Essential terms of the contract - general provisions. Subject as the main condition of the contract

I continue to post on Mondays for public discussion comments to the next new article Civil Code of the Russian Federation. This time it's a commentary on new edition Article 432 of the Civil Code on the essential terms of the contract.

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

Article 432. Basic provisions for concluding an agreement

1. An agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement.

Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

2. An agreement is concluded by sending an offer (offer to conclude an agreement) by one of the parties and its acceptance (acceptance of the offer) by the other party.

3. The party that has accepted from the other party the full or partial execution under an agreement or otherwise confirming the validity of the agreement, does not have the right to demand recognition of this agreement as not concluded if the statement of such a requirement, taking into account specific circumstances, would contradict the principle of good faith (clause 3 of Article 1).

A comment:

1. According to clause 1 of Article 432 of the Civil Code, in order for an agreement to be recognized as concluded, it is necessary that an agreement has been reached between the parties on all essential terms.

The essential terms of the contract are those conditions without the direct agreement of which the contract is not concluded and does not give rise to legal consequences. If there is no essential condition in the contract, the gap in the contract is fatal to its fate. In theory, the category of essential conditions should include those conditions that a) the court cannot, in principle, introduce into the contract through the application of analogy of law, analogy of law, or the application of the principles of reasonableness, justice or good faith, and b) although theoretically they can be introduced into the contract by the court through the use of these techniques, but delegation of such competence to the courts is undesirable, as it may provoke unpredictability in the relations of the parties.

1.1. Paragraph 2 of clause 1 of Article 432 of the Civil Code classifies three categories of conditions as essential terms of the contract.

Firstly, this is a condition about the subject of the contract. The concept of the subject of the contract is quite vague and can provoke legal disputes about what specific conditions determine the subject of the contract. At the same time, this criterion hardly has acceptable alternatives, since it is simply impossible to compile and enshrine in law an exhaustive list of the essential conditions of all known named contracts, and especially unnamed contracts. Acts of international unification contract law use no less evaluative criteria for these purposes: Article II.-4:103 of the Model Rules of European Private Law speaks of the need for “sufficient” certainty of the terms of the contract to recognize it as concluded, and Article 2.1.2 UNIDROIT Principles speaks of the need for “sufficient certainty” of the content of the offer.

By agreeing on the subject of the contract, it is reasonable to understand the specification in the contract of the content of the main obligations of the parties with sufficient degree details so that their will can be accepted by the court. For example, in a purchase and sale agreement, the parties must specify what exactly and to what extent is subject to alienation, and in a contract agreement, the work to be performed must be clearly identified (in particular, by agreeing on the relevant project documentation, terms of reference and so on.). In principle, the price condition also applies to the item compensation agreement, as it specifies one of its main obligations. At the same time, due to the fact that, according to Article 424 of the Civil Code, for most contracts the price condition is directly excluded from the list of essential conditions, the absence of an agreed price in the contract does not lead to the recognition of the contract as not concluded, unless special provisions of the law (for example, clause 1, Article 555 of the Civil Code) do not indicate the significance of this condition.

If the subject of the contract is not clearly stated or not agreed upon at all, the court has no choice but to recognize the contract as not concluded. In particular, the court cannot determine for the parties which goods and in what quantity are to be sold and what specific work is to be performed. Cases of recognition of a contract as not concluded due to insufficient detail of the subject matter of the contract are quite often encountered in practice (especially in relation to contracts paid provision services). See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 23, 2005 N 1928/05

Secondly, the category of essential includes conditions that are named in the law or other legal act as essential or necessary for contracts of this type. We are talking, of course, about named agreements, in relation to which there is some special regulatory regulation. The law in a number of cases fixes essential conditions separate contracts quite unambiguously, for example, stipulating that such and such conditions are essential (for example, a number of conditions of the insurance contract under Article 942 of the Civil Code), or stipulating that the absence in the contract certain condition entails recognition of the contract as not concluded (for example, a condition on the price in a real estate purchase and sale agreement under clause 1 of Article 555 of the Civil Code).

At the same time, in a number of other cases, the provisions of the law are less clear, and the courts are required to provide teleological (target) and systemic interpretation relevant norms in order to determine whether the will of the legislator was aimed at fixing the materiality of the conditions. So, often in special norms ah of the law indicates that certain issues are determined in accordance with the terms of the contract or certain conditions are indicated in the contract. In a number of cases, the legislator may or may not have wanted to establish the materiality of such conditions. For example, arbitrage practice interprets the provision of paragraph 1 of Article 740 of the Civil Code that according to the agreement construction contract the contractor undertakes to construct the building “in established by contract term" as an indication of the significance of the term for the completion of work in the construction contract (clause 4 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 N 51). On the other hand, the provision of clause 1 of Article 781 of the Civil Code that “the customer is obliged to pay for the services rendered to him within the time frame and in the manner specified in the contract for the provision of paid services” is not assessed by most courts as an indication of the significance of the condition on the payment period under a contract for the provision of services.

