The procedure for concluding so-called binding contracts. Big encyclopedia of oil and gas

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The obligatory conclusion of the contract forms part general regimeestablished by antitrust laws. So, in Art. 11 of the Law of the RSFSR On Competition and Restriction of Monopolistic Activities in Commodity Markets, dedicated to the functions of the Committee, provides, in particular, for its ability, within the framework of its main activities, to give economic entities a binding order to conclude an agreement with another economic entity.

Differentiation of cases mandatory opinion contracts on the basis of their subject composition is important not only when such an obligation arises by virtue of the law, but also when voluntarily assuming the corresponding obligation. And in the latter situation (when concluding a preliminary contract), we are talking about the obligation to conclude an agreement by an accepted person in relation to a future counterparty. This obligation should be distinguished from the same obligation to conclude a contract that a potential counterparty undertakes to a third party. From such an agreement, the right to demand the conclusion of an agreement with a subcontractor from another person does not arise even if it is specified in the agency agreement.

The cashier is appointed to the position with the obligatory conclusion of an agreement on full individual financial responsibility and is dismissed by order of the director of the enterprise in agreement with the chief accountant.

However, the rules providing for the mandatory conclusion of contracts cannot be interpreted in a general manner. For this reason, for example, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized that the supply of goods for state needs in itself is not a sufficient reason to compel a party to conclude an agreement.

The fundamental difference of modern economic relations is manifested not only in the reduction of cases of mandatory conclusion of contracts, but also in the fact that acts providing for such binding are addressed to persons who sell goods, perform work or provide services, leaving an opportunity for those who apply for goods, works or services , enter into a contractual relationship of their own free will. The obligation of these latter arises only in cases when they themselves assume it, in particular by concluding a preliminary agreement.

In the absence of the position of a warehouse manager, his duties can be assigned to any employee with his consent with the obligatory conclusion of a liability agreement. A storekeeper can be dismissed from his position only after a complete inventory of inventory items and their transfer under an act.

If the position of a warehouse manager is absent in the organization's staffing table, then his duties can be assigned to any employee of the organization with his consent with the obligatory conclusion of an agreement on individual material liability. The storekeeper can be dismissed from his position only after a complete inventory of inventory items and their transfer according to an act approved by the head of the organization.

If the position of the warehouse manager is absent in the organization's staffing table, then his duties can be assigned to any employee of the organization with his consent and with the obligatory conclusion of an agreement on individual material liability. A storekeeper can be released from his position only after a complete inventory of inventory items and their transfer according to an act approved by the head of the enterprise.

As has been repeatedly noted, in our country, for a long time, the situation in civil circulation was directly opposite to that, which is enshrined in the new Code: the compulsory conclusion of contracts was the general rule, and that which fit into the framework of freedom of contract was only an exception. It means that only the conclusion of agreements in relations with the participation of citizens could be considered really free.

In organizations where the staffing table does not provide for the position of a cashier, his duties may be assigned to another full-time employee, including the chief accountant, but with his consent and with the obligatory conclusion of an agreement on full liability.

To coordinate the participants in the operation of machines, to strengthen the methods of cost accounting, rational property relations a fundamentally new system of contracts has been developed. The basis for the obligatory conclusion of contracts is the sectoral, glavkovsky and trust plans for the coverage of repair and maintenance of specific machines and complexes. The composition of the parties to the agreements is changing radically. In relation to higher organizations, the trust performs the function of a customer, draws up a draft contract with a preliminary determination of the estimated cost of work. In the case of intra-trust self-financing, the contract fully prepares the mechanization department. Developed by detailed recommendations on the content of contracts. Industry normative acts regulate the procedure for considering controversial issues when drawing up contracts, as well as claims of the parties.

The exceptions to the principle of contractual freedom in question are usually expressed in the fact that the COP or other law includes general rate, which itself provides the relevant party in the contract with the right to demand its conclusion. At the same time, there are also cases when in the normative order only the possibility of introducing a procedure for the mandatory conclusion of contracts is allowed. They provide for the right of the Government of the Russian Federation to necessary cases to introduce a regime of compulsory conclusion of state contracts for the supply of products for federal state needs, extending this regime to federal state enterprises.

