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COURSE WORK
discipline: "Civil Law"
on the topic: “The procedure for concluding, amending and terminating a contract”
Introduction
Chapter 1. Concept, content, form and types of contracts
Chapter 2. Conclusion of an agreement
Chapter 3. Change and termination of the contract
Conclusion
List of used literature
Introduction
A contract is one of the most ancient legal structures. Previously, in the history of the emerging law of obligations, only torts arose.
The development of various forms of communication between people has put forward the need to provide them with the opportunity, according to the will agreed by the parties, to use those proposed by the legislator or to create legal models themselves. Agreements (contracts) became such models.
The tendency towards increasing the role of the contract, characteristic of everything modern civil law, began to appear in recent years in an ever-increasing volume modern Russia. This trend is primarily associated with the recognition of private property and its gradual occupation of commanding heights in the economy, narrowing it to the necessary limits government regulation economic sphere, establishing freedom of choice of counterparties. The new Civil Code of the Russian Federation not only proclaimed “freedom of contracts”, but also created the necessary guarantees for its implementation.
The term “contract” is used in civil law in various meanings. A contract is understood as the legal fact underlying the obligation, the contractual obligation itself, and the document in which the fact of establishing an obligatory legal relationship is fixed.
Also, the definition of a contract is contained in Art. 420 Civil Code of the Russian Federation. A contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.
This topic is relevant for study because V modern society Without contracts, most transactions cannot be completed. The contract is an integral part of the life of a modern person.
The object of research in this course work is public relations that are related to contract law.
The subject of this study course work will be:
General questions regarding the concept, meaning of the contract;
The process of its conclusion;
The process of its modification and termination.
The purpose of this course work is to reveal the concepts of a contract, its main types, to study the procedure for its conclusion, modification, and termination.
Chapter1 . Concept, content, form and types of contracts
A contract is the most common type of transaction. Only a few unilateral transactions do not qualify as contracts. The bulk of transactions found in civil law are contracts. In accordance with this, the contract is subject to rules common to all transactions. The rules on bilateral and multilateral transactions apply to contracts. General provisions on obligations apply to obligations arising from an agreement, unless otherwise provided by the general rules on agreements and rules on certain types of agreements (clauses 2, 3 of Article 420 of the Civil Code).
Like any transaction, a contract is an act of will. However, this volitional act has its inherent specific features. It does not represent separate volitional actions of two or more persons, but a single expression of will expressing their common will. In order for this general will to be formed and enshrined in a contract, it must be free from any external influence. Therefore Art. 421 of the Civil Code establishes a number of rules ensuring freedom of contract.
Firstly, freedom of contract presupposes that subjects of civil law are free to decide whether or not to enter into a contract. Secondly, freedom of contract provides for the freedom to choose a partner when concluding a contract.
Thirdly, freedom of contract presupposes the freedom of participants in civil transactions to choose the type of contract. In accordance with clauses 2, 3 of Art. 421 of the Civil Code, the parties may enter into an agreement, both provided for and not provided for by law or other legal acts.
Fourthly, freedom of contract presupposes the freedom of discretion of the parties in determining the terms of the contract. In accordance with paragraph 4 of Art. 421 of the Civil Code, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts.
With all the freedom of a contract, the latter must comply with the rules obligatory for the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion. The existence of mandatory norms is due to the need to protect public interests or interests weak side agreement.
A contract is one of the most unique legal means in which the interests of each party, in principle, can be satisfied only by satisfying the interests of the other party. This gives rise to the common interest of the parties in concluding an agreement and its proper execution. Therefore, it is an agreement based on the mutual interest of the parties that is capable of ensuring such organization, order and stability in economic turnover, which cannot be achieved using the most stringent administrative and legal means.
The truly invaluable properties of a contract are preserved only as long as the freedom of discretion of the parties, necessary for any contract, is ensured when concluding it.
The conditions under which the parties agree are the content of the contract. According to their legal meaning, all conditions are divided into:
Essential;
Regular;
Random.
Conditions that are necessary and sufficient for concluding a contract are considered essential. In order for a contract to be considered concluded, all its essential terms must be agreed upon. The contract will not be concluded until at least one of its essential terms has been agreed upon. Therefore, it is important to clearly define which conditions are essential for a given agreement. The range of essential conditions depends on the characteristics of a particular contract. Yes, the price land plot, building, structure, apartment or other real estate is an essential condition of the real estate purchase and sale agreement (clause 1 of Article 555 of the Civil Code), although for a regular purchase and sale agreement the price of the goods sold is not considered an essential condition (clause 1 of Art. 485 Civil Code). In deciding whether a given contract condition is essential, the legislation establishes the following guidelines. transaction right obligation termination contract
Firstly, the conditions regarding the subject of the contract are essential (clause 1 of Article 432 of the Civil Code). Without defining what is the subject of the contract, it is impossible to conclude any contract.
Secondly, the essential conditions include those conditions that are named in the law or other legal acts as essential.
Thirdly, those conditions that are necessary for contracts of this type are considered essential. Necessary, and therefore essential, for a specific contract are those conditions that express its nature and without which it cannot exist as a given type of contract.
Fourthly, all those conditions regarding which, at the request of one of the parties, an agreement must be reached are also considered significant. This means that, at the request of one of the parties to the contract, a condition that is not recognized as such by law or other legal act and that does not express the nature of this contract also becomes essential.
Normal terms do not require agreement between the parties. The usual conditions are provided for in the relevant regulations and automatically come into force at the moment the contract is concluded. This does not mean that ordinary terms operate against the will of the parties to the contract. Like other terms of a contract, ordinary terms are based on the agreement of the parties. Only in this case, the agreement of the parties to subordinate the contract to the usual conditions contained in regulations is expressed in the very fact of concluding a contract of this type. It is assumed that if the parties have reached an agreement to conclude this agreement, then they have thereby agreed to the conditions contained in the legislation on this agreement. At the same time, if the parties do not wish to enter into an agreement on normal terms, they may include clauses in the content of the agreement that cancel or change the usual conditions, if the latter are determined by a dispositive norm.
