Regimes of dispositivity in the legal regulation of contractual relations
It has been concluded that there is a need for further differentiation of the dispositivity regimes in the regulation of contractual relations. The contractual relationship "entrepreneur - entrepreneur" requires the highest possible degree of discretionary provisions of the legislation gov...
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| Format: | Article |
| Language: | Ukrainian |
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Kharkiv National University of Internal Affairs
2023-07-01
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| Series: | Bulletin of Kharkiv National University of Internal Affairs |
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| Online Access: | http://visnyk.univd.edu.ua/index.php/VNUAF/article/view/582 |
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| author | Yu. I. Chalyі |
| author_facet | Yu. I. Chalyі |
| author_sort | Yu. I. Chalyі |
| collection | DOAJ |
| description | It has been concluded that there is a need for further differentiation of the dispositivity regimes in the regulation of contractual relations. The contractual relationship "entrepreneur - entrepreneur" requires the highest possible degree of discretionary provisions of the legislation governing these relations, but the freedom of contract in such relations may be limited based on the need to maintain public order, public morality, restrain monopoly, protect third parties from negative externalities arising from certain types of economic activity.
In the legal regulation of contractual relations between entrepreneurs and consumers, discretion should be applied to a relatively minimal extent. In this regard, the legislator imperatively determines the terms of contracts on which the parties must reach an agreement; regulates sample (exemplary, typical) contracts; imposes pre-contractual obligations on entrepreneurs to fully inform consumers about the properties of products offered for sale; establishes general prohibitions on unfair contractual terms; provides consumers with certain guarantees regarding the conclusion, amendment and termination of contracts, etc.
The regime of regulation of contractual relations involving individuals who are non-entrepreneurs occupies a middle position between the two above legal regimes and provides for: establishment of a relatively smaller number of legal forms of contracts that may be concluded by citizens; determination of conditions mandatory for the conclusion of contracts in the legislation; consolidation of a general prohibition on unfair contractual terms; establishment of a wider list of contracts subject to notarisation; introduction of judicial control over compliance by the parties with the requirements of the law regarding the validity of contracts, etc. Such a differentiated approach allows establishing the most equitable regime for regulating contractual relations.
The boundaries of these legal regimes are difficult to fix in legislation in a certain stable state, and must be constantly adjusted by law enforcement practice. |
| format | Article |
| id | doaj-art-211038fd91034702a703033e33075d02 |
| institution | Kabale University |
| issn | 1999-5717 2617-278X |
| language | Ukrainian |
| publishDate | 2023-07-01 |
| publisher | Kharkiv National University of Internal Affairs |
| record_format | Article |
| series | Bulletin of Kharkiv National University of Internal Affairs |
| spelling | doaj-art-211038fd91034702a703033e33075d022025-02-03T05:41:31ZukrKharkiv National University of Internal AffairsBulletin of Kharkiv National University of Internal Affairs1999-57172617-278X2023-07-011012 (Part 2)728310.32631/v.2023.2.38582Regimes of dispositivity in the legal regulation of contractual relationsYu. I. Chalyі0Kharkiv National University of Internal AffairsIt has been concluded that there is a need for further differentiation of the dispositivity regimes in the regulation of contractual relations. The contractual relationship "entrepreneur - entrepreneur" requires the highest possible degree of discretionary provisions of the legislation governing these relations, but the freedom of contract in such relations may be limited based on the need to maintain public order, public morality, restrain monopoly, protect third parties from negative externalities arising from certain types of economic activity. In the legal regulation of contractual relations between entrepreneurs and consumers, discretion should be applied to a relatively minimal extent. In this regard, the legislator imperatively determines the terms of contracts on which the parties must reach an agreement; regulates sample (exemplary, typical) contracts; imposes pre-contractual obligations on entrepreneurs to fully inform consumers about the properties of products offered for sale; establishes general prohibitions on unfair contractual terms; provides consumers with certain guarantees regarding the conclusion, amendment and termination of contracts, etc. The regime of regulation of contractual relations involving individuals who are non-entrepreneurs occupies a middle position between the two above legal regimes and provides for: establishment of a relatively smaller number of legal forms of contracts that may be concluded by citizens; determination of conditions mandatory for the conclusion of contracts in the legislation; consolidation of a general prohibition on unfair contractual terms; establishment of a wider list of contracts subject to notarisation; introduction of judicial control over compliance by the parties with the requirements of the law regarding the validity of contracts, etc. Such a differentiated approach allows establishing the most equitable regime for regulating contractual relations. The boundaries of these legal regimes are difficult to fix in legislation in a certain stable state, and must be constantly adjusted by law enforcement practice.http://visnyk.univd.edu.ua/index.php/VNUAF/article/view/582civil law contractregimes of dispositivity of contractual relationsdispositive rulesimperative rulesfreedom of contractrestriction of freedom of contract. |
| spellingShingle | Yu. I. Chalyі Regimes of dispositivity in the legal regulation of contractual relations Bulletin of Kharkiv National University of Internal Affairs civil law contract regimes of dispositivity of contractual relations dispositive rules imperative rules freedom of contract restriction of freedom of contract. |
| title | Regimes of dispositivity in the legal regulation of contractual relations |
| title_full | Regimes of dispositivity in the legal regulation of contractual relations |
| title_fullStr | Regimes of dispositivity in the legal regulation of contractual relations |
| title_full_unstemmed | Regimes of dispositivity in the legal regulation of contractual relations |
| title_short | Regimes of dispositivity in the legal regulation of contractual relations |
| title_sort | regimes of dispositivity in the legal regulation of contractual relations |
| topic | civil law contract regimes of dispositivity of contractual relations dispositive rules imperative rules freedom of contract restriction of freedom of contract. |
| url | http://visnyk.univd.edu.ua/index.php/VNUAF/article/view/582 |
| work_keys_str_mv | AT yuichalyí regimesofdispositivityinthelegalregulationofcontractualrelations |