Agreement conditions. What terms of the contract are called essential under the Civil Code of the Russian Federation? Which fulfill the terms of the contract with one

In this article we will continue to talk about the changes introduced to the Civil Code of the Russian Federation by Federal Law No. 42-FZ dated March 8, 2015 “On Amendments to Part One of the Civil Code of the Russian Federation” (hereinafter referred to as the Law). This time we will talk about changes that affected the general provisions of contracts.

For more information about other changes made to the Civil Code of the Russian Federation by this law, see the article by A. Poletaeva “”

Let us recall that the Law came into force on June 1, 2015. In particular, it clarifies the basic concepts and introduces new types of contracts - framework, subscription, on-demand, option.

A provision has been introduced on liability for providing false information relevant to the conclusion, execution or termination of a contract. The institution of assurance about circumstances is completely new. It is possible to conclude agreements on compensation for property losses of one of the parties to the contract due to the impossibility of fulfilling an obligation or the presentation of claims by third parties or government authorities.

Rules have been introduced on the procedure for terminating and amending multilateral treaties, as well as provisions establishing the institution of waiver of the right provided for by the treaty.

The procedure for conducting auctions has also been clarified, and the concept of “public auction” has appeared.

Public contract

In the current version of Art. 426 of the Civil Code of the Russian Federation, the obligation to conclude an agreement with each applicant was imposed only on commercial organizations. From June 1, 2015, the rules on public contracts also directly apply to any person carrying out entrepreneurial activities.

This change is dictated by established practice. Public contracts are concluded not only by commercial companies or entrepreneurs, but also by non-profit organizations (clause 4 of article 50 of the Civil Code of the Russian Federation). Dissemination of Art. 426 of the Civil Code of the Russian Federation for individual entrepreneurs did not raise any questions due to clause 3 of Art. 23 of the Civil Code of the Russian Federation (it talks about the application to the activities of individual entrepreneurs of the rules provided for commercial organizations). But with non-profit organizations the situation was more complicated. Thus, the provision of paid medical services by non-profit organizations was not subject to Art. 426 of the Civil Code of the Russian Federation, and counterparties of non-profit organizations were often placed in an unjustifiably less advantageous position compared to clients of commercial clinics. And this is unacceptable from the point of view of protecting the weak side.

Another change is aimed at establishing the terms of the contract. Previously, the price and other conditions of the public contract had to be the same for everyone, with the exception of preferential categories. The law provides for the provision of benefits to various categories of consumers or counterparties only in relation to price, and other conditions of the public contract must equally apply to all persons.

Agreement of accession

Important novellas are contained in Art. 248 of the Civil Code of the Russian Federation on the agreement of accession. If the court finds the terms of the contract to be unfair and imposed on the weaker party, the contract itself will be considered modified or not in force from the moment of its conclusion. This is quite fair, since without hindsight it is pointless to challenge a contract in court.

In the best traditions of the Supreme Arbitration Court of the Russian Federation, paragraph 3 of Art. 428 Civil Code of the Russian Federation. Until now, the rules on an adhesion agreement concluded on the basis of a standardized proforma have not been applied in business relations. Now an important tool has appeared to protect the weak side of the contract: the ability of the courts to control the fairness and reasonableness of the terms of the contract in situations where there is a clear imbalance of negotiating power (for example, due to different professional levels or levels of awareness, in relations with monopolists, etc.) . Previously, it was possible to refer only to clauses 9 and 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 “On freedom of contract and its limits.”

By the way, we must not forget that this resolution solves the issue of combating imposed unfair conditions even more effectively. Paragraph 9 of this document states that instead of demanding a change in the terms of the contract, the weaker party directly in court can declare the injustice of such conditions on the basis of Art. 10 Civil Code of the Russian Federation. Then the court, if it recognizes the fact of abuse of law, will block their use.

For more information about the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16, see the article by A. Poletaeva “Freedom of contract: the Supreme Arbitration Court of the Russian Federation explains”

Preliminary agreement

The preliminary agreement must have a subject. All essential terms of the main contract no longer need to be agreed upon (clause 3 of Article 429 of the Civil Code of the Russian Federation).

In addition, clause 5 of Art. 429 of the Civil Code of the Russian Federation. It talks about the possibility of forcing the conclusion of the main contract. The deadline for making such a claim has also been established - six months from the date of failure to fulfill the obligation to conclude the contract.

In the next paragraph of paragraph 5 of Art. 429 of the Civil Code of the Russian Federation states that if the parties have disagreements, the terms of the main agreement can be determined by the court. Then the main agreement is considered concluded from the moment the court decision enters into legal force or from the moment specified in such a decision. However, the court will not always be able to determine, for example, the quantity of goods or the timing of construction work.

Framework agreement

A framework agreement (Article 429.1 of the Civil Code of the Russian Federation) is an agreement that defines the general conditions of the obligatory relationship between the parties. In other words, it is a contract without essential conditions. They can be specified and clarified by the parties in separate agreements, applications of one of the parties (which is very common in practice) or otherwise on the basis of or in pursuance of a framework agreement.

In addition, it is provided that if the relations of the parties are not further regulated by separate agreements (for example, when the parties have not concluded them), then the general terms of the framework agreement apply, unless otherwise specified in separate agreements or does not follow from the essence of the obligation (clause 2 of Article 429.1 Civil Code of the Russian Federation). However, the framework agreement does not always indicate essential conditions (for example, the name and quantity of goods) or certain independent provisions (for example, on confidentiality or applicable law). It therefore remains unclear how this rule should be applied. Moreover, judicial practice often proceeded from the non-conclusion of a framework agreement until the parties additionally agreed on all essential terms (resolution of the Thirteenth Arbitration Court of Appeal dated March 15, 2010 in case No. A56-62888/2009).

Option and option contract

The new edition of the Civil Code of the Russian Federation contains articles 429.2 and 429.3 - on the option to conclude an agreement and the option agreement (from the English option - choice). These contractual models have a general meaning and are typical options design structures in the world.

In the first case, the party has the right to accept and put into effect a certain main agreement, and in the second, the right to demand performance. In both models, the question of whether a relationship regarding, say, a purchase or sale will take place, is decided by only one party. Options are used most often in corporate legal relations (for example, in transactions with shares). Let us note that such transactions could be concluded before (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 6, 2001 No. 7601/00).

Under an option to conclude a contract, one party may require the other to conclude a contract, and the other party in this case is obliged to conclude a contract. Article 429.2 of the Civil Code of the Russian Federation considers the granting of the right to conclude an agreement as an irrevocable offer. Accordingly, the other party’s request to conclude an agreement will constitute acceptance. An offer can also be accepted in the event of the occurrence of potestative (i.e., dependent on the will of the parties) conditions.

This model is regulated in more detail than an option contract. The general rules are dispositive:

providing the opportunity to enter into a transaction can be either paid or free of charge;
the period for accepting an irrevocable offer as a general rule is one year;
as a general rule, payment under an option is not counted against payments under an agreement concluded on the basis of an irrevocable offer, and is not subject to return in the event that there is no acceptance;
the option must contain the essential terms of the future contract and be concluded in the form established for it;
the option agreement may be included in another contract.

Clause 7 of Art. 429.2 of the Civil Code of the Russian Federation provides for the possibility of assigning rights under an option to conclude a contract. However, it is not clear whether the rules on assignment or transfer of debt apply in this case.

If the option holder wanted to enter into a trade and the other party was unable to fulfill the terms of the option initially or subsequently lost it, the premium must be returned to the option buyer.

