Ticket number 42. General characteristics of real contracts

You can find out what an agreement is, what its structure and mandatory details are in the article “What does every businessman need to know about the agreement?” Agreements can be classified according to various criteria: the nature of the transaction, the composition of the parties, reciprocity of obligations, the moment of entry into force, remuneration.

Entrepreneurs most often choose contracts by name, which reflects the economic nature of the transaction: supply contract, rental contract, service contract, transportation contract, purchase and sale contract. It is this classification of contracts that is given in the second part of the Civil Code. We have discussed many types of contracts in separate articles in detail in our Contracts section.

Our contract designer, in which you can develop the necessary document with the conditions you need in just 11 minutes, also classifies contracts by names used in business:

Designer of contracts and forms

Termination of an agreement

Traditionally, the following cases are grounds for termination of a contract:

• expiration of the contract;
• fulfillment of obligations under the contract by all parties;
• termination of the contract as a result of a court decision, force majeure and other situations.

Most often, with constant cooperation between companies, in order to prevent termination of the contract and reduce the volume of document flow, it is automatically extended for each year in the absence of appropriate notifications from the parties.

Random essential terms of the contract

The expressions of will of both parties to the transaction are interpreted as the main terms of the contract. In legal theory, they are called accidental, but “accidentality” is not a reason to ignore them. One of the parties has the right to insist on the inclusion of any points that do not contradict the law. And it doesn’t matter if the other side considers these points absolutely insignificant. The contract will be considered concluded only when all issues have been agreed upon.

As an example, consider a purchase and sale transaction of part of a residential property. Essential condition No. 1 is the subject (share in the house/apartment indicating title documents). Conditions No. 2 and No. 3 will satisfy the requirements of the law. This is the price of the property (Article 555 of the Civil Code) and the list of persons who can use the property after the sale of the share (Article 558 of the Civil Code). If only these conditions are met, the transaction is considered valid. But if one of the participants insists on additional conditions, they will have to be agreed upon and included in the contract as essential. For example, the seller may make demands regarding the procedure and timing of payment. To conclude a transaction, the buyer must agree with him or indicate counterclaims on this item and come to a compromise.

By carefully drafting the text of the contract (any contract), the parties to the transaction can protect themselves from almost all risks. Therefore, optimal contracts are individualized documents that take into account all the nuances of a specific situation, spell out the necessary essential conditions, probable conflicts and methods of resolving disputes.

LEGAL SUPPORT OF ORGANIZATIONS

Contract of sale

A purchase and sale agreement is the most common and frequently concluded agreement between legal entities, individuals, and so on. Such an agreement is distinguished by compensation, a change in the owner of any property after payment has been made. Russian legislation provides for the possibility of concluding the following types of contracts:

• An agreement providing for the transfer of ownership of goods to another party who undertakes to make payment.
• A retail contract providing for the transfer of goods for personal consumption not related to business.
• A contractual agreement that determines the transfer of agricultural products to the procurer, who then processes or sells them.
• A contract for the sale of real estate associated with a change of ownership of any real estate, land or other similar objects.
• A contract for the sale of a company, under which the buyer acquires the entire complex of the enterprise, excluding any rights and obligations that the former owner cannot transfer to third parties.

Requirements for the subject of the contract

In some cases, there are strict requirements for how the subject matter will be described in the contract. For example, when concluding a lease agreement for real estate, as written in Article 607 of the Civil Code of the Russian Federation, it is necessary to describe in detail and specifically what kind of real estate it is so that it can be identified. If such data is absent in the lease agreement, then this agreement may be declared invalid, since the parties have not clearly agreed in writing on the subject of the agreement.

That is, we can conclude that the subject of the contract is what the rights and obligations of the parties arise about, and what their interaction is aimed at . Individualization and specificity are the main requirements for describing the subject of the contract, that is, based on the description, it should be easy to distinguish it from other similar ones.

If we talk about contracts for the transfer of property, then in this case the subject of the contract is the property mentioned (the things themselves or property rights).

The following cannot be considered as the subject of the contract:

• conditions under which objects are transferred from one party to the other (returnability, compensation, etc.);
• another essential condition, for example, counter provision of items or property rights.

