Provided for in Art. 421 of the Civil Code of the Russian Federation freedom of contract applies to all organizations and citizens. The norm does not allow coercion to conclude transactions, except in cases where such an obligation is imputed to the subject in accordance with the law or voluntary expression of will expressed earlier. We consider in detail Art. 421 of the Civil Code of the Russian Federation (with comments).
The specifics of legal relations
In accordance with paragraph 2 of Art. 421 of the Civil Code of the Russian Federation, persons may conclude an agreement stipulated or not stipulated by legislative and other normative acts. For the latter, the rules on individual types of contracts established in legal documents do not apply. This provision applies to agreements in which there are no signs defined in paragraph 3 of Art. 421 of the Civil Code of the Russian Federation. This rule, however, does not exclude the possibility of applying the analogy of the law to individual relations of participants in a transaction. The parties may draw up an agreement in which there are elements of various agreements provided for by law or other acts (mixed contract). The legal relations arising in such cases are subject to the rules established for agreements, the elements of which were used, unless otherwise provided by the substance of the transaction or established by the participants themselves.
Features of the conditions
They are defined in Art. 421, 422 of the Civil Code of the Russian Federation. In accordance with the first rule, the conditions are established by agreement of the parties to the transaction. The exception is cases where the essence of a clause of a contract is prescribed by law or other legal act. This provision is established by Art. 422. If the terms of the transaction are provided for in the norm, the application of which is allowed insofar as the parties do not determine otherwise, they may exclude its use. The parties are entitled to formulate another circumstance that differs from that present in it. If there is no such agreement, under paragraph 4 of Art. 421 of the Civil Code of the Russian Federation, the terms of the transaction are set at a discount rate. If circumstances are not determined either by it or by the parties, they shall be provided for in accordance with the customs applicable to these relations.
Art. 421 of the Civil Code of the Russian Federation (with comments)
The relations of participants in civil turnover are based on their mutual legal equality. Part 1, Art. 421 of the Civil Code directly points to this. In the relations of subjects, imperious subordination to each other is excluded. This, in turn, means that the conclusion of an agreement and the determination of its conditions are only voluntary and based on the interests of the parties. The principle of freedom of contractual relations, thus, forms one of the principles of regulating the sphere of private law. In terms of its socio-economic significance, it is on a par with recognition of the inviolability of individual property.
The practical manifestation of the provisions
According to the rules of paragraph 1 of Art. 421 of the Civil Code of the Russian Federation, entities entering into a transaction have the right to independently determine:
- The need for a deal. Their will must be exclusively voluntary without any coercion.
- The legal nature of the agreement. The participants themselves, in accordance with their needs, determine the nature of the business relationship.
- The contents of the contract. The parties, by mutual agreement, establish mutually beneficial conditions for cooperation.
In addition, freedom of contract may manifest itself in other aspects. For example, in accordance with the general rule, participants can terminate the transaction by mutual agreement.
Coercion exception
In accordance with Art. 421 of the Civil Code of the Russian Federation, the participants in the turnover make their own decisions on entering into or abstaining from this. None of the parties is obliged to accept certain conditions against their own will. Legislation allows for the compulsory conclusion of an agreement, but only as an exception to the rule. This is the case, for example, if the corresponding obligation is provided for in regulatory enactments or on a condition previously voluntarily accepted. Art. 421 of the Civil Code of the Russian Federation indicates the cessation of socialist practice adopted at one time. In Soviet times, the obligation to conclude agreements on the basis of various planned and other administrative acts was widespread. Accordingly, the base for the existence of such a category as business contracts has disappeared.
Determining the nature of the relationship
Art. 421 of the Civil Code of the Russian Federation establishes the right of subjects to independently choose which agreement they conclude. They can sign a contract, both provided and not specified by law and other rules. The latter is called an “unnamed contract”. At the same time, of course, such an agreement should not conflict with the provisions of existing legislation and comply with the fundamental principles of civil circulation. Modern law does not establish a specific and exhaustive list of agreements. Subjects are also not obliged to adjust the terms of the transaction to one of the varieties known to the norms.
