Termination of the contract unilaterally under the Civil Code of the Russian Federation. How to terminate the contract unilaterally Cases of unilateral termination of the contract

Based on the results of the electronic auction, a contract was concluded on the basis of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs." In the process of performing work, the work schedule was violated. Part of the work under the municipal contract has been completed, but the contractor is unable to cope with the work schedule, and some of the deadlines have already been violated. Both parties to the contract understand that the contractor will not be able to perform the work under the contract on time without violations, and are ready to terminate the contract. The customer will need to immediately make a new purchase to perform all those works that were not completed under this contract. Is it possible to partially terminate the contract? What deadlines must be met for a new purchase (amendments to the schedule, procurement plan, etc.)?

On this issue, we take the following position:
The parties have the right to terminate the contract by agreement of the parties. In itself, the termination of the contract by agreement of the parties does not indicate any violation. However, under the circumstances described, in our opinion, it is in the interests of the customer to either refuse to perform the contract (if possible), or go to court to demand termination of the contract.

Position justification:
By virtue of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), the legislation on the contract system is based, among other things, on the provisions Civil Code of the Russian Federation. In this regard, when resolving disputes arising from state (municipal) contracts, the courts are guided by the norms of N 44-FZ, interpreted in conjunction with the provisions of the Civil Code of the Russian Federation, and in the absence of special norms, directly by the norms of the Civil Code of the Russian Federation (see also the preamble of the Review of judicial practice of application of the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, approved by the Presidium of the Supreme Court of the Russian Federation on June 28, 2017).
According to the Civil Code of the Russian Federation, any obligation arising in civil legal relations (, Civil Code of the Russian Federation) is terminated in whole or in part on the grounds provided for by the Civil Code of the Russian Federation, other laws, other legal acts or an agreement (see also the Civil Code of the Russian Federation). N 44-FZ does not provide for special grounds for terminating contracts concluded in accordance with this law, limiting itself to indicating that the termination of the contract is allowed by agreement of the parties, by a court decision, in the event of a unilateral refusal of the contracting party to perform the contract in accordance with civil law (Law N 44-FZ).
N 44-FZ does not indicate that the contract, regardless of any circumstances, must be executed in full. In accordance with Law N 44-FZ, the parties to the contract have the right to terminate it on the basis of their agreement, including in a situation where the contract cannot be performed by the counterparty on time (see the Ministry of Economic Development of February 10, 2015 N D28i-175, of January 29, 2015 N , dated 12/18/2014 N , dated 12/11/2014 N ). At the same time, the mere fact that the contract was terminated by agreement of the parties does not prevent the recovery of penalties from the contractor for improper performance of the contract (see more about this, for example, in the answer to: A municipal contract was concluded between the customer and the supplier for the performance of work. Contractor under the contract did not perform the work stipulated by this contract. The contract was terminated by agreement of the parties after a delay in performance made by the contractor. The contract establishes two types of sanctions - a fine for non-performance of obligations and penalties for each day of delay. The contractor was charged a penalty in the form of a fine provided for Does the customer have the right to recover penalties in court for the delay in fulfilling obligations under the contract, if the agreement on termination of the contract states that the customer has no claims against the contractor?
The fact that part of the work has been completed by the contractor does not prevent the termination of the contract. By virtue of the Civil Code of the Russian Federation, upon termination of the contract, the obligations of the parties cease. At the same time, contractual obligations are considered terminated from the moment the parties conclude an agreement to terminate the contract, unless otherwise follows from this agreement (the Civil Code of the Russian Federation). Accordingly, the termination of the contract means the termination of all obligations of such an agreement for the future (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 21, 2005 N 104, clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of June 6, 2014 N 35). The obligations fulfilled by the time the agreement on termination of the contract is drawn up are already terminated by proper performance (the Civil Code of the Russian Federation), they cannot be terminated a second time. These provisions should be applied taking into account the Civil Code of the Russian Federation, by virtue of which the parties are not entitled to demand the return of what was performed by them under an obligation before the termination of the contract, unless otherwise provided by law or by agreement of the parties, and also taking into account the principles of compensation and equivalence of exchanged material objects in the relations regulated by it, the inadmissibility of unjust enrichment, on which civil law is based (, Civil Code of the Russian Federation, see also the Presidium of the Supreme Arbitration Court of the Russian Federation of 19.01.2010 N 13966/09).
Thus, unless otherwise provided by agreement of the parties, termination of the contract by agreement of the parties does not lead to "partial termination of the contract", but to the termination of all obligations arising from it and not fulfilled (including obligations to accept the result of work and payment). The obligations of the contractor fulfilled before this have already been terminated and are payable if the relevant work has been performed properly (see, for example, the answer to: The customer has decided to unilaterally refuse to perform the contract (this possibility is provided for by the contract and the procurement documentation). work amounted to 10 days.The work was completed by 90%, and the customer believes that due to the delay he has the right not to pay.Is the customer obliged to pay the contractor the cost of partially completed work at the time of termination of the contract? (Response from the Legal Consulting Service GARANT, November 2014 .)).
In conclusion, we note that, by virtue of the provisions of Law N 44-FZ, information about contractors with whom contracts were terminated by a court decision or in the event of a unilateral refusal of the customer to perform the contract due to a material breach of contract terms by them is included in the register of unscrupulous suppliers. Therefore, if there are appropriate grounds (the fault of the contractor) in the situation under consideration, in our opinion, it is advisable for the customer to use these methods of terminating the contract. Of course, in addition, the customer should take all necessary measures aimed at recovering from the contractor the amounts of the penalty for improper performance of the contract, as well as losses caused by such improper performance. This is due to the fact that if the implementation of a new purchase entails the need to spend additional funds compared to the price of work, which was provided for by the terminated contract, the behavior of the customer's officials will be assessed by the regulatory authorities, including from the point of view of the efficiency of spending funds. However, it is not possible to assess the prospects for resolving this issue within the framework of this consultation.