As can be seen from the above, the content of the agreement and the subject of the agreement are completely different things.

If we consider contracts for the provision of services or the performance of any work, then the subject of these contracts are certain actions performed by one of the parties. In contracts for the provision of paid services, the subject is also a set of constantly recurring actions that are combined into one goal.

Lease contract

Agreements providing for the transfer for temporary use of property, buildings, enterprises and other objects, for which their real owner will periodically receive a sum of money, receive certain services, and so on. According to current legislation, there are certain restrictions on the possibility of transferring property under a lease agreement. One of these characteristics will be the preservation of their natural parameters and properties during operation.

Subjects of various types of contracts

To make information about the subjects of different types of contracts more clear, it can be summarized in the table below:

Paid and gratuitous contracts

Depending on the need to make payment for the goods or services received, paid and gratuitous contracts are distinguished. An example of the latter would be, for example, a contract for free use.

It occurs when the owner of the property is transferred to another party without charging any payment. In this case, the second party undertakes to return the property in the same condition as when accepted, taking into account natural wear and tear (if a change in the condition of the property is allowed, it is stipulated in the contract).

Such a free use agreement has certain restrictions. Thus, the transfer of company property for free use to the director, founder, member of the company and certain other persons is prohibited.

Concept and types of civil contracts

The basis for the emergence and existence of legal relations between subjects of civil law is an agreement. It represents the legal form of economic turnover in any society in which property rights and commodity production exist.

A contract is an agreement between two or more persons aimed at establishing, changing or terminating civil rights and obligations

(Article 390 of the Civil Code).

The contract has the following characteristics:

– a contract is an agreement.

The agreement of the parties is an act of will, an expression of the will of citizens and legal entities establishing their relations in accordance with the law and the existing order;

– a contract is a legal fact

. In a contract, the agreement is always aimed at establishing rights and obligations (for example, under an exchange agreement, ownership of a thing arises), changing them (for example, division of property) or terminating (for example, the seller’s ownership of a thing is terminated as a result of concluding a purchase and sale agreement) ;

– Every contract is always a deal, but not every deal is a contract.

A contract is a bilateral (multilateral) agreement, the conclusion of which requires the expression of will of two or more parties. Consequently, the concept of an agreement is already the concept of a transaction, since a transaction can be bilateral or unilateral;

– a contract differs from the broader concept of “obligation”,

for an obligation can arise not only from a contract, but also from unilateral transactions, unlawful actions (for example, from causing harm, etc.);

– the contract presupposes the free will of the parties

;

– in the contract the parties are legally equal,

those. are not subordinate to each other.

These and many other features determine the role and significance of the agreement, the expansion of the scope of its application, as one of the most important grounds for the emergence of obligations.

The division of contracts into separate types is carried out according to certain criteria. Here are the most well-known classifications:

1. By method of execution:

§ consensual agreements

- these are contracts for which one agreement of the parties is sufficient (for example, purchase and sale (Article 424 of the Civil Code), delivery (Article 476 of the Civil Code), exchange (Article 538 of the Civil Code), lease (Article 577 of the Civil Code), contract ( Article 656 of the Civil Code), etc.);

§ real contracts

- these are contracts that are considered concluded from the moment the thing is transferred on the basis of an agreement (for example, a loan (Article 760 of the Civil Code), transportation (Articles 739, 740 of the Civil Code), etc.). It is characteristic of a real contract that rights and obligations cannot arise until the moment of transfer of the thing.

2. Depending on the distribution of rights and responsibilities:

§ unilateral agreement

is a contract in which an obligation is assigned to one party without granting it rights. The other side, on the contrary, is endowed only with rights. For example, a loan agreement, under which the borrower is obliged to repay the borrowed amount, without having any rights, and the lender has the right to demand from the borrower the return of the amount of money received, without incurring any obligations to him (Article 760 of the Civil Code); gift agreement (Article 543 of the Civil Code), rent (Article 554 of the Civil Code), storage of items in the wardrobe (Article 814 of the Civil Code), etc.

