The contract terms changing as the way of civil rights and interests protection is considered in the dissertation. It is proposed to consider the contract as a legal fact of the private law sphere, which serves as the basis not only for the emergence of contractual obligations, but also for their modification and termination. The role of the civil-law contract is not limited only to the fact that it affects the dynamics of civil legal relations (generates, modifies or terminates them), but determines the specific rights and obligations content of participants in the contractual obligation. It is believed that the contract can also be a means of regulating the parties’ behavior in the civil legal relations, including changes.
Attention is focused on the importance of reaching agreement on all the essential conditions of the contract. At the same time, attention is drawn to the fact that at the basis of any contract (including the introduction of changes) is the distinction between the parties' interests, individuality and disunity. The coordination of the individual wills of the parties to the contract is provided by such a stage as the initiation of the process, expressed through the offer and acceptance.
It is proved that the offer and the acceptance as separate legal facts are not endowed with the sign of autonomy which is necessary for the transaction, and therefore are only separate stages of the contracting parties' on the way of contract conclusion (the dynamics of the legal relations) exist with relatively limited duration and are synthesized to the contract.
It was proposed to amend the provisions of Part 2 of Art. 644 of the Civil Code of Ukraine in order to simplify the mechanism of changing the terms of the contract and avoid conflict situations between the contracting parties, setting the «normally needed time for an answer» at the level of 20 days, that is, 20 days is the maximum period to respond by the acceptor.
It is established that the common will of the parties is the basis for the contract terms changing, which corresponds to the will of each of them and is aimed at changing the legal relationship in the conditions agreed between them. The possibility at any time to change the contract terms follows from the principle of contract freedom, the content of which in the context of changing the contract terms is expressed in the following basic provisions: a) freedom of the person to enter into contractual relations freely; b) in the freedom of the parties to freely choose the type of contract (as named, so unnamed by law), which will govern the relationship between them; c) in the freedom of the parties to independently determine the conditions (content) of the contract; d) in the freedom of the parties during the period of the agreement to change (in whole or in part) the obligations arising from it.
It is established that a significant breach of contract is the basis for its changing only when it has already happened. Recognizing the significance of the contract breach, the court must proceed from the fact that as a basis for the contract changing at the request of one party, the law provides for not only the fact of violation of the terms of the contract by the other party, but also the presence of harm caused by the injured party to this violation. The expediency of introducing into the general provisions on termination of the obligation of an indicative list of essential violations of the contract, which are the grounds for the contract termination by the court, is substantiated. The category of essentials breaches of the contract can include: a) violations that lead or can lead to significant losses to the creditor (include real losses and lost profits); b) violations that make it impossible to use the subject matter of the contract for the purpose; c) violations which are related to an improper way of fulfilling a contractual obligation, etc.
Considering that the notion of «substantial violation» is general and allows the parties and the court to interpret it differently in the same case, it is suggested to the courts to consider the following factors in determining the essential of a contractual obligation breach: a) the fundamental importance of the proper performance of contractual conditions; b) deprives the creditor of a breach of what he was entitled to expect, except in cases where the debtor did not foresee and could not reasonably foresee such a result; c) the violation is intentional and the obligation cannot be fulfilled properly in the future. Accordingly, the courts should not restrict themselves to referring to the signs of the essential nature of the violation, but are obliged to indicate those circumstances which they have taken into account in determining the significance of a specific situation. In particular, when determining the significance of a contract violation, courts should take into account such circumstances as: a) the significance of the violation itself
