PUBLIC AGREEMENT

S. DENISOV
S. Denisov, lawyer.
One of the novellas of the new Civil Code RF is a public contract (Article 426 of the Civil Code of the Russian Federation)
This agreement is a special type of agreement, since it does not regulate any specific type of activity, but covers various types of civil law agreements.
A public contract is an agreement concluded by a commercial organization and establishing its obligations for the sale of goods, performance of work or provision of services, which such organization, by the nature of its activities, must carry out in relation to everyone who applies to it ( retail, transportation by transport common use, communication services, medical, hotel services, etc.).
From the above definition it follows that the subject public contract There can only be such obligations for the sale of goods, performance of work or provision of services that a commercial organization must carry out in relation to everyone who contacts it. So, for example, an organization providing hotel services does not have the right, if there are free places, to refuse to provide a citizen with hotel services. However, if the same commercial organization acts as the seller of its property in a purchase and sale agreement, then such an agreement will no longer be classified as public.
Mandatory participant public contract is a commercial organization (state or municipal enterprise, business company or partnership, production cooperative). However, not any commercial organization can act as a party to a public contract, but only one that, by the nature of its activities, is obliged to sell goods, perform work or provide services to everyone who turns to it. Such an obligation may arise from the law and constituent documents commercial organization.
In other words, the nature of the activities of a commercial organization is important. In this regard, in paragraph 1 of Art. 426 Civil Code is given sample list various types of civil legal relations regulated various agreements. What these agreements have in common is that commercial organizations are obliged to enter into an agreement with each and every person who contacts them.
The counterparty of such a commercial organization can be any citizens and legal entities acting as consumers of goods, works, services produced (carried out) by a commercial organization. Therefore, if a commercial organization or a citizen entrepreneur purchases goods, uses services and the results of work performed for business needs, then the rules of Art. 426 of the Civil Code do not apply.
Recognition of a particular contract as public entails a number of serious legal consequences aimed at protecting consumer rights - the most economically weak side in the contract:
firstly, for a commercial organization one of the basic principles is excluded civil law- the principle of freedom of contract. This means that a commercial organization is deprived of the right to choose a counterparty and decide whether to conclude or not conclude an agreement;
secondly, in accordance with paragraph 1 of Art. 426 of the Civil Code, a commercial organization does not have the right to give preference to one person over another in relation to concluding an agreement, except in cases provided by law and other legal acts;
thirdly, the terms of the contract must be the same for all consumers, unless the law and other legal acts specifically provide for benefits for individual consumers (clause 2 of Article 426 of the Civil Code);
fourthly, a commercial organization does not have the right to refuse to conclude a public contract with a consumer, otherwise, the latter, on the basis of clause 3 of Art. 426 Civil Code and paragraph 4 of Art. 445 of the Civil Code may apply to a court (arbitration court) with a claim to compel the conclusion of an agreement, to resolve disagreements regarding individual conditions agreement, regardless of the consent of the commercial organization - the subject of the public agreement. In case of unjustified avoidance of concluding a contract, the consumer also has the right to demand compensation for losses caused.
The only possible basis for exempting a commercial organization from concluding a public contract and liability is its inability to provide the consumer with related products, services, perform relevant work for him. For example, a commercial organization providing hotel services refuses to provide hotel services to a citizen due to lack of vacancies. At the same time, the law places the burden of proving the absence of opportunities to conclude a contract on the commercial organization.
An important feature of public contracts is that the Government of the Russian Federation, in cases provided for by law, is given the right to issue rules binding on the parties when concluding and executing public contracts ( standard contracts, provisions, etc.). This reveals a completely understandable departure of the legislator from the permissible regulation of contractual relations, from the principle of freedom of contract. General publication by the Government of the Russian Federation mandatory rules is intended to ensure the protection of consumer rights, since relations regulated by a public contract are most often relations between commercial organizations and mass consumers. At the same time, it must be emphasized that the desire to regulate civil legal relations by establishing regulations is not typical for modern Russian civil law. This was characteristic of the previously existing legislation, which was explained by the dominance of command-administrative relations in economic life.
If different conditions of a public contract are established for consumers, as well as if conditions are included in the contract that violate the rules binding on the parties, these conditions are considered void (clause 5 of Article 426 of the Civil Code). For example, in accordance with clause 7 of the Rules for the sale of certain types of food and non-food products, approved by Resolution of the Council of Ministers - Government of the Russian Federation of October 8, 1993 N 995 (subject to amendments and additions), it is prohibited to condition the sale of some goods on the mandatory purchase of others. If there is such a condition in the contract, it is considered void.
Certain civil contracts, which are also public contracts, are regulated both in the Civil Code itself and in individual federal laws.
Public Civil Codes include: retail purchase and sale agreement (Article 492); rental agreement (Article 626); energy supply agreement (Article 539); agreement household contract(Article 730); contract of carriage by public transport (Article 789); agreement bank deposit if the depositor is a citizen (Article 834); contract for storing goods in a public warehouse (Article 908); storage agreement in a pawnshop (Article 919); storage agreement in storage rooms transport organizations(Article 923); personal insurance contract (Article 927).
Contracts for the provision of paid services (Chapter 39 of the Civil Code) can be recognized as public when a commercial organization, by the nature of its activities, is obliged to provide the appropriate service to everyone who turns to it. An agreement on providing citizens with hotel, tourist, medical services, communication services, etc.
Public contracts include those in which the participants are natural monopolies. Subjects of natural monopolies do not have the right to refuse to conclude an agreement with individual consumers for the production (sale) of goods that are subject to regulation in accordance with the Federal Law "On Natural Monopolies" dated August 17, 1995, if the subject of a natural monopoly has the opportunity to produce (sell ) such goods. An important provision from the point of view of the limits of concluding a contract is that the bodies regulating natural monopolies are given the right to determine (set) prices (tariffs) for goods (work, services) or their maximum level for subjects of natural monopolies, to determine consumers subject to mandatory service, send mandatory instructions to natural monopolies to conclude contracts with consumers subject to mandatory service, etc.
LINKS TO LEGAL ACTS