§ bilateral agreement –

This is an agreement in which both parties are mutually empowered and mutually obligated. For example, in a sales contract, the seller has the right to demand payment of money and is obliged to transfer the thing to the buyer; accordingly, the buyer has the right to demand the transfer of the thing to him and is obliged to pay money (Article 424 of the Civil Code); insurance contract (Article 819 of the Civil Code), commission (Article 880 of the Civil Code), franchising (Article 910 of the Civil Code), trust management of property (Article 895 of the Civil Code), etc.

3. According to the method of compensation:

§ compensation agreements

- these are agreements in which both parties receive property or monetary consideration for the performance of their duties. For example, these are purchase and sale agreements, leases, contracts, etc.

§ gratuitous contracts

– contracts that satisfy the property interests of one party, i.e. one party undertakes to provide something to the other party without receiving payment or other consideration from it. For example, an agreement of gift, gratuitous use of property. Some contracts can be paid or gratuitous, for example, storage in a wardrobe - gratuitous, storage in a warehouse - paid; An interest-free loan is free of charge, a loan with interest is paid.

4. According to their legal nature, contracts are divided into preliminary

(Article 399 of the Civil Code)
and basic ones.
5. Based on the grounds for conclusion, contracts are divided into free and binding, in particular, public contracts -

(Article 396 of the Civil Code).

6. According to the consistency of actions, contracts are divided into mutually agreed upon and adhesion contracts

(Article 398 of the Civil Code).

7. According to the validity period, contracts are divided into general and current.

There are other classifications of contracts.

2.2. Contents of the civil contract. Contract form

The content of the contract is a set of conditions included in the contract

.

Types of contract terms:

§ significant

– conditions necessary for the emergence of a contract. In accordance with paragraph 1. Art. 402 of the Civil Code, a contract is considered concluded upon reaching an agreement between the parties on all essential terms. The contract may not contain ordinary or accidental terms. At the same time, if at least one of the essential conditions is missing, the contract is not considered concluded. Essential terms include those terms of the contract that are recognized as such by law for a given type of contract. For example, under a personal insurance contract, these are conditions about the insured person, about the insured event, about the amount of the insured amount, about the amount of the insurance premium and the timing of its payment, about the validity period of the contract (clause 2 of Article 832 of the Civil Code). Conditions regarding which, at the request of one of the parties, an agreement must be reached are also considered significant;

§ ordinary

– these are points formulated in a normative act as a general rule for resolving the relevant issue; they are taken for granted and apply unless the parties agree otherwise. In other words, if the parties did not include ordinary conditions in the contract, then this essentially means that they agreed to fulfill the conditions provided for in the contract by dispositive norms. For example, under a supply agreement in accordance with clause 1 of Art. 406 of the Civil Code, if the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders.

§ random –

conditions that change or supplement the usual conditions. They may be in the contract, or they may be absent, i.e. included in such an agreement at the discretion of the parties. They either provide for the solution of an issue that is not resolved in the law, or formulate rules that differ from those expressed in the dispositive norms of the law.

Form of civil contract.

The contract is considered concluded, as follows from paragraph 1 of Art. 402 of the Civil Code, if an agreement is reached between the parties in the required form on all the essential terms of the contract. According to paragraph 1 of Art. 404 of the Civil Code, an agreement can be concluded in any form provided for transactions, if the legislation does not establish a specific form for agreements of this type. Moreover, if the parties have reached an agreement to conclude an agreement in a certain form, it is considered concluded from the moment it is given the agreed form, even if by law this form was not required for this type of agreement. The point is that if the legislation does not require, in particular, a notarial form for a given type of agreement, but the parties agreed to conclude it in such a form, then the agreement is considered concluded from the moment it is given a notarial form. This also applies to concluding a contract in simple written form.

According to paragraph 2 of Art. 404 of the Civil Code, an agreement in writing may be concluded:

– by drawing up one document;

– by exchanging documents through postal, telegraphic, teletype, electronic and other communications that make it possible to reliably establish that the document comes from a party to the contract, i.e. these documents express the will of the parties.

These documents are signed by the parties.

As a general rule, failure to comply with the simple written form of the contract deprives the parties in the event of a dispute to refer to witness testimony both regarding the fact of its conclusion and its content.

General rules on the form of a transaction (Articles 159-166 of the Civil Code) apply to contracts, unless otherwise established by the law regarding certain types of contracts.