The situation becomes even more confusing if you look at the various industry legislative acts And by-laws. So, for example, clause 5 of Article 13 of the Law on Water Supply and Sanitation directly categorizes the essential terms of a water supply contract, among other things: a) “rights and obligations of the parties under the contract”, b) “liability in the event of non-fulfillment or improper fulfillment of obligations by the parties under the contract water supply" and c) "the procedure for resolving disagreements arising between the parties to the agreement." It is quite obvious that the legislator simply could not, in fact, mean that the absence in the water supply contract of conditions on liability or the procedure for resolving disagreements or any other similar absolutely secondary conditions should mean recognition of the contract as not concluded. After all, the only victim similar development events will be the consumer. The indication in the list of essential conditions of the “rights and obligations of the parties to the contract”, mysterious in their uncertainty, only confirms the guess that here the legislator did not at all mean essential conditions within the meaning of Article 432 of the Civil Code.

As we see, only a teleological and systemic interpretation of the law makes it possible to clarify the numerous ambiguities that are scattered throughout the text of Russian legislative acts. The gradual accumulation of judicial practice interpreting such provisions of special norms of law clarifies the range of essential conditions of the named agreements. For example, the Supreme Arbitration Court of the Russian Federation recognized in 2014 that, due to the nature of the obligations under a contract for the provision of services for a fee, the provision of clause 1 of Article 708 of the Civil Code on the materiality of the condition on the period of performance of work in a contract agreement does not apply to contracts for the provision of services for a fee and does not make a condition about the period of provision of services is essential (clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165). Thus it was decided old problem, which for a long time was being decided lower courts not the same.

Thirdly, the essential conditions include those on which, according to the statement of one of the parties, agreement must be reached. This provision means that any conditions that one of the parties fixes in its offer (for example, a sent draft contract) are equated to essential ones and must be agreed upon in order for the contract to be recognized as concluded.

Sometimes there is an opinion that in order to recognize the conditions put forward by one of the parties as essential, a direct clause in the offer is necessary that such conditions or some of them are essential. Within the framework of this erroneous interpretation, in the absence of such a special clause in the offer, the consent of the other party to those terms of the offer that characterize the subject of the contract or are objectively significant by virtue of indications in the law, is sufficient to recognize the contract as concluded, and the contract will be considered to have entered into force to the extent agreed conditions without taking into account those objectively insignificant terms of the offer on which the parties still have disagreements. This point of view is fundamentally incorrect, since it does not take into account the systematic interpretation of the law and the fact that, by virtue of Article 443 of the Civil Code, “a response about consent to conclude an agreement on conditions other than those proposed in the offer is not acceptance”; “such a response is recognized as a refusal of acceptance and at the same time a new offer,” and by virtue of clause 1 of Article 438 of the Civil Code, “acceptance must be complete and unconditional.” In these conditions, the systematic interpretation of clause 1 of Article 438, 443 of the Civil Code and clause 1 of Article 432 of the Civil Code leaves no doubt that the very fact that the offeror included certain conditions in the offer means that for him the agreement of such conditions is fundamental and only partial agreement the other party does not entail the conclusion of an agreement. A different interpretation would not only contradict Article 443 of the Civil Code and paragraph 1 of Article 438 of the Civil Code, but would also essentially be extremely unsuccessful, destabilizing the relations of the parties and undermining the basic principle of contract law - autonomy of will. After all, such an erroneous interpretation would mean that the content of the contract could be imposed on the offeror, which does not correspond to what he himself expressed his will for. There are no guarantees that the offeror would have agreed to make an offer or would have stated its terms in the current version if he knew that the acceptor accepted the offer only in part and the court would recognize the contract as concluded only in this part. All terms of the contract are closely intertwined. Therefore, it should be assumed that the very fact of including certain conditions in the offer means that their agreement is fundamental for the offeror.

A separate problem arises when the parties have unresolved disagreements, but the agreement begins to be implemented. On this issue, see the commentary to Article 443 of the Civil Code.

1.2. Essential terms must be agreed upon by the parties in the contract itself or in various amendments to it ( additional agreements, applications, specifications, etc.). In such situations, the contract will be considered concluded from the moment such additional transaction is concluded.

In addition, there may be situations when certain essential conditions are not specified in the text of the contract or amendments to it, but they are defined in the documentation signed by the parties that formalizes the delivery and acceptance (work completion certificates, invoices, etc.). See: Resolutions of the Presidium of the Supreme Arbitration Court of October 28, 2010 N 15300/08 and of January 31, 2006 N 7876/05. In such a situation, the contract should also be recognized as concluded and valid, at least from the moment such documentation is drawn up and the essential terms missing from the contract are agreed upon.

1.3. The essential terms of the contract may not be clearly defined, but definable. IN the latter case The parties fix in the contract an algorithm for determining essential conditions, which may allow the value of such a condition to be determined by the time the contract is executed. In particular, the inclusion of a currency clause in a contract (Article 317 of the Civil Code), in essence, means establishing in the contract not a clear price, but an algorithm for determining it (a ruble amount is payable, which at the time of payment will be equivalent to the specified amount foreign currency at the appropriate rate). Therefore, in cases where the price condition is essential by law, such a condition should be considered agreed upon in cases where a currency clause is used. The possibility of establishing other options for definable essential conditions is also supported by judicial practice (clause 23 of the Resolution of the Plenum Supreme Court RF dated January 29, 2015 No. 2; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 4, 2012 N 11277/12).

1.4. An agreement in which the parties have not agreed on the essential terms is precisely unconcluded and actually absent. The rules on the invalidity of a contract are not applicable to such a situation (Clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165).

