Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
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Vol.41 N° 79
Octubre
Diciembre
2023
Recibido el 01/08/23 Aceptado el 16/09/23
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 41, Nº 79 (2023), 113-127
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Requirements for Contract’s Form
According to Ukrainian and EU Laws
DOI: https://doi.org/10.46398/cuestpol.4179.08
Olena Сherniak *
Sergіі Panchenko **
Mykola Stefanchuk ***
Alla Kiryk ****
Tetiana Fedorenko *****
Abstract
The purpose of the article was to determine the peculiarities of
the legal norms concerning the form of the contract in the law of
the European Union EU. For this purpose, the following methods
were used: special-legal, analysis and synthesis, inductive,
systemic, generalization, forecasting and comparative. The
authors insist on the need to rethink conventional law through
the prism of European contract law. Attention was paid to the
desirability of refusing to regulate issues related to the form of the contract,
without dividing into certain requirements for the form of contracts.
It is emphasized that “soft law” acts themselves require in some cases a
certain formality (for example, a written form on a durable medium) for
a specic legal act, and national laws often require a written form or other
formalities. Especially with regard to specic objects, in particular land
and other real estate. Unilateral gift obligations and consumer contracts
are cited as examples of restrictions to the requirements for the free choice
of the form of the contract. It concludes by arguing for the importance of
rethinking national approaches to understanding contract form and its
legal simplication.
*PhD., in Law, professor at the Department of International and European law Leonid Yuzkov
Khmelnytskyi, University of Management and Law, Khmelnytskyi, Ukraine. ORCID ID: https://orcid.
org/0000-0001-5104-6648. Email: chernyack.lena@gmail.com
** PhD., in Law, Law Oce “Panchenko & Partners”, Mykolaiv, Ukraine. ORCID ID: https://orcid.
org/0000-0001-8257-0661. Email: sergey.panchenko@ukr.net
*** Doctor in Law, Professor, leading researcher scientist of the Department of Private Law Problems,
Academician F.H. Burchak Scientic Research Institute of Private Law and Entrepreneurship, National
Academy of Legal Sciences of Ukraine, Kyiv, Ukraine. ORCID ID: http://orcid.org/0000-0002-2983-
2770. Email: stefanchuk@gmail.com
**** PhD., in Law, Senior Lecturer at the Department of International and European law Leonid Yuzkov
Khmelnytskyi University of Management and Law, Khmelnytskyi, Ukraine. ORCID ID: https://orcid.
org/0000-0002-0729-5986. Email: alla_kiruk@univer.km.ua
***** PhD., in Law, associate professor, director of the Institute of Law and Public Relations of the Open
International University of Human Development “Ukraine”, Kyiv, Ukraine. ORCID ID: https://orcid.
org/0000-0002-3447-9078. Email: vixen@ukr.net
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Olena Сherniak, Sergіі Panchenko, Mykola Stefanchuk y Alla Kiryk
Requirements for Contract’s Form According to Ukrainian and EU Laws
Keywords: conventional law; recodication; form of contract; adequacy
of legislation; private law.
Requisitos para la forma del contrato de acuerdo con
las leyes de Ucrania y la Unión Europea
Resumen
El objeto del artículo fue determinar las peculiaridades de las normas
jurídicas relativas a la forma del contrato en el derecho de la Unión Europea
UE. Para este n se emplearon los métodos: especial-jurídico, análisis y
síntesis, inductivo, sistémico, generalización, previsión y comparado. Los
autores insisten en la necesidad de repensar el derecho convencional a
través del prisma del derecho contractual europeo. Se presto atención a la
conveniencia de negarse a la regulación de cuestiones relacionadas con la
forma del contrato, sin dividir en ciertos requisitos para la forma de los
contratos. Se enfatiza que los propios actos de “derecho indicativo” requieren
en algunos casos una cierta formalidad (por ejemplo, una forma escrita en
un soporte duradero) para un acto jurídico especíco, y las leyes nacionales
a menudo requieren una forma escrita u otras formalidades. Especialmente
en lo que respecta a objetos especícos, en particular, terrenos y otros
bienes inmuebles. Se citan las obligaciones de donación unilateral y los
contratos celebrados con los consumidores como ejemplos de restricciones
a los requisitos para la libre elección de la forma del contrato. Se concluye
argumentando la importancia de repensar los enfoques nacionales para
comprender la forma del contrato y su simplicación jurídica.