"CIVIL CODE OF THE RUSSIAN FEDERATION (PART ONE)"
dated November 30, 1994 N 51-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on October 21, 1994)
FEDERAL LAW of August 17, 1995 N 147-FZ
"ON NATURAL MONOPOLY"
(adopted by the State Duma of the Federal Assembly of the Russian Federation on July 19, 1995)
"CIVIL CODE OF THE RUSSIAN FEDERATION (PART TWO)"
dated January 26, 1996 N 14-FZ
(adopted by the State Duma of the Federal Assembly of the Russian Federation on December 22, 1995)
DECREE of the Government of the Russian Federation dated 08.10.1993 N 995
"ON THE RULES FOR SALE OF CERTAIN TYPES OF FOOD AND
NON-FOOD PRODUCTS"
Business lawyer, N 2, 1997

Public contract in civil law.

Introduction.

Modern practice of economic activity requires, as is known, various legal forms of organizing and regulating economic relations. The agreement has been used in this area for a long time and successfully, being a legal instrument for organizing economic life. However, such a traditional nature of the existence and execution of contractual relationships between business entities does not exclude the introduction of new ones that were not previously mentioned in the legislation legal concepts and categories. This type of innovation should also include the category of public contracts, which in a generalized form entered the arsenal of current legislation with the entry into force of part one of the new Civil Code of the Russian Federation.

The Civil Code distinguishes a special type of civil contract, the so-called public contract.

This agreement is concluded between a commercial organization, which, by the nature of its activities, must sell goods, perform work or provide services, and the mass consumer.

This institute is still developing. The task of the legislator is to improve the areas of public regulation in contract law so as to allow the state to provide a balance of interests between the economic entity and the consumer citizen.

1. The concept of a public contract.

In accordance with Article 426 of the Civil Code of the Russian Federation, a public contract is an agreement concluded by a commercial organization and establishing its obligations for the sale of goods, performance of work or provision of services that such an organization, by the nature of its activities, must carry out in relation to everyone who turns to it (retail trade , transportation by public transport, communication services, energy supply, medical, hotel services, etc.).

In Art. 426 contains the following definition of a public contract: “A public contract is an agreement concluded by a commercial organization and establishing its obligations for the sale of goods, performance of work or provision of services that such an organization, by the nature of its activities, must carry out in relation to everyone who turns to it (retail trade , transportation by public transport, communication services, energy supply, medical, hotel services, etc.)".

According to the legal position of the Constitutional Court of the Russian Federation, the provision by law of certain advantages to the consumer as an economically weak and dependent party is aimed at preventing unfair competition and creating real guarantees in accordance with Articles 19 and 34 of the Constitution of the Russian Federation of observing the principle of equality when carrying out business and other economic activities not prohibited by law .

The key feature of a public contract is that the activities carried out by the organization must be of a public nature. To establish the public nature of the activities of a commercial organization in all cases - both when concluding contracts that are directly named in the law as public, and when concluding other contracts - it is necessary to use the criterion of systematic implementation of activities designed for an indefinite circle of consumers. In fact, such activity in most cases is mediated by a public offer.

The criteria of systematicity and uncertainty of the circle of consumers are in some cases secondary signs that are not always sufficient to establish the public nature of business activity. Since theoretically the situation cannot be excluded when a public contract can be concluded by an economic entity one-time, but this does not mean that the rules of Art. 426 of the Civil Code of the Russian Federation.

2. Subjects of a public contract.

One of the subjects of such an agreement should be a commercial organization: a unitary state or municipal enterprise, economical society or a partnership or production cooperative. As for the counterparty of such an organization, this role may include any individual or entity, which in this contractual connection is, as a rule, a consumer of goods, works, services, respectively, produced or carried out by a commercial organization.

