accounts that are not intended for the FCF funds, the rights in action would be treated
as property acquired by the “bank” - the separate legal entity. It is worth mentioning
that neither in the first nor in the second case is the contractual right terminated. In the
first case, the contractual rights are assets of the FCF, and the “manager” who acts as
the trustee of FCF funds, may alienate such right and return costs from FCF. In the
second case, this right goes to the bank, which acts as the principal. Thus terminological
consolidation of concepts of the “manager” or the “bank” will cause different legal
consequences of contractual rights (rights in action) circulation.
b.)
The alienation of contractual rights on measurable units of the investment is
permitted in favor of the third parties [21]. In addition, such scheme can be used if it is
necessary to pay off the debt.
If the contract on the FCF participation does not prohibit the contractual rights
assignment, such rights may be assigned until full payment of the investment
contribution. In this case, the investor assigns rights proportionally to the investment.
The parties under the contract on FCF participation may also ban contractual
rights alienation.
3) Another form of the contractual rights circulation is the principal’s refusal from
the right on the part of measurable units of the investment. In the Law of Ukraine “On
Financial and Credit Mechanisms and Management of Housing Construction and Real
Estate” [20] the principle of “indivisibility of the investment” is enshrined that the
investor enjoys the preferential right on the remaining unpaid measurable units of the
investment.
The refusal from the parts of units assigned after the principal enters into conflicts
with the Part 3 of the Article 9 of the Law of Ukraine “On investment activity” [3],
which provides that investing and financing of one apartment in the object of
construction by several investors is possible only on condition of the contract
concluding between them in the written form, in which the share of each investor and
order of its respective investment are outlined. It means that in case of refusal from the
part of measurable units it may actually happen that the manager will not be able to fix
the rest of the investment measurable units by another person without the consent of
the principal. As far as we concerned, the manager should have the right to sell units
to the third party without the consent of the principal, in case of his refusal from the
part of units. That is why we propose to make some amendments to the legislation:
1.) The part three of the Article 9 of the Law of Ukraine “On investment activity”
put in the following edition: “Investing and financing of one apartment by several
investors are possible only if the written contract between them are concluded, which
outlined the share of each investor and order of its respective investment. In case of the
investor’s refusal from the right to measurable units of the investment, the manager has
the right to sell these units to a third party without the consent of the investor.”
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