1.5. The court when considering a dispute about non-fulfillment contractual obligations or other contractual dispute has the right to recognize the contract as not concluded and in the absence of a claim to recognize the contract as not concluded or an objection from one of the parties with reference to the non-conclusion of the contract (clause 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 57)

2. According to clause 2 of Article 432 of the Civil Code, a contract is concluded by sending an offer (offer to conclude an agreement) by one party and its acceptance (acceptance of the offer) by the other party. The agreement is a bilateral or multilateral transaction. Accordingly, its conclusion requires the expression of the will of more than one person. The will of the parties to enter into a contract is designated as an offer and acceptance.

The contract is considered concluded by means of offer and acceptance when it is signed in the form single document. Most typical shape concluding an agreement in business practice consists of one of the parties signing two copies of the agreement and sending them to the other party for signing, followed by returning the signed copy to the first party. In this case, the signing of copies by the first party in turn will be considered an offer, and the second party - acceptance. Moreover, offer and acceptance also take place when the contract is signed in the presence of the parties. It’s just that in this case the time gap between the signing of copies of the contract by one party is minimal.

At the same time, there may be situations where the qualification of counter-expressions of will as sequential offer and acceptance is not so clear. In particular, such a problem arises when the parties sign one copy of the text of the agreement discussed and agreed upon in advance and exchange them. This practice is common in circulation. It seems that it is quite problematic to clearly determine which of the parties here is the offeror and who is the acceptor in such a situation. In essence, each party is both an offeror and an acceptor.

3. Paragraph 3 of Article 432 of the Civil Code, which appeared in the Civil Code on June 1, 2015, affirms the operation of the estoppel principle when the contract is not formally concluded. According to this rule, a party that has accepted performance under a contract from the other party or has otherwise confirmed its validity cannot refer to the formal non-conclusion of the contract if such a reference in the context of specific circumstances would indicate bad faith. This provision is applicable primarily to situations where there is no essential term in the contract. Previously, this idea was derived in judicial practice (Resolutions of the Presidium of the Supreme Arbitration Court dated February 8, 2011 N 13970/10 and dated February 5, 2013 N 12444/12, paragraph 7 of the Information Letter of the Presidium of the Supreme Arbitration Court dated February 25, 2014 No. 165)

If some essential conditions are not agreed upon in the contract, but subsequently one of the parties confirms the validity of the contract (accepts execution, fulfills its counter-obligation or performs other actions confirming the validity of the contract), then an attempt by the same party to subsequently refer to non-conclusion (to demand that the contract be recognized as non-concluded in court or to object to the non-conclusion during a particular contractual dispute) may be regarded as dishonest, inconsistent behavior that undermines the existing the counterparty relying on the prior implied conduct of the first party, reasonable expectations. In this case, the court blocks the reference to non-conclusion and proceeds from the fact that the contract was concluded.

Much of the application of the estoppel principle in a given situation depends on the specific circumstances of the case. In particular, it is of fundamental importance whether the confirmatory, implied behavior of one of the parties implies its agreement with an essential condition missing from the contract. If so, then there is a basis for applying the principle of estoppel. If not, and the issue of lack of agreement on the relevant essential condition is not resolved by subsequent behavior, then there is no reason to “heal” the contract and recognize it as concluded.

For example, if the work contract does not expressly agree on an essential condition regarding the period of completion of the work, but the work is subsequently completed and the customer accepts it without objection, when the customer attempts, in response to a claim for collection of debt for work performed, to refer to the non-conclusion of the contract, the court must apply estoppel from paragraph. 3 of Article 432 of the Civil Code, since the very fact of acceptance of the work implicitly indicates that the contractor satisfied the deadline within which the contractor actually met, and in fact, the condition on the duration of the work was thus implicitly agreed upon. A different situation would occur if the contract does not contain a deadline for completing the work or an exact description of the work, and the customer makes an advance payment to the contractor or transfers materials. In such a situation, despite the fact that one or even both parties perform actions that indicate that they treat the contract as concluded, the issue of the deadline for completing the work or the very subject of the contract is not clarified in any way by such behavior. Therefore, if subsequently the parties do not agree on the period of work or the subject of the contract, a reference by one of the parties when considering a dispute to the non-conclusion of a contract should not be recognized as unfair and rejected on the basis that this party previously behaved as if the contract had been concluded After all, if the court in such a situation rejects the reference to non-conclusion and recognizes the contract as concluded, it will have to somehow fill the gap in the contract and determine the essential condition, while the very essential nature of the missing condition excludes the right of the court to determine it according to its own understanding (this is especially obvious in relation to such an essential condition as the subject of the contract).

Contents of the agreement. The actions of the parties to fulfill the contract are predetermined by its content. The content of the contract consists of the conditions on which the parties reached agreement when concluding it. However, not all contract terms are equal. legal meaning. According to the degree of legal effect produced by the terms of the contract, it is customary to distinguish between essential, ordinary and random conditions*(1156).

The essential terms of the contract are considered to be the conditions on the subject of the contract, the conditions named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions on which, at the request of one of the parties, an agreement must be reached (clause 1 Art. 432 Civil Code). An agreement is concluded at the moment when the parties reach an agreement on all essential terms in the form established by law. The essential condition of the contract must be maintained throughout its validity. If an essential condition of the contract disappears during its validity (for example, it is declared invalid or canceled by the parties themselves), this makes the contract as a whole invalid.

