Conditional civil transactions according to the provisions of Vietnamese civil law

Therefore, a contract with a condition for cancellation should apply the mechanism of a cancelled contract. In practice, determining the nature of the condition is not simple.

+ Requirements for contract conditions

The author studies two judgments No. 201 and 211 through Decision No. 12/2016/DS-GDT dated January 22, 2016 of the High People's Court in Ho Chi Minh City and Decision No. 45/2016/DS-GDT dated August 31, 2016 of the High People's Court in Da Nang. The author determines that the conditions agreed upon in a conditional contract must meet the following requirements: not contrary to social ethics, not violating prohibitions. In case these conditions are not met, the consequence of the conditional contract is invalid.

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*The textbook “Contract Law” by Associate Professor, Dr. Ngo Huy Cuong, in 2013, expressed the view that the term “conditional transaction” should not be used in the Civil Code.

*The book “Scientific Commentary on the Civil Code”, edited by Dr. Nguyen Minh Tuan, Justice Publishing House, 2016. General comments on conditional civil transactions in the 2015 Civil Code only mention the event as a condition that is a prediction of the possibility of occurrence but not certain to occur in the future. Therefore, the event is considered conditional must occur objectively. However, the book only generally evaluates the provisions related to conditional civil transactions without going into depth to analyze and evaluate any unreasonable content of the legal provisions.

*The book “ Scientific commentary on the 2015 Civil Code”, Associate Professor, Dr. Nguyen Van Cu and Associate Professor, Dr. Tran Thi Hue (co-editors), People's Police Publishing House, 2017. With the commentary on the provisions on conditional civil transactions in the 2015 Civil Code, the authors mainly focus on analyzing the determination of conditions applied in conditional civil transactions. The event that

The parties to a civil transaction agree that the phenomena, things, and events that arise in social life, when that event occurs, are the conditions for establishing or terminating a civil transaction. The authors believe that the events that the parties agree to as conditions for the transaction can anticipate natural phenomena, and can be based on certain events due to human behavior. This event must be placed in a certain time and space relationship. The authors assess that the provisions on conditional civil transactions in the 2015 Civil Code are objective provisions and consistent with transactional relationships in modern society.

1.2.2. Scientific articles

* Author Pham Cong Lac's article on " Comments on the draft Civil Code on conditional civil transactions", Journal of Law, No. 02/1995, page 52-

53. In this article, the author raises two issues. The first issue is related to determining:

(i) The concept of conditional civil transactions has eliminated transactions as unilateral conditional legal acts;

(ii) Redefining a conditional civil transaction as: “in case the conditions that give rise to, change or terminate a civil transaction are specified, when the conditions occur, the transaction arises, changes or terminates”;

(iii) Determine whether a conditional civil transaction creates, changes or terminates an obligation - a conditional obligation. Therefore, the provisions on the performance of conditional obligations must also be appropriate to such types of transactions.

(iv) It is necessary to further regulate the validity of conditional civil transactions and the behavior of beneficiaries when conditions occur.

(v) Civil transactions in general and conditional civil transactions in particular need to be regulated in more detail and must be shown in separate sections of the Civil Code.

However, researchers have focused on conditional civil transactions in the form of conditional civil contracts and conditional wills. The second issue is to mention conditional wills as unilateral conditional legal acts. The testator's rights include the right to set conditions for heirs or prescribe conditions for inheriting the inheritance. They can also prescribe the purpose of forcing heirs to use their inheritance. However, Vietnamese law has not yet prescribed this right for testators.

*Author Pham Cong Lac's article on " On conditions in conditional contracts" , Law Magazine, No. 01/1995, pages 29-32. In this article, the author has presented a number of viewpoints related to the concept of conditional contracts, classification of conditions and how to determine conditions in civil contracts. Specifically, the author believes that:

(i) Concept of conditional contracts: Conditional contracts are contracts in which the parties agree on one or more events as conditions, when that event occurs or does not occur, the contract is considered to arise or terminate.

(ii) Classification of conditions: A contract with events as arising conditions is a contract that has been concluded (has been formed) but is still "waiting" for new conditions to take effect and give rise to legal consequences. A contract with events as termination conditions is a contract that has been concluded, is effective, and has begun to be performed immediately after being concluded, but when the events as conditions occur (or do not occur), the parties suspend performance.

(iii) Determination of conditions: Events considered as conditions in contracts

Conditional contracts are events that occur after the contract has been entered into.

* Author Phung Trung Tap's article on " Modern Vietnamese inheritance law - some issues that need to be discussed" , State and Law Magazine, No. 07/2008, pages 26-32. In this article, the author presents his views on conditional wills, joint wills of spouses and succession. In particular, regarding the content related to conditional wills, the author affirms that it is necessary to add regulations on conditional wills and the validity of conditional wills to our country's inheritance law. The article has some comments:

(i) According to our country's inheritance law, there is no provision on conditional wills.

(ii) Legislators should regulate the validity of conditional wills, in order to overcome the shortcomings of current inheritance law in our country.

(iii) Conditional wills are expressed in the following elements: Subject of the will: The setting of conditions by the testator is understood as the right to self-determination of the will, similar to other rights of determination, which cannot be denied by law.

* Author Nguyen Nhu Bich's article on " Discussion on resolving disputes over conditional housing sale and purchase contracts " 2. Conditional contracts are a type of civil contract with its own characteristics, so the application of legal provisions to resolve disputes over conditional contracts in some cases is different from resolving disputes over other types of civil contracts. The author has some suggestions: Conditional contracts are not recognized

2 https://luatbinhtan.com/ban-ve-giai-quyet-tranh-chap-hop-dong-mua-ban-nha-o-co-dieu- kien.html

If the contract is not certified or certified by the competent People's Committee and has illegal and immoral purposes and contents, it cannot be concluded that the contract is invalid. Determining the event as a condition of the contract:

(+) Failure to perform makes the contract invalid and it must be determined that the party intentionally failing to perform the event that is a condition of the contract is the party at fault and unilaterally terminates the contract.