Arbitrage practice

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An option was concluded between the parties for the right to lease non-residential premises. Subsequently, the seller reported that it was impossible to provide this premises for rent. The plaintiff, in turn, refused to fulfill the contract and demanded reimbursement of the amount transferred for the transfer of the lease right.

The defendant's argument that in fact the seller transferred the right to enter into a lease agreement as a product, and the buyer accepted this right and paid an option fee for it, was rejected. The courts of all instances showed unanimity, recognizing that the plaintiff did not actually exercise the lease right provided for by the option (determined by the Supreme Arbitration Court of the Russian Federation dated June 10, 2010 No. VAS-7102/10 in case No. A40-53877/09-59-434).

An option to conclude a contract differs from a preliminary contract in that the latter obliges the conclusion of the main contract and, in case of violation, involves filing a claim to compel the conclusion. And in the case of an option, contractual obligations are “turned on” by simple notification.

Under an option agreement, one party has the right to demand, for a fee or free of charge, from the other party to perform actions specified in the agreement, such as payment of money, acceptance and transfer of property. An important condition is the deadline for submitting the claim, because after its expiration, the right to claim is lost, and the money paid under the contract is not returned. Thus, the fulfillment of obligations depends on whether the entitled party requests it or not. At the same time, she must pay the other party for the uncertainty in the relationship.

Optionality in the second type of contract is manifested not in the acceptance and entry into force of the main contract, but in the demand for performance. To avoid confusion, perhaps the parties in the contract should directly refer to the applicable norm of the Civil Code of the Russian Federation - 429.2 or 429.3.

Subscription agreement

Another conditionally new contract is a contract with execution on demand, or a subscription contract (Article 429.4 of the Civil Code of the Russian Federation). Of course, it was used earlier, and now it is named in the Civil Code of the Russian Federation. This agreement provides for the subscriber to make payments or other provision (performance of work, provision of services, delivery of goods) for the right to receive performance in the required amount or on other conditions determined by the subscriber. In certain periods, a subscriber may request and receive execution in a larger amount than his subscription fee, but in the next period it may be the other way around. The subscriber makes payment regardless of whether he requested execution or not.

The subscription agreement is widely used in the market (for example, consulting services, legal or accounting services, buffets, etc.). Previously, the courts often refused to collect the subscription fee from the contractor due to the lack of an act on the provision of services and recovered the cost of the services actually provided (resolution of the Ninth Arbitration Court of Appeal dated September 5, 2008 No. 09AP-1488/2010 in case No. A40-38670/04-63- 424). Subsequently, the Supreme Arbitration Court of the Russian Federation expressed the opposite point of view (determination of the Supreme Arbitration Court of the Russian Federation dated March 4, 2013 No. VAS-1686/13 in case No. A56-60294/2011), and the law enshrined it in the Civil Code of the Russian Federation. Now subscribers will not be able to demand a refund of the payment made due to the fact that during the term of the contract they did not exercise their right to receive services.

Invalidity of the contract

The law allows the conclusion of agreements that define the consequences of recognizing a voidable transaction as invalid if such an agreement is concluded by companies after the transaction is recognized as invalid and does not violate the interests of third parties or public interests (Clause 3 of Article 431.1 of the Civil Code of the Russian Federation). Now restitution (return of what was received under the transaction) is not the only consequence of an invalid contract. The parties may indicate, for example, that what was received under an invalid transaction is not returned or is returned in parts, establish a procedure for calculating the cost, or provide for other options.

Let us recall that a contestable transaction can be declared invalid if it violates the rights or legally protected interests of the person challenging the transaction, including if it entails adverse consequences for him (paragraph 2, paragraph 2, article 166 of the Civil Code of the Russian Federation).

Clause 2 of Art. 431.1 of the Civil Code of the Russian Federation introduces a ban on challenging a contract by a company that has accepted performance but has not fulfilled its obligation in full or in part. The exception is when:

the transaction was made in conflict with the goals of the company’s activities (Article 173 of the Civil Code of the Russian Federation);
the transaction was made under the influence of a material misconception (Article 178 of the Civil Code of the Russian Federation);
the transaction was made under the influence of deception, violence, threat or unfavorable circumstances (Article 179 of the Civil Code of the Russian Federation);
the performance provided by the other party is associated with its deliberately dishonest actions (clause 2 of Article 431.1 of the Civil Code of the Russian Federation).

In all of the above cases, the transaction can be challenged.

Some lawyers believe that illegal voidable transactions (clause 1 of Article 168 of the Civil Code of the Russian Federation) should also not be subject to this prohibition. However, this issue will be resolved by judicial practice.

Note that similar norms already exist in paragraphs 2 and 5 of Art. 166 of the Civil Code of the Russian Federation. They say that a party cannot challenge a transaction on grounds known to that party at the time the transaction was executed, if its behavior shows a desire to preserve the contract, and also when the party’s behavior gave the counterparty a reason to rely on the validity of the transaction.

Representations about the circumstances

Assurances about circumstances (Article 431.2 of the Civil Code) are messages about facts that are significant for the transaction. For example, the seller guarantees in the contract that the company has no debts to the tax authorities, no overdue debts to banks, no claims related to violation of labor rights are expected, no disputes with key clients, all necessary corporate approvals and the consent of the antimonopoly service have been received, there is a license or membership in a self-regulatory organization.

Of course, the witness cannot always reliably say whether the circumstances essential to the transaction correspond to reality, but he is always responsible to his counterparty for the assurances given. If it turns out that the assurances do not correspond to reality, the other party has the right to recover damages, penalties from the violator, refuse the contract or demand that it be declared invalid, depending on the situation.

The norm in question is linked to Art. 406.1 of the Civil Code of the Russian Federation on compensation for losses arising in the event of the occurrence of circumstances specified in the contract. Taken together, both norms are conditionally comparable to insurance. These provisions will allow the parties to agree on the distribution of post-contractual risks. For example, the seller of a company will have to reimburse the buyer for tax penalties collected for the period prior to the conclusion of the purchase and sale agreement.

In general, we can say that these norms have expanded the application of Art. 469 of the Civil Code of the Russian Federation on the quality of goods and Art. 475 of the Civil Code of the Russian Federation on liability for the transfer of goods of inadequate quality (which, by the way, can also be applied to the sale of shares).

Conclusion of an agreement

Article 432 has been supplemented with clause 3, according to which the party that has accepted the performance cannot demand that the contract be recognized as not concluded in order to comply with the principle of good faith.

Often, courts recognize contracts as concluded if the parties have fulfilled their obligations. But the fact of concluding a contract, for example, upon acceptance of goods, is not automatically recognized. Courts take into account the specific circumstances of the case, because uncertainty regarding an essential term missing from the contract (for example, the quantity of goods) may persist even when the contract has already been executed.

Clause 3 of Art. 433 of the Civil Code of the Russian Federation has been supplemented with a clarification that an agreement requiring state registration is considered concluded for third parties from the moment of registration, unless otherwise provided by law. Thus, a real estate lease agreement is subject to state registration, unless otherwise provided by law (Clause 2 of Article 609 of the Civil Code of the Russian Federation). The Plenum of the Supreme Arbitration Court of the Russian Federation considered that an unregistered lease agreement is concluded if the parties reached an agreement in writing on all essential terms. However, the benefits of the tenant under an unregistered agreement should not be opposed to third parties (clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 No. 73 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on the lease agreement”). For example, the tenant does not have a preemptive right to conclude an agreement for a new term, and the agreement does not remain in force if its parties change (Articles 621, 617 of the Civil Code of the Russian Federation).