Some legal scholars believe that individual entrepreneurs should be added to the list of strong counterparties to a public contract. Justification for inclusion in this list individual entrepreneurs is confirmed by Article 23 of the Civil Code of the Russian Federation, according to which the entrepreneurial activities of citizens according to general rule the rules governing the activities of commercial organizations apply. In addition, in the practice of civil circulation, it has developed that most of the goods, works, and services directly offered to the public come from individual entrepreneurs.

Non-profit organizations should also be included among the subjects of a public contract. According to Article 24 of the Federal Law “On Non-Profit Organizations”, a non-profit organization has the right to carry out entrepreneurial activities that serve to achieve the goals for which it was created. Such organizations, under certain conditions, are actively engaged in business activities, for example, retail trade, provision of services, etc. The practice of modern circulation shows that the only specific feature entrepreneurial activity non-profit organizations is its implementation for the purpose of creating such an organization. Otherwise, this activity has the general characteristics of an independent activity, carried out at one’s own risk, aimed at systematically obtaining profit, and therefore, if it is public, it should oblige the conclusion of an agreement with anyone who wishes.

The other party to the public contract is called the consumer. There is an ambiguous interpretation of the subject, namely, on the one hand, according to clause 1 of Article 426 of the Civil Code of the Russian Federation, a public contract establishes obligations for the sale of goods, performance of work or provision of services that a commercial organization, by the nature of its activities, must carry out in relation to everyone who is involved in it will turn, i.e. both an individual and a legal entity; both entrepreneur and non-entrepreneur. On the other hand, clause 3 of Article 426 of the Civil Code of the Russian Federation provides that the price of goods, works and services, as well as other terms of the public contract, are established the same for all consumers, which directly indicates that the other subject of the public contract can only be an individual.

Not all commercial organizations can be recognized as potential subjects of a public contract. Important has the nature of the activities of such an organization. In this regard, it should be noted that among the many different types of business activities, there are those that must be carried out by relevant commercial organizations in relation to each and every person who approaches them. A good guide in identifying such types of activities is the approximate list contained in paragraph 1 of Art. 426 Civil Code. Indeed, all these completely heterogeneous types of activities, mediated by various civil contracts, are united by one thing: common feature, namely: commercial organizations must enter into contractual relationship with any individuals and legal entities who contact them.

3.Legal consequences of concluding a public contract.

From the analysis of the text of Art. 426 of the Civil Code, as well as other norms of substantive and procedural legislation, we can conclude that there are four types of consequences for a commercial organization that is the subject of a public contract. These include the following:

1) for such a commercial organization the principle of freedom of contract is excluded: it does not have the right, at its own discretion, to either choose a partner or decide on the conclusion of a contract. A commercial organization's refusal to conclude a public contract when it has the opportunity to provide the consumer with the relevant goods, services, or perform the relevant work for him is not allowed.

IN otherwise the behavior of a commercial organization will be considered as an unjustified avoidance of concluding a contract with the whole range of negative consequences arising from this fact;

2) a commercial organization that is the subject of a public contract does not have the right to give preference to any of the consumers who contact it regarding the conclusion of a contract. Exceptions to this rule can only be provided for by laws and other legal acts (for example, today such exceptions are available in legislation in relation to war veterans, disabled people and some other categories of consumers);

3) the terms of the public contract (including the price of goods, works, services) must be established the same for all consumers, except in cases where laws and other legal acts allow the provision of benefits for certain categories of consumers;

4) unlike ordinary civil contracts, disputes under the terms of which can be submitted by the parties to the court only with the consent of both parties, disputes related to the conclusion of public contracts, as well as disagreements between the parties on individual terms of such contracts, must be resolved in judicial procedure regardless of whether there is consent of both parties.

If a commercial organization unjustifiably refuses to enter into a public agreement, such an agreement may be concluded forcibly by a court decision. Moreover, the consumer has the right to demand recovery of losses caused by evasion from concluding a contract.

And finally, another feature of a public contract, which relates to the specifics of its legal regulation, but also indicates a limitation of the principle of freedom of contract in relation to of this agreement. According to paragraph 4 of Art. 426 of the Civil Code in cases provided for by law, to the Government Russian Federation granted the right to issue rules binding on the parties when concluding and executing public contracts (model contracts, regulations, etc.). Thus, the legislator a priori proceeds from the fact that imperative legal norms, defining the terms of a public contract, can be established not only by federal law, as is the case in most cases, but also by government regulations.

This provision fully takes into account the specifics of relations mediated by public contracts: as a rule, these are relations between certain commercial organizations and mass consumers. It is the need to ensure the protection of rights and legitimate interests consumers requires prompt and flexible regulation of the terms of public contracts.

Examples of public contracts are the contract retail purchase-sales (Article 492), rental agreement (Article 626), household contract agreement (Article 730), bank deposit agreement in which the depositor is a citizen (Article 834), personal insurance agreement (Article 927).

