Civil law. Part II. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets
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Civil law. Part II. Cheat sheet: briefly, the most important

Lecture notes, cheat sheets

Table of contents

1. CONCEPT, TYPES, CHARACTERISTICS AND SIGNIFICANCE OF THE AGREEMENT OF SALE. RIGHTS AND OBLIGATIONS OF THE PARTIES

Contract of sale - this is an agreement under which one party (seller) undertakes to transfer property to the other (buyer) by paying a certain amount of money for it (Article 454 of the Civil Code).

Types of contract of sale (Section 28, Chapter 30 of the Civil Code):

▪ retail purchase and sale;

▪ delivery;

▪ supply of goods for government needs;

▪ contracting;

▪ energy supply;

▪ sale of real estate;

▪ sale of the enterprise.

Some of the above types of contracts have varieties.

Characteristics of the contract of sale: consensual, compensatory, mutual.

The contract of sale is included in the group of obligations for the transfer of property into ownership (in addition to it, this group includes three more contracts: exchange, donation, rent). This is the most common type of contract in civil circulation. It is widely used both domestically and in international trade.

Significance of the contract of sale lies in the fact that it simultaneously generates both a relative legal relationship (mandatory) and an absolute (real right).

The seller is obliged transfer to the buyer:

▪ goods of appropriate quality (Article 469 of the Civil Code), in appropriate quantity (Article 465, 466 of the Civil Code), assortment (Article 467 of the Civil Code), completeness (Article 478, 480 of the Civil Code) and set (Article 479 of the Civil Code). The condition regarding the quantity of goods is essential; the moment of transfer of goods is the moment of its delivery, or provision for disposal, or transfer of it to the carrier (Article 458 of the Civil Code);

▪ goods in containers or packaging (Articles 481, 482 of the Civil Code);

▪ accessories and documents related to the transferred goods (Article 464 of the Civil Code);

▪ goods free from the rights of third parties to it (Article 460 of the Civil Code). If a third party, who has the right of ownership of the goods sold to the buyer, exercises his right to alienate it from the latter (such a right is called eviction), the seller is obliged to compensate the buyer for the cost of the goods taken from him (clause 1 of Article 461 of the Civil Code).

In addition, the contract of sale may provide for the obligation of the seller to insure the goods he sells.

The seller has the right demand from the buyer:

▪ payment for the goods transferred to him;

▪ return of sold goods in case of non-payment, provided that the goods are transferred to the buyer on the terms of retaining the seller’s ownership of it until payment (Article 491 of the Civil Code).

The buyer must:

▪ pay for the purchased goods either in full or in parts, or directly upon transfer, or before or after its transfer;

▪ notify the seller of his improper performance of the contract (Article 483 of the Civil Code);

▪ insure the purchased goods, if this obligation is provided for in the contract.

Buyer's right - demand from the seller to transfer to him the goods purchased by him, corresponding to the terms of the contract, within the appropriate period.

2. ELEMENTS OF A PURCHASE AGREEMENT

By the parties The contract of sale are the seller and the buyer.

Subjects contracts can be: citizens, legal entities and the state. In some types of sale and purchase agreement, the possibility of participation of certain subjects of civil law depends on the volume of their legal capacity and legal capacity, as well as on the type of real rights to the property being sold.

The subject contracts of sale may be property not withdrawn from civil circulation, and property rights (clause 4, article 454 of the Civil Code). Obligations of subjects (for example, debts) and intangible benefits cannot be the subject of sale and purchase.

Price The sales contract is negotiable. It is determined both in Russian rubles and in the currencies of other countries, however, payment in the Russian Federation must always be made in Russian rubles. The price of some goods (eg energy resources) may be set by the state. The price is an essential condition of the contract of sale only in two cases: when selling goods by installments and when selling real estate. The absence of a price in other contracts of sale means that the payment must be made at the price that exists for similar goods (paragraph 3 of article 421 of the Civil Code).

Period The contract of sale in its various forms plays a different role. So, in contracts for the supply and sale of goods on credit with an installment payment, it is an essential condition, while in others it is not. . If the term of the contract is not defined, then the goods must be transferred within a reasonable time, and payment for it is made after the transfer of the goods (Articles 314, 457, clause 1 of Article 486 of the Civil Code). If the violation of the deadline for the execution of the contract entails the loss of its meaning for the buyer, such a contract is called a contract for a period (paragraph 2 of article 417 of the Civil Code).

Form Sales contracts are most often verbal. The following agreements must be made in writing:

▪ sale of real estate (such agreements are subject to mandatory state registration);

▪ foreign trade transactions;

▪ with the participation of legal entities;

▪ between citizens in the amount of more than ten minimum wages (except for those cases when transactions are made at the time of their conclusion).

Order of conclusion The contract of sale is governed by Ch. 28 of the Civil Code, however, in contracts for the supply (Article 507 of the Civil Code), retail sale (Articles 493, 494 of the Civil Code), supplies for state needs (Articles 527, 529 of the Civil Code), energy supply (Article 540 of the Civil Code), he has his own peculiarities.

3. RESPONSIBILITY OF THE PARTIES UNDER THE AGREEMENT OF SALE

Responsibility of the parties under the contract of sale arises for the following reasons:

▪ accidental damage or destruction of the goods (responsibility lies with the buyer from the moment the goods are transferred to him by the seller - Article 459 of the Civil Code);

▪ eviction - seizure of goods from the buyer by a third party on grounds that arose before the execution of the sales contract (the seller is obliged to compensate the buyer for losses incurred by him - Article 461 of the Civil Code);

▪ failure by the seller of the goods to transfer to the buyer, within the time period specified by the buyer, accessories or documents related to the goods (the buyer must refuse the goods, unless otherwise provided by the contract - Article 464 of the Civil Code);

▪ transfer by the seller to the buyer of a smaller quantity of goods than determined by the contract (the buyer has the right to demand the missing quantity or refuse the goods transferred to him and his payment, and if the goods have been paid for, demand a return of the paid amount - Article 466 of the Civil Code);

▪ transfer by the seller of goods in an assortment that does not comply with the contract (the buyer has the right to refuse to accept and pay for them, and in case of successful payment, demand a refund of the amount paid - Article 468 of the Civil Code);

▪ transfer by the seller of goods of inadequate quality (the seller is obliged to proportionally reduce the purchase price, eliminate the defects of the goods free of charge within a reasonable time, or reimburse the buyer’s expenses for eliminating the defects of the goods - Article 475 of the Civil Code). Such liability also arises if the goods are transferred to the buyer in improper containers (Article 482 of the Civil Code);

▪ incompleteness of the goods transferred by the seller to the buyer (the seller is obliged to either proportionally reduce the price of the goods or complete it - Article 480 of the Civil Code);

▪ refusal of the seller to transfer the goods purchased from him to the buyer or transfer to him accessories and documents related to this product (the buyer has the right to refuse the contract - Articles 463, 464 of the Civil Code);

▪ failure by the obligated party to the purchase and sale agreement to insure the goods (the other party has the right to insure this product and demand reimbursement of its expenses from the obligated party - Article 499 of the Civil Code).

