The written form of the contract is carried out in a simple and notarial form. Thanks to her, the will of the participants is best recorded and evidence of their intentions is provided. By mutual agreement, any transaction within the framework of the law may be carried out in the appropriate form. In the article we will talk about the concept and varieties of the written form of agreements, their compilation and content.
Preparation of contract
Agreements are the main and integral part of the field of commodity-money relations. Thanks to them, relations are regulated, the rights and obligations of the parties are determined. Most contracts are in writing. When concluding them, you need to clearly understand the goals, as well as know the nuances of compiling different types.
A competently drawn up agreement should include the following sections:
- Introductory part. It indicates the name, for example, the contract of sale, the date of the signature, which plays a very important role. No less importance is given to where it was signed. The names of the parties with the names and positions of representatives are also indicated.
- Subject. This part provides the most important conditions. The essence of the relationship, prices, methods of settlement and timing is disclosed.
- Additional terms. Here, optional conditions are prescribed, but necessary to fulfill the rights and obligations of the parties. These may include, for example, the period of validity of the agreement, the resolution of disputes and the condition of confidentiality.
- Other conditions. This includes technical issues, such as legal provisions, requisites, number of copies, and so on.
Content
The agreement consists of conditions that are:
- Significant.
- Ordinary.
- Random.
The first includes sufficient and necessary conditions for signing the contract. All of them need to be agreed. Otherwise, the agreement will be considered non-concluded. Normal conditions do not need to be agreed upon. They take effect automatically. But this does not mean that they act contrary to the will of the parties. On the contrary, they are also consistent. Random - these are conditions that change or complement the usual conditions. They are included at the discretion of the parties to the transaction.
Form Types
Written transactions are:
Let's consider both types in more detail.
Simple form
In this form, transactions can be carried out in two ways.
- The first version establishes the rules on the transaction in simple written form, except for those cases that must be certified by a notary. These are agreements concluded between legal entities, between legal entities and citizens, between citizens, and also for an amount that is more than 10 times higher than the minimum wage. This is stated in Art. 161 of the Civil Code of the Russian Federation. An exception to the rule is provided for in Art. 159 of the Code, according to which contracts can be concluded orally, regardless of the composition of entities and the amount.
- The second method is used in cases that are directly established by law and also do not depend on the subjects and amount. For example, it is imperative to conclude agreements on collateral, commercial representation, deposit, surety, loan, purchase of real estate and so on.
The simple written form of the agreement shows the will of the parties who conclude it and secure it with their signatures, and sometimes by authorized persons. In a unilateral transaction, one document is drawn up if the appropriate form is prescribed for it. In the case of the conclusion of bilateral and multilateral agreements, these documents may be prepared in a single copy or one at a time for each of the participants. Moreover, for this purpose the parties do not need to meet. Contracts can be transferred to each other through the use of mail, telegraph, e-mail or other forms of communication.
If the contract is concluded in several copies, then each of them is an original. Therefore, they have the same legal force. This is the difference between contracts and corresponding copies.
Types of Simple Agreements
Sometimes transactions are made by drawing up receipts, special tokens, numbers, and so on. Such documents are equivalent to a simple written contract. For example, in accordance with paragraph 2 of Art. 887 of the Civil Code, the corresponding form of the agreement is recognized as complied with if the thing is accepted for storage by the keeper by issuing to the depositor a receipt, certificate, token or other sign that certifies the acceptance of things in cases provided by law.
Requisites
A transaction that is concluded in writing is duly executed if the contract contains the necessary details. These include data on the name of the creditor, the transferred amount, place of fulfillment of obligations, date, signatures and so on. Details are set by the participants, as well as the requirements of the law. If in the latter case the obligatory requisite is missing, then this becomes the reason for the invalidity of the transaction.
Captions
The established requirements for the written form of contracts may be supplemented both by legislative acts and by agreement of the parties. For example, the need to seal the contract with seals is generally established by agreement of the parties, but may also be contained in legal acts. Signatures of the parties to the transaction or their authorized persons are the mandatory requisites of any document.
