The article examines separate theoretical and practical problems of concluding agreements at tenders (auctions). Despite the prevalence of auctions in business practice, the current legislation of Ukraine on tenders (auctions), including the procedure of concluding agreements upon the results of tenders, remains unstructured. Article 185 of the Commercial code of Ukraine and Article 650 of the Civil code of Ukraine contain general norms of reference nature under which the peculiarities of the conclusion of such agreements are determined by normative legal acts governing the activities of the relevant public tenders. At the same time, the legal regulation of tenders (auctions) in various spheres of social relations is becoming more differentiated and original.

In many cases documentation of results of the tenders and determination of the winner (acceptance of the best offer) and provision of sale and purchase agreement in a required written form as a single document do not coincide in time. As a result, legal conflicts may arise should one of the parties evade the conclusion of the agreement. The attention is drawn to the fact that, regardless of the statutory peculiarities of tendering, the moment of determining the winner of the tender should be considered as the moment of acceptance of his proposal. The purpose of the article is to substantiate the proper and effective remedy of the winner of the tender should the seller evade the conclusion of agreement upon the results of the tender.

 It is argued that the preparation of the tender minutes established in the normative acts governing the procedure of certain types of tendering is a legal fact, which is associated with the relevant legal consequences: upon the auction and determination of the winner a legal bond between the seller of the property and the winner is established in the form of the right of the winner to sign the sale and purchase agreement (provision of the required written form to the agreement) and the corresponding obligation of theseller of property/authorized person to conclude such an agreement. The article provides a theoretical justification for the possibility to conclude agreements upon the results of the tender in court at the suit of the winner of the tender. At the same time, attention is drawn to the fact that there are currently no legal grounds for forcing the winner of the tender to conclude the agreement. It is concluded that a proper and effective remedy of a violated right of the winner of the tender is to recognize the agreement concluded in the version proposed by the claimant because such a remedy is directly defined by law in Article 20 of the Commercial code of Ukraine, corresponds to the nature of the violation – evasion of the owner of the property/authorized person to conclude the agreement that is binding on him by law; fixation of the content of the agreement in the judicial disposition in the version proposed by the claimant provides it with the opportunity to exercise its rights under the agreement and demand from the other party a proper performance of its obligations; the court decision as an authoritative confirmation of the conclusion of the agreement by the state provides the buyer with the opportunity to protect its rights should those rights be not recognized by third parties (registration authorities, counterparties etc.).

Bibliography

Authored books

 1. Belianevych O, Hospodarskyi dohovir ta sposoby yoho ukladannia (Naukova dumka 2002) (in Ukrainian).

2. Chechina N, Izbrannye trudy po grazhdanskomu processu (Izdatel’skij dom S-Peterb gos un-ta 2004) (in Russian).

3. Dolhopolova L, Ukladennia dohovoriv na torhakh (Pravo 2014) (in Ukrainian).

4. Milash V, Perspektyvy modernizatsii dohovirnykh pravovidnosyn u sferi hospoda riuvannia (KhNUMH 2014) (in Ukrainian).

5. Novickij I, Lunc L, Obshhee uchenie ob objazatel’stve (Kurs sovetskogo grazhdanskogo prava, Jur lit 1950) (in Russian).

Edited books

6. Tsyvilnyi kodeks Ukrainy: naukovo-praktychnyi komentar. Za redaktsiieiu rozrobnykiv proektu Tsyvilnoho kodeksu Ukrainy (Istyna 2004) (in Ukrainian).

Theses

7. Belianevych O, ‘Hospodarskyi dohovir ta sposoby yoho ukladennia’ (dys kand yuryd nauk, 1999) (in Ukrainian).