Palabras clave: derecho convencional; recodicación; forma de
contrato; adecuación de la legislación; derecho privado.
Introduction
Despite the long history of development and legal traditions of domestic
private law, one should admit the dynamism of historical experience of
legal regulation. Modern tendencies of Europeanization of Ukrainian
private law, in particular conventional law, require constant rethinking and
clarication. Such a need was actualized with the granting to Ukraine of
the status of a candidate country for joining the EU and the deepening of
cooperation within the framework of economic relations, the strengthening
of requirements for the national legal system in the context of the
rapprochement of the legal systems of Ukraine and the EU.
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We must admit the fact of revolutionary amendments in the Ukrainian
private legal system after the adoption of the Civil Code of Ukraine in 2003.
The new idea of civil legislation required changes in the way of thinking,
understanding the role of law and justice in society. However, such
changes were based on close cooperation with the countries of the post-
Soviet space and therefore did not fully take into account the tradition and
democratization of conventional law, which already prevailed in European
countries at that time.
The content of the Civil Code of Ukraine of 2003 mostly did not include
the norms of conventional law recognized in the EU even taking into
account that the Partnership and Cooperation Agreement with the EU was
concluded back in 1994 and despite the fact that the developers considered
the traditions of German and French civil legislation.
As a result, there is the fact of the Civil Code of Ukraine, which, on the
one hand, determined the basic principles of private law regulation, but
could not deviate from the legal tradition that placed relations between
subjects of contractual relations on a certain regulated level (especially with
regard to such subjects as legal entities under private and public law).
Considering the above, the national conventional law within the modern
European integration vector should be reformed. The issues of the contract’s
form are of particular importance, since modern private law gives the form
an important meaning for establishing the actual fact of the obligation
itself, as well as its validity.
Part of the legal community still supports the importance and value of a
written contract’s form, especially in relation to b2b contracts. However, it is
necessary to state that the coordination of national policy and EU standards
on the form of the contract is the basis for the harmonization of conventional
law. The current legislation of the EU Member States, the EU in the whole,
and Ukraine, contains a sucient number of dierences regarding the
regulatory requirements for the contract’s form (Harmonization of contract
law, 2015: Article 142).
It is worth noting that the Concept of Recodication of Civil Legislation
of Ukraine began to be implemented at the level of legislation only in 2020.
The authors of the Concept of Updating the Civil Code of Ukraine claim
that the need for recodication stems from the logic of further systematic
transformation of society, including the formation of a real and eective
market economy as an integral component of civil society and the European
integration orientation of all components of society (The concept of
Updating the Civil Code of Ukraine, 2020: Article 5).
The study of the requirements for the contract’s form becomes relevant
also by the reason of spreading the practice of concluding electronic
transactions and the need to simplify the procedure for concluding the
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Olena Сherniak, Sergіі Panchenko, Mykola Stefanchuk y Alla Kiryk
Requirements for Contract’s Form According to Ukrainian and EU Laws
contract itself due to the lack of time, the impracticality of using the
written form of contracts for counterparties who have many years of
eective business practice (especially in case when we are talking about
international counterparties under the contract), including the currently
available admonition from the national legislation regarding the form of
purchase and sale agreements in accordance with the content of the United
Nations Convention on Contracts for the International Sale of Goods.
The purpose of the article is to determine the peculiarities of legal norms
regarding the contract’s form in the law of the EU and certain EU countries,
the problems of legalization of strict requirements within the civil legislation
of Ukraine in regard to the contract’s form and the consequences of its non-
compliance through the prism of bringing the legislation of Ukraine into
the compliance with the EU legislation. To reveal the purpose is possible
by solving the following objectives: to provide general characteristics of the
contract’s form under the law of the EU and EU Member States, to analyze
the current situation of Ukrainian civil legislation regulating the issue of the
contract’s form, to determine the development directions for the national
legislation in this area.
1. Methodology of the study
The article is based on the study of international legal acts, acts of the
European Union and Ukraine in terms of setting requirements in regard to
the contract’s form. The solution of the set objectives was made possible due
to the processing of materials published in the legal literature by national
researchers and comments on the “soft law” acts of the EU. The principles
of the research were regulatory legal acts of Ukraine, of certain European
countries, the “soft law” of the EU and international legal acts in the sphere
of regulating contractual relations.