Random conditions are those that change or supplement the usual conditions. They are included in the text of the agreement at the discretion of the parties. Their absence, as well as the absence of ordinary conditions, does not affect the validity of the contract. However, unlike ordinary ones, they acquire legal force only if they are included in the text of the contract. In contrast to the essential ones, the absence random condition only in this case entails the recognition of this agreement as not concluded if the interested party proves that it required the approval of this condition. Otherwise, the contract is considered concluded without the accidental condition.
To conclude an agreement, it is necessary to agree on all its essential terms in the form required in appropriate cases (clause 1 of Article 432 of the Civil Code). Since a contract is one of the types of transactions, general rules on the form of transactions apply to its form. In accordance with paragraph 1 of Art. 434 of the Civil Code, an agreement can be concluded in any form provided for transactions, if the law does not establish a specific form for agreements of this type. If the parties agreed to conclude an agreement in a certain form, it is considered concluded after giving it the established form, even if the law did not require such a form for contracts of this type.
If, according to the law or agreement of the parties, the contract must be concluded in writing, it can be concluded by drawing up one document signed by the parties, as well as by exchanging documents via postal, telegraphic, telephone, electronic or other communication that makes it possible to reliably establish that the document originated from the party under the contract (clause 2 of Article 434 of the Civil Code). The law, other legal acts and agreement of the parties may establish additional requirements that the form of the contract must comply with and provide for the consequences of non-compliance with these requirements (clause 1 of Article 160 of the Civil Code). If such additional requirements are not established, the parties, when concluding contracts, have the right to arbitrarily determine its details and their location in a written contract. Therefore, the order in which individual clauses of the agreement are arranged in the written form of the agreement does not in any way affect its validity.
A transaction for which the law does not establish a written or other specific form can be concluded orally or in any other form (Article 434 of the Civil Code of the Russian Federation). Such a transaction is also considered completed in the case when the person’s behavior makes clear his will to complete the transaction. However, if a simple written form is not observed, the parties are deprived of the right in the event of a dispute to refer to witness testimony to confirm the transaction, and in cases expressly specified in the law, the absence of a written form entails the invalidity of the transaction.
There are also standard agreements approved by the Government Russian Federation in cases provided for by law (clause 4 of article 426 of the Civil Code). The terms of such standard agreements are binding on the parties, and their violation leads to recognition as void or changes made or additions, or the entire agreement as a whole.
The form of the agreement is designed to consolidate and correctly reflect the agreed expression of will of its parties. However, in reality this does not always happen, unfortunately. It happens that the content of an agreement causes ambiguous interpretation and gives rise to disputes between its participants. This is due to the fact that the text of the agreement and its internal details are determined by the parties to the agreement, who are often not experienced in the intricacies of civil law and do not fully understand its terminology. In order to resolve these disputes, Art. 431 of the Civil Code formulates the rules for the interpretation of the contract . When interpreting the terms of a contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of a contract, if it is unclear, is established by comparison with other conditions and the meaning of the contract as a whole.
Numerous civil law contracts have both common properties and certain differences that make it possible to distinguish them from each other. In order to correctly navigate the entire mass of numerous and varied contracts, it is customary to divide them into individual species. This division can be based on a variety of categories, selected depending on the goals pursued. The division of contracts into separate types has not only theoretical, but also important practical significance. It allows participants in civil transactions to quite easily identify and use in their activities the most essential properties of contracts, and to resort in practice to a contract that best suits their needs.
Since contracts are a type of transactions, they are also subject to the division of transactions into various types. We propose to consider a division that relates only to contracts and does not apply to unilateral transactions.
The main contract directly gives rise to the rights and obligations of the parties related to the movement of material goods, transfer of property, performance of work, indication of services, etc. A preliminary agreement is an agreement between the parties to conclude a main contract in the future. Most contracts are main contracts; preliminary contracts are much less common.
Currently, the conclusion of preliminary agreements is regulated by Art. 429 of the Civil Code of the Russian Federation. In accordance with this article, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services under the conditions stipulated in the preliminary agreement. The preliminary agreement is concluded in the form established for the main agreement, and if the form of the agreement is not established, then in writing. Failure to comply with the rules on the form of the preliminary agreement entails its nullity.
A preliminary agreement must be distinguished from agreements of intent that take place in practice. These agreements of intent only record the desire of the parties to enter into contractual relations in the future. However, the agreement of intent itself does not give rise to any rights and obligations for the parties, unless otherwise stated in it. Therefore, the refusal of one of the parties to the agreement to sign the agreement provided for in such an agreement does not entail any legal consequences for him and can only affect his business reputation.
As a rule, contracts are concluded in favor of their participants, and the right to demand the execution of such contracts belongs only to their participants. At the same time, there are also agreements in favor of persons who did not take part in their conclusion, i.e. agreements in favor of third parties.
In accordance with Art. 430 of the Civil Code by agreement in favor of a third party An agreement is recognized in which the parties have established that the debtor is obliged to perform the obligation not to the creditor, but to a third party specified or not specified in the agreement, who has the right to demand from the debtor the fulfillment of the obligation in his favor.
Contracts for performance by a third party should be distinguished from contracts in favor of a third party. The latter do not provide any subjective rights to a third party. Therefore, a third party cannot demand the execution of such contracts.
Depending on the nature of the distribution of rights and obligations between the participants, all contracts are divided into mutual and unilateral. A unilateral agreement gives rise to only rights for one party, and only obligations for the other. In mutual agreements, each party acquires rights and at the same time bears obligations towards the other party. Most contracts are reciprocal in nature.
Unilateral contracts must be distinguished from unilateral transactions. The latter do not relate to contracts, since their execution does not require the agreement of the parties, but the will of one party is sufficient.
