TALKS AND NEGOTIATIONS IN CYPRUS
Certain terms reverberate constantly around us for more than half a century and have become part and parcel of the vocabulary to which we are accustomed.
We often find them parochial or anecdotal, but still they bring to us an air of comfort and hope. Such is their power and utility, when we hear of ‘inter-communal talks’ or of ‘negotiations’ aiming at ‘a solution of the Cyprus problem’.
This article does not attempt to bring any more hope or hopelessness to a bleak state of affairs or ‘status quo’ but simply examines this issue from a different point of view.
We all seem to know very well what ‘talks’ and ‘negotiations’ are for us, and indeed we take them for granted. One little glimpse into this matter informs us that in reaching an agreement we pass through a number negotiation stages.
Let us start with the first stage. Here we have a preliminary stage. At this stage, there is no pro-contractual bond between the parties, but the parties are not completely alien to each other. They find themselves in a trust relationship.
In view of this relationship, a spirit of solidarity should prevail. The parties are bound to good faith behaviour between them. More specifically, in case of an offence during the negotiations known as ‘culpa in contrahendo’ the party causing damage is liable to rectify this damage. Pro-contractual responsibility is different from a binding proposal.
The Second stage: The preliminary stage comes to an end when a contract is made or when a preliminary agreement is reached.
First, by a preliminary agreement the parties undertake bi-laterally or unilaterally to make a future agreement containing a contract, which will be the final contract, either between them and/or between them and a third party.
Second, a preliminary agreement is different from an option.
The Third stage: The contractual point begins from the moment of reaching an agreement up to the moment of amortization of the contract.
The Fourth stage: The post-contractual stage comes last, in cases in which there are certain obligations between the parties emanating from the contract already implemented between them.
When negotiation is aiming to a compromise contract, as this has been admitted and declared repeatedly for the Cyprus problem, we must not forget that “by a compromise contract the parties dissolve by mutual concessions a dispute or uncertainty between them regarding a relationship governed by law.”
We should also not lose sight of the fact that compromise comprises rights the parties can dispose under ‘ius dispositivum’. Rights protected by public order rules are not liable to disposal as such. E.g. in the case of personality and property, we have absolute rights which everyone owes to recognize and to respect.
Even committing a suicide is not admissible, as life is an absolute right. After the legal abolition of servitude, resigning from the right of judicial protection, property and inheritance is not compatible with the notion of liberty.
Please see the enactment of the relevant law in Cyprus enforced as from 27 December 1879, Cap. 71.
Contract of Adhesion: In this type of contract the content of the contract as well as the terms provided therein do not emanate from liberal negotiations between the parties as equals. The terms of such a contract are set out in the form of general transaction terms unilaterally and beforehand in a stereotype text by the socially and economically stronger party, while the weaker party accepts or rejects in one word without having any margin to discuss or amend such terms.
In such cases, it is admitted that at least in theory the acceding party knows these terms at the decision making stage, when signing the contract, or paying for the ticket or coupon, as regards transport, theater and other services of similar nature.