Open AccessFreedom of treaty and its limits: compliance of Ukrainian civil legislation with European approaches
Author(s) -
Marija V Mendzhul
Publication year - 2022
Publication title -
naukovij vìsnik užgorodsʹkogo nacìonalʹnogo unìversitetu. serìâ pravo
Language(s) - English
Resource type - Journals
eISSN - 2664-6153
pISSN - 2307-3322
DOI - 10.24144/2307-3322.2021.69.19
Subject(s) - freedom of contract , ukrainian , legislation , law , civil code , political science , civil law (civil law) , treaty , enforcement , exclusion clause , business , public law , contract management , marketing , philosophy , linguistics
The article presents the results of the analysis of the compliance of the civil legislation of Ukraine with the European approaches to guaranteeing the freedom of contract and its restrictions. The normative consolidation of freedom of contract in European countries (France, Germany, Slovakia, Poland, and Romania) has been studied. It was found that in European countries the freedom of contract is limited in order to maintain public order, good morals, protection of certain categories of contractors (consumers). In France, the current version of Article 1102 of the Civil Code stipulates that everyone is free to conclude a contract, choose contractors, determine the content and form of the contract, but within the limits established by law. It is established that in Germany the freedom of contract is limited by the requirements of the law, the prohibition of illegality, immorality, as well as the need to protect consumer rights.
An analysis of Slovakia's civil law found that the expansion of the substantive content of the principle of freedom of contract was influenced by the case law of the Constitutional Court. In Romania, as in Ukraine, a separate article is devoted to the freedom of contract and the disclosure of its content in the Civil Code. The compliance of the Ukrainian legislation on freedom of contract with the DCFR is analyzed.
The position of European scholars on the impact of the principle in dubio pro libertate on contractual freedom and its restrictions, as well as the views of domestic scholars on the principle of freedom of contract.
It is substantiated that in general both scientific positions and legislative provisions of the Central Committee of Ukraine on the formulation of freedom of contract correspond to the European approach to maximum freedom and application of only lawful and proportionate restrictions guaranteeing fairness and non-discrimination, protection of weaker counterparties (consumers) interests. It is proposed to understand the limits of freedom of contract provided by the CC or other act of civil legislation of Ukraine legal, reasonable, fair and proportionate framework that restricts the freedom of action of the parties to the contract to ensure the balance of public and private interests.