But we must not forget that some contracts are considered concluded precisely from the moment of registration. This is, for example, a contract for the sale of an enterprise (clause 3 of Article 560 of the Civil Code of the Russian Federation) or a lease agreement for a building or structure concluded for a period of at least a year (clause 2 of Article 651 of the Civil Code of the Russian Federation).

In addition, the law supplemented Art. 434 of the Civil Code of the Russian Federation on the form of the agreement. It stipulates the right of the parties to enter into agreements through electronic documents without an electronic signature. To do this, it is necessary to identify the e-mail of the parties to the contract or other means of communication. That is, it must be reliably established that the document comes from the counterparty. However, the parties may provide that the agreement is concluded by drawing up one document signed by the parties (clause 4 of article 434 of the Civil Code of the Russian Federation).

Negotiation

The process of negotiating a contract is regulated by a new article. 434.1 Civil Code of the Russian Federation. It traces the line of introducing the idea of good faith into the Civil Code of the Russian Federation (in this case, when entering into negotiations, during them, and also upon their completion). The parties must:

do not interrupt negotiations suddenly and unjustifiably;
provide reliable and complete information about the circumstances relevant for making a decision on concluding a contract;
enter into and continue negotiations only with an honest intention to reach an agreement. At the same time, the parties are not responsible for the failure to reach an agreement.

If a potential counterparty behaved in bad faith, the injured party has the right to demand compensation for losses associated with negotiations (payment for a hotel, representative services, travel, etc.), incl. when the opportunity to conclude a similar agreement with a third party is lost. Losses will also have to be compensated if the unscrupulous party disclosed confidential information obtained during negotiations.

For your information

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The rules on compensation for losses do not apply to consumers (clause 6 of Article 434.1 of the Civil Code of the Russian Federation).

The possibility of concluding an agreement on negotiations is recorded, as well as the right of the parties to agree on a penalty for violating the procedure for conducting negotiations. However, liability for dishonest actions cannot be limited.

The parties have the right to determine the procedure for bearing the costs of negotiations or introduce liability for failure to reach an agreement. The freedom of the parties to negotiate may be limited by law or contract (for example, by prohibiting a dealer from conducting parallel negotiations on concluding a dealer agreement in a certain territory).

Thus, for all pre-contractual memorandums that define the procedure for conducting negotiations and are encountered when concluding major contracts, a legal basis will appear in the Civil Code of the Russian Federation.

Acceptance by silence

Article 438 of the Civil Code of the Russian Federation gives the parties to the contract the right to agree that silence in response to an offer will be considered acceptance. This design can be used, for example, in a framework agreement. It can be stated that the supplier’s silence after receiving an application from the buyer will constitute consent to supply the goods.

Earlier in Art. 438 of the Civil Code of the Russian Federation did not indicate that the rule “silence is a sign of consent” can be enshrined in a contract. However, paragraph 3 of Art. 158 of the Civil Code of the Russian Federation directly recognizes that silence is an expression of will to complete a transaction, including when the parties have previously agreed on this in the agreement.

Thus, the Law actually eliminated the inconsistency of the rules on acceptance from the Civil Code of the Russian Federation. At the same time, the issue of the period of silence when it is considered acceptance has not been resolved. Therefore, the parties can define it directly in the contract or proceed from the principle of reasonableness. This is important to prevent abuse by the acceptor.

Moment of conclusion of the contract

Clause 4 of Art. 445 of the Civil Code of the Russian Federation on the conclusion of an agreement is mandatory supplemented with a rule on the moment of its conclusion.

If the eligible party filed a claim to compel the conclusion of an agreement, the contract will be considered concluded on the terms specified by the court from the moment the court decision enters into force.

A similar conclusion was made by the Presidium of the Supreme Arbitration Court of the Russian Federation in resolution dated October 13, 2011 No. 4408/11 in case No. A68-6859/10. This practice is common in many European countries.

According to Art. 173 of the Arbitration Procedure Code of the Russian Federation and Art. 466 of the Civil Code of the Russian Federation, when resolving cases of compulsion to conclude an agreement, the court indicates the conditions under which the parties are obliged to conclude an agreement. But the codes did not determine the moment of conclusion of the contract.

Article 446 of the Civil Code of the Russian Federation on pre-contractual disputes establishes the period during which you can go to court regarding disagreements that arose during the conclusion of the contract. It is six months from the date the dispute arose. After this period, the courts will return the statements of claim.

Bargaining

The law regulates the organization and procedure for conducting auctions (Articles 447-449 of the Civil Code of the Russian Federation), which are, in particular, electronic auctions and competitions held under the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works , services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ).

The new rules resolve some of the controversial issues, for example, is it possible to transfer rights and obligations under a contract concluded at auction? By virtue of clause 7 of Art. 448 of the Civil Code, this is impossible unless otherwise established by law. However, Law No. 44-FZ does not provide any rules in this regard.

Clause 3 of Art. 448 of the Civil Code of the Russian Federation establishes that the terms of the contract concluded based on the results of the auction are determined by the organizer and must be indicated in the notice of the auction. The same requirement is contained in Art. 42 of Law No. 44-FZ, only more specific.

Organizers are given the right to refuse to hold auctions, but no later than three days, and from holding a competition - no later than thirty days before they are held. If these deadlines are violated, participants in open tenders will be compensated for actual damages. But the organizer compensates the participants of a closed auction (competition) for damages, regardless of the exact period of time after the notification was sent to the refusal to hold the auction (Clause 4 of Article 448 of the Civil Code of the Russian Federation).

Based on the results of the auction, a protocol is signed, which has the force of a contract (clause 6 of Article 448 of the Civil Code of the Russian Federation). This is the main criterion for recognizing the auction as valid. At the same time, the procedure for maintaining, structure and content of the protocol are not regulated by law.

In Art. 449 of the Civil Code of the Russian Federation provides an exhaustive list of grounds for declaring auctions invalid:

one of the participants is unreasonably excluded from participating in the auction;
The highest bid price was unreasonably not accepted at the auction. True, according to Law No. 44-FZ, the price must be the lowest (see, for example, Part 4 of Article 24 of Law No. 44-FZ);
the sale was made earlier than the period specified in the notice;
other significant violations of the auction procedure were committed, resulting in incorrect determination of the sales price;
other violations of the law were committed.

Thus, the Law specifies exactly in which cases auctions can be declared invalid at the request of their participant.

A shortened statute of limitations has been established for invalidating tenders. It is one year from the date of the auction (Clause 1, Article 448 of the Civil Code of the Russian Federation).

Art. appeared in the Civil Code of the Russian Federation. 449.1 “Public auctions”, which regulates the procedure for conducting auctions for the sale of the debtor’s property in enforcement proceedings.

Public auctions should only be conducted by a specialized organization that has special permission to do so. The debtor, claimant and persons having rights to property are given the right to be present at public auctions.

In paragraph 7 of Art. 449.1 of the Civil Code of the Russian Federation states that if the winner of the auction fails to pay the purchase price within the established period, the auction is declared invalid. The purchased property must be paid for within five days from the date of the auction. This period is established in Art. 91 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter referred to as the Law on Enforcement Proceedings). At the same time, this article lists other circumstances under which the auction is considered invalid:

less than two persons submitted applications for participation in the auction;
only one participant showed up for the auction, or the auction was completely ignored by all participants;
none of the bidders who appeared made a premium to the initial price of the property.

Since the Law on Enforcement Proceedings is special in relation to the Civil Code of the Russian Federation, when public auctions are declared invalid, these very grounds will continue to apply.

