FORM OF TRANSACTION AS A CONDITION FOR ITS VALIDITY IN THE CIVIL LAW OF UKRAINE

Abstract

The article is devoted to the study of the legislative approach to determining the form of a transaction as one of the general conditions for its validity in the civil law of Ukraine. The author establishes that the national legislative approach to the choice of the transaction form, as well as the relevant approaches of European countries, is based on the principle of freedom of transaction form, according to which subjects of civil legal relations are free to enter into transactions in the form they choose at their own discretion, except for the cases established by law. However, unlike European legal orders which do not contain any special rules on the execution of transactions in writing, Article 207 of the Civil Code of Ukraine sets out a number of requirements which determine the legal nature of the written form of transactions and the procedure for its application. The author emphasises the need to modernise the regulatory approaches to determining the form of transactions, which in the process of recodification of civil legislation should take into account the technical capabilities of modern means of communication between subjects of private law relations. The author analyses the exceptional cases when compliance with the written form of a transaction is qualified as a direct condition for its validity (forma ad solemnitatem).In particular, the author establishes that a defect in the form of a transaction which causes its invalidity may occur in the following cases: 1) in accordance with the law, failure to comply with the written form of a transaction entails its nullity; 2) the requirement for notarisation of a transaction is violated.The author suggests that this is not a manifestation of excessive formalism, but demonstrates the prudence of the legislator in terms of regulating legal relations which are characterised by an increased risk of abuse or relatively significant legal consequences. The author analyses the legal consequences of non-compliance with the legal requirement regarding the form of transactions. The author establishes that such a violation results in its nullity rather than contestability, and that under Part 2 of Article 215 of the Civil Code of Ukraine, no judicial recognition of such a transaction is required, since it is considered invalid ipso jure, i.e. by virtue of a direct provision of law. The author identifies the peculiarities of nullity as a legal consequence of non-compliance with the requirements to the form of a transaction.