Note:
1. Information on the termination of the contract by agreement of the parties and the agreement on such termination itself must be sent by the customer for inclusion in the register of contracts within 3 working days (clause 8, part 2, part and Law N 44-FZ). In addition, information about the change in the contract must be posted by the customer in a single information system (hereinafter referred to as the UIS) within 1 business day following the date of the change in the contract (Law N 44-FZ).
2. Termination of the contract by agreement of the parties does not relieve the customer from the obligation to send a request to the counterparty to pay a penalty fee in case of violation by the latter of the deadline for the performance of work (provision of services) stipulated by the contract (Law N 44-FZ). The obligation to pay a penalty arises from the contractor only if there is fault (the Civil Code of the Russian Federation). By virtue of Law N 44-FZ, a party is exempted from paying a penalty (fine, penalty interest) if it proves that the failure to fulfill or improper performance of an obligation stipulated by the contract occurred due to force majeure or through the fault of the other party.
3. To make a new purchase, the customer should first make the appropriate changes to the schedule. The cases when a municipal customer makes changes to the schedule are listed in Law N 44-FZ, as well as in the Requirements for the formation, approval and maintenance of a schedule for the procurement of goods, works, services to meet the needs of a constituent entity of the Russian Federation and municipal needs, approved by the Government of the Russian Federation from 06/05/2015 N 554 (hereinafter referred to as the Requirements) (Law N 44-FZ). One of such cases is "the occurrence of other circumstances, which could not be foreseen at the date of approval of the schedule" (clause "g", clause 10 of the Requirements). In accordance with Law N 44-FZ, changes to the schedule for each procurement object can be made no later than 10 days before the day the notice is posted in the EIS or the invitation is sent to take part in determining the counterparty in a closed way. Changes made to the schedule shall be posted in the UIS within 3 working days from the date of the change in the schedule, with the exception of information constituting a state secret (Law N 44-FZ).

We also recommend that you read the following materials:
- Encyclopedia of decisions: Termination of the contract according to N 44-FZ;
- Encyclopedia of solutions. Termination of the contract under N 44-FZ by a court decision;
- Encyclopedia of solutions. Responsibility of the supplier (fine, penalty) under the contract according to N 44-FZ;
- Calculator of penalties charged to the customer;
- Encyclopedia of solutions. Making changes to the schedule;
- Encyclopedia of solutions. Placement of a notice of procurement.

Prepared answer:
Legal Consulting Service Expert GARANT
Chashina Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Aleksandrov Alexey

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

According to part 8 of Art. 95 No. 44-FZ, termination of the contract is allowed by agreement of the parties, by a court decision, in the event of a unilateral refusal of the contract party to perform the contract in accordance with civil law. The customer has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation, provided that this was provided for by the contract (part 9 of article 95 No. 44-FZ).

Law No. 44-FZ establishes the mandatory stages of unilateral termination (parts 12-22, Article 95 No. 44-FZ):

1. obligatory notification of the second party,
2. cancellation of the decision on unilateral termination if, within ten days from the date of notification, the second party has eliminated the violation of the terms of the contract.

The customer has the right to unilateral termination of the contract. What about a participant?

If the customer has provided for the possibility of unilateral termination of the contract, the supplier also has the right to unilaterally refuse to execute the contract 44-FZ.

Upon termination of the contract in connection with a unilateral refusal to perform the contract, the other party has the right to demand compensation for only the damage actually incurred (part 23, art. 95 No. 44-FZ).

The question arises: If the contractor completed the work on time and with high quality, and the customer evades signing the KS forms and payment, then the customer will be able to terminate the contract and not pay for the work performed?

No, this is not possible under the law. The customer cannot terminate the contract without a good reason and cannot fail to pay for the work performed, even if the contract is terminated.

Unilateral refusal to execute the contract 44-FZ: reasons and conditions

1. The reason for unilateral termination can only be “a material breach of the contract by the other party”, and the essential one is “the breach of the contract by one of the parties, which entails such damage for the other party that it is largely deprived of what it was entitled to expect when concluding the contract” ( Part 2, Article 450 of the Civil Code of the Russian Federation), as well as specific reasons indicated in the text of the contract.
2. The contract must necessarily indicate the terms of the responsibility of the customer and the supplier for non-performance or improper performance of the contract (part 4, article 34 No. 44-FZ). Penalties and fines for violation of payment terms must also be specified in the contract (part 5, article 34 No. 44-FZ).