An essential condition of any contract is the condition on its subject. The subject of the contract is usually understood as the name of the subject of the contract, as well as indications of the properties that make it possible to determine the subject, for example, its quantitative and qualitative characteristics.

In addition to the condition on the subject, among the essential conditions for individual species In a number of cases, the legislator included some other conditions of the contract. For example, price is considered one of the essential terms in contracts: purchase and sale in installments; purchase and sale of real estate; purchase and sale of an enterprise; rent, which provides for the transfer of real estate for payment against rent payments; rent of a building or structure, etc.

Ordinary conditions are those that, being necessary for a given contractual type, at the request of the parties to the contract can either be included or not included in the contract. At the same time, failure to include these conditions in the contract does not deprive it legal force, since the corresponding conditions are already provided for by current legislation. For example, if the parties did not provide for a price condition in a contract of a compensatory nature, then the execution of the contract must be paid in accordance with the price that, under comparable circumstances, is usually charged for similar products, works or services (clause 3 of Article 424 of the Civil Code).

It is customary to include such conditions as accidental, the inclusion of which in the contract does not affect the contractual type relevant agreement. The parties, exercising the freedom granted to them in defining the contract, have the right to include in the contract any conditions, including those that are not essential and ordinary. Thus, when concluding a purchase and sale agreement, the parties have the right to stipulate that the payment for the item sold is transferred not to the seller, but to a third party to whom the seller has a monetary obligation.

In accordance with paragraph 2, paragraph 1, article 432 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), the following are essential:

• 1) conditions on the subject of the contract;
• 2) conditions that are named in the law or other legal acts, i.e. in the acts specified in Article 3 of the Civil Code, as essential or necessary for contracts of this type;
• 3) all those conditions regarding which, at the request of one of the parties, an agreement must be reached. It should be taken into account that since, according to clause 1 of Article 435 and clause 2 of Article 437 of the Civil Code, the offer must contain the essential terms of the contract, these conditions are determined from the content of the offer.

Basic problematic issue, arising in in this case, - this is what predetermines the selection of the necessary terms of contracts.

In the legal literature it is noted that such conditions mean the conditions necessary for contracts of this type. Moreover, it is emphasized that regardless of their recognition as such by law.

This approach is fundamentally wrong.

The emergence of the concept " the necessary conditions agreement" is due different ways legislative assignment of conditions specific types contracts are considered significant.

It could be direct instruction, that the essential conditions of this type of contract include such and such conditions. Thus, by virtue of clause 1 of Article 489 of the Civil Code, an agreement for the sale of goods on credit with the condition of payment in installments is considered concluded if, along with other essential terms of the purchase and sale agreement, the price of the goods, the procedure, terms and amounts of payments are indicated.

At the same time, it is possible to establish an imperative requirement that the contract must contain certain conditions. For example, on the basis of clause 1 of Article 339 of the Civil Code, the pledge agreement must indicate the subject of the pledge and its valuation, the essence, size and deadline for fulfilling the obligation secured by the pledge. It must also contain an indication of which party holds the pledged property. Such conditions should be considered necessary, being a type of essential terms of contracts.

In this case, the following conditions should not be considered essential conditions:

• 1) which the parties may or may not include in the contract (usual and random conditions). Their absence in the contract does not in any way affect whether it gives rise to legal consequences or not;
• 2) through which the characteristics of the type of contracts are determined. Examples include conditions on the transfer of ownership of a thing or on the consideration of a contract. If they are absent from the contract, disputes between the parties are resolved through the application of the principles civil law, i.e. these conditions are replenishable. In particular, if the agreement does not make it possible to determine whether the property has passed into the ownership of the party, then it is considered that the title (ground) of ownership is absent (clause 2 of Article 218 of the Civil Code). If the contract does not indicate that it is gratuitous, it is considered compensated (clause 3 of Article 423 of the Civil Code). As a consequence, the question arises of determining the type and amount of consideration. And only if there are disagreements on the terms of the price and the parties fail to reach an appropriate agreement, the contract is considered not concluded (clause 54 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the use of part one of the Civil Code Russian Federation"). The possibility of determining these characteristics using the rules of interpretation of contracts enshrined in Article 431 of the Civil Code is not excluded.

The differentiation of works and services is also made based on the provisions of the law (types provided for in the Civil Code) or from doctrinal approaches (according to types not provided for in the Civil Code). In the second case, they proceed from the fact that work presupposes the presence of a result associated with a thing, which can be objectively assessed; services are a process that does not have mandatory result. If the result is present, then it is not materialized and cannot be objectively assessed. When performing work, the customer's needs are satisfied through the result, and in relation to services - in the process of their provision.

Determining the essential terms of a contract receives considerable attention in the legal literature, but there is no clear understanding of them, both in theory and in law enforcement practice still no. Meanwhile, this problem is very relevant, because from the right decision The question of the presence or absence of essential conditions in the contract depends on whether it is recognized as concluded.

According to Article 432, essential conditions are those necessary and sufficient for the contract to be considered concluded. These include conditions named in the law or other legal acts as essential (see, for example, Art. 558, 942, 1016 of the Civil Code, etc.), necessary for contracts of this type (see, for example, Art. 785 of the Civil Code), and other conditions (random and ordinary) at the request of one of the parties (for example, a condition to ensure the fulfillment of an obligation). The subject is an essential condition of all contracts. The absence of an agreement on essential terms means that the contract is not concluded. A party’s statement to recognize a certain condition as essential must be made with a direct indication that in otherwise the contract will be considered not concluded. If there is no evidence of the statement made, the party does not have the right to demand that the contract be recognized as not concluded, regardless of the importance of this condition.