“Public contract” is a construction that formalizes a complex legal phenomenon, which can be considered as a system of three different legal relations. The term “public” in this construction indicates the open to the public nature of the activities of a commercial organization - a counterparty in contractual relations, but does not change the general private law nature of this agreement. In this regard, it is important to clearly distinguish the concept of “public contract” in the sense of Art. 426 of the Civil Code of the Russian Federation from the concept “ public services", which refers to the services provided by the authorities state power, and therefore have special specificity.

According to paragraph 1 of Art. 426 of the Civil Code of the Russian Federation, a contract is recognized as public if it is subject to conclusion by a commercial organization or individual entrepreneur due to the nature of their activities with anyone who applies for the goods alienated by them, the work performed or the specified services.

Taking into account the dynamics of development legal phenomenon of the public contract, three stages of relations between the parties developing in this area are distinguished. The first stage occurs from the beginning of a commercial organization’s public activities until the presentation of specific consumer requirements for concluding a specific public contract. The second stage occurs from the moment a specific consumer presents a demand to conclude a specific public contract and until the conclusion of such an agreement (either until the consumer refuses the presented demand or until the court recognizes the refusal of a commercial organization to conclude a public contract as justified). The third stage covers the legal relationship arising from a specific contractual obligation: from origin to termination (due to full execution parties to obligations under a contract or in connection with the occurrence of other circumstances provided for by law). 1

The mechanism for creating an obligation to conclude a specific public contract is similar to the action public offer: public activity a commercial organization grants an indefinite number of persons the right, the exercise of which entails the emergence of an obligation to enter into a specific contractual relationship. Such an obligation is similar in nature preliminary agreement concluded as a result of the consumer’s acceptance of a public offer to enter into an obligation to conclude the main contract.

When concluding a public contract through a public offer, at the first stage there is an absolute legal relationship in which the rights of an indefinite number of consumers are opposed by the state of connectedness of a commercial organization. Implementation this right necessarily entails the emergence of a specific contractual obligation.

The Civil Code of the Russian Federation directly classifies a number of contracts as public, such as: retail purchase and sale agreement (Article 492); rental agreement (Article 626); household contract agreement (Article 730); contract of carriage by public transport (Article 789); a bank deposit agreement in which the depositor is a citizen (Article 834); agreement warehousing concluded commodity warehouse public use (Article 908); pawnshop storage agreement belonging to a citizen things (Article 919); agreement for storing things belonging to a citizen in storage rooms of public transport organizations (Article 923); personal insurance contract (Article 927). In addition, indications of the public nature separate contracts contained in a number of special laws. At the same time Art. 426 of the Civil Code of the Russian Federation, when determining a public contract, due to the breadth of the specified criteria, uses something somewhat unusual for legal text technique, explaining the essence of the stated definition in specific examples. Moreover, in relation to some of those specified in Art. 426 of the Civil Code of the Russian Federation for examples (for example, medical and hotel services), there are no indications of their public nature in the special norms of the Civil Code of the Russian Federation or other laws. As a consequence, there is uncertainty regarding the list of public contracts and the purposes of indicating the public nature of some of them in special articles.

Criteria for the public nature of a contract in Art. 426 of the Civil Code of the Russian Federation are defined clearly enough to smooth out the inequality of counterparties entering into contractual relations in a civilized market. The text of Article 426 of the Civil Code of the Russian Federation does not contain any reference to the fact that in order to recognize a contract as public it is necessary to indicate its such nature in special norm law. Moreover, the list of public contracts given by the legislator as an illustration is open and includes contracts both specified as public in special rules and not specified. Finally, taking into account the fact that Russian civil law allows the conclusion of contracts, both provided for and not provided for civil law(Article 421 of the Civil Code of the Russian Federation), establishing a requirement for a mandatory indication of the public nature of the contract in a special norm would place the protection of the weaker party in civil circulation depending on the purely formal criterion of subsuming the existing relations under the template of one or another contractual type.

Regarding the purposes of the special instructions in the Civil Code of the Russian Federation and special laws on the public nature of a number of agreements, it should be noted that such an indication is generally useful as it contributes to greater clarity in law enforcement, since in the event of a legal dispute, in order to apply the entire range of guarantees of Art. 426 of the Civil Code of the Russian Federation, it is sufficient to state the existence of contractual relations certain type. In this case, there is no need to specially establish the public nature of the contract through independent proof of a number of criteria.

§ 2. Features of the legal regulation of a public contract under Russian civil law

The norms of a public contract are designed to ensure, first of all, the protection of the interests of the traditionally recognized weaker party in a legal relationship - the citizen-consumer. However, in their practical application, numerous disputes arise about the power of data. interim measures state that intervenes in general principles private law.