In accordance with these clauses, the supplier will be able to claim damages.

And yet, when executing and terminating a contract, should one be guided by Law No. 44-FZ “On the Contract System”, and not by the Civil Code?

No. 44-FZ says that termination of the contract is possible by agreement of the parties, by a court decision and unilaterally in accordance with civil law. This means that if some conditions and obligations upon termination of the contract are not described in the procurement law, the Civil Code and other Federal laws apply, to the extent that they do not contradict No. 44-FZ. “The rules of law contained in other federal laws and regulating these relations must comply with this Federal Law” (part 1, article 2, No. 44-FZ).

Termination of the state contract under 44-FZ. What does the public procurement law say?

The customer can conduct an examination of the delivered goods, work performed, services rendered. If violations are found on the part of the supplier, then the customer has the right to terminate the contract unilaterally (parts 10, 11 of article 95).

Within three working days from the date of the decision to unilaterally terminate the contract, the customer places it in the EIS and sends it to the supplier by registered mail with acknowledgment of receipt. Other means of notifying the supplier are also possible, such as via e-mail. The main thing is that such methods ensure that the notification is recorded and the customer receives confirmation of its delivery to the supplier (part 12 of article 95).

The customer's decision to unilaterally refuse to perform the contract enters into force and the contract is considered terminated ten days after the date the customer duly notified the supplier of the unilateral refusal to perform the contract (part 13 of article 95).

Information about the supplier with whom the contract was terminated is included in the RNP (part 16 of article 95). If within these ten days the supplier, contractor or performer manages to correct the violations, then the customer is obliged to cancel the decision on the unilateral refusal to perform the contract that has not entered into force (part 14 of article 95). Be careful! The supplier has the right to one single mistake. The customer will not revoke his decision in the event of a repeated violation.

The supplier, contractor or performer, for their part, is also entitled to decide on a unilateral refusal to perform the contract if the contract provided for such a right of the customer (part 19 of article 95). The procedure for sending a notification to the customer about the decision to terminate the contract is similar to the procedure for sending such a decision from the customer to the supplier, described above. The parties have the right to demand compensation for damage under the conditions specified in Part 23 of Art. 95.

Not satisfied with the quality of services - the customer terminates the contract? Not always

Under the terms of the contract, the supplier assumed the obligation to provide security services at protected facilities, the list of which is approved in the annex to the contract (the presence of one post, one security guard per shift, round-the-clock service).

On January 30, 2014, the customer conducted an inspection of the provision of services, as a result of which he came to the conclusion that the quality of the provision of services does not meet the requirements of the state contract.

Based on the results of the audit, the customer issued an order for a unilateral refusal to perform the contract, the decision was sent to the supplier and received by him.

The supplier sent a letter to the customer, in which he reported on the elimination of the identified violations, and also indicated that the customer had violated the procedure - a unilateral refusal to fulfill the contract is not provided for by the terms of the contract, and therefore termination of the contract is possible only in court. According to clause 10.3, the contract may be terminated ahead of schedule by agreement of the parties. The supplier believes that the customer unlawfully refused to fulfill the state contract.

The court found that the terms of the contract do not provide for the defendant's right to terminate the contract unilaterally without going to court, therefore the defendant's refusal to execute the contract unilaterally is illegal (Resolution of the Arbitration Court of the Volga District dated November 19, 2014 No. F06-16631 / 2013 in the case No. А49-2126/2014).

The supplier refused to fulfill the contract. What should the customer do?

The supplier sent a letter to the customer to suspend the execution of the contract, but did not indicate the grounds for such suspension.

When considering the case, the court found that the supplier had not actually started to fulfill its obligations under the contract. By virtue of Art. 715 of the Civil Code of the Russian Federation provides that if the contractor does not start the execution of the work contract in a timely manner or performs the work so slowly that it becomes clearly impossible to complete it by the deadline, the customer has the right to refuse to perform the contract and demand compensation for losses.

Due to the fact that the supplier did not actually start fulfilling its obligations, the customer rightfully considered this letter as a unilateral refusal to perform the contract, which was provided for by the contract, and sent in response its decision that it was also unilaterally ready to terminate Contract.

In accordance with Part 14 of Article 95 No. 44-FZ, the customer is obliged to cancel the decision on unilateral refusal to perform the contract that has not entered into force if the violation is eliminated within 10 days from the date of proper notification of the supplier of the decision to unilaterally refuse to perform the contract, served as the basis for the said decision. But within the period specified in the law, the provider did not start providing services and did not eliminate the violations that served as the basis for making this decision.

Therefore, the court recognized the termination of the contract as lawful (Decree of the Arbitration Court of the North-Western District of February 17, 2015 in case No. A56-6651 / 2014).

The contractor missed the deadline

The contract provides for the contractor to perform design and survey and construction and installation works and their sequence in accordance with the terms of reference. The start date of work is set from 06/18/2012, completion - no later than 19 months from the date of the contract, including the preparation of working and estimate documentation, construction and commissioning of residential buildings.

According to clause 4.2.2 of the contract, the contractor undertook to complete the working documentation to the extent necessary to obtain a construction permit; coordinate it with the customer and the competent authorities, and transfer it to the customer.