Change and termination of the contract

Clause 1 of Art. 450 of the Civil Code of the Russian Federation establishes the right of the parties to a multilateral entrepreneurial agreement to provide for a condition for amending and terminating the agreement by the majority of its participants or all parties. The procedure for determining such a majority can also be agreed upon in a multilateral treaty. This norm will be useful in corporate relations.

In principle, even before this change, there were no obstacles to such a solution to the issue of amending or terminating a multilateral treaty. Clause 1 of Art. 450 of the Civil Code of the Russian Federation directly provides that the parties can agree on the procedure for amending or terminating any contract directly in the document.

In paragraph 4 of Art. 450 of the Civil Code of the Russian Federation states that a party having the right to unilaterally change the terms of an agreement must act in good faith and reasonably. In practice, the right to unilaterally change the contract price is often given to banks or lessors. They must exercise this right in good faith so as not to violate the reasonable expectations of the other party. For example, it is permissible to raise the rate due to an increase in the cost of refinancing. But it is unconscionable to raise the rate several times without a reasonable economic justification. The Presidium of the Supreme Arbitration Court of the Russian Federation spoke about this in paragraph 3 of the Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147).

Refusal to execute the contract

Art. appeared in the Civil Code of the Russian Federation. 450.1 of the Civil Code of the Russian Federation “Refusal of an agreement (execution of an agreement) or the exercise of rights under an agreement.”

Refusal to fulfill the contract leads to its termination from the moment of receipt of notice of refusal. A different period may be specified in the contract or provided for by law. However, Art. 165.1 of the Civil Code of the Russian Federation has previously indicated that legally significant messages entail consequences for the second party precisely from the moment the letter is delivered. The notice of termination is precisely such a legally significant message.

In Art. 450.1 of the Civil Code of the Russian Federation also includes a requirement for the need to act in good faith and reasonably (clause 4). In particular, if the party having the right to refuse (if there are appropriate grounds) confirms the validity of the contract (for example, by accepting the fulfillment of an obligation from the other party), then it will not be able to use the same grounds for refusing the contract in the future (clause 5 of Art. 450.1 of the Civil Code of the Russian Federation). From this we can conclude that the party that confirmed the validity of the contract will also not be able to file a claim for termination of the contract. Obviously, the legislator assumes that a reasonable counterparty will not change its decision or behavior without reason.

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The lease agreement stipulates the lessor's right to withdraw from the agreement in the event of damage to his property.

The tenant damaged the property, and the lessor had the right to refuse the contract, but he behaved as if he did not consider such actions as grounds for refusal of the contract and renounced his right (in other words, he changed the terms of the contract by his conclusive actions).

Six months later, the landlord wanted to enter into an agreement with another person. To do this, you need to terminate the current lease agreement. He remembers that the tenant once damaged the property and refuses the contract with him.

Such actions cannot be considered as bona fide.

But there are other situations when the rule about the impossibility of repudiating the contract should not apply. For example, during the current delay, when the creditor, without waiting for the provision, refuses the contract.

In paragraph 6 of Art. 450.1 of the Civil Code of the Russian Federation stipulates that if a party waives its right (unless such refusal is prohibited by law), the subsequent exercise of this right for the same reasons is not allowed. This does not apply to cases where similar circumstances occur again. We are talking about situations such as debt forgiveness, waiver of early debt collection or the right to withdraw from a contract, etc.

Generally speaking, you can waive your rights for the entire duration of the contractual relationship or for some time (for example, not require repayment of the loan for several months). Therefore, the rules provided for in paragraph 6 of Art. 450.1 of the Civil Code of the Russian Federation, apply if the right is not exercised within the prescribed period.

The law provided for another important case when a party can refuse an agreement: if the counterparty does not have a license to carry out activities or membership in a self-regulatory organization, which are necessary to fulfill the obligation (clause 3 of Article 450.1 of the Civil Code of the Russian Federation). This means that the revocation or termination of a license after concluding an agreement does not terminate the obligations of the parties on the basis of the publication of a state act (Article 417 of the Civil Code of the Russian Federation). The parties will have to terminate the contract. At the same time, the absence of a license at the time of concluding the contract should not be grounds for declaring the transaction invalid. Indeed, in many cases, an agreement can be concluded before the license is issued with the expectation of receiving it in the future.

In addition, an agreement without a license will no longer be a void transaction, violating the requirements of the law (clause 2 of Article 168 of the Civil Code of the Russian Federation) or contrary to the fundamentals of law and order (Article 169 of the Civil Code of the Russian Federation), if it does not infringe on public interests or the interests of third parties .

Consequences of amendment and termination of the contract

Clause 2 of Art. 453 of the Civil Code of the Russian Federation indicates that with the termination of the contract, the obligations of the parties cease. Now the parties will be able to provide for other consequences of termination of the contract. However, this was practiced before, when the contract indicated that it would cease to be valid from a certain point, but payment obligations and (or) warranty obligations continue to apply.

In addition, we must not forget about the consequences of terminating certain types of contracts. Thus, upon termination of the lease agreement, the tenant is obliged to return the rented item, and the contractor is obliged to return the unpaid advance. The Plenum of the Supreme Arbitration Court of the Russian Federation warned about this in paragraph 2 of Resolution No. 35 dated June 6, 2014 “On the consequences of termination of the contract.”

For more information about the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35, see the article by V. Matulevich “Consequences of termination of the contract: the Supreme Arbitration Court of the Russian Federation explains”

In paragraph 4 of Art. 453 of the Civil Code directly states what rules are applied in case of violation of the principle of equivalence of provision. The rules of Chapter 60 of the Civil Code of the Russian Federation on unjust enrichment apply to claims for the return of what was performed before termination or amendment of the contract, unless otherwise follows from the contract, law or the essence of the relationship. The injured party to the contract has the right to demand the return of the provision transferred to the counterparty to the extent that this upsets the balance of interests of the parties. Note that courts have previously applied these rules.

Arbitrage practice

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The Ministry filed a lawsuit to terminate the contract and recover unjust enrichment. The LLC filed a counterclaim to collect debt for the work.

The courts relied on the results of expert opinions, according to which the work performed by the contractor did not have significant deficiencies. Therefore, there is no reason to consider the money paid as unjust enrichment.

The arbitrators noted that the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise provided by law or by agreement of the parties. At the same time, the court recognized that upon termination of the contract, a party is not deprived of the right to claim what was previously performed if the other party unjustly enriched itself (resolution of the Arbitration Court of the Ural District dated April 6, 2015 No. F09-1720/15).

Conclusion

It is clear that greater freedom of contract entails greater responsibility for its abuse. This thesis forms the basis of the reform.

The changes to the Civil Code of the Russian Federation were largely a consequence of legal advances. For example, the Supreme Arbitration Court of the Russian Federation, when resolving cases, applied the traditions of European law to Russian reality.

But the use of legal mechanisms, established by the findings of the courts, still presented a certain risk. Now they have become completely legal, which will allow you to confidently conclude agreements on the procedure for conducting negotiations, on options, subscription agreements, etc.

On the other hand, the presentation of legal norms is not always clear and successful, so a number of issues will have to be clarified in the courts. Thus, the principle of good faith behavior when refusing a contract (Article 450.1 of the Civil Code of the Russian Federation) and declaring it invalid (Article 431.1 of the Civil Code of the Russian Federation) is fixed more strictly than Art. 432 of the Civil Code on recognizing the contract as not concluded. But these are only special cases of application of Art. 10 of the Civil Code of the Russian Federation on abuse of rights, which depend on specific circumstances.

