Art. 434 of the Civil Code of the Russian Federation provides parties to a transaction the right to choose the form of an agreement, unless otherwise provided by federal law. If participants agree to draw up a contract in a specific way, then it is recognized as concluded from the moment of giving it the agreed form, even if for transactions of this type this form was not required by law.
The written form of the contract
Art. 434 of the Civil Code of the Russian Federation establishes a way to draw up a written agreement. On the basis of the second paragraph of the norm, the parties can conclude it by drawing up one document, exchanging letters, telefaxes, other documents, including electronic ones, allowing one to reliably determine that the expression of will comes from the participant in the transaction.
An electronic document, in accordance with paragraph 2 of Art. 434 of the Civil Code of the Russian Federation, information is considered prepared, sent, stored or received by magnetic, digital, optical and similar means, as well as via e-mail.
Nuances
The written form will be recognized as complied with if the written offer (proposal) to conclude an agreement was adopted in accordance with the rules provided for in paragraph 3 of paragraph 438 of the Code. The corresponding provision secures paragraph 3 of Art. 434 of the Civil Code of the Russian Federation .
In cases stipulated by law or agreed by the parties, a written contract may be concluded solely by the formation of one document certified by the signatures of the parties. This provision is contained in paragraph 4 of the article in question.
Art. 434 of the Civil Code of the Russian Federation with comments
The written form of the agreement is used when legal entities make transactions with each other and with citizens.
The following agreements may be orally executed:
- for which the parties or the law do not provide for a written form;
- executable in direct custody.
The exception is agreement:
- for which notarization is mandatory;
- non-compliance with the written (simple) form of which implies their invalidity;
- between citizens, if the transaction price exceeds the minimum wage not less than 10 times, and in cases specified by law, regardless of the amount.
Signing Features
In paragraph 2 of Art. 434 of the Civil Code of the Russian Federation indicates some ways by which the parties can conclude a written agreement. When applying this provision, it should be borne in mind that the use of facsimile reproduction of a mural using a copying tool (mechanical or other), a digital signature or other analogue is regulated by the provisions of the second paragraph of Article 160 of the Code. It is allowed in the manner and cases established by law, other regulations or agreed by the parties.
So, for example, when considering one of the disputes regarding the recognition of the agreement on amendments to the main contract as null and void, the courts, given the expert opinion, found that the document contains a facsimile signature. At the same time, there were no conditions in the contract allowing the possibility of using facsimiles in the agreement. Accordingly, the courts concluded that the parties did not comply with the written requirements and declared the document not concluded.
Digital signature
The conditions for its use are regulated by Federal Law No. 1 of January 10, 2002. When fulfilling the requirements of this regulatory act, the digital signature of an electronic document is equivalent to a handwritten signature affixed on paper. However, some rules must be followed:
- The key certificate related to the signature at the time of verification or direct signing (if there is evidence of this fact) must be valid.
- The authenticity of the painting is confirmed.
- The signature is used in accordance with the data contained in the key certificate.
Acceptance of Proposal
In paragraph 3 of Art. 434 of the Civil Code of the Russian Federation there is a link to paragraph 3 of the 438th article of the Code. It is not provided that acceptance (acceptance of a proposal) may be expressed not by direct consent, but through appropriate action. According to them, the party that sent the offer can unequivocally conclude that the second participant accepted it. Such actions, simply put, are aimed at fulfilling the terms of the transaction. This may be shipment of products, transfer of the agreed amount, production of works, provision of services, etc.
To recognize such actions as acceptance in applying Art. 434 of the Civil Code of the Russian Federation is sufficient for the entity that received the proposal to proceed with its implementation on the specified conditions and within the time limit set by the offer. Moreover, the execution of the entire offer to qualify the party’s behavior as an acceptance is not required.
Important point
When applying Art. 434 of the Civil Code of the Russian Federation with reference to Article 438 of the Code, the following should be taken into account. Based on Art. 426 of the Civil Code, the contract side is obligated to provide certain types of services (energy supply, for example). At the same time, the consumer can use them, but refuse to sign an agreement with the supplier. In such situations, the actual use of the services must be recognized as acceptance by the subscriber. Accordingly, legal relations arising between the supplier and the consumer are recognized as contractual.
The provisions of paragraph 3 of the 438th article of the Code may also apply if the terms of the agreement are changed. For example, the landlord asked the user of the property to change the rental price in the contract. The tenant did not accept the offer in writing, but began to charge a fee in the amount proposed by the owner. In this case, the court will consider the user's actions as consent to amend the terms of the agreement.
However, it should be noted that the norm cannot be applied if the contract must be given a notarial form or it should be drawn up as a single document.
Controversial issues
Art. 434 of the Civil Code of the Russian Federation is considered the general norm. Special provisions governing the forms of certain types of contracts should be consistent with it. Meanwhile, in law enforcement practice, separate conflicts arise in determining the forms of agreements.
For example, there is a correlation problem of the second paragraph of Art. 434 of the Civil Code and 808 articles of the Code. In applying the provisions, arbitral tribunals take different approaches.
On the basis of Article 808, a written form is provided for a loan agreement between individuals, if the transaction price is 10 times lower than the minimum wage, and if the lender is a legal entity, then regardless of the cost.
As a confirmation of the agreement and its conditions, a receipt of the borrower or another document proving the transfer of a certain amount of money or the agreed number of items can be provided. However, when considering one of the disputes, the court did not recognize the payment orders as evidence. According to the court, these documents confirm only the fact of providing the amount of money, but are not written agreements of the participants indicating their will.
In another case, the court, on the contrary, recognized payment documents in which the line “Payment Details” indicated the transfer of funds under the contract, proving the fact that the debtor received the money and confirming the conclusion of the contract. In addition, extracts from the personal account and letters of the legal entity and the entrepreneur were recognized as confirmations.
From the above it follows that not all documents proving a particular fact may indicate the existence of contractual relations between the parties.
Acceptable should be those papers from which the will of the participants to conclude an agreement and, accordingly, the coordination of all its essential conditions. So, in the proceedings of one of the cases, the EAC recognized the fact of concluding an agreement on the provision of services for a fee on the basis of confirmation of the reservation of a hotel room and a payment order to pay its cost.
Printing on contracts
Quite a lot of controversy arises when determining the legal significance of prints on agreements concluded in writing with the participation of legal entities. In the Civil Code there is no requirement for the mandatory presence of a seal on documents of organizations.
According to paragraph 1 of article 160 of the Code, stamping is an additional rule for processing a transaction. Such requirements may be established by law, other legal documents or by agreement of the participants. In case of non-compliance with additional rules, the contract may be invalidated.
Legal entities should have a round seal. Such a requirement is provided for in federal regulations governing the legal status of certain types of organizations.
The requirement to affix a print to confirm the official’s signature is present in the resolution of the State Standard No. 65 (dated 03.03.2003). As paragraph 25 of this document establishes, the print certifies the authenticity of the employee’s signature on papers certifying the rights of subjects fixing facts, transactions with financial assets, etc.