Public, framework, any: Plenum clarified the conclusion of agreements

Official website of the Supreme Court of the Russian Federation

The new resolution of the Plenum of the Supreme Court explains to the courts how to resolve disputes about preliminary, public, subscription agreements and how to evaluate assurances about the circumstances. In addition, the clarifications guide the courts to preserve the legal force of contracts whenever possible. For example, when some formalities are not observed, but the participants have confirmed the validity of the agreement.

Conclusion of an agreement

The Plenum of the Supreme Court clarifies: a contract can be concluded through an offer and acceptance, through joint development and agreement of terms during negotiations, or in other ways when the parties have clearly made clear their will to enter into a transaction.

Participants must agree on all material terms - these are those that are required by law or agreement. For example, if a party declared the need to agree on a price, this becomes mandatory, and the provision of the Civil Code on the regular price in such transactions no longer applies.

If the form of the agreement is not observed, this does not mean that it has not been concluded, if the parties have agreed on all the essential terms. The Plenum also enshrines the principle of estoppel: if someone has confirmed the validity of a contract, he cannot in good faith refer to its non-conclusion.

The rules for sending an offer and its acceptance are explained. The document answers the question of what to do with an acceptance that arrived after the deadline. To do this, you need to determine who is to blame for the delay. For example, a courier delivery service or the acceptor himself, who sent the signed agreement deliberately late. But even in the second case, the offeror can immediately declare that he accepts the acceptance - this will correct the situation. It can also confirm late acceptance if it begins to execute the contract.

Public contract

Public contracts are concluded by all people who buy something in a store, go to a cafe, and so on. At the same time, shops and cafes are obliged to serve everyone and cannot refuse without good reason.

But the laws do not have clear criteria for which contracts are public and which are not. The Plenum gives examples of public contracts - this is a contract for household work, water supply, and compulsory motor liability insurance. At the same time, a loan agreement, an agreement for participation in shared construction, or a voluntary property insurance agreement is not a public agreement.

The price may vary for different categories of clients. For example, for pensioners, students, loyalty card holders.

Preliminary agreement

A preliminary agreement is an agreement between the parties who undertake to enter into a main agreement in the future. At the time of concluding the preliminary contract, the seller may not have the goods they want to buy. It's not obligatory. It is enough to describe the characteristics of the item that is about to be made.

If the preliminary agreement does not contain essential terms, such as the rental price, then this is not a problem. The parties can agree on the terms later, and if they disagree, they can go to court, which will make a decision.

But if the preliminary agreement contains conditions for partial or full payment, then such an agreement should be regarded as a purchase and sale agreement with advance payment. This will help protect the interests of those who purchase housing.

In judicial practice, there are often cases in which one party forces the other to enter into a main agreement on the basis of a preliminary one. The Plenum of the Supreme Court clarified how courts should write decisions on such cases: in the final act it is necessary to indicate the subject and conditions of the main agreement, as well as the moment from which it is concluded. There is no need to formalize or sign anything else – the agreement comes into force based on the court decision.

Framework agreement

Such an agreement may establish organizational, marketing and financial terms of the relationship, and contain the terms of the agreement, the conclusion of which is related to the framework agreement. At the same time, in the future, the parties must specify the terms of the framework agreement by concluding separate agreements.

The terms of a framework agreement are part of a subsequently concluded separate agreement, the Supreme Court reminds, but only if such agreement as a whole corresponds to the intention of the parties expressed in the framework agreement. “The absence of a reference to a framework agreement in a document executing a separate agreement does not in itself indicate the non-application of the terms of the framework agreement,” explains the Plenum.

Subscription agreement

This is an agreement that provides for the subscriber to make certain, including periodic, payments for the right to demand from the contractor the services provided for in the agreement. Payment for it can be established in the form of a fixed payment, including periodic, or in another form that does not depend on the volume of services requested from the contractor.

If the subscriber has not taken action to obtain his performance, this still does not relieve him of the obligation to pay under the contract. But the law or contract may provide otherwise.

