Legal positions of the highest courts: retroactive force of the treaty

Mandatory terms of the contract

Some of the terms of the contract are included in it at the stage of project formation. Therefore, the following conditions can be found in the procurement documentation:

• about the invariability of the price, except in cases where an approximate price value or a formula for calculating it is used - for example, for agency services, real estate valuation services and compulsory insurance;
• on the liability of the parties for failure to fulfill their obligations under the contract;
• relating to payment for the subject of procurement - the procedure, form and term of payment, provisions on advance payments;
• on acceptance of the results of contract execution - the procedure and period for its implementation.
• on ensuring the execution of the contract - its size, method, period of provision, procedure for return.

Sometimes the customer provides for the possibility of unilateral termination of the contract. This clause is also contained in the terms and conditions.

Arbitrage practice

In practice, there are situations in which the parties enter into a preliminary agreement, but subsequently refuse to execute it. When resolving a dispute, the conclusion of an agreement in court is carried out by filing a claim for compulsion. Based on the results of its consideration, the court makes a decision. This provision is established by paragraph 38 of the resolution of the plenum of the Supreme Court of the Russian Federation dated December 25, 2018 No. 49. At the time of consideration of the dispute, the court is obliged to check the agreement underlying the claim for essential conditions. For purchase and sale, such conditions include the item (name, identification data, address, brand, model). In the case of conditions on the subject, the transaction is recognized as not concluded and does not give rise to rights and obligations. At the time of the preliminary meeting, it is established in which cases the conclusion of an agreement is mandatory and whether all conditions are met. The court checks the agreement on the above grounds, even if there is no position of the defendant on this issue (resolution of the Eleventh Arbitration Court of Appeal dated 07/08/2019 No. 11AP-6684/19). Article 445 of the Civil Code of the Russian Federation provides for the possibility of recovering losses caused by ignoring the fulfillment of established conditions. To minimize financial losses, you have the right to provide for penalties. Penalty for the purpose of ensuring the fulfillment of obligations - Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/08/2014 No. 16973/13 in case No. A40-118038/12-105-1100.

Liability for violation of government contract

Violation of contract deadlines is usually subject to liability in the form of penalties. They are accrued on the first day of delay in the amount of 1/300 of the current key rate of the Central Bank of the Russian Federation, which is applied to the monetary value of obligations not fulfilled on time. That is, if the customer paid part of the amount on time, then the coefficient applies only to the unpaid part.

For any other violations of the terms of the contract that are not related to delay, the parties to the contract are punished with fines. The amounts of fines are fixed and depend on the NMC of the contract. For example, if the customer fulfilled his obligations improperly, the amount of his fine is calculated according to the following standards:

• 2.5% for NMTsK less than 3 million rubles,
• 2% for NMTsK 3–50 million rubles,
• 1.5% for NMTsK 50–100 million rubles,
• 0.5% for NMTsK more than 100 million rubles.

Terms of payment

The terms and conditions of payment must be included in the contract. The document must determine the moment of fulfillment by the customer of payment obligations, the deadline, the procedure for payment, as well as the form of payment.

According to the Civil Code of the Russian Federation, there are four payment options: preliminary, partially preliminary, payment in parts for each stage of work or batch of goods, as well as a one-time payment after execution of the contract.

The payment deadline must also be fixed. It cannot be dependent on the customer receiving financing.

How is a contract concluded?

If both the customer and the contractor are individuals, and the transaction amount does not exceed 10 thousand rubles, then the contract can be concluded in the Civil Code of the Russian Federation, Article 159. Oral transactions can also be concluded orally. In other cases, a simple written form is used - without notarization. Here's what you need to include in the document.

Subject of the agreement

The type and scope of work and their expected result are described here. For example:

Under this agreement, the Contractor undertakes to carry out work on the installation of internal heating networks and deliver the results to the Customer, and the Customer undertakes to accept the results of the work actually completed and pay.

When formulating the subject matter of the contract, keep in mind that it must be separable from both parties, and its quality must be assessed by objective criteria. Let's say, if the contractor undertakes to smelt nails 5 centimeters long and with a head diameter of 5 millimeters, this is the subject of a contract. If you teach a customer to sing with a growl, no, since it is impossible to objectively evaluate the result of the work and separate it from the employer.

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Deadline

At a minimum, you must indicate the start and end date of the process. Intermediate periods are optional - this is permitted, but is not a requirement.

For the contract to be considered valid, the subject and terms must be indicated.

Olga Shirokova

Cost of work and payment procedure

Write down when and how much the customer must pay the contractor and under what conditions. For example, money can be given at one time or in stages, in cash or transferred to an account. If there are many services and the exact scope of work is unclear, the details can be clarified in the annexes to the contract. For example:

The total cost of work under the contract is 39,000 (thirty-nine thousand) rubles. Payment is made in stages for work actually completed in accordance with Appendix 1.

The procedure for delivery and acceptance of completed work

Specify when and how the contractor notifies the customer of the progress and completion of the work. For example:

The Contractor notifies the Customer five days in advance of readiness for delivery of work or by the 25th of each month about the completion of the work stage.

Rights and obligations of the parties

At this point it is worth writing down everything related to the transaction, even what seems self-evident. For example, here you can establish the customer’s obligation to accept the result of the work within a certain period after its completion. Then he will not be tempted to delay the acceptance period and, accordingly, payment. Or you can indicate that the performer is responsible for the condition of the place in which he works. And if a furniture maker scratches your new parquet, you will have the right to hold him accountable for it.

A contract with an individual can be reclassified by the court as an employment contract if the responsibilities of the contractor coincide with the usual responsibilities of a full-time employee. It could be:

• work according to schedule;
• compliance with the company’s internal regulations;
• permanent nature of work and payment;
• ban on subcontracting.

If you are acting on behalf of the customer and do not want the contract to be re-qualified, make sure that there are no controversial provisions in it.