According to V. Gruzdev, classifying the terms of a contract as essential depends primarily on the definition of the etymological meaning of the term “essential”.

It seems that the main meaning of this term in relation to the terms of a transaction agreement is that the materiality of this condition is understood as its relevance to the essence (essence) of the agreement-legal relationship of the parties or, more precisely, the participation of this condition in the formation of the essence of this contractual obligation.

At the same time, we must not forget about the second meaning of the term “substantial”, namely: indicating the existence, presence (in this case, of a transaction agreement).

Consequently, the materiality of a contractual condition influences both the existence (presence) of a transaction agreement and the essence (essence) of the legal relationship arising from such an agreement. At the same time, the connecting link finds its manifestation here in the fact that in order for an agreement to be recognized as concluded, it must contain such conditions that, taken together, could form the essence of the specific contractual legal relationship of the parties.

Thus, the category of essential terms of the contract is necessary both to resolve the issue of concluding a contract and to form the essence of the emerging contractual legal relationship. In this regard, essential contractual terms include those contractual terms that, being necessary and sufficient for concluding a transaction agreement, directly form the essence of the contractual legal relationship of the parties.

3.1. Subject as an essential condition of the contract.

First of all, the essential condition of any contract is its subject matter.

However, its definition often causes considerable difficulty, since, as in Civil Code RF, and in the doctrine the subject of the agreement is considered differently.

So, in Art. 554 of the Civil Code of the Russian Federation “Definition of the subject matter in a contract for the sale of real estate”, data on real estate, allowing one to definitely establish the property to be transferred under the contract.

The subject of the contract is determined in the same way finance lease, which are any non-consumable things used for entrepreneurial activity, except land plots and other natural objects (Article 666 of the Civil Code of the Russian Federation). Under a lease agreement, non-consumable things, on the contrary, are indicated as an object, and not the subject of the agreement (Clause 1, Article 607 of the Civil Code of the Russian Federation).

Most authors identify the subject and object of the contract. Thus, in the commentary to the Civil Code of the Russian Federation, edited by Professor O. N. Sadikov, it is stated that the subject of sales contracts should be understood as the name and quantity of goods sold, and in contract agreements- name of the work and its volume, etc.

However, V. Vitryansky believes that the subject of the agreement “...represents actions (inaction) that must be performed (or which must be refrained from performing) obligated party". The object must be considered as component the subject of the relevant agreement. Otherwise, when identifying the subject and object of the contract, it may turn out that, for example, the purchase and sale agreement for an enterprise and its lease have the same subject - the enterprise.

3.2. Objectively essential terms of the contract.

One of the types of essential conditions is those that are named in the law or other legal acts as essential or necessary for contracts of this type (the so-called objectively essential conditions).

Basically, the conditions named as essential are contained in the Civil Code of the Russian Federation, but can also be provided for in other legal acts, under which, according to Art. 3 of the Civil Code refers to decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

The Civil Code of the Russian Federation contains various options wording of essential terms of contracts. Some of its articles are directly entitled “Essential terms of the contract”: for example, Art. 942 -- "Essential terms of the insurance contract", Art. 1016 -- "Essential terms of the agreement trust management property."

In other cases, the Civil Code of the Russian Federation contains instructions on what conditions should be included in the contract. So, in paragraph 1 of Art. 555 it is established that the contract 1 for the sale of real estate must provide for the price of this property. In the absence of a price condition, the contract is considered not concluded. In Art. 766 provides that government contract for execution contract work For state needs must contain conditions on the volume and cost of the work to be performed, the timing of its beginning and completion, the amount and procedure for financing and payment for the work, and methods of ensuring the fulfillment of the obligations of the parties.

The absence of the conditions required by regulatory enactments in the contract should entail recognition of it as not concluded.

Analysis current legislation shows that the formulation of essential conditions and the recognition of the contract as concluded are also influenced by the method of its conclusion. This applies primarily to the conclusion of exchange transactions. Although they are in their own way legal nature are known contracts, the Law on commodity exchanges and stock trading contains special requirements to the essential conditions and characteristics of an exchange transaction. Thus, the object of an exchange transaction is a product of a certain type and quality, including a standard contract and a bill of lading for specified product, admitted by the exchange in in the prescribed manner to stock exchange trading. Special requirements presented to participants stock trading, registration of transactions, etc.

3.3. Subjectively essential terms of the contract.

Subjectively significant are all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

If we follow the literal interpretation of this rule, we can come to the conclusion that all the conditions included in the protocol of disagreements to the contract must be considered significant, since the party that included them thereby expressed its intention to change them.

However, as V. Vitryansky points out, the essential conditions arbitration and judicial practice does not include all the terms of the contract that were contained in the offer or acceptance at its conclusion. This requires that, in relation to the relevant term, one of the parties expressly states the need to reach an agreement under the threat of refusal to conclude the contract. In practice, it often happens that the parties, when concluding a contract, did not resolve disagreements, for example about the size contractual penalty for failure to fulfill obligations, but then fulfilled the terms of the contract. And only when a dispute arises in connection with the application of liability, one of the parties declares that the contract should be considered not concluded, since at one time no agreement was reached on the terms of the contract on the amount of the penalty. In this case, the agreement is recognized as concluded (but without a condition on the amount of the penalty), bearing in mind that none of the parties, when concluding the agreement, made a statement about the need to reach an agreement on controversial condition agreement.

