In the conditions of market relations, the most common basis for the emergence of obligations and rights is the contract. It is used in various fields of economic activity. On the basis of the contract, products are sold, capital construction, material and technical support, cargo transportation, public services are carried out. The conclusion, amendment and termination of contracts is governed by civil law and other industry laws. Consider these procedures in more detail.
General information
Compliance with the procedure for concluding, amending and terminating contracts is of particular practical importance for all participants in civil turnover. Violation of the requirements of the law entails extremely adverse consequences for the parties to the legal relationship. So, upon conclusion, amendment, and termination of contracts in violation of established requirements, the actions of entities lose their legal force.
Key principles of legal relations
General provisions on the conclusion of contracts are enshrined in article 432 of the Civil Code. According to the norm, the parties to the legal relationship must agree on the essential terms of the transaction. Only in this case the contract will be recognized as concluded.
The essential conditions include:
- about the subject;
- enshrined in the legislation and other regulatory documents as essential or necessary for the transaction;
- regarding which, at the request of one of the participants, the parties must come to an agreement.
The procedure for concluding a contract involves sending an offer (offer) and its acceptance (accepting the offer).
A participant who has accepted partial / full performance from a second party under a contract or otherwise confirmed the validity of the agreement may not demand to declare it non-concluded if this contradicts the principle of good faith.
Reasons for termination and amendment of agreements
A number of grounds are fixed in the legislation, according to which the terms of the transaction are adjusted and legal relations are terminated. In the Russian Federation, changes and termination of contracts are carried out:
- By agreement of the participants.
- In case of significant violation of the terms of the transaction.
- In the presence of circumstances enshrined in law or other regulatory act.
As practice shows, the most common is the first basis. In the Russian Federation, when amending and terminating agreements by agreement of the parties, the grounds for such an agreement are solely for identifying the consequences of terminating legal relations or adjusting the terms of the transaction, and not for assessing its legitimacy.
Court order
The legislation establishes certain conditions for amending and terminating the contract in the framework of the lawsuit. An interested party may appeal to a court in the following cases:
- Significant violation by the second party of the agreed conditions. For example, at the request of the landlord, the lease agreement may be terminated in the event of a user evading payment of premises or damage to property.
- Directly established in the articles of the Civil Code. Amendment and termination of the contract of accession, for example, can be carried out at the request of the affiliate, if the agreement includes conditions, although not contrary to the provisions of the law, but which are clearly onerous for the applicant. The corresponding rule is enshrined in Article 428 of the Civil Code.
Refusal of execution
This is another reason for amending and terminating the contract. In the Civil Code of the Russian Federation, refusal of execution is provided for in several articles. He assumes that one of the participants exercises his right established by law or the content of the transaction. Unilateral refusal is permissible only when the corresponding instruction is present in the norms or spelled out in the agreement between the parties. For example, upon expiration of a lease, it is recognized as prolonged (extended) for an indefinite period. At the same time, each participant has the opportunity to refuse to execute it at any time, notifying the other side of his decision in advance (according to Article 621 of the Civil Code, at least 3 months in advance).
Procedure for amending and terminating contracts
It depends on the grounds for adjusting the terms of the transaction or termination of legal relations. So, in case of termination of the contract (a significant change in its content) by agreement of the parties, the general rules for the execution of this agreement should be applied, the requirements for its form must be observed. It must match the form in which the original contract was concluded. This is stated in the Civil Code, in the 452nd article.
Amendment and termination of the contract may, however, be carried out according to other requirements enshrined in other regulations or arising from the customs of turnover. For example, in an agreement stipulating conditions for prepayment of goods, it may be established that the transfer of an amount less than agreed will mean the rejection of a part of the product. In other words, in such a situation there will be a change in the terms of the transaction on the quantity of goods to be transferred. It should be noted that the adjustment of the content of the contract will be carried out not on the basis of the agreement, despite the requirement of the law, but in connection with the purchaser's specific actions.
Claim procedure
One of the mandatory requirements of the Civil Code of the Russian Federation in case of amendment and termination of the contract is compliance with the procedure for pre-trial settlement of the dispute. Its essence is as follows. The interested party to the transaction, before filing a lawsuit with the court, sends an official letter to the other party. It should contain a proposal to amend and (or) terminate the contract. A participant may appeal to a court if:
- Rejected by the second party to the offer.