A standard agreement on full liability must be concluded with the head of the warehouse (storekeeper). In the absence of the position of a warehouse manager, his duties can be assigned to any employee of the organization with his consent and with the obligatory conclusion of an agreement on material liability. A storekeeper can be dismissed from his position only after a complete inventory of inventory items and their transfer under an act.

The manager of the warehouse (storekeeper), who is a materially responsible person, bears material responsibility for the values \u200b\u200bin warehouses, storerooms and individual sites. If in the staffing table of the organization there is no position of the warehouse manager, then his duties can be assigned to any employee of the enterprise with his consent with the obligatory conclusion of an agreement on material liability.

Perhaps, the principles of state order as an actual order of the state are most fully expressed in Hungary, although this term is not used in the country. This applies primarily to solutions central authorities for the construction of large national economic facilities for which the state announces a competition and places an order. According to the accepted order, the procedure for the obligatory conclusion of contracts between enterprises was approved.

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As you know, in accordance with the basic principles of civil legislation, equality of participants in the relations regulated by it, inviolability of property, freedom of contract are recognized (clause 1 of article 2 of the Civil Code). Freedom of contract means that citizens and legal entities are free to conclude a contract, that is, each of them, at their own discretion and without coercion, can express their will to enter into a contract with a given partner and agree on the terms of this contract with him. However, legislation or a voluntarily accepted obligation may provide for cases when one or both parties are obliged to enter into an agreement. When executing such agreements, the rules for concluding a mandatory agreement or so-called binding agreements apply. Can be cited as examples the following types binding contracts:

A public contract that must be concluded with any commercial organization that has responded to a public offer, which, by the nature of its activities, must sell goods at retail, perform work on a household contract, provide transportation services common use and so on. In case of evasion from the conclusion of the contract of the party obliged to participate in the public contract, the other party has the right to apply to the court with a demand to compel the conclusion of the contract; -

establishment of the preemptive right to conclude an agreement:

a) for participants in common shared ownership of the purchase of the sold share by one of the co-owners (Article 216 of the Civil Code);

b) for the parties to the agreement on joint activities on the purchase of the sold share by one of the parties to the agreement;

c) for participants in a limited liability partnership for the purchase of an alienated share (Article 80 of the Civil Code);

d) for shareholders to acquire valuable papers (Article 16 of the Law "On Joint Stock Companies");

e) for a lessee who has regularly performed obligations under the contract, to renew the contract for new term (Article 557 of the Civil Code);

f) for the state to acquire an alienated subsoil use right (part thereof) and (or) a participation interest (block of shares) in a legal entity that has a subsoil use right (part 3 of article 71 of the Law "On Subsoil and Subsoil Use"). -

granting the right to demand the conclusion of an agreement:

a) shareholders for the repurchase of placed shares by the company (Article 27 of the Law "On Joint Stock Companies"); -

the imposition of the obligation to conclude an insurance contract is stipulated in a number of laws on compulsory insurance.

In the above cases, the law defines the future potential parties to the contract with whom the owners or rightholders intending to alienate their shares in common property or property law, should first of all enter into negotiations on the conclusion of contracts, i.e. offer them to acquire the alienated shares (make offers). These offers can be considered, depending on the number of addressees-holders of priority rights, an individual offer (when the addressee acts in the singular) or a closed public offer (when there are several persons to whom the offer is sent, for example, several participants in a common joint ownership, a share in the right to which should be sold to all these participants). Acceptance of these proposals depends on the will of the addressees-holders of pre-emptive rights to conclude contracts, and in the event of their refusal to accept, contracts for the alienation of shares may be concluded with third parties. The procedure for concluding contracts for the acquisition of alienated shares is established for certain types of contracts as follows:

When selling a share in the right common property the seller is obliged to notify the other participants in the shared ownership in writing of the intention to sell his share. To conclude an agreement, a common property participant may express his will in relation to the purchase of this share in the right to real estate within one month, and in relation to other property - within ten days from the date of receipt of the seller's notification. If at the same time shares in the right of common shared ownership of both immovable and movable property are alienated, then it must be assumed that the period for purchase for a participant in the common property-acquirer is one month. The same rules apply when a share is alienated by a participant in a joint venture agreement (clause 4 of article 230 of the Civil Code).