Example: Let's take a situation when the offer or acceptance contains additional conditions that are not named in the law or other legal act as essential or necessary for this type of contract. The absence of the specified conditions in the text of the agreement in both cases will mean that one of the parties was given acceptance on other terms. Indeed, if such an additional condition was contained in the offer, then in order to be absent from the contract, it must be rejected by the acceptor. If the corresponding condition is contained in the acceptance (for example, in the protocol of disagreements), then such acceptance on other conditions is recognized as a new offer (Article 443 of the Civil Code) and, therefore, is accepted or rejected upon its acceptance by the original offeror.

Consequently, if the party that sent an offer with an additional condition, having received acceptance on other conditions (without such an additional condition), proceeds to execute the contract, this will mean that the contract does not contain the specified additional condition and neither party proposed to include this condition in contract, since the original offer has become invalid and cannot be taken into account.

If an additional condition was proposed by the acceptor (a new offer) and the original offeror, having received such acceptance on other conditions, began to execute the contract, it should be recognized that an agreement was concluded between the parties that includes this additional condition.

In the event that one of the parties declares the need to reach an agreement on the proposal proposed by this party additional condition, and then accepts acceptance on other terms (accepts a new offer), this will mean that she has withdrawn her application.

Thus, this group of essential terms of the contract (conditions regarding which, at the request of one of the parties, an agreement must be reached) has legal meaning only at the stage of concluding a contract (pre-contractual contacts of the parties), which is completely lost from the moment the contract is considered concluded.

Mandatory or essential are those terms of the contract that are subject to agreement, since in the absence of the agreement of the counterparties regarding any of them, the contract may be recognized as not concluded (clause 1 of Article 432 of the Civil Code of the Russian Federation). The legislator included the following conditions:

• Subject of contract.
• Conditions named as such in a law or other legal act. For example, a list of persons living in an apartment (house) that is the subject of a purchase and sale agreement (Article 558 of the Civil Code of the Russian Federation), or the obligation of the rent payer to provide security for his obligation (Article 587 of the Civil Code of the Russian Federation).
• Other conditions - at the request of one of the partners. An example would be a requirement to insure goods when this obligation is not provided for by law.

As an example, let us cite the resolution of the AS SZO dated September 15, 2016 in case No. A66-12135/2015, in which the contract was declared not concluded due to the lack of agreement on the configuration tower crane and the presence of disagreements about the price of the goods.

Subject as the main condition of the contract

The subject of the contract is what the partners have rights and obligations over. It must also be clearly defined so that it can be distinguished from similar ones. Let's give the following classification items:

• things or property rights under contracts for the transfer of property;
• certain actions for contracting or provision of services;
• mutual actions of partners preliminary agreements or joint venture contracts.

The contract price is a condition or obligation

The contract price is in monetary terms the obligations of one of the partners to pay for goods supplied, services provided or work performed and the counterparty’s right to demand such payment. Thus, the contract price is not an obligation, it is contractual term, defining the quantitative framework of the monetary obligation.

By general rule the price does not represent essential term of the contract.GK RF in paragraph 3 of Art. 424 allows you to determine the amount of payment under the contract based on the price usually charged for similar goods, works, services. However, there are types of obligations, regulating which the Civil Code of the Russian Federation classifies the price as an essential term of the contract:

• agreement retail purchase and sale(Article 494 of the Civil Code of the Russian Federation);
• contract for the sale of real estate (Article 555 of the Civil Code of the Russian Federation);
• construction contract (Article 743 of the Civil Code of the Russian Federation).

Non-essential terms of the contract

Along with significant and unimportant conditions agreement play a role . These include other terms of the contract, the failure of which does not entail the non-conclusion of the latter. Often specified conditions regulated by law dispositively, i.e. normative rule will apply unless the partners agree on a different rule. These include provisions:

• the date and place of conclusion of the contract;
• the form in which the contract is concluded;
• jurisdiction of disputes arising from the contract.

Change of essential terms of the agreement

Art. 450 of the Civil Code of the Russian Federation provides that, as a general rule, changes in current contract must be paid upon reaching mutual agreement partners. IN multilateral transactions It may be possible to change the terms if the majority of counterparties reach agreement.

At the will of one of the partners, the essential terms of the contract can be changed by decision of the judicial authorities:

• at significant violation his duties as one of the partners;
• in cases directly stipulated by the contract or by law;
• at significant change circumstances.

What entails a violation of the essential terms of the contract

Art. 393 of the Civil Code of the Russian Federation provides a general rule for determining liability in the event of non-fulfillment or improper fulfillment of obligations under a contract in the form of compensation for losses caused injured party. For such a consequence to occur, the following conditions must be present:

• breach of contract;
• fault of the counterparty;
• causing losses;
• the presence of a cause-and-effect relationship between the breach of contract and losses.

IMPORTANT! The absence of guilt is proven by the counterparty who committed a violation of the contract.

When concluding a contract, it is necessary to clearly define the type to which it belongs in order to understand what conditions in mandatory must be agreed upon by the parties. After all, the omission of an essential condition of the contract leads to the recognition of the latter as not concluded.