Compensatory and gratuitous contracts differ depending on the nature of the movement of material goods mediated by the contract. An agreement under which the provision of property by one party stipulates a counter provision of property from the other party is recognized as compensated. In a gratuitous agreement, property provision is made by only one party without receiving a counter property provision from the other party.
Based on the grounds for conclusion, all contracts are divided into free and binding. Free contracts are those contracts, the conclusion of which depends entirely on the discretion of the parties. The conclusion of binding contracts, as their very name implies, is mandatory for one or both parties. Most contracts are free. They are concluded at the request of both parties, which fully corresponds to the needs of the development of a market economy.
Among binding contracts, public contracts are of particular importance. For the first time in our legislation, a public contract was provided for in Art. 426 Civil Code. In accordance with this article, a public contract is characterized by the following features:
1. A mandatory participant is a commercial organization;
2. This commercial organization must carry out activities of selling goods, performing work or providing services;
3. This activity must be carried out by a commercial organization in relation to everyone who applies to it;
4. The subject of the agreement must be the implementation by a commercial organization of the activities specified in clauses 2 and 3.
Mutually agreed agreements and agreements of adhesion differ depending on the method of their conclusion. When concluding mutually agreed contracts, their terms are established by all parties participating in the contract. When concluding agreements of adhesion, their conditions are established only by one of the parties. The other party is deprived of the opportunity to supplement or change them and can enter into such an agreement only by agreeing to these conditions (by joining these conditions).
Chapter2 . Conclusionagreement
In order for the parties to reach an agreement and thereby conclude a contract, it is necessary that at least one of them makes an offer to conclude a contract, and the other accepts this offer. Therefore, the conclusion of an agreement goes through two stages. The first stage is called an offer, and the second - acceptance. In accordance with this, the party making an offer to conclude a contract is called the offeror, and the party accepting the offer is called the acceptor. The contract is considered concluded when the offeror receives acceptance from the acceptor.
At the same time, not every proposal to conclude an agreement acquires the force of an offer. A proposal recognized as an offer in accordance with Art. 435 GK:
a) must be sufficiently definite and express the clear intention of the person to enter into an agreement;
c) must be addressed to one or more specific persons.
In the absence of any of the above characteristics, the proposal can only be considered as a call for an offer (an invitation to make an offer).
A public offer should be distinguished from a call for an offer. This term is understood as a proposal containing all the essential terms of the contract, from which the will of the person making the proposal is seen to conclude an agreement on the conditions specified in the proposal with anyone who responds (clause 2 of Article 437 of the Civil Code). In this case, the offer to conclude an agreement is addressed to anyone and everyone. Therefore, the first person to respond to a public offer accepts and thereby withdraws the offer.
Acceptance is the consent of the person to whom the offer is addressed to accept this offer, and not just any consent, but only that which is complete and unconditional (clause 1 of Article 438 of the Civil Code). If consent in principle to the proposal to conclude an agreement is accompanied by any additions and (or) changes to the conditions contained in the offer, then such consent does not have the force of acceptance. The performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the terms of the contract specified in it is considered acceptance, unless otherwise provided by law, other legal acts or indicated in the offer (clause 3 of Article 438 of the Civil Code).
An offer and acceptance that have the necessary characteristics give rise to certain legal consequences for the persons who made them. The legal effect of an offer depends on whether it is received by its addressee or not. Until the offer is received by its addressee, it does not bind the offeror in any way and he has the right to withdraw it and thereby withdraw the offer to conclude an agreement. If a proposal to revoke an offer was received earlier or simultaneously with the offer itself, the offer is considered not received (clause 2 of Article 435 of the Civil Code). From the moment an offer is received by its addressee, it legally binds the offeror. An offer received by the addressee cannot be withdrawn within the period established for its acceptance, unless otherwise specified in the offer itself or follows from the essence of the offer or the situation in which it was made (Article 436 of the Civil Code). The offeror cannot, during this period, unilaterally withdraw the offer or enter into an agreement specified in the offer with another person. Otherwise, he will be obliged to compensate his counterparty for all losses incurred by the latter.
Like an offer, an acceptance binds the acceptor from the moment it is received by the offeror. Before acceptance is received by the offeror, the acceptor has the right to revoke the acceptance. Moreover, if the notice of withdrawal of acceptance was received by the person who sent the offer earlier than the acceptance or simultaneously with it, the acceptance is considered not received (Article 439 of the Civil Code).
The legal effect of an offer also depends on whether it is made with a deadline for a response or without a deadline for a response. If an offer is made with a deadline for a response, then the contract is considered concluded if acceptance is received by the person who sent the offer within the period specified in it (Article 440 of the Civil Code). If an offer is made without specifying a deadline for a response, then its legal effect depends on the form in which it is made. When an offer is made orally without specifying a period for acceptance, the contract is considered concluded if the other party declares its acceptance. If such acceptance is not followed, then the offeror is in no way bound by the offer he made. When an offer is made in writing without specifying a deadline for acceptance, the contract is considered concluded if acceptance is received by the person who sent the offer before the end of the period established by law or other legal acts, and if such a period is not established, within the normal period required for this. time (Article 441 of the Civil Code). The normally required time is considered to be the time sufficient to complete this type of correspondence in both directions, to become familiar with the content of the proposal made and to compose a response to it. If the response arrives within this period of time, the contract is considered concluded.
If acceptance is received late, then the fate of the contract depends on the offeror, who may ignore the late response and may agree to conclude the contract or refuse to conclude the contract due to the delay in responding to his proposal. If the offeror, having received a late acceptance, immediately informs the other party of the acceptance of his late acceptance, the contract is considered concluded.
If the addressee did not react at all to the proposal to conclude an agreement, then his silence is considered general rule as a refusal to conclude a contract. And only in cases directly provided for by law, business customs or previous business relations of the parties, silence is considered as consent to enter into an agreement (clause 2 of Article 438 of the Civil Code).
