Application of 451 Civil Code of the Russian Federation to the supply contract. Amendment and termination of the contract due to a significant change in circumstances (451 Art.

1. 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.

A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

2. 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, and on the grounds provided for in paragraph 4 of this article, changed by the court at the request of the interested party if the following conditions are simultaneously present:

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 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;
4) it does not follow from customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

3. When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

4. Changing the contract due to a significant change in circumstances is permitted by a court decision in exceptional cases when termination of the contract is contrary to the public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

Commentary on Article 451 of the Civil Code of the Russian Federation

1. The general basis for changing or terminating a contract by a court decision is a significant change in the circumstances from which the parties proceeded when concluding it. A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen this, the contract would not have been concluded by them at all or would have been concluded on significantly different terms (clause 1 of the commented article).

The commented article is a reflection of the doctrine of clausula rebus sic stantibus (clause of immutability of circumstances), known to foreign legal orders and world trade practice (see, for example: art. 6.2.1 - 6.2.3 of the UNIDROIT Principles of International Commercial Agreements, art. 6: 111 Principles of European Contract Law, § 313 GGU).

2. Changed circumstances cover primarily cases of violation of the equivalence of mutual provision. Thus, a significant change in market conditions, the introduction of additional taxes (duties) or a sharp drop in the value of the currency can create a clear imbalance between the contractual obligations of the parties. The category of changed circumstances also includes cases where the purpose of the contract no longer exists for one or both parties (for example, renting premises for a certain professional activity, the implementation of which subsequently turns out to be impossible due to the ban imposed). In all of these situations, the strict fulfillment of contractual obligations for one of the parties would be extremely burdensome and would lead to consequences incompatible with law and justice.

3. The parties may reach an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it. If the parties have not reached such an agreement, the interested party has the right to demand a change (termination) of the contract in court.

Paragraph 2 of the commented article connects the possibility of satisfying such a claim with the simultaneous presence of four conditions.

Firstly, at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur, i.e. the parties did not and could not foresee this. Secondly, the change in circumstances was caused by objective 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. Thirdly, the execution of the contract without changing its terms would significantly 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. Fourthly, 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.

The burden of proving the significance of the change in circumstances lies with the party making the relevant claims. It should be noted that proving the presence of the entire set of these conditions is quite difficult, and therefore cases of courts satisfying such requirements are rare (for more details, see: Practice of application of the Civil Code of the Russian Federation, part one / Edited by V.A. Belov. M., 2008 . pp. 1144 - 1151 (author of the commentary - R.A. Bevzenko)).

4. Paragraph 3 of the commented article establishes the consequences of termination of the contract due to significantly changed circumstances. This rule is special in relation to the general rules of Art. 453 of the Civil Code (see commentary to it) on the consequences of termination of the contract and, as a consequence, excludes the application of the latter.

5. In exceptional cases, a significant change in circumstances may be the basis for the court to make a decision not to terminate, but to amend the contract. Among them, paragraph 4 of the commented article includes situations in which termination of the contract is contrary to public interests or entails damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

Official text:

Article 451. Amendment and termination of the contract due to a significant change in circumstances

1. 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.

A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

2. 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, and on the grounds provided for in paragraph 4 of this article, changed by the court at the request of the interested party if the following conditions are simultaneously present:

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 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;

4) 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.

3. When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

4. Changing the contract due to a significant change in circumstances is permitted by a court decision in exceptional cases when termination of the contract is contrary to the public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

Lawyer's comment:

In contrast to Article 416 of the Civil Code of the Russian Federation on the impossibility of fulfilling an obligation, this article deals with the difficulty of fulfilling a contractual obligation. The fulfillment of such an obligation remains possible in principle.

But it becomes economically burdensome for one or all parties involved in the contract due to a significant change in the circumstances from which the parties proceeded when concluding the contract. Such circumstances should be understood as economic (availability of goods on the market, methods of delivery, market prices for goods and labor, etc.) beyond the control of the parties, legal and other factors that existed in the country (countries), individual regions at the time conclusion of the contract.