In connection with the defendant's failure to fulfill obligations within the time limits specified in the contract, the plaintiff applied to the arbitration court with a request to terminate the contract on the basis of clause 1, part 2, art. 450 of the Civil Code of the Russian Federation.

With regard to the municipal contract for the performance of contract work, a significant violation of its terms is a violation of the deadlines for the performance of work. As established by the court, based on the dates of execution of documents for the transfer of part of the working documentation, these works on the preparation of working and estimate documentation were performed by the contractor in violation of the deadline established by the contract.

At the same time, the working documentation was not prepared by the contractor in full at the time the dispute was considered in court.

Thus, the court came to a reasonable conclusion about the defendant's violation of the deadlines for the production of the specified documentation, that is, a material breach of the terms of the contract (Resolution of the Arbitration Court of the Urals District dated 16.01.2015 No. F09-9280/14 in case No. A60-10485/2014).

It was also established that the customer complied with the pre-trial procedure - the defendant was asked to terminate the above contract. The request to terminate the contract was granted.

Refusal of acceptance

According to the contract, the supplier undertook to supply the customer with consumables for copiers in accordance with the specification, with the necessary documentation (invoice, invoice, consignment note TORG-12, act of acceptance and transfer of goods).

According to clause 3.3, the goods are delivered in packaging that ensures safety during transportation and reloading and is marked: index, quantity, weight, country and name of the manufacturer, model of the device for which the goods are delivered.

According to clause 9.1 of the contract, the delivery of goods is carried out within five working days after the signing of the contract. That is, until April 11, 2014.

As follows from the evidence presented, the goods were initially offered for acceptance on 04/10/2014, in which the supplier was refused due to the short delivery of the goods, incorrect indication of the quantity of goods in the shipping documents, incorrect indication of the name of the goods supplied, the absence of serial numbers of the goods and information about the date in the transfer certificates. the manufacture of goods.

Subsequently, the supplier supplied the missing quantity of goods, but did not bring the shipping documents in line with the terms of the contract.

The customer demanded payment of a penalty for late delivery in full and unilaterally terminated the contract, citing incorrect paperwork as the reason. Part 1 Art. 520 of the Civil Code of the Russian Federation establishes: if the supplier has not delivered the quantity of goods stipulated by the supply agreement within the prescribed period, the buyer has the right to demand that the necessary amount of goods be delivered.

The norms of the Civil Code of the Russian Federation and the provisions of the contract in case of underdelivery do not give the buyer the right to refuse to accept the goods.

The court rightfully pointed out that, as part of the acceptance of the goods by the customer, no violations by the supplier of the requirements for the quality of the goods were established, which additionally testifies to the unlawful refusal of the customer to accept.

Incorrect indication of information about the goods in the shipping documents is also not a circumstance preventing the acceptance of the goods under the terms of the contract, and even more so, the basis for unilateral termination of the contract.

The claims for the recovery of the penalty were partially satisfied, since the supplier violated the terms of delivery of the goods to the customer, however, the recoverable penalty was reduced on the basis of Art. 333 of the Civil Code of the Russian Federation, as part of the delivery was completed on time. The supplier's claims to invalidate the unilateral termination of the contract were satisfied (Decision of the Ninth Arbitration Court of Appeal dated December 23, 2014 No. 09AP-51223/2014 in case No. A40-94139/2014). They were recognized as legitimate, since the customer terminated the contract on a basis that is not provided for either in the law or in the contract.

Conclusion

The state contract can be terminated unilaterally. The main thing is to follow the laws and regulations. Attempts to evade the performance of the contract through illegal termination unilaterally are easily detected during the arbitration process. Therefore, it is better for both suppliers and customers to initially conscientiously approach the fulfillment of their obligations.

By virtue of Part 9 of Art. 95 of Law 44-FZ, the customer has the right to decide on a unilateral refusal to fulfill the contract on the grounds provided for by the Civil Code of the Russian Federation for unilateral refusal to fulfill certain types of obligations, provided that this was provided for by the contract.

It is necessary to pay attention to two conditions that must be simultaneously met in order to implement a unilateral refusal:

The first condition, the possibility of unilateral refusal must be provided for in the contract;

The second condition, the grounds for unilateral refusal must be provided for in the Civil Code of the Russian Federation.

For example, with regard to contract work, the provisions of Part 3 of Art. 708 of the Civil Code of the Russian Federation referred to in Part 2 of Art. 405 of the Civil Code of the Russian Federation, the consequences of delay in performance occur in case of violation of the deadline for the performance of work, as well as other deadlines established by the contract. According to part 2 of Art. 405 of the Civil Code of the Russian Federation, if, due to the debtor's delay, the performance has lost interest for the creditor, he may refuse to accept the performance and demand compensation for losses.

With regard to delivery under Art. 523 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill a supply contract (in whole or in part) or its unilateral change is allowed in the event of a material breach of the contract by one of the parties (paragraph four, part 2, article 450 of the Civil Code of the Russian Federation). According to part 2 of Art. 523 of the Civil Code of the Russian Federation, a violation of the supply contract by the supplier is assumed to be significant in the following cases:

Deliveries of goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer;

Repeated violation of the terms of delivery of goods.

