The issue of determining the form of a contract for the hire of a vehicle with a crew to which an individual entrepreneur is a party

Abstract

Problem setting. The legal status of an individual entrepreneur in its civil law dimension is quite controversial. On the one hand, an individual entrepreneur is a person; therefore, the peculiarities of their legal status are often defined only as a ‘superstructure’ over the legal status of an individual. On the other hand, the legislator has extended the regulation of those normative legal acts that govern the entrepreneurial activity of legal entities, whose peculiarities of legal status are determined by their differences from individuals, to the activities of individual entrepreneurs. One of the problems caused by an individual entrepreneur’s dual legal status is determining the form of the contract. This problem arises in cases where the contract requires notarisation, and the need for such certification is made dependent by law on its subject matter. This problem also arises in a contract for the hire (lease) of a vehicle with a crew, for which the law requires notarisation when the party to the contract is a natural person. Analyses of recent research and publications. The problem of determining the form of a contract for the hire (lease) of a vehicle with a crew, to which an individual entrepreneur is a party, has not yet been the subject of separate scientific research. Within the scope of their own research, scholars such as L.L. Tarasenko, I.A. Selivanova, V.M. Kossak, and N.S. Kuznetsova, Z.V. Romovska, and D.V. Bobrova have drawn attention to the problem caused by the dual legal status of individual entrepreneurs. At the same time, in the context of a contract for the hire (lease) of a vehicle with a crew, this issue has not yet been comprehensively studied. Although the issue raised has been the subject of some research and has been repeatedly reviewed by the courts, it not only retains its theoretical and practical significance, but also becomes even more acute after the Economic Code of Ukraine ceased to be in force. The purpose of the study. The key question is whether a contract for the hire (lease) of a vehicle with a crew requires notarisation if one of the parties is a sole trader. To resolve this issue, it is necessary to analyze the existing arguments for and against the need for such certification, rejecting irrelevant arguments and reviewing valid statements in the context of a new legal paradigm, where the Commercial Code of Ukraine no longer regulates the relations between parties. Finally, it is necessary to assess the need for notarization of a vehicle lease (rental) agreement from the perspective of expediency. A comprehensive analysis of the provisions of civil law concerning the status of participants in civil relations and the form of the agreement may provide a solution to these problems. Article’s main body. The article examines the problem of determining the form of a contract for the hire (lease) of a vehicle with a crew, to which an individual entrepreneur is a party. The author argues that the problem of determining the form of a contract for the hire (lease) of a vehicle with a crew, to which an individual entrepreneur is a party, cannot be effectively resolved other than by amending civil legislation. The question of the form of the contract, which is a purely formal issue, must be unambiguously determined by the legislator, and attempts by the courts to establish new rules for its resolution only emphasise this necessity. That is why the question of the expediency of notarising the contract in question comes to the fore. The author argues that the requirement for mandatory notarisation of a contract for the hire (lease) of a vehicle with a crew is irrational, since the expediency of its existence cannot be explained by any of the reasons usually associated with the need to comply with this particular form of contract. Conclusions and prospects for the development. In light of the foregoing analysis, it can be concluded that the requirement for the mandatory notarisation of a contract for the hire (lease) of a vehicle with a crew, where a natural person is a party, as set out in the Civil Code of Ukraine, lacks sufficient justification. This requirement cannot be substantiated by any of the traditional grounds that typically necessitate the use of notarisation as a special contractual form. To eliminate existing difficulties in law enforcement and ensure greater legal certainty, it is therefore proposed that the second part of Article 799 of the Civil Code of Ukraine be repealed. A written contract for the hire (lease) of a vehicle with a crew should be recognised as an adequate means of formalising the contractual relationship between the parties, irrespective of their legal status or category within civil relations. Furthermore, resolving the issue of the contractual form of a contract for the hire (lease) of a vehicle with a crew, involving an individual entrepreneur by abolishing mandatory notarisation creates new opportunities for re-evaluating established scholarly approaches to the study of contractual form in civil law.