Forms of a contract in civil law - ways of expressing the will of the parties aimed at the emergence, amendment or termination of civil rights and obligations. The law gives parties a choice in what form to conclude an agreement, with some restrictions.
Normative regulation
The Civil Code lays down the principles or main provisions, which are then developed by other laws or by-laws. Art. 434 of the Civil Code contains clarifications on the form for concluding an agreement.
Other regulatory acts are, for example, the law “On the system of contracts in the system of state and municipal procurements”. He makes certain requirements for the form of agreements in this area.
The Law on Registration of Rights indicates the mandatory observance of the notarial form of certain transactions.
However, other regulations do not go beyond the code. The existing forms of contracts in civil law are established by him, and not one act proposes anything else.
The ratio of form and content
The agreement is a set of conditions reached by the parties. The list of conditions determines the content, first of all, these are the rights and obligations of the parties and the conditions of their responsibility.
The form allows you to consolidate the agreements reached by the parties. The content and form of the contract in civil law are closely related. For example, without a full-fledged document, participants are not entitled to refer to testimony in support of the fact of the conclusion of the transaction and its content. This is proved exclusively with the help of documents.
Having no evidence of agreements on all material conditions, the court has the right to conclude that the transaction has not been concluded.
Failure to comply with the form leads to more serious difficulties: in cases prescribed by law, the contract is invalidated automatically or at the suit of the party to the transaction or other interested person.
Types of contract forms in civil law
The law distinguishes:
- oral form;
- a written form;
- notarial form;
- electronic form.
Below we consider each of them.
Oral contract in civil law
It is assumed that the parties do not need to sign a full document. For example, when buying products in a store, other consumer goods. It is enough for the client to receive a receipt or other document. If the goods are purchased by card on the Internet, the proof is a card statement or check issued by a bank or electronic payment system.
Such transactions are also concluded between legal entities for a one-time purchase of goods or services.
It is common for citizens to receive goods and money without leaving any additional documentary traces.
Writing
This form is also called simple writing, as it does not require certification by a notary.
The text of the contract is printed on paper, then the parties put the details (passport data, information about the name of the organization, etc.). If changes are made over time, an additional agreement is drawn up.
It is common to use applications in which technical information is placed or in detail revealing one of the conditions: for example, a schedule of work. Practicing lawyers acknowledge that making changes to the application is much easier than to the main text.
Model contracts
Authorities may establish model or model contracts. They are a form of writing. That is, a full-fledged agreement has already been submitted with the rights and obligations of participants, the conditions of their responsibility. It remains only to sign the document and put the details in it. This is often encountered by citizens when concluding a contract for the provision of public services.
According to general rules, you cannot derogate from the provisions of a model contract. If this happens, the interested party has the right to go to court. In the case of housing and communal services during the trial, the provisions of the model contract, and not actually signed, are taken into account.
If one party accepted the performance and paid for the service or product without signing the contract, it is considered concluded and the provisions of the model agreement apply to the parties. This is another example of how the conditions and the form of the contract in civil law are related.
Notary form
Its application is implemented in accordance with the provisions of the law or the will of the parties to the agreement. The law refers to the Civil Code and other federal laws.
An agreement concluded with the assistance of a notary is a document printed on a special form. Notarial certification is carried out by municipal authorities in areas where there are no notaries.
On the contract, in addition to the details of the parties, a notary's seal and its signature are put.
In the course of work with citizens, a notary is obliged to make sure of their legal capacity, understanding of the essence of the terms of the transaction and its consequences for themselves. Notary actions leading to material damage give the right to receive reimbursement from special funds.
The conclusion of a transaction at a notary is considered a more reliable option.
Electronic form
Typing a document electronically is not enough. Citizens, not knowing this, present electronic document management as an not entirely reliable means of transmitting information and exchanging documents. After all, information can be stolen or copied. The agreement in electronic form is accepted as a full-fledged document with a qualified electronic digital signature. It protects the document from unintended changes to it and helps to identify the author.
The signature is created using a special key issued at a certified center.
If the certificate or key used to generate the signature was not valid at the time of signing the contract, the transaction is considered invalid.
In the case of this form of contract in civil law, its application in practice is gradually expanding.
Property acquisition
Now we will tell about the form of the contract of sale in civil law.
In practice, purchases are made in all prescribed ways: in oral, written and notarized form.
The first type of contracts is typical for small household transactions: the purchase of household appliances, personal items, etc. On hand are issued receipts, other documents confirming the fact of purchase. If necessary, an installment plan is drawn up without the participation of the bank by concluding a separate agreement.
Simple writing is used, for example, in car deals. To register the rights to the car, the buyer’s actions are sufficient.
Notarization is required mainly in real estate transactions, and buying and selling is one of the cases. Moreover, the participation of a notary is required not in all transactions, but where shared ownership takes place, the rights of children and others are affected. The list is stipulated in the law on registration of rights.
Registration of rights
Registration of rights to real estate arising under the contract is allowed provided that the form of the contract complies with the law. If there is a violation in at least one point, registration will be refused. The exception is notarial transactions. According to them, entries in the registry are made automatically without additional verification.
The importance of registration in the official recognition of the right of ownership or lease of property by the state. Without an entry in the register of rights, the person who is the owner of the law does not have all the powers, for example, to sell or donate property. It is difficult to even get utility bills or subsidies.
Features of the legislation of Belarus
The wording of the laws are almost the same. Finding the difference is sometimes difficult. Regarding the form of the contract in the civil law of the Republic of Belarus, the laws are almost identical.
The Russian Federation does not say anything about the mandatory written form. In Belarus, it is mandatory if it is established by law or by the will of the parties. In Russian law, a similar provision applies only to the notarial form of certification.
Also in the Civil Code of a neighboring country there is no mention of an electronic form of agreements. If we analyze the local law “On electronic document and electronic digital signature”, the use of the electronic form is possible in any areas, in particular, in the field of activity of organizations and individuals.
Thus, despite the absence of a corresponding clause in the Civil Code or in the relevant law, the drafting of contracts in this country in electronic form is allowed and encouraged by the authorities. And they are subject to the general requirements for electronic documents.
Finally
The concept of a contract form in civil law is not only a theoretical issue. The implementation of the relevant provisions of the law protects against a lawsuit in a court declaring the transaction illegal or non-concluded.
It is supposed to use oral, written and notarial forms at the conclusion of the contract. Their application has its own characteristics. Registration of a transaction does not apply to such forms.
At the same time, at the registration stage, verification of the correct execution of documents is carried out. Verification is not carried out only on transactions concluded with a notary. Denial of registration is prohibited even in the event of a clear and gross violation of the law. Any liability from registrars here is removed.