2.3. The procedure for concluding, amending and terminating a civil contract

The general procedure for concluding, amending and terminating an agreement is provided for by current legislation (Chapter 28, 29 of the Civil Code).

After carrying out certain activities within the framework of the pre-contractual company (studying the market, potential partners, choosing the subject of the contract and the volume of supplies, etc.), in order to conclude a contract, it is necessary that one of the parties make an offer to conclude a contract, and the other party accepts this offer. Consequently, the process of forming an agreement between the parties goes through two mandatory stages:

- an offer by one party to enter into an agreement, called an offer

.
The party making an offer to conclude a contract is called the offeror;
– acceptance of this offer by the other party, called acceptance

.
In turn, the party accepting the offer is called an acceptor.
In accordance with Art. 405 of the Civil Code, a proposal is recognized as an offer if it:

– addressed to one or more specific persons;

– quite definitely and expresses the person’s clear intention to conclude an agreement, i.e. if the offer is accepted by the addressee, then the person who made the offer considers himself to have entered into an agreement;

– contains all the essential terms of the contract. If the proposal to conclude an agreement lacks at least one of the essential conditions, it cannot be concluded.

The person who sent the proposal (offer) becomes obligated from the moment it is received by the addressee. However, if a person decides to withdraw the proposal (offer) made and the notice of withdrawal of the proposal (offer) was received earlier or simultaneously with the proposal (offer) itself, it is considered not received.

A public offer is a proposal containing all the essential terms of the contract, from which the will of the person making the offer is discernible to conclude an agreement on the terms specified in the proposal with anyone who responds

(Clause 2 of Article 407 of the Civil Code). An example is the equipment at exhibitions of stands, display cases indicating the main characteristics of the product, price, etc.

Advertising and other offers addressed to an indefinite number of persons are considered as an invitation to make an offer.

Types of offer:

§ firm offer

– a written proposal concerning a certain type of legal relationship, sent by the offeror to only one possible counterparty, indicating the period during which the offer is bound by the person who sent it;

§ free offer

is done, for example, for one batch of goods not to one, but to several possible trading enterprises (counterparties), whose consent is confirmed by firm acceptance (counteroffer). The conditions constituting a free offer must be carefully thought out so as not to bind oneself to specific obligations. The free offer does not specify a period. Possible consent must be obtained within the time normally required for a response.

The law (Article 417 of the Civil Code) provides for the conclusion of an agreement through bidding.

As follows from paragraph 1 of Art. 420 of the Civil Code , amendment and termination of the contract is possible by agreement of the parties

, unless otherwise provided by law or agreement. In particular, the seller and buyer, by agreement between themselves, decided to reduce the purchase price.

Amendments and termination of the contract may also occur unilaterally.

. As a rule, unilateral changes to the terms of a contract and unilateral refusal to perform it are not allowed. But in some cases such a refusal is permitted by law or contract. For example, under an agency agreement, the principal has the right to cancel the assignment, and the attorney has the right to refuse it at any time (clause 2 of Article 867 of the Civil Code).

Agreement, in accordance with clause 2 of Art. 420 of the Civil Code, may be changed or terminated at the request of one of the parties by a court decision.

In this case, the court decision can only follow:

– in case of a significant violation of the contract by the other party. Essential, according to the law, is a violation of the contract by one of the parties that entails such damage for the other party as a result of which it is significantly deprived of what it had the right to count on when concluding the contract;

– due to a significant change in the circumstances from which the parties proceeded when concluding the contract (Article 421 of the Civil Code). A change in circumstances is considered significant if they have changed so much that, if the parties could have reasonably foreseen it, they would not have entered into this agreement at all or would have entered into it on significantly different terms.

The parties are given the opportunity to bring the contract into compliance with significantly changed circumstances or terminate it. If the parties do not reach such an agreement, the contract may be terminated. When termination is contrary to public interests or entails damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court, then the contract may be changed by the court if the following conditions are simultaneously present:

– when concluding the contract, the parties assumed that such a change in circumstances would not occur;

– the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of conscientiousness and prudence that was required of it by the nature of the contract and the conditions of civil circulation;

- execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;

– it does not follow from the essence of the contract that the risk of changes in circumstances is borne by the interested party;

– in other cases provided for by law or agreement. For example, according to clause 5 of Art. 536 of the Civil Code, the buyer has the right to demand in court the termination or modification of the contract for the sale of an enterprise and the return of what has been performed by the parties to the contract, if it is established that the enterprise, due to shortcomings for which the seller is responsible, is unsuitable for the purposes specified in the sales contract, and these shortcomings have not been eliminated by the seller under the conditions, in the manner and within the terms established in accordance with the law or the contract, or the elimination of such defects is impossible.

