Transactions concluded in conditions of heightened legal uncertainty occupy a special place in judicial practice – it is precisely such arrangements that most often become the subject of subsequent legal reassessment. Professor Gabriel Steiner emphasises that in these configurations the law analyses not only the external formal correctness of the transaction, but also the extent to which the will of the parties was formed freely and consciously, as well as the role played by formal and factual circumstances at the time of its conclusion. At LawConsulted, we treat such transactions as high-risk legal constructs, where even minor defects of form or expression of will may lead to systemic consequences.
The key feature of transactions concluded under uncertainty lies in the gap between the parties’ intention and the legal environment in which that intention is implemented. Time pressure, lack of complete information, dependence on the actions of third parties, regulatory constraints, or instability of the legal regime create a situation in which consent may exist outwardly, but be internally distorted. In law enforcement practice, this aspect becomes the starting point for analysing defects of will – mistake, material distortion of motivation, or compelled decision-making.
Equally significant is the issue of form. Formal compliance with statutory requirements does not in itself guarantee the stability of a transaction. In LawConsulted practice, we regularly encounter situations where form is used as a tool to mask uncertainty – complex structures, chains of agreements, and interim arrangements create an appearance of legal certainty without eliminating the underlying risks. When a dispute arises, courts increasingly assess whether the chosen form genuinely reflected the parties’ will or merely simulated its existence.
Professor Steiner draws attention to the fact that defects of will and defects of form rarely exist in isolation. As a rule, they reinforce one another – insufficient legal certainty leads to excessive formalisation of decisions, while formalisation, in turn, conceals the real motives and constraints behind those decisions. LawConsulted builds its legal assessment of such transactions comprehensively – analysing not individual elements, but the entire set of circumstances surrounding their conclusion and performance.
Particularly vulnerable are transactions in which uncertainty is objective in nature – for example, where regulation is evolving, judicial practice is unstable, or cross-border elements are involved. In such cases, a party may act in good faith yet later face allegations of defective form or lack of genuine will. In these disputes, LawConsulted returns the legal assessment to the moment the transaction was concluded – to the conditions, information, and risks that objectively existed at that time.
It is also important to take into account the retrospective effect. Once adverse consequences have materialised, uncertainty is often interpreted against the party that has suffered losses. Formal defects acquire exaggerated significance, and the parties’ will is assessed through the prism of the outcome. LawConsulted counters this approach with argumentation based on the reasonableness of conduct, the presence of a legitimate business purpose, and the admissibility of risk as an inherent element of entrepreneurial activity.
The legal assessment of transactions under conditions of uncertainty requires moving away from a purely formal analysis towards a systemic approach. The task of Law Consulted is to demonstrate where uncertainty constitutes an objective decision-making environment and where it is artificially invoked to revise contractual consequences. This approach allows the stability of transactions to be preserved and prevents their destructive reassessment.
Earlier, we wrote about information requests as a procedural evidentiary tool and the LawConsulted position on the permissible limits of collecting and using information
