Commercial law. Types of commercial contracts (lecture notes)

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Commercial law. Types of commercial contracts (lecture notes)

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LECTURE No. 50. Types of commercial contracts

An agreement is an agreement between two or more persons on the establishment, modification and termination of civil rights and obligations. The contract is the main type of transactions. Significance of contracts:

1) this is one of the grounds for the emergence of civil rights and obligations;

2) they mediate the movement of objects of civil rights from one person to another;

3) allow you to identify the true needs for certain goods. The basic principle of concluding a contract is freedom of contract. The parties are free to conclude or not to conclude an agreement. The parties may conclude an agreement provided for by law, as well as not directly provided for by law, but not prohibited by it. The parties have the right to conclude a mixed contract, i.e. containing elements of different types of contracts. The parties are free to choose the terms of the contract. The content of the contract refers to the mutual rights and obligations of the parties. The terms of the contract are essential, ordinary and accidental. The essential conditions include the condition that determines the subject of the contract, as well as the conditions that are defined as such in the law or determined by the parties themselves. The usual terms of the contract are established by the legislation dispositively. Random terms of the contract are typical for this individual contract.

All contracts can be classified:

1) at the time of the emergence of rights and obligations:

a) concessionary - are concluded by mutual agreement of the parties;

b) real - for the conclusion it is necessary to transfer the subject of the contract;

2) unilateral and bilateral (multilateral);

3) paid and non-paid;

4) for the subject in whose favor the contract is concluded:

a) contracts in favor of their participants;

b) contracts in favor of third parties;

5) depending on the legal focus:

a) main;

b) preliminary;

c) a public contract;

6) accession agreement.

In accordance with Art. 426 of the Civil Code of the Russian Federation, a public contract is a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it (retail trade, transportation by public transport , communication services, energy supply, medical, hotel services, etc.)

A special type of contract is a commercial contract. The peculiarity of a commercial contract is that such a contract:

1) has a special subject composition: its parties are not all persons, but only those who are engaged in trade (commercial) activities;

2) has a special purpose - the establishment, modification or termination of civil rights and obligations in the field of trade or trade facilitation.

All commercial contracts can be classified into the following:

1) implementation;

2) intermediary;

3) trade facilitation agreements;

4) organizational.

Implementation agreements regulate relations in the field of delivery of goods from producers to consumers for business and economic needs. These include contracts:

1) wholesale purchase and sale, according to which one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money (price) for it (Article 454 of the Civil Code of the Russian Federation );

2) delivery, according to which the supplier-seller, carrying out entrepreneurial activities, undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or for other purposes not related to personal, family, household and other similar use ( article 506 GKRF);

3) barter, according to which each of the parties undertakes to transfer one commodity to the ownership of the other party in exchange for another;

4) commodity credit, which provides for the obligation of one party to provide the other party with things defined by generic characteristics;

5) contracting of agricultural products, according to which the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the purveyor - the person who purchases such products for processing or sale (Article 535 of the Civil Code of the Russian Federation).

Intermediary contracts govern the relationship for the commission by one person in the interests of another person of actions regarding the goods. These contracts include:

1) contract of agency, according to which one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal);

2) a commission agreement, according to which one party (commission agent) undertakes, on behalf of the other party (commission principal), for a fee, to make one or more transactions on its own behalf, but at the expense of the principal;

3) consignment agreement;

4) a commercial concession (franchise) agreement, under which one party (right holder) undertakes to grant the other party (user) for a fee for a period or without specifying a period the right to use in the user's business activities a set of exclusive rights belonging to the right holder, including the right to a company name. the name and (or) commercial designation of the right holder, for protected commercial information, as well as for other objects of exclusive rights provided for by the agreement - a trademark, a service mark (Article 1027 of the Civil Code of the Russian Federation), etc.

Trade facilitation contracts are contracts for:

1) creation of advertising products;

2) provision of advertising and information services;

3) implementation of marketing research;

4) storage of goods, according to which the goods warehouse (custodian) undertakes, for a fee, to store the goods transferred to it by the goods owner (bailor) and return these goods in good condition.

Organizational contracts have as their goal the organization of the trading process. These include:

1) agreements of state authorities and local self-government with manufacturing and trading firms on the organization of trade;

2) contracts of executive authorities on interregional supplies of goods;

3) contracts for the exclusive sale of goods;

4) agreements on the organization of activities for the sale of goods.

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