An agreement was concluded between the parties defining the general conditions for the supply of goods. The goods are supplied in batches according to the buyer’s requests, which are agreed upon with the supplier. Under the terms of the contract, the buyer undertakes to sell the purchased goods with a markup of no more than 30%. The contract stipulates that the goods are supplied at a 30% discount. The price without discount is indicated in the price list.
How to correctly reflect in documents the amount taking into account discounts on individual product items, given the impossibility of calculating the amount without rounding the prices of goods for them?

First of all, we note that accounting involves the registration with primary accounting documents of the facts of the economic life of the organization, which are understood, among other things, transactions (clause 8 of article 3, part 1 of article 9 of the Federal Law of December 6, 2011 N 402- Federal Law "On Accounting", hereinafter referred to as Law N 402-FZ).

Within the framework of civil legal relations, by concluding contracts as bilateral transactions, citizens and legal entities acquire and exercise their civil rights. At the same time, participants in civil legal relations are free to establish their rights and obligations on the basis of an agreement and to determine any terms of the agreement that do not contradict the law (Clause 2 of Article 1 of the Civil Code of the Russian Federation).

Consequently, the features of accounting of business transactions and the preparation of primary accounting documents are determined by the terms of the contract, the approval of which, as a general rule, depends on the discretion of the parties (clause 4 of Article 421 of the Civil Code of the Russian Federation).

In the case under consideration, it is necessary, first of all, to correctly characterize the relations of the parties from the point of view of civil law.

It follows from the question that the organization providing discounts is the supplier of the goods. Relations under a supply agreement are regulated by the norms of paragraph 3 “Supply of goods” of the Civil Code of the Russian Federation, and since the general provisions of the Civil Code of the Russian Federation on purchase and sale also apply to the supply agreement, unless otherwise provided by the rules of the Civil Code of the Russian Federation on supply (clause 5 of Article 454 of the Civil Code of the Russian Federation) , then the norms of paragraph 1 “General provisions on purchase and sale” of this Code.

In general, the question of whether the supply of a specific product constitutes an independent (one-time) transaction, or whether this transaction should be recognized as concluded in pursuance of a “framework” agreement, depends on specific circumstances and is not resolved uniformly in practice (see also the decision of the Tenth Arbitration Court of Appeal dated June 21 .2012 N 10AP-4202/12). However, in any case, a transaction for the supply of a specific batch of goods must be recognized as concluded at the moment when the parties reach an agreement on its essential terms, that is, on the name and quantity of the goods.

In relation to the issue under consideration, the above is important in terms of determining the price of the supplied goods. Since the price of the contract is agreed upon by the parties, it refers to the terms of the contract, which are determined at the discretion of the parties, and is considered agreed upon at the time of conclusion of the contract (clause 1 of Article 424 of the Civil Code of the Russian Federation).

Consequently, if in the case under consideration the delivery of each batch of goods actually represents a separate purchase and sale transaction (since the approval of the essential terms of the purchase and sale agreement is carried out only at the time of such a transaction, and not at the conclusion of a “framework” agreement, in addition, as follows from question, the only condition for granting a discount is the purchase of a certain batch of goods), one can reasonably assume that the price of the goods is determined taking into account the discount initially, when concluding a supply agreement (a separate batch of goods), and, accordingly, the price of the goods reflected in the TORG-12 consignment note represents is not the contract price reduced by the discount amount as a result of a change in its terms, but the price that the parties determine when concluding a contract for the supply of a separate batch of goods. Under such circumstances, we see no reason to draw up an act or other document confirming the amount of the discount and the conditions for its provision. As for determining the prices of individual product items, it should be noted that a decrease in the price of goods compared to that indicated in the organization’s price lists relates to contractual terms that the parties determine at their own discretion. The rules of accounting legislation, as well as tax legislation, cannot prescribe the procedure for applying a discount to the parties to a transaction. Therefore, the procedure for determining the prices of individual types of goods in the consignment note, including rounding of the corresponding amounts, must be provided for by the parties themselves. We believe that it can be enshrined in a “framework” agreement containing general terms of delivery, or another agreement of the parties drawn up in writing (clauses 1, 2 of Article 438 of the Civil Code of the Russian Federation). An agreement to provide a discount (understanding a reduction in the price of a product compared to the generally established price determined in the organization’s price lists) can also be drawn up as an annex to the specified supply agreement.

If the condition for reducing the price of the goods is agreed upon by the parties after its shipment (drawing up the invoice), the following must be noted. As a general rule, corrections are allowed in primary accounting documents (Part 7, Article 9 of Law No. 402-FZ). At the same time, the approved procedure for making corrections concerns only cases of detection of errors (see section 4 of the Regulations on Documents and Document Flow in Accounting, approved by the USSR Ministry of Finance on July 29, 1983 N 105).

In our opinion, providing a discount that changes the price of the shipped goods (retrospective discount) with a change in price does not lead to an error in the primary document - the consignment note (TORG-12), issued upon shipment of goods, and, consequently, to the need to make changes to this primary document.

A change in the contract price established by agreement of the parties in the cases and under the conditions provided for by the contract is drawn up in accordance with business customs (credit notes, advice notes, etc.) (see, for example, letter of the Ministry of Finance of Russia dated December 19, 2006 N 07-05-06/ 302).

Such registration does not provide for the obligation to adjust the primary documents for transaction transactions in this case (see letter of the Federal Tax Service of Russia dated 04/01/2010 N 3-0-06/63).

A credit note or other relevant document not only notifies the buyer about the reduction of his debt, but also serves as the primary document on the basis of which such a reduction is reflected in the taxpayer’s accounting (see also Resolution of the Ninth Arbitration Court of Appeal dated March 12, 2008 N 09AP-1723/2008) .

We also note that in a number of letters the Ministry of Finance of Russia explained that in the event of a change in the price of a unit of goods, the selling organization and the purchasing organization, based on corresponding changes in the data of the primary documents for the transfer of goods, make adjustments to the tax accounting data on the cost of sold (acquired) valuables. At the same time, to discounts provided to the buyer by indicating in the sales contract a reduced price of the goods (material), paragraphs. 19.1 clause 1 art. 265 of the Tax Code of the Russian Federation, which provides for accounting as non-operating expenses of the supplier of costs in the form of a premium (discount) paid (provided) by the seller to the buyer as a result of fulfilling certain terms of the contract, in particular the volume of purchases, does not apply (letter of the Ministry of Finance of Russia dated March 20, 2012 N 03-03 -06/1/137, dated 01/16/2012 N 03-03-06/1/13).

Therefore, there is no need to make corrections to the invoice (TORG-12), an act issued on your part (as indicated in your question) for granting a discount, which reflects the amount of the discount, is sufficient. If it is necessary to recalculate the prices of individual product items, as in the previous case, the procedure for applying the discount, including rounding of individual amounts, is determined by agreement of the parties. Reflection of prices taking into account discounts for accounting and tax purposes is a consequence of agreeing on the terms of the discount and the procedure for its application within the framework of the contractual relations of the parties.

Prepared answer:

Expert of the Legal Consulting Service GARANT

Erin Pavel

Response quality control:

Reviewer of the Legal Consulting Service GARANT

auditor Monaco Olga

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

The conditions under which the parties agree are the content of the contract.

· essential;

· ordinary;

· random

Conditions that are necessary and sufficient for concluding a contract are considered essential. In order to determine whether a particular condition is essential, it is necessary to be guided by Article 432, paragraph 1 of the Civil Code of the Russian Federation (2, Art. 432), which considers as essential those conditions regarding which, at the request of either party, an agreement must be reached.

