THE MOMENT OF THE BEGINNING OF THE PROTECTION OF THE RIGHT OF THE CREDITOR IN AN OBLIGATION WITH AN INDEFINITE TERM

Abstract

The work is devoted to the scientific study of the topical issue of determining the initial moment of the statute of limitations for claims for obligations that have an indefinite performance period. It has been established that the normative wording of the rule of Part 5 of Art. 261 of the Civil Code of Ukraine allows different interpretations of the initial term of this term. The most controversial point is the possibility of calculating the statute of limitations from the time of conclusion of the contract. After all, if we understand the word “requirement” written in the law as a regulatory authority to demand the fulfillment of the obligation stipulated by the parties, then such a right belongs to the creditor precisely from the beginning of the contract. The author of the publication persistently and convincingly emphasizes that in Part 5 of Art. 261 of the Civil Code, we are talking about a protective claim that arises from the creditor only after his right has been violated. This content of the “requirement” is consistent with the main principles of civil law, according to which the right to defense (the right to sue), and hence the statute of limitations, can arise only after an offense has been committed. After all, national law enforcement bodies also give such a meaning to the initial moment of the ancient course. Despite this, the wording of the legislative rule remains unchanged. Of course, cases of an endlessly long non-presentation of the regulatory requirement to start fulfilling such obligations, which is extremely undesirable from the point of view of the development of the dynamics of business turnover, are cause for concern. Indeed, too long duration of the opportunity to appeal to the court reduces the discipline of the participants, gives their relations the character of uncertainty, minimizes the objective possibilities of judicial protection and, therefore, is against the public interest. But the method chosen by the lawmaker to avoid such a negative by starting and ending the statute of limitations (extinguishment of harassment) without fixing the fact of violation is extremely unsuccessful. The position advocated in the doctrine and in individual legislatures, according to which the statute of limitations begins when the creditor has not presented a regulatory claim within a reasonable period, is also not suitable, because, since a reasonable period is a type of definite period, the institution of normalization of indefinite periods does not work at all. Therefore, the author proposes to amend the law by establishing a maximum term for filing a creditor’s regulatory claim and noting that if such a claim is not submitted by this date, the preferential seven-day or other period begins.