Responsibility of the parties

Here it is clarified who is responsible for what and what punishment awaits him. For example, if a builder delayed the deadline because he did not arrive at the site on time, that’s one thing, but if due to the lack of materials that the customer should have delivered, that’s another. And in the first case, a fine can be provided for the contractor, in the second - for the employer.

It is better to think carefully about all possible circumstances and provide for fines, penalties, penalties and damages.

Applications

This section exists to attach estimates, design documentation and other papers that you will refer to in the contract.

Conditions for accepting contract results

The contract specifies the conditions for acceptance of the results of the contract. It is necessary to indicate the form of the main and additional acceptance documents, the timing of their generation and signing. The criteria by which it will be assessed whether goods (works, services) comply with the requirements established by law and contract must also be established.

When drawing up conditions for acceptance of contract results, it is recommended to take into account the norms of 184-FZ, GOSTs, SNiPs and other documents by which the quality of the procurement object can be determined.

What is a discretionary clause?

The customer may include in the contract the possibility of unilateral refusal to fulfill the contract. It must be enshrined in the project and contract documentation. To terminate a contract unilaterally, significant reasons are needed, that is, one of the parties to the contract cannot receive what it expected when signing it. For example, if the contractor undertakes to complete the work within a specified time period, then exceeding the deadline is a material breach of the contract. If the conditions are violated due to the fault of the supplier, he is included in the register of unscrupulous suppliers.

Qualify this: courts and errors in the names of contracts

When is retraining possible?

If a dispute arises between the parties to an agreement and it reaches the court, the latter is obliged to check whether the parties have correctly determined the type of obligation, and, if necessary, to re-qualify such an agreement (Article 431 of the Civil Code), that is, to apply the relevant provisions of the law to it. The fact is that the name of the contract itself is not decisive; what is important, first of all, is its content, the purpose of the conclusion, the rights and obligations of the parties. Back in 2007, the Supreme Arbitration Court expressed a legal position according to which the court needs to interpret the terms of the contract concluded by the parties and, on the basis of this, decide the issue of the applicability of legal rules on specific types of contracts, not limited to general rules on obligations. In judicial practice, an approach has even been developed according to which the legal qualification of a transaction is understood as determining the type of agreement, its essential conditions and consequences (N F09-1045/03-AK, N A69-909/03-8-F02-4405/03-S1; N A11-8195/2003-K2-E-3412).

Judicial reclassification does not violate the principle of freedom of contract. “Freedom of contract consists in the ability of the parties to conclude an agreement, both provided for and not provided for by law or other legal acts, as well as determine its terms. At the same time, freedom of contract does not give the right to conclude one transaction when a completely different one is in mind,” explained Elena Mikhalevich, lawyer at the Moscow City Agency Barshchevsky and Partners. “Freedom of contract cannot extend to situations where we are talking about a deliberate violation of the rights of third parties. In addition, it must be borne in mind that the principle of freedom of contract is limited by mandatory rules of law. Each type of agreement has certain rules, and when concluding an agreement, we cannot ignore them,” agreed Saveliev, Batanov & Partners lawyer Maxim Belozerov.

The need for requalification may be caused either by bad faith (of both parties to the contract or one of them when they entered into a sham transaction; Article 170 of the Civil Code), or by the misconception of the parties. In the first case, the court carries out re-qualification in order to protect the rights of third parties not participating in the transaction. In the second - in order to determine the rules of law applicable to the legal relationship for the legal resolution of the dispute.

To recognize a transaction as sham, it is necessary to prove that the parties, by concluding one agreement, deliberately tried to cover up another agreement (Article 170 of the Civil Code). A transaction is a sham, for example, when a shareholder of a company, in order to circumvent the preemptive right of other shareholders, enters into an agreement to donate shares, and it later turns out that the shares were paid for by the recipient. In this case, the court must re-qualify the gift agreement as a purchase and sale agreement. Another example of a sham transaction: an agreement to gift a small percentage of a share in the authorized capital of an LLC to a third party and a subsequent purchase and sale agreement for the remaining share. “In essence, these two agreements cover one agreement for the sale and purchase of a share to a third party who is not a member of the company. Parties often used such a mechanism to circumvent the right of first refusal, until the Supreme Court stopped this practice,” said Evgenia Evdokimova, senior lawyer at Egorov, Puginsky, Afanasyev and Partners.

The parties may be mistaken and name the contract incorrectly. In some cases, the type of obligation is so unclear that even judges make mistakes. For example, in one of the cases, the parties entered into a supply agreement, and then one of them violated the deadline. The court of first instance considered that this is a significant violation of the terms of the contract, which means that the buyer has the right to unilaterally refuse to fulfill it (Article 523 of the Civil Code). The court applied the relevant delivery rules and refused to collect the debt from the supplier, while satisfying the buyer's counterclaim to collect the advance payment. The appeal, having considered the complaint of the “supplier”, overturned the decision of the trial court, satisfied the plaintiff’s demands and rejected the counterclaim. The basis for the cancellation was, among other things, the recharacterization of the supply agreement into a construction agreement - the court came to the conclusion that the parties had concluded exactly such an agreement. At the same time, the rules on contracting provide that the contractor has the right to withhold the result of the work until payment for the contract. Since the customer did not fully fulfill his payment obligations, there was not a violation of the delivery time, but a withholding of the result of the work (N A32-5202/2016). In another case, the court, on the contrary, unreasonably re-qualified the contract. The tax inspectorate considered that the bank cannot insure the transported collected money, since it has no interest in preserving this property due to the lack of ownership rights. Therefore, the Federal Tax Service considered it unlawful to include the disputed costs as insurance premiums for voluntary cargo insurance. The inspectorate and the courts of three instances considered that these payments should be considered as expenses for insuring the risk of the bank's liability to clients for obligations arising from damage to the property of other persons, and they, by virtue of Art. 263 Tax Codes are not subject to accounting for profit tax purposes. The Supreme Arbitration Court canceled the lower acts, indicating that the conclusion of a property insurance contract does not depend on the existence of property rights or another set of rights to property, and therefore the courts could not re-qualify property insurance contracts (N 16805/2012).

