Genesis and current state of legal regulation of contractual relations in entrepreneurship

Abstract

The article examines the evolution of legal regulation of contractual relations in entrepreneurial activity in Ukraine from the Soviet model of planned commercial contract to the modern market paradigm. The transformation of contractual instruments during the transitional period of 1991–2003 is analysed, when the formal abandonment of directive planning was not accompanied by adequate private law provisions, while the Civil Code of the Ukrainian SSR, Soviet-era Supply Regulations, and standard-form contracts remained in force. The consequences of the dualistic codification of 2003 (the simultaneous adoption of the Civil Code and the Commercial Code of Ukraine) are investigated, which generated systemic conflicts in the regulation of entrepreneurial contracts, in particular the competition between Article 188 of the Commercial Code and Articles 651–654 of the Civil Code regarding the procedure for amending and terminating contracts, as well as parallel regimes of invalidity of transactions. The impact of deregulation reforms of 2014–2024 and special laws on public procurement, electronic commerce, public-private partnerships, and corporate agreements on the expansion of contractual freedom and the formation of a dispositive-oriented regulatory environment is revealed. The influence of martial law of 2022–2024 on the contractual environment is analysed, in particular the Supreme Court practice on force majeure clauses, moratoria on performance of obligations, and mechanisms for amending and terminating contracts under force majeure conditions. The prospects of monistic recodification of private law with the updated Book 5 of the Civil Code at its centre, oriented towards the UNIDROIT Principles and DCFR, are substantiated. It is established that the main tension throughout the thirty-year evolution was the conflict between predictability and situational expediency of contractual regulation. It is proven that Ukraine effectively operates within a monistic logic at the level of judicial practice and special legislation, while the codification level merely catches up with this reality, and the abolition of the Commercial Code represents a normative acknowledgement of the existing state of affairs.