ПРИНЦИП "ЕСТОПЕЛЬ" ЧИ ДОКТРИНА VENIRE CONTRA FACTUM PROPRIUM: СПІВВІДНОШЕННЯ ТА ПРІОРИТЕТНІСТЬ

Abstract

This scholarly piece aims to analyze the cases of procedure and material estoppel doctrine application in Ukrainian legal practice, as well as to theoretically overthink the grounds (including legal) of this English common law of equity institute reception into Ukrainian law without proper statutory provisions. Methods. Theoretical provisions and conclusions made as the result of this research, as well as the validity of its results are based on the following methods. Dialectical method, being of the universal nature and covering the highest abstraction levels in methodology, provides possibility to achieve the main goal – creation of major streams and the relevant software (regulations) in creating the research algorithm. This research has applied the following principles: objectivity, generality, systemic character, unity, deduction and induction, as well as historism. Comparative and formal juridical methods provided possibility to analyze estoppel doctrine in English law, as well as its analogue in civil law states. General scientific methods of abstraction and modelling were also applied. Considering the object of the research, historic and legal, as well as systemic and structural and formal juridical methods were applied. Results. The paper covers the history of estoppel rule as the product of English law of equity, its characteristics, types and grounds for application. The cases of Ukrainian courts directly applying this doctrine, led to the conclusion on the absence of statutory regulation of this norm application, as well as incorrect approach to directly apply its English analogue. In order to counter the abuse of rights, the paper recommends to return to historically adopted doctrine venire contra factum proprium, considering the Western civil law tradition to view interaction as an agreement, and applying estoppel for cases which may not be viewed as an agreement. The paper stipulates that estoppel doctrine application requires its inclusion in relevant legislation. Conclusions. The implementation of English law institutes is an important step in enriching the instrument set of Ukrainian practice regarding the abuse of law. However, the implementation should be legislatively normed, be doctrinally grounded and should not evade historically set constructions capable to perform similar functions.