Changes in these factors during the validity period of the contract are not associated with force majeure. For the purposes of Art. 451 of the Civil Code of the Russian Federation, the concept of a significant change in circumstances that must take place after the conclusion of an agreement is given in its paragraph 1. The reasons that caused such a change cannot be overcome by the careful efforts of the parties to the agreement. It is assumed that neither party bears the risk of property losses caused by a significant change in the circumstances from which the parties proceeded when concluding the contract.

This kind of risk, for example, is borne by the contractor under a contract for the work he performs. A significant change in circumstances leading to the creation of economic difficulties in fulfilling contractual obligations is often called “economic impossibility of fulfilling obligations” in some Western countries. Paragraph 2 of Article 451 provides for a two-stage procedure for amending and terminating a contract due to a significant change in circumstances.

At the first stage, the parties are required to negotiate on the possibility of reaching an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it. This stage should be considered as a unique stage for resolving issues related to the fate of the contract in the claims procedure. At the second stage, if the parties fail to reach the specified agreement, the issue of amending or terminating the contract is decided by the court.

The basis for changing or terminating the contract is the simultaneous presence of the four conditions specified in paragraph 2 of Article 451. In this case, according to paragraph 4, preference is given to terminating the contract. Amendments to the agreement are permitted only in cases expressly stated in this paragraph. When terminating a contract, the legislator does not provide for the possibility of compensation for losses to the injured party. The court is authorized only to resolve issues of fair distribution between the parties of the costs incurred by them in connection with the execution of contracts.

Full text of Art. 451 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 451 of the Civil Code of the Russian Federation.

1. 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.

A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

2. 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, and on the grounds provided for in paragraph 4 of this article, changed by the court at the request of the interested party if the following conditions are simultaneously present:
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 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;
4) it does not follow from customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

3. When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

4. Changing the contract due to a significant change in circumstances is permitted by a court decision in exceptional cases when termination of the contract is contrary to the public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

Commentary on Article 451 of the Civil Code of the Russian Federation

1. The commented article provides that an independent basis for changing or terminating a contract is a significant change in the circumstances from which the parties proceeded at the time of concluding the contract. At the same time, foreseeing the possibility of the occurrence of such events at the time of concluding the contract either completely eliminated the need for the parties to enter into an agreement, or the parties entered into an agreement on completely different conditions (the criterion for the materiality of a change in circumstances, as can be seen, is quite abstract). In contrast, here we are not talking about the impossibility of fulfilling an obligation, but about its difficulty from an economic point of view.

2. As follows from the commented article, a significant change in circumstances can serve as a basis for both termination and amendment of the contract. To implement the requirements for termination or amendment of the contract, the simultaneous presence of four conditions is necessary:
- firstly, the parties could not foresee the occurrence of such circumstances;
- secondly, the parties were unable to overcome them;
- thirdly, the execution of the contract under such circumstances has become extremely unprofitable for at least one of the parties;
- fourthly, the custom of business practice or the essence of the contract do not imply the release of the interested party from bearing the risk of liability due to changed circumstances.

Sometimes courts directly indicate in their decisions that certain circumstances cannot lead to the significant changes indicated in the commented article. For example, according to the courts, a sharp increase in the exchange rate of a foreign currency cannot be regarded as a significant change in circumstances, since concluding a loan agreement in dollar terms involves placing the risk of an unfavorable change in the dollar exchange rate on the borrower.

3. The agreement can be preserved, taking into account the necessary amendments to it, only in exceptional cases, the presence of which does not allow the issue to be resolved by terminating the agreement, even if all the necessary conditions for this are simultaneously present. Exclusivity must be justified by one of the following additional circumstances: resolving the issue by terminating the contract is contrary to the public interest; termination of the contract will entail damage for the parties that significantly exceeds the costs necessary to fulfill the contract on the terms changed by the court. In most cases, courts terminate contracts.