If an essential term of the contract has not been agreed upon, but payments under it have been made regularly for more than a year. Is it possible to recognize such an agreement in court as not concluded?

Answer

In each specific case, the court’s position depends on what kind of agreement we're talking about and what particular essential condition is not agreed upon.

The counterparty's claims may be that the parties to the contract have not reached agreement on one of the essential conditions. However, the opinions of the counterparty and the court regarding how specifically a particular condition should be formulated may not coincide. Therefore, a party interested in the stability of the contract must refer in court to the fact that in fact the disputed condition is formulated in the contract quite specifically.

Sometimes the court comes to the conclusion that the condition that remains unagreed is not significant. This means that its absence does not entail the non-conclusion of the contract. The only problem is that it is not always clear from the text of the Civil Code of the Russian Federation whether this condition among the essential ones.

It is during the consideration of claims demanding recognition of the contract unconcluded courts may come to the conclusion that the parties, by their actions, eliminated the defect that was made when concluding the contract. However, something similar can happen with claims to invalidate a transaction.

The rationale for this position is given below in the materials of the “Lawyer System” .

“Suppose that when concluding a contract, the organization had to agree to very strict conditions regarding sanctions for violation of obligations. Unfortunately, such a violation occurred, and now the counterparty is trying to recover a significant amount. One of the methods of defense in such a situation may be a claim to declare the contract void. If the court satisfies the claim, this will mean that actual relations between the parties, only those rules that are contained in the Civil Code of the Russian Federation apply, and those conditions that were provided for in the contract do not apply.

To recognize the contract as not concluded, the plaintiff refers to one of the following (or several simultaneously) grounds:

The defendant can also make an argument about the non-conclusion of an agreement within the framework of a dispute arising from such an agreement (about the collection of a debt, about the fulfillment of an obligation in kind, etc.). Moreover, the court considering a case of collection under a contract must independently assess the circumstances indicating the conclusion and validity of the contract, regardless of whether objections or a counterclaim are filed (“About some procedural issues practice of considering cases related to non-fulfillment or improper execution contractual obligations").

Essential terms of the contract have not been agreed upon

An agreement is considered concluded when an agreement is reached between the parties on all essential terms of the agreement().*

The essential terms of the agreement include:

• conditions on the subject of the contract;


• conditions that ;

Attention! If the parties have not reached an agreement on all the essential terms of the contract, then it is considered not concluded and the rules on the invalidity of transactions are not applicable to it*

When drawing up and agreeing on contracts, lawyers pay special attention to the formulation of the subject matter. It must clearly define the outcome that the parties wish to achieve as a result of the implementation of the agreement. The subject of the agreement determines the very essence of the legal relations that arise. Lack of agreement between the parties regarding the subject of the transaction will not allow further execution of the agreement properly. Therefore, such an agreement will be considered not concluded.

Thus, if the subject of the contract is an individually defined thing (a machine, a production line, etc.), there is always a possibility that the parties did not individualize it in sufficient detail. In the event of a dispute, the court may decide that the name, year of manufacture, manufacturer - all this is information that determines only the generic affiliation of the subject of the contract. And for sufficient individualization of the equipment, it was necessary to indicate its serial number.

With things that are defined by generic characteristics, other problems arise.

It is a common practice for the parties to indicate in the contract only general description goods (works, services), and they are going to specify it in additional documents. Make up such additional documents forget.

Even if additional documents specifying the goods are drawn up, it may turn out that they are drawn up with shortcomings. And as a result, the court still recognizes the contract as not concluded.

If the plaintiff claims that the essential terms are not sufficiently specified, much depends on the type of contract in question. For different types The law defines contracts differently. The difficulty lies in the fact that the law often uses insufficiently specific language.* And then we have to turn to judicial practice.

In addition, it is necessary to distinguish between definite and determinable terms of contracts. IN civil law Russia does not always clarify whether certain definable conditions can or cannot be included in the contract without their detailed description. At the same time, the law only in some cases contains a clear prohibition on establishing the terms of the contract in a definable way (see, for example,)."

Professional reference system for lawyers, in which you will find the answer to any, even the most complex question.

Essential terms of the contract are the basic category of the law of obligations. It affects legal practitioners. The reason is that the absence of properly formulated terms of the transaction makes it not only difficult to implement. Based on the claim, the court has the right to question the fact of its conclusion.

What is a contract

When asking this question, people imagine multi-page document with seals and signatures, on which many people worked. Some transactions are certified by notaries, then (or) they are registered with Rosreestr or other authorities (State Traffic Safety Inspectorate, for example). Citizens complain that concluding an agreement is a complete red tape.

Notarization, signatures of participants, credentials of signatories - all of this matters. We must not forget about the content or conditions. Their absence or incorrect formulation has serious consequences. This is especially true for the essential terms of the contract.

Terms of agreements

Transactions or contracts are a set of conditions by which they condition the performance of obligations to each other. The clauses of agreements or conditions are formulated based on the provisions of the law and the will of the parties.

Thus, the law offers several options, one of which must be chosen or limited to the right to formulate own version conditions without regard to the law.

Some provisions cannot be changed; the wording from the law goes into the text of the agreement. If you ignore it, it will still apply by force of law. The absence of essential terms of the contract will entail its recognition as not concluded. From a legal point of view, this means that the document, despite its existence, does not lead to any legal consequences.

Types of conditions

Legal science and judicial practice suggest the identification of several types of conditions:

• ordinary;
• random;
• essential terms of the contract.

