The category of contract in Times of War and Peacetime

Abstract

The article is devoted to the analysis of issues related to the significance of civil contracts in wartime. The relevant issues are considered in the context of ensuring civil law and order in Ukraine and in the world, which was violated by the annexation of Crimea and the full-scale invasion of Ukraine by Russian troops on 24 February 2022. The author emphasises the importance of adapting the category of civil law contract, as one of the most important institutions of a democratic society, to the conditions of war (martial law), while ensuring that the private law nature of such contracts is preserved with regard for the public interest.
It is noted that civil contracts may be considered in different meanings, among which the most important are the understanding of civil contracts as a form of civil legislation and as the basis for civil rights and duties.
Firstly, a contract is a form of civil law which allows bridging the gaps in civil legislation.
Secondly, a contract as an agreement aimed at establishing, changing or terminating civil rights and duties is the basis for the emergence of civil legal relations, and thus, it directly regulates the conduct of the parties, determines the rights and duties of participants to social relations.
From this point of view, the distinction between private and public contracts provided for in Article 633 of the Civil Code of Ukraine is of great importance. This provision stipulates that a public contract is a contract in which one party – an entrepreneur – has undertaken to sell, perform work or provide services to anyone who applies to him. The public contracting regime is an exception to the general rule, it is opposite to the regime of «freedom of contractors», which most fully expresses the private property principles that form the basis of civil law.
As for the principles of contractual regulation in times of war (martial law), the most important novelty here should be a pragmatic interpretation of the principle of freedom of contract, which is one of the principles of civil law. It is proposed to amend the third paragraph of part one of Article 3 of the Civil Code of Ukraine «General Principles», by setting it out the following words: «under martial law, the principle of freedom of contract is implemented if it does not contradict the interests of society and does not threaten the defensive capability of the state».