4. Judicial practice:
- resolution of the Federal Antimonopoly Service of the West Siberian District dated January 11, 2007 N F04-8719/2006 (29809-A75-16) in case N A75-2991/2006;
- resolution of the Federal Antimonopoly Service of the Ural District dated November 16, 2009 N F09-9064/09-C5 in case N A60-8094/2009-C1;
- resolution of the Federal Antimonopoly Service of the Ural District dated November 20, 2008 N F09-8595/08-C5 in case No. A60-3213/2008-C2;
- resolution of the Federal Antimonopoly Service of the Central District dated December 19, 2013 in case No. A68-9853/2012;
- ruling of the Krasnodar Regional Court dated September 19, 2013 in case No. 33-20550/13.

Consultations and comments from lawyers on Article 451 of the Civil Code of the Russian Federation

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A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

2. 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, and on the grounds provided for in paragraph 4 of this article, changed by the court at the request of the interested party if the following conditions are simultaneously present:

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 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;

4) 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.

3. When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

4. Changing the contract due to a significant change in circumstances is permitted by a court decision in exceptional cases when termination of the contract is contrary to the public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

A comment

Article 451 continues in effect, in which the legislator provides the opportunity to establish additional grounds for changing or terminating a contract (the concept of a contract is given in) on the basis of law and by court decision. It is interesting that a significant change in the circumstances from which the parties proceeded when concluding the contract is identified as an independent basis. The legislator emphasizes not only the possibility of resolving disagreements independently, presumably through negotiations, but also, if agreement is unattainable, to submit this issue to an arbitrator. The latter is advisable when the fulfillment of the obligations assumed by one of the parties under the contract will be very burdensome. The legislator also points to the fact that if the parties had foreseen the occurrence of such consequences, they would not have concluded the agreement or would have concluded it on other terms. Here the main principle of civil law is clearly expressed - freedom of contract (), according to which the parties are free to enter into contracts and determine their terms.

The second part of the article points to the simultaneous presence of conditions, the presence of which allows us to recognize a change in circumstances as significant. Thus, not every change in circumstances will be considered significant by both the parties and the court.

In order to clarify some conditions, it is necessary to refer to legislative acts and judicial practice, in particular, in order to understand what is meant by business customs, you can refer to.

The legislator also provides the parties with alternative solutions - changing or terminating the contract, which in itself is an important point. And the reasons are the same for both the first and the second. The priority for the party that finds itself in the worst conditions in the light of this article will still be termination of the contract.

Of course, by making changes it is possible to save both the contract and the position of the parties, but only in rare cases.

The third part of Article 451 talks about the distribution and, accordingly, the obligation to reimburse the parties for expenses incurred in connection with the termination of the contract. But how this happens, for example, on the basis of submitted documents confirming expenses, depending on what has already been executed under the contract or according to other criteria, is not explained.

The fourth part identifies such categories as the contradiction of the execution of a contract to public interests, and also identifies the category of significant damage. Since these are quite broad concepts, and the latter does not have clear boundaries at all and is of an evaluative nature, for the correct application of this norm it is necessary to find legally established definitions of these concepts.

Otherwise, the application of the provisions of Art. 451 of the Civil Code of the Russian Federation presents certain difficulties for judicial authorities, since uniform methods for establishing facts of a significant change in circumstances have not yet been developed (despite truly extensive law enforcement practice).

In addition, it is assumed that only an agreement drawn up in writing () can be changed or terminated through the court according to the rules of this article.

A significant change in the circumstances from which the parties to the transaction proceeded when concluding it acts as a basis for changing or terminating the legal relationship. The legislation determines that a change in factors will be considered significant when events occurred in which, if the participants could have foreseen them, the agreement would not have been signed by them at all or would have arisen on different terms. These provisions are established in Part 1 of Art. 451 Civil Code of the Russian Federation. Let's look at the norm in more detail.