In order for a specific civil law contract to be classified as public, it must have the following characteristic features. Firstly, one of the subjects of such an agreement must be a commercial organization: a unitary state or municipal enterprise, a business company or partnership, or a production cooperative. As for the counterparty of such an organization, this role may be any individual or legal entity who, in this contractual relationship, is, as a rule, a consumer of goods, work, services, respectively, produced or carried out by a commercial organization. Secondly, not all commercial organizations can be recognized as potential subjects of a public contract. The nature of the activities of such an organization is important. In this regard, it should be noted that among the many different types of business activities, there are those that must be carried out by relevant commercial organizations in relation to each and every person who approaches them. A good guide in identifying such types of activities is the approximate list contained in paragraph 1 of Art. 426 Civil Code. Indeed, all these completely different types of activities, mediated by various civil contracts, are united by one common feature, namely: commercial organizations must enter into contractual relations with any individuals and legal entities that approach them.

And finally, thirdly, the subject of a contract, defined as public, should be the obligations to sell goods, perform work or provide services, which essentially constitute the content of precisely the activity that, by its nature, should be carried out by a commercial organization in relation to everyone who will contact her. For example, if an energy supplying organization enters into an energy supply agreement with a subscriber, such an agreement is certainly public. However, if the same commercial organization acts as a seller in a contract for the sale and purchase of its property, such an agreement, naturally, does not belong to the category of public ones.

The main question in defining a civil contract as a public one is to clarify the legal consequences of such a qualification. From the analysis of the text of Art. 426 of the Civil Code, as well as other norms of material and procedural legislation we can conclude that there are four types of consequences for a commercial organization that is the subject of a public contract. These include the following:

1) for such a commercial organization the principle of freedom of contract is excluded: it does not have the right, at its own discretion, to either choose a partner or decide on the conclusion of a contract. A commercial organization's refusal to conclude a public contract when it has the opportunity to provide the consumer with the relevant goods, services, or perform the relevant work for him is not allowed.

Otherwise, the behavior of a commercial organization will be considered as an unjustified avoidance of concluding a contract with the whole range of negative consequences arising from this fact;

2) a commercial organization that is the subject of a public contract does not have the right to give preference to any of the consumers who contact it regarding the conclusion of a contract. Exceptions to this rule can only be provided for by laws and other legal acts (for example, today such exceptions are available in legislation in relation to war veterans, disabled people and some other categories of consumers);

3) the terms of the public contract (including the price of goods, works, services) must be established the same for all consumers, except in cases where laws and other legal acts allow the provision of benefits for certain categories of consumers;

4) unlike usual civil contracts, disputes under the terms of which can be submitted by the parties to the court only with the consent of both parties, disputes related to the conclusion of public contracts, as well as disagreements between the parties on individual terms of such contracts must be resolved in court, regardless of whether there is consent both sides.

In case of unjustified evasion of a commercial organization from concluding a public contract, such a contract may be concluded in forcibly By the tribunal's decision. Moreover, the consumer has the right to demand recovery of losses caused by evasion from concluding a contract

When concluding a public contract, the parties are guided, first of all, by the requirements enshrined in Art. 426 of the Civil Code of the Russian Federation. The terms of a public contract determine its type. Public contracts aimed at performing works and services are not limited to the list defined in Art. 426 of the Civil Code of the Russian Federation, as well as in the fourth section of the Civil Code of the Russian Federation (“Certain types of obligations”).

When concluding a public contract, a commercial organization, as a general rule, does not have the right to recognize someone’s advantage over someone else. Exceptions are made in cases provided for by law and other legal acts. A rule of similar content is contained in Art. 789 of the Civil Code in relation to transportation relations. According to this article, transportation carried out by a commercial organization is recognized as transportation by public transport if it follows from the law, other legal acts or a permit (license) issued to this organization that this organization is obliged to transport goods, passengers and luggage at the request of any citizen or legal entity .

One of the features of a public contract is that the price of goods, works and services, as well as its other conditions, are established the same for all consumers, i.e. citizens and legal entities.

At the same time, in the field consumer services The Rules for the provision of hotel services in the Russian Federation apply, approved by resolution Government of the Russian Federation dated April 25, 1997 No. 490 1

If a commercial organization has the opportunity to provide consumers with certain goods, services, performance of relevant work for him, the law does not allow her refusal to conclude a contract. Unreasonable avoidance by a commercial organization from concluding a public contract should entail certain negative consequences - the application of the rule of paragraph 4 of Art. 445 Civil Code. It provides the other party with the opportunity to go to court with a demand for compulsion to enter into an agreement and for compensation for losses caused by refusal.

