Контроль в предварительном договоре: проблема закрепления и реализации права

Abstract

Control within the framework of the preliminary contract is aimed at preventive identification of possible obstacles to the proper performance of the obligations assumed by the counterparty to the conclusion of the main transaction. Verification provides (inter alia) information certainty of commodity circulation participants, allowing minimizing the risks of non-performance or improper performance of future obligations. It is proposed, applying the law analogy, to provide a regulatory rule giving the party to the preliminary contract an opportunity to refuse to perform the contract in case of establishing (by the results of the control) that the obligation to conclude the main contract will not be performed by the counterparty within the time-frame. It seems that this rule will have a regulatory function, encouraging the parties to the preliminary contract to organize proper control so that, on the one hand, to ensure the proper exchange of information, on the other hand – to prevent unwarranted interference in the economic activities of the counterparty. In this case, the unreasonable refusal of a party to a preliminary contract to provide the counterparty with an opportunity to exercise control (to provide the necessary information, property for inspection) should be regarded as a lack of interest or even intentional obstruction of the preliminary contract purpose achievement. The recognition of such dishonest behavior of a person as evasion from entering into a basic civil-law relation allows us to talk about the possibility of application of operative measures of influence by a competent subject.