When concluding contracts, the question of the place and time of conclusion becomes of great importance. The legislation in force at the time of conclusion in the territory where the contract was concluded applies to contractual relations. The agreement is considered valid at the moment when the offeror receives the acceptor’s consent to conclude the contract. This moment is recognized as the time of conclusion of the contract. A different rule is provided for real contracts, which require not only the consent of the parties, but also the transfer of property. Finally, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law (Article 433 of the Civil Code). If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or at the location legal entity who sent the offer (Article 444 of the Civil Code).
The question of the beginning and end of the contract is also of great importance. In accordance with Art. 425 of the Civil Code, the contract comes into force and becomes binding on the parties from the moment of its conclusion. At the same time, the parties have the right to establish that the terms of the agreement they conclude apply to their relations that arose before the conclusion of the agreement. This may be an actual relationship between the parties.
As a general rule, the expiration of a contract only terminates its effect when the parties have properly fulfilled all their obligations. If at least one obligation arising from the contract is not properly fulfilled, then the latter does not terminate its validity even after the expiration of the period for which the contract was concluded.
The expiration of the contract does not relieve the parties from liability for its violation.
The mandatory procedure for concluding a contract is applied in cases where the conclusion of a contract is mandatory for one of the parties by force of law, that is, when concluding binding contracts. When concluding an agreement, the rules of Article 445 of the Civil Code are mandatory. The party interested in concluding an agreement, for whom its conclusion is not obligatory, sends to the other party, for whom concluding an agreement is obligatory, a draft agreement (offer). The party for whom the conclusion is binding must, within thirty days from the date of receipt of the offer, review it and send it to the other party:
Or a notice of acceptance;
Or a notice of acceptance of the offer on other terms (protocol of disagreement to the draft agreement);
Or a notice of refusal of acceptance.
In the first case, the contract will be concluded on the terms contained in the offer. In the second case, the party for whom the conclusion of the agreement is mandatory must, within thirty days from the date of receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its wording or of the rejection of the protocol of disagreements. In the third case, as well as in the event of failure to receive a response to the offer within the prescribed period, the contract will not be concluded, since its conclusion is not mandatory for the acceptor.
The possibility of concluding an agreement at an auction is provided for in Art. 447-449 Civil Code. This method of concluding contracts is widely used, for example, when concluding contracts for the privatization of state (municipal) property. The essence of this method is that the contract is concluded by the organizer of the auction with the person who wins the auction. Any agreement can be concluded in this way, unless otherwise follows from its essence.
The organizer of the auction can be the owner of the thing or the holder of property rights, or specialized organizations. The latter act on the basis of an agreement with the owner of the thing or the holder of property rights, and can act on their behalf or on their own behalf.
Trades can be held in the form of an auction or competition. The winner of the auction is the person who offered the highest price, and in the competition - the person who, according to the conclusion of the competition commission, pre-appointed by the auction organizer, offered best conditions. The form of bidding is determined by the owner of the item being sold or the owner of the property right being sold, unless otherwise provided by law.
The competition or auction must involve two or larger number persons, otherwise they lose their meaning. Therefore, paragraph 5 of Art. 447 of the Civil Code establishes that an auction and competition in which only one participant participated are recognized as invalid.
According to the rules set out above, public auctions should also be held in order to execute a court decision, unless otherwise provided by procedural legislation.
By its legal nature, a notice of bidding is a unilateral transaction that gives rise to corresponding legal consequences. In particular, an obligatory legal relationship is established between the person who received the notice of the auction and the auction organizer, by virtue of which the said person has the right to demand that the auction organizer accept and consider the proposal made by the person who has expressed a desire to participate in the auction. At the same time, by virtue of the direct instructions of the law (clause 3 of Article 448 of the Civil Code), the auction organizer who made the notification has the right to refuse to hold the auction at any time, but no later than three days before the date of its holding, and the competition - no later than than thirty days before the tender, unless otherwise provided by law or notice of tender.
In case the organizer open bidding refused to conduct them in violation of the established deadlines, he is obliged to compensate the participants for the actual damage they suffered. The organizer of a closed auction or closed tender does not have the right to refuse to hold it and bears corresponding responsibility to the persons invited to participate in the auction. If the organizer of a closed auction or closed competition refuses to bid, he is obliged to compensate the invited participants for real damage, regardless of the time at which the refusal to bid occurred.
Certain responsibilities are assigned not only to the auction organizer, but also to the participants. In particular, bidders must make a deposit in the amount, on time and in the manner specified in the notice of bidding.
The person who wins the auction and the auction organizer sign on the day of the auction a protocol on the results of the auction, which has the force of a contract. The person who wins the auction, if he evades signing the protocol, loses the deposit he made. If the organizer of the auction refuses to sign the protocol, he is obliged to return the deposit in double amount to the person who won the auction, as well as compensate him for losses incurred by participation in the auction in a part exceeding the amount of the deposit.
As a result of the auction, an obligation is established between the winner and the auction organizer to conclude an appropriate agreement. As part of this obligation, the winning bidder has the right to demand the conclusion of a contract with him. The very obligation to transfer property, perform work or provide services arises from a complex legal structure: the holding of tenders and the contract concluded on the basis of their results. Since the contract in such cases is concluded on the basis of tenders, its validity depends on the validity of the tenders held. If a tender conducted in violation of the rules established by law is declared invalid by the court at the request of an interested party, the contract concluded with the person who won the tender is also invalid (Article 449 of the Civil Code). Not only bidders, but also persons who were denied participation in the competition (auction) can apply to the court to invalidate the results of a competition or auction. In this case, an illegal refusal to participate in a competition (auction) may serve as a basis for declaring the results of the competition (auction) invalid.
Chapter3 . ANDchangeeand terminationagreement
Concluded agreements must be executed on the terms on which the parties agreed and must not be changed. This general rule gives stability to civil circulation. This rule also applies when, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties that are different from those that were in force at the time the contract was concluded. In this case, the terms of the concluded agreement, according to the general rule of paragraph 2 of Art. 422 Civil Code remain in force. Thus, the parties to the agreement create confidence in the stability of the terms of the agreement they have concluded, which is necessary for the normal development of civil circulation.
