The relationship between a preliminary agreement and a protocol of intentions: legal significance and judicial practice

The institute of preliminary contracts in modern legal practice is used quite widely, but at the same time the legal regulation of these legal relations is quite controversial, which gives rise to disputes regarding their conclusion, execution and termination. A contract is the main basis for the emergence of civil legal obligations. After all, a contract is an agreement between two or more parties aimed at establishing, changing or terminating civil rights and obligations. The principle of freedom of contract is one of the leading ones in binding relations and is one of the fundamental principles of the civil law principle of dispositivity, through which subjects of civil law acquire and exercise their civil rights freely, at their own discretion. In general, the content of freedom of contract is made up of conditions (clauses) determined at the discretion of the parties and agreed upon by them, and conditions that are mandatory in accordance with acts of civil law. Thus, the content of this principle is manifested, in particular, in the freedom of a person to freely enter into contractual relations; to independently choose a counterparty; independently determine the structure and type of contractual obligations. This principle also exists at all stages of the origin, change and termination of the contract, each of which has its own elements of freedom of contract. The concept of a contract is used in all branches of law, in particular in economic, labor, family, but it occupies a special place in the civil law of Ukraine. A preliminary contract is a contract in which the parties undertake, within a certain period (at a certain time), to conclude a contract in the future (the main contract) on the terms established by the preliminary contract. Therefore, this allows us to conclude that there are no restrictions on the type or subject of the contract that the parties may undertake to conclude in the future on the basis of the preliminary contract, therefore such an agreement can be reached by the parties regarding any contracts: on the alienation of immovable or movable property, an object of unfinished construction, future real estate, the provision of services, the performance of work, the provision of property for rent, etc. At the same time, it is necessary to clearly state that a preliminary contract is just that, since a contract of intent (protocol of intent, etc.), if it does not contain an expression of the parties’ will to grant it the force of a preliminary contract, is not considered a preliminary contract. Regarding the practical feasibility of concluding a preliminary contract of sale, this may occur when, for example, the main contract cannot be concluded immediately for any reason.