The provisions of Article 95 of Law 44-FZ regulate the procedure for unilateral refusal to execute a contract.

Sources of material:

1) Contour.School

2) Official website of lawyer S.S. Ivleva

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The conclusion of a written agreement between two or more parties in business practice is used precisely in order to fix the agreements reached, to keep them unchanged. The very fact of the existence of the contract implies the need for each party to fulfill the obligations assumed in relation to the other party.

From this point of view, the termination of contractual obligations unilaterally seems to be somewhat contrary to the principles of contractual relations. However, the ability of one of the parties to initiate the termination of the contract strictly regulated legislation and are limited by the observance of the legitimate interests of the other party (Chapter 29 of the Civil Code of the Russian Federation, in particular Articles 450-453).

The unilateral termination procedure implies that if there is a written agreement, one of the parties initiates its termination before the end of the term. As a result, the contract is terminated, the conditions specified in it are not subject to further execution.

In legal practice, there is often a confusion of two fairly similar concepts: "refusal to fulfill obligations under the contract" and "unilateral termination of the contract." In fact, there is a fairly significant difference between these concepts (in some cases they can be considered cause and effect, respectively). This difference comes down mainly to the interpretation of these actions and the resulting consequences.

With regard to refusal to fulfill obligations, the law provides for certain conditions under which one of the parties has the right to refuse further fulfillment of the terms of the agreement. But this does not mean the termination of the contract. It retains its legal force as the legal basis for the relationship between the parties.

That is, the refusal to fulfill the terms of the contract is, in fact, regulated non-compliance with the terms of the current contract.

And at the moment of unilateral termination of the contract, all obligations of the parties cease to be valid, the contract is no longer a legal basis for their interaction.

At the same time, the refusal of one of the parties to continue compliance with the conditions may serve as a basis for unilateral termination of the contract for the other party.

Separately, it should be noted that agreement and participation of the other party one way or another is implied, since the possibilities of such termination of the contract in the legislation are strictly limited.

Grounds for termination of partnerships

According to the terms of the contract

In this situation, the contract itself initially prescribes the conditions upon the occurrence of which one of the parties has the right to initiate the procedure for terminating the agreement, both parties initially agree to such a termination procedure. As such a circumstance, the same refusal of one of the parties to comply with the terms of the agreements or some other circumstances may be indicated.

By agreement of the parties

If any circumstances arise in which the further continuation of the contractual relationship does not suit one or both parties, and at the same time they have the opportunity to resolve this situation among themselves without resorting to litigation, the contract may be terminated by agreement of the parties. In this case, an agreement is signed between the parties, which must be drawn up in the same form as the main contract. It specifies the terms and conditions for terminating the relationship, as well as any additional conditions, if necessary. The contract terminates from the moment of signing the agreement, unless another period is specified in it.

By the tribunal's decision

If there are contradictions between the parties that they cannot resolve on their own, the decision to terminate or continue the contract, or change its terms, must be made by the court.

In order to consider the circumstances preceding this process, the grounds that may be considered sufficient for termination must be presented to the court.

Significant change in circumstances

This implies that the present circumstances of the contract are significantly different from those in which it was concluded, and have a great influence on the result of the execution of the agreement. They may be related to the impossibility of fulfilling obligations for one or both parties or reduce the useful effect of the result of compliance with the contract so that for one or both parties it loses its meaning and would not have been concluded if the circumstances had been such at the time of conclusion.

Violation of the terms

If the terms of the agreement are violated, or one of the parties refuses to fulfill its obligations, the other party to the agreement must submit to the court confirmation that there have been facts of violation of the terms of the agreements by the other party.

For more information about the situations in which unilateral termination of contracts is acceptable, see the following video:

The order of the procedure

The procedure for unilateral termination of the contract is strictly regulated by law and implies compliance with a certain sequence of actions.

The procedure should be based cause, sufficient from the point of view of the law, for such termination of the contract.

Further, the party initiating the termination obliged to write indicating the reason. The legislation does not establish strict rules regarding this item, therefore, one should build on the expected further development of events.

If it is possible to terminate the contract by agreement of the parties, then the method of notification of the intention to terminate it will probably not matter. If it is likely that litigation will be required to resolve the dispute, the court will need confirmation of the other party's notice. In this case, it would be best to send it by valuable letter with acknowledgment of receipt.

Additionally, it should be noted that if counterparty address is unknown, then you can focus on the address indicated in the Unified State Register of Legal Entities. Each legal entity that has provided the Unified State Register of Legal Entities with an address for correspondence independently controls the possibility of receiving correspondence at this address.

In the event that the letter is not received for reasons beyond the control of the sender and within the recipient's area of ​​responsibility, or due to the recipient's avoidance of correspondence, the letter is considered delivered.

After sending a written notice, you must wait for the expiration of the period provided for sending a response. This period may be originally stipulated in the contract or specified in the notice. In cases where this issue is not specifically specified anywhere, the waiting period should be 30 days.

After that, depending on the response of the other party, either an agreement of the parties is drawn up (if such a method of termination is not provided for by the original contract), or a statement of claim is filed with the court. If there is no response to the notification, the response is considered negative.

