BASIC PRE-CONTRACTUAL LEGAL RELATIONSHIP: CURRENT STATE AND PROSPECTS OF SUBSTANTIATION

Abstract

The article provides a critical analysis of approaches to understanding the legal nature of pre-contractual relations. Particular attention is paid to the qualification of pre-contractual relations as a stage of development of a contractual obligation and recognition of the obligatory nature of pre-contractual legal relations which consider the existence of the duty of good faith.In this regard, the author examines the prospects for substantiation of the basic pre-contractual legal relationship in the light of the Draft Common Frame of Reference (Principles, Definitions and Model Rules of European Private Law). The peculiarities of the DCFR terminology, in particular, the understanding in Book III “Obligations and corresponding rights” of the term “obligation” as a subjective civil obligation to be fulfilled by the debtor in obligation as legal relationship are identified. The author identifies the obstacles to qualifying the duty to negotiate in good faith as an obligation in obligation as legal relationship. With a view to the prospects of updating civil law provisions in the course of recodification, the author identifies additional aspects of this issue based on the provisions of the Civil Code of Ukraine. The author draws attention to the specificity of the German legislative approach which provides for the emergence of an obligation based on the entry into negotiations for Ukrainian private law. Based on rules of the DCFR the author investigates the issue of whether it is possible to understand “duty” as a constitutive element for the basic pre-contractual legal relationship which is not an obligation. It is concluded that the existence of such duty within the legal relationship is not excluded. The possibility to substantiate the basic pre-contractual legal relationship based on the achievements of the national legal tradition relates to reference to the category of relative civil legal relations.