REGARDING UPDATING OF THE CIVIL LAW NORMS ABOUT THE PRELIMINARY AGREEMENT

Abstract

The article examines some legislative provisions and analyzes the proposals expressed in the doctrine regarding changes in the legal regulation of the preliminary agreement with a purpose of resolving the question of their appropriateness in the process of recodification of the civil legislation of Ukraine. When determining the directions for updating Article 635 of the Civil Code of Ukraine, the potential possibility of repealing the Commercial Code of Ukraine, existing discrepancies between the provisions of the two codes, the judicial practice of the Supreme Court regarding the application of relevant legal norms and the experience of legislative regulation of certain foreign countries are considered. Proposals regarding changes to Article 635 of the Civil Code of Ukraine related to the subject of the preliminary agreement and possible determination of the preliminary agreement as unilateral are critically evaluated. Arguments are expressed in favor of clarifying the list of essential terms of the preliminary agreement and fixing the limitation of the term of the conclusion of the main agreement in the absence of a definition of the relevant term in the preliminary agreement. Considerable attention is paid to the issue of substantiation of the appropriateness of enshrining in Article 635 of the Civil Code of Ukraine the possibility of forcing the party to the preliminary agreement, who evades the conclusion of the main agreement, to enter into the main agreement in court. The introduction of such changes may be accompanied by changes to Articles 627 of the Civil Code of Ukraine. It is suggested that the existing description of the conditions for terminating the obligation to conclude the main agreement in Part 3 of Article 635 of the Civil Code of Ukraine, may prevent the protection of the bona fide party to the preliminary agreement by forcing party in bad faith to conclude the main agreement.