Business Customs Art. 5 of the Civil Code of the Russian Federation defines as well-established and widely used in a particular sphere of business and other activities, rules of conduct not prescribed by law, regardless of their fixation in documents. Models that contradict the provisions of the contract or the rules binding on the parties to the relationship are not applied in practice. Consider further Art. 5 of the Civil Code of the Russian Federation with comments .
General information
In paragraph 1 of Art. 5 of the Civil Code of the Russian Federation defines the generally accepted rule of behavior of subjects. It can be recorded in any documents or not. From the content of the norm comes the recognition of custom as one of the sources of civil law. At the same time, the legislation and the international treaty stand above it in legal force. It is necessary to note one caveat. The generally accepted rule defined in Art. 5 h. 1 of the Civil Code of the Russian Federation , does not apply if there are dispositive regulations governing the relevant relationship. One important conclusion follows from this. A specific generally accepted rule applied to the contractual relations of economic entities becomes an additional (subsidiary) source in the event that the parties to the contract have not agreed on any condition and it is not defined by a regulatory provision.
Terminology features
The category defined by paragraph 1 of Art. 5 of the Civil Code of the Russian Federation , has a specific character. It involves participation in specific relationships of entities that professionally carry out economic (entrepreneurial) activities. The concept of turnover is associated, first of all, with contractual and other obligatory interactions of persons. However, it is not limited to them, but refers to any case of transfer of duties and rights from one subject to another, that is, to the manifestation of both full and partial succession. Simply put, the concept defined by Art. 5 of the Civil Code of the Russian Federation, is associated with the dynamics of legal relations and does not apply to areas in which other rules are used. For example, it may be a local tradition of acquiring certain public property for collecting things.
Scope
Given the above, it can be noted that the area of distribution of the customs of turnover in practice is limited to obligatory (usually contractual) relations in which entrepreneurs participate. This is indicated by the possibility established in Article 427 of the Code to fix such generally accepted rules in the form of approximate conditions of an agreement, their subsequent use in a specific transaction in the absence of a direct reference to these circumstances. In this sense, the seaport rules are partially included in the customs of turnover. This is due to the fact that the latter also regulate contractual relations in which entrepreneurs participate. Port customs are defined in the legislation as rules of conduct, established and widely used in the process of providing services in seaports and not defined by the legislation of the Russian Federation.
Specificity
The generally accepted rule considered in Art. 5 Civil Code , is prevailing. That is, it is considered quite certain in its content. Moreover, as Art. 5 of the Civil Code of the Russian Federation , it is quite widely used in a particular business sphere. For example, it may be a tradition of fulfilling one or another contractual obligation. Turnover customs are part of a broader, but at the same time less defined, category of “usually made demands”. This follows from Art. 309 of the Code and a number of special rules.
Requirements presented usually include not only specific rules of conduct, but also regulatory requirements regarding the object of a contractual or other obligation. The first can be considered, for example, the conditions that, if there is no indication in the reimbursable contract of the cost of execution, in accordance with Art. 424, paragraph 3, shall be paid at a price which is usually charged under comparable circumstances for similar products, works or services. As for the requirements for the facility, it can be quality standards, packaging standards, and so on. As you can see, the usual regulations can be directly established in the legislation or in the contract. Meanwhile, neither the agreement nor the rules characterize the requirements, leaving their determination to the discretion of the parties in a particular situation.
Ordinances and Customs
These two concepts should also be distinguished from each other. Ordinances are considered as a rule, prevailing in property relations, which the parties to the transaction agreed to follow. In this regard, it acquires its legal significance for these entities. At its core, a habit is an implied condition of a specific contract, filling the gap in content. If there is no direct reference to it in the agreement, and the intention of the participants in the relationship to be guided by it is not proved, it loses its civil law value and is not taken into account. In this case, the custom of the turnover will act directly in the absence of special instructions to it in the contract or law.
Current practice
The category considered in Art. 5 of the Civil Code of the Russian Federation, it is necessary to distinguish from the order established by the parties to the business agreement. The current practice also reflects certain implied terms of the transaction, which, while not being directly fixed, were actually observed by the participants in the previous relations and, thus, reflected their agreed expression of will. In this regard, the established order has a certain priority over custom.
Important point
In accordance with clause 2 of the commented article, the customs of circulation, which conflict with legislative norms or contractual terms, are not applicable. It follows that they can be used exclusively in the absence of direct legal regulation of a particular relationship or the relevant regulatory conditions in the agreement. In this regard, the strength of customs is inferior to the dispositive norm, to customs, and to the established order (established practice).
At the same time, the last two categories do not act as sources of law. This circumstance fundamentally distinguishes them from the customs of turnover, which, in turn, under the conditions indicated above, are applied to relations regardless of the will of the participants. Port rules should not contradict either international agreements or domestic legislation of the country. In addition, they must be consistent with generally recognized principles of international law, but not limited to the application of the terms of individual civil law contracts.