Certain problems of legal regulation of the conclusion of the purchase and sale contract (on the basis of analysis of examples from judicial practice)

Abstract

The contract of purchase and sale is one of the most common contractual institutions. According to the Art. 655 of the Civil code of Ukraine, under the contract of purchase and sale one party (seller) transfers or undertakes to transfer property (goods) into property to other party (buyer), and the buyer accepts or undertakes to accept prop-erty (goods) and to pay for it a certain monetary amount. At the same time, according to the case law, no unified approaches have been developed to interpret the legal consequences of failure to reach agreement on all the essential terms of purchase and sales contracts and mechanisms to protect the interests of counterparties to such agreements. Examining the procedure for concluding a contract of purchase and sale, we can not ignore the problem of its «conclusion», «validity» and «non-conclusion». It should be noted that the Civil Code of Ukraine has not provided a legal definition of «failed contract» or «unconcluded contract». Instead, the Economic Code of Ukraine in the Part 8 of the Art. 181 has stipulated that in case the parties do not reach an agreement on all material terms, their contract will be considered unconcluded or failed. No less difficulties also arise in interpreting the contract of purchase and sale as invalid or not concluded if at least one of its parties denies the fact of signing. The approach according to which «in case of contesting the very fact of concluding a transaction, such a fact can be refuted by presenting a relevant conclusion on the inconsisten-cy in the motivating part of the court decision» – does not quite agree with Art. 55 of the Constitution of Ukraine and the principle of access to justice. For example, under the current approach in court practice, the plaintiff is not reimbursed for court costs (costs of paying court fees, legal aid costs, etc.). In any case, as of today, it is expedient to better address the relevant problems in order to provide a real opportunity for participants in civil traffic to effec-tively protect their rights and interests.