4. CONCEPT, TYPES, CHARACTERISTICS OF THE CONTRACT OF RETAIL SALE. LEGISLATION

Retail Sales Agreement - an agreement under which the seller, engaged in business activities of selling goods at retail, undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to business activities (Article 492 of the Civil Code).

Varieties of the contract of retail purchase and sale: sale of goods according to samples and remotely (Article 497 of the Civil Code); sale of goods using vending machines (Article 498 of the Civil Code); sale with the condition of acceptance of the goods (by the buyer) within a certain period (Article 496 of the Civil Code); sale with the condition of delivery of goods to the buyer (Article 499 of the Civil Code); lease and sale agreement (Article 501 of the Civil Code).

The listed varieties do not exhaust the whole variety of types of retail sale contracts made in practice. The latter, in particular, include the sale by self-service of the buyer, with payment on credit, at an auction, by tender and under a commission agreement; sale of securities (shares, bonds, bills, etc.).

The absence of the above types of the retail sale contract in the Civil Code of the Russian Federation should, apparently, be explained by the fact that some of them have lost their relevance, others are rarely found in practice, and still others have been singled out by the legislator as an independent type of contract.

Characteristics of the contract: consensual, compensated, mutual; public, as a rule, is a contract of accession.

The legislation governing this contract is aimed at securing the interest of the consumer. It consists of the Civil Code of the Russian Federation (Articles 492-505), a number of laws, rules for the sale of certain types of goods. Of great importance for guidance in practical activities is the resolution of the Plenum of the Supreme Court of the Russian Federation of 1994 "On the practice of considering cases on consumer protection by courts." Among the laws governing this agreement, it is necessary to highlight: "On the protection of consumer rights"; "On Competition and Restriction of Monopolistic Activity in Commodity Markets"; "On certification of products and services".

The ratio of the Civil Code of the Russian Federation and the Federal Law "On Protection of Consumer Rights" in the regulation of retail sales is determined by the resolution of the Plenum of the Supreme Court of the Russian Federation indicated above: the law is applied only if it does not contradict the Civil Code of the Russian Federation.

Among the goods, the sale of which is regulated by the rules approved by the decrees of the Government of the Russian Federation from 1994 to 1996, one should name: certain types of food and non-food products; fur goods; goods on orders sold at customers' homes; alcoholic products; articles made of precious metals and precious stones.

5. ELEMENTS OF A RETAIL SALES AGREEMENT

By the parties treaties are seller и customer. The seller can only be an entrepreneur (individual or collective - organization), and the buyer can only be entities purchasing goods for non-business purposes. Retail trade of certain types of goods (eg alcohol, cars) requires the seller to have a license. To purchase goods restricted in circulation, a special permit is required from the buyer (for example, to purchase a weapon) or another document (for example, to purchase a medicine with narcotic properties, an appropriate prescription is required).

The subject contracts can be any things that are not withdrawn from circulation used only for household consumers: personal, family, home. They can be both individually defined and determined by generic characteristics, both existing at the time of the conclusion of the contract, and being at that moment in the production process. Goods, in the standards for which safety requirements are established, are subject to mandatory certification. Goods that are harmful to health cannot be sold (such goods must be withdrawn from sale, and their production must be stopped).

Price contract is an essential condition of the contract. It cannot be changed by the buyer at the time of the conclusion of the contract and is the same for all buyers. Prices for certain types of goods are set by the state, they are binding not only for buyers, but also for the seller. The goods are paid, as a rule, at the time of the contract.

Period agreement is determined by the parties. This condition is essential in the contract only when the goods are sold on credit.

The procedure for concluding an agreement: the contract is considered concluded from the moment the seller issues the buyer a check indicating payment for the goods, and payment for the goods is understood as an agreement reached by the parties (Article 493 of the Civil Code). The public nature of this contract is determined by the procedure for its conclusion: the seller is the offeror, and the public offer is the operation of the machine, the demonstration of goods or their samples, the description of the goods and their photographs, as well as the advertisement of the goods, if it contains all the essential terms of the contract (otherwise it is only by an offer to an indefinite circle of consumers to make an offer).

Form The contract is determined according to the rules on the form of a transaction (Articles 159-161 of the Civil Code): only transactions between citizens in the amount of less than 10 minimum wages or transactions executed at the time of their completion are made orally. The sale of goods using the machine occurs by performing conclusive actions, i.e. actions expressing the will to establish a legal relationship in the form of behavior, from which such an intention obviously follows - by paying for the goods. In other cases, the contract must be executed in writing (non-compliance with the written form of the contract deprives the seller of the right to refer to witness testimony), but does not deprive the buyer of this right.

6. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER A RETAIL SALE AGREEMENT. RESPONSIBILITY OF THE PARTIES

The seller is obliged transfer the goods to the buyer in a certain place; with all accessories and documents related to the goods; in the agreed quantity and assortment; appropriate completeness; established quality; in proper packaging; free from the rights of third parties.

The seller must provide the buyer with the necessary and reliable information about the product and the manufacturer and inform him about the special rules for the use, transportation and storage of life-threatening goods developed by its manufacturer (Law of the Russian Federation "On Protection of Consumer Rights").

Seller's rights limited: he can only demand payment for the goods sold.

Also limited Buyer Responsibilities: he only has to pay for the goods.

At the same time, the rights of the buyer are expanded, the buyer has the right:

1) inspect the goods before concluding the contract and demand in his presence to check the properties or demonstrate its use;

2) for the exchange of a good-quality non-food product for a similar product, but of a different size, style, color, configuration within 14 days after the purchase, provided that it retains its presentation, labels and receipt. The list of goods not subject to exchange, approved. Decree of the Government of the Russian Federation of January 19, 1998 No. 55;

3) for a commensurate reduction in the purchase price, the immediate elimination of defects, for the replacement of goods or for compensation for losses incurred in the event of the sale of goods of inadequate quality to it. This right in relation to goods, the expiration date of which has not been established, can be exercised within 6 months. for movable things and 2 years for real estate;

4) do not refund the difference in price in case of defective replacement. goods for a similar one, however, when exchanging for a product of a different size, style, variety, the difference in price is subject to compensation;

5) to obtain the necessary reliable information about the product, the conditions of its sale and the manufacturer. If it is not provided, he has the right to demand compensation from the seller for losses, and if the contract is concluded, to refuse to fulfill it, demanding the return of the amount paid and compensation for other losses.

