Заобикалянето на закона като основание за нищожност на сделките
Passing by the Law as Nullity Ground of Legal Transactions

Summary/Abstract: The present article provides a detailed analysis of Art. 26, Para. 1, proposition 2 of the Obligations and Contracts Act and namely transactions’ nullity which comes as a result of passing by the law. In its essence passing by the law is described as combination of two or more valid transactions, from which at least one is a bilateral. The final legal result is unlawful and it is deliberately targeted by the parties. Main accent is put on the validity of the concluded transactions as an obligatory condition in order one to obtain result, that passes by the law. Moreover, it is said that in order to classify transactions, as ones that pass by the law, those transactions shall be neither null, nor in breach of the law. A distinction between passing by and breach of law as a separate and independent ground for nullity is made. The subjective element, namely the intention to achieve a forbidden by the law result, is outlined as the main difference. The author describes the different prerequisites for passing by the law as nullity ground, the most common transaction types used for passing by the law in practice, how many transactions are needed for the achievement of the targeted unlawful result, what are the peculiarities and negative conditions of the nullity ground. A distinction and comparison between passing by the law on one hand and simulative and fiduciary transactions on the other is made. Practice of the Supreme Court in favor of the stated thesis is cited in due course but some judgments are critically analyzed in the article.

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