Commercial law. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets
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Commercial law. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Table of contents

1. SUBJECT, METHOD AND PRINCIPLES OF COMMERCIAL LAW

Commercial Law is a complex institution of civil law, consisting of legal norms governing trade relations in the field of business.

Commercial law is based on the same methods of regulation and principles as civil law.

Civil law regulates property and related non-property relations.

The subject regulation of commercial law is trading activity (traffic) as a type of entrepreneurial activity to promote goods from manufacturers through wholesale and retail trade organizations to consumers on the basis of civil law transactions. Merchandising includes delivery, transportation of goods, loading and unloading operations, storage of goods, acquisition of the trade assortment, sorting, packaging, preparation of goods for sale, retail sales. These operations in their totality form interconnected links in the technological chain of commodity circulation.

The movement of goods from the sphere of production to the retail trade network takes place in two forms: transit and warehouse. Under in transit This form of commodity circulation is understood when goods from the sphere of production are sent to retail organizations, bypassing the warehouses of wholesale organizations. The warehouse form of commodity circulation is characterized by various links, including the wholesale warehouse link, intermediary organizations, the sales floor of the store, etc.

In this way, commodity market is a set of relations formed by the movement of goods.

method legal regulation of any branch of law is a set of techniques and ways of influencing relations regulated by this branch.

Commercial law is characterized by the following principles:

1. The principle of economic freedom.

2. The principle of recognition of diversity and legal equality of private, state, municipal and other forms of property and their equal protection.

3. The principle of a single economic space.

4. The principle of maintaining competition.

5. The principle of balancing the private interests of entrepreneurs and the public interests of the state and society as a whole.

6. The principle of systematic profit making.

7. The principle of legality.

8. The principle of initiative and integrity of the entrepreneur.

9. The principle of freedom of contract.

10. The principle of information security.

11. The principle of protecting the rights and interests of an entrepreneur.

2. COMMERCIAL LAW

Trade Law consists of a set of generally binding legal acts issued by public authorities, in the prescribed form and in compliance with a certain procedure, which contain the rules on the movement of goods from producer to consumer.

The main law of the Russian Federation, which has the highest legal force, is The Constitution of the Russian Federation, which contains fundamental principles for a market economy, which have become the principles of commercial law.

Laws and other legal acts adopted on the territory of the Russian Federation must not contradict the Constitution of the Russian Federation.

The second most important legal act regulating trade relations is Civil Code of the Russian Federation (Civil Code).

Classification of federal lawsregulating commercial activities:

1) laws establishing state requirements for an entrepreneur and his business, for example, the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs", the Federal Law "On Licensing Certain Types of Activities", the Federal Law "On Accounting", the Federal Law "On the Sanitary and Epidemiological Welfare of the Population", Federal Law "On the use of cash registers in the implementation of cash settlements and (or) settlements using payment cards", Federal Law "On Special Economic Zones in the Russian Federation";

2) laws that determine the legal regime of individual objects of commercial turnover: the Civil Code of the Russian Federation, the Federal Law "On Mortgage Securities", etc.;

3) laws that form the basic rules for the structure and functioning of the commodity market: the Federal Law "On Protection of Competition", the Law of the Russian Federation "On Commodity Exchanges and Exchange Trade";

4) laws establishing the legal status and functioning of commercial organizations: the Federal Law "On Joint Stock Companies", the Federal Law "On Limited Liability Companies", the Federal Law "On Production Cooperatives", the Federal Law "On Insolvency (Bankruptcy)", the Federal Law "On the Development of Small and Medium-Sized Businesses" in the Russian Federation", etc.

An integral part of the legal system of the Russian Federation are generally recognized principles and norms of international law and international treaties of the Russian Federation, both bilateral (for example, on trade) and multilateral (for example, the UN Vienna Convention on Contracts for the International Sale of 1980, the UNIDROIT Convention on International Financial Leasing (Ottawa, 1988), etc.).

The Civil Code prevents possible conflicts between international and national Russian legislation, resolving the issue in favor of the international one.

By-laws: decrees of the President of the Russian Federation, resolutions of the Government of the Russian Federation, regulations of federal executive bodies.

3. NON-LEGISLATIVE SOURCES

In connection with the formation of many large companies in a market economy, the role of corporate law, which is formed from regulations adopted by business entities themselves (mainly business companies) in order to regulate their own organizational structure and business activities. Corporate acts include: the charter, regulations on the general meeting of participants (shareholders), on the board of directors, on the executive body of the business company; regulations on the branch and department, etc.

In cases where the entrepreneurial activity of the subjects is not regulated by regulatory legal acts and the contract, another source of law can be applied - business custom. According to Art. 5 GK business practice a rule of conduct that has developed and is widely used in any area of business activity, not provided for by law, is recognized, regardless of whether it is recorded in any document. The custom of business turnover should not conflict with the terms of the agreement concluded between the parties.

Business practices are often formulated in documents of authoritative public organizations (for example, various model contracts published by the International Chamber of Commerce, settlement rules, INCOTERMS rules).

4. STATE CONTROL OVER COMPLIANCE WITH THE RULES OF COMMERCIAL ACTIVITY

State control in the field of trade is a set of norms, methods and means used by government agencies in order to create optimal conditions for commercial activities and comply with the necessary rules in the commodity market.

State regulation of commercial activities is based on a combination of direct (administrative) and indirect (economic) forms of regulation.

К forms of direct state regulation include state registration, fulfillment of obligations to pay taxes and non-tax payments; licensing, the procedure for agreeing with regional executive bodies on the location of enterprises and the nature of selected types of entrepreneurial activity, taking into account environmental, demographic and other consequences, compliance with environmental management, sanitation and hygiene, compliance with the requirements for the formation of the cost of products, accounting, standards, product certification and services, unity of measurements, ensuring the quality and safety of goods, works and services, nature management, environmental legislation; uniform accounting, statistical and other information reporting; consumer protection legislation; pricing procedure; fire safety, etc.

Indirect forms of state regulation imply all kinds of state support for the most priority areas and forms of economic development by creating special economic zones, holding competitions and auctions for the most successful companies, providing preferential loans, subsidies, subsidies, preferential treatment for small businesses, etc.

Basically, these relations are included in the subject of other branches of law. Such relations include tax, currency and budgetary control, state control in the financial market, transport control (at checkpoints for vehicles across the State Border of the Russian Federation, as well as at stationary and mobile points of the Russian Federation), state control (supervision) by the administrations of sea, river ports and civil aviation inspection services of airports in the territories of these ports, customs control, immigration control, license control, state metrological control, etc.

5. PROTECTION AGAINST MISACTS OF CONTROL AUTHORITIES

All ways of protection can be divided into jurisdictional (appeal to the competent authorities) and non-jurisdictional (without recourse to any authority). The Federal Law "On the protection of the rights of legal entities and individual entrepreneurs in the course of state control (supervision)" defines state control (supervision) and the principles of protection of rights.

State control (supervision) - this is a verification of compliance by a legal entity or individual entrepreneur, when carrying out their activities, with the mandatory requirements for goods (work, services) established by law.

Introduced restrictions when carrying out control activities for officialswho are not entitled to:

▪ check compliance with mandatory requirements that are not within the competence of the state control (supervision) body on behalf of which officials act;

▪ carry out scheduled inspections in the absence of officials or employees of the inspected entrepreneurs or their representatives during control activities;

▪ demand the presentation of documents, information, samples (samples) of products, if they are not objects of control measures and do not relate to the subject of inspection, as well as seize original documents that are not related to the subject of inspection;

▪ demand samples (samples) of products for carrying out their research (testing), examination without issuing an act on the selection of samples (samples) of products in the prescribed form and in quantities exceeding the norms established by state standards or other regulatory documents;

▪ disseminate information that constitutes a secret protected by law and obtained as a result of control measures, except for cases provided for by the legislation of the Russian Federation;

▪ exceed the established deadlines for control measures.

Obligations of officials of state control (supervision) bodies when carrying out control measures:

1) timely and fully exercise the powers granted in accordance with the legislation of the Russian Federation to prevent, detect and suppress violations of mandatory requirements;

2) carry out control measures on the basis of and in strict accordance with the orders of state control (supervision) bodies on the implementation of control measures;

3) visit the facilities (territories and premises) of entrepreneurs for the purpose of carrying out control measures only during the performance of official duties upon presentation of an official ID and an order of state control (supervision) bodies on carrying out control measures;

4) to prove the legality of their actions when they are appealed by entrepreneurs in the manner prescribed by the legislation of the Russian Federation.

6. INDIVIDUAL ENTREPRENEUR

To acquire the status of an individual entrepreneur, a citizen must have the following signs of a subject of civil law:

▪ legal capacity (the ability to have civil rights and bear responsibilities) and legal capacity (the ability to acquire and exercise civil rights through one’s actions, create civil responsibilities for oneself and fulfill them);

▪ have a place of residence (the place where the citizen lives permanently or primarily). By law, a citizen can have only one place of residence, according to Art. 2 of the Law of the Russian Federation "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation." Place of residence is a residential building, apartment, office premises, specialized residential premises (dormitory, shelter hotels, homes for single elderly people, etc.), as well as other residential premises in which a citizen permanently or primarily resides as the owner under a lease (sublease) agreement or on other grounds provided for by the legislation of the Russian Federation.

In case of emancipation according to Art. 27 of the Civil Code, a citizen who has reached the age of 16 may engage in entrepreneurial activities.

In Art. 11 of the Tax Code of the Russian Federation states that individual entrepreneurs - These are individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, as well as private notaries, private security guards, private detectives.

State registration of an individual entrepreneur is carried out at the place of his residence and has a constitutive value.

Procedure for state registration individual entrepreneurs, the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" is established. It includes:

▪ state registration of entrepreneurs;

▪ registering them with tax authorities as taxpayers;

▪ assignment of codes according to the all-Russian classifier of types of economic activity;

▪ registration in extra-budgetary funds as an insurer.

State registration of entrepreneurs, as well as peasant (farm) enterprises, is carried out by the tax authorities of the Russian Federation.

Farms operate without forming a legal entity, but they are subject to the rules of civil law on the activities of legal entities.

Powers of an individual entrepreneur: opening settlement accounts in banks and conducting non-cash payments, obtaining loans as a small business entity, creating economic partnerships (as you know, citizens who are not entrepreneurs cannot create partnerships), hiring workers in unlimited quantities.

7. RESPONSIBILITY OF THE INDIVIDUAL ENTREPRENEUR. TERMINATION OF ITS ACTIVITIES

Liability for violation of business obligations higher than liability for violation of general civil obligations. The rules on the property liability of individual entrepreneurs are enshrined in Art. 24 of the Civil Code, according to which a citizen is liable for his obligations with all his property, with the exception of property, which, in accordance with the law, cannot be levied.

The entrepreneur can be released from liability only in the presence of force majeure circumstances (force majeure). Thus, running a business as a sole trader is more risky.

Claims against an individual entrepreneur are presented at the place of his residence.

Termination of the activity of an individual entrepreneur can occur both voluntarily and involuntarily (by a court decision).

This legal fact is confirmed by the Certificate of state registration of the termination of entrepreneurial activity by an individual.

An individual entrepreneur may be declared insolvent (bankrupt) by a court decision if he is unable to satisfy the claims of creditors related to his entrepreneurial activities.

Claims of creditors to the bankrupt are satisfied at the expense of the property belonging to him, which may be foreclosed, in the order of priority established by paragraph 3 of Art. 25 GK. The list of this property is established by civil procedural legislation.

In these cases, state registration becomes invalid from the moment the court decision or sentence comes into force, and an entry in the Unified State Register of Individual Entrepreneurs is made on the basis of a copy of the court decision.

8. COMMERCIAL ORGANIZATIONS

Legal entity according to Art. 48 of the Civil Code, an organization is recognized that has separate property in ownership, economic management or operational management, is liable for its obligations with this property and can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court.

Legal entities can be formed in the form of commercial and non-commercial organizations. Commercial organizations are created to conduct business and, accordingly, make a profit. In commercial organizations, the founders have property rights to the capital of established firms, in contrast to non-profit organizations (with the exception of institutions and consumer cooperatives).

9. SEPARATED AND NON-SEPARATED SUBDIVISIONS

Company division - this is an organizational element of its structure, which does not have the status of a legal entity, which implements individual internal and (or) external functions of the company.

Among the divisions of commercial organizations, two main types are distinguished in terms of participation in economic turnover - isolated (representative office, branch, branch) and non-isolated (management, department, department).

In Art. 11 of the Tax Code states that separate subdivision organization - any subdivision territorially isolated from it, at the location of which stationary workplaces are equipped. A separate subdivision of an organization is recognized as such regardless of whether or not its creation is reflected in the constituent or other organizational and administrative documents of the organization, and on the powers vested in the specified subdivision. At the same time, the workplace is considered stationary if it is created for a period of more than one month.

The most common departments whose activities are not intended for external contacts of the firm.

Department - this is a non-separate subdivision of a legal entity, which is located at the location of the legal entity.

Creation offices indicates that the company, pursuing the goals of decentralization of management, begins to separate the activities of any unit, imposing on it the performance of separate external functions and giving it more independence, including formalizing the rights of the head of the department with a power of attorney. But since the branch is located at the location of the legal entity, it is not a branch.

Representation is a separate subdivision of a legal entity located outside its location; represents the interests of a legal entity and protects them (Article 55 of the Civil Code).

Branch located outside the location of the legal entity and performs all of its functions or part of them, including the functions of representation (Article 55 of the Civil Code).

A representative office and a branch are united by the following features:

▪ territorial and property isolation;

▪ when creating a branch or representative office, the organization transfers to them part of the property, which is reflected on a separate balance sheet of the created division. In this case, the property remains the property of the legal entity;

▪ a branch or representative office can act in commercial transactions only on behalf of a legal entity in accordance with the internal regulations (regulations) of this legal entity;

▪ a branch or representative office is designated in the charter of the legal entity and acts in accordance with the powers specified in the power of attorney addressed to its head;

▪ the function of representing the interests of a legal entity and protecting them.

10. OBJECTS OF CIVIL RIGHTS OF AN ENTREPRENEUR

Objects The civil rights of an entrepreneur are tangible and intangible benefits, about which the subjects of civil law enter into legal relations with each other.

The object of property rights of an entrepreneur can be any property that is suitable for the role of a product or means of production, is used to make a profit; is of a value nature.

However, according to Art. 129 of the Civil Code, not all objects of civil rights can be freely alienated and transferred from one person to another, that is, freely circulated. Therefore, things are divided into:

a) free in circulation;

b) limited in circulation;

at) withdrawn from circulation by direct instruction in the law.

Only transferable or limited transferable (for example, foreign currency) things can act as objects of an entrepreneur's property rights.

Restriction on turnover certain things are established by law. This means that the types of things that can belong only to certain participants in civil circulation and are allowed to be traded only on the basis of special permits issued by the relevant competent authorities are determined in the manner prescribed by law.

Withdrawn from civil circulation are natural resources, with the exception of land plots, as well as specially protected natural areas, national parks, state reserves, wildlife sanctuaries, unique objects of nature.

Purchase and sale, pledge and other transactions that entail or may entail the alienation of forest fund plots are not allowed.

The general classification of things is given in Ch. 6 of the Civil Code and includes such categories as:

1) immovable and movable things (this division is important for choosing the method of processing the transaction);

2) divisible, i.e. things that do not lose their purpose as a result of the division (for example, wine in a bottle, fuel, materials), and indivisible (e.g. car, refrigerator). This division allows you to more accurately determine how to divide the common property into shares, and thereby change the legal regime of ownership;

3) difficult things, i.e. a set of things (for example, an enterprise, a furniture set, an airplane), and simple things (this division allows you to more accurately determine the terms of the contract for the supply of goods);

4) main things and accessories (for example, TV and remote control, lock and key);

5) consumable things, i.e., those that lose their consumer properties during the production process (for example, cosmetics, gasoline), and unconsumable things, i.e., used over a long period and only deteriorate (depreciate) with use (for example, a book). This division is important for choosing the appropriate type of contract: say, you cannot rent consumable property;

6) individually specific things, i.e. things that have only their own characteristics (for example, the ice drift "Arktika", a house with a number and street), and things defined by common generic characteristics, such as weight, number (for example, money).

11. MONEY (CURRENCY) AND SECURITIES

Money - this is an object of civil rights, determined by generic characteristics, i.e. they are interchangeable things.

In Art. 140 of the Civil Code, it is established that throughout the territory of the Russian Federation, the legal tender, obligatory for acceptance at face value, is the ruble. The cases, procedure and conditions for the use of foreign currency on the territory of the Russian Federation are determined by federal law.

In paragraph 1 of Art. 142 of the Civil Code contains the classic definition security as a strictly formal document certifying property rights, the exercise or transfer of which is possible only upon presentation of this document.

In the definition given by the Civil Code, the following distinctive features can be distinguished signs of securities:

1) these are documents that are valuable not in themselves, like material objects, but because of the right to some value contained in them;

2) these documents are drawn up in compliance with the established form and mandatory details, the absence of at least one of which (or its incorrect indication) makes the paper void (clause 2 of article 144 of the Civil Code);

3) certification of property rights (including the right to demand the payment of a certain amount of money, the transfer of certain property);

4) the exercise or transfer of property rights is possible only upon presentation of these documents;

5) by virtue of paragraph 2 of Art. 147 of the Civil Code, it is unacceptable to refuse to execute a security with reference to the absence of the grounds on which it was issued, or to its invalidity. Consequently, the obligated person must execute the security, making sure only that it contains the necessary details, and its owner may not check the grounds on which it was issued, fully trusting its formal features. This property of a security is called public credibility.

A security is a special commodity that circulates on a special market - the securities market, but has neither material nor monetary consumer value, that is, it is neither a physical product nor a service.

12. REAL ESTATE. WORKS AND SERVICES. ACCOUNTS RECEIVABLE. DEBTS

К Real Estate according to Art. 130 and 132 of the Civil Code include, firstly, objects that cannot be moved without disproportionate damage to their purpose: land plots, subsoil plots (i.e., part of the earth’s crust located below the soil layer and the bottom of water bodies, extending to depths accessible to geological study and development), isolated water bodies, forests, perennial plantations, buildings, structures and other objects firmly connected with the land; secondly, things that need special state registration: air and sea vessels, inland navigation vessels, space objects, enterprises as property complexes. Also to this list should be added objects of construction in progress, with the exception of those that can be moved without disproportionate damage to their purpose.

A large group of laws regulates real estate, including the Land Code of the Russian Federation, the Water Code of the Russian Federation, the Federal Law "On State Registration of Rights to Real Estate and Transactions with It", the Federal Law "On the State Real Estate Cadastre", etc.

Company. The transition to the creation of retail trade enterprises is associated not only with the marketing of consumer demand, the transition to the conclusion of public contracts (retail purchase and sale), but also with the identification of the optimal type of trading structure.

Works and services are rather succinctly defined in the tax legislation.

Work activity is recognized, the results of which have a material expression and can be implemented to meet the needs of the organization and (or) individuals.

service activity is recognized, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity.

Receivables - these are the rights of claim belonging to the creditor for the unfulfilled monetary obligations of his counterparties to pay for the goods actually delivered, work performed or services rendered (Decree of the Government of the Russian Federation "On additional measures to improve procedures for foreclosing the property of organizations").

In Art. 128 of the Civil Code, among the objects of civil rights, debts are not named among other types of property.

Business debt is called accounts payable. As a legal category, accounts payable is a special part of the organization’s property, which is the subject of obligatory relations between the organization and its creditors. The entrepreneur owns and uses accounts payable, but is obliged to return them to creditors. Accounts payable, together with equity capital, are part of the organization's property.

13. CONCEPT OF THE PRODUCT

Consider the concept of goods in relation to commercial turnover.

It is operations with goods in the process of purchase and sale transactions that become a source of systematic profit for many entrepreneurs. Commodity relations require competent approaches to the category "goods" from their participants.

In a market economy, a commodity is everything that can be the object of paid transactions. Works, services, land plots, enterprises, and even labor force have acquired the status of goods (for example, among entrepreneurs, deals on the so-called "hiring of workers" are common, which is untenable from a legal point of view).

From an economic point of view, a commodity is a product that has a use value and is produced for sale or exchange.

In Russian legislation there is no single interpretation of the concept of "goods".

In the Civil Code, in relation to a sales contract, a commodity is any thing if it is produced or acquired and meets the criteria of negotiability (Article 129). That is, according to the Civil Code, things withdrawn from circulation are not goods, since they are not subject to sale or exchange. To this we can add that goods are things that are transferred in sales transactions.

Antimonopoly legislation (Article 4 of the Federal Law "On Competition") defines a product as an object of civil rights (including work, a service, including a financial service) intended for sale, exchange or other introduction into circulation.

Goods according to Art. 38 of the Tax Code recognizes any property sold or intended for sale.

For accounting purposes, goods are part of working capital inventories (including finished products and goods), receivables, financial investments, cash.

Summarizing the above, we can give the following definition of the concept of "goods" - this is a part of the organization's inventory, acquired or received from other legal (individual) entities and intended for sale or resale without additional processing.

14. MEANS OF INDIVIDUALIZATION OF A COMMERCIAL ORGANIZATION

Means of individualization of a commercial organization in accordance with Art. 54 and 1027 of the Civil Code is a trade name and commercial designation.

Brand name. The right to a company is recognized as the exclusive (i.e. monopoly) subjective civil right of its owner, according to which the company name must be new and different from those already in use.

A trade name is subject to special state registration when creating a commercial organization.

The verbal designation of the company is built according to certain rules and consists of relatively independent parts:

1) main (contains an indication of the legal form of a commercial organization: a general partnership, a limited partnership, a production cooperative, a state-owned enterprise, LLC, CJSC, OJSC),

2) auxiliary (contains a special name, number or other designation to distinguish it from other organizations).

Commercial designation - this is a special object of intellectual property that has the following features (Article 1538 of the Civil Code): it is used by legal entities engaged in entrepreneurial activities (including non-profit organizations that are granted the right to carry out such activities in accordance with the law by their constituent documents), and also individual entrepreneurs; use for the individualization of trade, industrial and other enterprises belonging to the copyright holder (Article 132 of the Civil Code); commercial designations are not subject to mandatory inclusion in the constituent documents and the Unified State Register of Legal Entities; a commercial designation can be used by the right holder to individualize one or more enterprises. For the individualization of one enterprise, two or more commercial designations cannot be used simultaneously; the entrepreneur has the exclusive right to the commercial designation.

15. MEANS OF INDIVIDUALIZATION OF PRODUCTS, GOODS, WORKS OR SERVICES

The means of individualization of products, goods, works or services are a trademark, a service mark and an appellation of origin.

According to Art. 1477 GK trademark - this is a designation that serves to individualize the goods of legal entities or individual entrepreneurs, for which the exclusive right is recognized, certified by a trademark certificate (Article 1481 of the Civil Code).

Service mark - this is a designation that serves to individualize the work performed by legal entities or individual entrepreneurs or the services they provide.

The condition for granting legal protection for a trademark (service mark) is its novelty. A trademark can be verbal, figurative, three-dimensional and combined.

Consumer protection legislation indicates the need product labeling, denoting a verbal description of the product, placed on the product or its packaging and including the brand name of the manufacturer, its address, name of the product, a link to standards (including certification), a list of product properties and a number of other data.

Registered trademark marking is the letter "R" in a circle, indicating that the designation used is a registered mark.

Name of place of origin of the goods, to which legal protection is granted, is a designation that represents or contains a modern or historical, official or unofficial, full or abbreviated name of a country, urban or rural settlement, locality or other geographical feature, as well as a designation derived from such a name and which has become known in as a result of its use in relation to a product, the special properties of which are solely or mainly determined by the natural conditions and (or) human factors characteristic of a given geographical object. The exclusive right (Articles 1229 and 1519 of the Civil Code) of the producers of such goods may be recognized to use this name.

A designation is not recognized as an appellation of origin of goods, although it represents or contains the name of a geographical object, but has come into general use in the Russian Federation as a designation of a certain type of product, not associated with the place of its production (Article 1516 of the Civil Code).

to specific featured such a geographical object should include:

a) an indication that the product originates from a specific country, locality, area (including taking into account historical names);

b) connection of the product designation with its special properties, which are determined by natural conditions and (or) social factors characteristic of a given geographical object;

at) recognition and steady demand from consumers;

d) socially significant nature of the name.

16. THE CONCEPT OF THE COMMODITY MARKET

Market functions:

▪ commercial, since traders make a profit from their activities;

▪ pricing, which is expressed in the formation of prices for goods under the influence of supply and demand;

▪ informational - the market provides information about producers and traders, about goods and commodity transactions;

▪ regulatory - the market determines the types and volumes of orders, the quality and implementation of performance results;

▪ communication - the market allows you to establish contacts between entrepreneurs on conditions of openness, equality, regularity, fame and in established generally accepted forms, and a more developed market is characterized by various forms of cooperation at exchanges, exhibitions, fairs, competitions, presentations, briefings, conferences;

▪ sociocultural, since the use of marketing in business increases the cultural level of the entrepreneur who uses scientific data in his work;

▪ sanitizing - the most enterprising and efficient workers win, while the unscrupulous and inefficient ones leave the market.

Market - an institution or mechanism that brings together buyers (demanders) and sellers (suppliers) of a particular product. The interaction of commodity market participants is provided by its infrastructure (transport and storage companies, information agencies, consulting firms, etc.), but the quality of this interaction depends not only on the level of infrastructure development, but also on the degree of state influence on this market.

By law commodity market is the sphere of circulation of goods that do not have substitutes, or interchangeable goods on the territory of the Russian Federation or part of it, determined on the basis of the economic ability of the buyer to purchase goods in the relevant territory and the absence of this opportunity outside it ").

In NK market of goods (works, services) the sphere of circulation of these goods (works, services) is recognized, determined on the basis of the ability of the buyer (seller) to really and without significant additional costs to purchase (sell) the goods (work, service) in the territory of the Russian Federation closest to the buyer (seller) or outside it .

The commodity market has many characteristics: product features (for example, the market for laser printers), geographical boundaries (for example, the Moscow market), subject composition, the volume of commodity resources, etc.

Organized Market - this is a sphere of relations according to certain rules, mainly formulated by the entity that organized it, for example, a commodity exchange, an auction house, a fair. To informal markets all other areas of trade that do not meet this criterion can be attributed.

17. STRUCTURE AND INFRASTRUCTURE OF THE COMMODITY MARKET

Commodity market structure It is made up of those entities that directly conduct trading activities, participate as intermediaries in the promotion of goods from manufacturers to consumers: manufacturers of goods, wholesalers, including intermediaries, organizations, consumer organizations and retail trade organizations.

These entities form a chain of successive links in order to most effectively promote the product from the manufacturer to the consumer. But the competitive market environment brings to life new structural elements of the commodity market.

For example, for manufacturing organizations, the main goal of activity has become not just the manufacture of goods, but their successful sale and an increase in sources of profit. Therefore, in addition to marketing divisions, affiliated trading companies, retail stores are being created, manufacturers enter into business associations with financial organizations, and create an intermediary network.

commodity market infrastructure represented by organizations serving the sphere of commodity circulation (for example, transport, warehouse, financial, etc.). These are representatives of different markets.

The infrastructure determines what conditions are created for trade.

If the infrastructure is not developed, then, as a rule, this fact is an obstacle for investors, despite the high potential of the resource base, cheap labor, etc.

Russian infrastructure problems include: the low level of so-called "business services", which include information support, consulting, marketing research, management services to bring enterprises out of a crisis, etc.; for example, there is no unified federal system for providing information to market participants about the characteristics of a particular region, about manufacturers of goods, their production potential, the availability of stocks of finished goods, about customer requests, about new developments of commercial products, about popular trademarks, although these problems are partially solved wholesale fairs; lack of confidence of entrepreneurs in the effect of educational services in the field of business; low quality of transport services, including the problems of monopolization of railway transport; lack of transport terminals that carry out the transportation and processing of goods, which leads to an increase in transport costs, delivery times and, finally, to an increase in the risk of damage to goods; warehouse service is short of warehouse securities; the packaging industry is not developed, which affects the small share of goods sold in packaged and packaged form; violation of competition on the basis of protectionism of local authorities to the so-called "local" entrepreneurs.

18. MARKETS OF PERFECT AND IMPERFECT COMPETITION. PROTECTION OF COMPETITION

The characteristics of a perfect market are:

▪ the conditions of competition are the same for all sellers and buyers, there are no preferences of a spatial, administrative, personal or temporal nature;

▪ free entry and exit both in the market of producers (sellers) and in the market of consumers (buyers);

▪ all participants in trade transactions act on economic principles;

▪ transparency of the market and its participants: sellers and buyers have the opportunity to have a complete overview of the market, obtain sufficient information about all participants and the circumstances of transactions (prices, discounts, quality of goods, terms of delivery and payments);

▪ the presence of many firms, none of which can have a significant impact on the level of current prices, since each owns a small market share;

▪ availability of stocks of homogeneous goods, as well as reserves that guarantee uninterrupted trade;

▪ There are no price restrictions - price changes directly affect supply and demand, and vice versa.

Imperfect competition associated with the emergence of large economic entities (associations), which gradually conquer an increasing part of the market and begin to dominate. This situation allows them to reduce the quality and cost of products, slow down innovation, hinder competitors, etc. All this is accompanied by a process of concentration of production (concentration of a large number of labor and production volumes at large enterprises). Under these conditions, the number of commodity producers is reduced and it becomes possible to influence the market price. With imperfect competition, entry into the market and exit from the market are difficult, access to information is limited.

Federal Antimonopoly Authority exercises state control over compliance with antimonopoly legislation (regulation of competition) within its competence. Its main powers include sending orders to stop violations and (or) eliminate their consequences, to terminate or change contracts, to conclude contracts with another person, etc.; establishing the existence of a dominant position; making decisions on the imposition of fines and administrative penalties on the heads of organizations; appeal to the arbitration court with statements about violations of antimonopoly legislation; transfer of cases to tax and law enforcement agencies, participation in law-making activities, etc.

Sanctions of a civil, administrative and criminal nature are among the penalties for violations of the antimonopoly legislation.

19. THE CONCEPT OF COMPETITION UNDER RUSSIAN LEGISLATION

The Russian market is characterized by a combination of competition and natural monopolies in certain sectors of the economy. The current situation is different in that the establishment of competitive relations occurs against the background of the restructuring of natural monopolies.

Competition - rivalry of economic entities, in which the independent actions of each of them exclude or limit the ability of each of them to unilaterally influence the general conditions for the sale of goods on the relevant market.

Unfair competition, monopolistic activity and restriction of competition are recognized as violations of the competitive state.

Unfair competition - any actions of economic entities (groups of persons) that are aimed at obtaining advantages in the implementation of entrepreneurial activities, are contrary to the legislation of the Russian Federation, business practices, the requirements of integrity, reasonableness and fairness and have caused or may cause losses to competitors or have caused or may cause damage to their business reputation .

Monopolistic activity - abuse by an economic entity or a group of persons of its dominant position, agreements or concerted actions prohibited by antimonopoly legislation, as well as other actions (inaction) recognized as monopolistic activities in accordance with federal laws.

The most characteristic manifestations unfair competition how offenses can occur in certain forms prohibited by Russian law:

▪ misleading consumers regarding the nature, method and place of manufacture, consumer properties and quality of the product;

▪ dissemination of false, inaccurate or distorted information that could cause losses to another business entity or damage its business reputation;

▪ incorrect comparison by an entrepreneur of the goods produced and sold by him with the goods of other entrepreneurs;

▪ obtaining, using and disclosing scientific, technical, production or trade information, including those constituting official or commercial secrets, without the consent of its owner, if such actions are not provided for by the legislation of the Russian Federation, etc.;

▪ sale of goods with illegal use of the results of intellectual activity and equivalent means of individualization of a legal entity: products, works, services.

20. ABUSE OF AN ECONOMIC SUBJECT OF ITS DOMINANT POSITION

The growth of certain companies inevitably leads to the fact that they begin to dominate the market.

Dominant position - this is the exclusive position of an economic entity or several economic entities in the market of goods that do not have a substitute, or interchangeable goods, which gives him (them) the opportunity to exert a decisive influence on the general conditions for the circulation of goods in the relevant commodity market or hinder access to other economic entities.

The dominant position of an economic entity is characterized by the following signs:

1) an economic entity is a Russian or foreign commercial organization, their associations, non-profit organizations engaged in entrepreneurial activities, as well as an individual entrepreneur;

2) the production of goods, i.e., products of vital activity, including works and services intended for sale or exchange, and therefore a product intended for the personal needs of the subject cannot be a commodity;

3) the exclusivity of the position of an economic entity, which gives it the opportunity to influence the state of the competitive environment in the market for a particular product.

The exclusivity of the dominant position is determined by the share that an economic entity occupies in the market of a certain product. If the share of an economic entity is up to 35% in the market of a certain product, its position cannot be recognized as dominant.

If the share of an economic entity is more than 35%, but less than 65% in the market of a certain product, its position can be recognized as dominant. But such a provision is not presumed, but must be established by the antimonopoly body, and the economic entity is entered in the Register. The status of the Register is defined as informational and supervisory, i.e. in case of abuse by an economic entity, the fact of an offense will be established.

So, taking into account the above characteristics, for each economic entity and its product, its own commodity market is determined, within the boundaries of which the dominant position of the economic entity is established.

21. COMMODITY EXCHANGE

The commodity market is divided into organized (exchanges, auctions and fairs) and unorganized. Participation in each of these markets involves different goals, circumstances and conditions.

According to the Law of the Russian Federation "On Commodity Exchanges and Exchange Trade"

commodity exchange is an organization with the rights of a legal entity that forms the wholesale market by organizing and regulating exchange trading, carried out in the form of open public trading, held in a predetermined place and at a certain time according to the rules established by the exchange. The special legal capacity of the exchange lies in the fact that its activities are exclusive, that is, the exchange does not have the right to engage in activities not directly related to exchange trading. An exchange by its nature is an organization of traders who make profit from the very process of changing the owner of a product. In the infrastructure of the commodity market, commodity exchanges play a fairly multifaceted role, which is confirmed by the following functions of exchanges:

▪ organization of open public auctions;

▪ ensuring concentration of supply and demand;

▪ organization of the wholesale raw materials market,

▪ creation of the necessary trading and accounting infrastructure;

▪ optimization of commercial relations;

▪ formation of objective prices for exchange goods, starting with the creation of conditions for completing a transaction at the market price;

▪ organization of transactions of a special type (i.e. purchase and sale of real goods, forward contracts for the purchase and sale of real goods with a deferred delivery date, futures contracts for the purchase and sale of standard contracts for the supply of exchange goods, option contracts for the purchase and sale of rights to a future purchase and sale at a set price of a commodity or contracts for the supply of a commodity); ensuring maximum settlement speed; information and forecast support (for example, providing information on real prices for the main budget-forming (export) goods and price-forming goods); increase and acceleration of transactions with real goods (since in an unorganized market many conditions have to be agreed upon in each transaction, low liquidity of real goods, capital circulation is slow).

22. FEATURES OF EXCHANGE TRADING

Exchange trading is a special type of commercial transactions through exchange transactions between specially accredited participants.

An exchange transaction has special features:

▪ refers to the types of exchange transactions established in the law on commodity exchanges;

▪ represents an agreement on the purchase and sale of an exchange commodity or an exchange contract;

▪ urgency (i.e. with immediate delivery or by a certain agreed date);

▪ is carried out according to the rules of the exchange;

▪ carried out by exchange intermediaries (brokerage firms, brokerage houses, independent brokers);

▪ comes into legal force from the moment of its registration on the stock exchange.