Responsibility features:

1) responsibility for violation of consumer rights can be assigned to both the seller and the manufacturer;

2) the seller, who did not provide the buyer with information about the goods, is also responsible for the defects of the goods that arose after its transfer, and is obliged to compensate the buyer for losses;

3) compensation by the seller for losses to the buyer does not release him from the performance of the obligation in kind;

4) in case of violation of the property rights of the consumer, monetary compensation for moral damage received by him is possible, if there is a fault of the tortfeasor. The amount of compensation is determined only by the court, taking into account the nature and extent of the moral suffering of the consumer, and not the cost of the purchased goods.

7. CONCEPT, CHARACTERISTICS, ELEMENTS OF THE DELIVERY CONTRACT

Delivery contract - an agreement under which the supplier-entrepreneur undertakes to transfer to the buyer, within a specified period, the goods produced or purchased by him for use for business or other purposes not related to personal, family, home and other similar use (Article 506 of the Civil Code).

This contract is considered entrepreneurial, one of the forms of wholesale trade (other forms are trade at a fair and commodity exchanges). Contracts concluded between the supplier of goods and its buyer are considered simple in terms of the structure of contractual relations, and contracts in which there is an intermediary - an intermediate entity, are considered contracts with a complex structure. If there is an intermediary, two contracts are concluded: one between the supplier and the intermediary (for example, a wholesale depot, a warehouse for storing goods), the second between the intermediary and the buyer.

Characteristics of the supply agreement - consensual, mutual, compensated, in some cases mandatory for the supplier (Article 445 of the Civil Code).

This type of contract is regulated by the Civil Code, as well as, at the request of the parties, by the rules contained in two provisions on supplies: No. 888, approved by the Council of Ministers of the USSR on July 25, 1988, repealed by Part 4 of Art. 2 of the Law of the Russian Federation "On the Enactment of Part Two of the Civil Code of the Russian Federation", and then restored by a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997. They are called as follows: "Regulation on the supply of industrial and technical products" and "Regulation on the supply of consumer goods" . In addition, this agreement is governed by the rules established by the Civil Code of the Russian Federation for the contract of sale, as well as the rules of the Civil Code of the Russian Federation on obligations and transactions. Certain types of supply contracts are regulated by special regulations, e.g. contract for the supply of goods for state needs.

Hand are called in the agreement supplier (it can be a commercial organization or an individual entrepreneur) and by the buyer (as a rule, it is the entrepreneur, but it can also be the state). The buyers under this agreement cannot be persons using the goods for domestic needs. The subject composition and purpose of the goods sold explain that this contract is considered to be an entrepreneurial one.

The subject contracts can be any things not withdrawn from circulation, both existing at the time of the conclusion of the contract, and not produced (not acquired) at the time of the conclusion of the contract, as a rule, determined by generic characteristics.

Price in this agreement does not apply to the essential terms of the agreement, but period applies. It is established by the parties by determining a specific date or period of time. Early delivery under this contract is not allowed. Settlements for payment for goods are carried out, as a rule, by payment orders.

Form The contract can be oral only if the parties to it are entrepreneurs, and the total cost of goods to be delivered does not exceed 10 minimum wages. In other cases, the form of this agreement must be in writing.

8. CONCLUSION AND TERMINATION OF THE SUPPLY CONTRACT

Order of conclusion the contract has features: one of the parties to the future contract sends the counterparty offer - an offer to conclude an agreement with her, and the other party sends acceptance - consent to conclude a contract. If the acceptor has changed the terms of the contract in his response, this response is not considered an acceptance, but an offer, to which the counterparty must respond within 30 days. The party that violated this rule will have to compensate the other party for losses (this rule is provided for in Article 507 of the Civil Code, called “Settlement of disagreements when concluding a contract”).

Handover procedure:

▪ the goods are transferred by shipment by the supplier either to the buyer himself or to a person indicated by him;

▪ the goods can be transferred at the supplier’s location (sampling) on the basis of a shipping order, which must be sent to the supplier 30 days before delivery (clause 2 of Article 509 of the Civil Code);

▪ goods can also be transferred at the location of the supplier, such transfer is called sampling (Article 510 of the Civil Code);

▪ the right to choose transport for delivery of goods belongs to the supplier (clause 1 of Article 510 of the Civil Code);

▪ reusable containers and packaging means in which the goods were delivered must be returned to the supplier (Article 517 of the Civil Code);

▪ goods delivered ahead of schedule and accepted by the buyer are counted against the number of goods to be delivered in the next period (part 2, clause 3, article 508 of the Civil Code);

▪ in case of short delivery of goods, the supplier is obliged to make up for the under-delivered quantity of goods in the next period (clause 1 of Article 511 of the Civil Code);

▪ delivery of goods of one type in greater quantities than provided for in the contract is not counted towards covering the shortfall of goods of another type and is subject to replenishment (clause 2 of Article 512 of the Civil Code), etc.

It should be noted that the conditions for the transfer of goods under a supply contract are formulated by the legislator in the form of the rights and obligations of the parties concerned.

Grounds for termination of the contract supplies are:

▪ improper execution of the contract;

▪ agreement of the parties to terminate the contract;

▪ unilateral refusal to fulfill the contract in the event of a significant violation of the contract by the other party (Article 523 of the Civil Code).

Grounds for unilateral refusal to execute supply contracts are:

▪ violations committed by the supplier;

▪ delivery of goods with defects that cannot be eliminated within a time period acceptable to the buyer (clause 2 of Article 523 of the Civil Code);

▪ repeated violation of delivery deadlines for goods (clause 2 of Article 523 of the Civil Code);

▪ delivery of poor quality or incomplete goods (clause 1 of Article 518, Article 519, clause 2 of Article 480 of the Civil Code).

9. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE SUPPLY CONTRACT

Supplier Responsibilities: transfer the goods within the stipulated time, in equal batches, in accordance with the established schedules; replenish the undelivered goods in the next period; take out the goods that the buyer refused, but accepted it for safekeeping; prepare the goods for export and notify the buyer about this if the contract is concluded with the condition of sampling the goods; fulfill the buyer's instructions to ship the goods ordered by him to another person; reimburse the costs incurred by the buyer in connection with the responsible storage of the goods.

Supplier rights: require the buyer to pay for the goods; indicate to the buyer under which contract he should count the goods delivered by him, if their quantity was insufficient and at the same time several supply contracts were concluded with this buyer; require the buyer to pay for the goods if he refuses to accept them without sufficient grounds.

