ABOUT THE CHOICE BETWEEN NEGATIVE AND CONTRACTUAL METHODS OF PROTECTION

Abstract

Abstract. The article is devoted to the problem of the ratio of property (negative claim) and obligation-legal (contractual) methods of protection. Its relevance is due primarily to the fact that modern judicial practice proceeds from the axiomatic rule that the statute of limitations does not apply to negative claims. During the research, the author establishes the criteria for distinguishing negative and contractual methods of protection, and also studies the possibility of filing a negative lawsuit in the case of persons in a contractual legal relationship (using the example of a lease agreement). The last question is analyzed both in the context of protection of the rights and interests of counterparties against third parties, and in relation to the protection of their rights and interests against each other. The author proceeds from the fact that the participants in the civil transaction are connected by absolute legal relations, in which the authorized person is opposed by an indefinite circle of passively obligated subjects. As a result of concluding a contract with a specific person, this connection is replaced by a relative one. At the same time, the owner remains in absolute legal relations with other (third) persons. Therefore, if a contractual legal relationship has arisen between the subjects of civil turnover regarding a certain good, the simultaneous existence of an absolute legal relationship between them, the object of which is the same good, is excluded. Therefore, the rights of the creditor under the contract in the event of its violation must be protected by the means provided for by the relevant legal norms and terms of the contract. It follows from this that when resolving a dispute between the parties to the contract, the rules providing for non-contractual means of protection are not applicable. The article makes a general conclusion that the scope of the negative claim cannot be so universal as to absorb including the contractual methods of protection, which are so diverse and cannot exist within the framework of a single claim.