(+) Once performed, the contract naturally becomes effective and it must be determined that the party that does not continue to perform the contract as agreed is the party at fault for unilaterally terminating the contract.

* Author Nguyen Nhu Bich's article on " Discussing the validity of conditional contracts". People's Court Magazine, No. 19/2011, pages 12-20. In this article, the author gives his personal opinion on determining the validity of conditional contracts in general and conditional land use rights transfer contracts. Specifically, the author believes that:

(i) To determine the validity of a conditional contract, in addition to meeting all the conditions for the validity of the contract, it is also necessary to base on the legality of the event that is a condition of the contract.

(ii) Determining the legality of the event: If the event that is a condition of the contract is an illegal event, then in all cases, including cases where the contract has fully satisfied the conditions for the validity of the contract, the contract is still invalid at the time of signing; If the event that is a condition of the contract is a legal event, it is necessary to base on whether or not the contract fully satisfies the conditions for the validity of the contract to determine whether the contract is valid or invalid.

(iii) A conditional contract is a type of contract with the following characteristics:

Here: Only when the occurrence, change or termination of an event is a condition of the contract

The contract must be performed (become effective); To determine the validity of a contract, it is necessary to base it on both the validity of the contract and the legality of the event that is a condition of the contract.

(iv) Not in all cases, the validity of a conditional contract is determined at the time of contract conclusion (as with other contracts), but in some cases, determining the validity of a conditional contract at the time of contract conclusion is contrary to the provisions of the Civil Code. These are cases where, although at the time of contract conclusion, the parties violate the content or form of the contract, the event that is a condition of the contract is a legal event and when the event that is a condition of the contract occurs, the contract no longer violates the conditions in terms of content and form of the contract.

(v) In this case, it is impossible to determine that the contract is invalid from the moment of conclusion, because, according to the provisions of the Civil Code, when an event that is a condition of the contract occurs, the contract will become effective and the parties will be able to perform the contract, at which point the contract is already legal.

* Author Pham Van Tuyet's article on " Concerns of the Civil Code on transactions, contracts and conditional obligations ", Democracy and Law Magazine, October issue (235), page 20, 2011. Firstly, the author identifies a conditional TRANSACTION always accompanied by an event. The event is understood to be an objective event. The objectivity of this event is shown in that it has not occurred before the transaction is concluded, and at the same time, whether or not the event occurs is not due to the intentional influence of one party in the transaction or of a third party. Secondly, the author proposes a way to identify a conditional contract as a contract in which the parties have agreed

on a certain event so that when that event occurs it is a condition for the creation or termination of the contract.

1.2.3. Thesis, dissertation

* Master's thesis of Tran Thi Thu Quynh on " Conditional civil contracts" , Faculty of Law, Hanoi National University, 2011. The thesis has systematized the provisions of current law on conditional civil contracts. Also through analyzing conditional civil contracts in comparison with the laws of some countries regulating this issue to evaluate the effectiveness of the adjustment of Vietnamese law on conditional civil contracts. The thesis has put forward some contents:

(i) A conditional civil contract is also a form of expression of the parties' will when establishing it, aiming to create, change, or terminate a civil contract with the purpose of maintaining and promoting transactions in a stable state in the near future, within the framework prescribed by law (pages 18-19).

(ii) A conditional civil contract is a contract in which the performance of the civil rights and obligations of the parties depends on a certain objective event agreed upon by the parties that is not contrary to the law or social ethics and is a common, dialectical event that is not fanciful and determined within a certain period of time, a certain space and within a specific scope and is used as a condition to determine the arising, change or termination of the rights and obligations of the parties when the event agreed upon by the parties arises, changes or terminates.

* Master's thesis in law by Xaysavhan Pengboubpha on "Testamental inheritance in the Civil Code of the Lao PDR", Faculty of Law, Vietnam National University, Hanoi, 2012. The thesis focuses on studying theoretical issues on testamentary inheritance in Lao civil law. Comparison

Compare the provisions on testamentary inheritance in Lao civil law and the Civil Code of Vietnam. The thesis has put forward the following contents:

(i) Concept of will: The thesis affirms an important principle of Roman Law and inheritance is Semel heres, semper heres – the person designated as heir will be the heir forever. This means that the law only recognizes wills with arising conditions, not wills with suspended conditions. (page 5).

(ii) The concept of inheritance by will: Making a will is the best way for a person to express his or her own will in deciding on his or her own assets, which sometimes do not simply have economic value.... Therefore, the freedom to express one's will in a will is of particular importance. Of course, it is still freedom within the framework of the law (page 12).

* Doctoral thesis by Hoang Thi Loan: " Conditions for the validity of wills according to the provisions of Vietnamese civil law" , Hanoi Law University, 2019. The author believes that Vietnamese law does not have specific regulations on conditional wills, but this content is similar to the section on conditional donation contracts. However, the issue of conditions in the contract is only recorded and not really clear with this regulation. Therefore, in many cases it is difficult to explain and difficult to provide a thoroughly convincing solution. According to the author, a regulation should be used to eliminate cases where the will has conditions but the conditions lead to many conflicts or affect the interests of the heir or related entities. Specifically, the regulation can be similar to the restriction on the division of inheritance recorded in the Civil Code or record some independent provisions on this type of will as follows: