Art. 445 of the Civil Code of the Russian Federation governs the conclusion of an agreement without fail. How is this article implemented in practice? What questions do participants in the procedure face? How to protect your own rights upon request to conclude an agreement?
Normative regulation
Art. 445 of the Civil Code of the Russian Federation describes the specifics of concluding agreements in a situation where the parties are obliged to conclude an agreement. As a general rule, citizens and organizations are given the right, at their discretion, to conclude agreements in their own interests. There are exceptions to it.
The obligation to enter into a transaction is established not only by the noted article, but also by other laws. The list also includes regulations adopted on their basis. A solid judicial practice has been accumulated, corrected by changes in legislation.
Is there any reason
Art. 445 of the Civil Code of the Russian Federation refers to the law. An example is the LCD. Also, the parties should take into account regulatory acts of a by-law nature: government decisions regarding the conclusion of agreements with consumers.
If the authority adopts an act which obliges citizens and organizations to conclude a contract without fail, there must be a basis for this precisely in the law or in a government decree. Disputes arise periodically about the existence of such an obligation if the rule of law is not formulated clearly enough.
In some cases, the obligation is not acquired automatically, but in the performance of certain actions - winning the tender or competition. In this case, refusing to conclude a transaction will not work without serious consequences; penalties will have to be paid. The owners of residential and non-residential premises also have an obligation to conclude agreements.
Some examples
Art. 445 of the Civil Code of the Russian Federation makes a reference to other laws. For example, other articles of the code speak of public contracts. This refers to entrepreneurs providing services or offering goods. And they do not have the right to refuse to conclude a transaction, except in the absence of the ability to provide a service.
If we take the housing and communal services sector, this rule applies to all participants in legal relations: both organizations-suppliers of resources and citizens-consumers.
Another example is that previously the parties signed a preliminary agreement, which the parties have not refused, or it has not yet terminated.
Most often we are talking about relationships between organizations. Why? The delivery of services or goods may be carried out to a citizen without actually completing additional documents. In the case of organizations, this approach is incorrect due to the requirements of accounting and tax accounting.
Procedure
The party sends a proposal to sign an agreement; a ready-made project is being proposed. The person to whom the proposal has been sent must respond within 30 days. What options are suggested:
- refusal to conclude a transaction;
- consent to the conclusion (in response, a copy is sent with the details and signatures of the second party);
- consent to the transaction on other conditions (a protocol of disagreements is attached to the letter).
The obligation to send a response is prescribed to those who have the responsibility to sign the transaction. Upon receipt of a protocol of disagreement or refusal, or evasion of a response, the first party has the right to refer the dispute to court.
Provider Actions
If the conclusion of the agreement is an obligation for the person who made the proposal, it must answer the addressee in two ways:
- agree to the proposed conditions;
- abandon them.
Having no answer or refusal to accept objections, the acceptor or receiver has the right to submit the dispute to the court within 30 days.
The law is formulated in such a way that the right to appeal to the court is given to a person who has the right, but is not required to enter into a transaction. At the same time, the obligated person is also not deprived of the right to file a claim, which, however, is almost never found in practice.
In paragraph 4. of Art. 445 of the Civil Code clearly indicates the moment from which the right to a claim arises from the counterparty of the obligated person.
Dates of going to court
In the comments to Art. 445 of the Civil Code of the Russian Federation, it is noted that a pass of 30 days allotted for appeal to the court does not deprive this party of the right to file a claim. At the same time, the 30-day period specified in the law is changed either by agreement of the parties or in accordance with other legal acts.
Where to go
An application to the court is filed in case of refusal of the obligated party to conclude an agreement. Or do it on the proposed terms. Application of Part 4 of Art. 445 of the Civil Code of the Russian Federation is supposed only with previous efforts to solve the problem without the participation of the court.
Which court is suing? If at least one party to the case is a citizen who is not engaged in entrepreneurial activity, the proceedings are conducted in the district court. In accordance with the rules of the Code of Civil Procedure.
If the parties to the dispute are legal entities and (or) entrepreneurs, the appeal is considered in the arbitration court of the region, as a rule, at the location of the organizations.
Claim preparation
As mentioned above, if the plaintiff does not provide the court with information about an attempt to conclude an agreement or resolve the dispute, the judge will not accept the claim and leave it motionless (in the district court) or return the documents immediately (in the arbitration court).
If a preliminary claim or appeal to the authorized bodies is usually required, then in this case the law sets out a special procedure for pre-trial settlement.
Claim Structure
Claim structure:
- name of court;
- information about the plaintiff (name, place of residence, name and location for the organization);
- for arbitration, registration numbers, an extract from the register of legal entities, contact details, including an email address, are required;
- Name of the defendant, address, name of organization, location, contact details;
- other persons whose interests may be affected;
- statement of circumstances, reference to regulations;
- court requirements;
- inventory of copies of attached documents;
- date and signature of the person filing the application.
A power of attorney or other document substantiating the right of representation in court is attached.
Litigation and Art. 445 of the Civil Code
The claim is to sign the contract on certain conditions, in connection with which the claims of the claim directly indicate either disputed points with which the obligated party does not agree, or the entire text of the contract. A more convenient way to describe your requirements is to refer to the editorial office of the contract and indicate the date and number of the letter.
The judge finds out:
- whether the pre-trial order was fully implemented;
- whether the proposed draft agreement complies with the law.
More often, judges agree with such claims. Sometimes the agreement with the claim is partial: some points are excluded or approved in the wording of the defendant.
The court decision provides motivation regarding the defendant’s obligation to conclude an agreement, consent or disagreement with the clauses of the draft agreement.
If the claim for coercion to conclude an agreement, the court in the decision indicates the decision to conclude the contract in the next edition, and then sets out all the clauses of the contract.
If the dispute concerns part of the clauses, then the resolution of the disagreements of the parties is indicated first, and then the text of the disputed clauses is presented.