Other rules are established for the exercise of the right of preemptive purchase of a share alienated by a participant in a limited liability partnership. (The procedure for the alienation of a share by a participant in a partnership, see Lecture 9). Addendum to the Law "On Subsoil and Subsoil Use" introduced part 3 of Art. 71 of the following content: “In order to preserve and strengthen the resource and energy basis of the country's economy in newly concluded and also concluded subsoil use contracts, the state has a priority right over the other party to the contract or participants of a legal entity that has the right to subsoil use and other persons to acquire the alienated subsoil use right (its part) and (or) participation interest (block of shares) in a legal entity that has the right to subsurface use, on terms no worse than those offered by other buyers ”. This norm gives the state (the Republic of Kazakhstan) the preemptive right to conclude an agreement with the alienator on the purchase of a participation interest (block of shares) in a legal entity that has the right to subsoil use, with priority not only to outsiders, but also to the participants (shareholders) of this legal entity and its counterparties (for example, consortium members). As can be seen from the content of this rule, the state implements this priority right, i.e.

Enters into an agreement on the purchase of a share with the alienator after the conditions proposed by other buyers (participants, shareholders, consortium partners of the subsoil user) become known, and provided that the state acquires the share on the same or even more favorable terms for the alienator. If the state considers the terms of purchase of the alienated share proposed by other buyers unacceptable, then it may waive the right of preemptive purchase.

The preferential right over other persons to conclude a property lease agreement for a new term is granted to an employer who has properly performed his duties. To conclude such an agreement, the tenant, before the end of the initial agreement, is obliged to notify the lessor in writing about the desire to conclude an agreement for a new term (Article 557 of the Civil Code). However, in the absence of the lessor's intention to continue to lease the subject of the contract, the tenant cannot compel him to conclude a contract for a new term. Thus, the implementation of the preemptive right to conclude a property lease agreement for a new term depends on the will of not only the tenant, but also the lessor. In cases where the lessor intends to continue using the property by renting it out, and the tenant wishes to renew the contract for a new period, this contract must be concluded at the suggestion of the tenant. 3.

In some cases, the law gives a certain person the right to demand the conclusion of a contract in him. In particular, such a right is provided for a shareholder who has the right to demand from the company the compulsory redemption of placed shares if he voted against the adoption of decisions by the general meeting on the company's reorganization, amendments and additions to the company's charter and the conclusion of a major transaction by the company (Article 27 of the Law “ On joint stock companies "). To conclude an agreement on the repurchase of shares, a shareholder, within thirty days from the date of the decision by the general meeting, shall send to the company a demand for the repurchase of his shares by means of a written application. Within thirty days from the date of receipt said statement the company is obliged to repurchase the shares, i.e. enter into a contract. four.

The conclusion of an agreement in the form of imposing an obligation is established in the implementation of compulsory insurance, when the policyholder is obliged to conclude an agreement with the insurer on the conditions prescribed by legislative acts governing given view insurance. For example, the Law "On compulsory insurance of civil liability of owners of objects whose activities are associated with the danger of causing harm to third parties" in order to ensure the protection of the property interests of third parties, whose life, health and (or) property may be harmed as a result of an accident at object, the activities of which are associated with the danger of causing harm to third parties, the owners of the objects are obliged to conclude a compulsory liability insurance contract. The policyholder is given the freedom to choose an insurer, who has no right to refuse to conclude a compulsory liability insurance contract for the owner of the facility. The basis for the conclusion of the contract is the application of the policyholder. The contract is concluded in writing by issuing an insurance policy. The same procedure is established for the conclusion of contracts of compulsory insurance of civil liability of vehicle owners, a carrier to passengers.

The features of concluding a compulsory insurance contract are the rights granted: -

the person in whose favor, in accordance with legislative acts, must be carried out compulsory insurance, - the right to demand judicial procedure insurance from the person entrusted with this obligation; -

to the insured - the right to demand, in court, the compulsion of the insurer, who evades insurance, to conclude an insurance contract on the conditions stipulated by legislative acts.

The considered cases of the conclusion of contracts are necessarily divided into two types: 1) contracts, the conclusion of which is mandatory for the providers; 2) contracts, the conclusion of which is mandatory for acceptors. The first group includes public contracts, compulsory insurance contracts. The second group of agreements includes agreements concluded by holders of preemptive rights, an agreement on the compulsory redemption of shares at the request of a shareholder. In Art. 399 Civil Code established uniform terms for making an acceptance for both types of contracts with a duration of thirty days. Acceptance on other terms (minutes of disagreements to the draft agreement) may be submitted for consideration by the court within 3 days from the date of receipt of such notification or the expiration of the acceptance period. Depending on which party draws up the protocol of disagreements, it submits the dispute to the court, whose decision on the controversial terms of the contract is binding on the parties. In this case, the concluded agreement must reflect those points that are indicated in the court decision. In practice, this is done by drafting a new text of the agreement after the court's decision. It must be assumed that the rules about judicial authorization pre-contractual disputes under Art. Art. 399 and 400 GK relate mainly to relations between legal entities. In particular, in this order, an agreement must be concluded for the fulfillment of a state order, which is binding on a state enterprise. An enterprise does not have the right to refuse to conclude an agreement as a buyer or seller of goods (works, services) if the conclusion of these agreements is provided for by an order from the state.

As has already been noted many times, in our country for a long time the situation in civil circulation was exactly the opposite of that enshrined in the new Code: the compulsory conclusion of contracts was the general rule, and that which fit into the framework of freedom of contract was only an exception. It means that only the conclusion of contracts in relations with the participation of citizens ... In all others, the free conclusion of contracts was possible mainly only in extremely rare cases when the subject of the contract was goods, works and services removed from the planned distribution and for this reason, sold at the discretion of the manufacturer of goods (supply and household organization), enterprises performing work or providing services , and etc.

The question of the relationship between rule and exception was the subject of litigation. So, in one of the considered arbitration courts cases were about entrusting joint-stock company obligations to conclude a contract for the operation of the access road adjacent to the station. The defendant, refusing to conclude a contract, in court referred to the principle of "freedom of contract". However, the Presidium of the Supreme Arbitration Court of the Russian Federation did not agree with this. He drew attention to the fact that in accordance with the Charter railways USSR the relationship between the railway and enterprises, institutions, organizations that have railway sidings is regulated by an agreement on the operation of the sidings. At the same time, the Rules for the operation of railway sidings impose on the railway the obligation to develop a draft contract, and on the branch owners - to conclude it. With reference to Art. 87 of the Charter of Railways and art. 421 Civil Code the unfoundedness of the defendant's evasion from the conclusion of the contract was emphasized.

However, the rules providing for the mandatory conclusion of contracts cannot be interpreted in a general way. For this reason, for example, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized that in itself supply of goods for government needs is not a sufficient reason to compel a party to conclude a contract. IN this case there was no order delivered to the supplier.

Exceptions to the rules on contractual freedom, which allow the possibility of requiring the conclusion of a contract without fail, in the Civil Code itself are mainly associated with special designs of preliminary and public contracts ... One of the differences between these two constructions is that in the first case, either of the parties can in principle use the right to demand coercion to conclude a contract, and in the second, only one of them is the counterparty. commercial organization which satisfies the provisions of art. 426 Civil Code featured. Accordingly, direct references to art. 445 Civil Code contained in art. 426 Civil Code ("Public Agreement") and art. 429 of the Civil Code (« Preliminary agreement »).

Thus, whenever the GC calls certain types (types) of contracts are public, this means that they are subject to the regime established in art. 445 Civil Code.

A special case provided in clause 2 art. 846 Civil Code dedicated to bank account agreement ... Although such a contract does not belong to the public, in the cases specified in this article, the client in the manner prescribed for public contracts art. 445 Civil Code , has the right to demand the conclusion of an agreement if bank (another credit institution that has the appropriate license) unreasonably evaded this. As for preliminary agreements, it is of decisive importance that the features of a particular agreement correspond to the characteristics specified in clause 1. art. 429 of the Civil Code.

The fundamental difference between modern economic relations manifests itself not only in the reduction of cases of mandatory conclusion of contracts, but also in the fact that the acts providing for such an obligation are addressed to persons who sell goods, perform work or provide services, leaving the opportunity for those who apply for goods, works or services to enter into contractual relationship of their own free will. Commitment the latter arises only in cases when they themselves take it upon themselves, in particular, by concluding a preliminary agreement.

Another equally fundamental feature of the corresponding situation is expressed in the fact that according to general rule we are talking about an abstract obligation to conclude a contract, established in a normative manner. An indispensable element of the planned distribution system - an administrative act with its conditions, which provided for who, with whom and about what should conclude contracts - is a thing of the past. It means that terms of an agreement are now determined by the parties independently within a more or less broad framework established by law.

The remnants of the planned distribution in a greatly altered form have been preserved in the latest acts only in an extremely narrow area. One of these exceptions is deliveries gas. The gas supply rules establish the procedure under which the Russian Joint Stock Company society Based on gas production capabilities and consumer applications, Gazprom compiles a gas balance in Russia for coming year... It is approved by the Ministry of Fuel and Energy of the Russian Federation in agreement with the Ministry of Economy Russian Federation... Then, Gazprom jointly with Rosgazifikatsiya joint-stock company determines the annual gas volumes that can be supplied to consumers in their regions by gas and oil production, gas and oil refining organizations and gas transmission systems, and brings them to the attention of suppliers and gas distribution organizations. The volume of gas determined in this way should serve as the basis for the conclusion of supply contracts.

ConsultantPlus: note.

In a planned economy, the obligation to conclude a contract often arose due to such legal fact , as the existence between the relevant parties of the established (long-term) economic ties. Now such a foundation has been preserved only in certain areas of the economy. This refers, in particular, to the Resolution of the Supreme Soviet of the Russian Federation of April 4, 1992 "On measures to ensure the supply of products (goods) to the regions Far north and areas equated to them ”. The specified act considers the duration of the existence of economic ties between them to be a sufficient basis for the statement of relevant requirements for suppliers. At the same time, arbitration practice has always recognized that organizations that themselves do not produce goods for a specified area, but are engaged in the resale of goods with subsequent re-shipment to buyers located in such areas, can also demand the conclusion of contracts with them.

In accordance with clause 4.5 approved by the Decree The President RF of July 22, 1994 of the Basic Provisions of the State Program privatization state and municipal enterprises in the Russian Federation after July 1, 1994 to tenants of buildings, structures, structures, premises, including built-in - attached non-residential premises in residential buildings, as well as land plots under privatized enterprises located in rent or actual possession, use of these enterprises, the right to demand a conclusion with them is granted sales contracts relevant objects.

The Law of November 23, 1994 "On State Material Reserve" provided that suppliers who occupy a dominant position in the commodity the market , as well as enterprises - monopolists and enterprises, in the amount production of which the state defense order exceeds 70 percent, is not entitled to refuse to conclude contracts (agreements) for the supply of material assets to the state reserve. And if such suppliers nevertheless refuse to conclude contracts (agreements) for the supply of material assets to the state reserve or they will not receive a response within 20 days to sentence conclude an agreement (contract), the state customer (its territorial bodies) may apply to the arbitration court with a claim for compulsion to conclude a contract (agreement).

