Some Issues of the Expression of Will in the Contractual Subjective Civil Rights

Abstract

The article highlights the role of the expression of will concerning the subjective civil rights emergence in the course of the contract civil legal relations formation. The author focuses on the issue of concluding a contract by a court decision and analyzes the current trends in the practice of law enforcement in terms of contract engrossment. The article considers the appropriate legal scheming of contract from the standpoint of the principle of freedom of will and the free expression of will, including the law enforcement practice context of the highest courts in Ukraine. The author concludes that the mechanism of concluding agreements/contracts by a court decision, which reflects mainly the provisions of Commercial Code of Ukraine, can be applied at the level of Civil Code of Ukraine since it harmoniously fits into the legal protection system concerning the subjective civil rights and may positively influence their legal support level. The making a contract based on a court decision provides for the absence of will of one of the parties, which although looks like a departure from the generally accepted concept of free will as a necessary condition for the formation of civil law. But it is an effective way to protect subjective civil rights and legitimate interests of participants in pre-contractual relations. On the one side, the emergence of subjective civil rights of claim and their corresponding subjective civil obligations, which are part of the content of the contractual relationship, must meet the needs of the relevant subjects of civil law. Оn the other side, it should be taken into account that in specific circumstances, for example, in the presence of a preliminary agreement, if even the conclusion of the relevant basic civil contract may meet the needs of only one party, another party undertook to enter into such an agreement and it leaded to limiting her will. In the context of the above, we consider that the practice of consideration of the relevant categories of cases by commercial courts demonstrates the effectiveness of such a remedy as the making a contract based on a court decision.