In situations where the contract is not named at all, the court has to qualify it in a certain way in order to be able to correctly resolve the dispute.

Which contracts are “at risk”

The example of a supply agreement, which in reality turned out to be a work contract, is not accidental. Experts believe that this is where confusion most often arises. At the same time, according to the head of the VEGAS LEX Arbitration Practice, Viktor Petrov, the contract is confused not only with a supply agreement, but also with a service agreement.

Investment treaties also cause problems. According to the resolution of the Plenum of the Supreme Arbitration Court dated July 11, 2011 No. 54, the court may qualify an investment agreement for the construction of real estate as a purchase and sale agreement, a work contract or a simple partnership agreement, regardless of its name. In this case, the choice between these structures is made based on the terms of the contract and the balance of the rights and obligations of the parties. “Investment agreements are often reclassified into loan agreements, civil agreements into labor agreements, commissions and donations into purchase and sale agreements,” said Ekaterina Baglaeva, a lawyer at Yukov and Partners.

Alexandra Susarova, senior legal adviser at FBK Pravo, spoke about a situation where companies entered into a loan agreement, under the terms of which its return was to be made by delivering goods in railway cars. The lender filed a claim in court to collect the debt from the counterparty, and the borrower filed a counterclaim to declare the agreements unconcluded. When considering the dispute, the courts found that money was not transferred under the loan agreement and reclassified it as a supply agreement. But since neither the name nor the quantity of the goods that the borrower had to return to the lender were clear from the contract, the courts declared the subject of the contract inconsistent and the contract itself not concluded (No. A03-12279/2012). Another example with a loan agreement: when a company went bankrupt, its participant demanded that claims based on the loan agreement be included in the register. The courts of three instances upheld his claim, but the Supreme Court did not agree with this. He noted that before bankruptcy, a company participant can use a loan instead of a mechanism for increasing the authorized capital - this will allow him to artificially increase controlled accounts payable in order to further reduce the number of votes attributable to independent creditors. Since, during the consideration of this case, the unlawful purpose of the participant in concluding the loan agreement and its sham was established, the court re-qualified the loan as an increase in the authorized capital and refused to include the participant’s claims in the register (No. A32-19056/2014). And Mikhalevich reminded: the return of money in the case when things were transferred as a loan does not allow such a transaction to be classified as a loan agreement. Most likely, the court in this case will re-qualify the loan agreement as a purchase and sale agreement.

It happens that the courts qualify the meeting minutes signed by the directors of the parties as an independent agreement, and the preliminary agreement as the main one. “And in a case with our participation, the issue was resolved about the possibility of evaluating as an independent agreement a document entitled as an act of acceptance and transfer of property, which was transferred in addition to what was previously transferred under the lease agreement. Moreover, subsequently, as a result of such qualification, additional obligations could arise in the amount of more than 1 billion rubles,” said Dentons partner, Ph.D. n. Roman Zaitsev. Lawyer of Khrenov and Partners Law Firm Sergei Morozov recalled that money cannot be rented, since they are generic consumable things: “Therefore, if the parties enter into a money lease agreement, it is quite obvious that such an agreement is essentially a loan agreement and is subject to re-qualification.”

Requalification procedure

If recharacterization of the contract is required, the court brings this issue up for discussion between the parties. Subsequently, the court must indicate the reasons for which it did not apply the rules of law referred to by the persons participating in the case (clause 9 of the resolution of the Plenum of the Supreme Court dated June 23, 2015 No. 25). However, in some cases, the issue of retraining may not even be discussed at the court hearing. “The court simply determines the legal consequences based on the provisions of the law relating to the relationships that actually arose,” said Pepeliaev Group partner Yuri Vorobyov.

Certain parts of the contract may be subject to requalification. “For example, previously the courts re-qualified the provisions of agreements on predetermined losses into provisions on penalties, which entailed the possibility of reducing the amount of liquidated damages,” Belozerov said.

Do not forget that the parties have the right to enter into unnamed agreements (clause 2 of Article 421 of the Civil Code). If it follows from the subject and content of the agreement that it is not named, the rules on certain types of agreement will not apply to it. When the court assesses whether an agreement is unnamed, it takes into account not its name, but the subject of the agreement, the actual content of the rights and obligations of the parties, the distribution of risks and other circumstances (clause 5 of the resolution of the Plenum of the Supreme Arbitration Court on freedom of contract). “Previously, there was a widespread practice when courts, faced with an unnamed agreement, called it mixed and applied to it the relevant rules, including mandatory ones, instead of general rules on obligations, the analogy of law and law. However, it should be noted that with the adoption of the resolution of the Plenum of the Supreme Arbitration Court on freedom of contract, this practice began to change in a positive direction: now the courts recognize unnamed contracts and apply to them the rules on named ones by analogy with the law only when the controversial issue cannot be resolved based on general rules mandatory law,” said Morozov. “First of all, the court should be guided by the provisions of the contract itself, and not by the rules on similar contracts. Consequently, even when recharacterizing the contract as an unnamed court, it cannot ignore its actual terms,” noted Ivan Veselov, partner in the dispute resolution practice of Goltsblat BLP. By the way, the correctness of this position was confirmed by the Supreme Court (No. 307-ES15-1642). However, in practice there are exceptions. “The fact is that from a psychological point of view, it is easier for judges not to recognize the contract as unnamed, but to qualify it in a certain way - even if the parties had something else in mind,” said Susarova.