Characteristics of the exchange commodity:

▪ turnover capacity;

▪ goods of a certain type and quality (including meat and meat products, grain, oil and petroleum products, timber and timber, cotton), as well as a standard contract and bill of lading, with the exception of real estate and intellectual property;

▪ socially significant and in greatest demand (for example, raw materials);

▪ is not a monopoly either in production or distribution;

▪ is not the final product of industrial production (since an increase or decrease in the production of finished cycle products largely depends on the will of the manufacturer, who can thereby manipulate the price); is massive;

▪ standard in quantity, i.e., offered in wholesale lots, lots of goods cannot be individualized, and in order for the goods to be quickly and repeatedly resold, a certain and constant size of the lot of goods is established on the exchange;

▪ standard in quality, for which the base variety is introduced as a single measure, a reference point with the help of which all other types are ranked according to the degree of usefulness they contain.

23. AUCTION HOUSE. AUCTION TRADING

Among the intermediary organizations that form organized markets, a special mode of activity is carried out by auction houses, formed in the organizational and legal form of a business society and having special competence for auction trading.

The main functions of auction houses are:

▪ organization of auctions as a special way of trading;

▪ formation of the auction market;

▪ ensuring concentration of supply and demand for exclusive, expensive and rare goods.

Signs of the auction trade:

1) periodically operating center of intermediary trade;

2) auctions are held in a special way according to the rules of the auction;

3) a special way of concluding a contract through making a deposit;

4) the auction transaction has signs of real execution, is a commodity, reimbursable, mutual;

5) the winner is the person who offered the highest price;

6) auction item - this is a real product that does not have mass demand, with individual properties of exclusivity, specific storage and use (for example, jewelry, furs, cattle, horses, sea fish, rare varieties of tobacco, coffee and tea).

Auctions are divided into national and international, independent and dependent.

International auction - this is an open auction, in which participants from foreign countries are allowed to participate. The distinctive feature national auction is that only representatives of one state can participate in it.

Independent auctions - These are large companies that monopolize trade in a certain type of product. They buy at their own expense from manufacturers, dictate purchase prices or take goods on a commission basis, then resell them to wholesale intermediaries at open auctions, making a profit from the price difference.

Large auctions have their own production facilities for finalizing raw materials (for example, for dressing raw skins bought from suppliers) and giving products a marketable appearance.

Dependent auctions are specialized brokerage firms that resell goods on a commission basis, receiving remuneration from the seller (and in some cases from buyers). Sellers and buyers themselves do not participate in such auctions, and their orders are carried out by brokers within the established powers.

Auctions can also be divided into types depending on the subject of the auction.

24. ORGANIZATION OF AUCTION TRADE. AUCTION TECHNIQUE

The auction organizer publishes the auction schedule and notifies prospective participants of the auction (the notice contains information about the time and place of the auction, the subject and procedure for holding it, including registration of participation in the auction, determining the person who won the auction, as well as information about the initial price, the step of the auction, the size and timing of the deposit). The notice may specify other conditions.

Auctions are usually closed.

Closed auction - an auction in which all buyers bid at the same time, in the form of written bids, and the goods are sold to the buyer, whose price is higher, or bought from the seller, whose price is lower. The circle of buyers is selected and well-versed in the subject of trade.

Open auction are focused on a wide range of clients with different levels of training and therefore require a public offer. The organizer of the open auction, having made the notification, has the right to refuse to hold the auction at any time, but not later than three days before the date of its holding.

Bidders are required to pay a deposit on the basis of an agreement with the organizer on the deposit. If the auction does not take place, everyone will receive a deposit back. The losers of the auction receive the deposit back, and for the winners, the corresponding amount of money is counted towards the fulfillment of his obligations to pay for the purchased item or property right.

Items for auction are sorted by quality. Goods of the same quality are distributed according to batches (lots). A sample is selected from each lot. The number of goods in a lot depends on the customs in the trade of this type of goods. For example, in one lot of sable 10-30 identical skins are selected, mink - up to 300 skins. Lots with similar quality of goods are assembled into larger lots - thong. Some products undergo additional pre-sale processing.

Upon completion of the sorting, the auction issues a catalog indicating the composition and lot numbers. Buyers inspect goods in advance. Tastings are organized for food products.

The main stage of the auction is the auction, which is conducted by an experienced auctioneer with assistants. The auction begins with the announcement by the auctioneer of the name of the property, the initial sale price and the auction step. The auctioneer assigns each subsequent price by increasing the current price per auction step.

There are several ways of bidding: auctions with price increase and price decrease.

Secret auction used in the sale of art and jewelry. In case of covert bargaining, after the auctioneer announces the minimum price, the buyers submit to the auctioneer signs of agreement to raise the price by a fixed markup. Each time the auctioneer announces a new price without naming the buyer. The secret conduct of the auction allows you to keep the name of the buyer secret.

25. WHOLESALE FAIR

wholesale fair is a multi-component market event where participants (exhibitors), on the basis of samples (exhibits), demonstrate the goods and services produced in order to study the market situation and promote their sales, as well as carry out direct sales of the products on display, hold conferences, seminars, round tables and other information activities.

Wholesale Fair Features:

1. A wholesale fair is organized by any department and (or) special intermediary structures in a certain place in order to expand the sales of certain products that are not traded on exchanges.

2. The trading method is direct and allows producers and consumers to directly enter into commercial relations without the participation of brokers.

3. At the fair, preliminary inspection of samples, models, layouts, photographs, goods, etc. is required.

4. At the fair, buyers freely and quickly purchase real goods based on the samples presented.

5. The work of the fair is managed by the fair committee, which has the right to create working bodies of the fair (directorate - for permanent fairs, arbitration - for legal services to fair participants, including the initial consideration of disputes, a group for accounting contracts).

6. To hold the fair, a special infrastructure is being created, including exhibition premises.

7. Fairs are widely used to sell new types of products or those goods that require direct contact between buyers and manufacturers (for example, goods with complex technical and economic parameters).

8. The fair is held through the receipt of funds from its participants in the form of cash contributions (pre-orders and payment for places).

9. Fair trade combines the purchase and sale of goods, market research, networking, and PR events.

By geographical composition of exhibitors Fairs are divided into:

1) world;

2) international;

3) with international participation, with the number of foreign participants less than 10% of the total number of participants;

4) national;

5) inter-regional local (regional).

By industry (thematic) criterion:

1) universal;

2) specialized diversified;

3) specialized intra-industry.

Wholesale fair organizer is an organization whose main activity is the preparation and holding of exhibition and fair events in Russia and abroad.

By status, exhibition organizers are divided into:

1) federal executive authorities and executive authorities of the constituent entities of the Russian Federation;

2) exhibition organizations;

3) chambers of commerce and industry - federal and regional;

4) associations (inter-regional associations of economic interaction of subjects of the Russian Federation, as well as industry associations);

5) other organizations of various forms of ownership.

26. COMMERCIAL OBLIGATION

According to Art. 307 of the Civil Code in force obligations one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor has the right to require the debtor to fulfill his obligations . Thus, the essence of legal obligations is to oblige specific persons to certain behavior, providing for a property goal.

Commercial commitment arises from the agreement of participants in commercial activities, which should take into account a certain variety of obligations and features of their implementation. The terms of business contracts are, in fact, aimed at the legal regulation of the fulfillment of obligations. The wording of these conditions forms the legal structure of the contract.

Proper performance is enshrined in the Civil Code as the only principle for the performance of obligations. Its essence boils down to the following: an obligation must be fulfilled in accordance with its terms and requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements (Article 309 of the Civil Code).

Proper execution possible with the obligatory observance of the following five elements:

▪ proper subject;

▪ appropriate subject;

▪ proper method of execution;

▪ proper place of performance;

▪ proper deadline.

Due performance means that the obligation is terminated.

Default occurs when, at the time of expiration of the obligation to fulfill the obligation, one of the following two conditions is found out:

a) the debtor did not perform those actions that are provided for by the agreement, and the parties actually remain in the position that existed before the conclusion of the agreement; in other words, the action constituting the subject of the contract has not been committed;

b) the actions of the debtor resulted in significant damage to the creditor.

Improper execution are those cases when the performance is provided, but it does not meet the requirements (conditions) fixed in the contract (i.e. non-fulfillment of certain terms of the contract).

Since non-performance or improper performance does not terminate the obligation, then, in addition to incurring property liability (for example, indemnification), the main obligation of the debtor is to properly fulfill his obligation. But if the parties foresee that the probability of non-performance is high, then for such a situation they can provide in the contract for the use of the right to secure performance (for example, a pledge) or the use of some method of terminating the obligation (for example, compensation).

27. CLASSIFICATION OF COMMERCIAL LIABILITIES

1. Depending on the basis for the occurrence of obligations, they are divided into:

▪ obligations from a unilateral transaction;

▪ contractual obligations that arise at the will of two or more persons and are fulfilled on the basis of a concluded agreement. Within the framework of contractual obligations, there are groups of obligations for the alienation of property, for the provision of property for use, settlement and credit, etc. Contractual obligations can be unilateral, when one party has only rights, and the other has rights and obligations (for example, an option contract, loan agreement), and bilateral (mutual), when each party has both rights and obligations (the vast majority of commercial contracts);

▪ quasi-contractual - these are obligations arising either from unjust enrichment (for example, the amount of debt was mistakenly transferred to the current account of another commercial organization) or from conducting someone else’s affairs without instructions;

▪ tortious obligations arising from damage to property, attacks on business reputation, etc.

2. By way of execution:

▪ divisible, i.e. the subject of the obligation is divisible;

▪ indivisible obligations (for example, leasing an aircraft).

3. If the debtor has the right to choose the method of proper execution:

▪ uncontested obligations;

▪ alternative obligations;

▪ optional obligations.

4. By the nature of the actions of the debtor distinguish between:

▪ positive obligations - the debtor undertakes to perform some specific action;

▪ negative obligations - the debtor undertakes not to perform the action specified in the contract within the specified period.

5. By the number of participants on one side:

▪ simple, in which one creditor and one debtor participate;

▪ complex, when several persons act on the part of the creditor and (or) debtor;

▪ a joint and several obligation with multiple persons on the debtor’s side means that the creditor has the right to demand performance both from all debtors and from any of them separately, both in full and in part of the debt. In turn, joint and several debtors remain obligated until the obligation is fully fulfilled.

▪ a joint and several claim with multiple persons on the creditor’s side means that each creditor can demand that the debtor fulfill the obligation in full or in any part. Here it is also possible to change the mechanism of the right of claim to a shared right (i.e., each creditor will be able to demand from the debtor only his part of the debt) and a joint right (i.e., creditors can only make a claim against the debtor all together).

28. COMMERCIAL TRANSACTION: CONCEPT AND TYPES

Terms of commercial obligations are formalized in deals, i.e. actions of individual entrepreneurs and legal entities aimed at establishing, changing or terminating civil rights and obligations in the field of commercial activity.

Civil law allows for both oral and written form of a transaction, but in the relations of legal entities among themselves and with citizens, with the exception of transactions requiring notarization, the transaction must be made in simple written form (Article 161 of the Civil Code).

With the adoption of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature", participants in civil transactions (including entrepreneurs) have the right to conclude transactions in the form of electronic documents.

Types of transactions

1. Permanent and fixed-term transactions. In open-ended transactions, neither the moment of its entry into force nor the moment of its termination are determined. Such a transaction takes effect immediately. Accordingly, in forward transactions, either the moment of its entry into force, or the moment of its termination, or both specified moments are determined. Among derivatives transactions, the category stands out conditional transactions, i.e. transactions in which the emergence of the rights and obligations of the parties is timed to coincide with the occurrence of an event for which it is unknown whether it will occur or not. Conditional transactions come in two varieties:

1) a transaction concluded under a suspensive condition, i.e. the parties have made the emergence of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not; for example, firm X leases premises to firm Y on the condition that it completes the repairs of this premises by a certain date, but at the same time, firm x is not sure that it will complete the repairs, and therefore enters into an agreement that will come into force if the repairs are completed by plan;

2) a transaction made under a resolutive condition, i.e. the parties have made the termination of rights and obligations dependent on a circumstance regarding which it is not known whether it will occur or not.

2. Transactions are consensual and real. All transactions in which the rights and obligations of the parties begin from the moment an agreement is reached on the transaction (for example, supply agreements, leases, credit agreements) are recognized as consensual. For a real transaction, it is typical that rights and obligations cannot arise until the item is transferred to one of the parties or money is transferred to the account of the transaction partner (for example, storage, loan agreements).

3. There is a special group of transactions that are of a fiduciary nature and are called fiduciary. For example, an order, commission, agency, or trust management can be terminated unilaterally if their fiduciary nature is lost.

4. Transactions are one-sided, for which the will of one party is sufficient (for example, a power of attorney), bilateral и multilateral, the implementation of which requires the agreement of the will of two or more persons (contracts).

29. CONTRACT IN COMMERCIAL ACTIVITIES

According to paragraph 1 of Art. 420 GK agreement is an agreement between two or more persons to establish, change or terminate civil rights and obligations. However, not every agreement is a contract. A contract recognizes only an agreement arising from the intention of the participants to give rise to certain civil law consequences. Therefore, we can conclude that every contract can be recognized as an agreement, but not every agreement can be recognized as a contract.

The term "contract" is used in civil (including commercial) law in various meanings:

a) the most common type of transactions;

b) the legal fact underlying the obligation;

at) the contractual obligation itself;

d) a document in which the fact of establishing an obligation legal relationship is fixed.

Therefore, for practical purposes, it is important to determine in which of the given meanings the term "contract" is used in one or another norm of the Civil Code.

The contract is subject to the rules common to all transactions. The general provisions on obligations apply to obligations arising from the contract, unless otherwise provided by the general rules on contracts and the rules on certain types of contracts (clauses 2, 3 of article 420 of the Civil Code).

In civil law, certain principles, on which the parties should be based when concluding an agreement.

▪ The principle of freedom of contract (enshrined as a general principle in Article 1 of the Civil Code and as a special principle in Article 421 of the Civil Code). It is “freedom of contract” that is a fundamental condition for concluding a contract.

▪ The principle of taking into account the economically justified interests of the parties.

▪ The principle of good faith.

▪ The principle of taking into account and respecting agreements reached.

▪ The principle of taking into account unfavorable circumstances.

▪ The principle of fairness of contract.

▪ The principle of inevitability of responsibility.

▪ The principle of choosing an adequate method of legal protection.

▪ The principle of stability of legislation.

Contract - this is a form of mutual consideration of the various interests of the parties and third parties, therefore the contract is able to provide such organization, planning and stability in economic turnover, which cannot be achieved using administrative and legal means. The contract is a flexible means of communication between production and consumption, studying needs and immediately responding to them from production. The agreement ensures an effective exchange of produced and distributed material goods in the event of a change in the needs of participants in the economic turnover.

On the other hand, the contract can be used contrary to law and principles, for example, as a means of restricting competition, if the main market participants agree on joint actions in the market.

30. CONTENT OF THE AGREEMENT

The content of a civil law contract is the conditions under which an agreement is reached between the parties on the principles of contract law.

According to their legal significance, all conditions are divided into essential, ordinary and accidental.

Conditions are considered essential, which are mandatory and sufficient for concluding a contract. In order for a contract to be considered concluded, all its essential terms must be agreed upon. The contract will not be concluded as long as at least one of its essential conditions remains unagreed.

Significant legislation includes:

▪ conditions on the subject of the agreement;

▪ conditions directly named in regulatory legal acts as essential for the corresponding type of contract;

▪ conditions that are not directly named in regulatory legal acts as essential, but are necessary for the corresponding type of contract;

▪ all conditions regarding which, at the request of one of the parties, an agreement must be reached.

Unlike essential normal conditions do not require the consent of the parties. The transfer of the usual conditions to the contract is optional and does not matter, since the usual conditions are provided for in the relevant regulatory enactments and automatically enter into force at the time of the conclusion of the contract.

random conditions not specified in the law, these conditions modify or supplement the usual conditions. Such conditions indicate the case that the parties provide for in their legal relationship. But these are not conditions about any chance.

Random terms are included in the text of the contract at the discretion of the parties. Their absence, as well as the absence of the usual conditions, does not affect the validity of the contract. However, unlike the usual random conditions, they acquire legal force only if they are included in the text of the contract. In contrast to the essential ones, the absence of a random condition only entails the recognition of this agreement as not concluded if the interested party proves that it demanded the agreement of this condition. Otherwise, the contract is considered concluded without a random condition.

When resolving a dispute under a contract, one should be guided by those legal actsthat were in force at the time the contract was concluded, even if such acts subsequently became invalid or were amended.

If the disputed case is not regulated by regulatory legal acts or the contract, the business custom, i.e., an established and widely used rule of conduct in any area of business that is not provided for by law, regardless of whether it is recorded in any document. The custom of business should not conflict with the terms of the agreement concluded between the parties (clause 5 of Article 421 of the Civil Code).

31. FORM OF CONTRACT

To conclude an agreement, it is necessary to agree on all its essential conditions in the form required in the relevant cases (clause 1 of article 432 of the Civil Code). Since the contract is one of the types of transactions, the general rules on the form of transactions apply to its form. In accordance with paragraph 1 of Art. 434 of the Civil Code, an agreement may be concluded in any form provided for transactions, unless a specific form is established by law for agreements of this type. If the parties have agreed to conclude a contract in a certain form, it is considered concluded after giving it the established form, even if the law does not require such a form for contracts of this type.

Thus, a lease agreement between citizens for a period of up to one year can be concluded in verbally (clause 1 of article 609 of the Civil Code). However, if the parties at the conclusion of the lease agreement agreed that it would be concluded in writing, then until this agreement is given in writing, it cannot be considered concluded.