Art. 451 Civil Code of the Russian Federation

Allowed if the parties fail to reach a compromise on the issue of bringing the agreement into compliance with the existing conditions or terminating legal relations. If there are grounds established in paragraph four of the norm in question, the conditions are adjusted by the court. In this case, certain requirements must be met at the same time.

Conditions

451 Art. The Civil Code of the Russian Federation names the following requirements:

1. It does not follow from the essence of the agreement or customs of trade that the risk of changing the terms of the transaction is borne by the interested party.
2. At the time of the transaction, the participants proceeded from the impossibility of events occurring that could affect the nature of the legal relationship.
3. The change in conditions is due to reasons that the interested party could not overcome after their occurrence. In this case, the participant showed due diligence and care in accordance with the rules of turnover and the nature of the transaction.
4. Implementation of the terms of the agreement in its original form would entail such a violation of the balance of property status and would cause such damage that the interested party would significantly lose what it could count on when entering into a relationship.

Additionally

If the agreement is terminated due to a change in conditions at the request of any participant, the consequences of this procedure are determined. In this case, the court is guided by the need for a fair distribution of costs incurred by the parties as a result of the execution of the contract. Adjustments to conditions are permitted in exceptional cases. In particular, modification of the agreement is permitted if its termination is contrary to the public interest. It is also allowed if withdrawal from the legal relationship entails losses for the participants that significantly exceed the costs that the parties will incur when implementing the new conditions.

Art. 451 Civil Code of the Russian Federation with comments

What are the features of implementing the provisions of the norm? It is advisable to analyze the norm taking into account the provisions of Art. 450 Civil Code of the Russian Federation. It provides general grounds for adjusting the terms of the agreement or terminating it. In particular, Art. 450 of the Civil Code of the Russian Federation establishes the rule according to which these activities are carried out by agreement of the parties. At the same time, the norm provides a reservation that a different procedure may be established by law or based on the terms of the transaction. In part two, Art. 451. The Civil Code of the Russian Federation defines the possibility of establishing additional grounds for terminating legal relations or adjusting the terms of the agreement. The norm stipulates that an independent reason for carrying out one of these measures is the occurrence of events that make the implementation of obligations impossible. This basis allows the participants to independently resolve legal relations by mutual agreement.

Protection of rights

The interested party may appeal to the court if the events that arose at the time of signing the contract, in connection with events that occurred and did not depend on the will of the participants, become extremely burdensome. Normally, the condition is especially emphasized. In particular, when signing an agreement, foreseeing the occurrence of events completely excluded the likelihood and need of the subjects to enter into a transaction, or the participants formalized their relations on conditions other than those existing at the time of the dispute.

Specifics of the criteria

List of conditions established in Art. 451. The Civil Code of the Russian Federation is considered closed. When they are observed simultaneously, events are recognized as having great significance. Meanwhile, not in all cases, fulfillment of the terms of an agreement that has become economically unprofitable will act as a basis for its termination. Given in 451 Art. The list of the Civil Code of the Russian Federation indicates the priority of protecting the stability of fulfillment of accepted obligations.

Features of proof

A significant change in the situation in which the transaction was concluded may serve as a basis for its termination or adjustment of the terms of the agreement. To implement the requirements, 4 conditions must be met simultaneously. Taking into account the provisions of paragraphs 2 and 4 of the norm in question, their presence predetermines the priority of termination of the contract when resolving a controversial situation. The agreement can only be maintained in exceptional cases. At the same time, appropriate changes must be made to its terms and conditions. Exclusivity must be justified by any of the facts given in Art. 451. falls on the plaintiff.