If a citizen who completes a transaction cannot personally affix his signature in connection with the presence of illness, physical disabilities, illiteracy, then for this he is done by the bailiff. This fact must be certified by a notary or other official who is entitled to perform this action (for example, the administration of a medical institution, if the transaction participant is in hospital). In this case, the reason is indicated for which the participant cannot put his signature on his own. The signature of the bailor refers to him, and not to the party to the transaction. Therefore, it cannot serve as an analogue of the handwritten signature of the latter.
Thanks to the information transfer system available today, documents can be certified by facsimile copies, digital signatures and other analogs of signatures of transaction participants. The option is allowed if it is provided by law or by agreement of the parties. This is stated in paragraph 2 of Art. 160 Civil Code. For example, the procedure for applying EDS is established by a special law. Its use is recognized as equivalent to a handwritten signature, which is made on paper. If there are disagreements between the parties to the contract drawn up with the use of EDS, regulation is carried out through special rules.
Electronic document exchange
In accordance with paragraph 2 of Art. 434 of the Civil Code, an agreement concluded by exchanging a document by e-mail is considered concluded in writing. The document is in electronic form. According to Art. 3 of the Law "On EDS" No. 63-FZ, an electronic document is a document containing information in electronic digital form. Only such a document has legal value, in which there is information significant from a legal point of view, that is, defining the subjects, subject and content of legal relations appearing on the basis of the contract. According to paragraph 2 of Art. 434 of the Civil Code of the Russian Federation, the recognition of this document, the determination of its authenticity are associated with specific processes, as well as software, which should ensure the correct establishment of the fact that the document comes from the participant in the transaction.
Notarial certification
In cases provided by law, a notarized written form may be concluded. This right also arises when the parties have come to an appropriate agreement. The need to conclude a contract with mandatory certification by a notary is not common. This is usually a transaction in relation to property. For example, a notary public must certify an agreement on the assignment of a claim, if one is based on a contract concluded with a notary, an annuity contract. In addition, power of attorney is thus certified.
Notarization allows the interested party to more easily prove their case, as the content of the contract, its place and time of conclusion, intentions of the parties and other circumstances that are officially fixed by the notary seal are considered reliable and obvious. Given the significance of the notarial form, the legislator changed the simple written form of the agreements, which are aimed at alienating the share in the authorized capital of the LLC, to the notarial one. This is stated in paragraph 10 of Art. 21 of the Law "On LLC" No. 14-FZ.
Notary certification is carried out by private and public notaries, according to the “Fundamentals of Legislation on Notaries”. If this specialist is not present in the village, then the corresponding actions are performed by officials of the executive branch who have the necessary powers for this. In different cases, these may be commanders of the HF, chief physicians of hospitals, captains of ships, and so on. This is stated in paragraph 3 of Art. 185 Civil Code.
Invalid transaction
If the notarial form of the transaction is not observed in cases where it is necessary, the transaction shall be deemed invalid. Sometimes the lack of notarization is carried out by a court decision. It also happens that one of the parties fulfills all the conditions of the relevant transaction, while the other evades this action. Then the court can recognize the agreement as valid at the request of the party that implements it. In this case, registration with a notary is no longer required. However, the evader must compensate the other party for the losses incurred. This is stated in paragraph 4 of Art. 165 of the Civil Code.
The nullity of a transaction due to not having it certified by a notary, as well as the possibility of using a court decision, can only be when the contract must be certified by a notary on the basis of a direct indication of the law. If it was not necessary (for example, in the case of a written form of an employment contract), then according to paragraphs. 2 p. 2 Article 163 of the Civil Code may not be a void transaction, but imperfect. This will happen if, despite the optional nature, the parties agreed to certify the contract with a notary.
Conclusion
When using the written form of the contract, it is necessary to provide all the necessary points established by law, and the agreement reached. For example, if you do not specify the essential conditions, then this will invalidate the agreement. The same thing will happen if the notary does not certify the contract in the case when this procedure is established by law.