If, according to the law or by agreement of the parties, the contract must be concluded in writing, it can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the contract (clause 2 of Article 434 GK). The law, other legal acts and agreement of the parties may establish additional requirements that the form of the contract must comply with (execution on a certain form, sealed, etc.) and provide for the consequences of non-compliance with these requirements (clause 1 of Article 160 of the Civil Code). If such additional requirements are not established, the parties, when concluding an agreement, have the right to arbitrarily determine its details and their location in a written document. Therefore, the order in which individual clauses of the contract are arranged in a written document does not in any way affect its validity.

Some companies often use standard forms for their partners as a form of contract.

blank form allows you to more quickly and correctly draw up a written contract, narrowing the range of issues discussed by the parties. In this case, two circumstances should be taken into account:

▪ deviations from the sequence of arrangement of internal details of the contract established in the form do not affect the validity of the concluded contract if all its essential terms are agreed upon in this document;

▪ failure by the parties to fill out one of the columns of the standard form, if this column does not relate to an essential term of the agreement, or the introduction of any additions or changes to it does not lead to the recognition of the agreement as not concluded or invalid (void).

It is necessary to distinguish from standard forms standard contracts approved by the Government of the Russian Federation. The terms of such standard contracts are binding on the parties, and their violation leads to the recognition of nullity either of the amendments or additions made, or of the entire contract as a whole.

32. INTERPRETATION OF THE CONTRACT. FORMULATION OF THE CONTRACT

There are cases when the content of the contract causes its ambiguous interpretation and gives rise to disputes between its participants. This is due to the fact that the text of the contract and its internal details are determined by the parties to the contract, who are often not experienced in the intricacies of civil law and do not fully own its terminology. In order to resolve these disputes, Art. 431 of the Civil Code formulates rules of treaty interpretation, according to which the court takes into account the literal meaning of the words and expressions contained in the contract. And in case of ambiguity of words and expressions, the contract is determined by comparing its terms with the meaning of the contract as a whole and establishing the actual will of the parties that occurs when concluding the contract. In this case, it is possible to study not only the contract itself, but also other accompanying circumstances: the legislator has in mind the negotiations and correspondence preceding the contract; the practice established in the mutual relations of the parties, business customs, subsequent behavior of the parties (Part 2 of Article 431 of the Civil Code).

According to Art. 432 GK the contract is considered concluded, if an agreement has been reached between the parties in the form required in appropriate cases on all the essential terms of the contract.

The contract (like any document) requires proper execution in order to avoid any kind of complications in its implementation, reduce the risk of its invalidation or the risk of its possible falsification. For this there is a number of rules that must be strictly observed:

a) an agreement, the text of which can fit on two pages, should be made with a turnover on one sheet;

b) if the contract has more than two pages, then each of them should be initialed (i.e., indicate the full name and signatures of the persons authorized to conclude it), all pages should be numbered, laced and sealed by both parties on the back of the last page;

at) documents confirming the powers of the representatives of the parties should be fastened together with the main text of the agreement;

d) any additions and (or) corrections made in the text should be specified, certifying these reservations with the signatures and seals of the parties (for example, gaps are left in the printed text to enter individual data and information, respectively, all this requires certification from both parties in each case in order to exclude inconsistent additions made by someone unilaterally);

d) regarding those changes and additions that will be made in the process of executing the contract, a reservation should be made when they are drawn up.

33. METHODS FOR CONCLUDING A CONTRACT

The contract is concluded in different ways. The first method is the most traditional and widespread: one party sends an offer, and the other accepts it. In Art. 435 of the Civil Code expressly specifies the requirements for the offer.

Offer must:

▪ be addressed to one or more specific persons;

▪ be sufficiently specific;

▪ express the intention of the person who made the offer to enter into an agreement with the addressee;

▪ contain the essential terms of the contract.

But these requirements are not sufficient. Due to the fact that the offer is irrevocable (except as otherwise provided in it or the addressee received the offer along with the sender's refusal from it), it is recommended to indicate the period for withdrawal of the offer and the period for acceptance, which will make the sender's position more stable and certain.

In retail trade, household services to the population, it is used public offer, i.e. concluding an agreement with everyone who responds to the offer. A special case of a public offer is clause 2 of Art. 494 of the Civil Code, since here the seller’s will to conclude an agreement with anyone who responds is assumed to be expressed quite clearly from the very fact of placing the goods at the place of sale, regardless of the indication of the price and other essential terms of the agreement.

Acceptance - this is the full and unconditional acceptance of the offer of the other party. Acceptance can be expressed either in a written response on the acceptance of the offer, or in the commission by the person who received the offer, within the period of validity established for its acceptance, upon fulfillment of the conditions of the contract specified in it.

The procedure for concluding an agreement will be completed at the moment the person who sent the offer receives its acceptance.

Conclusion of an auction contract conducted with the person who won the auction. Bidding is carried out in the form of an auction or competition.

Auctions - a type of market trade used for exclusive, rare goods, when the seller, wishing to maximize the benefits of competition, sells a relatively limited list of goods. The contract is concluded with the person who offered the highest price.

Competitive bidding (synonymous with the concept of "tender", from the English tender - bidding, which is not used in Russian legislation) are held in order to be able to choose the most adequate proposal from the contestants and conclude an agreement with the winner. Russian legislation divides competitive bidding into open (for everyone) and closed (for specially invited participants), which, in turn, can be two-stage and with preliminary qualification. There are also state (federal, regional, municipal), commercial and international tenders.

Competitions are organized, as a rule, for the placement of government orders, the implementation of large projects in construction, the supply of equipment, and the sale of shares in large enterprises.

34. AMENDMENT AND TERMINATION OF THE CONTRACT. CHANGE OF PERSONS IN OBLIGATION

In Art. 450, 451 of the Civil Code, the following grounds for changing and terminating the contract are indicated:

1) by agreement of the parties, unless otherwise provided by law or contract;

2) at the request of one of the parties in cases where this is provided for by the contract;

3) the third option is used when the first two methods are not used: at the request of one of the parties by a court decision in the presence of one of two legal facts:

▪ in case of a significant violation of the contract by the other party. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract;

▪ in case of a significant change in the circumstances from which the parties proceeded when concluding the agreement (unless otherwise provided for by the agreement or follows from its essence); A change in circumstances is considered significant when they have changed so much that if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

During the execution of civil obligations, the legislation allows replacement of creditor and (or) debtor.

The replacement of the lender is possible in two cases. One of them, when the creditor, on the basis of his will, has the right to transfer (assign) his right of claim, which belongs on the basis of an obligation, to another person, is called assignment of claim.

In the second case, the transfer of the right of claim belonging to the creditor is possible on the basis of the law (for example, on the basis of Article 387 of the Civil Code, the rights of the creditor's claims can be transferred to another person as a result of the fulfillment of the debtor's obligation by his guarantor or pledgor who is not a debtor under this obligation).

Replacement of the debtor (debt transfer) unlike the replacement of a creditor, it is carried out according to a different principle, namely, with the consent of the creditor.

As well as the transfer of the creditor's right to claim, the transfer of debt is of an accessory nature, that is, it can only be derived from other obligations. Therefore, the requirements applicable to the form of the underlying transaction on which the assignment of a claim or transfer of debt is based apply to the assignment itself (transfer of debt).

Paragraphs 1 and 2 of Art. 509 of the Civil Code provide for the right of the buyer to assign his obligations for accepting the goods and paying for them to a third party - the recipient (see also Article 313 of the Civil Code). Such an assignment may be provided directly in the contract or carried out by sending shipping orders to the supplier, if this is provided for in the supply contract. However, the buyer is responsible to the supplier for acceptance and payment for the goods by the recipients (Article 403 of the Civil Code).

35. TYPES OF CIVIL LEGAL CONTRACTS USED IN COMMERCIAL ACTIVITIES

1. Depending on the relationship between the rights and obligations of the parties to the obligation, agreements can be divided into: bilateral и multilateral.

2. Depending on the order of conclusion and the moment of occurrence, the rights and obligations of the parties to the obligation differ consensual, real и formal contracts.

consensual is a contract for the conclusion of which only the agreement of the parties is sufficient.

real for the conclusion - in addition to the agreement of the parties, the actual transfer of property that is the subject of the contract is necessary.

Formal - for the conclusion, it is required to draw up an agreement in the form prescribed by law: written or notarial.

3. Article 423 of the Civil Code provides for the division of all contracts into two categories depending on the property representation. - paid and gratuitous contracts.

4. A special place in civil law relations is occupied by an agreement based on the trusting relationship of the parties to each other - fiduciary.

5. Depending on how obvious the grounds for the emergence of the contract itself are, the contract may be causal or abstract.

6. Depending on how much the size, proportion and subject of the counter-obligation are known in advance, when concluding the contract, the contract may be commutative or aleatory.

7. Depending on the nature of the legal consequences generated by the contract, it is necessary to distinguish between such contracts as final and preliminary (Article 429 of the Civil Code).

8. Agreement concluded in favor of its participants, means that the right to demand execution of the contract belongs only to its participants.

9. Contract in favor of a third party a contract is recognized in which the parties have established that the debtor is obliged to perform performance not to the creditor, but to a third party specified or not specified in the contract, who has the right to demand from the debtor the performance of the obligation in his favor, unless otherwise provided by law, the contract and does not follow from the essence of the obligation (Article 430 of the Civil Code).

10. Some contracts are concluded through conclusive actions - actions of a person expressing his will to establish a legal relationship (for example, to make a deal, conclude an agreement), but not in the form of an oral or written expression of will, but by behavior that can be used to draw a conclusion about such an intention.

11. Public agreement a contract is recognized 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, communication services, etc.) .

12. An interesting way of concluding a contract is provided for in Art. 428 GK for accession agreement, in which the content of the agreement reached by the parties is formed by the will of the party that proposed this agreement.

36. CONCEPT AND TYPES OF COMMERCIAL CONTRACTS

There is a significant difference between contracts depending on the scope of their application: commercial и non-commercial contract

Commercial a contract is a paid civil law contract, where the parties or one of the parties are entrepreneurs, concluded for commercial purposes and entailing the emergence, change or termination of civil rights and obligations in the field of entrepreneurial activity.

In civil law, a whole system of commercial contracts has been developed, taking into account the characteristics of certain types of economic relations.

1. Implementation contracts for a paid transfer of property into ownership (supply, exchange, commodity credit).

2. Contracts for the transfer of property into possession and (or) use (rent, rental, leasing, trust management).

3. Service Agreements (information, consulting, advertising, legal, insurance, transport, warehousing of goods, etc.). This group of contracts also includes intermediary contracts (commission, commercial concession, commercial agency) and representative contracts (commercial representation). The systematic provision of services is an activity that does not have a material result.

4. Work contracts (research; design, survey, construction, marketing, appraisal, audit, etc.).

5. Agreements on joint actions or activities (simple partnership, consortium, holding, financial and industrial group).

6. financial contracts (bank account, deposit, credit, loan, factoring).

7. Agreements on the transfer of rights to objects of intellectual property (author's, commercial concession, license agreement).

8. Agreements for the transfer of exclusive rights (distribution kit).

9. Contracts to ensure basic obligations (pledge, mortgage, deposit, guarantee and bank guarantee, property insurance).

The list of types of contracts contained in the Civil Code and special legislation (for example, the Federal Law "On financial lease (leasing)") is not exhaustive. The parties have the right to conclude a mixed (complex) agreement, which contains elements of various agreements provided for by law or other legal acts, as well as another agreement not provided for by law (for example, a distribution agreement). A complex agreement is quite relevant in the business sphere, where relations are characterized by intensity and diversity, but it is not always convenient in the event of a dispute, when it is necessary to identify a certain type of obligation.

37. THE CONCEPT OF THE SALES OF GOODS, WORKS OR SERVICES. IMPLEMENTATION AGREEMENT

In accordance with Art. 39 NK implementation goods, works or services, an organization or an individual entrepreneur recognizes, respectively, the transfer on a reimbursable basis (including the exchange of goods, works or services) of the ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another person, and in cases provided for by the Tax Code, the transfer of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person free of charge.

The place and moment of the actual sale of goods, works or services are determined in accordance with part two of the Tax Code.

Not recognized as the sale of goods, works or services:

1) carrying out operations related to the circulation of Russian or foreign currency (with the exception of the purposes of numismatics);

2) transfer of fixed assets, intangible assets and (or) other property of the organization to its successor (successors) during the reorganization of this organization;

3) transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to entrepreneurial activities;

4) transfer of property, if such transfer is of an investment nature (in particular, contributions to the authorized (share) capital of economic companies and partnerships, contributions under a simple partnership agreement (joint activity agreement), share contributions to share funds of cooperatives);

5) transfer of property within the initial contribution to a participant of a business company or partnership (his legal successor or heir) upon exit (withdrawal) from a business company or partnership, as well as upon distribution of property of a liquidated business company or partnership between its participants;

6) transfer of property within the initial contribution to a participant in a simple partnership agreement (joint activity agreement) or his successor in the event of the allocation of his share from the property that is in common ownership of the participants in the agreement, or the division of such property;

7) transfer of residential premises to individuals in the houses of the state or municipal housing stock during privatization;

8) seizure of property by confiscation, inheritance of property, as well as the conversion of ownerless and abandoned things, orphan animals, finds, treasures into the property of other persons in accordance with the norms of the Civil Code;

9) other operations in cases stipulated by the Tax Code.

Implementation agreement can be defined as a type of commercial contracts united by the following general signs:

▪ the agreement is mutual and compensated;

▪ its subject is the sale of goods between participants in commercial activities;

▪ written form;

▪ the main types of the implementation agreement are defined in the Civil Code - supply, exchange, commodity credit.

38. CONTRACT OF EXCHANGE

As follows from paragraph 1 of Art. 567 GK, barter agreement is consensual, reimbursable, bilaterally binding. The subject of the contract of exchange is the goods. Paragraph 2 of Art. 567 of the Civil Code provides for the subsidiary application of the sale and purchase rules to the exchange agreement, if this does not contradict the rules of Ch. 31 of the Civil Code and the essence of the exchange. The similarity of the legal nature of the sale and exchange and barter is clearly manifested in the indication in paragraph 2 of Art. 567 of the Civil Code for the recognition of each of the parties to the exchange agreement as the seller of the goods, which it undertakes to transfer, and the buyer of the goods, which it undertakes to accept in exchange.

Qualifying sign of an exchange agreement is the transfer of goods to the property of the other party.

Given the established in paragraph 1 of Art. 568 of the Civil Code, the presumption of equivalence of goods subject to exchange, typical exchange agreement can be represented as a combination of two contracts of sale with the same price and terms for its payment, where the counter monetary obligations arising from these contracts are completely terminated by offset (Article 410 of the Civil Code).

In paragraph 2 of Art. 568 of the Civil Code specifies the obligations of the parties atypical barter agreement, i.e., an agreement according to which the goods exchanged are recognized as unequal. If the dispositive rule of paragraph 1 of Art. 568 of the Civil Code, according to which the costs of transfer and acceptance of the exchanged goods are carried out in each case by the party bearing the corresponding obligations, applies to any exchange agreement, then in the case of an atypical exchange agreement the party is obliged to transfer the goods, the price of which is lower than the price of the goods provided in exchange , must pay the price difference.

In essence, an unequal exchange agreement is a mixed agreement (clause 3, article 421 of the Civil Code), in which there are signs of both exchange and sale. Such a contract could be qualified not only as an exchange contract with elements of sale, but also as a contract of sale with elements of exchange.

Rule Art. 569 of the Civil Code, according to which, if the terms established in the exchange agreement for the transfer of the exchanged goods to the fulfillment of the obligation to transfer the goods by the party, which must do this after the fulfillment of a similar obligation by the other party, do not coincide, the rules on the counter fulfillment of obligations (Article 328 of the Civil Code), means, in in particular, that the obligations of the parties under the exchange agreement are mutually conditioned, and this party has the right to suspend the performance of its obligation or refuse to perform it, regardless of the presence of grounds for liability of the other party and, if any, demand compensation for losses.

The specifics of the exchange agreement is as follows:

1) one-time transfer of ownership of the exchanged goods to the parties to the exchange agreement after the fulfillment of their obligations to transfer the relevant goods. It should be noted that this rule is dispositive and applies only to movable property.

2) the rule enshrined in Art. 576 of the Civil Code, provides for the right of the party from which the goods received under the exchange agreement are confiscated by a third party, if there are grounds specified in Art. 461 of the Civil Code, demand from the other party the return of the goods transferred to it and compensation for losses.

39. COMMERCIAL CREDIT AGREEMENT

Differences between commercial credit and commercial credit.

Commodity loan is an independent transaction of a borrowed type, and commercial - a special condition of any commercial agreement on preliminary settlements. Although it is possible that a commercial loan can be formalized as an advance payment transaction.

For a commercial loan agreement the essential conditions are the subject, the indication of the price of the goods and the terms of its payment.

For a trade credit agreement these conditions are not essential. The indication of the price is advisory in nature. The essential terms of the commodity credit agreement are the subject (name and quantity of goods) and interest. The parties may establish in the contract as an essential condition the right of the lender to unilaterally terminate the contract in the event of untimely repayment of the commodity loan by the borrower (for example, if payment is delayed by more than ten calendar days).

Organizations concluding contracts on the terms of a commodity loan should pay special attention to the formation of the terms of contracts, since failure to comply with elementary rules can lead to serious negative consequences for both parties.

The borrower is obliged to return, within the terms agreed with him, inventory items of exactly the same kind and quality, since otherwise these relations can be qualified as barter, i.e., arising from an exchange agreement.

Additional conditions include: the general term of the contract, the price and amount of the contract, the amount and procedure for paying interest on the use of a trade credit, the liability of the parties for non-fulfillment or improper fulfillment of the contract, etc.

A trade credit agreement can be target, i.e. provide for the intended use of the loan. In this case, the trade organization is obliged to use the loan only for those purposes specified in the agreement. In this case, goods transferred on credit, under the terms of the agreement, can be provided to the borrower in separate batches.

The amount of interest and the procedure for their payment are determined by the agreement. If the amount of interest is not established by the agreement, their amount is determined by the bank interest rate, which is valid at the location of the trade organization.

Since interest under a trade credit agreement is charged on the value of the transferred goods, it is recommended that the trade credit agreement indicate the price of the goods at the time of its transfer.

In addition to interest for using a commodity loan, it is possible to collect penalties from the organization in the form of interest for the delay in repaying the amount of a commodity loan on the basis of paragraph 1 of Art. 811 GK. They are calculated from the day when the amount of the commodity credit should have been returned to the day of its actual return to the creditor. The payment of penalties is made regardless of the payment of interest for the use of commodity credit.

40. LEGAL REGULATION OF CONTRACTUAL RELATIONS. PREAMBLE TO THE AGREEMENT

Structure of the contract - this is an interconnected set of elements of the contract, formed for a specific legal purpose.

An agreement in writing can be concluded by drawing up one document (the text of which can be divided into three parts: the preamble, the actual text of the agreement, details and signatures of the parties), as well as by exchanging documents in which each party expresses its will.

The contract can be drawn up in two versions:

1) contract with a minimum set of elements (according to the Civil Code, this can be a subject and all other essential conditions, as well as details and signatures of the parties);

2) agreement with the maximum set of elements - this is a way to draw up an agreement that regulates in detail the relationship of the parties. In this case, the legislator does not establish any restrictions.

В content of the preamble the name of the contract, the date and place of its preparation, the names of the parties and their representatives are indicated.

It is not necessary to indicate the name of the contract, since it does not play a significant role in determining the type of contract in the event of a dispute.

date the conclusion of the contract is the moment of its entry into legal force, if the contract is consensual under the law or the parties have agreed on it. Also, from the specified date, the parties determine the period for performing certain actions.

Names of the parties is paid in full in accordance with the registration documents of the entrepreneur. An individual entrepreneur indicates his last name (it is better to notarize his signature in the primary contract). A commercial organization indicates its company name, consisting of an indication of its organizational and legal form in accordance with Art. 54 GK. In addition to denoting the legal form, a company name may contain a given name or surname, indicate the subject of activity, or be arbitrary.

Brand name full partnership must contain either the names (names) of all its participants and the words "general partnership", or the name (name) of one or more participants with the addition of the words "and company" and the words "general partnership" (Article 69 of the Civil Code).

Brand name faith partnerships must contain either the names (names) of all general partners and the words "limited partnership" or "limited partnership", or the name (name) of at least one general partner with the addition of the words "and company" and the words "limited partnership" (Art. 82 GK).

Brand name production cooperative must contain its name and the words "production cooperative" or "artel" (Article 107 of the Civil Code).

In a business society the company name must contain the name of the company and an indication of its organizational and legal form (Articles 87, 95, 96 of the Civil Code).

41. IDENTIFICATION OF THE LEGAL STATUS OF THE COUNTERPARTY IN THE TRANSACTION

Counterparty is a part of any commercial contract. A legal entity (a general partnership, a limited partnership, a unitary enterprise, a production cooperative, LLC, CJSC, OJSC) or an individual entrepreneur can act as a counterparty, which are established according to state registration documents and, if necessary, additionally by confirmation of the fact of registration and entering information into Unified State Register of Legal Entities (EGRLE).

Representative in the contract must have documentary authority from the counterparty he represents.

The representative of the counterparty in the contract can be:

▪ legal entity (full partnership, limited partnership, unitary enterprise, production cooperative, LLC, CJSC, JSC);

▪ individual entrepreneur;

▪ an individual not registered as an individual entrepreneur. The representative of the counterparty, in cases established by law, acts without a power of attorney, and in other cases - under a power of attorney.

Trustees in commercial activities can be:

1) heads of commercial organizations indicated in the table, acting on behalf of these organizations;

2) individual entrepreneur.

All other persons must confirm the powers of the representative issued to them by a power of attorney.

Power of attorney - a one-sided document signed by one person - the principal and issued to the attorney. The power of attorney must be properly executed and contain:

▪ date of issue (if there is no date, then the power of attorney is void) and validity period (if the period is not established, then the power of attorney is valid for up to three years);

▪ an accurate and comprehensive list of actions assigned to the representative;

▪ signature of the head of the organization or individual entrepreneur;

▪ seal of an organization or individual entrepreneur.

Additional documents, confirming the authority of the representative may be:

▪ for a representative - an employee of a company - an employment contract between the representative and the company he represents, the Labor Code of the Russian Federation (LC);

▪ for a representative - a partner of a company - civil contracts between the representative and the company he represents: assignment, commission, agency, trust management, provision of services (CC). The representative is an attorney, commission agent, agent, trustee, executor.

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.

43. QUALITY OF GOODS

The condition on the quality of the goods is not one of the essential conditions of the contract.

Product quality defined as compliance with the agreements formalized in the contract. In the absence of quality requirements in the contract, the seller is obliged to transfer to the buyer goods suitable for the normal use of goods of this kind.

In Art. 470, 471 of the Civil Code are formulated product warranty rules as the period during which the product after its sale to the buyer must comply with the requirements for its quality (Article 469 of the Civil Code). If the warranty period is not established in the contract of sale, then by virtue of the law the rule on a reasonable period is applied (paragraph 1 of article 470 of the Civil Code).

Also applicable in business shelf life, i.e. the period after which the product, regardless of its actual condition, is assumed to be unfit for use.

Although paragraph 1 of Art. 472 of the Civil Code does not provide for the possibility of establishing an expiration date in the contract, the seller and the buyer have the right to independently establish such a condition.

Article 474 of the Civil Code establishes a list of grounds for conducting a quality check of goods, and also generally defines the conditions for the seller's obligation to provide the buyer with evidence of the verification (clause 3 of article 474 of the Civil Code) and the procedure for its implementation (clause 4 of article 474 of the Civil Code).

The quality in the contract is determined depending on the type of product:

1) according to standards - the quality of fairly simple products (brick, concrete, cement) can be determined;

2) technical conditions - the quality of engineering products can be determined;

3) according to certificates of conformity and hygiene certificates - food products, perfumes and cosmetics, children's toys.

When selling goods according to a sample or according to a description, the criterion for the proper quality of the goods is its compliance with the sample or description. The contract contains instructions on the number of selected samples and the procedure for their comparison with the delivered goods.

The contract may provide that the quality of the goods must meet established standards.

Standard - this is a sample, standard, model, taken as initial when comparing other similar objects with them. The standard is developed for material objects (products, samples of substances), norms, rules and requirements of a different nature.

Normative documents on standardization include state standards (GOSTs); industry standards (OSTs), etc.

Certification of products - conformity assessment procedure, through which an organization independent of the manufacturer (seller, performer) and consumer (buyer) certifies in writing that the products comply with the established requirements (Article 1 of the Law of the Russian Federation "On Certification of Products and Services").

44. PACKAGING AND LABELING

In paragraph 1 of Art. 481 of the Civil Code establishes a general rule on the obligation of the seller to pack or pack the goods, unless otherwise provided by the contract and follows from the essence of the obligation, and also if the goods by their nature do not require packing or packaging. In the event of a dispute, the burden of proving the absence of such obligation (which can only be determined by the nature of the goods) rests with the seller.

At present, in the part that does not contradict the Civil Code, it is possible to apply the Regulations on the procedure for the circulation of reusable packaging facilities in the national economy, approved by the Decree of the USSR Gossnab and the USSR State Arbitration Court of February 14, 1980 (BNA USSR. 1980. No. 8).

The requirements for packaging are:

▪ the presence of a material basis that has two main functions;

▪ ensuring the safety of cargo using the chosen method of storage and transportation;

▪ ensuring convenience for moving goods.

Marking - a symbol applied to the packaging of a package and containing the data necessary for the proper transportation and delivery of the cargo to the recipient.

The requirements for labeling are:

▪ informing about the buyer’s details, contract number, transport number, weight and dimensional characteristics of the seats, number of the place and number of seats in the batch or transport;

▪ instructions to transport organizations on the method of handling cargo;

▪ warning about the dangers that the transported cargo may pose if it is handled improperly.

Permission to place advertising markings must be specified in the contract.

45. ASSORTMENT, COMPLETENESS AND PACKAGE OF GOODS. DELIVERY TIME

In paragraph 1 of Art. 467 of the Civil Code formulated the definition assortment (nomenclature) of goods as the ratio of certain goods within a group of goods according to various characteristics: by genera, types, articles, styles, models, heights, sizes, colors, etc.

Group assortment means a list of various groups of homogeneous goods. A detailed assortment details each type of product according to certain indicators (for example, color, size, grade, etc.).

The contract can establish the procedure for determining the assortment, for example, by drawing it up in specifications.

It seems that if the assortment is not defined in the contract and cannot be determined on the basis of its content or from the needs of the buyer known to the seller at the time of the conclusion of the contract, but the essence of the obligation implies the need to transfer goods in the assortment, then the contract should be recognized as not concluded due to failure to reach an agreement on the subject of the contract (clause 1 of article 432 of the Civil Code).

Completeness of goods means that the goods are presented in a set as a single complex thing (Article 478 of the Civil Code).

The rules of paragraphs 1 and 2 of Art. 480 of the Civil Code on the consequences of the transfer of incomplete goods (Article 478 of the Civil Code) are mandatory and cannot be changed by contract.

Product set is a set of completely independent goods defined in the contract (Article 479 of the Civil Code), for example, a perfume set.

Rule p. 3 Art. 480 of the Civil Code on the application of the rules of clauses 1, 2 of the same article in case of violation of the obligation to transfer a set of goods (Article 479 of the Civil Code) is dispositive and is applied unless otherwise provided by the contract or follows from the nature of the obligation.

Delivery time - the time period agreed upon by the parties and provided for in the contract, during which the seller must transfer the goods to the buyer.

The wording of the conditions on the terms is different:

▪ fixed delivery date;

▪ fixed delivery period (week, month);

▪ delivery "on demand";

▪ immediate delivery from the moment of validity of the contract or from the moment of the first action of the buyer (for example, prepayment, notification of the opening of a letter of credit, receipt of a settlement check from the buyer, etc.). This option also applies by law if the delivery date is not specified; immediate delivery is made based on the type and quantity of goods, mode of transport and distance;

▪ early delivery must also be specifically agreed upon: the buyer has the right to refuse goods delivered ahead of schedule without his consent;

▪ delivery in parts must be specifically agreed upon: then a calendar plan is drawn up, which indicates the delivery time for each batch.

Provided in paragraph 3 of Art. 511 of the Civil Code, the buyer's right to refuse to accept goods whose delivery is overdue arises after the supplier receives a notice of refusal, and not from the moment it is sent to the supplier.

46. MAIN OBLIGATIONS OF THE PARTIES. TIME OF TRANSFER OF OWNERSHIP

К main responsibilities of the seller the law includes the delivery of goods under the terms of the contract (clause 1 of article 456 of the Civil Code), ensuring the quality of the goods, ensuring the packaging of the goods in cases where packaging is necessary, bearing risks and assuming the costs of transportation until the goods are provided to the buyer, in the place and within the terms stipulated by the delivery basis.

К main responsibilities of the buyer the law includes the acceptance and payment of goods or the acceptance of documents of title on the terms of a contract, law or business practice, the risk of accidental loss or damage to which the goods may be subjected after the buyer obtains ownership of it; responsible storage of goods not accepted from the supplier with immediate notification of the supplier.

Time of transfer of ownership determined by the general rules of civil law. The buyer becomes the owner at the time of receipt of the property or documents of title to it. If the goods are subject to transportation, then at the time of its transfer to the first carrier, a separate case of transfer of ownership of the goods can be determined in the contract.

In practice, the most common ownership transfer options:

1. The goods are removed from the seller's warehouse by the buyer, who receives title to the goods, assumes the risk of accidental loss and bears all transportation responsibilities.

2. The seller delivers the goods to the first carrier, after which all risks of accidental loss and expenses are borne by the buyer. The seller enters into a contract of carriage with the carrier, who assumes responsibility for the goods. According to the law, since the goods are subject to transportation, the goods become property when they are transferred to the first carrier (transport organization), unless otherwise provided in the contract.

3. The seller delivers the goods to the buyer's warehouse using his own transport (i.e., without concluding a transportation contract with the carrier), assuming all transportation costs and the risks of accidental loss and damage to the goods.

4. At the moment the money actually arrives.

It should be borne in mind that according to the Civil Code, the parties to the contract of carriage are the seller and the carrier, and not the buyer and the carrier.

The moment of transfer of ownership of the buyer determines the moment of transfer to him of the risk of accidental loss or damage to the goods.

The general rule of paragraph 1 of Art. 459 of the Civil Code on the moment of transfer of the risk of accidental loss or accidental damage to goods from the seller to the buyer corresponds to the general rule of art. 211 of the Civil Code that the risk of accidental loss or accidental damage to property is borne by its owner. If the buyer, in violation of the terms of the contract, allows a delay in the fulfillment of his obligation to accept the goods provided properly, he bears the risk of his accidental loss or damage from the moment such a delay begins (Article 406 of the Civil Code).

47. DISTINCTION OF THE SUPPLY CONTRACT FROM THE RETAIL SALE CONTRACT

Delivery contract - consensual, reimbursable, bilaterally binding. The parties to the supply agreement are the seller (a special entity - a legal entity or a citizen-entrepreneur) and the buyer - a person who intends to use the purchased goods for purposes other than personal and domestic.

Under a retail sale contract the seller - an individual or legal entity - carries out entrepreneurial activities for the sale of goods at retail. Buyer - any person, both natural and legal. The subject of the contract is the goods intended for use not related to entrepreneurial activity. An essential condition of the contract of retail purchase and sale is the price of the goods.

From what is contained in Art. 493 of the Civil Code of the rule on the moment from which the retail sale and purchase agreement is considered concluded, we can conclude that this agreement, in contrast to the usual sale and purchase agreement (clause 1 of article 454 of the Civil Code), is generally real (clause 2 article 433 of the Civil Code). The noted conclusion follows from the fact that the issuance of a check, with which Art. 493 of the Civil Code connects the moment of conclusion of the contract, confirms the fact of payment for the goods, i.e., for the conclusion of the contract, payment of the price of the goods is necessary. Therefore, the content of the retail sale contract, as a general rule, is the obligation of the seller to transfer to the buyer the goods paid for at the time of the conclusion of the contract, and payment of the price at the same time means reaching an agreement on the price of the goods as one of the essential conditions of the retail sale contract.

It should also be taken into account that, according to paragraph 2 of Art. 426 of the Civil Code, the price and other terms of a public contract, which is a retail sale contract, are set the same for all buyers.

If there is no special indication in the retail sale contract about the place of delivery of goods, the place of delivery is assumed to be the place of residence of a citizen (Article 20 of the Civil Code) or the location of a legal entity (Article 54 of the Civil Code). If the information allowing to determine the place of delivery of the goods is absent in the contract at all, it must be recognized as not concluded.

The buyer has the right to demand only such information about the product, which is necessary in connection with the characteristics of this product, which can be specified in regulatory enactments. Always necessary is information about the price of goods. The seller is obliged to provide reliable information about the goods.

In the event of a dispute in connection with the shortcomings of the purchased goods (clause 4 of article 495 of the Civil Code), the burden of proving the fact that the seller did not provide the necessary information about the goods and the causal relationship between this circumstance and the occurrence of shortcomings rests with the buyer.

For certain retail methods, government regulations apply, such as the Rules for the sale of goods by samples.

48. PRICE BASIS

Price - this is the monetary expression of the value of the goods, and in the supply contract - one of the essential terms of the contract. In practice, the price is often agreed upon not in the main document signed by the parties, but in additional agreements, specifications, telegrams, etc. If a contract makes reference to any document arising between the parties, then it becomes part of the contract, and thus the price will be agreed upon.

When determining the price, the terms of delivery of the goods are taken into account.

According to the general rules, paragraphs 1 and 2 of Art. 486 of the Civil Code, the goods must be paid in full immediately before or after its transfer. At the same time, the right to choose the moment of payment (before or after the transfer) belongs to the buyer as a debtor in the obligation to pay for the goods (Articles 320, 454 of the Civil Code).

The buyer's obligation to pay in advance for the goods is considered as a condition for the seller's counter obligation to transfer the goods, therefore, if the buyer fails to fulfill the obligation to make a preliminary payment, the seller has the right to suspend the fulfillment of his obligation or refuse to fulfill and demand compensation for losses.

Types of contract price.

1. Fixed (firm) price - is indicated by a specific number that is not subject to change. Applies if expressly specified in the contract. This price is convenient in short-term contracts, as well as in case of prepayment.

Fixed prices are subject to so-called protective clauses. Usually these are currency clauses, but others are also possible: gold, stock index, etc. The supplier, depending on the product, must find the most acceptable clause for himself.

2. moving price means that the parties, starting from the initial (basic) price, have agreed that it is automatically subject to change when pricing elements change (for example, an increase in gasoline prices, an increase in the cost of production, etc.), as a rule, up to a certain price limit .

The cost of products (works, services) is a valuation of the products (works, services), natural resources, raw materials, materials, fuel, energy, fixed assets, labor resources used in the production process, as well as other costs for its production and sale.

3. Price with subsequent fixation means that the parties, starting from the initial (basic) price, have agreed to revise prices after a certain period of time or in the event of a change in any pricing factor.

Thus, the effect of the contract each time will depend on whether the parties agree on a price or not. Perhaps, for the seller, the planning of deliveries becomes more complicated due to the indicated dependence.

4. Combined price, which combines previous positions.

49. PRINCIPLES FOR DETERMINING THE PRICE OF GOODS, WORKS OR SERVICES FOR TAX PURPOSES

For taxation purposes, the price of goods, works or services specified by the parties to the transaction is accepted until proven otherwise (it is assumed that this price corresponds to the level of market prices).

In cases where the prices of goods, works or services applied by the parties to the transaction deviate upwards or downwards by more than 20% from the market price of identical (homogeneous) goods (works or services), the tax authority has the right to make a reasoned decision on additional charge taxes and penalties calculated as if the results of this transaction were assessed based on the application of market prices for the relevant goods, works or services.

The market price of goods (works, services) the price that has developed in the interaction of supply and demand in the market of identical (and in their absence - homogeneous) goods (works, services) in comparable economic (including commercial) conditions is recognized.

Products are recognized as identical, having the same basic characteristics characteristic of them. When determining the identity of goods, taking into account, in particular, their physical characteristics, quality and reputation in the market, country of origin and manufacturer. When determining the identity of goods, minor differences in their appearance may not be taken into account.

Goods are recognized as homogeneous, which, while not identical, have similar characteristics (quality, trademark, market reputation, country of origin) and consist of similar components, which allows them to perform the same functions and/or be commercially interchangeable.

In the absence of transactions on identical (homogeneous) goods, works or services on the relevant market of goods, works or services or due to the lack of supply of such goods, works or services on this market, as well as when it is impossible to determine the corresponding prices due to the absence or unavailability of information sources , to determine the market price is used resale price method. The market price of goods, works or services sold by the seller is determined as the difference between the price at which such goods, works or services are sold by the buyer during their subsequent sale (resale), and the usual costs in such cases incurred by this buyer during resale (excluding the price , for which goods, works or services were purchased by the specified buyer from the seller) and the promotion to the market of goods, works or services purchased from the buyer, as well as the buyer’s usual profit for this field of activity.

If it is not possible to use the resale price method, the cost method, in which the market price of goods, works or services sold by the seller is determined as the sum of the costs incurred and the profit usual for a given field of activity. In this case, the usual in such cases direct and indirect costs for the production (purchase) and (or) sale of goods, works or services, the usual costs for transportation, storage, insurance and other similar costs are taken into account.

50. FORM OF NON-CASH PAYMENTS. SETTLEMENTS BY PAYMENT ORDERS

Chap. 45, 46 of the Civil Code and the Regulation of the Central Bank of the Russian Federation of October 3, 2002 No. 2-P "On non-cash payments in the Russian Federation".

The organization of non-cash settlements between the payer and the recipient of funds is determined by the agreement and is carried out in two ways:

1) by transferring funds from one account to another;

2) by offsetting mutual claims (mutual debt). Settlements carried out by offsetting mutual claims include one-time (random) offsets and periodic settlements, which, in turn, are divided into clearing and non-clearing settlements. Clearing services are most applicable in Russia in the securities market and consist in the fact that the clearing organization, in accordance with Art. 6 of the Federal Law "On the Securities Market" carries out activities to determine mutual obligations (collection, reconciliation, adjustment of information on transactions with securities and preparation of accounting documents on them) and their offset for the supply of securities and settlements on them.

Under form of payment means the method of making non-cash payments using the established payment document. The choice of method affects the guarantee of settlements.

Regarding the use of settlement documents, the Regulation on non-cash payments establishes the procedure for their execution, acceptance, withdrawal and the procedure for returning unused settlement documents from the file cabinet in case the client closes the account. Settlement documents are valid for presentation to the servicing bank within ten calendar days, not counting the day of their issuance.

The Civil Code does not contain an exhaustive list of settlement operations carried out by banks from the bank accounts of enterprises, but provides for the use of only the main ones, i.e. settlements by payment orders, settlements by letter of credit, settlements by checks, settlements by collection. The norms of the Regulation on non-cash payments also apply to these forms.

According to Art. 863 GK when paying by payment order the bank undertakes, on behalf of the payer, at the expense of the funds in his account, to transfer a certain amount of money to the account of the person indicated by the payer in this or in another bank within the time period provided for by law or established in accordance with it, unless a shorter period is provided for by the bank account agreement or is not determined by the customs of business turnover applied in banking practice.

51. PAYMENTS BY LETTER OF CREDIT, BY COLLECTION, CHECK

In accordance with Art. 867 GK in settlements under a letter of credit the bank acting on behalf of the payer to open a letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments to the recipient of funds or pay, accept or discount a bill of exchange or authorize another bank (executing bank) to make payments to the recipient of funds or pay, accept or discount a bill of exchange.

Features of the letter of credit:

a) warranty function;

b) the possibility of partial payments from the amount of the letter of credit;

at) the terms of the letter of credit may provide for the acceptance of a person authorized by the payer. In this case, the payer's representative himself gets acquainted with the documents submitted by the recipient of funds, and agrees to the execution of the letter of credit by making a certain inscription on these documents. Although the payer at the same time assumes the risk of unreasonable payment to his counterparty, for example, according to forged documents from the latter.

According to Art. 874 GK for collection settlements the bank (issuing bank) undertakes, on behalf of and at the expense of the client, to take actions to receive payment and (or) acceptance of payment from the payer.

The issuing bank, having received documents from the client (creditor), starts the collection procedure itself or sends them to the executing bank. Further, the executing bank submits all documents to the payer for making a payment or for acceptance in the form in which they were received. Additionally, the documents may contain only marks and inscriptions of the bank, necessary for registration of the collection operation.

Documents presented for collection may be subject to payment either upon presentation or at another time (in this case, the executing bank presents the documents to the payer for acceptance).

The main feature of payments by checks lies in the fact that a check is not only a settlement document, but also a security, which, according to Art. 877 of the Civil Code contains an unconditional order of the drawer of the check to the bank to pay the amount indicated in it to the holder of the check.

Check - this is a documentary, monetary and administrative, secured by funds in a bank account, an urgent, publicly authenticated (i.e., without presenting a check, the bank will not pay for it) security. A check has more functions than other settlement documents.

Three persons act as participants in a check legal relationship: the drawer, the payer of the check (exclusively the bank) and the holder of the check.

The check is paid by the paying bank at the expense of the drawer's funds.

52. TRADE SECRET INFORMATION

Many entrepreneurs don't appreciate the fact that trade secret - this is the confidentiality of information organized in a certain way, allowing its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits if the entrepreneur has taken organizational and legal measures to fix and protect it .

Information constituting a trade secret - scientific, technical, technological, production, financial, economic, organizational, managerial, trade and other information with the following characteristics:

1) authenticity;

2) sufficiency for commercial use;

3) actual or potential commercial value due to the unknown information to third parties;

4) there is no free access to this information on a legal basis;

5) the owner has established a trade secret regime.

Thus, the participants create a special regime for the protection of commercial information in their contract. Such important information for an entrepreneur as scientific works, technical, technological solutions, non-patent inventions, computer programs, a card file of suppliers (consumers), information revealing the tactics of negotiating, terms of transactions (price levels, discounts, etc.) will receive legal protection. ), various competitive materials, commercial secrets (sales volume, customers, production costs, etc.), organizational secrets (divisional structure, operations, management decisions), business ties (relationships with partners).

Often, participants in contractual relations include in the list of confidential information oral, i.e., information not recorded on material carriers (for example, preliminary conditions of transactions expressed at negotiations, meetings, marketing offers), which, from the point of view of its protection, looks doubtful and undermines the value of the agreement in in general.

53. RESPONSIBILITY AND PROCEDURE FOR SETTLEMENT OF DISPUTES OF ENTREPRENEURS

Under legal responsibility understand the measure of coercion established by the state for the committed offense.

The liability of entrepreneurs is provided for in various branches of law and is divided into the following types:

1. Civil liability according to ch. 25 of the Civil Code comes for violation of obligations of debtors to creditors and consists in the obligation to compensate for the damage caused to creditors. A person who has not fulfilled an obligation in the course of entrepreneurial activity shall bear property liability, unless he proves that proper fulfillment was impossible due to force majeure.

2. Administrative Responsibility established by the Code of Administrative Offenses of the Russian Federation, Federal Laws "On Licensing Certain Types of Activities", "On Protection of Competition", "On Advertising", etc.

3. Tax Liability installed NC.

4. Criminal liability provided for in the Criminal Code, in particular Sec. 21 "Crimes against property", Ch. 22 "Crimes in the sphere of economic activity", Ch. 23 "Crimes against the interests of service in commercial and other organizations", Ch. 28 "Crimes in the field of computer information.

The parties have the right to determine for themselves one of three options for resolving disputes:

▪ claims procedure for resolving disputes;

▪ conducting disputes in arbitration;

▪ conducting disputes in the state arbitration court.

The establishment of a claim procedure for the settlement of disputes guarantees the parties the opportunity to resolve the dispute that has arisen out of court. Moreover, until the parties fulfill all the conditions of the claim procedure, none of them can apply to the arbitration court.

To apply to the arbitration court, you must specify its full name and location. Conducting disputes in an arbitration court allows you to get a decision faster, cheaper and with less formalities than in a state arbitration court.

But both the first and second options, of course, do not eliminate the right of any party to file a claim with an arbitration court.

54. WAYS TO ENSURE THE PERFORMANCE OF CONTRACTUAL OBLIGATIONS

In contractual relations, there are situations when the risk of non-fulfillment of obligations is quite large. In addition to subjective factors associated, for example, with a low legal culture, bad faith of the debtor, etc., the risk is influenced by factors that are objective for the Russian "business climate", such as inflation, a shortage of means of payment, the intensity of legislative changes, etc.

In order to make the position of the creditor more stable, he is given the opportunity to protect the violated right in various legal ways. At the same time, in the face of growing competition, the entrepreneur must rely primarily on himself, on the search for pre-trial civil law ways to resolve the conflict.

Measures that encourage the debtor to properly fulfill obligations and guarantee the rights of the creditor against the actions of an unscrupulous debtor are called ensuring fulfillment of obligations.

At the heart of modern means of ensuring entrepreneurial obligations are those developed by Roman law civil law methods: forfeit, surety, bail. The Civil Code, as well as the Law of the Russian Federation "On Pledge", the Federal Law "On Mortgage (Pledge of Real Estate)", the Law of the Russian Federation "On the Organization of Insurance Business" establish methods (pledge, mortgage, deposit, withholding, forfeit, bank guarantee, surety, insurance) and objects to ensure (securities, real estate, goods, etc.) the fulfillment of obligations.

The list of ways to ensure is legally unlimited (i.e., an opportunity is created for law-making by specialists). The methods used are divided into two groups and apply to the debtor:

1) according to law (for example, recovery of a penalty, retention of property);

2) contractual (constituting the majority), which must be specifically agreed upon using legislative provisions (for example, pledge, guarantee), or, due to the lack of direct instructions in the law, to establish a legal mechanism in the contract (for example, measures of operational impact on the implementation of agreements).

The principle of freedom of contract allows the use of a variety of combinations of ways to ensure the fulfillment of obligations. Ways out of problematic situations, developed in the contract on the basis of current legislation, should be the most adequate to the current situation, prompt and economical, otherwise the expediency and effectiveness of the main obligation are lost. Moreover, when negotiating the terms of the contract, not every partner will agree to a large penalty or the provision of a deposit.

55. PENALTY

forfeit (fine, penalty interest) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in case of delay in performance (Article 330-333 of the Civil Code).

Depending on the grounds for establishing legal and contractual forfeit. The contractual penalty is established by the parties themselves, and if the contract does not contain conditions for a penalty, then this means the operation of a legal penalty, which does not depend on the will of the parties. Moreover, the parties cannot, by their agreement, reduce the size of the legal penalty (Article 332 of the Civil Code). However, if payable under Art. 521 of the Civil Code, the penalty is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty (Article 333 of the Civil Code). But, on the other hand, a small penalty in the conditions of inflation in the economy, bankruptcy of the debtor, etc. often loses its practical meaning.

The penalty finds its expression in a fine or penalty.

Штраф - a one-time chargeable penalty, determined in a fixed amount of money or as a percentage or other proportion to a certain value.

penalty - a penalty collected continuously, on an accrual basis for each day of delay (for example, 0,5% of the outstanding amount for each day of delay).

Since the general measure of civil liability is compensation for damages, from the point of view of the combination of a penalty and compensation for damages, four types of penalty are distinguished - set-off, penalty, exclusive and alternative:

1) credit allows the creditor, in addition to the forfeit, to demand compensation for losses in the part not covered by the forfeit;

2) penalty area (cumulative) entitles the creditor to demand compensation in full for the damages caused and, in addition, the payment of a penalty;

3) exceptional means the non-admission of compensation for losses in the part not covered by the penalty, i.e., eliminates the right of the creditor to recover losses;

4) alternative provides for the right of the creditor, depending on the situation, to recover either a penalty or damages.

The penalty is certainly convenient for the creditor in that in order to collect it, the creditor is not required to prove the existence and amount of losses caused to him. And at the same time, it is not secured by the debtor's funds, which means that there is a high risk of non-payment. Thus, each of the parties can assess in advance their interest in the proper performance of the obligation.

Since any type of penalty is a form of civil liability of the party, for this reason the debtor is exempted from paying the penalty if he proves that, by virtue of law or contract, he should be exempted from liability.

56. Pledge and retention

Bail is a proprietary way of securing obligations. In accordance with Art. 336 of the Civil Code, any property having a monetary value, including things and property rights (claims), can be the subject of pledge.

Possible collateral options:

1) pledge with leaving the property with the pledgor and pledge with the transfer of property to the pledgee - mortgage. According to the criterion of the location of the collateral property in accordance with Art. 338 Civil Code and Art. 5 of the Law of the Russian Federation “On Pledge”, the subject of the pledge can be any property, with the exception of real estate and goods in circulation;

2) the pledged property was provided by the owner-debtor or with the participation of a third party, the owner or custodian of the pledged property;

3) by objects: pledge of goods (including in circulation and in a commodity warehouse), foreign currency, securities; property rights, rights to industrial property, cash, precious metals and precious stones, mortgage (real estate pledge); pledge of things that may arise in the future, etc..

A pledge of goods in circulation means that the pledgor, while retaining the goods, has the right to change the composition and natural form of the pledged property - commodity stocks, raw materials, materials, finished products, etc., so that their total value at any time of the pledge obligation was not less than specified in the contract.

The specificity of the pledge of a share in a limited liability company requires obtaining the consent of all members of the company in advance for the sale of the share in the event of a loan default;

4) mutual pledge (each party provides a pledge to secure its obligation, as a rule, in fact, there is an exchange of documents certifying the rights to property). The burden shows the seriousness of intentions;

5) subsequent pledge (if there are several creditors, the pledgor pledges the already pledged object to the next creditor);

6) pledge of rights to things owned and pledge of rights to other people's things (for example, the right to lease).

At the same time, in accordance with Art. 335 of the Civil Code, a pledge of the right to lease or another right to someone else's thing is not allowed without the consent of the owner of the thing or the person to whom this thing belongs on the right of economic management, if the law or the contract prohibits the alienation of this right without the consent of these persons.

Retention is a proprietary way of securing obligations. In relations between two entrepreneurs, the creditor has the right to retain the thing of the debtor (even if there are no indications to this in the contract) in the event that the debtor fails to fulfill his obligation on time and to retain it until the obligation is fulfilled.

Article 359 of the Civil Code allows for the establishment in the contract of the possibility of changing or prohibiting the retention of things.

57. GUARANTEE AGREEMENT. DEPOSIT

On surety agreement the guarantor undertakes to be responsible to the creditor of another person for the fulfillment by the latter of his obligations in full or in part (Article 361 of the Civil Code). Guarantee relationships require compliance with a number of necessary requirements:

▪ the guarantee agreement must be concluded in writing;

▪ subject of the agreement - the obligation in respect of which a guarantee is given;

▪ it is necessary to indicate the amount of money within which the guarantor is liable;

▪ if a guarantee agreement is concluded by the guarantor sending a letter of guarantee to the creditor, then the contract is considered concluded from the moment the guarantor receives acceptance from the creditor (in writing a letter, telegram, etc.);

▪ a guarantee agreement is considered concluded when the agreement between the creditor and the debtor contains a reference to the letter of guarantee. In this case, acceptance will be the implicit actions of the creditor (concluding a loan agreement and issuing a loan).

Guarantor obligations:

1) full or partial guarantee, i.e. the guarantor can regulate the scope of his responsibility and be responsible for the fulfillment of the obligation by the debtor in whole or in part;

2) solidary (the creditor has the right to present a claim either against the guarantor, or against the debtor, or against both at the same time) and additional (the creditor is first obliged to present a claim to the debtor, and if he fails to fulfill the obligation, to the guarantor);

3) co-guaranteeship (i.e., guarantors act jointly with respect to one debtor and under the Civil Code are jointly and severally liable, but they can establish it in shares in a contractual manner;

4) guarantee on an existing claim и surety for a claim that will arise in the future.

deposit the amount of money issued by one of the contracting parties on account of payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution is recognized.

The deposit performs four functions:

1) payment, i.e. issued on account of payments due under the contract;

2) verification, i.e., the fact of the existence of a transaction is confirmed;

3) security;

4) compensatory.

The peculiarity of the implementation of the deposit in case of non-fulfillment of the obligation by one of the parties is as follows:

▪ the party that issued the deposit is punished for the amount of the deposit;

▪ the party that received the deposit returns the deposit in double amount.

To avoid dispute (for example, confusion with an advance), the transferred amount should be referred to as a "deposit" in a written contract.

In business contracts, combinations of various methods of ensuring the fulfillment of obligations are also acceptable, which also has a downside - it increases the costs of the debtor and the creditor.

58. BANK GUARANTEE

By virtue of bank guarantee (Article 368-379 of the Civil Code), a bank, other credit institution or an insurance organization (guarantor) give, at the request of another person (principal), a written obligation to pay the principal’s creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor, a sum of money upon presentation by the beneficiary of a written request for her payment.