The obligatory conclusion of an agreement forms part of the general regime established by antimonopoly legislation. So, in Art. 12 of the RSFSR Law "On competition and limitation monopolistic activity on commodity markets ”, dedicated to the functions of the Committee, provides, in particular, for its ability, within the framework of its main activities, to give economic entities a binding order to conclude an agreement with another economic entity.

Law of July 19, 1995 “On natural monopolies »Establishes a general rule in accordance with which the subjects of natural monopolies, ie. legal entities , engaged in production (sale) of goods in conditions of natural monopoly, shall not have the right to refuse to conclude an agreement with individual consumers for the production (sale) of goods in respect of which regulation is applied in accordance with the specified Law, if the natural monopoly entity has the opportunity to produce (sell) such goods. It should be assumed that there is a general presumption by virtue of which the natural monopolist has this opportunity. The burden of proving otherwise lies with him.

Specific guidance is contained in a number of lower-level acts. Thus, the Decree of the Government of the Russian Federation of May 3, 1994 "On improving the functioning and development of the air traffic management system in the Russian Federation" established that enterprises that provide air navigation services, as occupying a dominant position in this area, have no right to refuse to conclude in the prescribed manner government contracts.

IN individual cases the statutory obligation to conclude a contract is limited in a certain way, including through the use of a conditional formula. This kind of model is applied, in particular, by the Law "On the supply of products for federal state needs" dated November 10, 1994. It recognized that suppliers who have a monopoly on the production of certain types of products have no right to refuse to conclude an agreement, if only placement ordering does not entail losses from their production. This convention, of course, also applies to the subsidiary obligation - to pay sanctions established for violations of the noted obligation (meaning a fine in the amount of the cost of products under the draft contract). A similar situation was provided for by clause 5.9 of the Decree of the President of the Russian Federation of December 24, 1993 “On state program privatization of state and municipal enterprises in the Russian Federation ”. We are talking about individuals and legal entities who became the owners of privatized state and municipal enterprises at an auction or tender. They are granted the right to conclude long-term (for a period of at least 15 years) lease agreements for non-residential premises, buildings and structures occupied by enterprises that were not included in the acquired property , as well as purchase in own such premises immediately after entry into force enterprise sale and purchase agreement ... Accordingly, the arbitration courts satisfy the claims for coercion to conclude the relevant agreements emanating from the purchasers of the enterprise.

Differentiation of the obligatory regime for concluding a contract, taking into account various circumstances, as well as the introduction of a conditional obligation and thereby creating a multilayer regime are characteristic of a special type of orders. Thus, the Law of November 24, 1995 "On the State Defense Order" provides that if there are no applicants for participation in the tender for the placement of a defense order, as well as if the lead contractor has not been determined based on the results of the said tender ( contractor), a defense order is mandatory for acceptance by state unitary enterprises , as well as other organizations that occupy a dominant position in the product market or have a monopoly on the production of products (works, services) for a defense order, provided that such an order ensures the level of profitability of the production of these types of products (works, services) established by the Government of the Russian Federation.

As a general rule, a defense order is placed on competitive basis... A special regime applies to works to maintain mobilization capacities. In this case, the competition will not be held. This is not necessary, since the order itself is obligatory if placing the order does not entail any losses from its fulfillment.

The obligation to enter into contracts is enshrined in the Code itself and outside of public and preliminary contracts. Such cases, in particular, are provided for in relation to supply and contract relations. So, item 1 art. 527 of the Civil Code , dedicated to a state contract for the supply of goods for state needs, imposes the obligation to conclude it on the state customer who placed orders accepted by the supplier (executor). By virtue of art. 765 Civil Code the same rule applies when performing contract work for state needs.

The Code is sometimes limited to stating that the corresponding obligation - to conclude an agreement at the request of the other party - is valid only if there is a special indication in this regard in the law. So, for example, having established the obligation of the state customer to conclude an agreement with the supplier (executor), clause 2 art. 527 of the Civil Code provided for the possibility of providing in the law a case in which the conclusion of such a contract is also mandatory for the supplier (executor). The Code itself contains the terms of this obligation, in particular, that the state customer will have to reimburse the supplier for all losses incurred in connection with the performance of the state contract. The rule on the obligation to conclude a contract and the right to compensation for losses is established in relation to the contractor - a party to government contract for the performance of contract work ... This obligation turns into an unconditional one if the role of the supplier (contractor) is played by a state-owned enterprise, the operating mode of which in turnover turns out to be the most severe.

The situations under consideration should not be confused with those in which the obligation to conclude an agreement binds the participants in the turnover with the state - the sovereign. Where applicable, this is an obligation outside the scope of civil law. Consequently, its violation can only entail administrative (financial) liability. The fact that such obligations are mentioned precisely in the Civil Code does not change their nature. Accordingly, in situations in which a citizen or entity the obligation to insure (as policyholders) life, health or property of other persons or civil liability to other persons at their own expense or at the expense of interested parties (meaning compulsory insurance , referred to in Art. 637, paragraph 1 of Art. Art. 840, 935, 936 Civil Code), action art. 445 Civil Code does not apply, if only because the state (subject of the Federation, municipality) does not become a party to a contract concluded in pursuance of such an obligation. It means that, for example, formalizing relations with the insurer the agreement provided for in art. 936 Civil Code , is carried out in the usual manner, despite the fact that the insurance itself is mandatory for the insurer.

Differentiation of cases of obligatory conclusion of contracts on the basis of their subject composition is important not only when such an obligation arises by virtue of the law, but also when voluntarily assuming the corresponding obligation. And in the latter situation (when concluding a preliminary contract), we are talking about the obligation to conclude an agreement by an accepted person in relation to a future counterparty. This obligation should be distinguished from the same obligation to conclude a contract that a potential counterparty undertakes to a third party. The latter case is highlighted in art. 1009 Civil Code ("Subagent Agreement"). In clause 1 of this article, we are talking about the possibility of the agent imposing an obligation to the principal to conclude a sub-agent agreement, including on the proposed last conditions... From such an agreement, the right to demand the conclusion of an agreement with a subcontractor from another person does not arise even if it is specified in agency agreement.

Finally, one should not confuse relations that arise from a contract, the obligation to conclude which is provided for by law, with non-contractual obligations that bind the addressees of the corresponding administrative (planning) act. An example is compulsory state insurance , which is carried out directly on the basis of laws and other legal acts ( art. 969 Civil Code), or storage on judicial sequestration, which is directly generated judgment (art. 926 Civil Code).

Within the framework of general question on the conclusion of an agreement without fail in clause 1 art. 445 Civil Code two situations are clearly distinguished, depending on who exactly acts as the provider: whether the one on whom the obligation to conclude the contract lies, or his future counterparty.

For the sake of clarity, the essence of these situations can be considered on the example of energy supplying organizations, for which the conclusion of an agreement with a consumer is mandatory.

In the first situation offer (the draft contract) is developed by the one for whom the conclusion of the contract is not obligatory (in the given example - the energy consumer). The consumer sends the offer developed by him to the future counterparty - the energy supplying organization. The latter is given the opportunity, within 30 days, depending on its decision, to send a notice of unconditional acceptance , on refusal of acceptance, on consent to conclude an agreement, but on different conditions. In the latter case, a protocol of disagreements is drawn up, which is a document in which a position different from the one specified in the offer is recorded under separate conditions, as well as additional conditions proposed by the acceptor. If the offeror has received a notice of acceptance together with a protocol of disagreements, he may submit the disagreements that have arisen to the court. He is also given 30 days for this.

