, abstraction, analogy, comparison; 2) the specific scientific ones: systemic, formal-legal, comparative law, interpretative. Results: 1) it is argued that modus as an accidental element of a transaction is characteristic of gratuitous transactions (in particular, gift and testament); 2) it is established that modus is a prerequisite for the emergence of obligatory legal relations, and two types of modi (positive and negative) can be distinguished. Conclusions: 1) the concept of accidental terms of a transaction developed in Romanistics includes three main elements: condition (conditio), term (dies), modus (modus). At the same time, in modern domestic civilistics, within the framework of the doctrine of transaction, the first two of these accidental terms have been elaborated in sufficient detail, while the study of modus has still not been conducted systematically and deeply; 2) by establishing a modus in a transaction, the donor or testator imposes on the donee or legatee an obligation to use the property in whole or in part for specified purposes or to perform other actions, which will result in a decrease in the value of the property transferred under the gratuitous transaction; 3) the norms of current civil legislation have created the possibility of including modus in gratuitous transactions of two types: transactions inter vivos (between the living) – and then it is a gift, and transactions mortis causa (in case of death) – it is about inheritance (namely, legacy and testamentary charge). A conclusion is made about the possibility of modus existing in two modes: positive (active) (when the obligor’s duty involves active actions) and negative (passive) (when the obligor’s duty involves the need to refrain from certain behavior). Active modus predominantly occurs in inheritance relations (legacy, testamentary charge); passive modus in Russian civil law is constructed by the norms of Article 528 of the Civil Code of the Russian Federation on the revocation of a gift.