Solution of the set objectives is possible by using the system of general
scientic and special methods of scientic cognition by the authors of the
article. Thus, the use of the dialectical method made it possible to reveal
understanding of the contract’s form and approaches to its norming.
The methods of analysis and synthesis contributed to reveal the current
situation of civil regulation of the contract’s form under the legislation of
Ukraine and the EU, to identify the archaic nature of the national legal
system and the need for its modernization.
The axiological method assisted to reveal the meaning of the contract’s
form for its validity. The formal and logical method made it possible to
identify the system of building directions for improving the civil legislation
of Ukraine in the researched area.
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2. Analysis of recent research
The contract’s form has repeatedly become the subject matter of domestic
and foreign research. The article by Maryna Velikanova “Theoretical issues
of concluding civil law contracts” should be the focus of attention among
the modern scientic works on the specied issue, which denes the general
procedure for concluding civil contracts, methods of their conclusion, as
well as considers the forms of civil contracts (Velikanova, 2011).
The scientic achievements of the scientist were used by the authors of
this research to establish specic features of written documents that conrm
the written form of the contract or are accompanying documents for the
execution of the contract. Serhii Tenkov in his scientic article dened the
specics of the written form of the contract, the moment when the contract
becomes eective, and outlined the types of documents that can conrm
the fact of the written form of the contract (Tenkov, 2004).
The authors of this publication also used the denition of the written
form of the contract, which was oered by Anna Chuchkovska within her
dissertation research “Legal regulation of business contracts made through
telecommunication networks” (Chuchkovska, 2004, 35). One of the
authors of this article (Cherniak Olena) also repeatedly pointed out in other
publications the need to rethink the national system of legal regulation of
the contract’s form according to the European legal tradition (Dyminska,
2016; Cherniak and Abrosimov, 2020). The authors of the article also agree
with the conclusions made in the publication by Iryna Davydova regarding
the importance of regulating electronic contracts, the role of written and
electronic forms of contracts (Davydova, 2020).
Analysis of scientic research, as well as direct legal regulation regarding
the form of contracts, emphasizes the constant interest of scholars in this
problematic. This provision is due to the fact that unequal requirements
for the contract’s form within the Ukrainian legal system and in the EU
may suspend or complicate commercial and other relations under various
contracts, when its participants are residents of dierent countries. The
current domestic international private law follows the path of mandatory
written form for certain types of contracts, since it follows the United
Nations Convention on Contracts for the International Sale of Goods.
3. Results and discussion
3.1. Requirements for the contract’s form within the law of the
EU and certain European countries
Conventional law is a dynamic legal institution. Therefore, taking into
account the expansion of the scope of EU law to an increasing number of
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Olena Сherniak, Sergіі Panchenko, Mykola Stefanchuk y Alla Kiryk
Requirements for Contract’s Form According to Ukrainian and EU Laws
national legal systems, partial regulation in this area, which provides for
the possibility of establishing additional contractual mechanisms within
certain countries, is insucient in our opinion. However, it should be noted
that these warnings were not an obstacle to systematic work within the EU
on the creation of informal unications or acts of harmonization in the eld
of conventional law.
It is also possible to state the fact that the work in this direction has
been suspended for the last few years. It can be explained by the EU’s
reluctance to legalize acts oered by various working groups. For example,
we can name the Principles of European Contract Law (PECL) (1995-2002),
Acquis Principles (2005), Draft Common Framework of Reference (DCFR)
(2009), etc.
Thus, the idea of a single EU Civil Code has been relegated to the
background, taking into account the withdrawal of Great Britain from
the EU, the general “crisis” of the EU as a political and legal entity, the
denition of additional powers of the EU in regard to the possibility of
establishing unied rules within private and legal sphere in general and in
the sphere of conventional law, in particular. However, those norms of soft
law, which have already been developed for several decades, demonstrate
an example of maximum consideration of the legal systems of the EU
Member States, international acts, the development of contractual relations
between residents of dierent countries, including within electronic
communications.
The issue of the contract’s form within the framework of EU law is mostly
considered through the interpretation of the content of the principle of
freedom of contract. There are several aspects of freedom as a fundamental
principle in private law. As a rule, freedom of contract includes the freedom
to choose the counterparty, the content and form of the contract (Dyminska,
2016).
