| Romanovska L.А., Candidate of Law, Director, Chief Research Fellow in the field of jurisprudence at IPE LLC, https://orcid.org/0009-0004-6306-6936 |
When concluding an agreement (contract), the parties must understand that the stability of contractual legal relations in the process of contract execution may be “undermined” by unforeseen circumstances that can significantly disrupt the balance of interests of the parties and significantly reduce the expected result for each of them separately. It is precisely because the parties to the agreement (contract) cannot objectively predict the circumstances that will have a decisive impact on the development of the contractual obligation that the legislator in Article 652 of the Civil Code of Ukraine established the protection of civil rights and interests in the following way: amendment or termination of the agreement, in the event of a significant change in circumstances.
However, taking into account that in order to apply part two of Article 652 of the Civil Code of Ukraine, it is necessary to prove the existence of such conditions at the same time as: (1) whether at the time of concluding the agreement (contract) the parties assumed that such a change in circumstances would not occur; (2) whether the change in circumstances is due to reasons that the interested party could not eliminate after their occurrence with all the care and caution required of it; (3) whether the performance of the agreement (contract) violates the ratio of the property interests of the parties and deprives the interested party of what it counted on when concluding the agreement; (4) whether it does not follow from the essence of the agreement or the customs of business turnover that the risk of a change in circumstances is borne by the interested party. In this case, a significant change in circumstances must occur not as a result of the behaviour of the counterparties to the agreement, but be the result of a certain action, that is, there is a change in certain circumstances that are external to the legal relationship that exists between the counterparties to the agreement (contract). Therefore, without a doubt, conformity assessment (independent expert examination) can substantiate these issues at a high professional level and offer legitimate solutions.
A contractual condition regarding the risks of a significant change in circumstances that the parties could not foresee when concluding the agreement (contract) and its legal consequences within the meaning of Article 652 of the Civil Code of Ukraine must be determined by the parties, taking into account the legislation of Ukraine on unfair competition, by specifying in the agreement (contract) not a specific expert institution or expert, but in the form of relevant requirements for the legality of the result of the conformity assessment (independent professional expertise) and the authority to provide the conformity assessment (independent professional expertise), the measurement of which is:
(1) statutory powers of the expert institution to take appropriate actions;
(2) confirmed professional qualifications and professional competence of experts;
(3) confirmation of certification and accreditation of the activities of the expert institution in accordance with the requirements of international standards, namely: ISO 9001:2015 (Quality Management Systems), ISO 37001:2016 (Anti-corruption Management Systems), ISO/IEC 27001:2013 (Information Security Management Systems), EN ISO/IEC 17020:2012 (Management Systems of Inspection Bodies. Conformity Assessment), which is a guarantee of controllability of the processes in which the conformity assessment (independent professional expertise) will be carried out and the corresponding result (expert opinion) will be obtained,
(4) confirmation of voluntary professional liability insurance in case of damage to third parties, provided by a conformity assessment (independent professional expertise), which is an additional guarantor of the liability of the expert institution.
