The content of the principle of contractual security in accordance with DCFR and its implementation in national civil legislation

The principles have always operated a significant impact on determining directions and methods of legal regulation of civil relations. The principles such as freedom of contract or business, reasonableness, good faith and justice, judicial protection of civil rights and interests objectified in the current Civil Code of Ukraine among the general principles of civil law and norms dedicated to regulate certain types of civil relations, in particular, property relations and representation, business activity or responsibility for failure or improper performance of civil obligations.

However, there are principles that are particularly important for regulation of specific civil relations. Among these principles can be called a fundamental principle of security, which certainly is implemented in a variety of civil relations, but our attention we will stop at revealing the content of this principle in contractual relations.

Leading at present codified document in private law in Europe – DCFR - reveals at least five major components of the principle of contractual freedom (are showed in voluntary form without express quoting the text of this document): 1) the obligatory force of the contract; 2) duties of the parties dictated by contractual loyalty; 3) performing of the contractual obligations in accordance with the terms of the contract; 4) consideration of the situation by a third party under the contract; 5) approach that can be called "favouring the contract" [1, 56]. Additionally, it is stated commensurate with the importance of adequate remedies (in addition to enforcement of performance) for non-performance of the contractual obligations, as well as consideration and protection of reasonable reliance in situations not covered by the doctrine of contractual loyalty.

The principle of contractual security is revealed in this document by disclosure of the contents of many of its ingredients, including: respect and consideration of interests of a third party; exclusion the duty of performance in case of exceptional change of circumstances; reasonable choice between certainty and flexibility in contractual relations; clarify the conditions and the real intentions of inconsistent behavior of counterparty; limit the right to enforce performance should not apply in various cases in which literal performance is impossible or would be inappropriate; a wide range of creditor protection in contractual obligations in the presence of specific reservations and more.

However, concepts such as good faith and fair dealing removed from the content of the principle of contractual security because of their uncertainty. The reason of such approach is that in fact dangerous conditions can be created for a person who is obliged to act in accordance with with good faith and fair dealing, which are rather open-ended concepts, that are not always clearly understood in practice. Special content is proposed for the principle of cooperation, which provides that in a contract security the debtor and the creditor are obliged to co-operate with each other when and to the extent that this can reasonably be expected for the performance of the debtor’s obligation [1, 60].

Analyzing measure of implementation of these provisions in national civil law, particularly in the current Civil Code of Ukraine, we conclude that increasingly the main components of the principle of contractual security as they are defined in the DCFR, performed in the rules of the Civil Code of the overall implementation of the principles of civil rights and obligations, general provisions on obligations and contracts, and additionally duplicated or disclosed in the norms that regulate specific obligations, kinds and types of contracts. In particular, art. 13 CC provides that the civil rights a person shall perform within the limits granted by contract or acts of civil legislation. Not allowed an action to be committed with the intent to do harm to another person and abuse of the law in other forms. In art. 14 states that a person can not be compelled to activity which is optional for him. A person may be exempt from civil duty or its performance in cases established by contract or acts of civil legislation. Article 525 established the inadmissibility of unilateral refusal and termination, and in article 629 it is provided the binding force of contract. Article 652 provides guarantees for the parties in a significant change of circumstances, determines the order of change or termination of the contract in this case [2].

Herewith, the approach of national legislators and compilers of DCFR in understanding certain aspects of legal regulation of contractual relationships differentiate significantly. Thus, art. 628 of CC of Ukraine provides for the existence of so-called "essential terms" of the contract that is binding on the parties under civil legislation. In this case, the contract will be considered concluded from the moment the parties reach agreement on significant terms and others identified at their own discretion as mandatory terms. However, in comments to the principle of contractual security DCFR authors noted incorrectness of domestic legal orders in the approach to setting consequences of non-recognize the obligations between parties, if the contract is not agreed to its binding terms provided for by law, and if the parties actually entered and want to be in contractual relations. In this case, the principle of maintaining contractual relations (the approach of "favouring the contract") implies a broader mechanism for reaching an agreement in the contract when it is recognized and current on issues not covered by the parties.

Thus, offering various aspects of the content of the principle of contractual security and exposing them, authors of DCFR actually created a "global" scale principle which through its multilateral content is equally important for both creditor and debtor. We can conclude that if it adequate implementation by national civil laws realization of this principle will create conditions to prevent and minimize violations of the rights and interests of the parties through prevention of outdated requirements for regulation of contractual relations between the parties that are not stable and are constantly changing as required time and the development of economic relations.

References:

1. Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of reference (DCFR). Full Edition. Prepared by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group) / Ed. by Christian von Bar and Eric Clive. Vol. I - VI. Munich, 2009. – 4795 p. // http://ec.europa.eu/justice/contract/files/european-private-law_en.pdf

2. Цивільний кодекс України: Закон України від 16 січня 2003 року [Електронний ресурс] // Офіційний веб-сайт Верховної Ради України. – Режим доступу: http://zakon4.rada.gov.ua/laws/show/435-15

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