Place of the Development Agreement among the Contracts in the Construction Industry

Abstract

The article is devoted to the implementation of the comparative characteristics of the development agreement and other similar contractual structures that can be used by businesses in the field of construction. The author provides the author’s definition of the development agreement and draws attention to the fact that none of the agreements named in the current legislation of Ukraine fully reflects the specifics of the development relationship. At the same time, the development agreement in its content contains features (elements) characteristic of a number of other agreements, in particular, agency, concession, joint venture, simple partnership, property management, power of attorney, commission, contract, etc. In the article it is concluded that in the scientific literature, the development agreement is often disclosed through the construction of the agency agreement. However, such a position, according to the author, is unfounded, which is proved by a distinguishing number of common and distinctive features of these agreements. The situation is similar with power of attorney and commission agreements, the legal constructions of which can only partially satisfy the needs of the customer and the developer in settling relations between them. The author argues that the development agreement should also be distinguished from a rather similar in content concession agreement, the legal regulation of which is provided by the Law of Ukraine «On Concession» № 155-IX of 03.10.2019. In particular, the differences are in the subject, the procedure for concluding and executing agreements, the mandatory presence of a public law element in the concession agreement and a number of other aspects. In the article it is emphasized that the development agreement also cannot be reduced to the construction of a joint venture agreement, a simple partnership agreement and a property management agreement. However, some features (elements) of the latter may be given in the development agreement. The author emphasizes that the development agreement should be distinguished from agreements in the field of construction, primarily in their subject, which determines the presence of a number of other distinctive features. Thus, the development agreement does not provide for the direct performance of construction work by the developer, in contrast to agreements. In turn, the latter do not provide for the provision of services to the customer, which are the subject of the development agreement.