A bank guarantee, as one of the newest ways to ensure the fulfillment of an obligation in Russian law, has its own specific features that distinguish it primarily from a guarantee:

1) a bank guarantee is a unilateral will of the guarantor and, therefore, is a unilateral transaction;

2) the validity of a bank guarantee does not depend on the main obligation for which it was issued, even if the guarantee contains a reference to this obligation (Article 370 of the Civil Code);

3) a bank guarantee is issued only by a legal entity licensed to carry out banking or insurance activities;

4) a bank guarantee is provided for a fee, i.e. it is a paid transaction;

5) recourse claims from the guarantor to the principal arise only on the basis of an agreement between them;

6) the obligation of the guarantor to the beneficiary is limited to the payment of the amount of money specified in the bank guarantee, and at the same time, the beneficiary has the right to demand payment of the penalty provided for in the guarantee, compensation for losses, etc.

The types of bank guarantees include:

▪ direct guarantee, i.e. a guarantee in favor of the principal's counterparty;

▪ guarantee through a bank, i.e. a guarantee in favor of the bank serving the principal's counterparty;

▪ irrevocable by law or revocable, if such a rule is established in it.

The bank guarantee comes into force from the moment of its issuance or with a suspensive condition (Article 157 of the Civil Code), if the guarantee stipulates that it comes into force "from a future date."

In Art. 378 of the Civil Code exhaustively defines the grounds for terminating a bank guarantee:

1) payment of the corresponding amount by the guarantor to the beneficiary;

2) expiration of the warranty period;

3) waiver by the beneficiary of his rights under the guarantee.

59. MEASURES OF OPERATIONAL IMPACT. ACTION OPTIONS FOR THE SUPPLIER IN BREACH OF OBLIGATIONS BY THE PAYER

In the contract, it is extremely important to establish the possibility of unilateral change or termination of the contractual obligation. This is served by measures of operational influence, i.e., legal actions applied in the contract to the offender. Such measures may be provided for by law or by agreement of the parties. How operational actions they are applied in case of violation of a counter civil law obligation by the injured party in relation to the faulty debtor.

Operational measures are characterized by the following factors:

a) these measures are not directly provided for in the legislation as ways to ensure the fulfillment of obligations;

b) the parties apply these measures if they are interested in the actual performance of the main obligation under the contract;

at) measures are effective if the mechanism of action is established in the contract;

d) the application of measures occurs simultaneously with a violation;

d) simplified method of application;

f) efficiency of application;

g) the possibility of complex application both with methods of ensuring the fulfillment of obligations, and with measures of responsibility.

The specificity of these measures also determines the goals of their application, which are generally related to the fact that the parties maintain the existing business ties between them.

Let us consider measures of operational impact from two points of view: from the side of the creditor-payer and from the side of the creditor-supplier.

Variants of actions of the supplier in case of violation of obligations by the payer.

1. Transfer of the payer to other forms of payments in case of violation by the latter of the payment schedule or in case of underpayment, another form is established (for example, from payment orders to collection or letter of credit) or prepayment.

This measure is a form of combating violations of settlement discipline. The essence of this action is a unilateral change in the form of settlements (by prior agreement with the bank) to a more stringent and unfavorable for the debtor.

2. Transfer of the shipped (but not paid) goods for safekeeping of the faulty payer (with ensuring the safety of the quantity and quality of the goods) and the retention of the supplier's ownership of it until the receipt of funds to the supplier's account.

This measure does not allow the payer, who actually accepted the unpaid goods, to obtain the right of ownership to it and dispose of it.

3. Return of goods to the supplier (to the place indicated by the supplier) at the expense of the payer.

4. Transfer of claims to third parties.

60. OPTIONS FOR ACTION BY THE PAYER IN BREACH OF OBLIGATIONS BY THE SUPPLIER

1. Elimination of defects in the received goods by the payer himself (possibly with the help of third parties) with the attribution of costs to the account of the defective supplier or the acquisition of undelivered goods from third parties with the attribution to the supplier of all necessary and reasonable costs for their acquisition. It is used in cases when the payer urgently needs a quality product and for various reasons he cannot use a replacement for a low-quality product from a given supplier.

There are several reasons why this measure should be applied:

▪ such defects should not be specified in advance by the seller;

▪ violation of quality requirements should not be significant, since for such a case the law provides for other consequences (clause 2 of Article 475 of the Civil Code);

▪ defects must relate to those for which the seller is responsible (i.e. they arose before delivery to the buyer or for reasons that arose before that moment, or if the seller provided a guarantee for the goods);

▪ the buyer must comply with the deadlines for detecting defects established in Art. 477 and 518 Civil Code;

▪ the buyer must notify the supplier of the detected defects within a reasonable time, and if the latter, having received such notification, does not immediately replace the delivered goods with goods of proper quality, then the buyer may apply the above measure against him.

2. Transfer of a supplier supplying low-quality goods to receive payment:

▪ in another form (for example, from payment orders for collection or letter of credit);

▪ after certain actions that the supplier must perform (for example, adaptation, examination, replacement of goods, etc.);

▪ after certain actions that the payer must perform (for example, accept goods for quality).

3. Refusal of the payer to receive or pay for the goods in cases of:

▪ low-quality goods;

▪ goods delivered late;

▪ goods where the assortment requirements are not met;

▪ goods in insufficient quantity.

4. Product price reductionsupplied in insufficient quantities or of poor quality unilaterally and in such proportion as the value which the goods actually delivered had at the time of delivery is related to the value which the goods in conformity with the contract would have had at the same time.

Moreover, a markdown is made even if the supplier has not committed actions subject to liability.

61. TERMINATION OF OBLIGATIONS UNDER THE CONTRACT

Grounds for termination of contractual obligations are such legal facts in connection with which the rights and obligations of the parties to the obligation are terminated.

For participants in commercial activities, it is important to clearly define in the contract the moment when their obligations are considered terminated. There are cases when, in fact, the obligation was improperly fulfilled, the creditor did not file any claims, and the debtor erroneously interprets this as the termination of obligations, although the agreement between the specified participants continues to operate.

The only principle of fulfillment of obligations is proper execution. If the parties admit the possibility that they will not be able to terminate the obligations by proper performance, but wish to prevent the application of liability measures in the interests of long-term cooperation, then in the contract they can establish:

▪ application compensationwhen the debtor, in return for performance, provides funds, property, provides services, etc.;

▪ innovation, i.e. replacing the original obligation with another, providing for a different subject or method of execution; for example, to achieve the same result, in the case of innovation, the contractor may propose a different work technology;

▪ coincidence of debtor and creditor in one person, for example, if a certain condition under the contract is not fulfilled, the participants of the debtor company undertake to make a decision to merge or join the creditor company in order to pay off mutual obligations by this action by the coincidence of the debtor and the creditor in one person;

-▪ occurrence of force majeure circumstances, so-called force majeure circumstances, in connection with which neither party is responsible for the impossibility of performance, since the basis arose due to objective circumstances. Signs of force majeure circumstances are unforeseen and unpreventable. If the contract does not establish force majeure circumstances, then by law, when they occur, the party must be released from fulfilling its obligations, but in the contract these circumstances are established in order to supplement the provisions of the law with new circumstances that fall under the criteria of “force majeure”.

Regardless of the contractual provisions, at the request of one party, the obligation is terminated offset a counter homogeneous claim, the term of which has come or the term of which is not indicated or is determined by the moment of demand; as well as termination of a party to an obligation:

a) the death of the debtor, if the performance cannot be made without the personal participation of the debtor or the obligation is otherwise inextricably linked with the personality of the debtor;

b) the death of the obligee, if the performance is intended personally for the obligee or the obligation is otherwise inextricably linked with the person of the obligee;

at) liquidation of a legal entity (debtor or creditor).

62. COMMERCIAL REPRESENTATION

It is obvious that the constant presence of an entrepreneur in a particular market, the established reputation, the effective promotion of goods on the market, and, consequently, the disclosure of new business reserves are in a stable and dynamically functioning system of representative structures.

The reputation of an entrepreneur in the market depends on how he is represented. Reputation requires regular maintenance, and for this, representation must be conducted professionally, like any other type of business.

An entrepreneur can choose one of two options for building relationships with his representatives, which differ depending on the legal regulation: commercial representation and labor representation.

Commercial representation - this is a kind of civil-legal representation with specific features of doing business, which arises as a type of entrepreneurial partnership.

Commercial representation regulated by civil law and according to Ch. 10, 49 GK has the following features:

1) based on civil law transactions: power of attorney, contract of agency or agency;

2) a representative (attorney, agent) acts in commercial circulation on behalf of the person represented (principal, principal) and at his expense;

3) a transaction made by a representative on behalf of the represented directly creates, changes and terminates the civil rights and obligations of the represented;

4) scope of actions - legal and factual;

5) activity is regular;

6) the purpose of the activity is to make a profit, therefore the relationship between the representative and the represented is of a compensatory nature;

7) representative (attorney) acts for remuneration;

8) the representative acts with the diligence of a bona fide businessman;

9) the representative is liable as an entrepreneur with all his property;

10) the procedure for unilateral termination of the contract by the representative is legally complicated, since the representative is obliged to notify the principal no earlier than 30 days in advance and compensate for the losses caused by the unilateral termination of the contract.

63. COMMERCIAL INTERMEDIATION. LABOR REPRESENTATION

Intermediary services are in stable demand in the face of increasing complexity of business relations. The involvement of intermediaries is especially relevant at the stage when the entrepreneur is experiencing a lack of capital, the absence of established stable ties in the business community and, consequently, a lack of trust on the part of potential business partners.

Commercial mediation is an entrepreneurial activity, which consists in the provision of services by an intermediary to business entities in the course of their entrepreneurial activities through mediation on their own behalf, in the interests, under control and at the expense of the entity receiving the services of an intermediary.

Common features of all intermediaries:

1) acting on one's own behalf and at one's own or someone else's expense;

2) the main risk of intermediaries is associated with the lack of their own business, independent of anyone.

These services can be classified according to different criteria, the main of which is the distinction between such types of civil law obligations as a commission agreement and an agency agreement.

Labor representation regulated by labor law and has the following features:

1) the representative is an employee of the company, therefore the actions of the representative are based on an employment contract. An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure the working conditions provided for by labor legislation, to pay wages to the employee in a timely manner and in full, and the employee undertakes to personally perform the work determined by this agreement. function, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code);

2) the representative acts in civil circulation on behalf of the represented and at his expense;

3) scope of actions - legal and factual;

4) activity is regular;

5) the representative acts for remuneration, regardless of the results of his work;

6) the powers of a representative are limited by the norms of labor legislation, an employment contract, corporate acts (including internal labor regulations) of a commercial organization.

64. CONTRACT OF ORDERING

Contract of agency, used in commercial activities, is consensual, bilaterally binding and compensated. The parties to the agency agreement are the principal and the attorney. Both individuals and legal entities can act as principals and attorneys.

Subject agency agreements - legal actions that must be defined in the agency agreement.

The strategic goal of the principal under the contract - expand the scope of their interests and their influence, and attorney's purpose - service. Therefore, the contract of agency is the basis for the emergence of the attorney's authority, by virtue of which, as a result of the commission by the attorney of legal actions, the rights and obligations corresponding to these actions arise, change or terminate directly with the principal.

The trustee acts on behalf of the trustee. The conditions for the validity of the principal's instructions are their legitimacy, feasibility and specificity. The instructions of the principal that do not meet these criteria do not entail legal consequences. Deviation from the instructions of the principal without his consent may be due only to the interests of the principal. The obligation to notify the principal of the deviations made is imperative for an ordinary attorney (clause 2 of article 973 of the Civil Code), and for an attorney acting as a commercial representative, it is dispositive (clause 3 of article 973 of the Civil Code).

The issuance of a power of attorney to an attorney is always necessary, except for cases when the powers of the attorney are clear from the situation in which he acts (part 2, clause 1, article 182 of the Civil Code), as well as commercial representation, in which the attorney can act on the basis of an agreement with the principal ( item 3 of article 184 of the Civil Code).

65. COMMISSION AGREEMENT

Under a commission agreement, an entrepreneur is provided with intermediary services.

Commission agreement - consensual, reimbursable and bilaterally binding. Its parties are the committent and the commission agent.

Subject contracts - the commission agent's transactions on behalf of the principal and at his expense. Unlike the attorney in the contract of commission, the commission agent acts on his own behalf, therefore he acquires rights and becomes obligated in a transaction made by him with a third party.

The amount of the commission agent's commission and additional remuneration for delcredere are not essential conditions commission agreements.

The commission agent assumes the execution of the commission order at his own risk, which consists in the fact that if the execution of the commission agreement turned out to be impossible for reasons beyond the control of the committent, the commission agent does not retain the right to commission and reimbursement of expenses incurred.

As a general rule, the conclusion of a subcommission agreement is permissible, unless it is expressly prohibited by the commission agreement. The main commission agent remains responsible to the committent. The entry of the committent into direct relations with the subcommission agent, as a general rule, is permissible only with the consent of the commission agent.

The commission agent's deviation from the instructions of the committent is lawful only if such a deviation is necessary to ensure the interests of the committent and it is impossible to obtain from him prior consent to such a retreat. If a business entity acts as a commission agent, the contract may establish an exemption from the need to obtain the prior consent of the commission agent. In other cases, the condition of the contract on granting the commission agent the right to deviate from the instructions of the committent without a preliminary request is void.

Failure by the committent to fulfill the obligation to release the commission agent from obligations to a third party entails the emergence of the commission agent's right to demand compensation from the committent for the losses caused by such non-fulfillment.

The right of the committent at any time to refuse to perform any commission agreement cannot be limited by the agreement.

Unlike the committent, the commission agent, as a general rule, is not entitled to unilaterally refuse to fulfill the commission agreement concluded for a certain period.

Signs of commission mediation:

▪ based on a commission agreement (Chapter 51 of the Civil Code);

▪ an intermediary (commission agent) acts in civil transactions on his own behalf and at the expense of the principal;

▪ scope of actions within one or several transactions;

▪ the relationship is temporary (one-time) in nature;

▪ an intermediary (commission agent) acts for a fee;

▪ the commission agent bears responsibility as an entrepreneur.

66. AGENCY AGREEMENT

Agency contract is consensual, bilaterally binding and reimbursable. The parties to this agreement are the agent and the principal.

Subject agency agreement - the commission of legal and actual actions on behalf of the principal (the scope of the agent's actions, therefore, exceeds the actions of the commission agent and attorney under the relevant commission and commission agreements).

Giving an agent the general authority to transact on behalf of the principal implies that the agent has the authority to transact any transactions that the principal himself might transact. The burden of proving that a third party is aware of the restriction of the agent's powers lies with the principal. Although the agency agreement is paid, the condition on the amount of the agency fee is not one of the essential terms of this agreement.

Acceptance by the principal of the agent's report is a one-way transaction. Silence of the principal during the period established in Art. 1008 of the Civil Code or the agency agreement, the term is recognized as an expression of his will to accept the report.

As a general rule, the conclusion of a subagency agreement does not require the consent of the principal. The main agent remains responsible to the principal. The subagent has the right to act on behalf of the principal only if the main agent entrusts him with the execution of the agency assignment.

Signs of agency intermediation:

1) based on an agency agreement;

2) the peculiarity of legal regulation provides for the subsidiary application to relations arising from an agency agreement of the rules on an agency agreement or a commission agreement;

3) the agent acts in circulation on his own behalf or on behalf of the one in whose interests he acts, i.e. the principal;

4) the scope of actions - legal and factual (for example, conducting an advertising campaign), i.e. the scope of actions is wider than that of a commission agent or an attorney;

5) the relationship is ongoing;

6) the agent acts for a fee;

7) the agent is responsible as an entrepreneur.

Some types of intermediaries can be identified by their specific functions:

1. exclusive agent or sole rights for trade (distributor).

2. Agent (franchisee), using means of individualization of the copyright holder - the right to a company name, commercial designation.

3. Agent (delcredere) in addition to agency functions, it guarantees to the principal the fulfillment by a third party of obligations arising from the concluded transaction.

4. Agent (auctioneer) has the authority to sell goods at auction according to pre-announced rules, with the right to receive the purchase price.

5. consignment agent has the right to:

a) sell the goods of the principal to third parties from their warehouses (because they own the goods of the principal);

b) to borrow money against the security of goods, to issue commodity loans.

6. exchange intermediary (broker) or dealer) is a professional participant in the securities market and a member of the commodity exchange.

67. TRANSPORTATION OF CARGO. CARGO CONTRACT

The relationship between shippers, professional carriers and consignees is traditionally regulated in detail by transport charters and codes (TUZD, KVVT, UAT, Air Code, KTM, Water Code) adopted at the level of federal law. In ch. 40 of the Civil Code includes only certain provisions that define the system of legal regulation of transportation, and for the rest, the norms of the Civil Code refer to transport charters and codes.

All major contracts providing transportation services (a contract for the carriage of goods; an agreement on the organization of transportation of goods; a contract for chartering (charter), a contract for a transport expedition), are written, paid and bilaterally binding. Only the contract for the carriage of goods is real, and the rest are consensual contracts.

In commercial activities contract for the carriage of goods is applied under the following circumstances: one-time nature, tight deadlines, the perspective of the relationship between the sender, carrier and recipient of the cargo is unknown.

Hand contracts - the sender of the goods and the carrier.

Subject of the contract - the activities of the carrier for the delivery of the cargo entrusted to him by the sender to the destination and its delivery to the person (recipient) authorized to receive the cargo. The sender undertakes to pay the established fee for the carriage of the goods.

The conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance of a consignment note to the sender of the goods, which contains the terms of the contract of carriage.

The terms for the carriage are established in the manner prescribed by law, and if they are not established, then the criterion of a reasonable time is applied.

Responsibility for non-fulfillment and improper fulfillment of transportation obligations is established by law, as well as by the contract of carriage. If the carrier's liability is established by law, agreements on its limitation and elimination are, as a general rule, void.

The Civil Code establishes the grounds for the liability of the carrier and the consignor of cargo for failure to perform or improper performance of their obligations, respectively, for the supply and use of vehicles, and clause 2 of Art. 794 of the Civil Code establishes the grounds for the release of the parties to the contract of carriage from liability.

