Коммерческое право. Предмет договора (самое важное)

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Коммерческое право. Предмет договора (самое важное)

Lecture notes, cheat sheets

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42. SUBJECT OF THE CONTRACT

Subject - this is the main legal relationship implemented in the contract, an essential condition, without which the contract is considered invalid.

The subject of a commercial contract should reflect the reciprocity and compensatory nature of relations regarding commercial activities.

Requirements for the goods under the supply agreement:

▪ goods defined by generic characteristics, or individually defined goods, and even goods that do not yet exist at the time of conclusion of the contract;

▪ the product must have a monetary value;

▪ the product must be produced or purchased by the supplier;

▪ the goods must be exempt from the rights of third parties: this means any rights of third parties in relation to the goods that prevent or may prevent the buyer from fully exercising in relation to the purchased goods the rights of the owner to own, use and dispose of the property belonging to him (clause 1 Article 460 of the Civil Code); an example of claims of third parties to a product could be the filing of a vindication claim (Article 301 of the Civil Code);

▪ applicability in the social environment;

▪ turnover capacity;

▪ the goods have a name and are defined in quantitative terms (the quantity of goods to be transferred to the buyer is provided in the appropriate units of measurement or in monetary terms) - these are the essential terms of the contract, therefore they must be defined in the contract or determinable based on its content. Failure to comply with these requirements means that the contract is not concluded due to failure to reach an agreement on all essential terms of the contract;

▪ documentary legitimation (standards and certificates).

In the first situation, the documents were drawn up simultaneously with the contract and became its integral part. In the second case, the contract is not valid until the name and quantity of the goods are entered into it, although the parties often mistakenly believe that this contract is still valid from the moment of signing or prepayment.

When determining the quantity of goods, the parties agree on the unit of measurement of the quantity and the procedure for its establishment. The quantity is determined by units of weight, volume, length, in pieces, etc. If the unit of measure is weight, then the text of the contract must indicate: net (weight of goods without containers and packaging) or gross (weight of goods with containers and packaging). When determining the quantity, non-standard units of measurement (bag, pack, bottle, etc. with an exact indication of their weight or volume) can be used.

For some types of goods (for example, fruits and vegetables) it is impossible to determine its exact quantity, since it changes during transportation, then the clauses "option" (for example, 100 ± 10%) or "about" apply.

Main characteristicsthat determine the subject of the supply contract are quality, quantity, assortment, packaging and labeling.

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