Buyer Responsibilities: perform all actions to ensure the acceptance of goods delivered under the supply contract; inspect the accepted goods within the period specified by law or the contract, check the quantity and quality of the goods, and in case of detection of discrepancies or defects in the goods, immediately notify the supplier in writing; in case of receipt of goods from a transport organization, check the compliance of the goods with the information specified in the transport and accompanying documents; in case of refusal of the goods transferred to him by the supplier, accept him for safekeeping and immediately notify the supplier; inspect the goods transferred to him in the process of their selection; pay for the goods delivered to him in compliance with the procedure and form of payment in accordance with the contract.

Buyer's rights: demand the provision of goods stipulated by the contract; make claims under Art. 475 of the Civil Code, in case of delivery of goods of inadequate quality to him; demand replacement within a reasonable time of goods of inadequate quality returned by the consumer, if the buyer sells the goods delivered to him at retail; make claims under Art. 480 of the Civil Code, in case of delivery of goods to him in violation of the terms of the contract on completeness; purchase goods not supplied by the supplier from other persons with the attribution of the costs incurred to the supplier; refuse to pay for goods of inadequate quality and incomplete goods, and in cases where such goods have been paid for, demand a refund of money until the defects are eliminated or the goods are completed or replaced; indicate to the supplier under which contracts the amount of money paid by him should be credited, in the case when he concluded several contracts, this amount is insufficient to pay off obligations under all contracts; refuse to accept goods whose delivery is overdue by notifying the supplier of his refusal.

10. CONCEPT, ELEMENTS AND FEATURES OF THE AGREEMENT FOR THE SUPPLY OF GOODS FOR STATE OR MUNICIPAL NEEDS

Supply of goods for state or municipal needs - a type of supply agreement. This agreement formalizes the purchase of goods necessary for the state, in particular, those necessary to meet the needs of the defense and security of the country. This agreement is regulated by articles of the Civil Code of the Russian Federation dedicated specifically to this agreement, as well as articles devoted to the supply agreement, and special laws: “On the supply of products for federal state needs”; "On the state material reserve"; "On the state defense order."

The general provisions on delivery apply to this contract, unless otherwise provided by the rules for it.

Period execution of actions to conclude an agreement is limited by law: it is defined either in 30 or 20 days.

The price of the product - market, financing of supplies of goods occurs at the expense of budgetary funds and extra-budgetary sources of the Russian Federation.

By the participants contracts of this type are:

▪ customer (either the executive authorities or organizations authorized by them act in its role);

▪ supplier (in this role are entrepreneurs);

▪ recipient goods (buyer).

The subject contracts are things determined by generic characteristics (only Russian-made); the need for ordered items is identified from government programs; the form of this agreement must always be in writing; This agreement is made in two documents:

▪ state or municipal contract for the supply of goods for state or municipal needs - an agreement between the customer and the supplier on the transfer of goods either to the customer himself or to the recipient (buyer) indicated by him;

▪ supply agreement for state or municipal needs - an agreement between the supplier and the recipient (buyer), concluded on the basis of a contract for the transfer of goods by the supplier to the buyer. The intermediate document between them is the customer's notification to the buyer about his attachment to the supplier.

In the procedure for concluding a supply contract for state needs, one can single out next steps:

▪ determination of state or municipal needs for goods of a certain type;

▪ issuing an order for the supply of goods to the customer;

▪ placing an order by the customer (this can take place at competitions);

▪ conclusion of a contract between the supplier and the customer;

▪ sending by the customer to the recipient of the goods (buyer) a notice that it has been assigned to a specific supplier;

▪ conclusion of a supply agreement between the supplier and the buyer based on notification from the customer.

Buyer Violations:

▪ failure to pick up goods by the buyer within the specified period;

▪ failure by the buyer to provide a shipping invoice;

▪ repeated delay in payment for goods by the buyer.

11. RESPONSIBILITY OF THE PARTIES UNDER THE AGREEMENT FOR THE SUPPLY OF GOODS FOR STATE OR MUNICIPAL NEEDS. CONTENT OF THE AGREEMENT

Features of the responsibility of the parties under the supply agreement:

▪ the basis for liability is non-fulfillment or improper fulfillment of the contract;

▪ responsibility is full and is based on the provisions of Chapter. 25 GK;

▪ forms of liability: compensation for losses (actual damage or lost profits) (Article 15 of the Civil Code); collection of contractual penalties (penalties, fines); collection of payment of interest for the use of other people's money in case of violation of monetary obligations (395, paragraph 4 of Article 487, Civil Code): refusal of a party to fulfill the contract, return of poor quality or incomplete goods, purchase of goods by the buyer from another person in case of short delivery, forced payment buyer of an unselected product, etc.

Foreseen increased responsibility of the parties under contract:

▪ the customer is obliged to compensate for losses caused to the supplier within 30 days from the date of transfer of the goods (if they are not reimbursed, the supplier has the right to refuse the contract), as well as losses caused by refusal to compensate for losses incurred by the supplier during the execution of the contract (Article 533 of the Civil Code);

▪ the supplier is obliged to pay a fine in the amount of the cost of the goods, determined in the draft contract, in case of unjustified evasion from concluding a government contract for the supply of goods for federal needs (clause 2 of article 5 of the Federal Law “On the supply of products for federal state needs” and other laws), and in case of delivery of low-quality or incomplete goods, pay a fine in the amount of 20% of the cost of the rejected goods (Clause 5, Article 16 of the Federal Law “On State Material Reserve”).

Features of the content of the contract:

▪ the customer cannot refuse to enter into a contract with the supplier when the supplier has accepted the order;

▪ the customer must compensate for losses incurred by the supplier during the execution of the contract, and within 30 days;

▪ the supplier is obliged to transfer the goods to either the customer or the buyer;

▪ the buyer must pay for the delivered goods in cases where the goods are delivered directly to him, while the customer is a guarantor and bears joint liability with the buyer under the contract (Article 534 of the Civil Code), and if the goods are delivered to the customer, the latter must pay for it.

12. CONCEPT, TYPES, CHARACTERISTICS OF THE AGREEMENT OF CONTRACTION, FEATURES OF LEGAL REGULATION. DIFFERENCE FROM THE SUPPLY CONTRACT

contracting agreement - an agreement under which the manufacturer of agricultural products (seller) undertakes to transfer the products produced by him to the procurer (contractor), and the latter undertakes to accept and pay for it (Article 535 of the Civil Code).

This agreement is used in the field of entrepreneurship, it formalizes the transfer of products from one owner to another.

Characteristics of the contract: consensual, mutual, compensatory.

The type of contract is supply of agricultural products for government needs.

Feature This type of contract is that it simultaneously contains signs of two types of contracts: purchase and sale and delivery. This circumstance makes it possible to consider it as a variety of these two contracts and determines the complex composition of the legal norms by which it is regulated, and the special procedure for their application.

The legal rules governing this contract should be applied in the following order: rules on contracting; delivery rules; buying and selling regulations.

The sequence of application of legal norms governing the contract for the supply of agricultural products for state needs: norms on contracting; the norms contained in a special law (FZ "On the procurement and supply of agricultural products, raw materials and food for state needs"); norms of the Civil Code of the Russian Federation on the supply of goods for state needs; special laws on supplies for state needs ("On the supply of products for federal state needs", "On the state material reserve"); norms of the Civil Code of the Russian Federation on the general provisions of the contract of sale.

There are no norms specifically devoted to the contracting agreement for state needs in the Civil Code of the Russian Federation.

A contracting agreement differs from a supply agreement in the following ways:

▪ special scope: it formalizes trade relations between subjects of civil law located in the city with a product manufacturer carrying out business activities in an agricultural area;

▪ subject composition: the seller is the manufacturer of the products transferred to the procurer;

▪ the special nature of the subject of the contract: it is agricultural products, moreover, produced by the seller himself;

▪ the execution of the contract is influenced by natural factors that cannot be foreseen and eliminated in advance;

▪ peculiarity of the liability of the parties: the supplier is liable only if there is his own fault, despite the fact that he is an entrepreneur, and the entrepreneur, according to the general rules, must be liable in civil law for non-fulfillment or improper performance and in the absence of his own fault (clause 3 of Article 401 GK);

▪ the legislation under this agreement protects the interests of the weaker party, which is the manufacturer.

13. ELEMENTS AND CONTENT OF THE CONTRACT. RESPONSIBILITIES OF THE PARTIES

Parties - seller (product manufacturer) and procurer (contractor). The seller can only be an entrepreneur (collective or individual) producing agricultural products, and the purveyor can be an entrepreneur (for example, a trade organization, a factory) or a state enterprise. organ. The subject composition of this agreement is the basis for classifying this agreement in the science of civil law as a commercial (economic) agreement.

The subject contracts can be unprocessed products (grain); processed products (oil); raw materials (milk), i.e. products produced in the agricultural sector (plant growing, animal husbandry, fur farming) using agricultural or animal husbandry methods. It is determined by generic characteristics and has two features:

1) the dependence of its production on natural factors (weather, pest invasions, infectious diseases, epidemics in animals);

2) at the time of the conclusion of the contract, it does not yet exist, it is a product that needs to be produced.

Purpose of procurement:

1) subsequent processing or sale of products;

2) placement of purchased products for storage in the state. fund (FZ "On the procurement and supply of agricultural products, raw materials and food for state needs").

Price contract is determined by the rules of the contract of sale. The price clause is not one of the essential terms of the contract.

Period contract is one of the essential terms of the contract.

Form contracts must be in writing.

The procedure for concluding a contract and resolving disagreements is similar to a supply contract.

Responsibilities of the seller - produce products and transfer them to the procurer in the agreed quantity and assortment stipulated by the contract (the assortment is an essential condition of the contract).

Producer Responsibilities: accept agricultural products at their location and ensure export; accept agricultural products at the location of the procurer, if this is provided for by the contract and the products comply with the terms of the contract and are presented within the time period stipulated by the contract; pay for the purchased products in full or in part (but with a subsequent surcharge); return to the manufacturer, at his request, waste from the processing of agricultural products at a price stipulated by the contract.

Features of the parties' responsibilities:

1) manufacturer and procurer - state. a body that has not fulfilled the contract at all or has performed it improperly shall be exempted from civil liability if they prove their innocence;

2) the procurer-entrepreneur is liable even in the absence of guilt, he is exempted from civil liability only by the presence of force majeure in the process of fulfilling the contract.

14. CONCEPT, TYPES, CHARACTERISTICS AND CONTENT OF THE ENERGY SUPPLY CONTRACT

Energy supply agreement - agreement, cat. one party (energy supply organization) undertakes to supply energy (or energy carriers) through the connected network to the other party (consumer subscriber), cat. undertakes to pay for it and ensure the established regime and safety of energy (or energy) consumption.

The contract is a legal form that draws up relations related to energy consumption, and is considered a type of sales contract.

Characteristics of the contract: consensual, compensated, mutual, public.

Types contracts:

1) on the subject: contract for the supply of gas, electricity, water, oil and oil products, thermal energy;

2) according to the subject composition of the contract: the contract for the energy supply of citizens, the contract for the energy supply of enterprises;

3) on other grounds: an agreement on mutual reservation of energy supply, an agreement on reverse power flows, etc.

The agreement is governed by Art. 539-548 of the Civil Code, as well as special regulations:

▪ Federal Law "On state regulation of tariffs for electrical and thermal energy in the Russian Federation"; "On natural monopolies"; "About energy saving";

▪ Resolutions of the Government of the Russian Federation “On approval of the rules for the provision of utility services and the rules for the provision of services for the removal of solid and liquid household waste”, “On the procedure for stopping or limiting the supply of electric and thermal energy and gas to consumer organizations in the event of non-payment of fuel supplied to them (used by them) energy resources", etc.

Feature of legal regulation: the rules on energy supply apply to contracts for the supply of various types of energy and energy carriers (gas, water, oil, etc.) unless otherwise provided by law or other legal acts.

The seller is obliged supply energy of the appropriate quality, due quantity, in compliance with the supply regime.

The seller has the right stop or limit the supply of energy without the consent and warning of the subscriber in the event of liquidation or prevention of an accident, followed by notification of the subscriber; demand payment for the energy used.

The subscriber is obliged pay for the received energy; observe the mode of its consumption; keep records of energy consumption; immediately notify the energy supply organization of violations arising from the use of energy; ensure the proper technical condition and safety of devices, equipment of energy networks in the event that he is a legal entity or an individual entrepreneur.

The subscriber has the right change the amount of energy he receives, subject to payment for it; use energy in the required amount if he is a citizen and uses energy for domestic needs; transfer energy to the sub-subscriber with the consent of the energy supply organization; terminate the contract unilaterally.

15. ELEMENTS OF THE ENERGY SUPPLY CONTRACT

By the parties in the energy supply contract are: seller energy and customer (energy consumer).

The seller is an energy supplying organization - a legal entity in the form of a joint-stock company, for example. Mosenergo, Krasnoyarskenergo. The structure of these organizations is complex, they include power plants of various types: thermal, nuclear, hydraulic. These organizations are commercial and operate on the basis of a license issued by the Ministry of Fuel and Energy. Since energy supply organizations are subjects of natural monopolies, they are included in the registers of subjects of natural monopolies in the fuel and energy complex, which are maintained by federal and regional energy commissions.