The usual condition is the position provided for by law or other regulatory act. For example, a sample water supply agreement approved by the government as part of the procedure for organizing water supply and sanitation.

Random conditions are included in the document at the request of the parties and are not taken into account sample contracts, nor the law.

Essential terms of the contract in the Russian Federation - a point that deserves special attention.

What are the essential conditions?

The essential terms of the contract are the clauses without which its signing is meaningless. The law names the subject of the contract as one of these conditions. The condition may be directly called essential or considered as such by virtue of the provisions of the law. For example, the texts of regulations state without what conditions an agreement is not considered concluded or valid.

The meaning of the conditions is determined by the wording of the law. The essential terms of the contract in the Civil Code are mentioned in the norms-definitions that give the definition or concept. For example, one of them explains the concept of a contract, supply agreement, or loan. From such norms of law comes the understanding of which conditions are essential and which are not.

Real estate transactions

Trade in property or single transactions with cars, apartments, land plots are regulated by a number of acts. They highlight the specifics of the essential terms of the contract for the sale of certain objects. There are both general provisions, so is the difference.

The apartment sale transaction highlights the following items:

• description of the item (taken from the cadastral or technical documentation);
• personal data of the parties to the transaction;
• list of persons who retain the right of residence;
• the price of the concluded transaction.

Without this information, as well as documents confirming it, Rosreestr will refuse to register the transaction.

Car deals

The Ministry of Internal Affairs regulations oblige the following points to be included in the contract:

• information about the place and date of signing the contract;
• car information from technical passport;
• information about the vehicle passport (number and date of issue);
• personal data of the parties to the transaction (information is taken from passports).

Supply contract

Delivery - pure contract commercial in nature. Why? Its conclusion is provided between entrepreneurs and commercial organizations. The customer purchases goods not for his own use, but for use in his activities, for example, in the production of goods or provision of services.

What does the law include in the essential terms of a supply agreement:

• product description;
• delivery times;
• price of the goods.

The design of the contract is designed for the transfer of a large volume of goods, that is, wholesale. Because of this, the product must be described in as much detail as possible. Some contracts are accompanied by a large amount of documentation describing the criteria for the product.

Item of delivery

Thus, when formulating conditions for the subject of delivery, several criteria are applied:

• quantity;
• completeness and set of goods;
• quality.

The document specifies a system for calculating the volume of goods that the customer needs (in pieces, liters, kilograms). Other methods of measuring goods (bag, bottle) may be used and their volume may be specified. Some types of goods cannot be measured with high accuracy due to chemical and physical properties, a note is made on the approximate volume of goods.

A separate nuance concerns the assortment (in shape, color, models, other properties of goods).

Completeness means the presence of elements from which the product must consist, which is typical for PCs and other similar products that are complex and can be disassembled into parts.

The quality of the product is its compliance with the criteria, established by law or other normative acts (regulations, standards, etc.). The agreement may establish Additional requirements to quality.

Delivery times

Delivery can be made at one time or according to established schedule. Usually it is linked to a date. Violation of the schedule or other delay gives the customer the right to refuse to accept the goods and demand previously paid money and additional amount in the form of a penalty.

The date of completion is the day on which the property was transferred to the warehouse or location specified by the customer or an organization providing delivery of goods (mail, Courier service etc.).

Price

It is not specified in the law as an essential condition, but this conclusion is supported judicial practice, applying the general provisions of the sales contract to the delivery provisions.

Violation of price calculation rules leads to recognition similar transactions null and void tax authorities or FAS. Since the violation is significant, the clause of the agreement acquires corresponding significance.

Contract agreement

As in the case of buying and selling, the law provides for the separation of types. The concept of essential terms of a work contract includes various components.

There is a difference between construction and household contracting, the second is partially regulated by legislative acts on consumer rights, approving standard or exemplary agreements.

The essential terms of the contract are the subject and terms. The second received status thanks to decisions arbitration courts. More often this concerns disputes between commercial organizations. In the case of citizens, the list is longer (thanks to standard contracts).

Construction activities and consumer services directly address the issue high-quality execution orders. Some authors attribute it to the subject of the contract, others believe a separate item.

Labor legislation

Labor Code cannot be considered part of civil law; moreover, it applies to labor relations insofar as. Nevertheless, the Labor Code provides for a number of conditions that must be specified in the agreement with employees. To avoid temptations, government agencies developed standard form employment contract. Similar documents provided for conclusion labor contract and agreements on full financial liability.

So, what is included in the list of essential terms of an employment contract:

• place of work with the name of the branch or division;
• indication of position according to staffing table;
• date of admission to work and its completion, if the agreement is temporary or urgent;
• remuneration scheme, including additional payments, compensation payments;
• work and rest schedule;
• characteristics harmful conditions, scheme for calculating and calculating payments in connection with this;
• nature of the work (traveling, shifts, etc.);
• workplace conditions;
• conditions of social insurance.

This list is mandatory. The following items may be included if necessary:

• test conditions;
• duty to work certain period after training paid for by the employer;
• household supplies workers;
• conditions for additional pension or social security.

Finally

Basic conditions are provided for in laws and other regulations, adopted by the authorities authorities, as well as at the will of the parties to the agreement. Their absence or vague wording leads to the recognition of the contract as not concluded. In this case, the fact of signing the document has no legal consequences.