DEFECTS (OF CONSENT) AS ONE OF THE CONDITIONS FOR THE CONSTITUTION USURIOUS CONTRACT

Abstract

In order to constitute a usurious contract the injured party must agree to unfavorable conditions and disproportionate prestations resulting from one of the defects of consent. The fact that the constitution of usurious contract also implies usurer’s lack of conscientiousness, the defects of consent may resemble threat (necessity, difficult financial situation, addiction) or fraud (lack of experience, recklessness). However, in view of the fact that usurious contract includes disproportion between the prestations of contracting sides, sanction is more strict in comparison to the cases where the contract is signed under the threat or as a result of a fraud (in that case the contract is voidable), and therefore the usurious contract is absolutely void with the possibility of its convalidation within five years from the time of signing the contract and at the request of the injured party. Court will meet the injured party’s requests whenever possible and therefore, when issuing a ruling, it will primarily take into consideration to what extent is public interest affected, considering as well the defects of consent of the injured party, i.e. to what extent the injured party’s will (consent) was voluntary at the time of signing the usurious contract.