Subscribers and sub-subscribers act as buyers (consumers) of energy.

Sub-subscriber is an entity whose power plant is connected to the subscriber's networks. Individuals and legal entities can act as buyers, among them there is a category of "energy-intensive" consumers, in respect of which a different tariff and procedure for paying for energy are established.

The subject of the contract is energy: electric current, steam, hot water. Its quality should be established by the State Standard, the current rules and conditions of the contract. The quality of electricity is characterized by voltage and current frequency, and thermal quality - by temperature and pressure of steam, water temperature. The amount of energy is measured in kilowatts and gigacalories.

Features of the subject of the contract:

▪ transfer of the subject of the contract is carried out through a system of special technical means (wires, pipelines, water pipelines);

▪ acceptance and consumption of the subject of the contract require special equipment and ensuring the safety of both the consumer himself and those around him;

▪ the availability of special equipment is a necessary technical prerequisite for concluding a contract.

Price of the contract is determined not by the parties, but by tariffs approved by the state, periodically indexed and differing depending on who the subscriber is. The supply of electrical and thermal energy by an energy supply organization that is in municipal ownership is carried out at tariffs approved by local governments. Energy is paid for actual consumption in accordance with its accounting data.

Period of the contract is established only in those contracts in which the subscriber is a legal entity. The rules on terms are established in the Civil Code of the Russian Federation: an agreement concluded for a period, after its expiration, is extended for the same period, if neither of the parties declares a change in the conditions or the termination of the agreement.

Order conclusion of an agreement and form depend on the subject composition of subscribers and the purpose of using the product. So, if the subscriber is a citizen who consumes energy, the form of the contract will be conclusive. If the subscriber is an individual entrepreneur or a legal entity, the form of the contract must be in writing.

16. FEATURES OF THE CONCLUSION AND TERMINATION OF THE ENERGY SUPPLY CONTRACT. LIABILITY OF THE PARTIES UNDER THE CONTRACT

Features of the conclusion energy supply contracts:

1) it is necessary for the subscriber to have a special power receiving device, connected to power supply networks. organizations, the availability of devices that provide accounting for energy consumption, and other equipment: networks, wires, transformers, substations, etc.;

2) power supply the organization does not have the right to refuse to conclude an agreement if it has the opportunity to supply energy, and also does not have the right to give preference to any of the consumers, unless this is provided for by legal acts;

3) the moment of concluding an agreement with a citizen subscriber is considered to be its connection to the network in accordance with the established procedure, and the proof of the conclusion of the agreement is a receipt for paying for electricity for a month. The moment of concluding an agreement with a subscriber - a legal entity is considered to be the signing of an agreement, to which must be attached: an act of delimitation of the balance sheet ownership of energy networks (heat networks) and exploitation. the responsibility of the parties;

4) in the case of supplying energy to a sub-subscriber, two contracts are concluded: one between the supplying organization and the subscriber, and the other between the subscriber and the sub-subscriber. The contract is considered not concluded if it does not contain a condition on the amount of monthly and quarterly energy supplied.

Rules for changing and terminating the contract:

1) a subscriber - a citizen using energy for domestic consumption, has the right to terminate the contract unilaterally, subject to notification of the energy supply organization and full payment for the energy used;

2) a subscriber - a legal entity has the right to refuse to fulfill the contract only if there are significant violations committed by the energy supply organization: supply of energy of inadequate quality, repeated violation of the terms of energy supply, etc.;

3) the power supply organization has the right to stop the supply of energy if the other party agrees or without its consent, if necessary, take measures to eliminate or prevent an accident. In both cases, the law obliges the power supply organization to warn the subscriber about the power cut.

Civil law liability of the parties under the contract power supply occurs in case of non-fulfillment or improper fulfillment of the contract by them.

Seller's responsibility arises in the form of compensation for real damages:

1) in case of violation by the seller of the conditions on the quality of the energy supplied by him;

2) in the event of interruptions in the supply of energy by the seller without an appropriate warning if it is his fault.

Buyer's responsibility occurs in case of non-payment for the energy used by him: the seller has the right to cut off the energy supply. He is responsible for not reporting to the seller information about violations that occurred during his use of energy. The form of liability in the latter case is compensation for actual damage.

17. CONCEPT, CHARACTERISTICS, ELEMENTS OF A REAL ESTATE SALES AGREEMENT

On real estate sale agreement the seller undertakes to transfer real estate to the ownership of the buyer, and the buyer undertakes to accept this property under the deed of transfer and pay for it the amount of money determined by the parties.

The definition of a contract for the sale of real estate differs from the general definition of a contract of sale only by the subject of the contract and the way it is transferred from the owner to the buyer.

This agreement was first singled out as an independent one in the current Civil Code of the Russian Federation due to the significant value of the subject of the agreement and is regulated only by the norms of the Civil Code of the Russian Federation and other codes.

Characteristics of the contract: consensual, compensatory, mutual.

The subject agreement is real estate - property, the movement of which is impossible without causing damage to its purpose. Such property is legally irreplaceable.

Real estate includes (clause 1 of article 130 of the Civil Code):

▪ land plots;

▪ objects inextricably linked to the land (structures, buildings, unfinished construction sites, subsoil areas);

▪ vessels (aircraft, watercraft) subject to state registration.

▪ space objects.

Other property may also be classified as immovable by law.

may not be subject to this agreement. some types of land (eg, land provided for agriculture, land plots in temporary use, land of recreational and historical and cultural significance, etc.).

Real estate price is an essential condition of the contract. The price of real estate located on the land includes the price of the latter. If there is no condition in the contract agreed by the parties in writing on the price of real estate, the contract for its sale is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply.

18. PARTIES TO THE AGREEMENT FOR THE SALE OF REAL ESTATE AND THEIR OBLIGATIONS

By the parties treaties are seller и customer. Participants in this agreement can be all subjects of civil legal relations: individuals, legal entities, the state (the Russian Federation, its subjects, as well as municipalities).

On the side of the seller, only entities that have either a full real right (ownership right) or a limited real right (the right of economic management or operational management) on real estate can act. The situation of sellers who have real estate on a limited right is complicated by the fact that they cannot decide on their own whether to sell it without obtaining the consent of the owner (this applies to state and municipal enterprises whose property is under the right of economic management), or they can sell it on their own only a part of the property that they own, i.e., that which they bought with the income received and accounted for on a separate balance sheet (this applies to institutions whose property is under the right of operational management) (paragraph 2 of article 295, paragraph 1 article 297, paragraph 2 article 298 of the Civil Code).