These are the main ideas dened in DCFR and PECL. Freedom of
contract has the same meaning in the UNIDROIT Principles. Besides, the
parties can agree on the possibility of changing the terms of the contract
in any form that will dier from the form of the contract itself, or its
termination at any time.
European legislation and “soft law” act currently make exceptions only for a
limited range of contracts (the written form is mandatory for the safety conditions
of using products for consumers, for gift contracts, etc.), which is due to the
need to protect the interests of the participants of such contracts (Cherniak and
Abrosimov, 2020: 50).
The complexity of the formation of European conventional law is
caused, rst of all, by the types of legal systems. Despite the fact that the
continental and general systems have common features regarding the
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conclusion of contracts through the traditional division into two expressions
of will (oer and acceptance), there are also dierences that, at rst glance,
seem impossible to correlate, which, among other things, concern the
very understanding of the contract and its form. As a result, a set of rules
balanced between dierent legal systems has been achieved within PECL
and DCFR, based on the United Nations Convention on Contracts for the
International Sale of Goods and the UNIDROIT Principles.
It does not mean that the contract’s formation rules set out in the PECL
and DCFR or their entire text have been created on the basis of combination
or dominance by selecting the most appropriate norms or rules that are
common to dierent legal systems.
On the contrary, the specied acts testify to their specic system, they are
built on the basis of ensuring commercial relations between the EU Member
States under the inuence of developed trade practices and on the basis
of providing own autonomous interpretation of the rules of international
trade in accordance with the principles of uniformity and good faith. The
principle of freedom of the form in this context provides that the oer and
acceptance do not necessarily have to be in writing.
Besides, the Art. 2:101 of the PECL reduces the formal requirements
for concluding a contract so that a contract is considered concluded, if the
parties intend to be legally bound and reach a sucient agreement without
any additional requirements. It means that a contract can be concluded
without the presence of formal and typical requirements of the common
law system (negotiation and custom). Such freedom is also in line with the
general principle embodied in the UNIDROIT Principles.
As a general rule, contracts regulated by the PECL and DCFR are not
subject to any form or evidentiary requirements to determine their validity,
eectiveness, or contractual intent. The contract can be concluded orally or
in writing, including by e-mail correspondence.
The Article 2:101 of the PECL makes it clear in this regard that a contract
should not be concluded or certied in writing, nor it is subject to any other
requirement regarding the form. The contract can be conrmed by any
means, including witnesses (Principles of European Contract Law, 1995-
2002). Accordingly, the Art. II.-1:106 of the DCFR indicates that a written
form is not required for concluding, drawing up or conrming a contract
or other legal act, if no requirements are established regarding the form
(Principles, Denitions and Model Rules of European Private Law. Draft
Common Frame of Reference, 2009).
In some cases, the model rules themselves require a certain formality
(e.g. written form or written form on a durable medium) for a particular
legal act, and national laws often require written form or other formalities,
especially in relation to particular objects, namely land plots and other
immovable property.
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Olena Сherniak, Sergіі Panchenko, Mykola Stefanchuk y Alla Kiryk
Requirements for Contract’s Form According to Ukrainian and EU Laws
However, according to the drafters, the indication of such exceptions
is not justied within the scope of the studied acts, since it follows from
the general principle that special provisions prevail over more general
ones (Draft Common Framework of Reference, 2009: Art. I.–1:102). Any
legislator using model rules is surely entitled to determine the obligation
of a written form or any other formality in relation to the conclusion of any
type of contract. However, it is important to establish the basic general rule,
according to which there are no formal requirements, unless otherwise
provided by law.
Thus, the principle of freedom of the form is widespread in the countries
of the continental system, although the common law systems have become
less strict with regard to the requirements for concluding contracts in
written. Writing or other formalities are not required for the validity of
the contract in most EU countries. It is applied, in particular, to France,
Denmark, Sweden, Finland, Greece, Germany, etc.
Polish legislation denes the principle of freedom of the contract,
according to which the contract must not be concluded or certied in
writing, and it is not subject to any other form requirement. However, there
are legal requirements regarding the form of certain contracts. Such forms
are: written, written with ocial certication of the date, written with
notarized signatures, notarial deed. The form requirement can perform
various legal functions, for example, to justify an action, to prove an action,
or to cause specic consequences of an action. Other restrictions may also
be established by the parties themselves (Act of 23 April 1964 Civil Code:
Article 76).