***

How not to make a mistake with qualifications? “Before naming an agreement in a certain way, the parties need to establish the purpose of its conclusion, find a legal structure that corresponds to this purpose and ensure that the contract contains essential conditions inherent in such a structure,” advises Alexey Abramov, director of the KPMG Legal Practice in Russia and the CIS. “To correctly qualify a transaction, it is necessary to proceed from the criteria of a particular agreement, and also to take into account what actual relations exist between the parties and what consequences they entail,” Mikhalevich agreed. “Correspondence between the parties also helps, in which the intention to conclude a specific type of agreement can be recorded,” Petrov said. Ultimately, if the parties are unsure of what to properly name a contract, there is always the option of simply calling it “agreement.”

• Alina Mikhailova

• Civil process
• Arbitration process

Optional contract terms

The contract includes many different terms. Some of them are essential requirements for the subject of purchase and the supplier, some are not too important. The essential ones include the description of the subject of the contract - its characteristics, parameters, properties. Also sometimes included in the contract:

• warranty conditions;
• operating conditions, including operating costs;
• conditions that the supplier is obliged to carry out installation and commissioning, as well as train personnel to work with the installed equipment;
• conditions on the place and timing of individual stages of contract execution;
• other conditions that do not contradict the law.

Essential terms of the contract, their composition

According to Art. 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement.

The essential terms of the contracts are:

1. conditions on the subject of the contract;
2. conditions that are named in the law or other legal acts as essential or necessary for contracts of this type;
3. all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

An agreement is concluded by sending an offer (offer to conclude an agreement) by one of the parties and its acceptance (acceptance of the offer) by the other party.

The essential terms of the contract are necessary and sufficient for its conclusion. In the absence of at least one of the essential conditions, the contract is not considered concluded, and on the contrary, if the parties reached an agreement on all the essential conditions, but did not discuss others, the contract is concluded.

Condition on the subject of the contract

First of all, the Civil Code considers the condition on the subject of the contract to be essential. For example, the subject of a purchase and sale agreement is goods, the subject of a contract is work and its result, the subject of a lease agreement for non-residential premises is premises. Without agreeing on the terms of the subject matter, the parties cannot determine the future contractual legal relationship.

The concept of the subject of the contract is quite vague and can provoke legal disputes about what specific conditions determine the subject of the contract. Therefore, by agreeing on the subject of the contract, it is reasonable to understand the specification in the contract of the content of the main obligations of the parties with a sufficient degree of detail so that their will can be perceived by the court.

If the subject of the agreement is not clearly stated or is not agreed upon at all, the court will recognize the agreement as not concluded.

Sometimes the law imposes special requirements for the description of the subject of the contract. So, in accordance with Art. 607 of the Civil Code, a real estate lease agreement must contain data that allows one to definitely establish the property to be transferred to the tenant as a leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.

Terms of the contract called essential in regulations

In this case, we are talking about named contracts in relation to which there is some special regulatory regulation.

In a number of cases, the law fixes the essential conditions of individual contracts quite unambiguously, for example, stipulating that such and such conditions are essential (for example, a number of conditions of the insurance contract under Article 942 of the Civil Code), or stipulating that the absence of a certain condition in the contract entails recognition of the contract as not concluded (for example, a condition on the price in a real estate purchase and sale agreement under clause 1 of Article 555 of the Civil Code).

Some legal norms clearly define the essential conditions related to a specific type of contract (for example, Articles 489, 942, 1016 of the Civil Code), while others do not use the term “essential conditions”.

For example, the essential conditions required by law are directly established for an agreement on the sale of goods on credit with the condition of payment by installments (Article 489 of the Civil Code), an agreement for the sale of a residential building, apartment, part of a residential building or apartment (Article 558 of the Civil Code), an agreement providing for the transfer of a sum of money or other movable property against the payment of rent (Article 587 of the Civil Code), an insurance agreement (Article 942 of the Civil Code), an agreement on trust management of property (Article 1016 of the Civil Code).

At the same time, the price in the real estate sale agreement is not directly named as an essential condition. As established by Art. 555 of the Civil Code of the Russian Federation, the contract for the sale of real estate must provide for the price of this property. If the contract does not contain a condition agreed upon in writing by the parties regarding the price of real estate, the contract for its sale is considered not concluded, while the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation do not apply. The essential nature of the price condition of a real estate sale agreement determines the consequence of non-compliance with the price agreement requirement - the agreement is not considered concluded.

Avoidance of signing a contract

The winner of the electronic auction is obliged to conclude a contract with the customer, otherwise he will be recognized as having evaded this with all the ensuing consequences. If the winner still refuses to sign the contract, the customer must offer this to the second place participant.

First, a protocol is drawn up stating that the first participant evaded concluding a contract, without specifying the reason. The protocol includes information about the purchase, the participant’s data and a link to the norm of law 44-FZ, in accordance with which he was recognized as evading. Then the protocol is placed in the Unified Information System, and information about the participant is transferred to the register of unscrupulous suppliers.

The second place supplier has the right to choose whether to enter into the contract or not. If you agree, you need to do the following:

• draw up a draft contract with the terms proposed by the second participant;
• place the project in the Unified Information System no later than 10 days from the date the auction winner is recognized as having evaded;
• conclude a contract according to the standard procedure;
• within three working days from the date of conclusion, send to the RNP information about the winner who evaded signing.

If the second participant refuses the contract, then it is impossible to conclude a contract with the participant who took third place.

Why is it important

An agreement is the most common type of document exchanged between individual entrepreneurs and organizations. When concluding a transaction electronically, counterparties exchange informal documents - scans of paper copies of the agreement, signed electronically by both parties.

The use of an approved format for electronic contracts will allow companies and individual entrepreneurs to enter into transactions electronically without the need to sign paper documents. In addition, this will help reduce the time for drawing up and agreeing on the terms of the contract, as well as simplify the transfer of documents to the Federal Tax Service.

So far, the restructuring of business processes towards the development of electronic document management is proceeding slowly. For many documents there are no approved formats and no regulated storage rules. The concept of the Federal Tax Service is aimed at resolving issues that hinder the complete transition to electronic document flow. The development of an approved format for an electronic contract is another point in preparing the regulatory and technological basis for legally significant electronic document management.

