THE INSTITUTE OF PRE-CONTRACTUAL LIABILITY IN THE LIGHT OF RECODIFICATION OF CIVIL LEGISLATION OF UKRAINE

Abstract

Among the main objectives of the Decree of the Cabinet of Ministers of Ukraine № 650 of 07.17.2019 “On the Formation of a Working Group on the Recodification (updating) of Civil Legislation of Ukraine” is a comprehensive analysis of the existing civil legislation of Ukraine and the definition of areas of private legal relations that need to be brought into line with world trends in the development of private law. In this regard, it becomes necessary to study the issues related to the possibility of fixing in the civil legislation of Ukraine for relations related to entrepreneurial activity rules on pre-contractual liability (in order to prevent unfair conduct at the stage preceding the conclusion of the contract). The definition of the legal nature of pre-contractual liability has a great practical importance, since the question depended on the extent of damages, which would vary between tort and contract liability. The purpose of this study is to create theoretical provisions that can serve as the basis for building the institution of pre-contractual liability in Ukrainian civil law. The article defines the content and criteria for good faith behavior at the stage of negotiations, characterizes the legal consequences of violation of the principle of good faith at the pre-contractual stage, taking into account the doctrinal and legislative provisions of foreign law and orders. It is proposed to establish at the legislative level certain criteria for good conduct, the identification of which is possible by comparing the categories of “good faith” and “bad faith”. The latter has similar features to the guilt that is disclosed in the legislation using the phrase “knew and (or) should have known”. It was concluded that since the principle of good faith in the conduct of negotiations applies both in the presence of obligations of the parties to conclude a contract (for example, in the case of signing a preliminary contract, the existence of an agreement of the parties to conduct good faith negotiations) and in the absence of such obligations, the criteria of good faith conduct must be observed even if the parties are not bound by any legal obligations to conclude a contract. It is emphasized that the content of the requirement for good faith negotiations can be disclosed in the Civil Code of Ukraine by fixing such basic duties of the parties to the negotiations as: consistent behavior, not to mislead another negotiator and cover a ban on unreasonable, sudden interruption of negotiations, when another participant reasonably believed that the contract would be concluded, provision (disclosure) of information necessary for the conclusion of the contract; non-disclosure of confidential information obtained as a result of negotiations.