Certain reservations regarding the form are also found in the legislation
of EU countries. For example, if the defendant is not a commercial entity,
courts in France will not recognize proof of a contract for more than
€1,500 unless it is in writing. According to the Art. L.110-3 of the French
Commercial Code oral certication of contracts concluded between business
entities is allowed. Belgium and Luxembourg have similar rules regarding
the conrmation of the fact of the conclusion of the contract in relation to
its price (Act of 23 April 1964 Civil Code).
It is not admissible in the Italian legal system, with some exceptions,
to justify the conclusion of the contract by witnesses for contracts for a
specied amount. Besides, the Art. 2724 of the Civil Code of Italy provides
that witness evidence is admissible in all cases where there is prima facie
written evidence; if it was morally or materially impossible for the party
under the contract to provide any written evidence; when the contracting
party accidentally lost the documentary evidence (Italian Codice Civile,
1942).
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One of the cases, when a formal requirement regarding the form of the
contract may arise is certain unilateral donation obligations. A number of
legal systems establish formal requirements in such cases in order to provide
evidence that the promise was actually fullled (“the function of evidence”)
was to be legally binding and at the same time such regulation is aimed at
additional consideration by the parties regarding the conclusion of such
contracts and taking on obligations that may turn out to be burdensome or
impossible to fulll. Such norming is dened in the DCFR within the Book
IV, Part H related to donation.
The importance of the written form within the scope of the researched
acts is also established for contracts concluded with consumers (Draft
Common Framework of Reference, 2009: Art. IV.G.–4:104). At the same
time, the requirement for a mandatory written form for pre-contractual
relations has already been established for a part of such relations at the EU
level.
Similar requirements are contained in the European Contract Code
(ECC) in regard to the form of the contract. In particular, the Art. 34 of the
ECC indicates the consequences of non-compliance with the form of the
contract, which is provided by law. The Article 37 provides for the freedom
of the contract’s form, where the parties who previously agreed on a certain
form of the contract, if it does not contradict the norms of the national
legal system, must adhere to this form while concluding the contract. Some
norms of the ECC also dene the specics of the written form for contracts
regarding real estate, donations, etc.
However, the ECC is an act of private and legal unication, which
currently imposes the strictest requirements regarding the contract’s form
(compared to the DCFR norms). The principles of contractual freedom
regarding the contract’s form are not so comprehensively dened and
establish that the restrictions are subject to purchase and sale contracts
for real estate, donation contracts and other contracts that are of special
importance and the form of the contract contributes to the additional
protection of the interests of the parties under such contracts (European
Contract Code, 2003: Article 34).
However, the Art. 185 of the ECC indicates that there are no special
requirements regarding the form of the contract for the purchase and sale
of movable property. Accordingly, the Art. 37 of the ECC indicates the
obligation to conclude a contract in writing only if it has been agreed by
the parties. In other cases, the principle of freedom of the form is applied
to purchase and sale contracts, where it is not mandatory to express the
contract in a special form. Except for the cases and for the purposes that are
directly provided by the rules of the ECC. Essentially, identical requirements
are contained in the Art. 11 of the United Nations Convention on Contracts
for the International Sale of Goods and the Art. 6 of Common European
sales law (CESL).
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Requirements for Contract’s Form According to Ukrainian and EU Laws
However, there is a stipulation in the Article 36 of the ECC regarding
the purpose of proving the fact of the conclusion of the contract. This norm
establishes the requirements for the value of such a contract (5,000 euros)
or the legally established form of the act to conrm the conclusion of the
contract.
Thus, formal approaches in essence (with certain very narrow exceptions)
to determining the form of the contract are contained in the legislation of
most Member States in the sense that there are no general requirements
for a written or other form. However, the typical rules established by the
PECL and DCFR generally require formality in fewer specic cases than
many statutes. In our opinion, formal requirements can hinder the quality
of economic relations and can allow the parties to avoid obligations without
good reasons. Obviously, most systems have developed mechanisms to
limit unjustied deviations from the written form of the contract, but a
better approach is to direct such formal requirements to cases, when they
are really necessary, giving the priority and importance to the principles of
freedom and safety of the contract.
3.2. Problems of determining the contract’s form in the civil
legislation of Ukraine
Legal regulation of the contract’s form in the Ukrainian legal system
mainly consists in its established requirements and the consequences of
their violation. The task of the relevant requirements is the fact that they
should be able to more precisely record the relations of the counterparties,
remove all possible grounds for disputes in the future regarding the very
fact of concluding the contract and the content of its terms.