Essential conditions are those without the agreement of which the contract does not acquire legal force, i.e. is not considered a prisoner. According to the Civil Code of the Russian Federation (Article 432), these are those clauses of the contract that are recognized as essential by law, are necessary for a contract of this type, as well as clauses regarding which, at the request of one of the parties, an agreement must be reached. In all cases, to conclude a contract, an agreement on its subject is necessary, and since most contracts are for compensation, an agreement on the price is mandatory. In the case where the fee agreement does not directly indicate the price and it can be determined from the terms of the agreement, payment must be made at the price that, under comparable circumstances, is usually charged for similar goods, work or services (Article 424, paragraph 3 of the Civil Code of the Russian Federation) . At the same time, the presence of comparable circumstances that make it possible to unambiguously determine what price should be followed must be proven by the interested party. If there are disagreements on the terms of the price and the parties fail to reach an appropriate agreement, the contract is considered not concluded.

Other essential conditions must be determined based on the rules governing the relevant type of contract.

The usual conditions are those that are typical for a contract of this type, provided for by law and mandatory for the parties to the contract. As a general rule, they are determined by dispositive norms, and the parties have the right to deviate from them.

Random conditions are those that the parties agree on in addition to the usual terms of the contract and that reflect the peculiarities of their relationship and specific requirements for the subject of the contract, the procedure for its execution, and liability for non-fulfillment (for example, a condition on the introduction of a penalty in cases of violation of the contract).

In cases where the condition of the contract is provided for by a norm that is applied to the extent that the agreement of the parties does not establish otherwise (dispositive norm), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm (Article 421, paragraph 4 of the Civil Code of the Russian Federation).

If the terms of the contract are not determined by the parties or by a dispositive norm, the corresponding conditions are determined by business customs applicable to the relations of the parties (Article 421, paragraph 5 of the Civil Code of the Russian Federation).

M.I. Braginsky believes that the existence of a classification of contract terms is a very controversial issue: “There cannot be any other conditions, except essential ones, in the contract. ... Some conditions become significant due to the mandatory norm for the parties, others - the fact that the rules of the dispositive norm were not challenged, others - the very nature of the corresponding model, and fourth - the agreement reached by the parties on the need to include them in the contract.” (9)

§ conditions on the subject of the contract;

§ conditions that are named in the law or other legal acts as essential;

§ conditions that are necessary for contracts of this type;

§ conditions regarding which, at the request of one of the parties, an agreement must be reached.

The conclusion that “only such terms can be recognized as the essential terms of the contract, the absence of which in the text of the contract entails the recognition of it as invalid”, Vitryansky V.V. considers it incorrect, and proposes to single out among all the essential terms of any contract those conditions that constitute the formative features of the corresponding contractual obligation. (8)

Let's consider the types of essential terms of the contract.

Subject of the agreement. The subject of the contract is the obligation arising from the contract. Represents actions (or inaction) that the obligated party must perform (or refrain from performing). An agreement cannot be concluded without defining what is the subject of the agreement.

For example, the subject of a purchase and sale agreement is the actions of the seller to transfer the goods into the ownership of the buyer and, accordingly, the actions of the buyer to accept this product and pay the established amount of money for it. The absence in the contract of clauses regulating the actions of the parties to transfer the goods to the buyer, as well as the acceptance and payment by the latter of the goods, is compensated by dispositive rules that determine the procedure and timing of these actions, which means the presence in the sales contract of an essential condition on the subject of the contract.

For example, Article 455 of the Civil Code of the Russian Federation provides for the following terms of a product agreement:

"1. The goods under a purchase and sale agreement can be any thing in compliance with the rules provided for in Article 129 of this Code.

2. An agreement may be concluded for the purchase and sale of goods available to the seller at the time of conclusion of the agreement, as well as goods that will be created or acquired by the seller in the future, unless otherwise established by law or follows from the nature of the goods.

3. The terms of the purchase and sale agreement regarding the goods are considered agreed upon if the agreement allows us to determine the name and quantity of the goods.”

Thus, if there is a dispositive rule in relation to any essential condition, the absence in the text of the contract of a clause defining this condition does not mean that the corresponding condition is absent from the contract. But in some cases, “the legislator, in relation to certain types of purchase and sale agreements, tightens the requirements for concluding the terms of the agreement by excluding the possibility of determining its essential conditions by dispositive norms” (8) This applies to a real estate sale agreement, where, in the absence of a price condition agreed upon by the parties, the agreement is considered not concluded and is not subject to application (2, Art. 555)

Conditions required for contracts of this type. Along with the conditions that are recognized as essential by law, the essential terms of the contract are traditionally distinguished, which, although not recognized as such by law, are necessary for contracts of this type. Such conditions are usually “contained in the very definition of the concept of the relevant type of contract.” (8, p. 9)

Conditions that are named in the law or other legal acts as essential for contracts of this type. In a number of cases, the Civil Code, when regulating a particular agreement, determines the range of its essential conditions. For example, in Art. 1016 (2) specifies the essential terms of the property trust management agreement. These include: the composition of the property transferred to trust management; the name of the legal entity or the name of the citizen in whose interests the property is managed and some others.

Conditions regarding which, at the request of one of the parties, an agreement must be reached. To recognize a condition of this type as essential, it is required that “in relation to the corresponding condition, one of the parties has directly stated the need to reach an agreement under the threat of refusal to conclude the contract. ... This group of conditions ... has legal significance only at the stage of concluding an agreement, which is completely lost from the moment the agreement is considered concluded.” (8, p. 111)

Ordinary conditions, unlike essential ones, do not require agreement between the parties:

§ are provided for in the relevant regulations;

§ They also include “sample conditions developed for contracts of the corresponding type and published in the press.” (5, p. 501);

§ and those business customs that come into force if the terms of the contract are not determined by the parties or by a dispositive norm. (2, art. 421, clause 5)

Random conditions are conditions that change or supplement ordinary conditions. They acquire legal force if included in the contract.

I continue the tradition of posting on Mondays a commentary on the next new article of the Civil Code of the Russian Federation. This time it is a commentary on Article 429.1 of the Civil Code on the framework agreement (an article that can hardly be called any successful or, at least, useful).

As usual, let me remind you that this text of mine is preliminary and not final. It will still be finalized, including taking into account your comments and suggestions. So I would be very grateful for any feedback. Let me remind you that these comments, periodically posted on Zakon.ru, are part of a large article-by-article commentary on the norms of the general part of the law of obligations of the Civil Code of the Russian Federation, which I am preparing in co-authorship with a number of colleagues.

Article 429.1. Framework agreement

1. A framework agreement (agreement with open terms) is an agreement that defines the general conditions of the obligatory relationship between the parties, which can be specified and clarified by the parties by concluding separate agreements, submitting applications from one of the parties, or otherwise on the basis of or in pursuance of the framework agreement.

2. To relations between the parties that are not regulated by separate agreements, including in the event that the parties do not conclude separate agreements, the general conditions contained in the framework agreement are subject to application, unless otherwise specified in the individual agreements or follows from the essence of the obligation.

A comment:

1. Article 429.1 of the Civil Code is a novelty of the Civil Code and came into force on June 1, 2015. It was intended to answer practical problems that arise when using the framework agreement design in circulation.

1.1. The main problem of clause 1 of Article 429.1 of the Civil Code is that it confuses an agreement with open conditions and a framework agreement in one definition.