- A response to the letter was not received within 30 days, unless another period is specified in the legislation or determined by the person concerned.
If the pre-trial procedure is not followed, the court is obliged to leave the claim without consideration.
The procedure for amending and terminating the contract in the event of a unilateral refusal to fulfill its conditions requires mandatory prior notification of the counterparty. The notice is sent in writing. This requirement may be deemed fulfilled if the applicant submits to the court evidence of receipt by the other party of the relevant notice. For this, the letter is sent by mail (registered letter), transmitted personally. The applicant may choose a different method of delivery of the notification, if it will be provided with receipt of evidence of delivery to his addressee.
Effects
When changing and terminating a civil contract:
- Terminate / change obligations arising from it.
- The question of the fate of the executed on the transaction is being decided.
- The liability of the participant who has violated the terms of the contract is determined.
Both the change and the termination of the legal contract affect the obligations incurred by the parties. Moreover, in the second case, they stop. When a contract is changed, obligations are retained, but in an amended form. This may also mean their partial cessation. For example, the supplier and the purchaser reached an agreement on issues related to the reduction of supply volumes, and changed the terms of the transaction. As a result, part of their obligations ceased.
Nuance
The moment from which existing obligations are deemed adjusted or terminated depends on the method of amendment and termination of the contract.
If there was an agreement of the parties, then the moment of its conclusion is taken into account. He, in turn, is determined in the manner prescribed by Article 433 of the Civil Code. This norm has a dispositive nature. According to the provisions of Article 433, another rule different from the above may flow from the agreement of the participants or the nature of the changes in the terms of the transaction. So, the parties are entitled to set a specific date from which the obligations will be considered terminated. Participants may, for example, agree to amend and terminate the supply agreement with respect to previous or future periods. Accordingly, in this case, the obligations cannot be recognized as changed or ceased to exist at the time of the execution of the agreement.
If the dispute is resolved in court, a peremptory rule applies. According to it, obligations are recognized as terminated or changed from the date of entry into force of the decision.
If there was a unilateral refusal, the corresponding moment coincides with the day the counterparty received the notification from the interested party.
The fate of the executed by the transaction
If, at the time of amendment / termination of the agreement, one of the participants has partially or fully fulfilled his obligations (delivered goods, provided services, etc.), he cannot demand the return of what was received by the counterparty. The corresponding provision is provided for in paragraph 4 of Article 453 of the Civil Code. It is worth noting, however, that this rule is dispositive. In the agreement of the parties or the legislation, a different procedure may be established for determining the fate of the contractual one. For example, if the buyer demands to terminate the contract due to the fact that the seller gave him the product of inadequate quality, he, returning the goods, can expect to receive the amount paid.
In addition, the law provides the parties with an opportunity to apply to the court with a claim for compensation for losses resulting from a change or termination of the transaction. Moreover, such a requirement can be satisfied if the applicant proves that the second party has substantially violated the agreed conditions.
Termination / Amendment Agreement
It represents a bilateral or multilateral transaction. Consequently, such an agreement is subject to the general rules on the conclusion of contracts (Chapter 9 of the Civil Code).
An agreement is drawn up through acceptance (acceptance) by one participant of an offer (offer) from the other side. An entity that has not received a response to its proposal within the time period established by it or by law may appeal to the court. The document must be in the same form as the original contract.
It is necessary to clearly understand the differences between the agreement on the change / termination of the transaction and the compensation. In the latter case, the termination of the obligations arising from the transaction is determined by the provision of the agreed property to the creditor. In this regard, the moment at which the obligations are deemed terminated is determined not by the date of the agreement, but by the day of the actual transfer of the thing.
Amendment of the agreement by agreement of the participants has a number of features. Legislation allows for the adjustment of only certain transaction conditions. In this case, the type (type) of the contract must be saved. For example, under an exchange agreement, the parties changed the subject that should be transferred in exchange for the received property, the method of fulfillment of the obligation (for example, shipment by railway transport was replaced by self-delivery), then the participants enter into an agreement on updating the terms of the initial transaction. If the subjects have agreed that a certain amount should be paid for the transferred values, the type of contract will change. Instead of exchange, a sale will be made.