Nuances of termination of various types of contracts

Sales contracts

Termination of this type of agreement unilaterally implies that it is not properly executed by one of the parties - the buyer or the seller, in which case the other party has grounds for terminating the transaction.

Possible violations towards the seller:

• the buyer for some reason refuses to accept the goods (Article 437 of the Civil Code of the Russian Federation);
• the buyer accepted the goods, but refuses to pay for it (Article 439 of the Civil Code of the Russian Federation);
• the buyer ignores the obligation to insure the goods (if under the contract this function is assigned to the buyer) (Article 443 of the Civil Code of the Russian Federation);
• the buyer did not provide a shipping order for the delivered goods (clause 4, article 462 of the Civil Code of the Russian Federation);
• the buyer did not take the goods from the territory of the seller (if the contract implies self-delivery) (clause 4 of article 468 of the Civil Code of the Russian Federation)

Possible violations towards the buyer:

• the seller refuses to transfer the goods (clause 1 of article 416 of the Civil Code of the Russian Federation);
• the seller refuses to provide accompanying documentation for the transferred goods (Article 417 of the Civil Code of the Russian Federation);
• the assortment of goods does not correspond to that stated in the contract (Article 421 of the Civil Code of the Russian Federation);
• identification of defects in the goods that were not specified before signing the contract (Article 428 of the Civil Code of the Russian Federation);
• violation of the configuration (Article 433 of the Civil Code of the Russian Federation);
• the seller does not fulfill the obligation to insure the goods (Article 443 of the Civil Code of the Russian Federation);
• the goods were transferred in violation of the deadlines (clause 4 of article 464 of the Civil Code of the Russian Federation).

Lease agreements

In this case, there are a number of reasons that apply depending on who is the initiator - the landlord or the tenant.

Foundations by the lessor:

• use of leased property in ways not provided for by the contract, violating the operating conditions, entailing a deterioration in the condition of the leased object;
• late payment of rent, violation of the deadline for making payments more than two times in a row;
• violation of obligations to carry out major repairs, if such obligations are assumed by the lessor.

Foundations by the tenant:

• the tenant has not received the leased property for use;
• identification of shortcomings of the leased property, which the tenant could not know about before the conclusion of the contract;
• violation of obligations to carry out major repairs, if these obligations under the contract were assumed by the tenant;
• the condition of the property has deteriorated, its further use is impossible, while the deterioration took place through no fault of the tenant.

Service Agreements

As a rule, the contract for the provision of services is terminated by one of the parties in cases where the other party refuses to fulfill its conditions.

The customer has the right to refuse the services provided for by the agreement at any stage of execution, except when the service has already been fully rendered.

In cases where the customer wants to terminate the contract, and the contractor has already incurred certain costs for the execution of the order, before termination, all costs of the contractor must be compensated (clause 1, article 782 of the Civil Code of the Russian Federation).

In the same way, if the contract is terminated at the initiative of the contractor, and its termination entails losses for the customer, whether it be direct costs or lost profits, these losses must be compensated before the contract is terminated (clause 2 of article 782 of the Civil Code of the Russian Federation) .

Therefore, if the contract is officially terminated, this releases the parties from all obligations assumed, and the agreement itself ceases to be a legal basis for the interaction of the parties.

If the contract was terminated by agreement of the parties, then it terminates from the moment the agreement is signed, either at the time specified in it, or after the occurrence of the event specified in the agreement as the moment of termination of the contract.

If the contract was terminated on the basis of a court decision, then the expiration date is the moment the decision comes into force. The parties are not entitled to specify any other time limit.

Termination of the contract is one of the topics that gives rise to an inexhaustible variety of practical situations. There are enough materials for it. However, this does not in any way reduce the number of interested parties in professional judgments and the assistance offered on the topic of termination of the contract. This conclusion is confirmed by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35 "On the consequences of termination of the contract" (hereinafter referred to as the Resolution). I gave my comments on the draft of this act in detail in another.

It is also logical that the relevance of the rules on termination of the contract to any contract allows them to be applied to such only if there are relevant special rules in some cases (for example,). This means that if there are no grounds or procedures for its termination in the relevant chapter of a specific type of civil law contract, then the general rules will necessarily apply.

It is in order to remember and correctly apply these general rules, to get rid of a number of misconceptions associated with the termination of the contract, that I have prepared this material.

The law separates the termination of the contract () and refusal to fulfill the obligation(). Despite the identity of the legal consequences of terminating the contract and the refusal to fulfill the obligation that arose from the contract, the grounds and procedure for performing the necessary actions are different.

Differences in the legal regulation of the grounds and procedure for terminating the contract and refusing to fulfill the obligation lead to the following:

• a party who is mistaken in interpreting the terms of the contract or the norms of the law will choose the wrong path for his actions, including choosing the wrong way to protect civil rights. This will result in both a denial of protection of rights and financial losses. This will also be accompanied by unnecessary use of available time and material resources.
• the party in error will not get the desired legal effect. Consequence - the contract, for example, will continue to be valid, and the counterparty under the contract will be able to demand the fulfillment of the obligation, compensation for losses, or choose other options for influence.

