THE INSTITUTION OF REPRESENTATIONS REGARDING THE CONTRACT IN UKRAINIAN CIVIL LEGISLATION: THE GENESIS IN ENGLISH LAW AND THE CONSEQUENCES OF ADOPTION

Abstract

This article examines the essential characteristics of representations and warranties in English law. Attention is focused on the differences between representations and warranties, the consequences of misrepresentation and breaching warranties; the distinction between tortious and contractual liability for misrepresentation in terms of their impact on determining the amount of damages to be compensated; the differentiation of misrepresentation depending on the intent of the wrongdoer; the impact of the form of the wrongdoer’s fault on the remedy and the amount of compensation for misrepresentation; and the burden of proving fault.
Based on the discovered characteristics of English law, attention is given to the provisions of the Civil Code of Ukraine. It is argued that the current approach of Ukrainian private law does not incorporate those key aspects that reveal the specifics of the application of representations in English law and have been decisively established in common law. In this regard, it is argued that the legal framework governing representations regarding contract is sufficiently flexible, and the absence of excessive detail provides both prospects for the development of this legal institution to effectively protect individual rights during law enforcement and for the scientific study of those aspects not explicitly addressed in the law.
For illustrating the potential of national private law to resolve problematic issues arising from the introduction of a new institution with roots in English law into the national civil legislation, a controversial issue regarding the legal nature of representations is examined. Taking into account the moment and way of formalizing the representation, as well as its content, a differentiated approach is proposed to understanding of the legal nature of the representation, which may be classified as a pre-contractual transaction or an element of the content of contractual obligations.