An agreement with separate open conditions is, as a rule, a long-term agreement that contains a certain set of agreed conditions, but stipulates that the parties intend to specify it in the future by concluding additional agreements (see, for example, Article 2.1.14 of the UNIDROIT Principles). According to the practice of word usage that has developed in Russian usage, a framework agreement is a special type of agreement with open terms, which is characterized by the fact that it is strictly long-term in nature and designed for repeated use in business practice, and at the same time defines only the general conditions of the parties’ obligations, but postpones agreement on essential terms. After concluding a framework agreement, the parties usually begin to periodically sign additional agreements (hereinafter referred to as specification agreements) or otherwise fill in the essential terms missing from the framework agreement. As we can see, the fundamental difference between a framework agreement and a regular agreement with open terms is that a) the framework agreement is long-term in nature and designed for repeated use and b) it postpones the agreement on essential conditions.

It is quite obvious that the definition enshrined in clause 1 of Article 429.1 of the Civil Code does not indicate these fundamental features of the framework agreement, trying to give a general definition for both structures and, apparently, not seeing the difference between them. But when interpreting this article, courts should still see this difference. It’s one thing if the supply agreement contains all the essential terms, but the parties stipulate that they subsequently intend to agree on the method of shipment (an agreement with open terms), and quite another thing if in the supply agreement the parties did not agree on the name and quantity of the goods being shipped and decided to agree these conditions in the future (framework agreement).

1.2. If we focus on framework agreements, in principle, several options for the order of its specification can be identified.

a) Paragraph 1 of Article 429 of the Civil Code says that the specification of the essential terms of a framework agreement can be carried out in the form of concluding a specific agreement (usually this is an additional agreement, an appendix to the agreement, a specification, etc.). If the conclusion of such agreements in the future is in the area of good will of the parties, and there is not a single condition in the framework agreement that would have a direct legal effect and would bind the parties until the essential conditions are agreed upon, such a framework agreement, in principle, cannot be recognized as an independent transaction. Indeed, by virtue of clause 1 of Article 432 of the Civil Code, if essential conditions are not agreed upon, the contract, in principle, cannot be considered fully established. Such a framework agreement in itself does not give rise to any legal consequences, does not oblige anyone to anything and does not create any rights, but acts as a stage in the execution of the contract, a “repository” of pre-agreed conditions, opened only at the moment the parties agree on open essential conditions. In circulation, entering into contractual relations through the preliminary conclusion of such “empty” framework agreements with their subsequent specification in terms of essential conditions is very common, as it simplifies negotiations. Perhaps this is the model of formalizing relations that the parties most often call a framework agreement.

At the same time, if such a framework agreement contains some organizational conditions that are valid even before the agreement on essential conditions (arbitration clause, clause on applicable law, confidentiality conditions, assurances about circumstances, etc.), or there are conditions that apply to the procedure for such agreement (the condition that silence in response to an offer regarding essential conditions is considered as acceptance, the procedure for conducting negotiations to agree on essential conditions, etc.), in relation to such conditions, the framework agreement should be considered legally significant transactions. If the main part of such an agreement, devoted to the procedure for fulfilling the obligations of the parties (the general conditions of the obligatory relationship of the parties of the corresponding contractual type), comes into force only when these conditions are supplemented by the essential conditions necessary for the entry into force of the agreement of this type, but these separate organizational conditions acquire legal effect at the time of conclusion of the framework agreement.

b) The second option for specifying the terms of the framework agreement is to issue unilateral applications. Within the framework of this model, the parties in the framework agreement do not precisely define the essential conditions (for example, the name and quantity of goods), but agree that in the future these essential conditions will be determined at the will of one of the parties. Here we have the framework agreement granting one of the parties the “secondary” right to unilaterally determine a condition missing from the agreement (for example, how much goods the supplier is to ship). Such a condition is considered determined from the moment the other party receives such an application indicating the relevant execution parameters. Such an application acts as a unilateral transaction and the provisions of Article 165.1 of the Civil Code are fully applicable to it.

When the parties choose the option of specifying the terms of the framework agreement through unilateral applications, the agreement almost always fixes the limits within which the party having the “secondary” right to unilaterally complete the agreement is free to determine the appropriate conditions. For example, delivery contracts on demand usually indicate that the requested volume of goods should not exceed a certain limit.

If such a limit is not established in the contract, the rule on the inadmissibility of abuse of rights (Article 10 of the Civil Code) and the principle of good faith in the exercise of rights (clause 3 of Article 1 of the Civil Code) apply. A person authorized to replenish a framework agreement (an agreement with open terms) is obliged to exercise his right reasonably and in good faith, without undermining the reasonable expectations of the other party. For example, if the buyer in his application defines as the volume of goods required by him a quantity that clearly cannot be supplied by the supplier and goes beyond the standards accepted in circulation, the court may, in specific circumstances, recognize such behavior of the buyer as an abuse of right. Here we can cite as an example of such a decision Article II.-9:105 of the Model Rules of European Private Law: “If the price or other condition of the contract must be determined by one party and the condition determined by this party is extremely unreasonable, the established price or other condition are replaced by a reasonable one, notwithstanding the provisions of the contract to the contrary.” A similar solution in relation to determining the contract price, left open for unilateral determination at the will of one of the parties, is contained in paragraph 2 of Article 5.1.7 of the UNIDROIT Principles.

c) Sometimes in framework agreements the parties indicate that one of the parties undertakes to accept the applications of the other party if the essential conditions recorded in such applications fall within certain limits outlined in the framework agreement. In essence, here the framework agreement gives one of the parties the right to demand the conclusion of a specific agreement on its own terms. In principle, in such situations it is much more convenient to provide for the right to unilaterally complete the framework agreement through unilateral applications (without the need for a purely formal and therefore unnecessary acceptance by the other party). But if the parties decided to formalize their relationship in a different way and gave one party the right to demand the acceptance of their applications, and the other party was given the obligation to accept such applications, there is no point in objecting to the right. The consequence of evading acceptance of applications in such cases may be a claim for compensation of losses (or payment of a penalty, if such is established in the contract), or a claim for coercion to conclude a specific agreement.

1.3. It is impossible to include in a framework agreement or an agreement with open terms a provision that the parties undertake to agree on the content of open terms (in the case of a framework agreement, essential ones). The parties can agree that they undertake to conclude a certain agreement in the future on predetermined conditions (and then it will be a preliminary agreement), they can give one of the parties a “secondary” right to determine conditions missing in the agreement or give a second right to demand from the other party acceptance of their offer regarding open conditions, but they cannot commit themselves to agree on something in the future and find consensus.

As already noted, the parties can agree that if agreement is not reached on certain conditions, the dispute regarding the settlement of differences will be referred to the court (clause 1 of Article 446 of the Civil Code). But this mechanism, as a rule, is not applicable to framework agreements. In the overwhelming majority of framework agreements, the parties postpone specifying the subject matter of the agreement, and placing the burden of resolving disagreements regarding the subject matter of the agreement on the court is impossible. If the buyer wants 100 tons of grain, and the supplier is ready to ship only 2 tons, even the agreement of the parties to transfer the competence to resolve their dispute to the court cannot be of much significance. Resolving such disputes is not the task of the court.

2. Clause 2 of Article 429.1 of the Civil Code states that the provisions of the framework agreement (agreement with open terms) apply to the relations of the parties to the extent not determined by subsequently concluded specific agreements.