If there are additional requirements, contracts can be concluded only
in a certain form (forms). Strict legal regulation of the form of contracts is
undoubtedly of great importance both for the parties themselves and for the
entire civil turnover. The legal requirements in regard to the contract’s form
make it possible to more accurately and objectively record the relations of
the parties according to its terms, which is intended to facilitate the real
and proper execution of the contract in the future avoiding uncertainties
regarding certain terms of the contract and even the very fact of concluding
the contract.
Some legal norms provide a public nature to the act of recording a
contract. It is related to the state control over its execution for the benet of
third parties, assistance to the parties in clarifying the legal consequences
of their legal actions, as well as information to concerned parties about
concluded contracts.
However, it is worth talking about the tendency of expanding the freedom
of the form of contracts within the modern conditions of Ukraine, according
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to which minimal formal requirements are imposed on the parties while
forming their legal relations. The reason for the need of such an extension is
that any additional requirement in regard to the contract’s form objectively
leads to the complication and slowing down of the contract conclusion
procedure. Obviously, when it comes to the transfer of ownership of real
estate or other contracts complicated by the object or party, we will not
assert the expediency of simplifying the form of such a contract. Within the
scope of the research, we just stated the expediency of simplifying the form
of contracts with the participation of individuals and legal entities, which
by their nature can be conrmed by the cost, accompanying documents or
actions that indicate the fact of concluding and executing such a contract.
The main provisions on the contract’s form are contained in the Civil
Code of Ukraine dated from January 16, 2003 (Civil Code of Ukraine, 2003),
which is signicantly updated compared to the Civil Code of the Ukrainian
SSR of 1963 (Civil Code of the Ukrainian SSR, 1963). However, it did not
solve the existing problems, but laid the grounds for creating new ones.
Thus, the legislator removed the reference to the division of the written
form into simple and notarial from the special Article concerning the
form of the transaction, by indicating in Part 1 of the Art. 205 of the Civil
Code of Ukraine that “the transaction may be executed orally or in written
(electronic) form”.
Anna Chuchkovska notes that the written form of the contract is
a method of objectication of thoughts with the help of writing and
conventional signs on dierent carriers, the content of which is determined
by the mutual rights and obligations of the parties in the eld of economic
activity (Chuchkovska, 2004).
The requirements for the written form are established in the Art. 207 of
the Civil Code of Ukraine. At the same time, there are two methods of written
transactions: 1) recording the content of the transaction in one document;
2) recording the content of the transaction in several documents, letters,
telegrams exchanged between the parties.
We should agree with Serhii Tenkov that all documents accompanying
the contract are divided into two groups: 1) documents related to the fact
of concluding the contract, i.e. conrming its written form; 2) documents
related to the execution of already concluded agreement. In this regard, it is
necessary to distinguish between written (or electronic) documents, which
are themselves the written form of the contract, and documents that are
written evidence of the fact of the existence of the disputed contract in oral
form (Tenkov, 2004).
The main feature, which assists to assign certain documents to the rst
or second group is their ability to exist independently. Maryna Velykanova
explains, if a specic document mediates a certain operation arising from a
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Requirements for Contract’s Form According to Ukrainian and EU Laws
specic contract, in this case it will be the document of the second group. If
this document reects all the essential terms of the contract, it will be the
document of the rst group (Velikanova, 2011).
In order to consider some documents as a written form of the contract,
they must contain all the essential terms of such a contract and they should
conclude that the parties have agreed to those terms. In this context, we face
another outdated domestic concept of the essential terms of the contract,
which is inherent in national legal proceedings and is absent in European
acts.
Part 4 of the Art. 639 of the Civil Code of Ukraine titled “Form of
Contracts” contains provisions that regulate the issue of mandatory
notarization of a contract in cases when the parties have previously agreed
on such certication. Besides, Part 1 of the Art. 54 of the Law of Ukraine
“On Notary” still has a reference to “mandatory notarial form”. Such
inconsistency of the legislator led to a wide discussion among scholars and
practitioners regarding the existence of the division of the written form of
contracts into simple and notarial in the current legislation.
Besides, in accordance with Part 3 of the Art. 640 of the Civil Code of
Ukraine “A contract subject to notarial certication is concluded from the
date of such certication”.