The basis of the carrier's liability is the presence of his guilt in violation of the contract of carriage. The fault of the carrier is presumed unless he proves otherwise. The carrier's liability for loss, shortage or damage to cargo or baggage is limited to the amount of real damage caused to the sender or passenger, but in addition to this, the carrier is obliged to return the carriage fee if it is not included in the cost of the cargo.

68. AGREEMENT ON ORGANIZATION OF CARGO TRANSPORTATION. CHARTER CONTRACT (CHARTER). CONTRACT OF TRANSPORT EXPEDITION

Parties to the contract from the organization of cargo transportation - carrier and cargo owner.

Subject of this agreement - the carrier undertakes to accept, and the cargo owner - to present for transportation cargo in the stipulated volume.

A feature of this agreement is its long-term and systematic nature of transportation, therefore, the obligatory conditions of the agreement on the organization of transportation are the volumes, terms and procedure for providing vehicles and presenting goods for transportation, the procedure for settlements, etc.

Parties to the charter agreement - freighter and charterer.

Subject of this agreement - the charterer undertakes to provide the charterer for a fee with all or part of the capacity of one or more vehicles for one or more flights for the carriage of goods.

A sign of direct mixed traffic is transportation by different modes of transport under a single transport document. Currently, direct multimodal transportation is regulated by transport charters and codes, as well as other regulations. If the carrier fulfills this condition, the sender is not entitled to refuse the submitted vehicles.

Parties to the contract of transport expedition - freight forwarder and client (consignor or consignee). The carrier itself can also act as a forwarder.

Subject contracts - the performance or organization of the performance of services by a freight forwarder related to the carriage of goods, for a fee and at the expense of the client. Given in paragraph 1 of Art. 801 of the Civil Code, the list of services that may be included in the subject of the contract of carriage is not exhaustive, but demonstrates the diversity of relations between the parties. These services include the conclusion by the freight forwarder on behalf of the client or on its own behalf of contracts for the carriage of goods, ensuring the dispatch and receipt of goods, obtaining documents, checking the quantity and condition of the goods, loading and unloading them, storing the goods, etc.

The responsibility of the freight forwarder is determined according to the general rules of the norms of Ch. 25 of the Civil Code, including Art. 393, 401 GK. Rule Part 2 Art. 803 of the Civil Code is due to the close relationship between the contract of transport expedition and the contract of carriage.

The responsibility of the client for failure to fulfill the obligation to provide the forwarder with the information specified in paragraph 1 of Art. 804 of the Civil Code, is determined by the rules of Ch. 25 GK.

As a general rule, Art. 805 of the Civil Code, the forwarder has the right, unless it is prohibited by the contract, to involve other persons in the performance of his duties, remaining responsible to the client for the execution of the forwarding contract by the involved persons.

A feature of the transport expedition agreement is the right of participants to unilaterally refuse further participation in it.

69. CONCEPT AND TYPES OF WAREHOUSE SERVICES

The efficiency of wholesale trade depends on the quantity and quality of services provided by the wholesale base to the buyer. In modern conditions, the warehouse business is characterized by a fairly extensive range of services.

According to the nature (content), warehouse services are divided into technological, organizational and commercial.

technological services include storage, sorting, packaging, packaging, labeling, etc.

Organizational services are included in the cost of the goods - this is the provision of information, advice on the formalization of relations, transportation, warehousing, assortment, quality and use of goods; assistance in marketing research; study of demand, method of advertising and sales, etc.

Commercial services mean that the wholesale warehouse assumes additional obligations on a reimbursable basis to conduct transactions as a representative or intermediary: sale of goods, advertising, trade and intermediary and commission services, issuance of securities in circulation, etc.

For wholesale warehouse turnover, the following apply: wholesale methods:

1) sale of goods from warehouses by personal selection of goods by buyers;

2) according to written (teletype, telefax, telegraph) applications;

3) through traveling agents (traveling salesmen);

4) through mobile sample rooms;

5) through auto warehouses;

6) postal parcels.

An example of the expansion of warehouse services is demonstrated by Alliance Russian Textile OJSC, which has changed its approach to selling its products: small-scale wholesale supermarkets selling textiles and finished products have been created from several dozen traditional warehouses.

Thus, the gross income of a wholesale organization consists of the total sales of wholesale goods and services.

70. STORAGE CONTRACT

Warehousing agreement in commercial activities, real, bilaterally binding, reimbursable. The parties to the storage agreement are the custodian and bailor. The custodian is a special entity - a warehouse, i.e. an organization that stores goods and storage-related services as an entrepreneurial activity.

The subject of this agreement is the activity of the custodian for the storage of goods transferred by the bailor (without the right to use the goods) and intended for sale with the return of this goods in safety (i.e., in its original state, taking into account its natural deterioration).

The beneficiary pays a fee. Moreover, in case of paid storage, the expenses of the custodian are assumed to be included in the remuneration for storage and are not subject to reimbursement in excess of this remuneration. As a general rule, extraordinary expenses for storage are subject to reimbursement only with the consent of the bailor.

The peculiarity of the warehousing agreement is that the bailor may withdraw from the agreement without giving reasons, by declaring to the custodian about the refusal of his services within a reasonable time. Failure by the bailor to fulfill the obligation to transfer the thing for storage shall entail the emergence of the right of the bailee to compensation for losses and the termination of his obligation to accept the thing for storage.

The custodian of a thing under a paid storage agreement must take all necessary measures to ensure the safety of the thing. The obligations of the custodian, arising in the event of a threat to the safety of things, are established in Art. 893 of the Civil Code is imperative and cannot be changed by agreement.

The risk of losses due to the storage of generally dangerous things in the event that the custodian is not warned about their dangerous properties, as a general rule, lies with the bailor. In an agreement with the participation of a professional custodian, this risk is borne by the custodian, who can transfer the risk of loss to the bailor by proving that they have been deposited under the wrong name.

The keeper is not entitled to transfer the thing for storage to a third party. The exceptions are cases when the bailee is forced to transfer things by circumstances beyond his control and he is deprived of the opportunity to obtain the consent of the bailor.

With the exception of the case of storage with depersonalization, the bailee is obliged to return to the bailor exactly the thing that was transferred for storage.

In the event that, in order to ensure the safety of goods, it is necessary to change the conditions for their storage, the warehouse has the right to take the required measures independently. However, he is obliged to notify the commodity owner of the measures taken (paragraph 1 of article 910 of the Civil Code). But consent to such measures in the future is not required.

If a joint check has not been made, a statement about the shortage or damage to the goods due to its improper storage must be made to the warehouse in writing upon receipt of the goods, and in respect of shortage or damage that could not be detected by the usual method of accepting the goods, within three days receipt.

71. WAREHOUSE REPORTS

Warehousing agreement can be drawn up as warehouse receipt, which is a receipt for acceptance of goods for storage, and warehouse receipts.

Warehouse receipts - documentary, urgent securities confirming the acceptance of goods for storage.

Since warehouse certificates are securities, their characteristics are established in Art. 142 GK.

Mandatory details of warehouse certificates: name and location of the warehouse; warehouse register number; name and location of the goods owner (for a nominal certificate); name and quantity of the stored goods; period of storage or an indication of the storage of goods until demand; the amount and procedure for payment for storage; date of issue; signatures and seals of the warehouse. Failure to comply with the provisions of paragraph 1 of Art. 913 of the Civil Code of mandatory details entails the nullity of these securities.

Types of warehouse certificates are distinguished depending on the procedure for fixing the rights of the owner.

Simple warehouse receipt - non-issue, warehouse, commodity, secured, urgent, bearer, profitable, documentary, marketable security. A simple warehouse receipt is transferred by delivery. The sale or pledge of a warehouse receipt is a sale or pledge of goods, the right of return of which it certifies.

Double Warehouse Certificate - non-issue, warehouse, commodity, secured, urgent, order, two-part - warehouse certificate и pledge certificate (warrant) - profitable, documentary, marketable security. The rights under a double warehouse certificate and its parts are transferred by means of an endorsement. The right to dispose of the goods arises in full only for the owner of both parts of the double warehouse certificate. The holder of only a warehouse certificate has no right to demand the release of goods from the warehouse, although he may alienate this goods. Acquisition of a warehouse receipt without a warrant creates a presumption for the purchaser that the goods are encumbered by the rights of a third party (mortgagor).

The holder of the warehouse receipt only has the right to pledge the goods. This right is limited by the size of the loan issued under the pledge certificate and interest on it.

The consequence of the issuance of the goods warehouse by the pledged goods without returning the pledge certificate and without paying the amount of the debt secured by it is the liability of the goods warehouse for the payment of this amount by the main debtor. In this case, the position of the warehouse is similar to the position of the guarantor, who is jointly and severally liable with the debtor for the main obligation.

72. CONCEPT AND GENERAL CHARACTERISTICS OF FRANCHISING. COMMERCIAL CONCESSION AGREEMENT

Franchising is a new progressive system of business organization, which is used by the largest market participants to distribute their technologies under their own brand name. This is such a form of cooperation between independent entrepreneurs, in which one, who has successfully created one or more enterprises in a certain business area (franchisor), provides other entrepreneurs (franchisees) on a reimbursable basis with the right to use their own way of doing business, which by the time of interaction has been recognized and commercial success. Moreover, franchising generates a new participant in commercial activities, the so-called franchising broker, who acts as a link between the franchising participants, on the basis of an agency agreement (Chapter 52 of the Civil Code).

Franchising is based on commercial concession agreementwhen one party (the copyright holder) undertakes to provide the other party (the 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 copyright holder, including the right to a company name and (or) commercial designation of the copyright holder, on protected commercial information (for example, know-how), as well as on other objects of exclusive rights provided for in the contract - trademark, service mark, etc., with the exception of the name of the place of origin of the goods, since in this case it is important to link the production of goods to a certain area (for example, “Gzhel”, “Palekh”), where secrets and traditions are kept.

Commercial concession agreement - consensual, reimbursable, bilaterally binding, complex (contains rules on the rights to use objects of exclusive rights both subject to registration with the patent office (for example, a trademark) and not subject to registration (for example, a commercial designation), as well as rules on joint activities) . The parties to this agreement are the right holder and the user - individual entrepreneurs and (or) commercial organizations.

An essential term of the contract commercial concession, in addition to the subject, is the volume of use of the subject of commercial concession.

A commercial concession agreement is subject to registration by the justice authority at the location of the right holder or user. In relation to third parties, the commercial concession agreement is considered to have entered into force from the moment of its registration.

If the object of the commercial concession agreement is subject to protection in accordance with patent law, the commercial concession agreement, in addition to registration with the justice authorities, must also be registered with the federal executive body in the field of patents and trademarks - the Russian Agency for Patents and Trademarks. Failure to comply with this requirement entails the nullity of the commercial concession agreement as a whole or in part of this object.

73. VARIANTS OF FRANCHISING

1. Depending on the areas of activity:

1) marketing (commodity) franchising involves the distribution of goods produced by the franchisor and labeled with its trademark through an extensive distribution network of franchisees. The franchisor not only increases the sales volumes of its products, but also regulates sales by assigning certain territories to various franchisees, the distribution of sales volumes between regions. The franchisee is vested with the exclusive right to be the only seller of this product in the assigned territory and the exclusive representative of the franchisor's trademark, i.e. the franchisee becomes part of the franchisor's distribution system;

2) industrial (industrial) franchising is the transfer of rights to manufacture and sell products under the franchisor's trademark, while the franchisor, having a patented technology for the use of raw materials (materials) and the production of finished products, provides the franchisee with these raw materials (materials) and transfers the rights to use patented technologies .

Manufacturing franchising can be of the following types:

a) when the franchisee produces products similar to those of the franchisor;

b) when the franchisee carries out the final technological processing of goods produced by the franchisor;

3) service franchising involves giving the franchisee the opportunity to carry on business under the brand name of the franchisor in the service industry. This type of franchising is most common in a network of branded hotels (for example, international hotel chains "Hilton" and "Sheraton") and restaurants, as well as in a network of laundries, dry cleaners, car repair shops;

4) business franchising (the so-called "business format") is a form of cooperation in which the franchisee is fully identified with the franchisor as a result of transferring to him not only the right to use the company name, but also the technology of organizing and doing business, tested and used by the franchisor.

2. From the point of view of the exclusivity of transferred rights:

1) at simple In franchising, the franchisee is endowed with non-exclusive rights to run a franchise business. This means that the franchisor reserves all rights to the transferred intellectual property, including the conclusion of similar franchise agreements with other entrepreneurs;

2) exceptional franchising implies that the franchisee is vested with the exclusive right to independently conclude franchise agreements in a certain territory on behalf of the franchisor with potential sub-franchisees.

74. ADVANTAGES OF FRANCHISING AS A TYPE OF BUSINESS ACTIVITY FOR ITS PARTICIPANTS

Interests of the franchisor (copyright holder). New opportunities for business development and improvement for the franchisor are as follows:

▪ expanding your business using the assets of other companies (including expanding the distribution network of goods and services);

▪ a brand name becomes more well-known, popular and expensive, which stimulates an increase in demand for this intellectual property;

▪ increasing market participation without violating antitrust laws;

▪ increasing quality control of operating results compared to results under license agreements;

▪ centralization of marketing and advertising activities;

▪ savings in administrative, economic and management costs due to the transfer of part of them to the franchisees and the absence of the need to invest in subsidiaries and branches;

▪ additional income in the form of franchise payments.

To the main risks of the franchisor include the unforeseen increase in costs and the excess of time at the initial stage of creating a franchisee business; risk of wrong choice of territory; the complexity and high costs of monitoring the franchisee's compliance with the terms of the contract; refusal to directly conduct commercial activities in the place where the franchisee operates increases the risk of lost profits.

Interests of the franchisee (user). New opportunities for business development and improvement for franchisees are:

▪ getting a major competitor as a partner;

▪ maintaining the legal status of a legal entity, without the need to transfer a controlling stake in voting shares in its authorized capital to third parties;

▪ the ability to conduct commercial activities in a new area, in the absence of extensive experience and large financial resources;

▪ joining a well-functioning system under a well-known brand name with a guarantee of comprehensive support from the franchisor;

▪ savings on expensive marketing research and advertising; reducing business risks and accelerating return on investment.

To the main risks of the franchisee include the following: low sales volumes that do not cover costs; the inability to influence, and even more so promptly change the overall strategy of the franchisor; many contractual restrictions that do not allow you to act variably in accordance with changing market conditions.

75. THE CONCEPT OF MARKETING ACTIVITIES

Marketing activities is a type of entrepreneurial activity, therefore, it has the general features of entrepreneurship, established in paragraph 1 of Art. 2 of the Civil Code, i.e., this is an independent activity carried out at one's own risk, aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.

Marketing activities have specific signs, Related:

▪ participants (marketing activities can only be carried out by collective or individual entrepreneurs who have professionally chosen this specialization as their main type of business);

▪ functional purpose (marketing is the activity of managing the promotion of goods and services from manufacturer to consumer);

▪ goals (obtaining new information, intellectual products, organizational and commercial experience);

▪ contractual forms for carrying out marketing activities (forms of research and contracting work, transfer of copyrights, provision of agency, representation and consulting services, etc.);

▪ marketing results, i.e. objects of civil rights obtained as a result of marketing activities (results of work, services, information resources (including know-how), information systems, objects of copyright (including rights to computer programs and Database)).

Information and intellectual products obtained with the help of marketing allow you to optimally organize work both within a commercial organization and at the level of fulfilling external obligations; more precisely determine the place of the company and its possible behavior in the market; create and introduce into business circulation for the purpose of making a profit information technologies, computer programs, databases, know-how (subject to the conditions of documentation and confidentiality); trademarks and objects of industrial property.

76. CONCEPT, PRINCIPLES, TYPES AND OBJECTIVES OF MARKETING RESEARCH. SOURCES OF INFORMATION

Marketing research - this is a scientific research within the framework of marketing activities, which includes a targeted systematic collection, ordering and analysis of new data about the industry, the market, its subjects and objects.

Principles marketing research:

1) legality;

2) scientific character, i.e. the application of scientific methods, the objectivity and accuracy of the data obtained;

3) business purpose, i.e. the need for marketing research must be economically justified;

4) contractual nature of the relationship between the researcher and the customer.

Types of marketing research.

By audience reach: discrete projects (the so-called ad hoc projects) - aimed at studying individual specific problems; integrated monitoring studies, which are characterized by regularity, wide coverage, comparability of data over time.

In relation to the customer company: external and internal.

Objectives of marketing research:

1) determine the real and potential market capacity for the product (studying the market capacity contributes to the correct assessment of the company's chances in the market and the prevention of unjustified losses);

2) determine market share;

3) analyze consumer behavior (knowledge of the needs of a potential client will help not only set competitive prices for products, but also make changes to the product itself, optimize promotion channels and advertising strategy, i.e. adjust all components of the marketing mix);

4) conduct competitor analysis or offer analysis (knowledge of competitors' products and marketing policies is essential for better market orientation and competitive advantage);

5) study sales channels and find the most effective of them;

6) assess the total market volume (research on a specific product/service/segment; market segmentation by product categories; market segmentation by brands; market trends).

When performing research, experts rely on data from the following sources of information.

1. Sources of secondary information (desk research) - this is information already available, the collection of which does not require special research:

1) published data from news agencies (for example, RosBusinessConsulting);

2) industry and specialized media;

3) statistical and news information of state bodies (Goskomstat, State Customs Committee, etc.);

4) federal and local laws;

5) Internet;

6) analytical studies of research companies;

7) specialized databases.

2. Sources of primary information (field research) - these are the results of a special study:

1) expert interviews with managers and specialists of companies, with consumers of goods;

2) the results of surveys of specialists and representatives of manufacturing enterprises in the industry;

3) pilot interviews;

4) questioning.

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