It is expected that the regulatory legal act by which the Federal Tax Service will approve the unified format of the electronic contract will come into force on December 1, 2021.

Change of essential terms of the contract

As a general rule, the essential terms of the contract (SCC) cannot be changed. But there are exceptions: in some cases, and by agreement of the parties, changes are permissible. The main thing is that this possibility is provided for in advance by the customer in the text of the contract.

Changes to the following conditions are permitted:

• the price of the contract, provided that the quantity of goods, the volume of work or services, as well as their quality remain unchanged;
• contract price if the volume of results changes by no more than 10%;
• contract price if regulated tariffs have changed (gas, electricity, water, heat supply);
• price, volume of the planned result, deadlines for implementation, if the government institution’s limits have been reduced;
• price of the contract when changing the list of services when treating a citizen of the Russian Federation abroad;
• the quantity of goods supplied in an amount not exceeding the difference between the contract price proposed by the participant and the initial (maximum) contract price (lot price), if this right of the customer is provided for in the tender and auction documentation.
• quality, technical and functional characteristics of the product towards their improvement.

You should also remember that you cannot change the contract at the signing stage. This can be done after signing, during its execution, by concluding an additional agreement.

Concluding an agreement: what to pay attention to?

Mikhail Zaplatnikov, a teacher and leading expert of the company, reviewed the main provisions of the Plenum of the Supreme Court of the Russian Federation, which concerns the issues of drafting various contracts. What types of contracts are there? How to correctly draw up and interpret a contract? You will find answers to these questions in our article.

On December 25, 2021, the Plenum of the Supreme Court of the Russian Federation issued Resolution No. 49 “On some issues of application of the general provisions of the Civil Code of the Russian Federation on the conclusion of a contract and the interpretation of a contract,” in which it considered the various stages of contractual work. The document provides explanations on the issues of concluding subscriber, framework, preliminary and public agreements, providing assurances about the circumstances, and formulates a position on the legal qualifications and interpretation of the agreement. Let us dwell on the most interesting provisions of this resolution.

Conclusion of an agreement

The Plenum of the Supreme Court of the Russian Federation, in its Resolution No. 49 dated December 25, 2018 (hereinafter referred to as the Resolution), once again recalled that an agreement is considered concluded if an agreement is reached between the parties on all essential terms. According to Article 432 of the Civil Code of the Russian Federation, the following conditions are essential:

• about the subject of the agreement;
• conditions that are named in the law or other legal acts as essential or necessary for contracts of this type;
• conditions regarding which, at the request of one of the parties, an agreement must be reached.

For example, during negotiations on concluding a contract for the provision of paid services, one of the parties proposed a condition on the price or stated the need to agree on it. In this case, this condition is essential to the contract. But we should not forget that if a party accepts full or partial performance under a contract or otherwise confirms its validity, then in the future it cannot refer in bad faith to its non-conclusion. Thus, the Plenum of the Supreme Court of the Russian Federation establishes the principle of estoppel.

If the form is not followed, but all essential conditions are agreed upon, then it cannot be said that the contract has not been concluded.

The Supreme Court of the Russian Federation clarified: Article 434.1 of the Civil Code of the Russian Federation can also be applied if the parties are negotiating the conclusion of a real contract. If, as a result of such negotiations, the contract is not concluded, the unscrupulous party will have to compensate for losses.

Public contract

A public contract limits the freedom of the parties to enter into the contract itself and determine its essential terms. How to determine whether a contract is public? The Civil Code of the Russian Federation contains signs of a public contract (Article 426 of the Civil Code of the Russian Federation) and a certain list of sample contracts. The Plenum of the Supreme Court of the Russian Federation noted (paragraph 3 of clause 15 of the Resolution) that public contracts do not include a loan agreement and a voluntary property insurance agreement, since these agreements depend on the characteristics of the consumer himself. For example, in a loan agreement such a characteristic is the borrower’s credit history and income, and in an insurance agreement it is the insurance risk.

The Supreme Court of the Russian Federation allowed the executor of a public contract to distribute consumers into certain categories, setting a separate price for goods for them, for example, based on a loyalty program for pensioners, students, large families, etc. Information about such categories must be available to consumers and posted on the contractor’s website (clause 17 of the Resolution).

Consumers under a public contract can be not only individuals, but also individual entrepreneurs and legal entities. An example of such an agreement is the conclusion of telephone services or sending correspondence by mail on behalf of the company.

The Civil Code of the Russian Federation (clause 3 of Article 426 of the Civil Code of the Russian Federation) does not allow refusal to conclude a public contract if the contractor has the opportunity to fulfill it. In this regard, the executor of the public contract must prove the inability to transfer goods, works and services.

Unilateral refusal by the executor of a public contract is not allowed, unless it is related to violations committed by the consumer, and the right to refusal is provided for by law. If the parties to a public contract are individual entrepreneurs, and the contract includes the right to unilateral refusal, then the party for whom the public contract was not binding may have such a right.

Preliminary agreement

A preliminary agreement, by virtue of Article 429 of the Civil Code of the Russian Federation, is concluded for the future transfer of property, performance of work or provision of services under the conditions provided for by such an agreement. On this issue, the Supreme Court of the Russian Federation explained that if at the time of concluding a preliminary or main contract it is impossible to transfer property, perform work or provide a service under a future contract, then this is not an obstacle to concluding a preliminary contract. The contract may be concluded in relation to a product, work or service that will be created or acquired by the seller in the future.

The Supreme Court of the Russian Federation gave a direct answer to the question of state registration of the preliminary agreement. If the main agreement, which will be concluded on the basis of a preliminary agreement, is subject to mandatory state registration, then the preliminary agreement itself is not registered (paragraph 2, paragraph 24 of the Resolution).

The preliminary agreement must describe the subject of the main agreement or the conditions that will allow it to be determined. It is not necessary to include any other essential terms of the main agreement. Any missing conditions can be additionally agreed upon by the parties when concluding the main contract, and if disagreements arise, in court.