At the same time, a situation may arise when the interests of society require changing the terms of already concluded contracts. There is an exception to the above rule in this case. A newly adopted law may establish that its effect extends to relations arising from previously concluded agreements. Attention should be paid to the fact that in accordance with paragraph 2 of Art. 422 of the Civil Code, only a legal act that has the right to change or cancel the terms of an already concluded contract can legal force law. Other legal acts cannot have retroactive effect on the terms of concluded contracts.
Amendment or termination of the contract is possible only by mutual agreement of the parties. Exceptions to this rule may be established by law or contract.
In accordance with paragraph 2 of Art. 424, a change in price after the conclusion of an agreement is allowed in cases and under the conditions provided for by the agreement, the law or in the manner prescribed by law.
In cases where the possibility of changing or terminating the contract is not provided for by law or contract and the parties have not reached an agreement on this, the contract can be terminated or changed at the request of one of the parties by a court decision and only in the following cases:
1) in case of a significant violation of the contract by the other party;
2) due to a significant change in the circumstances from which the parties proceeded when concluding the contract;
3) in other cases provided for by law or agreement (Articles 450, 451 of the Civil Code).
A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.
A significant change in the circumstances from which the parties proceeded when concluding the contract only in that case constitutes grounds for termination or modification of the contract, unless otherwise provided for by the contract or follows from its essence.
If the parties have not reached an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it, then the interested party has the right to demand termination of the contract in court if the following conditions are simultaneously met:
1) at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;
2) the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence that was required of it by the nature of the contract and the conditions of turnover;
3) execution of the contract without changing the conditions would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;
4) it does not follow from business customs or the essence of the obligation that the risk of changes in circumstances is borne by the party interested in terminating the contract.
Changes and termination of the contract, as well as its conclusion, are subject to certain rules. First of all, actions to amend or terminate contracts are transactions by their legal nature. Consequently, the general rules on transactions apply to them. Along with this, special rules relating to the form of their execution apply to the amendment and termination of contracts. In accordance with paragraph 1 of Art. 452 of the Civil Code, an agreement to amend or terminate a contract is carried out in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or business customs.
The actions of the parties to terminate and amend the contract are not only a transaction, but also an agreement, since they represent an agreement between individuals aimed at either changing or terminating civil rights and obligations. Because of this, they are subject to the general rules on the procedure for concluding a contract.
A different procedure for changing or terminating a contract is provided (established) for those cases when the contract is changed or terminated not by agreement of the parties, but at the request of one of them. If this requirement is based on one of the grounds set out above, the procedure for changing or terminating the contract is as follows: the interested party is obliged to send the other party a proposal to terminate or change the contract, the other party is obliged within the period specified in the proposal or established in the law or contract, and if in its absence, within thirty days, send to the party that made the proposal to amend or terminate the contract:
1) or a notice of agreement with the proposal;
2) or a notice of refusal of the offer;
3) or a notice of consent to change the contract on other terms.
In the first case, the contract is considered accordingly amended or terminated at the moment of receipt of notice of consent by the party who made the proposal to amend or terminate the contract. In the second case, as well as in the event of failure to receive a response within the prescribed period, the interested party has the right to apply to the court to terminate or amend the contract, which will resolve the dispute that has arisen. In the third case, the party that made the proposal to change the contract may agree with the counterparty’s proposal. In this case, the contract is considered amended on the terms proposed by the counterparty. If the party that made the proposal to change the contract does not agree with the counterparty’s counter-proposal, it has the right to go to court with a demand to change the contract. In this situation, the conditions to be changed will be determined by the court decision.
In paragraph 2 of Art. 452 of the Civil Code especially emphasizes that a claim to amend or terminate a contract can be submitted by a party to the court only after receiving a refusal from the other party to propose changing or terminating the contract or failure to receive a response within the time period specified in the proposal or established by law or the contract, and in its absence - within thirty days.
However, it should be borne in mind that it is impossible to terminate or change an already executed contract. The fact is that the contract, as well as the obligation based on it, are terminated as a result of their proper execution (Article 408 of the Civil Code). Therefore, it is impossible to terminate or change something that does not exist at the time of termination or change.
If the agreement is amended, the content of the obligation based on this agreement changes accordingly. In this case, the obligation changes to the extent that the underlying contract has been changed.
If the change or termination of the contract occurred by mutual agreement of the parties, then the obligation based on it changes or terminates accordingly from the moment the parties enter into an agreement on the change or termination of the contract. However, another rule may follow from the content of the agreement or the nature of the change in the contract.
If a contract is amended or terminated by court, the obligation based on it is correspondingly changed or terminated from the moment the court decision to amend or terminate the contract enters into legal force.
Since before the amendment or termination of the contract the latter could have been fulfilled to a certain extent by the parties, the question arises about the fate of what had already been performed before the amendment or termination of the contract. As a general rule, 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. However, another rule may be provided by law or by agreement of the parties.
If the contract was changed or terminated due to a significant violation of its terms by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract (clause 5 of Article 453 of the Civil Code).
Conclusion
As a result of the study, we would like to draw the following conclusions.
A contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations. An agreement is not a formality, not a tradition. First of all, this is an agreement of the parties, an act in which their mutual agreement is expressed to act together in the interests of mutual benefit.
When drawing up a contract, the offeror sends the offer to the acceptor and he, in turn, can respond to the offer with acceptance or refusal.
We found out that the time of conclusion of the contract is considered the moment the offeror receives the consent of the acceptor.
The place where the contract is concluded plays a big role in the conclusion of the contract.
The date of signing the contract is associated with certain legal consequences, in particular the point in time from which the contract begins to operate, the end of the contract, etc. If the parties to the contract sign it in different times, then it is considered concluded from the moment it is signed by the last party.
Changing and terminating contracts plays an important role. But as we found out, concluded contracts must be executed on the terms on which the parties agreed and should not be changed. This general rule gives stability to civil circulation. But still, the law defines a certain rule for changing and terminating contracts.