Representations about the circumstances

The Plenum Resolution enshrines the idea of protecting a person who relied in good faith on representations. If the seller promised a certain quality or properties of the goods, but in reality everything turned out to be wrong, the rules on the quality of the goods and the agreed liability measures are applied simultaneously. As the Supreme Court specifically emphasizes, this approach applies to the purchase and sale of shares or interests.

Not only the party to the contract, but also a third party can give assurance about something. In this case, it is presumed that it has a legitimate interest: the third party is liable on a general basis to the one who relied on his assurances.

Interpretation of contracts and their legal qualification

Courts should not limit themselves to Art. 431 of the Civil Code, which defines the rules for the interpretation of treaties (for example, that they must be interpreted literally). When interpreting, it is necessary to take into account the basic principles of civil legislation, provisions of the Civil Code, laws and other acts.

The terms of the contract must be interpreted so that no one takes advantage of his illegal or dishonest conduct.

If there is a dispute about the validity or conclusion of an agreement, the court should strive to preserve the agreement and take into account the presumption of reasonableness and good faith of the participants. If the terms can be interpreted in several different ways, but one of them leads to invalidity or non-conclusion, then priority should be given to the option that retains the force of the contract.

If the contract is mixed, that is, it contains elements of different contracts, the rules on the relevant contracts are applied to the relations of the parties under it, unless otherwise follows from the agreement between the parties or from the essence of the mixed contract. And if from the contents of the contract it cannot be established which of the stipulated contracts it relates to, then the rules on various contracts may be applied to the relations of the parties - by analogy with the law.

Maxim Varaksin

General provisions on a public contract

The procedure for concluding a public contract is regulated by Art.
426 of the Civil Code of the Russian Federation. Clause 1 of this norm formulates the conditions that make it possible to define a public transaction and determine its differences from other types of contracts. By public contract, the Civil Code of the Russian Federation means an agreement with the following features:

the conclusion of the contract is carried out by the party - the subject of entrepreneurial activity carried out for the purpose of making a profit. Thus, one of the parties to the transaction will necessarily be a company engaged in entrepreneurial activities.
the agreement provides for the organization’s obligation to sell goods, provide any service or perform work, etc.
The nature of the activity of an entrepreneur or commercial organization allows him to enter into transactions with any person who has submitted an offer to conclude an agreement.

Aspects of law enforcement practice

According to a number of lawyers, the public type of agreement in question is designed, first of all, to protect the rights of consumers. However, to what extent is this priority confirmed in law enforcement practice? Regarding this issue, there are several polar points of view in the expert community. There is a thesis according to which legal norms that prescribe certain models of behavior for suppliers of goods and services are accompanied by a shortage of law enforcement procedures characterized by quick response.

That is, for example, if a citizen arrived at a hotel, and they refused to check him in, citing the lack of available rooms (although, by all indications, there were some), then the only mechanism for realizing the citizen’s legitimate interests is to go to court, which, of course, can arise on the plaintiff's side, but only after a considerable time. A person needs to check into a hotel as quickly as possible - and, as Russian lawyers note, law enforcement practice related to such a legal category as a public law contract does not imply such mechanisms.

At the same time, there is another point of view, according to which the total set of obligations that the legislator imposes on suppliers of goods and services somehow compensates for possible shortcomings in the aspect of the enforcement mechanism, which we mentioned above.

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In conclusion, we note that the public regime of agreements is enshrined in order to guarantee the rights of consumers, recognized by civil law as the weak, least protected party to the obligations. Such an agreement is needed so that entrepreneurs do not have the right to refuse to conclude contracts with every consumer who applies. Otherwise, refusals would lead to numerous problems and disputes. For example, citizens wishing to travel by bus or trolleybus could be deprived of this opportunity if entrepreneurs arbitrarily denied the opportunity to conclude relevant agreements.