Any preliminary agreement can be secured with a deposit, as well as a penalty for avoiding concluding the main agreement. Such a deposit, issued under a preliminary agreement, is credited to the price under the main agreement. If the deposit is made by a third party who is not obliged to pay under the main agreement, then it is subject to return, unless otherwise provided by the agreement.

In the operative part of the decision on compulsion to conclude the main contract, the court indicates from what moment it is considered concluded. This may be the date the court decision comes into force or another moment determined taking into account the terms of the agreement and the position of the parties. The court decision is the basis for state registration of such an agreement.

Framework agreement and subscription agreement

In the framework agreement, the parties determine the general conditions of the obligatory relationship (organizational, marketing, financial), which are subsequently clarified and specified by the parties by concluding separate agreements, filing applications, etc. The Plenum of the Supreme Court of the Russian Federation gave an example of what conditions the parties can stipulate in the framework agreement : general conditions for promoting purchased products on the market, bonuses for their distribution, penalties for violation of obligations.

If the parties in a separate agreement did not indicate a reference to the framework agreement, this in itself will not indicate the non-application of the terms of the framework agreement (clause 31 of the Resolution).

The subscription agreement provides for one of the parties to make certain payments or other provision for the right to demand from the other party the provision of the performance provided for in the agreement. The Plenum of the Supreme Court of the Russian Federation gives the following examples of subscription agreements: for the provision of communication services, legal services, and technical maintenance.

When concluding an agreement with execution on demand, you can limit the scope of execution by setting its upper limit.

An interesting point is where the Supreme Court of the Russian Federation explains that the provisions of Article 429.4 of the Civil Code of the Russian Federation do not apply if it is not clear whether the contract is a subscription agreement.

Representations about the circumstances

At the conclusion of the contract or after its conclusion, one party can assure the other about the circumstances that are relevant for the conclusion, performance or termination of the contract. Such representations may relate to or be unrelated to the subject matter of the contract. For example, a party can provide information about the availability of the necessary licenses and permits, regarding its financial condition, and about the absence of a conflict of interest with the manager. By providing such representations, the counterparty assumes responsibility for their accuracy.

The consequences of making false representations depend on whether they are related to the subject matter of the contract or not. If an unreliable representation relates to the subject of the contract, the provisions of Article 431.2 of the Civil Code of the Russian Federation and other general provisions on the contract and obligations apply. For example, the seller made false representations to the buyer about the quality characteristics of the product. In this case, the buyer can apply, along with the rules on the quality of the goods, the penalty agreed in the contract for providing statements that do not correspond to reality. But if the assurance does not relate to the subject of the contract, then liability will be determined in accordance with Article 431.2 of the Civil Code of the Russian Federation and Chapter 25 of the Civil Code of the Russian Federation.

The assurance may be provided by either the parties or a third party. If such a representation is unreliable, regardless of whether it is directly related to the subject of the contract, the third party is liable to the party to the contract to whom the representation was provided in accordance with Article 431.2 of the Civil Code of the Russian Federation and the provisions on liability for violation of obligations (Chapter 25 of the Civil Code of the Russian Federation) .

The person who provided the false assurance shall compensate for losses and (or) pay a penalty. Such liability will arise if this person assumed that the party to the contract would rely on him (Clause 1 of Article 431.2 of the Civil Code of the Russian Federation). At the same time, such a person, trying to avoid liability, cannot refer to the fact that the party to the contract was careless and did not itself reveal its unreliability.

Conclusion of a contract in court

The Supreme Court of the Russian Federation indicated that the requirement to compel the conclusion of an agreement can be satisfied if the defendant has an obligation to conclude such an agreement. The parties may submit to the court any disagreements that arise during the conclusion of the contract. If the defendant does not have an obligation to conclude an agreement or agreement to submit disagreements to the court, it cannot be refused to accept the statement of claim. In this case, the court considers the case on its merits and rejects the claim if, during the process, the parties did not agree to submit differences to the court for consideration (clause 38 of the Resolution).

Article 445 of the Civil Code of the Russian Federation establishes a thirty-day period for submitting a protocol of disagreements to the court. If such a deadline is missed, the court refuses to satisfy the claim only when the other party declares this (paragraph 1, paragraph 41 of the Resolution). Even if the established deadline is missed, the claim can be avoided if it can be proven that one party makes the provision and the other party accepts it.

If, based on the results of consideration of the claim, the court makes a decision obliging the court to conclude an agreement, then such an agreement is considered concluded from the moment the court decision comes into force. All terms of the contract are indicated in the operative part of the decision. No additional actions are required, including the signing of a separate bilateral document, or the exchange of offer and acceptance (clause 42 of Resolution 49).

Interpretation and legal qualification of the agreement

The need for interpretation arises when the parties have ambiguous or contradictory terms in the contract. The contract must be interpreted in a systematic relationship with the basic principles of civil law.

The Supreme Court of the Russian Federation indicated that priority is given to the interpretation that preserves the treaty.

It is unacceptable to interpret the terms of a contract in such a way that either party gains an advantage from its illegal or dishonest conduct.

If it is not possible to establish the common will of the parties, and the terms of the agreement are unclear, then the interpretation is carried out in favor of the party that prepared the draft agreement or proposed the wording of an unclear term.

The Supreme Court of the Russian Federation in its Resolution also drew attention to the legal qualification of the agreement. If the contract is mixed, then the rules on the relevant contracts are applied to the relations of the parties, unless otherwise follows from the agreement between the parties or from the essence of the mixed contract. If it is not possible to determine from the contents of the agreement which of the agreements provided for by law it relates to, then the rules on various agreements can be applied to the relations of the parties by analogy with the law.

Changing contract terms

The deadline for fulfilling obligations is an essential condition of the contract, but if unforeseen circumstances arise, it can be changed and a new deadline can be established using an additional agreement. Also, if there are objective reasons, you can extend the payment period under the contract.