Employment contract

The main document on the basis of which the relationship between employee and employer is built. The employment contract specifies the obligations and rights of each party, including the terms of remuneration, its amount, payment terms, and other basic provisions.

A fairly common type of contract concluded between the contractor and the employer is the so-called contract agreement. Within its framework, the contractor (performer) undertakes to complete the customer’s work with proper quality and on time, and the latter undertakes to accept and pay for it. Such a contract is often used when it is necessary to carry out survey, construction, design and other work. it can be concluded with a legal entity, individual entrepreneur or individual.

Treaties

Type

Name

But in addition to agreements that have “telling” names, there are such types of agreements as unnamed and mixed. The concept of “ unnamed contract ” is used to somehow name contracts that are ahead of the needs of civil legal relations that arise in practice. No matter how much legislators strive to theoretically resolve all the gaps in the execution of civil transactions, situations still occur that do not fit into certain patterns. Moreover, by unnamed, some lawyers understand only those types of contracts that are not described in civil law, but at the same time can be regulated in other laws and even codes.

For example, the provision of personnel under an outstaffing agreement (or agency labor) has long existed in reality. This option for registering personnel has already been reflected in the Labor Code, the Tax Code regulates the consequences of such an agreement, but it still does not exist for civil legislation. Although, if we talk specifically about outstaffing, the situation with it has become certain since 2021, when changes to the law “On Employment in the Russian Federation” came into force. This law recognizes that the provision of personnel is a service, which means that the Civil Code of the Russian Federation will recognize it as such.

Unnamed contracts may also include the following types of contracts:

• agreement between subjects of investment activity;
• contract for the installation and operation of an advertising structure;
• agreement between participants in shared ownership;
• sale of goods through vending machines;
• agreement on the provision of a trading place on the market.

As such, the Civil Code does not contain a definition of an unnamed agreement; it only recognizes in Article 421 that the parties can enter into an agreement, both provided for and not provided for by law or other legal acts . You can find such a concept in judicial practice, for example, “An investment agreement, by its legal nature, is not named in the Civil Code...” (from the decision of the 18th Arbitration Court in case No. A07-17129/2013). Be that as it may, if you come across such a definition as an unnamed agreement, then know that such an agreement is also a legally significant document.

Courts do not really like unnamed contracts, so there is a significant risk of recognizing such contracts as unconcluded or invalid, especially when there is some kind of similar contractual structure that has a specific name in the Civil Code of the Russian Federation. Judges may also conclude that the parties deliberately avoid entering into a named contract described in the Code in order to avoid restrictions caused by mandatory rules of this type of contract, for example, the obligation to register it.

The concept of a mixed contract is given in Article 421 of the Civil Code of the Russian Federation. Such an agreement contains elements of different types of agreements provided for by law or other legal acts. A mixed contract may include elements of different contracts (at least two), and the Code does not formally limit the maximum number of types of contracts for mixing.

A mixed contract can be multilateral or have several parties on each side at the same time (multiple persons in an obligation). As a simple example of a mixed contract, a tripartite contract can be cited, in which two parties fulfill obligations corresponding to the contract for the supply of equipment, and the third carries out installation work in relation to this equipment, which is an element of the contract. Or it may be an agreement for the provision of services, payment for which is made not in money, but by transfer of ownership of the goods. There are also types of mixed agreements that are directly specified in the Civil Code: a lease-sale agreement (Article 501) or a lease agreement with the right to buy (Article 624).

When drawing up a mixed agreement, you must have a clear understanding of the obligations as such, and be able to qualify the legal nature of the main agreement, to which elements of another type of agreement are added. It may be easier to conclude two separate agreements, the structure of which is completely clear to you, but it is worth knowing about the possibility of concluding a mixed agreement.