Clarications and alterations to the Civil Code of Ukraine, which took
place in 2015 and are related to the use of information technologies while
preparing and concluding transactions, also attract attention, since the
practice analysis indicates noticeable shifts in the direction of simplifying
the conclusion of transactions.
In particular, it became possible to conclude contracts and execute other
transactions in electronic form, which provides for recording the terms of
the agreement not on paper, but with the help of electronic documents,
the familiarization of which must necessarily be accompanied by the use
of special equipment. Therefore, the electronic form of transactions arises,
which led to the introduction of amendments to the Articles 205 and 207 of
the Civil Code of Ukraine. The Law of Ukraine “On Electronic Commerce”
also introduced such concepts as “electronic trade”, “electronic transaction”,
“electronic contract”, etc.
However, it is necessary to talk not only about the electronic form
of the transaction, but about the formation of a new category, which is
a consequence of the formation of the informatization of society. This
possibility to perform transactions in electronic form without concluding
paper contracts, the presence of the parties during their conclusion, etc.
is only a “transitional” stage and provides the grounds (basis) for the
formation of transactions of a “new type” (so-called “smart” agreements,
which are more often denoted the term “smart contracts”).
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Iryna Davydova rightly points out:
Customary (traditional) transactions, as a result of the spread of information
technologies, are transformed into electronic transactions, smart contracts,
etc., which can be concluded by legal entities without personal contact, paper
texts of contracts, personal (handwritten) signatures, etc. It is a new phase of
the development, a turning point that should take place not only in the eld of
technical support for the possibility of concluding such transactions, but also in the
consciousness of every person (Davydova, 2020: 19).
According to the Concept of Recodication of Civil Legislation, it is
necessary to rethink the provisions on the forms of transactions, because
it is impossible to ignore the scientic and technical development that
contributed to the emergence of internet banking, smart contracts,
e-commerce, etc. In this aspect, attention will be paid to formulating
modern approaches to understanding and regulating the forms, which may
contain transactions. Given this, “it is suggested to pay attention to the
provisions on the written form and signature contained in the Articles I.-
1:106, I.-1:107; as well as on the calculation of terms (Art. I.-1:110) of Book
I “General Provisions” DCFR” (The Concept of Updating the Civil Code of
Ukraine, 2020: Articles 113-114).
Understanding the complexity of proving the fact of the contract’s
conclusion, as well as executive discipline, which takes place in Ukraine
in contrast to European law and the European contractual tradition, the
authors of this research insist that the requirements for the contract’s form
should be simplied in the sense that the parties independently have to
resolve the issue of such a form. Nowadays, those realities that exist in
Ukraine in regard to electronic digital signatures and electronic documents
circulation only indicate that it is dicult for the parties to certain contracts
having dierent jurisdictions or locations to conclude contracts quickly
and eciently and accordingly to fulll them taking into account the
requirements regarding the contract’s form.
Conclusions
The expansion of the sphere of private and legal contractual regulation
of social relations, including due to the increase in the role of the contract
as an important regulator of such relations, currently requires rethinking of
the concept of domestic conventional law. Such changes are also caused by
the Europeanization of domestic private law. The specied processes will
denitely be complex and long-term, taking into account the approaches
suggested at the EU level in regard to understanding the principles of
conventional law, the general principles of regulation related to the
denition of its form.
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Requirements for Contract’s Form According to Ukrainian and EU Laws
However, such changes are not so much a tribute to cooperation with the
EU, but an urgent need at the present time, because without large-scale and
in-depth work on the conventional law system, there will be the moment
when eective private legal cooperation of business and private individuals
with counterparties from other countries becomes impossible. In addition,
the number of opportunities and formations of written counterparts of
contracts, which is currently provided by the development of the Internet,
should only accelerate the formation and operation of the contractual
concept, and not slow it down due to the need to comply with formalized
written forms with the seals and other requirements.
Therefore, it is currently important to move away from the regulation
of issues related to the contract’s form, without dividing it into separate
requirements for the form of contracts for dierent types of participants in
civil relations.
It is also necessary to talk about changing the essence of contractual
relations considering the principles of maximum protection of the
contractual relationships participants from its non-fulllment or improper
fulllment, to the formation of such a legal concept and consciousness that
will adjust to contractual hygiene and responsibility, when the counterparty
concluding the contract directs all real opportunities for the fulllment
of own obligations, and not looking for options, how not to fulll such
contractual obligations.
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Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
