As an analysis of the Civil Code of the Russian Federation shows, the contract is considered one of the key institutions of civil law. His conclusion is a volitional act of a participant in civil turnover. Today, there are various types of contracts. They play a crucial role in the economic life of society. That is why one of the central places is assigned to the contract in the Civil Code of the Russian Federation.
Features of civil regulation
The legislation enshrines certain principles, principles on the basis of which the actions of the participants in the turnover are regulated. They permeate all elements of civil law: institutions, sub-sectors, norms. Key civil principles are enshrined in paragraph 1 of article 1 of the Civil Code. All of them are of great importance for the regulation of contractual relations. However, the principle of freedom of contract is of most interest. We will consider the essence and features of this principle below.
Freedom of contract: general information
To ensure the proper execution of legislative requirements, protect the interests of participants in the turnover, it is necessary to understand what the principle of freedom of contract is. Its content is disclosed in article 421 of the Civil Code. The following basic characteristics of the principle of freedom of contract follow from the analysis of the norm:
- The participants in the turnover can decide for themselves whether they need to conclude agreements or not.
- Citizens and legal entities are free to choose counterparties.
- Upon reaching agreement on the key terms of the contract, the parties are legally equal.
- The participants in the turnover have the right to conclude an agreement both stipulated and not stipulated by the legislation or other regulatory documents.
- The parties may draw up an agreement in which elements of different agreements will be present. Such transactions are called mixed.
- Participants in the turnover are free to establish the terms of the agreement.
Legal Relationships
One of the key features enshrined in Article 421 of the Civil Code of the Russian Federation is freedom in deciding whether to conclude an agreement. The participants in the turnover independently, voluntarily decide whether to enter into legal relations or not. According to the principle of freedom of contract, in civil law, as in other legal sectors, no one should conclude an agreement against their own free will. However, it is worth saying that there are exceptions to this rule.
In a number of cases directly established by law, coercion to conclude a contract is allowed. As a rule, such an opportunity is used when the agreement is in the interests of society and the entity entering into it.
Specificity of Agreements
Upon entering into a contractual relationship, participants acquire equal rights and obligations. In this case, the parties may conclude agreements not provided for by domestic civil law. The principle of freedom of contract in modern conditions allows you to draw up an agreement of trust, leasing, factoring, etc.
The law allows the conclusion of mixed contracts, that is, containing elements of other transactions. In such cases, the legal relations of the participants are governed by the provisions of the relevant agreements, unless they agree on specific rules that will govern their actions. An example of a mixed agreement is the contract of sale of products with the obligation of the seller to deliver the goods to the acquirer. In such a situation, the rules on sales transactions and the supply contract are applicable to the legal relations of the parties.
In judicial arbitration practice, agreements on the exchange of products for services of equivalent value are recognized as mixed. In this case, the agreement contains elements of the contract of sale and the provision of services.
Nuances
Mixed contracts must be distinguished from complex agreements. The latter are a set of several independent obligations enshrined in one document. For example, a contract for the supply of products may contain conditions for insurance, transportation, storage, etc. By themselves, they do not require the execution of separate agreements, but do not lead to a single obligation.
Mixed agreements must also be distinguished from unnamed agreements not provided for in civil law today. The principle of freedom of contract allows the parties to independently fill in the gaps in the norms that inevitably arise in the course of development and complication of turnover.
Terms of agreement
They are given special attention in civil law. In principle, freedom of contract stipulated that the parties voluntarily determine the terms of the transaction, if the content of any of them is not established imperatively. For example, the cost of purchased products is determined, as a general rule, by the parties to the agreement. Only in certain situations the price condition is established taking into account state tariffs, rates, etc. (in particular, when it comes to goods manufactured by natural monopolies).
The principle of freedom of contract and its limitations
In modern market conditions, contractual relations cannot have an absolute character. Inevitably, there is a restriction on the freedom of contract. It may concern:
- The object is right.
- Freedom of expression.
- Terms of the transaction.
- The choice of counterparty.
Object of contractual rights
All the values for which participants in the turnover have legal opportunities and obligations are recognized as it. The most common objects include things. Some of them are limited in turnover. This is necessary to ensure the safety of state, public and private interests. For example, mountain areas intended for exploration and mining are state-owned. They are provided to legal entities and citizens for use.
Individual objects may participate in circulation only with special permissions. Speech, in particular, about weapons, potent poisons, narcotic substances, etc. In Russia, the circulation of foreign currency, precious metals, precious stones, with the exception of jewelry and other household products, as well as their scrap, is limited.
When implementing the principle of freedom of contract, participants in legal relations should also take into account that a special legal regime is established for land and other natural resources. According to paragraph 3 of Article 129 of the Civil Code, these objects may be alienated and transferred from one entity to another by other means exclusively to the extent that their circulation is permitted by law.
Things that are completely withdrawn from circulation are those values which, in accordance with the norms, cannot act as the subject of a civil law transaction. Among them, first of all, there are objects of state property intended for public use: roads, public buildings, rivers, wildlife, national libraries, etc.
Things that are prohibited by law may not be the subject of transactions. These include, in particular, fake money, pornographic materials, home-made narcotic substances, etc.
Voluntary expression of will of the parties
It acts as one of the key conditions for the legality of a transaction. Compulsion to conclude a contract may take place if the obligation to enter into legal relations is provided for by the previously adopted terms of the agreement, established by law or other legal act.
For example, according to paragraph 1 343 of the Civil Code, a pledge holder or pledger, depending on who keeps the pledged property, must, unless otherwise provided by contract or rule of law, insure the thing at the expense of the pledgor.
Another example of a mandatory transaction is the rule provided for in article 848 of the Civil Code. According to the norm, a banking organization must carry out in favor of a client operations established for accounts of this type by law, rules, customs of circulation, unless otherwise provided in the service contract.
Additionally
In addition to the Civil Code, the obligation to complete a transaction may be established by separate federal laws. For example, under Art. 3 Federal Law No. 60, orders for the implementation of federal targeted programs, delivery, and procurement of goods for state needs are placed in institutions, organizations, enterprises by concluding state contracts. In other words, in necessary cases, an imperative obligation may be established to conclude transactions for the supply of products for state needs.
A similar order is enshrined in Art. 9 Federal Law No. 79. The regulatory act establishes that suppliers who occupy a dominant position in the commodity market, monopolistic enterprises, as well as organizations in the production volume of which defense orders exceed 70%, cannot refuse to conclude state contracts for the supply of values to the state reserve.
Concept of public agreement
It is introduced into the legislation in order to avoid violation of the principle of freedom of contract, to prevent arbitrariness on the part of monopolistic entrepreneurs, to ensure the protection of an economically weaker participant in the turnover.
According to the provisions of Article 426 of the Civil Code, a contract concluded by a commercial enterprise and establishing its obligations to sell goods, perform work, and provide services that such an enterprise, based on the specifics of its activities, should be carried out in favor of everyone who addresses it, is recognized as public. The following agreements are recognized:
- retail sale;
- power supply;
- rental;
- household contract;
- public transport;
- personal insurance.
Freedom of contract in public agreements
The provision enshrined in article 421 of the Civil Code of the Russian Federation, as mentioned above, has a number of restrictions depending on the nature of the transaction. Consider the features of its implementation in public agreements.
In accordance with article 492, under the terms of retail sale, the seller must transfer to the acquirer products intended for home, personal, family or other use that does not involve entrepreneurial activity.
Relations under such a transaction are regulated by Federal Law No. 2300-1. In accordance with the provisions of Article 1 of this normative act, the Government of the Russian Federation may issue rules for the seller and buyer to be obligatory when making and fulfilling the terms of public transactions (energy supply contracts, retail sale, provision of services and work). These provisions allow us to talk about certain limits of the principle of freedom of contract.
In the Russian Federation, the mandatory procedure for the conclusion of a transaction related to retail purchase and sale may affect the subject of legal relations. An indication of this is contained in paragraph 4 of the "Rules for the sale of certain types of products", approved by government decree No. 55 of 1998. According to them, when retailing at the buyer's location outside the stationary points of sale (at home, at the place of study / work, on the street and in other places) the sale of products (except beer, soft drinks, ice cream, bakery, confectionery products in the manufacturer’s packaging), precious stones, precious metals and products from them, medicines, weapons, cartridges, copies of phonograms is prohibited mm, audiovisual works, computer programs and databases.
Paragraph 13 of the same resolution states that the sale of goods imported into the Russian Federation made using fauna objects that are subject to the provisions of the Convention on the International Sale of Wild Plant and Animal Species Endangered / Extinct is permitted only by decision of the authorized body exporting state. Accordingly, the legislation restricts the participants in the turnover in choosing the subject of the transaction or determines for this rule the rules that are binding upon entering into a contractual relationship.
Personal insurance features
They are mentioned in article 934 of the Civil Code. The personal insurance contract assumes that one party undertakes, for an agreed fee paid by the other party, to provide a lump sum or periodically transfer the amount in case of damage to the life / health of the insured or another citizen specified in the agreement when he reaches a specified age or another event occurs in life. established by the parties.
The legislation provides for situations when the subject must necessarily conclude such an agreement. For example, under article 418 of the Customs Code, officials working in customs authorities must be insured against federal budget funds.
In the Federal Law No. 323, in Article 64, cases are fixed where insurance of pharmaceutical, medical workers of the municipal and state healthcare systems is mandatory. Such an order is valid if the work of these persons is associated with a threat to their health and life. The list of employees subject to compulsory insurance is determined by government regulation. In this example, the restriction of freedom of contract relates to the will of the parties.
Preliminary agreement
At its conclusion, there is a compulsion to conclude a transaction. The fact is that the preliminary agreement imposes on the parties to the transaction certain obligations that they accept voluntarily. In other words, under such an agreement, the participants in the turnover undertake to conclude a basic agreement in the future. It may be associated with the transfer of things, the production of work, the provision of services. In this case, the conclusion of the main contract is carried out on the conditions specified in the preliminary agreement.
The essential terms of such a transaction can be divided into 2 groups. The first includes provisions directly related to the preliminary agreement. Among them, for example, the deadline for registration of the main contract. The second group consists of the conditions by which the subject and other essential provisions of the main agreement are established.
Conclusion
The value of the principle of freedom of contract in market conditions is difficult to overestimate. It is recognized as one of the key provisions of civil law. Due to the fact that the rules of the Civil Code regulate, first of all, property, monetary and commodity circulation, the legal consolidation of this principle is a paramount task for the legislator.
Freedom of contract, firstly, is expressed in the fact that each participant in the turnover can independently decide whether he needs to conclude an agreement or not.
Secondly, an entity wishing to enter into a contractual relationship independently chooses a counterparty.
Thirdly, the parties independently by mutual agreement decide which specific agreement they will conclude.
Fourth, the parties to the legal relationship agree on the terms of the transaction.
It must be said that the content of the principle of freedom of contractual relations in the Russian Federation and abroad is almost identical. Domestic legislation, among other things, provides for the possibility of participants in the transaction to conclude mixed agreements in which there are elements of different transactions.
Participants in legal relations should remember that the principle considered does not apply to those mandatory requirements that enshrine binding rules. The fact is that each contract in any case must comply with legislative provisions. Freedom of agreement is not absolute. The legislation establishes cases of its restriction.