In connection with the content of paragraph 4 of Article 426 of the Civil Code of the Russian Federation, it should be taken into account that even before the adoption of the Civil Code, the Law on the Protection of Consumer Rights 2 granted the Government of the Russian Federation the right only in cases provided for legislative acts RF, regulate relations to protect the rights of this category of citizens. Moreover, this Law establishes a rule according to which the contractor is obliged to compensate the consumer for losses caused as a result of an unreasonable refusal to conclude an agreement to perform work or provide services. Thus, the Civil Code actually not only accepted this provision, but also confirmed the legitimacy of the previously established rule-making practice, when the Government issues resolutions approving the Rules that regulate relations in individual industries service sector. At the same time, the Civil Code names “model agreements, regulations, etc.” as mandatory rules subject to adoption.

Model agreements may also regulate property relations that go beyond the service sector.

Thus, the procedure for concluding a public contract is dispositive character, when the agreement on the part of the acceptor is concluded without any coercion, i.e. at the discretion of the acceptor. But at the same time, on the part of the offeror, no one can refuse to enter into an agreement, which is what expresses the publicity of the offer.

List of used literature

Constitution of the Russian Federation (adopted by popular vote on December 12, 1993)(subject to amendments, introduced by Laws Russian Federation on amendments to the Constitution of the Russian Federation dated December 30, 2008 No. 6-FKZ and dated December 30, 2008 No. 7-FKZ) // Russian newspaper. – December 25, 1993


Civil Code of the Russian Federation. Part 1 of November 30, 1994 (as amended by the Federal Law dated June 29, 2009 No. 132-FZ, dated July 17, 2009 No. 145-FZ, as amended by Federal Laws dated July 24, 2008 No. 161-FZ, dated July 18, 2009 No. 181-FZ) // NW RF. – 1994. – No. 32. – Art. 3301.


Civil Code of the Russian Federation. Part 2 of January 26, 1996 (as amended by the Federal Law dated 04/09/2009 No. 56-FZ, dated 07/17/2009 No. 145-FZ) // NW RF. – 1996. – No. 5. – Art. 410.


On the protection of consumer rights: Law of the Russian Federation of February 7, 1992 No. 2300-I (as amended by Federal Laws of January 9, 1996 No. 2-FZ, of December 17, 1999 No. 212-FZ, of December 30, 2001 No. 196-FZ, dated 22.08.2004 No. 122-FZ, dated 02.11.2004 No. 127-FZ, dated 21.12.2004 No. 171-FZ, dated 27.07.2006 No. 140-FZ, dated 16.10.2006 No. 160-FZ, dated 25.11.2006 No. 193-FZ, dated October 25, 2007 No. 234-FZ, dated July 23, 2008 No. 160-FZ) // Russian newspaper dated April 7, 1992


Decree of the Government of the Russian Federation of April 25, 1997 No. 490 “On approval of the Rules for the provision of hotel services in the Russian Federation” (as amended on October 2, 1999, September 15, 2000, February 1, 2005) // Russian newspaper dated 3 June 1997


Decree of the Government of the Russian Federation of July 17, 1995 No. 714 “On approval of the procedure for monitoring intended use short term funds financial support» // Rossiyskaya Gazeta dated July 26, 1995


Belov V. A. Civil law: General and special parts: Textbook. – M.: Center YurInfoR, 2009.


Babaev A. B., Belov V. A. Problems general teaching O civil legal relations// Civil law: Actual problems theory and practice / Ed. V. A. Belova. M.: Yurait-Izdat, 2007.


Civil law / Ed. S.S. Alekseeva. – M.: Prospekt, 2009.


Civil law. Textbook /Ed. AL. Sergeeva, Yu.K. Tolstoy. T. 2. – M.: TK Welby, Prospekt Publishing House, 2008.


Levchenko O. S. Construction of a public contract: statement of the problem // Society and Law. – 2008. – No. 3. – P. 115-117.

A public contract is an agreement concluded by a commercial organization that establishes its obligations to sell goods, works or provide services to everyone who contacts it.

The subjects of a public contract include not all commercial organizations, but only those that carry out certain (public) types of activities.

A partial list of these types is given by the Civil Code of the Russian Federation. These include retail trade, communication services, electricity, medical, and hotel services.

Scroll public views activity is supplemented by other code norms, laws and regulations. For example, the Civil Code classifies household contracting as such types.

A commercial organization's refusal to enter into a public contract is not permitted. There is only one exception: the organization does not have the ability to provide goods and services to the consumer.

If a commercial organization unjustifiably refuses to enter into a public contract, the other party has the right to file a claim with the court to compel the conclusion of the contract. Such an agreement will be considered concluded on the terms specified in the court decision from the moment the decision enters into force (clause 4 of Article 445 of the Civil Code).

A public contract is concluded between a commercial organization and a consumer.

The Consumer Rights Protection Law defines as such only citizens who purchase goods and order work and services for personal needs.

In Article 426 of the Civil Code, which defines the basic provisions on public contracts, the question of whether a legal entity can also be a consumer remains open.

The norms of Article 426 of the Civil Code, being general standards on a public contract, are specified in certain types(types of) contracts in which the question of who is the consumer is not resolved unambiguously.

