In a legal sense, the conclusion of an agreement, as well as a change in conditions, should be done by agreement of the parties. It must also be terminated by agreement of the participants.
The law establishes several ways for mutual termination of obligations. The most popular is the drawing up of an additional agreement. As practice shows, this option is most beneficial to the parties, since it allows you to resolve all issues that have arisen. Further in the article, we consider the features of termination of the employment contract, lease agreement and contract under 44-FZ. These cases are most common in practice.
Lease agreement
Issues related to this action are enshrined in the Civil Code. In particular, in paragraph 1 of Art. 450 of the Code enshrined one of the ways to terminate the lease - the agreement of the parties. On termination of the lease in the Civil Code a lot of information. But some unified form is not provided. Nevertheless, based on the requirements of the law, it is possible to draw up a sample agreement of the parties to terminate the lease.
Mandatory Provisions
Based on the model of the agreement of the parties to terminate the previously concluded agreement, presented in the article, you can draw up your agreement taking into account the specifics of legal relations. As you can see, the document contains provisions similar to those enshrined in the original contract. So, if it is terminated by agreement of the parties, the following should be included in the sample:
- Names and details of participants in the transaction.
- Subject. It will be termination by agreement of the parties. This paragraph should indicate the details of the original contract. It is also necessary to indicate the date and procedure for receiving and transmitting the object.
- Other provisions. In this block, it is necessary to indicate the procedure for resolving conflicts, the absence / presence of claims, etc.
Be sure to terminate the lease agreement by agreement of the parties must indicate the date of preparation of the document. Participants in the transaction must also put their signatures.
Important points
Please note that the agreement on termination of the lease must indicate the full description of the property. It can be both residential premises and non-residential, including land. The characteristic must be such that the object can be uniquely individualized. In order to consolidate complete and reliable information, it is necessary not only to indicate information about the original lease agreement on the basis of which the transfer of real estate was carried out, but also to register:
- name of the property;
- full address;
- area;
- cadastral number.
If it is a land plot, the category and type of permitted use are additionally prescribed, a description of the boundaries, etc. is given.
Please note that the inclusion of the individual characteristics of the object in the agreement is especially important if the termination is not carried out completely, but with respect to any one object from the complex indicated in the document.
Agreement Registration
Rental relationships are very specific. No wonder the legislator secured several articles in the Civil Code. The agreement of the parties to terminate the contract is drawn up in the same form as the original document. What does this mean? This means that if the contract is not subject to state registration, then the agreement on its termination is not necessary to register. If the original document was certified by a notary, then the fact of termination of legal relations should be executed notarially.
No state registration is required for lease agreements concluded for a period of up to 1 year.
Controversial situations
What questions can the parties have in terminating the agreement? According to the Civil Code, participants can provide for a number of rules, the mutual implementation of which will help to avoid disputes. So, for example, it is advisable to resolve the issue of compensation for improvements made by the user. Here you need to carefully study the letter of the law.
The fact is that improvements can be separable or inseparable. In addition, it is important to discuss the issue of coordinating them with the entity that leased the property. If the improvements are separable, then the tenant has the right to take them with him when the contract is terminated. If not, he can count on compensation if the conditions laid down in the law are met.
Please note that you can terminate the contract in relation to a certain part of the property leased. In this case, it should be clear from the agreement for which things the contract continues to operate, and for which it is terminated.
If the parties to the transaction failed to resolve any issues peacefully, the dispute is transferred to court.
Package of documents
When the parties draw up the termination agreement, according to the general rules, the following documents should be prepared:
- Passports of participants or constituent documents (if a legal entity participates in the transaction).
- Initial contract.
- Act of acceptance of the object.
You can also prepare technical and cadastral passports, if information about them will be indicated in the agreement. If registration is required, the Rosreestr provides without fail:
- technical and cadastral passports;
- certificate of ownership of real estate;
- initial contract and agreement on its termination;
- acts on the transfer of the object for use and back to the lessor;
- receipt of payment of duty.
If the parties have fixed claims in their agreement, they should additionally draw up a document confirming its settlement in pre-trial procedure.
To register a document, one of the parties fills out an application for termination of the contract. Within the time limits established by law, the entire package of documents is checked. If everything is in order, an appropriate entry is made in the registry. It confirms the mutual termination of obligations.