This circumstance is extremely important in the existing economic system, when legal registration often lags behind the economic needs of entities. So, for example, many of the transactions that are currently carried out on currency and stock exchanges, by no means in all cases have prototypes fixed in the legislation. The ability to draw up unnamed agreements allows subjects of civil turnover to independently address existing gaps in the rules arising from the complexity and constant development of business relations.
Mixed Contracts
They should be distinguished from unnamed contracts. Mixed are called contracts in which there are elements of other agreements established in legislative and other regulatory documents. Accordingly, the rules governing contracts, the components of which were taken by entities, apply to such transactions. For example, in Art. 501 of the Code establishes the possibility of drawing up a tenancy agreement. In accordance with it, the acquirer must first become a tenant. Until the implementation of the facility, the lease rules apply to the relations of the parties. After the transfer to the tenant of property rights, the sale and purchase provisions will be used.
A mixed loan is a bank account loan agreement. It is provided for in Art. 850 Code. Such an agreement is also called an overdraft. According to the terms of such an agreement, the bank repays the claims of the client's creditors within the established limit even if there are no funds in the account or for a larger amount than is on it.
Nuances
The legislation does not establish any obstacles to concluding an agreement in which elements will be present, both established and not established by norms. Despite the fact that it will not be considered mixed within the meaning of part three of Art. 421 of the Civil Code of the Russian Federation, the rules on the named contract will be applied to it in the relevant parts. Under other conditions, the document will be evaluated for compliance with the first paragraph of Art. 8 of the Code.
A mixed agreement must be distinguished from a complex one. The latter assumes the existence of a combination of several independent contracts, the terms of which are established by a single document. For example, clauses on cargo insurance, transportation, storage and so on may be present in the supply contract. The presence of these conditions does not require the execution of various agreements, but does not lead to the emergence of a single act.
The value of dispositive norms
These provisions are often applied in the process of regulating contractual relations. Dispositive norms act as conditions only when the parties could not agree on a particular issue in another way or did not exclude their use in the framework of their transaction. Their key feature is their ability to determine the possibility of deviating from the rules contained in them. In this regard, the use of dispositive principles appears as one of the forms of freedom of contractual relations. Such standards, for example, include the rules for fulfilling obligations (it provides for partial repayment, deferral, installment plan), meeting deadlines, determining the place of fulfillment, and so on.
In essence, the dispositive clauses provide some kind of hint for the participants in the transaction regarding additional conditions. The possibility of using such norms makes up for the lack of will of the parties regarding a number of missing clauses of the agreement. The rules that are established in the provisions are the best option for this or that condition.
Application of customs
It is allowed by paragraph 5 of the article in question. The ability to use customs fills existing gaps in standards. Due to the fact that this refers to a rule of conduct that is not directly established by law, but has developed independently and is widely used in a specific area of business, its implementation in practice is also considered a manifestation of freedom of contractual relations. Accordingly, a particular custom becomes an additional (subsidiary) source of law. It is considered as a contractual condition when the parties to the transaction did not directly agree on a particular circumstance, and it is not established in the dispositive provisions of the law.
Limitations
They are inevitably established in the field of business relations of subjects. First of all, the content of any agreement should not contradict the peremptory norms of the law or other legal documents, otherwise the transaction will be declared null and void. In some cases, restrictions are due to the development of a market model that is not able to function normally in their absence. For example, they are established for monopolists who cannot impose terms of agreements on counterparties, using their dominant position and the inability of the end consumer to turn to another producer, that is, in violation of the principle of competition.
The bodies regulating the activities of such economic entities can establish a circle of persons who are subject to compulsory service, determine the tariffs or their limit values for manufactured products.
The imposition of knowingly unfavorable conditions or unreasonable refusal / evasion to conclude an agreement will be considered illegal. Such actions are regarded as manifestations of unfair competition.
The contractual relationship is subject to a ban on abuse of the right, including freedom to conclude transactions. It can also be considered as a limitation. The application of this prohibition is justified, for example, in cases where a banking institution, acting as a party to a loan agreement, imposes a disproportionately large amount of penalty for delay on a client and requires its enforcement, referring to freedom of contract.