Extension of the contract is possible if its termination will lead to significant financial losses on the part of both the customer and the contractor, and may also cause particular harm to the interests of the state. In addition, there are penalties for terminating the contract.

If there are no significant financial losses, the contract can be terminated or concluded on new terms.

If both parties are satisfied with the conditions for extending the contract, then an additional agreement can be signed. When one of the parties is against the changes, you can go to court.

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What you need to know about the duration and territory of the contract

As a rule, the contract comes into force from the moment it is signed by the last party. In certain cases, it begins to operate from the moment of transfer of property, state registration, registration on the stock exchange, etc. The parties can extend the validity of the agreement to previously established relations between them.

As a general rule, the expiration of a contract does not mean the termination of obligations under it. The agreement continues to be valid until the parties fully fulfill their obligations. For certain contracts, their validity period is automatically extended if there is no application from one of the parties to terminate it and the parties continue to fulfill their obligations under the contract.

As a general rule, the territory of validity (execution) of a contract is not limited. For certain types of contracts, legislation regulates the territory of their validity (execution). For example, for a license agreement regarding a copyrighted object.

When a legal entity is reorganized, its rights and obligations under the contract are transferred to its legal successors as a general rule.

When the contract comes into force

The agreement comes into force from the moment of its conclusion. From this moment, the provisions of the agreement become binding on the parties <*>.

As a general rule, the conclusion of an agreement occurs at the moment the person who sent the offer receives its acceptance <*>. In practice it often looks like this. One party signs the agreement and sends it to the other party. From the moment the second party signs the agreement, it comes into force.

Note: The effective date of the agreement can be determined as follows. If there are dates on the agreement under the signatures of the authorized representatives of the parties, then the later date is the date the agreement comes into force. If there are no dates under the signatures, the effective date of the agreement is usually considered to be the date of the agreement, indicated on the title page.

Another version of acceptance is also possible. The second party may not sign the received agreement, but take certain actions aimed at fulfilling its terms. For example, ship goods, pay an invoice. In this case, the moment of concluding the contract will be the day of such actions - the day of shipment of the goods, the day of payment, etc. <*>.

Note: If the other party accepted the delivery agreement not by signing, but by other actions, then it is advisable to refer to this agreement in the invoice. Otherwise, the court may consider that the supply agreement was concluded by drawing up a specification form, technical specification and only the conditions stipulated in the invoice <*> apply to the relations of the parties.

In some cases, for a contract to come into force, certain conditions are required (certain events must occur, the parties must perform certain actions). For example, an agreement is considered concluded and comes into force <*>:

1) from the moment of transfer of the relevant property - if, in accordance with the law, the transfer of property is necessary for concluding an agreement. For example, this rule applies to a loan agreement <*>;

2) from the moment of state registration - when the contract needs to be registered. For example, a contract for the purchase and sale of real estate will come into force from the moment of its registration with the organization for state registration of real estate, rights to it and transactions with it <*>.

Note! In cases where notarization and state registration are required, the agreement is recognized as concluded from the moment of registration, unless otherwise provided by legislative acts;

3) from the moment established by law or rules governing the activities of the exchange - if the agreement is concluded on the exchange. For example, on a commodity exchange, a transaction is considered concluded from the moment it is registered on this exchange according to the general rule <*>;

4) from the date of payment of the insurance premium or its first part - for insurance contracts as a general rule.

Note : It happens that the parties sign an agreement and indicate that it comes into force on a specific date after signing the agreement. We believe this is not entirely correct. Because the rules on the moment of entry into force of the treaty are mandatory. In this case, it would be more correct to indicate that the agreement comes into force from the moment it is signed by the parties, and the fulfillment of obligations begins from a later specific date.

When the contract extends to the period before its conclusion

It happens that the process of concluding an agreement is delayed and the parties begin to fulfill their obligations even before signing the agreement. And by the time it is signed, there are already relations that need to be resolved. In such cases, it is possible to extend the validity of the contract to the previous period. To do this you need <*>:

1) expression of the will of the parties. It is the parties who have the right to give the agreement retroactive effect. To avoid disputes, we recommend that such a condition be explicitly stated in the contract.

An example of the wording of a condition in an agreement: “This agreement comes into force from the moment it is signed by the parties and extends its effect to the relations of the parties arising from 10/01/2020.”

In practice, there are other options for giving retroactive force to an agreement.

An example from judicial practice The parties established in the contract the start date of construction as a date earlier than the date of conclusion of the contract. The court concluded that such a condition of the contract is a direct way to implement the norm of paragraph 2 of Art. 395 of the Civil Code on the application of the terms of the agreement to relations that arose before its conclusion and does not contradict the law (resolution of the judicial panel for economic cases of the Supreme Court dated 06/03/2020 (case No. 11-30/2020/314A/518K));

2) that there really was a relationship between the parties in the period before the conclusion of the contract. For example, the goods were delivered; the organization was located in the counterparty’s premises before concluding a lease agreement. If no relationship actually developed between the parties, then there is no reason to apply the rule on the retroactive force of the contract.

We believe that the parties can extend to the previous relationship both all the terms of the subsequently concluded agreement and some of them. This conclusion follows from the wording “the terms of the concluded contract apply”, the absence of a direct prohibition in the legislation and the principle of freedom of contract <*>.

What does the expiration of the contract entail?

When a contract expires, the parties may have certain questions. For example, is it possible to continue to perform the contract, demand performance from the counterparty and hold him accountable. The answer depends on the type of contract and its terms.

For certain contracts, the validity period is automatically extended if there is no application from one of the parties to terminate it and the parties continue to fulfill their obligations under the contract. This is, for example, a lease, loan, energy supply, trust management agreement. In this case, the contract is extended on the same terms and the parties perform it as before <*>.

For other contracts, two options are possible <*>:

1) the agreement or legislation does not stipulate that the expiration of the term of the agreement entails the termination of obligations under this agreement.