In the second situation, the offer (draft contract) comes from the party for whom the conclusion of the contract is mandatory (in the example under consideration, the energy supplying organization). The consumer can, but is not obliged to send a notice of acceptance of the offer also within 30 days. Here, there may be the same options as in the first situation: the offer is fully accepted, or there is a full or partial refusal of acceptance. If the party for whom the conclusion of the contract is mandatory (energy supply organization) receives a notice containing an acceptance with a protocol of disagreements, it does not have the right, as in the first situation, but the obligation to notify the other party within 30 days. Here, two notification options are already possible: the protocol of disagreements in the wording of the other party - the consumer, is either accepted or rejected. If a notice of rejection of the protocol of disagreements is received, the acceptor (consumer) has the right to transfer the disagreements that have arisen to the court within 30 days. Consent is equivalent to non-receipt in specified period notifications about the refusal of the addressee of the offer from acceptance.

In all these cases, 30-day periods apply only if not otherwise provided by law, another legal act, or otherwise agreed by the parties themselves.

The need to comply with the established in art. 445 Civil Code order is confirmed by the fact that whenever it comes to the obligation to conclude an agreement (see, in particular, clause 3 art. 426 Civil Code on the impossibility of refusing to conclude a public contract, clause 5 art. 429 of the Civil Code , dedicated to the preliminary agreement, and paragraph 2 of Art. 846, dedicated to the refusal to conclude a bank account agreement), the corresponding article contains a reference to the procedure established by Art. 445.

In practice, the question may arise about the consequences of missing the 30-day deadline, which was discussed above. IN similar cases the terms are established in the interests of the person who, during the relevant period, can perform a certain action. Thus, the other party is bound during the same period. Consequently, missing the deadline in this case entails the loss of the indicated opportunities by the relevant party, and for the counterparty - release from the obligation. However, if the counterparty is ready to neglect the missing deadline by the party, he must confirm this. An example is the 30-day time limit for submitting a dispute to a court. If the party passes it, the court will be able to accept the corresponding demand from it only if the counterparty expresses its consent to this. The conclusion made in relation to the presentation of an offer by a party for which the conclusion of an agreement is not obligatory corresponds to the prevailing arbitration practice... He, however, is somewhat at odds with it when it comes to the situation that arises in cases in which the offer is made by a party obliged to conclude an agreement at the request of the counterparty. Arbitrage practice proceeds from the fact that the consent of the counterparty to the consideration of the case if the 30-day period is missed is then only necessary if the discrepancy concerns essential conditions... Meanwhile, in our opinion, any condition included in the offer or in the protocol of disagreements, by virtue of art. 432 of the Civil Code is essential (see about this Art. 2 Ch. 4).

Deserves special attention art. 507 of the Civil Code ... For the first time, a special type of obligation associated with evasion of agreeing on the terms of the contract. This obligation applies to delivery in any cases of disagreement between the parties when concluding a contract.

It is about the fact that by virtue of art. 507 of the Civil Code the receipt by one of the parties of an offer from its potential counterparty to agree on the terms on which there are disagreements, obliges the party that received such an offer to either take measures to agree on the terms, or declare in writing its refusal to conclude an agreement. The party must carry out these actions within a certain period. It is 30 days, unless otherwise provided by law or agreed by the parties. In cases where the specified obligation is not fulfilled, a certain sanction occurs. It consists in the fact that the party that evaded sending an appropriate response is obliged to compensate the other for losses caused by its evasion from the agreed terms of the contract. Although the legislator's motives are generally clear, the introduction of such a structure still raises some doubts. They are primarily associated with the fact that in this way a certain restriction of freedom contracts. The corresponding norm can put in a particularly difficult situation the participants in the turnover, who are forced to conclude numerous contracts by the nature of their activities. It is highly controversial to equate an untimely report on one's reaction to the received proposal to remove the discrepancy with a tort, especially since the obligation to compensate for losses is associated with the very fact of “failure to report”, regardless of its reasons. Finally, it is doubtful that of all the contracts, for some reason, this is done only for delivery.

Vitryansky V.V. Contract law. 2006