This provision is quite logical and can be fully attributed to the framework agreement. The framework agreement acts as a kind of “repository” of agreed terms, waiting to be opened by agreeing on the relevant essential terms. If such specification has taken place and the “repository” is open, the provisions of the framework agreement begin to apply to the relations of the parties in addition to what the parties were able to include in the specification agreement. If there is a conflict between the terms contained in the two documents, the later specifying agreement shall control.

The thesis about the priority of the terms of a specific agreement is equally justified in relation to a regular contract with open terms.

2.1. The norm of clause 2 of Article 429.1 of the Civil Code also states that the provisions of a framework agreement (agreement with open terms) apply to the relations of the parties, even if specific agreements are not concluded.

a) This provision of paragraph 2 of Article 429 of the Civil Code is fully consistent with the logic of regulating ordinary contracts with open terms. If the parties enter into an agreement, stipulate all the essential conditions in it, but directly declare some non-essential condition open for further specification, the parties could have several different constructions in mind. They could have meant, firstly, that the agreement does not come into force at all until the moment of specification; secondly, that the agreement comes into force immediately and is valid even if the parties do not agree on its specifications. Of course, the court must interpret the provisions of such an agreement and make a choice between these or other options according to the rules of Article 431 of the Civil Code on the interpretation of the agreement. But it would be reasonable if the legislator established some kind of presumption. In paragraph 2 of Article 429.1 of the Civil Code, as well as in Art. 2.1.14 of the UNIDROIT Principles enshrines such a “default” solution: if the parties cannot agree on the specification of the contract with open terms, the latter continues to act on the terms fixed in it.

Moreover, if the agreement is considered concluded and is in force, then there are two possible solutions to the problem of filling out the conditions left open in the agreement. Either this gap is filled through dispositive norms or the application of the rules of Article 6 of the Civil Code, or in the event of failure to agree on filling an open condition, the dispute over the settlement of disagreements may be referred to the court. It seems that the first option should be presumed, and the second should be inferred from the interpretation of the contract if there is a special indication in the text of the contract to grant the court the competence to resolve disagreements. In any case, the provision of clause 2 of Article 429.1 of the Civil Code is fully applicable to contracts with open terms.

b) But the application of this provision of paragraph 2 of Article 429.1 of the Civil Code not to an ordinary contract with open terms, but to a framework agreement, that is, an agreement in which essential conditions have not been agreed upon, requires some clarification.

This provision cannot be applied to the most common in practice, an “empty” framework agreement, which is not a transaction at all. So, for example, the provisions of a framework supply agreement that does not contain a single condition of direct legal significance cannot be applied to the relations of the parties if the parties were unable to agree on the name and quantity of goods in relation to the first shipment. There are simply no relations here, except for futile negotiations to agree on these essential conditions. Accordingly, the norm of paragraph 2 of Article 429.1 of the Civil Code on the applicability of the provisions of a framework agreement to the relations of the parties in the absence of a specific agreement should be interpreted restrictively and cannot apply to “empty” framework agreements that are not transactions at all.

At the same time, this provision of clause 2 of Article 429.1 of the Civil Code is applicable to framework agreements when it contains separate conditions, the legal force of which does not depend on the agreement of essential conditions (conditions on confidentiality, assurances about circumstances, conditions on the procedure for agreeing on essential conditions, etc.). As already noted, such conditions, by their nature, being included in the framework agreement, have corresponding legal consequences in the period before the essential conditions are agreed upon. Accordingly, to such and only such terms of the framework agreement can be applied the law’s indication that in the absence of consensus regarding the specification of the framework agreement, the provisions of such agreement apply to the relations of the parties.

In addition, this provision of paragraph 2 of Article 429.1 of the Civil Code is applicable to framework agreements that provide one of the parties with a “secondary” right to complete essential conditions, or impose on one of the parties the obligation to accept the applications of the other party. Such variants of a framework agreement give rise to certain rights and obligations at the time of their conclusion, and it is this legal effect that can be considered applied to the relations of the parties until the essential conditions are specified.

2.2. Often in practice the question arises as to whether a reference in a specific agreement to the details of a framework agreement is mandatory. The answer is obvious: if the application of the rules of interpretation of the contract leaves no doubt that the parties did not intend to draw up a one-time contract, but to specify a certain framework agreement, the absence of a formal reference to such a framework agreement is not of fundamental importance. See: clause 9 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 24, 2014 N 3853/14

2.3. The term of the framework agreement is not particularly important if it does not contain a single condition that would be legally valid before the agreement is specified. As already noted, such an “empty” framework agreement does not obligate anyone and does not create any rights. Accordingly, the inclusion of a validity period in such a framework agreement is meaningless. If the parties begin to actively use this framework agreement and repeatedly specify it, agreeing on all new batches or volumes of work, they may well “exceed” the validity period of the agreement. If they continue to refer in their specific agreements to the details of the framework agreement, its terms must be applied in addition to the terms of the corresponding specific agreements, despite the formal expiration of the period specified in the framework agreement (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 26, 2010 N 11479 /09)

ST 429.1 Civil Code of the Russian Federation

Commentary to Art. 429.1 of the Civil Code of the Russian Federation

1. Framework agreement (agreement with open terms) - an agreement that defines the general conditions of the obligatory relationship of the parties, which can be specified and clarified by the parties by concluding separate agreements, submitting applications from one of the parties, or otherwise on the basis of or in pursuance of the framework agreement. At the same time, the general conditions contained in the framework agreement are subject to application to the relations of the parties that are not regulated by separate agreements, including in the event that the parties do not conclude separate agreements, unless otherwise specified in the individual agreements or follows from the essence of the obligation.

2. The commented article was introduced by the Federal Law dated 03/08/2015 N 42-FZ, which entered into force on 06/01/2015, however, a similar qualification of the agreement was previously allowed in judicial practice (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 07/30/2013 N 1162/13, paragraph 9 information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165 “Review of judicial practice on disputes related to the recognition of contracts as unconcluded”).

Taking into account the above provisions of the law and the clarifications of the Presidium of the Supreme Arbitration Court of the Russian Federation, the cassation court, having assessed the construction contract presented in the case materials, which did not contain the essential conditions of this type of transaction (type and volume of specific work), but provided for the signing of relevant additional agreements defining them, recognized that that the lower courts correctly pointed out its framework nature. It was established that the plaintiff used design solutions transferred by the customer, which made it possible to determine the list and scope of work to be performed. Local estimates were agreed to the contract, also containing an indication of the types and volumes of work, acceptance documentation was signed, payment was made (see Resolution of the Arbitration Court of the Far Eastern District dated June 14, 2016 N F03-2368/2016 in case N A73-15911/2015) .

Considering the claim for debt collection under the supply agreement, the court recognized that from the established circumstances it follows that the contract concluded by the parties does not contain a condition on the quantity of goods supplied (Articles 455, 465 of the Civil Code of the Russian Federation), but provides for repeated delivery during the period of its validity goods, the quantity of which must be determined by other documents (clause 1.2 of the contract), is a framework agreement (Article 429.1 of the Civil Code of the Russian Federation) (see Resolution of the Arbitration Court of the North-Western District dated 01.06.2016 N F07-1490/2016 in case N A56-54136 /2015).

A similar conclusion was made by the Arbitration Court of the North Caucasus District, which also noted that supply agreements themselves are documents in which the parties agreed on all the essential terms of the supply agreement, that is, not only the name of the goods, but also its quantity, which in the situation under consideration is the signed by the supplier and accepted by the payment order dated 04/15/2015 N 4328 by the buyer for payment dated 03/10/2015 N 513 (see Resolution of the Arbitration Court of the North Caucasus District dated 06/17/2016 N F08-3159/2016 in case N A53-25954/2015) .