General procedure for concluding a civil contract.

When a civil contract is concluded

A civil agreement (CLA), or GPA, is an agreement between the parties to a transaction, drawn up in accordance with the Civil Code. Article 421 of the Civil Code allows it to be executed on any terms that suit the parties, represented in various combinations:

• legal entities;
• physical (including those registered as individual entrepreneurs and tax payers);
• legal and physical (including those registered as individual entrepreneurs and tax payers).

GPA refers to bilateral transactions (Article 153, paragraph 1 of Article 154, paragraph 1 of Article 420 of the Civil Code of the Russian Federation). In the economic turnover of legal entities, the conclusion of a GPC agreement with an individual is used when registering:

• various types of contract;
• provision of services (author's order).

The legislation of the Russian Federation allows employers to attract individuals on the basis of civil law agreements if they carry out other paid orders not provided for by the TD. Income under such agreements is accrued according to special rules; when registering, many nuances must be taken into account, and a special procedure for concluding must be observed so that they are not reclassified as labor income. There are differences between an employment agreement and a civil law agreement.

Legislation (and) does not prohibit employers from entering into a GPA with full-time employees. If an employee of an organization becomes a party, when concluding a civil contract, the employer is obliged to comply with the basic requirements for this document:

• its subject is different from the main duties of the TD;
• relations are regulated by the Civil Code;
• performed during free time from performing primary duties;
• There are no labor signs in the agreement.

In a situation where the selection of a permanent employee for a full-time position is difficult for a long time, it is permitted to conclude a GPC agreement in which no signs of employment are seen. In special cases, current legislation negatively answers the question of whether the conclusion of civil contracts for certain types of volumes is allowed. For example, executors for the DGPH cannot be entrusted with maintaining military records (Government Decree No. 719 of November 27, 2006, Methodological recommendations for maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation on July 11, 2017).

Draw up any agreement for free using a special agreement designer from ConsultantPlus.

Iskusstvoed.ru – network resource about culture and art

Views: 8,284

Conclusion of civil contracts

The procedure and procedure for concluding contracts is discussed in Chapter. 28 Civil Code. An agreement is considered concluded if the parties have reached an agreement in the required form on all its essential terms, and in relation to a real agreement - when one of them also transferred the relevant property to the other. An agreement subject to state registration is considered concluded from the moment of its registration (clause 1 of Article 432 of the Civil Code).

The achievement of an agreement regarding the conclusion of a contract is usually indicated by the receipt by the person who sent the proposal to conclude a contract - an offer , a response on acceptance of the proposal from the person to whom the proposal was addressed - acceptance .

An offer is recognized only as a proposal addressed to one or several specific persons, containing the essential terms of the contract and expressing the intention of the offeror to consider himself to have entered into an agreement with the addressee who will accept the offer (acceptor). If an offer is addressed to an indefinite number of persons, it is called public. In this case, the public offer must contain all the essential terms of the agreement, from which the will of the person is clearly visible to conclude an agreement with anyone who responds to the offer.

The principle of irrevocability of an offer: an offer received by the addressee cannot be withdrawn within the period established for its acceptance, unless otherwise specified in the offer itself or follows from the essence of the offer or the situation in which it was made. There may be conditions under which an offer can be revoked. In particular, a response indicating consent to conclude an agreement on terms other than those proposed in the offer does not constitute acceptance. Such a response is recognized as a refusal of acceptance and at the same time a new offer.

An offer can be expressed orally or in writing, with or without a deadline for response. The party to whom the offer is made can either accept or reject it. The form of acceptance may also be different. As a rule, acceptance by default is not permitted. Acceptance must be complete and unconditional. The performance by the person who received the offer within the period established for its acceptance of actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or not specified in the offer.

According to Art. 439 of the Civil Code, if the notice of withdrawal of acceptance was received by the person who sent the offer earlier than the acceptance or simultaneously with it, the acceptance is considered not received. In the event that a timely sent notice of acceptance is received late, the acceptance is not considered late unless the offeror immediately notifies the other party (acceptor) of the late receipt of acceptance (clause 1 of Article 442 of the Civil Code).

Along with the principle of freedom of contract, according to which the parties have the right to determine for themselves whether to enter into or refrain from entering into contractual relations, civil legislation in some cases provides for a mandatory procedure for concluding a contract (Article 445 of the Civil Code). Moreover, if a party for whom the conclusion of an agreement is obligatory evades its conclusion, the other party has the right to go to court with a demand to compel the conclusion of an agreement and to compensate for losses caused by an unjustified refusal or evasion from concluding an agreement (clause 4 of Article 445 of the Civil Code). For example, when executing a government order or opening a bank account (Article 846 of the Civil Code), the conclusion of an agreement is mandatory for the party to whom the offer (draft agreement) was sent, or for the party who sent the offer. In both cases, acceptance of the offer on other terms is documented in a protocol of disagreements. A thirty-day period is provided for the execution of this protocol, as well as for its rejection by the opposing party (from the date of receipt of the offer or protocol of disagreements). Any party that has completed the pre-contractual procedures provided for in Art. 445 of the Civil Code, has the right to submit disagreements to the court.

The conclusion of contracts can be carried out at auctions held in the form of auctions or competitions. The contract is concluded with the person who wins the auction. The winner at the auction is the person who offered the highest price, and in the competition - the person who, according to the conclusion of the competition commission, pre-appointed by the auction organizer, offered the best conditions (clause 4 of Article 447 of the Civil Code). Currently, contract auctions (tenders) for construction are used, as well as competitions with investment conditions for the sale of federally owned shares of open joint-stock companies.

Termination of a civil contract

There are the following grounds for termination of a civil contract:

1) termination of a civil contract by agreement of the parties (unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract). An agreement to terminate a contract is drawn up in the same way as a contract, unless otherwise follows from the law, other legal acts, contract or customs (clause 1 of Article 452 of the Civil Code of the Russian Federation). Since a civil contract is concluded in writing, it is necessary to draw up a written agreement to terminate the contract;

2) at the request of one of the parties, a civil contract may be terminated in court (by a court decision). It's possible:

– in case of a significant violation of the contract by the other party. A violation is considered significant if it causes such damage to the other party that it is substantially deprived of what it had the right to count on when concluding the contract;

– in other cases provided for by the Civil Code of the Russian Federation, other laws or agreement.

3) in connection with a unilateral refusal to fulfill obligations under a civil contract. In this case, one party must notify the other of its refusal to perform the contract. For this purpose, a corresponding notification is sent. The contract is terminated from the moment the other party receives such notice. In case of unilateral refusal of the contract (execution of the contract) in whole or in part, if such refusal is allowed, the contract is considered terminated.

4) termination of a civil contract due to a significant change in circumstances.

A change in the circumstances from which the parties proceeded when concluding the contract is considered significant when they have changed so much that if the parties could have reasonably foreseen this, the contract would not have been concluded at all or would have been concluded on significantly different terms. If the parties have not agreed to bring the contract into compliance with changed circumstances or to terminate it, the contract may be terminated if the following conditions are simultaneously met:

– at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;

– the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence that was required of it by the nature of the contract and the conditions of turnover;

- execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;

– it does not follow from customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

5) in connection with the expiration of the civil contract and the fulfillment by the parties of all obligations under this contract.

At the same time, the validity period of a civil law contract can be extended under the conditions determined by the parties. As a rule, in this case, the parties enter into an additional agreement to the civil contract to extend its validity. In case of extension of the contract, its validity does not terminate on the date originally specified in the contract.

(Article 425 of the Civil Code of the Russian Federation).

LiveJournal

Conditions of a civil law agreement that distinguish it from a labor agreement

There are a number of differences between a civil law agreement and an employment agreement.

Use for free a review of judicial practice on concluding work contracts in ConsultantPlus.