Thus, the rules on household contracts refer only to citizens as consumers.

In other provisions of the code on public contracts there are no direct instructions regarding the subjects of these contracts. Therefore, we can conclude that in such contracts the consumer can be not only a citizen, but also a legal entity.

In a similar way, the law resolves the issue of classifying a particular contract as public. Some of the articles in Section IY of the Civil Code directly call a number of contracts public. These are the already mentioned contracts for household work, retail purchase and sale, transportation public transport and others.

Meanwhile, Article 539 of the Civil Code, which regulates the energy supply contract, does not classify this contract as public. Perhaps also because it is named as such in Article 426 of the Civil Code. But even without this indication, there is every reason to classify an electricity supply contract as a public contract, since it satisfies the set of characteristics of such contracts.

What are these signs?

Firstly, the composition of the subjects of the contract is strictly limited: a commercial organization and a consumer.

Secondly, a commercial organization must carry out its activities in relation to each consumer who contacts it.

The third feature can be called uniform prices for each consumer.

Determining the publicity of a contract is not based on formal ( direct instructions on publicity in the law), and on material grounds in practical activities is very important, since the law allows parties both provided for and not provided for.

IN the latter case Having come to the conclusion that the contract is public based on the characteristics contained in it, the consumer receives many advantages that he would not have had when concluding a regular contract.

The benefits are as follows.

As already mentioned, the consumer cannot be refused to enter into a contract.

Prices for goods, works and services in a public contract are set the same for all consumers. From paragraph 2 of Article 426 of the Civil Code it follows that the price can be reduced (benefits provided) for individual categories consumers (war veterans, mothers of many children). The law recognizes a violation of the contract price requirement as an invalid (void) condition of a public contract.

A commercial organization that unreasonably evades concluding a contract is obliged to compensate the consumer for losses incurred during unjustified refusal from concluding a contract. Compensation for moral damage is not excluded.

The initiation of a pre-contractual dispute under certain terms of the contract by the consumer does not require the consent of a commercial organization, as would be the case when resolving disagreements under a regular contract in court.

As you can see, a public contract is the exact opposite. It also limits the other fundamental principle civil law – non-interference in private affairs. The purpose of such restrictions is to ensure law and order in the most important areas of society. This is where the name of the agreement comes from: translated from Latin, the adjective “public” means “public”.

In Russian legal system exists a large number of categories of contracts. So, among the most common - public contracts. What are their specifics? In which cases Russian companies Do they prefer to enter into such agreements rather than others?

The essence of public contracts

A public contract is legal construction, which has a series specific signs. Firstly, one of the parties to the relevant contracts is commercial entity. Secondly, the nature of the activities of an organization acting as a subject of legal relations must be expressed in sales, provision of services or performance of certain works. Thirdly, the provisions in the contract must meet the following basic criteria:

• reflect the company’s obligation to enter into legal relations (sell goods, provide services) with any applicants;
• reflect a company's obligation to charge the same amount for the same goods or services supplied to different customers.

The company that has drawn up the public agreement also assumes a number of obligations provided by law. In particular, regarding the inadmissibility of refusal to provide services or supply goods if there is no objective reasons.

Also, some lawyers believe that companies whose main activities are in one way or another connected with the systematic publication of the relevant type of contracts should be recognized as a party to a public contract. That is, the company must sell or provide services consistently and be a permanent market player. What might a public contract look like? A sample of the relevant document is below.

It may be noted that in in this example the contract is called an offer. What are the specifics of using this term?

Agreement or public offer?

In the Russian legal environment, there is a debate regarding the classification of one or another type of agreement as a contract or a public offer. There is a point of view according to which a public law contract in most cases can be equated to a corresponding type of offer. At the same time, this thesis cannot be considered the most widespread, if only due to the fact that the two specified legal categories are different. An offer, according to the law, is a source that precedes a transaction, which may subsequently become a contract.

In the event that its provisions in a significant way will not change by the time the contract is concluded in one or another legally significant way - by signing, by the fact of payment for a product or service - it actually acts as a contract. This scenario in practice, as some lawyers note, is the most common. And therefore, many experts believe that the corresponding type of contract should be called a “public offer agreement”, that this is its most correct name. This is the essence of legal discussion.

It may be noted that specific types public contracts are not classified in Russian legislation. That is, these can be, in principle, any agreements within the framework of civil law that meet the criteria outlined above.

Specifics of concluding a public contract

Let us take a closer look at the specifics of concluding public contracts. We noted above that an organization does not have the right to refuse to provide services or sell goods - actions that are assumed under the contract, if it is possible to fulfill the corresponding clause of the contract. You can note interesting fact from judicial practice. For example, the instructions of the Plenums of the RF Armed Forces contain provisions according to which a company, if a client or counterparty sues it, will have to prove that the provision of a service or the sale of a product was difficult due to objective reasons.