Termination by the parties of the employment agreement
Under current law, the termination of legal relations between the employer and the employee can be carried out both at the initiative of one of them, and by mutual agreement. In addition, circumstances beyond the control of participants may be the cause.
Mutual interest of the parties in the termination of the employment agreement, according to statistics, is extremely rare. Usually always one of the participants is the initiator.
Labor relations, as you know, are regulated by the provisions of the Labor Code. The Code contains 78 articles, which only says that the contract between the employee and the employer can be terminated at any time by mutual agreement. There are no explanations on this issue in the TC. There is also no uniform sample of agreement between the parties. Termination of the employment contract by mutual agreement of the employee and the employer is carried out taking into account the prevailing practice (judicial, including), as well as the explanations given by the Ministry of Labor.
Procedure specifics
First of all, one should understand how exactly the termination of labor relations by agreement of the participants differs from the dismissal on other grounds. These signs, in fact, explain why the parties prefer in some cases to disperse peacefully.
First, it must be said about the simplicity of drawing up a sample agreement of the parties. Upon termination of the employment contract by mutual agreement, the participants voluntarily go to terminate the relationship.
It is worth saying that the employee and the employer are not required to inform each other about the upcoming procedure. Therefore, if there is no need to send a notice of termination of the agreement, the parties, according to the current legislation, can execute all the papers within one day. In addition, the employer is not obligated to notify the employment service and the trade union organization about the termination of legal relations with the employee.
Fixing conditions
Upon termination of the employment agreement by mutual agreement, the participants may well discuss all aspects of the procedure. They have the right to resolve various issues. For example, they may provide for compensation. Upon termination of the employment contract by agreement, the parties have the right to establish the amount and procedure for the payment of severance pay, the period that the employee must work out before leaving.
Please note that the law does not oblige the employer to award compensation to the employee. The employer voluntarily pays it. Neither the minimum nor the maximum amount of payment are fixed in the law. This issue is also discussed by the parties. The same applies to mining. It may not be at all.
Nuances
Dismissal by agreement provides many benefits. One of the most important is the inability to change or annul the terms of termination of the contract unilaterally. This will again require coordination. In practice, this means that the employee cannot change his mind or put forward new conditions for the termination of legal relations. This termination by agreement of the parties differs from the dismissal of their own free will. In the latter case, the employee has the right to withdraw the application.
Another nuance is that when the contract is terminated by agreement, the provisions of the legislation on “exceptional” categories of employees do not apply. In other words, the Labor Code does not provide for restrictions on workers - by mutual agreement, any person can be dismissed, including those on probation, who have concluded both fixed-term and fixed-term contracts.
As for pregnant employees, formally the law does not prohibit the dismissal of them by agreement. However, upon termination of the contract with them, the employer should be extremely careful. It is necessary that the desire to quit came from the employee herself. Please note that if a woman at the time of termination of the contract did not know about pregnancy and found out about her after the termination of the contract, the court may well recognize the requirement to reinstate her at work legal.
Design Features
The agreement on termination of the contract acts as an official basis for dismissal and, accordingly, for making the necessary entries in the personal file. Unfortunately, the form of such a document is not established by law. Therefore, the employer may well develop his own standard form. However, the following information must be present in it:
- grounds for termination of the contract - agreement of the parties;
- dismissal date - the day on which the employee last went to work;
- written confirmation of the will (this is the signature of the employer and employee under the text of the agreement).
An agreement can be made:
- In the form of a statement of the employee, on which the employer puts the resolution. This option is considered the simplest. But it is advisable to use it in cases where the parties agreed only on the date of dismissal.
- In the form of a separate document, agreements. It is compiled in 2 copies - for the employer and employee. In addition to the main ones, the parties have the right to fix additional conditions for terminating the contract.
Payouts
On the date of dismissal of the employee, the employer must pay it. The employee receives:
- Payment for the worked period (on the date of dismissal inclusive).
- Compensation for unused vacation days.
- Severance pay.
Once again, the final payment is made on the day of dismissal. The employer is not entitled to set a later date, even if the employee does not object to this.