Under such circumstances, a public contract is, first of all, a way to protect consumer rights, which is designed to limit the possibility of entrepreneurs refusing to enter into agreements that are socially important for the population.

Even more materials on the topic in the section: “Contract”.

How to refuse a public contract and terminate it

If you wish to terminate such an agreement, follow the procedure that corresponds to the type of agreement concluded. For example, for a compulsory motor liability insurance agreement, a special procedure for its termination is provided. Please note that the seller (performer, contractor) does not have the right to terminate the transaction, even if such a right is specified in the contract.

Unilateral refusal of the consumer is possible only if such a right is provided for a contract of a certain type. For example, refusal is possible from a storage agreement if the payment of remuneration for storage is overdue by more than half the period.

The client defines the rules

The fact is that for some types of counterparties (buyers, clients) the lack of the ability to adjust the terms of the contract may be critical, for others it is not. Obviously, if we are talking about entrepreneurial activity in the B2B segment, when one legal entity provides services or sells goods to others, public contracts are a less desirable way to formalize relations. And this is logical: the counterparty may not agree with certain clauses of the contract offered by the supplier company. And therefore, if the supply agreement is public in terms of all its inherent criteria, then counterparties can simply refuse to interact with the company. Therefore, in such cases, companies more often offer their terms within the framework of connection contracts.

According to some lawyers, a separate product price tag is an independent public contract (or at least it is an essential part of the contract). A store buyer might want to change it in order to buy a cheaper product. However, it is unlikely that the interests of the seller will coincide with such wishes. Not every store can afford to discuss the selling price of a product with each buyer. And in this case, a public agreement, rather than an adhesion contract, is optimal for the seller.

There is an interesting opinion regarding this type of document as a public offer agreement: that this is one of the examples of agreements through which a particular business clearly makes it clear to the counterparty that the proposed conditions associated with the sale of goods or services are not subject to discussion.

It can be noted that the choice in favor of one or another contract may be determined by the peculiarities of the formulation of its provisions. There are areas in which drafting a public agreement is problematic due to a lack of input data. And therefore the company is forced to adapt to this specificity in one way or another, drawing up accession contracts as the only possible ones. For example, a public insurance contract is a legal category that, as some experts note, is quite rare. In order to determine the main part of its terms, the company needs to study the individual profile of the client, and only after that offer him certain terms of the contract.

Thus, one of the factors in choosing a specific type of contract is the supplier’s priorities in terms of implementing interaction with the client. A public contract is an agreement with some bias towards the customer’s area of interest. Another important factor is the specificity of the segment in which the company operates, the characteristics of the types of services it provides or the goods it sells. That is, if the characteristics of a particular market segment imply loyalty to the counterparty, expressed in readiness to discuss the terms of the agreement, an accession contract is drawn up. If not, then the enterprise can operate by interacting with customers within the framework of public contracts.

Features of accession agreements

A public contract is a legal category that is quite close to some other types of contracts. What kind, for example? First of all, lawyers note adhesion agreements among these. Due to what features do they become close to public contracts?

Firstly, in adhesion agreements, the terms of the transaction are initiated and proposed by one party, that is, the supplier of goods or services. The terms of a public contract are similarly formed unilaterally by suppliers.

Secondly, the other party to the legal relationship can participate in concluding a transaction solely by joining the proposed contract.

Thirdly, within the framework of the type of contracts under consideration, it is assumed that the conditions must be recorded using standard documentary forms. That is, it is meant that adjustment of essential conditions in the general case is not required, although it is possible.

Legal relations that arise within the framework of adhesion agreements, at the same time, presuppose that the counterparty of the party that proposed to conclude the relevant contract has the right to terminate the agreement.

At the same time, as many lawyers note, the laws of the Russian Federation do not stipulate clear conditions in accordance with which the termination of the corresponding type of contract should occur. Also, in the legal acts regulating legal relations within the framework of adhesion agreements, as lawyers note, there are no provisions that would provide for the liability of the company that proposed the agreement for possible losses of the counterparty that joined the contract.