We also noted that the selling price of the goods and other important conditions of a public contract must be the same for all counterparties, clients and buyers. However, there is one interesting exception to this rule: the company may provide certain benefits or preferences to individual customers. True, there is some discussion among lawyers regarding possible factors recognition of the buyer's right to a benefit. There are experts who believe that the supplier company has the right to focus only on those criteria that are specified in the current regulations legal acts: for example, determining the fact that large families such and such discounts apply.

In turn, other lawyers believe that the firm has the right to independently determine who to give discounts and other preferences and who not. Many analysts believe that companies are trying to practice compromise options in this sense - for example, in the form of discount cards. On the one hand, holders of these products can thus receive the same discount, on the other hand, they have the opportunity to buy goods cheaper than those customers who have not yet acquired cards.

Similar interpretations of legal norms are also characteristic of the provision according to which companies entering into public contracts do not have the right to give any clients or counterparties priority in the sale of goods or provision of services. That is, some lawyers believe that exceptions to this rule can only be provided at the level official sources rights, for example federal laws on support for war veterans, according to which people who fought for their country can be served as a priority in certain organizations. Other experts believe that firms have the right, through, for example, the same client cards, to determine who can receive priority in receiving a particular service or purchasing a product.

Also interesting nuance relating to the conclusion of public contracts - determining the time frame within which the organization must supply a product or provide a service to a client. The main source here is the Consumer Protection Law. In accordance with its provisions, the terms must be fixed either in the contract itself, or determined by third-party regulations containing rules for the performance of certain services or regulating the procedures for the supply of goods. Moreover, if the sources of law in question indicate the same recommended terms, and the parties to the legal relationship have agreed that services or goods will be delivered earlier, this fact, as many lawyers believe, must be recorded in the contract.

The meaning of public contracts

A public contract is, first of all, a tool legal protection those subjects who, by virtue of their status, are subject to it as a matter of priority. This could be, for example, buyers in a store, who, in particular, should feel they have a legally supported right to purchase goods at the same price as other visitors to the outlet.

A public contract is a tool for simplifying legal interaction between a supplier of goods or services and their consumer. Buying and selling is a type of legal relationship. They can be legally secured different ways, and, according to many experts, a public contract is one of the optimal tools in such cases.

Aspects of law enforcement practice

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

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

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

The legislator wants justice

We are talking, in particular, about obligations in the field of consumer protection regarding the quality of goods sold and services provided. In this sense, analysts believe, the client has a large number of opportunities to be an authorized party in legal relations. That is, lawyers believe, the legislator, without providing for operational mechanisms law enforcement practice in relation to public contracts, maintains a balance of interests in conditions where the predominant position of the client of the store or service is assumed in terms of protecting consumer rights. Businesses thus receive a certain tool that allows, when possible, to adjust the balance of interests in their favor.

Features of accession agreements

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

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

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

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

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

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

Differences between a public contract and a contract of adhesion

Having examined some aspects of the similarity between a public contract and a contract of adhesion, let us study the facts that indicate tangible differences between the two types of documents under consideration. In particular, public contracts, as a rule, do not provide for scenarios that involve significant adjustments to the conditions. In connection contracts, in turn, it is possible that the consumer of services has the right to propose to the supplier to significantly change certain provisions in the document.

At the same time, it is possible that the public contract is precisely the contract of adhesion. This is possible if, for example, a purchase and sale agreement drawn up in a form format (that is, having the characteristics of an adhesion contract) involves concluding transactions with an unspecified or unlimited number of persons. That is, in this case, adjusting its points is impossible or impractical - and this is a sign of a document that is characterized by the rules for concluding public contracts. The only question is which one legal category take the document first. Some experts believe that the primary feature characterizing whether a contract is a public contract. Others believe that of this type the agreement is more consistent with the criteria characteristic of accession agreements.

It does not matter, lawyers believe, what exactly the supplier company will call the document that will set out the terms of delivery. The most important thing is the compliance of its actual content with the criteria that are characteristic of a public contract or a contract of adhesion. Although, as many experts note, companies still try to formulate the names of documents so that the counterparty or buyer understands what type of agreement is to be concluded.

What to choose: an adhesion contract or a public contract?

One way or another, many experts prefer not to identify the two types of agreement under consideration (although they recognize the possibility of drawing up contracts that have features of both). Thus, an organization, intending to issue a certain contract that has properties common to both types of agreements under consideration, for example, the unilateral origin of the conditions, may be faced with a choice: issue a document with an emphasis on the criteria characteristic of adhesion contracts, or draw it up on the principles that characteristic of public contracts?

We noted above that one of key criteria differences in the accession contract - possibility of adjustment essential points from the client's side. The conclusion of a public contract, in turn, does not generally imply such a possibility. The determining factor for setting priorities in this aspect, experts believe, are the characteristics of the market in which the company operates, the specifics of the segment of its activity, and the characteristics of the target group of clients.

The client defines the rules

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

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

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

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

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