Special cases
Legislation or parties to legal relations can establish a ban on changing and terminating certain types of contracts, special grounds, consequences and the procedure for performing such actions. For example, the Civil Code contains a provision on the inadmissibility of adjusting the terms of a government loan agreement. The Code also enshrines special rules regarding transactions related to the sale of enterprises. They provide for the return (collection) of the transaction received in kind from one or both participants, if this does not violate the interests and rights of the creditors of the acquirer, seller, other persons, society and the state.
Settlement agreement
This is another way to terminate / amend the contract. An amicable settlement is used, as a rule, as part of a person's insolvency procedure. It is concluded between the debtor (the arbitration manager acting on his behalf) and the creditors.
The procedure for processing such an agreement is enshrined in the Federal Law "On Bankruptcy". According to the provisions of the regulatory act, the decision to conclude such an agreement is taken at a meeting of creditors by a majority. The document takes effect upon approval by the arbitration court in bankruptcy proceedings. The agreement may include conditions for:
- installment / deferred payment of arrears;
- assignment of rights;
- fulfillment of obligations by third parties instead of the debtor;
- debt reduction;
- satisfaction of claims put forward by creditors in another way that does not contradict the norms.
According to general rules, termination of the agreement after its approval by the court is not allowed, even if the parties have agreed on it.
Termination / change of legal relations due to violation of the terms of the transaction
Termination or adjustment of the contract is allowed if the violation is material. It is recognized as such not because of the damage that has occurred. The materiality of the violation is determined by the ratio of losses to what the participant in the transaction expected if properly executed. In this regard, in practice, it is possible to satisfy the requirements for termination / amendment of the contract and with minor damage. The court decision will depend on how significant the difference between the expected amount of benefits and the actual received.
When determining the materiality of a violation in the framework of foreign trade, the following circumstances are taken into account:
- Is the deprivation of the party significant of what it expected from the transaction? In assessing this circumstance, the court must take into account the situation when the second participant did not foresee and could not assume the negative consequences of his actions.
- Is strict adherence to the terms of the transaction of fundamental importance.
- The violation was committed intentionally or through gross negligence.
- Does the injured party have reason to believe that in the future the counterparty will also not comply with the terms of the transaction.
- Will the participant who has not fulfilled obligations incurred disproportionate losses in the case of the preparation and execution of the contract, if it is terminated.
Other violations may be enshrined in the law or the terms of the transaction. As a rule, they relate to specific types of contracts and may not be material. For example, if the seller fails to fulfill the obligation to transfer to the acquirer goods that are free from the rights of third parties, the latter allows the latter to demand a reduction in the value of the object (i.e., changes in the terms of the transaction) or termination of the sale and purchase agreement. This rule, however, does not apply when the buyer was or could become aware of the existence of third party rights.
Additionally
Changes to the conditions or termination of the contract may be caused by circumstances not related to violations. However, in this case, these factors should be fixed in the agreement or law itself. For example, an insurer notified of the circumstances as a result of which insurance risk may increase, has the right to demand an amendment to the terms of the contract or payment of an additional premium. If there are objections from the insured, the entity may file a claim for termination of the contract.
Conclusion, amendment and termination of the employment contract
The legal relationship between the employer and the employee begins with the execution of the agreement. An employment contract is a document that sets out the basic conditions and the procedure for a citizen to fulfill his professional duties. It prescribes a specific position, salary, rights, responsibilities, obligations of the parties.
The conclusion of the contract is in writing. In this case, 2 copies should be drawn up - for the employer and employee.
At the conclusion of the contract, the applicant provides:
- Identity document, military ID.
- Labor book. If a citizen first gets a job, it is not provided.
- Document on education (training). It is necessary to confirm that a person has the knowledge necessary to carry out professional duties.
Additionally, you may need:
- Direction to the enterprise. It is issued to certain categories of persons.
- Individual rehabilitation program for the disabled.
- .
- Insurance certificate.
- .
. , , .
, .
. , , , , . .
.
( ), (). , , , , .
:
- .
- ( , , ).
- .
- .
- .
, .