Here I remind you that the interpretation of the terms of the contract is carried out with the help. If, as a result of grammatical interpretation, it is not possible to understand the content of the terms of the contract, then the actual will of the parties to the agreement is subject to clarification, taking into account the purpose of the contract. Accordingly, the purpose of the treaty must be determinable or determined in advance.

Termination of the contract is possible by agreement of the parties. Pretty boring base. The parties are united in their desires and, if they wish, they can terminate all their obligations by an agreement to terminate the contract. But even here there are some nuances, which are also reflected in the Resolution. For example, a question on guarantee certificates.

I also note that this Resolution allows you to establish the consequences of termination of the contract, other than those provided by law within the general restrictions on freedom of contract.

Termination of the contract is possible by a court decision. This means that the termination of the rights and obligations of the parties is impossible without going to court.

In my opinion, the terms of contracts about "unilateral termination of the contract" should be interpreted only as a statement of the possibility of filing a lawsuit in court to terminate the contract. Stupidity or unequivocal intrigues of enemies. Choose yourself. But an error in choosing the right condition should have negative consequences (with the exception of the case provided for in paragraph 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 "").

The legislator does not indicate that the termination of the contract, namely termination, and not the use of other legal institutions, can be carried out without going to court.

After one of the elements of the procedure for terminating the contract in the absence of an agreement between the parties about it becomes clear, I will move on to the grounds themselves.

The grounds for termination of the contract are also indicated in the Civil Code of the Russian Federation ( ). Termination of the contract is permissible in one of the following cases:

• in the event of a material breach of the contract by the other party;
• in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.

The definition of the materiality of a breach of contract is also given by law - a breach of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract ().

It is possible that when proving the materiality, it will be easier for the plaintiff if there is evidence that unambiguously and definitely indicates the understanding of each of the parties received under this agreement (the party expected to receive).

Also, the case provided for by the Civil Code of the Russian Federation is a significant change in circumstances (). In more detail on this basis, we will place a separate material in the future.

Accordingly, after determining the court as the only body with the competence to terminate the contract and the cases when this can be done, let's pay attention to the procedure itself. indicated that an appeal to the court with a claim for termination of the contract can be made after sending a pre-trial claim to the counterparty and the expiration of a month, unless otherwise provided by the contract.

If the counterparty came to court, bypassing what is stated in the law, then he can only wait for the case to be left without consideration (for example, paragraph 5 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 11, 2002 No. 66 "" , p. 60 Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 No. 6/8" ", FAS ZSO dated February 18, 2014 in case No. A70-5156 / 2013).

By the way, about the desired legal effect. According to the obligations of the parties will be terminated. But this does not mean that the party that presented its performance to the counterparty and did not receive anything in return, upon termination of the contract, loses it. Absolutely not. She can get it back or get counter-performance (see paragraph 4 of the Resolution).

And in the end, I will stop at the unilateral waiver of obligation.

As mentioned earlier, a waiver of the obligation is possible. Unilateral refusal of obligations arising in the field of entrepreneurial activity is allowed. But for obligations that are in no way connected with entrepreneurship, this is impossible.

Therefore, if in an agreement between entrepreneurs the parties wish to indicate the termination of obligations under the agreement without going to court and unilaterally (upon notifying the counterparty about this), then it is necessary to use and include a condition about unilateral waiver of the obligation.

My opinion:

• unilateral refusal of an obligation (contract) and unilateral termination of the contract are different things, albeit with the same consequences;
• differences in legal regulation lead to the recognition of unlawful actions to unilaterally terminate the contract without going to court;
• Differences in regulation give entrepreneurs the opportunity to include unilateral waiver clauses in contracts.

Termination of the contract unilaterally by the Civil Code of the Russian Federation is considered an exceptional situation, although possible. This method of termination of obligations can be applied in strictly defined cases, taking into account procedural features.

Unilateral termination of the contract under the Civil Code of the Russian Federation: general provisions

Termination (Article 452 of the Civil Code of the Russian Federation) and refusal to perform (repudiation of the contract) (Articles 310, 450.1 of the Civil Code of the Russian Federation) are 2 independent ways to terminate the contract. Their differences are as follows:

• termination is made by the court at the request of the interested party, refusal - at the request of the party;
• before filing a lawsuit to terminate the contract, a warning (notice) is sent and a response is expected, the refusal is valid from the moment the counterparty is notified (Article 450.1 of the Civil Code of the Russian Federation).

Termination in terms of procedure and consequences may be similar to a refusal. Read about it below.

In Art. 450, 452 of the Civil Code of the Russian Federation indicate the grounds on which the termination of the contract is allowed at the initiative of the party:

• in case of significant violation;
• in cases stipulated by law or contract;
• when there is a significant change in circumstances.

Only an existing contract can be terminated. This follows from Art. 408, 450-453 of the Civil Code of the Russian Federation (see the decision of the Supreme Arbitration Court of the Russian Federation dated May 13, 2010 No. VAC-5792/10).

Material breach of contract as grounds for its termination

Such grounds for unilateral termination of the contract arises if a party is substantially deprived of the provision due to it under the contract. The norm is formulated with the expectation of the appraisal activity of the court.

