The peculiarities of the escrow account contract under the legislation of Ukraine

  • Yu.Ya Tarhoniy
Keywords: Escrow account contract, client (account holder), bank, beneficiary

Abstract

The legislative concept of the escrow account contract is analyzed in the article. Based on the analysis of the current legislation of Ukraine and doctrinal approaches, the peculiarities of the contract that allow distinguishing it from other contracts were investigated. The subject and object of the contract were clarified; its essential terms were characterized.
In the process of research, the analysis of peculiarities, subject matter, object, essential terms of the escrow account contract was made. Based on the study of the legal concept of this contract, it was concluded that it should be considered tripartite, and in some exceptional cases - bilateral. An exhaustive legislative regulation of the cases when the escrow contract can be bilateral, in particular, within the squeeze-out procedure, is proposed. In turn, the escrow contact must be tripartite if it is used in other areas, in particular, for trade settlements with counterparties, the subject of which are goods, services, intellectual property rights, as well as the purchase/sale of real estate, including relations between the developer and the investor .The positions of scientists regarding the moment of concluding of the contract were analyzed. It was researched, that the escrow contract is real by its nature, but it should be considered consensual in the case of concluding a bank account contract with a corresponding escrow clause. It was found out, that one more peculiarity of the contract is reciprocity. The subject matter and the object of the escrow account contract are differentiated: cash in non-cash form should be considered the object of the contract, and the actions of the client (account holder) concerning the transfer of funds to the bank for safekeeping, as well as the actions of the bank regarding the preservation of these funds and their transfer to the beneficiary after the occurrence of the grounds specified in the contract - should be considered the subject matter of the contract. It was found out that the essential terms of the escrow contract are the subject matter of the contract and the grounds for transferring to the beneficiary the funds received from the account holder and/or from third parties, or their return to the account holder(s) or third parties. Taking into account the essence of the escrow contract in the context of a wide range of purposes, it was concluded that the term may not be its essential condition.

Published
2022-09-15