The rights of spouses who sell real estate that is in their common joint ownership, that is, acquired by them during marriage, are similarly limited. When selling such property by one of the spouses, the consent, certified by a notary, of the other spouse is required (clause 2 of article 181 of the Civil Code, clause 3 of article 35 of the UK).

In certain cases, the law restricts the rights of joint-stock companies that sell their real estate. So, when a joint-stock company sells real estate worth from 25 to 50% of the total book value of the company’s property, a corresponding decision of the board of directors of this joint-stock company is necessary, and if the real estate value exceeds 50% of the book value, a decision of the general meeting of shareholders is necessary (Article 78 of the Federal Law "On Joint Stock societies").

Seller's Responsibilities:

▪ transfer ownership of real estate to the buyer (this right disappears from the seller from the moment of registration of the transfer of ownership to the buyer; this moment may not coincide with the transfer of the property itself);

▪ transfer the real estate to the buyer under the transfer deed (from the moment this deed is signed, the risk of destruction of the real estate passes to its buyer, unless otherwise provided by the agreement - clause 2 of Article 556 of the Civil Code).

Buyer Responsibilities (Article 551 of the Civil Code):

▪ accept real estate under a transfer deed;

▪ register the transfer of ownership.

In the event of the sale of immovable property of inadequate quality, the buyer does not have the right to demand its replacement.

19. FORM OF THE AGREEMENT FOR THE SALE OF REAL ESTATE

Form of contract must be in writing, and the contract must be signed by both parties (Article 550 of the Civil Code). At the same time, the transfer of ownership of real estate is subject to state registration (paragraph 1 of article 551 of the Civil Code). And in relation to some objects, an agreement on its sale is also subject to state registration (for example, an agreement on the sale of an enterprise - clause 3 of article 560 of the Civil Code).

The Civil Code of the Russian Federation provides for mandatory state registration of a contract for the sale of residential premises and a contract for the sale of an enterprise, but does not provide for mandatory state registration of transactions for the sale of other types of real estate other than those indicated. Registration of the transfer of ownership does not mean registration of the contract of sale itself.

Therefore, a contract for the sale of a non-residential property is considered concluded from the moment of its signing, and not from the moment of state registration.

An object under construction may be the subject of a sale and purchase agreement, and the right of ownership to it arises from the moment of state registration.

The rules for state registration of transactions with real estate are contained in the Federal Law of July 21, 1997 "On the registration of rights to real estate and transactions with it."

If a transaction for the sale of real estate is made in the proper form, but one of the parties evades its registration, the court has the right, at the request of the other party, to make a decision on the registration of the transfer of ownership of real estate.

Vessels are registered in the Ship Register. Its rules are provided for by transport codes, as well as departmental orders and rules. As a result of the registration of the ship, the new shipowner receives a certificate of ownership of the ship.

The need to adopt a provision on the state registration of space objects was mentioned in the Law of the Russian Federation of August 20, 1993 "On space activities", but so far such a provision has not been adopted. In accordance with paragraph 1 of Art. 17 of this law, space objects must be marked indicating their belonging to the Russian Federation. The registration of such a space object, as well as the registration of a sea vessel, indicates that they belong to the Russian Federation and, therefore, indicate that they are under the jurisdiction of the Russian Federation. In addition, such registration certifies the ownership right of a particular subject to the registered object.

20. AGREEMENT FOR THE SALE OF RESIDENTIAL PREMISES. THE CONCEPT OF THE AGREEMENT FOR THE SALE OF THE ENTERPRISE

Basic provisions for the sale of residential premises:

▪ the parties cannot arbitrarily change the intended use of the premises being sold (it can only be used for housing of citizens);

▪ the seller is obliged to indicate in the contract the persons who retain the right to use the premises he is selling, for example. members of his family (Article 292 of the Civil Code), a person living in the premises being sold by virtue of a testamentary refusal, the tenant (tenant) of the residential premises and members of his family;

▪ the contract must indicate the absence of anyone’s rights to reside in the premises being sold, if this is the case;

▪ the sale of residential premises in which minor members of the seller’s family live is possible only with the consent of the guardianship and trusteeship authority (clause 4 of Article 292 of the Civil Code);

▪ a contract for the sale of residential premises is considered concluded from the moment of its state registration with the justice authorities or other bodies specially created for this purpose.

On business sale agreement the seller undertakes to transfer to the ownership of the buyer the enterprise as a whole as a property complex, with the exception of rights and obligations that the seller is not entitled to transfer to other persons.

The rights to a commercial designation, trademark, service mark and other means of individualization of the seller and his goods, works or services, as well as the rights to use such means of individualization belonging to him on the basis of a license, shall pass to the buyer, unless otherwise provided by the contract.

enterprise a property complex used for entrepreneurial activities is recognized as an object of rights. The structure of the enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, work and services (company name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract.

As a rule, an enterprise sale agreement is applied only in case of privatization of state-owned enterprises. In entrepreneurial activity, the application of this agreement is not economically feasible due to its complexity.

21. ELEMENTS AND CONTENT OF THE AGREEMENT FOR THE SALE OF THE ENTERPRISE

By the parties contracts are entrepreneurs (individual or collective - commercial legal entities), sellers of state and municipal enterprises in the course of their privatization are the relevant federal or local property funds.

The subject of the contract is an enterprise, which is a property complex consisting of material elements, in which the main (premises, buildings, land plots) and working capital (equipment, raw materials, money) are distinguished, and intangible elements, in which the property rights and obligations of the enterprise are distinguished, the exclusive rights of the enterprise that individualize it and its products (the right to a trade name, the right to a trademark), the civil law obligations of the enterprise to third parties, including monetary debts. The subject of this agreement is its essential condition.

The composition and value of the enterprise being sold are determined on the basis of its inventory; before signing the contract, the following documents must be drawn up: an inventory act, a balance sheet, an independent auditor's report on the composition and value of the enterprise, as well as a list of its obligations (debts).

The transfer of the enterprise is carried out according to the act of transfer, which indicates data on its composition, shortcomings of the transferred property, as well as notification of creditors.

The moment of transfer of the enterprise from the seller to the buyer is the day of signing by the parties of the deed of transfer. From this moment on, the risk of accidental loss of the company's property passes to the buyer.

The rights of the seller, obtained by him on the basis of a license, are not subject to transfer (in case of violation of this provision, both parties are jointly and severally liable to the creditor of the enterprise being sold).

The contract for the sale of an enterprise comes into force from the moment of its registration. The ownership of the enterprise passes to the buyer from the moment of state registration of this right.