A legal act having the legal force of law can change or cancel the terms of an already concluded contract.
It should be noted that contract law is a very broad area of law.
A legally correctly drafted agreement is a guarantee of the successful achievement of the goals and objectives pursued by an economic entity, as well as the effective protection of its rights and legitimate interests.
List of used literature
1. Civil Code of the Russian Federation (parts one, two, three, four): As of April 1, 2010. - Novosibirsk: Sib. Univ. publishing house, 2010.
2. Andreev V.K. Execution of the contract and its provision // Accounting? 1995. ? No. 9.
3. Belov V.A. On the relationship between the concepts of obligation and contract / V.A. Belov // Bulletin of civil law. - 2007. - No. 4.
4. Braginsky M.I. ABOUT regulatory regulation contracts // Journal of Russian Law. ? 1997. ? No. 1.
5. Braginsky M.I., Vitryansky V.V. / Contract Law: General provisions. - M.: Publishing house “Status”, 1998.
6. Vitryansky V.V. Essential terms of the contract // Economy and Law. ? 1998. ? No. 7.
7. Civil law: textbook. / S. S. Alekseev, B. M. Gongalo, D.V. Murzin [and others]; under general ed. Corresponding member RAS S. S. Alekseeva. -- 2nd ed., revised. and additional - M.: Prospekt; Yekaterinburg; Institute of Private Law, 2009.
8. Civil law: Textbook / Ed. ed. V.F. Yakovleva - M.: Publishing house RAGS, 2003.
9. Civil law. Part one. / Edited by A.G. Kalpina, A.I. Maslyaeva. ? M.: Lawyer, 1997.
10. Civil law: Textbook. In 2 volumes / Edited by E.A. Sukhanov. M.: BEK, 1993.
11. Dedikov S. Public contract // Economy and law. ? 1997. ? No. 11.
12. Kabalkin A. Interpretation and classification of contracts: Commentary on the Civil Code of the Russian Federation // Russian Justice. ? 1996. ? No. 7.
13. Potyarkin D. Conclusion of an agreement // Economy and law. ? 1997. ? No. 11.
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18. Contracts are concluded by drawing up one document signed by the parties, or by accepting the buyer’s order for execution by the supplier. Contractual relations can also be established through the exchange of letters, telegrams, teletype messages, telephone messages, and radiograms.
When concluding contracts, they apply unified forms orders, notices of attachment, protocols of disagreements that meet the requirements of machine processing. These forms are approved by the USSR State Supply Committee.
19. Contracts are concluded for 5 years, for a year or another period.
The contract must necessarily define the nomenclature (assortment), quantity and quality of products, delivery time and price, and in a long-term contract for direct long-term economic relations, the name, group nomenclature (assortment) and quantity of products, the procedure and timing for approval and submission of specifications. If these conditions are not present in the contract, it is considered not concluded.
20. Projects of long-term contracts for organizing supply by wholesale trade and for the organization of complex supply are sent to the buyer in 2 copies no later than 4 months before the start of the period for which the contract is concluded.
21. If a contract for the supply of undistributed products is concluded for a year or a shorter period, the buyer sends an order to the supplier in 2 copies indicating the quantity, detailed nomenclature (range) or technical specifications, product quality, delivery time, price and other necessary data.
The order is considered accepted for execution and acquires the force of a contract if, within 20 days after its receipt, the supplier does not notify the buyer of the rejection of the order or of objections to its individual terms. The supplier indicates objections to individual terms of the order and their reasons in the signed order.
If it is necessary to agree on additional conditions not provided for in the order, the supplier, within the same period, sends the buyer a draft contract in 2 copies.
At the request of one of the parties, relations for the supply of products are formalized by concluding an agreement signed by the supplier and the buyer.
22. The party, no later than 20 days after receiving the draft agreement, signs it and returns 1 copy of the agreement to the other party.
If, upon receipt of a draft contract for the supply of distributed products or for the supply of products for existing economic ties, the parties to the contract have objections to its terms, then no later than 20 days after receiving the draft, they draw up a protocol of disagreements and send it in 2 copies to the other party along with the signed agreement, stipulating the existence of disagreements in the agreement.
The party that received the protocol of disagreements is obliged, no later than 20 days after receipt, to consider it (if necessary, together with the other party), include all accepted proposals in the contract, and submit controversial issues within the same period for resolution by arbitration, and in cases provided for by law , - ships. When the buyer receives an order with objections from the supplier, the buyer submits the unresolved disagreements within the same period for resolution, respectively, by arbitration or court.
If the party that received the protocol of disagreements or an order with objections does not submit the remaining unresolved disagreements for resolution by arbitration or court, respectively, within 20 days, then the proposals of the other party are considered accepted.
Until disagreements under the contract (order) are resolved, the supplier supplies products in the quantity and nomenclature (assortment) agreed with the buyer.
If the supplier evades concluding an agreement for the supply of distributed products, as well as an agreement for the supply of products with existing economic ties, or a dispute under the terms of such an agreement, the buyer has the right to submit the dispute for resolution, respectively, by arbitration or court.
23. Supply contracts may be concluded at fairs for the wholesale sale of products. The procedure for organizing and holding fairs is determined by the Council of Ministers of the USSR.
24. The contract or its individual terms that contradict the law are invalid.
The contract can be changed or terminated only by agreement of the parties, unless otherwise provided by law. The parties have the right to extend the agreement for a new period.
The change, termination or extension of the contract is formalized by an additional agreement signed by the parties, or by exchanging letters, telegrams, teletype messages, telephone messages, radiograms.
The party that has received a proposal to amend or terminate the contract or to extend the term of the contract is obliged to respond to the other party no later than 10 days after receiving the proposal. If the parties fail to reach an agreement, the dispute between the parties is resolved at the request of the interested party by arbitration, and in cases provided for by law, by the court.
