GENERAL PROVISIONS ON OBLIGATIONS: AN OVERVIEW OF THE NOVELTIES OF THE DRAFT CIVIL CODE OF UKRAINE

Abstract

The article is devoted to the analysis of the novelties of the general provisions on obligations proposed in the Draft Civil Code of Ukraine, taking into account the current stage of private law recodification and the need to harmonize Ukrainian civil legislation with European approaches to the regulation of obligations. The paper emphasizes that the modernization of Book Five «Law of Obligations» has not only technical and legislative, but also conceptual significance, since it is aimed at developing a coherent, internally consistent and practically applicable system of general rules capable of governing different types of contractual and non-contractual obligations. It is argued that the restructuring of the section on general provisions on obligations, the expansion of its content and the detailed regulation of separate legal constructions demonstrate the intention to move from fragmented regulation to a more systematic model of the law of obligations.
The article outlines the main directions of the proposed changes concerning the concept, principles and types of obligations, the grounds for their emergence, pre-contractual relations, substitution of parties to an obligation, performance of obligations, security for performance, termination of obligations, and legal consequences of non-performance. Special attention is paid to the consolidation of good faith, honesty, cooperation, non-discrimination, protection of the weaker party, environmental protection and sustainable development as guiding principles for the conduct of parties to obligations. The article shows that the Draft Civil Code of Ukraine substantially broadens the classification of obligations by expressly distinguishing, in particular, alternative, facultative, cumulative, reciprocal, natural, divisible and indivisible obligations, as well as obligations of best efforts and obligations to achieve a specific result.
The article also characterizes new approaches to the regulation of assignment of claims, transfer of debt, subrogation, succession, performance of monetary and non-monetary obligations, the use of automated information systems, deposit, escrow and special regimes of performance. The importance of the updated provisions on security for the performance of obligations is highlighted, especially with regard to deposit and assignment of claims for security purposes. Attention is also drawn to the revised approach to breach of obligations through the use of the broader category of non-performance and the legal consequences of non-performance. It is concluded that the proposed provisions may enhance the predictability of civil circulation, provide greater flexibility for contractual practice, improve the quality of judicial application of law and bring Ukrainian law of obligations closer to leading models of modern European private law.