a) Armenia / b) Constitutional Court / c) / d) 15-05-2007 / e) DCC-702 / f) On the compliance of sub-paragraph 1.3 of Article 231.2 of the Code of Civil Procedure and Article 300.2 of the Civil Code with the Constitution of the Republic of Armenia / g) Tegekagir (Official Gazette) / h) .
Keywords of the Systematic Thesaurus:
Fundamental Rights - Economic, social and cultural rights - Freedom of contract.
Keywords of the alphabetical index:
The system of mandatory notarisation of written contracts and the legislative requirement for state registration of rights originating from or which have been changed or interrupted by these contracts is an essential safeguard of the effective realisation and protection of individual rights. It also serves to ensure the fair fulfillment of obligations assumed by the parties to contracts and, as a result, the guaranteed stability of commercial relations.
Article 300.2 of the Civil Code provides:
"If one of the parties to a contract which requires ratification by a notary has fulfilled it, whether fully or in part, and the other party does not proceed with the notarisation, the Court may recognise the contract as being valid on the basis that one of the parties has fulfilled it".
The Applicant argued that it derives from the principle of the voluntary nature of the conclusion of contracts. A party to a contract may refuse to conclude it for any reason, and may refuse to have it notarised. In such situations, the law allows a court to recognise the contract as valid. This merits examination, in the light of the principles of equality and freedom of contract, contained in the Civil Code.
II. The Constitutional Court observed that the system of mandatory notarisation for certain written contracts and the legislative requirement for state registration of the rights originating from or which have been changed or interrupted by these contracts entailed an element of limitation on the realisation of civil rights. However, this was an essential safeguard of the effective realisation and protection of individual rights. It also served to ensure the fair fulfillment of obligations assumed by the parties to contracts and, as a result, the guaranteed stability of commercial relations.
In providing for the compulsory ratification by a notary of certain contracts, Parliament also set out the legal consequences of breaches of that provision. Under Article 300 of the Civil Code, if a party has fulfilled the contract, either fully or in part, but the other party does not have the contract notarised, that party's abstention entitles the other party to assert his or her constitutional right of judicial protection of violated rights. The Court does also have the discretion to recognise the contract as valid.
The Constitutional Court examined the content, practical application and relationship with other legislation of challenged Article 300 of the Civil Code. It held it to be a safeguard for opportunities for the implementation of legitimate measures regarding the conclusion and satisfaction of those contracts that require notarisation, as well as an opportunity for judicial protection of violated rights. The Constitutional Court pronounced it compatible with the Constitution.
Article 126.96.36.199 of the Code of Civil Procedure was also challenged. The Constitutional Court dismissed the case, as Decision CCD-690 on the issue of constitutionality of this provision was available.