According to the general rule provided for in Art. 432 of the Civil Code, 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 agreement can be concluded in any form provided for the execution of transactions, if the law does not establish a specific form for contracts of this type. If the parties agreed to conclude an agreement in a certain form, it is considered concluded after giving it the agreed form, even if the law did not require such a form for contracts of this type.
An agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement. An agreement may be concluded in notarial form if such a form is provided by law.
The conditions regarding the subject of the contract are essential, conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached. Thus, the materiality of the conditions is regulated both by mandatory provisions of laws and by the dispositive method of regulation, giving the parties the right to form the conditions of future legal relations. It is necessary to understand that in some cases an agreement is regarded by law and judicial practice as the only sufficient legal fact for the emergence of certain legal relations (for example, civil law).
The contract can be 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, i.e. by mutual agreement of the parties in the ways specified in the law (signing, exchange of documents, by accession, implied actions, etc.).
In accordance with Art. 450 of the Civil Code, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code, other laws or the contract.
At the request of one of the parties, the contract can be changed or terminated by a court decision only:
- in case of a significant breach of contract by the other party;
- in other cases provided for by the Civil Code, other laws or agreement.
A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract.
In the event of a unilateral refusal to fulfill the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered, respectively, terminated or modified.
A significant change in the circumstances from which the parties proceeded when concluding the contract is the basis for its modification or termination, unless otherwise provided for by the contract or follows from its essence. This occurs when they have changed so much that if the parties could have reasonably foreseen it, the contract would not have been concluded at all or would have been concluded on significantly different terms.
If the parties have not reached an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it, the contract may be terminated. An agreement may be changed by a court in exceptional cases when termination of the agreement is contrary to public interests or will entail damage for the parties that significantly exceeds the costs necessary to execute the agreement on the terms changed by the court, at the request of the interested party, if the following conditions are simultaneously present:
- at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;
- the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence required of it by the nature of the contract and the conditions of turnover;
- execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;
- It does not follow from business customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.
An agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, the contract or business customs.
A requirement to change or terminate a contract may be filed by a party in court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - within 30 days (compliance with pre-trial order).
The purpose of this course work is to consider general issues relating to the concept of the meaning of the contract, its place in modern civil law, the legislation of the content and form of the contract, as well as such a question that has important theoretical and practical significance for understanding the essence of the contract as the process of its conclusion, amendment and termination. Objectives of this work: To identify the essence, content, basic terms and form of the contract.
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The legislation regulates in sufficient detail the procedure for concluding, amending and terminating a civil contract. Let's consider what this procedure is, provided for in Art. 432 – 453 Civil Code RF.
In order for the parties to reach an agreement and thereby conclude a contract, it is necessary that at least one of them makes an offer to conclude a contract, and the other accepts this offer. Therefore, the conclusion of an agreement goes through two stages. The first stage is called an offer, and the second - acceptance. According to this, the party making an offer to enter into a contract is the offeror, and the party accepting the offer is the acceptor. The contract is considered concluded when the offeror receives acceptance from the acceptor.
In order for a proposal to be recognized as an offer, it must comply with the requirements of Art. 435 Civil Code, namely:
- must be sufficiently definite and express the person’s clear intention to enter into a contract;
- must contain all essential terms of the contract;
- must be addressed to one or more specific individuals.
The first requirement is due to the fact that without a person’s intention to conclude an agreement, it cannot be concluded, even if this person informed the counterparty of all the essential terms of the agreement. The second requirement follows from paragraph 1 of Art. 432 of the Civil Code, according to which an agreement is considered concluded if an agreement is reached between the parties on all the essential terms of the agreement. If a proposal to conclude an agreement lacks at least one of the essential conditions, it cannot be concluded, even if the other party agrees with such a proposal. Finally, the third requirement is due to the fact that at the moment the contract is concluded, the offer to conclude it must be withdrawn. Otherwise, a situation may arise in which several contracts can be concluded in relation to the same subject, of which only one can actually be executed.
Since in Art. 435 of the Civil Code defines the requirements for an offer, we can conclude that in the absence of any of the above signs, the offer can only be considered as an invitation to make an offer.
It is necessary to distinguish a public offer from a call for an offer. A public offer is understood as a proposal containing all the essential terms of the contract, from which the will of the person making the proposal is understood to conclude an agreement on the conditions specified in the proposal with anyone who responds (clause 2 of Article 437 of the Civil Code). In this case, the offer to conclude an agreement is addressed to anyone and everyone. Therefore, the first person to respond to a public offer accepts it and thereby withdraws the offer.
Acceptance is the consent of the person to whom the offer is addressed to accept this offer.
The acceptor's intention to accept the offer must be expressed in such a way that there is no doubt either about the fact of acceptance or about the coincidence of the terms of acceptance with the terms of the offer. These requirements can be expressed in the rule that acceptance must be absolute and consistent with the terms of the offer. If consent to the proposal to conclude an agreement is accompanied by any additions or changes to the conditions contained in the offer, “then it can only be considered an invitation to negotiations, but not acceptance. If the person who received the offer, within the period established for its acceptance, takes actions in accordance with the fulfillment of the terms of the contract specified in it (shipment of goods, payment of the appropriate amount, etc.), then this is considered acceptance, unless otherwise provided by law, other legal acts or not specified in the offer.
Before acceptance is received by the offeror, the acceptor has the right to revoke the acceptance. At the same time, Art. 439 of the Civil Code establishes the rule: if a notice of revocation of an acceptance was received earlier than the acceptance or simultaneously with it, the acceptance is considered not received.
If the response about consent to conclude an agreement is given on conditions other than those proposed in the offer, then such a response is recognized as a refusal of acceptance and at the same time a new offer (Article 443 of the Civil Code). If the parties themselves cannot resolve disagreements that arose during the conclusion of the contract, then they have the opportunity to come to an agreement to submit the dispute to the court (Article 446 of the Civil Code). In this case, the terms of the contract on which the parties have not reached agreement are determined in accordance with the court decision.