Violation may be material in the following cases:

• Violations of the main obligation for this type of contracts. This is the transfer of goods to the buyer, the transfer of property for rent, the performance of work, the payment of money (see, for example, the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 10, 2014 No. 1999/14). If the main obligation is not partially fulfilled, the court may refuse to terminate the contract, so the parties should be more flexible in using other methods of influencing the counterparty (for example, suspend counter performance).
• Long delay in performance.
• More than 1 case of improper execution (in particular, violation of delivery dates), etc.
• Violation of an essential condition (established by law or contract) on the product, place, time of performance, etc. (see, for example, the decision of the FAS ZSO dated 06/16/2010 in case No. A45-3418 / 2008).

Assessing a violation as material can be difficult. This can be seen in the example of case No. 5-KG12-51, considered by the Investigative Committee for Civil Cases of the Armed Forces of the Russian Federation on 02.10.2012. The annuity contract was terminated because the payer arbitrarily replaced the maintenance in kind with cash payments, while the recipient of the annuity, for health reasons, needed to be provided with medicines.

Significant change in circumstances as grounds for unilateral termination of the contract

Art. 451 of the Civil Code of the Russian Federation contains a list of characteristics that, taken together, give grounds to treat a change in circumstances as significant.

Evidence must be provided for each item. Clause 3, part 2 of this article is noteworthy: it is necessary to prove future circumstances, which in practice causes difficulties.

Thus, the courts refuse to terminate contracts on the basis of a large number of "crisis" claims (see the appeal ruling of the St. Petersburg City Court of 06/04/2015 in case No. 33-8952 / 2015). Changes in the exchange rate and the economic crisis are not among the circumstances that cannot be foreseen.

There are a variety of situations in which it may be necessary to terminate on this basis. General rules cannot be deduced.

In general, such circumstances must not only meet the 4 conditions set out in Art. 451 of the Civil Code of the Russian Federation, but also be objective. For example, these circumstances do not include:

• deterioration of the financial situation (decree of the FAS MO dated March 19, 2014 in case No. A40-68115 / 2013),
• insufficiency of budget financing (decree of the AC UO No. F09-2054 / 17 dated 06/14/2017 in case No. A47-5021 / 2016),
• change in the exchange rate of a foreign currency against the ruble (clause 8 of the Review of the Court Practice of the Supreme Court of the Russian Federation N 1 (2017), approved by the Presidium of the Supreme Court of the Russian Federation on February 16, 2017.

Other grounds and conditions for unilateral termination of the contract

The lease agreement can be terminated under Art. 619, 620 of the Civil Code of the Russian Federation. Additional grounds in the contract must be specified quite clearly, the wording “other grounds” will be rejected by the court (definition of the Supreme Court of the Russian Federation of August 21, 2015 No. 310-ES15-4004). The possibility of unmotivated withdrawal from the contract should be formulated in plain text.

Despite the fact that the Civil Code of the Russian Federation directly calls the method of extrajudicial termination of the contract by a party a unilateral refusal, in practice, very often the parties include in the contract a condition on the possibility of unilateral termination with a warning "_ days". Courts consider such conditions applicable (sometimes equating them with a waiver). An example is the definition of the Supreme Arbitration Court of the Russian Federation dated 01.08.08 No. 10903/08.

However, to be sure of applicability, such conditions should be formulated:

• as the right to a unilateral unmotivated refusal (under Article 450.1 of the Civil Code of the Russian Federation);
• or as the right to terminate the contract unilaterally out of court without specifying the reasons for termination.

Termination of the contract unilaterally regulated only by the norms of the Civil Code of the Russian Federation and the terms of the contract, but not by the administrative acts of the authorities. Thus, when deciding on the possibility of terminating a lease agreement for a land plot in connection with the cancellation of the decision to lease it, the Supreme Court of the Russian Federation found that there was no such basis in the agreement, and the claim for termination of the agreement was dismissed (paragraph 1 of the review of judicial practice dated 03/04/2015 No. 1 (2015)).

Sample notice of unilateral termination of the contract and the waiting period for a response

To fulfill the requirements of Art. 452 of the Civil Code of the Russian Federation before going to court:

• according to part 2 of Art. 450 of the Civil Code of the Russian Federation, an attempt should be made to bring the contract in line with the changes (notify, offer other conditions);
• in other cases and in case of refusal to make changes, it is necessary to send a proposal to terminate the contract (part 2 of article 452 of the Civil Code of the Russian Federation).

Contractual terms of termination generally also require advance notice.

The notice must contain:

• details of the contract to be terminated;
• the rule to be applied;
• grounds (reason), if it is not possible to terminate the contract without indicating reasons;
• an offer to terminate the contract or a notice of termination after a certain period of time (contractual out-of-court procedure).

A sample notice of termination of the contract can be viewed here: Notice of termination of the contract unilaterally - sample.

It is necessary to wait for a response - 30 days (part 2 of article 452 of the Civil Code of the Russian Federation) or the one provided for by the contract. With an earlier appeal, the court will leave the claim without consideration.

Everything performed prior to the termination of the contract must be accepted and paid for, and counter obligations must be adequately performed.

Thus, termination of the contract is possible subject to the procedure and conditions to be applied, with all the above features.