The size of severance pay is not limited by law. As a rule, payment is made in the form of a fixed amount, in accordance with the official salary or based on the average salary. In the latter case, settlements are carried out in accordance with the provisions of Government Decision No. 922 of December 24, 2007.
Contract termination by agreement of the parties (44-FZ)
The conclusion of the contract under Federal Law No. 44 is carried out after passing through several complex and lengthy stages. Despite this, it is not uncommon for participants in a transaction to lose interest in it. What to do in this case? To help participants disperse peacefully, the legislator provided for the possibility of termination by agreement of the parties. In 44-FZ, all issues related to this procedure are regulated by Article 96.
It should be noted that in the said Law, the procedure for terminating legal relations on the initiative of one of the participants is described in great detail. With regard to the termination of the contract by agreement of the parties, a sample or some special rules are not provided. Therefore, participants in the transaction will have to be guided by the rules of the Civil Code.
General rules
The parties may well establish the procedure for canceling the transaction in the contract. However, you can refuse to fulfill the conditions, even if this is not explicitly stated in the text of the contract.
It is important to note that the termination agreement must be in the same form as the original contract. All conditions must be fixed on paper and endorsed by the signatures and seals of the parties. Please note that if at the time of termination of legal relations any obligations were fulfilled, then no one has the right to demand the return of their expenses.
Grounds
So, in what cases can the parties terminate the agreement by mutual agreement? According to general rules, a mutual refusal to fulfill the terms of a transaction is allowed if:
- It is impossible to fulfill the obligations of the supplier for reasons beyond its control. We are talking about force majeure situations: floods, earthquakes and other natural disasters.
- The customer no longer needs to purchase services or goods agreed upon in the contract.
- No funds were received from the state to pay for products or work under the contract.
- The contract has expired, but the customer has not selected the agreed amount of goods.
- The contractor has lost the opportunity to fulfill its obligations, and the customer at the same time agrees to refuse the transaction.
Registration process under 44-FZ
In accordance with the provisions of Article 452 of the Civil Code, termination of the contract must be in writing. The details of the agreement must be transferred to the register within three days. The corresponding requirement is enshrined in 103 article 44-FZ.
It should be noted that the Law itself does not regulate the procedure for terminating a contract. Parties to the transaction should adhere to the general recommendations enshrined in the Civil Code. In general, the process consists of the following steps:
- One of the participants is developing a draft agreement. The text details of the parties, the date and number of the contract, the reason for the termination of obligations.
- The project is signed by the drafter and sent to the counterparty. The latter studies it and (in the absence of objection) also endorses. If any questions arise, the counterparty draws them up as a separate document, applies it to the draft agreement and sends it to the drafter.
- After settling all disputed issues and signing the final version of the agreement, the customer enters information about him in the register of contracts. Information appears on the date and grounds for the termination of obligations, details of the document in the information system.
From the moment of signing the agreement, the contract is recognized terminated.
Effects
They are regulated in Art. 453 Civil Code. The key consequence of the termination of the contract is the cancellation of the requirements and the absence of claims of counterparties to each other. Perhaps the only condition remains the fulfillment of warranty obligations for services or products if they were previously purchased by the customer.
Pay attention to the important requirement prescribed by law. The customer is not entitled to send information about the contractor to the registry of unscrupulous suppliers if the contract was terminated by agreement of the parties. In addition, the parties cannot demand the return of already fulfilled obligations.
The participants attach great importance to resolving the issue of the procedure for the return of collateral. The law provides that a refund is made after the supplier has fulfilled its obligations. Often, upon termination of the contract by mutual agreement, customers try to keep a deposit. In their actions, they refer to the provisions of the Civil Code, considering collateral as reimbursement of expenses incurred in connection with the termination of legal relations. It must be said that such customer behavior is illegal. The supplier is entitled in such cases to go to court. Given the risk of litigation, it is still more profitable for customers to return the full amount of security.
Conclusion
Termination of any agreement by mutual agreement of the parties is the most preferable option for termination of legal relations. The procedure will not entail negative consequences for either the contractor or the lender. The parties may discuss all the conditions of termination without going to court. If the issues were not resolved peacefully, it will be necessary to proceed to the proceedings. But in this case, the initiator of the trial will have to prove the impossibility of fulfilling the obligations undertaken.