In practice, this most often happens. In this case, the agreement is valid until the parties fully fulfill their obligations. Accordingly, after the expiration of the term specified in the contract, it is possible to demand performance from the counterparty.

Example Under a supply agreement, the buyer made an advance payment on September 10, 2020. The contract specifies its validity period - until 10/31/2020. As of 11/01/2020, the product has not been delivered. There is no provision in the contract that the expiration of its validity period entails the termination of obligations under the contract. This means that the contract is valid until the supplier fulfills the delivery obligation. And the buyer can demand that the supplier transfer the goods after 10/31/2020.

In addition, the creditor may also demand payment of penalties and interest for the use of someone else's funds until the day the debtor actually fulfills the obligation. After all, until this moment, the obligations of the parties under the contract do not terminate <*>.

Note! Based on the meaning of Part 2, Clause 3, Art. 395 of the Civil Code, the contract is valid until the full fulfillment of obligations that arose before the expiration of the contract. If the obligations arose after the expiration of the validity period specified in the contract, then the contract, as a rule, does not apply to them. We recommend that this new obligation be drawn up in accordance with the general rules on the procedure and form for concluding an agreement;

2) the contract or legislation establishes that the expiration of the contract entails the termination of the obligations of the parties under the contract.

In this case, upon expiration of the contract, the creditor will not be able to demand performance of the contract from the debtor. Because their obligations under the contract ceased <*>. It is possible to return (compensate) what the creditor has already performed as unjust enrichment <*>.

Note! Interest is charged on the amount of unjust monetary enrichment for the use of someone else's funds. They are accrued from the moment when the acquirer learned or should have learned about the unjustified receipt (saving) of money and until the moment it is transferred to the creditor <*>.

In such a situation, the penalty can be collected only before the day from which the contract is considered terminated. This is explained by the fact that from the moment the contract expires, the unfulfilled obligation of the party ceases, and accordingly, there is no delay. Consequently, there are no grounds for further accrual of penalties <*>.

What territory does the agreement cover?

The legislation does not contain general rules on the territory of validity or the territory of execution of the contract. Because There are no prohibitions, we can conclude that, as a general rule, the territory of validity (execution) of the contract is not limited. Based on the principle of freedom of contract, the parties have the right to independently determine such territory in the contract <*>. Sometimes this right of the parties is expressly provided for in the law. For example, for a commission agreement, a franchise agreement <*>.

Note: In order for a court to recognize an agreement as concluded and valid on the territory of a foreign state, the agreement must comply with the norms of the law applicable to the agreement, as well as the fundamentals of the legal order, mandatory norms of the country of the court <*>.

For certain types of contracts, the legislation contains rules on the territory of their validity (execution). For example, this applies to a license agreement regarding a copyrighted object. If the licensor under the agreement is not the author, but another copyright holder, then the parties must agree in the agreement on the territory in which the licensee will be able to use the object. Otherwise, the contract will be considered not concluded <*>.

Note: Under an unconcluded contract, a party cannot demand performance from the counterparty, or hold him accountable for non-fulfillment of the contract.

If the author is on the side of the licensor, then the territory of use of the object is not an essential condition of the license agreement. If it is not included in the contract, it will be possible to use the copyrighted object only on the territory of Belarus. In order for the right to use an object to extend to other countries, this must be directly stated in the contract <*>.

An example of the wording of a condition in an agreement: “The use of a computer program under this agreement is permitted in the territory of any country.”

According to an open license, a copyrighted object can be used in the territory of any country, unless such agreement states otherwise <*>.

How does an agreement work during the reorganization of a legal entity?

Reorganization of a legal entity does not automatically terminate the agreement. The rights and obligations arising from the agreement pass to the legal successors of the reorganized legal entity <*>.

Note! The legal entity must notify its creditors in writing about the reorganization. Creditors may demand termination or early fulfillment of the obligations of this legal entity, as well as compensation for losses <*>.

Depending on the form of reorganization, the rules on the transfer of rights and obligations may differ. Thus, during a merger, accession or transformation, all rights and obligations of the reorganized legal entity are transferred to the new legal entity under a transfer deed. The new legal entity becomes a party to all agreements of the reorganized legal entity <*>.

Note: During transformation, those rights and obligations that cannot belong to it <*> are not transferred to the new legal entity.

When dividing and separating, a legal entity independently determines the scope of rights and obligations that pass to its legal successors. The ownership of rights and obligations by one or another legal entity is reflected in the separation balance sheet. It must contain provisions on succession for all obligations of the reorganized legal entity in relation to all its creditors and debtors <*>.

Note! If, according to the separation balance sheet, it is impossible to determine the legal successor of the reorganized legal entity, then the newly created legal entity <*> will be jointly and severally liable for its obligations.

The obligations of the legal entity under the agreement are transferred to its legal successors on the basis of a transfer deed or separation balance sheet. At the same time, the legislation does not require making changes to the contract or drawing up additional agreements. Those. the legal successor acquires all rights and obligations under the contract that existed with the reorganized legal entity automatically. This occurs from the moment the legal entity is recognized as reorganized <*>.

Note : As a general rule, a legal entity is considered reorganized from the date of state registration of legal entities that emerged as a result of the reorganization. Upon merger, a legal entity that has been merged by another legal entity is considered reorganized from the date of termination of the activities of the latter <*>.

At the same time, when reorganizing a legal entity, we recommend making changes to the preamble of the agreement, the section containing the details of the parties, and, if necessary, other sections. This will avoid risks such as:

- the debtor fulfills his obligations under the contract to the original creditor, and not to his legal successor;

- the creditor’s demand to fulfill an obligation from a legal entity that arose during the reorganization process, to which the obligation to fulfill this agreement has not passed;

— the occurrence of inaccuracies in the execution of the PUD on the basis of the contract. After all, the details of a legal entity usually change during the reorganization process.

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