Historical reference

It is worth noting that the exclusivity of the nature of exemption from the implementation of the terms of agreements also occurred in the pre-revolutionary period. For example, Pobedonostsev pointed out that the concept of guilt and responsibility for failure to fulfill conditions is eliminated if the reason for this was an external circumstance that arose against the will of the subject and made the implementation of agreements legally or physically impossible. At the same time, the author draws attention to the fact that the release of participants from obligations should be carried out according to the principle of fairness.

It is also worth saying that a change in circumstances arising regardless of the will of the participants was used as a basis for termination or adjustment of legal relations and under the legislation of 1922. In particular, it was provided that if in a bilateral transaction the implementation of obligations became impossible due to an event for which none of the parties is responsible, in the absence of other rules, neither of the subjects can demand satisfaction from the other under the agreement. In the event of circumstances arising, participants could only count on the return of everything previously performed. The 1964 legislation did not provide for a rule similar to the one above. The exception was the procedure for exemption from the implementation of obligations in certain cases, including when circumstances arise that are independent of the will of the subjects.

Peculiarities of consideration of cases

The parties to the transaction may terminate the legal relationship or adjust its terms, guided by Art. 451 Civil Code of the Russian Federation. Judicial practice indicates, however, that support from interested parties is quite rare. In a number of cases, such significant events as a deterioration in the economic situation, including increases in tariffs, prices, inflation, etc., are not recognized as sufficient grounds. For example, according to one of the FAS Resolutions, the legality of the appeal court’s refusal to satisfy a claim for adjustment of an investment loan agreement was confirmed due to the emergence of conditions that make it impossible to fulfill obligations. The act stated that an increase in the foreign exchange rate cannot in itself be regarded as a factor that could entail consequences for the applicant that would allow the application of Art. 451 Civil Code of the Russian Federation. At the same time, the resolution noted that concluding a loan agreement in foreign currency involves a corresponding risk.

Another example

One of the decisions of the Federal Antimonopoly Service of the Volga-Vyatka District to the administration of Nizhny Novgorod did not satisfy the requirement to terminate the lease agreement, the subject of which was a tunnel passage in which retail outlets were installed. The plaintiff indicated that as a result of decisions made by the anti-terrorism committees, events occurred that made it impossible to implement the terms of the agreement. In particular, in accordance with the acts, retail outlets were moved from tunnel passages to other areas. Based on the materials of the case, the decisions of the commissions were made to ensure the evacuation of people in case of an emergency.

During the consideration of the case, the cassation instance indicated that when signing the lease agreement, the intended use of the tunnel was agreed upon in accordance with the terms of the transaction, as well as for its direct consumer and production purposes, taking into account the requirements established in the technical regulatory documentation. It follows from this that the applicant was informed about the features of the object, and accordingly, had the opportunity to anticipate the occurrence of consequences. The plaintiff also did not prove that the implementation of the original terms of the agreement would upset the balance of the property interests of the participants to such an extent that it would suffer the same damage as if the defendant had violated its obligations. Accordingly, it recognized the legality of previous court decisions in the absence of all the conditions established by Art. 451.

Conclusion

Practice under Art. 451 is not as extensive as other norms of the Civil Code. However, the authorities still consider cases under this rule. The procedure for resolving disputes does not differ from the rules provided for other situations. As in other cases, the interested party draws up a statement of claim in accordance with the requirements of the law and attaches documents to it (including a receipt indicating that the plaintiff has paid the state duty).

According to Art. 451 of the Civil Code of the Russian Federation, most often disputes are resolved not in favor of the applicant. In this regard, it is advisable to seek help from a qualified lawyer. If this is not possible, you should carefully study the legislation and judicial practice. Particular attention must be paid to the evidence base. Often, subjects entering into legal relations do not foresee any events that could affect their character. Meanwhile, participants should take into account the instability of the economic situation, various external factors, and predict certain scenarios. One of the main tasks in such disputes will be to prove the impossibility of fulfilling obligations under the previous conditions. At the same time, one should not forget about compliance with the remaining conditions established by the article under consideration.