If the addressee did not react at all to the proposal to conclude an agreement, then his silence is considered, as a general rule, as a refusal to conclude an agreement.
When concluding contracts, the question of the time and place of concluding the contract becomes important. The legislation in force at the time of its conclusion in the territory where it was concluded is applied to contractual relations. The agreement is considered completed at the moment when the offeror receives the consent of the acceptor. This moment is recognized as the time of conclusion of the contract. A different rule is established for real contracts, which are considered concluded from the moment of transfer of the relevant property. Finally, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law (Article 433 of the Civil Code). If the contract does not indicate the place of its conclusion, then in accordance with Art. 444 of the Civil Code, an agreement is recognized as concluded at the place of residence of the citizen or at the location of the legal entity that sent the offer.
The question of the beginning and end of the contract is also of great importance. As Art. 425 of the Civil Code, the contract comes into force and becomes binding on the parties from the moment of its conclusion. At the same time, the parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement.
There is a general rule according to which the expiration of a contract only terminates its effect when the parties have properly fulfilled all their obligations. If at least one obligation arising from the contract is not properly fulfilled, then the latter does not terminate even after the expiration of the period for which the contract was concluded. At the same time, the law or contract may provide that the expiration of the contract entails the termination of the obligations of the parties under the contract.
Finally, the expiration of the contract does not relieve the parties from liability for its violation. For example, the supplier is responsible to the buyer for defects in the delivered goods even after the expiration of the supply agreement.
The legislation provides for a procedure when the conclusion of an agreement is mandatory for one of the parties. When concluding a contract, the rules of Art. 445 Civil Code. The party interested in concluding an agreement, for which its conclusion is not obligatory, sends to the other party, for which concluding an agreement is obligatory, a draft agreement - an offer. The party for whom the conclusion of an agreement is obligatory must, within 30 days from the date of receipt of the offer, consider it and send to the other party either a notice of acceptance, or a notice of acceptance of the offer on other terms (protocol of disagreements to the draft agreement), or notice of refusal of acceptance.
The draft agreement can also be submitted by the party for whom the conclusion of the agreement is mandatory.
As emphasized earlier, when considering provisions on freedom of contract, the forced procedure for concluding a contract is now quite rare in practice.
The legislation also provides in Art. 447-449 of the Civil Code the possibility of concluding an agreement at auction. The essence of this method is that the contract is concluded by the organizer of the auction with the person who wins the auction.
The organizer of the auction may be the owner of the thing or the holder of property rights, or a specialized organization.
Trades can be held in the form of an auction or competition. The winner of the auction is the person who offered the highest price, and in the competition - the person who, according to the conclusion of the competition commission, pre-appointed by the auction organizer, offered the best conditions. The form of bidding is determined by the owner of the item being sold or the owner of the property right being sold, unless otherwise provided by law. Two or more persons must participate in a competition or auction, otherwise they lose their meaning and are declared invalid.
In the process of working under the contract, the parties may encounter a situation that will require some change or termination of their obligations. It is for such cases that the current legislation formulates the basic provisions and rules regarding amendment and termination of the contract.
In accordance with paragraph 1 of Art. 452 of the Civil Code, an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or business customs. Thus, if an agreement is concluded in writing, then its amendment or termination must also be made in writing. If the parties have notarized the agreement, then its amendment or termination must also be notarized.
Thus, we can conclude that the form of amendments and additions to the contract, as well as the form of its termination, must necessarily correspond to the form of the concluded contract.
A different procedure is established for cases when the contract is changed or terminated not by mutual agreement of the parties, but at the request of one of them. In this case, the interested party is obliged to send the other party a proposal to amend or terminate the contract. The party that received such a proposal is obliged, within the period established by law or in the contract, to send to the party that made the proposal to change or terminate the contract:
1) or a notice of agreement with the proposal;
2) or a notice of refusal of the offer;
3) or a notice of consent to change the contract on other terms.
In paragraph 2 of Art. 452 of the Civil Code especially emphasizes that a requirement to change or terminate a contract can be filed by a party in court only after receiving a refusal from the other party to the proposal to change or terminate the contract, or failure to receive a response within the period specified in the proposal or established by law, or agreement, and in its absence, within 30 days.
However, it should be borne in mind that it is impossible to terminate or change an already executed contract. The fact is that the contract, as well as the obligation based on it, is terminated as a result of their proper fulfillment, as required by Art. 408 Civil Code. Therefore, it is impossible to terminate or change something that no longer exists at the time of change or termination.
Since change, addition, termination are significant events, legal facts, they give rise to certain legal consequences.
If the agreement is changed, the content of the obligation based on this agreement changes accordingly. In this case, the obligation changes to the extent that the underlying contract has been changed. Thus, if the parties in the supply agreement agreed that the supplier would supply second-class goods instead of first-class goods, then the buyer will have the right to demand from the supplier the delivery of second-class goods, and not first-class goods. In the remaining part, the obligations of the parties and the terms of the contract (for example, terms of delivery, assortment, quantity of goods, packaging, etc.) remain unchanged.
When the contract is terminated, it ceases to be valid, and at the same time the obligation based on it terminates. From this moment on, the parties are deprived of their rights due to the obligation and are released from their obligations.
If the change or termination of the contract occurred by mutual agreement of the parties, then the obligation based on it is accordingly changed or terminated from the moment the parties enter into an agreement on the change or termination of the contract. However, another rule may follow from the content of the agreement or the nature of the change in the contract. When an agreement is amended or terminated by a court, the obligation based on it is accordingly changed or terminated from the moment the court decision on the amendment or termination of the agreement enters into legal force.
Since before the amendment or termination of the contract the latter could have been fulfilled to a certain extent by the parties, the question arises about the fate of what had already been performed before the amendment or termination of the contract. As a general rule, 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. If the contract was changed or terminated due to a significant violation of its terms by one of the parties, then in accordance with clause 5 of Art. 453 of the Civil Code, the other party has the right to demand compensation for losses caused by a change or termination of the contract.