Seller's Responsibilities:

a) transfer ownership of the enterprise to the buyer;

b) transfer the enterprise to the buyer;

c) prepare the enterprise for transfer to the buyer and draw up a transfer act, from the moment of signing of which the enterprise is considered transferred;

d) notify its creditors about the sale of the enterprise, otherwise the seller bears joint liability with the buyer.

In the case of the transfer of an enterprise with defective property, the buyer has the right to demand a reduction in the purchase price, replacement of property of inadequate quality, provision of the missing property.

In the event that a transaction for the sale of an enterprise is recognized as invalid, the rules on the return to the parties of everything received under the transaction are applied only if such consequences do not significantly violate the rights of creditors, parties to the agreement, other persons and do not contradict public interests.

The rules on the sale of real estate provided for by the Civil Code of the Russian Federation are applied to the contract for the sale of an enterprise.

22. CONCEPT AND CHARACTERISTICS OF THE CONTRACT OF MENA. RESPONSIBILITIES OF THE PARTIES

On barter agreement each of the parties is obliged to present goods to the other party in exchange for another (paragraph 1 of article 567 of the Civil Code).

The provisions of the exchange agreement are based on the provisions of the sale and purchase agreement, although the exchange agreement historically arose before the sale and purchase agreement and was gradually forced out of circulation with the advent of monetary circulation. At present, this treaty is rarely applied. It is generally accepted that the contract of sale is a kind of barter contract and differs from it in that the payment under the contract is made in money, not in goods.

Characteristics of the exchange agreement: consensual, mutual, compensatory.

The barter agreement is regulated only by the norms of the Civil Code of the Russian Federation, both by the norms related to the barter agreement (Article 567-571 of the Civil Code) and by the norms governing the sale and purchase agreement (clause 1 of Article 567 of the Civil Code). Of the rules governing the contract of sale, the provisions on the quality, assortment, completeness, packaging of goods, on the sale of property rights, on the procedure for concluding a contract, on the consequences of breaching the contract, apply to the exchange contract.

A type of barter agreement is barter - an agreement on the exchange of goods used in foreign trade. The peculiarity of this agreement is that in order to conclude it, the party needs an appropriate license, and the goods exchanged under this agreement must be of equal value. Barter transactions are regulated by Decree of the President of the Russian Federation of August 18, 1996 No. 1209 "On State Regulation of Foreign Trade Barter Transactions".

Responsibility of the parties:

▪ when transferring goods with defects, the parties are subject to the consequences provided for by the rules of the sales contract;

▪ when a third party withdraws goods received under an exchange agreement, the injured party may demand from the counterparty the goods received during the exchange and compensation for losses (Article 571 of the Civil Code).

23. ELEMENTS AND CONTENT OF THE AGREEMENT OF EXCHANGE

The subject exchange contracts can be negotiable goods, free from encumbrance, as well as property rights (clause 2 of article 557 of the Civil Code). The subject of the contract is the only essential condition of the contract. The exchanged goods are assumed to be of equal value (clause 1 of article 568 of the Civil Code), and in the event of a difference in their price, an additional payment is made by the party that presented the goods of a lower value (clause 2 of article 568 of the Civil Code).

As the prices the value of the delivered goods is the value of the goods received.

Hand contracts do not have a special name, but their peculiarity lies in the fact that each party is both a seller and a buyer at the same time. The composition of the participants of the parties is somewhat limited: the state cannot be a party to this treaty. Only legal entities and citizens can act as parties, and the latter must have civil capacity, and all participants must have property in rem.

Period agreement is determined by the parties. It is assumed that the transfer of goods must be carried out simultaneously, but the law does not exclude the possibility of transferring goods under this agreement at different times. In the event that the goods are transferred by the parties simultaneously, the right of ownership to it arises from the moment of such transfer. In the same case, when the goods are transferred at different times, the right of ownership of the parties arises only after the transfer of goods by both parties (Article 570 of the Civil Code). The last provision is new in civil law. To contracts under which goods are transferred at different times, the rules on the counter performance of obligations (Articles 328, 569 of the Civil Code) are applied.

Form An agreement can be oral only in two cases:

a) in contracts between citizens for an amount of at least ten times the minimum wage;

b) between all subjects, if the agreement is executed upon its conclusion. In all other cases, the agreement must be concluded in writing (Articles 152-162 of the Civil Code).

Order of conclusion contract is similar to the procedure for concluding a contract of sale.

Features of the content of the contract:

▪ the rights and obligations of the parties are the same, and the obligations of one party correspond to the rights of the other party;

▪ the main responsibilities of the parties are the transfer of goods into the ownership of another and the incurrence of expenses for the transfer and acceptance of goods. The costs are borne by the obligated party (clause 1 of Article 568 of the Civil Code).

24. CONCEPT, CHARACTERISTICS AND SUBJECT OF THE DONATION AGREEMENT

Donation agreement - an agreement under which one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) a thing in ownership, or a property right (claim) to himself or a third party, or releases or undertakes to release it from a property obligation to himself or a third party (Clause 1 of Article 572 of the Civil Code).

A type of donation agreement is donation - a donation made in relation to an indefinite number of persons for generally beneficial purposes (Article 582 of the Civil Code).

Characteristics of the donation agreement: a donation agreement can be both consensual and real; unilaterally binding; free of charge. A consensual agreement may be conditional, i.e., contain either a suspensive or resolutive condition.

Requirements for the consensual agreement:

▪ a promise of donation will have the force of a civil contract only if it is put into proper form (clause 2 of Article 572, clause 2 of Article 574 of the Civil Code);

▪ the promise must concern a specific subject (clause 2 of Article 572 of the Civil Code);

▪ the promise must provide for the transfer of the thing by the donor during his lifetime; otherwise, it will be considered as a will, and not as a gift agreement (clause 3 of Article 572 of the Civil Code).

The donation agreement is regulated by the norms of the Civil Code of the Russian Federation (Articles 572-582), as well as a number of Federal Laws: "On Insolvency (Bankruptcy)"; "On charitable activities and charitable organizations"; Art. 20 FZ "On weapons"; Art. 25 FZ "On the museum fund of the Russian Federation and museums of the Russian Federation".

Subject donation agreements:

▪ things (property);

▪ property rights (claims) to oneself or to third parties (the grant of rights to third parties occurs according to the rules of assignment of claims (cession) of Article 382 of the Civil Code);

▪ release from obligation (by forgiveness of the donee’s debt, transfer of the donee’s debt to the donor, or the donor’s fulfillment of the donee’s obligation). The transfer of the donee's debt to the donor is carried out according to special rules on the transfer of debt (Articles 391, 392 of the Civil Code).

Features of thingstransferred under a gift agreement:

▪ the type of thing (movable or immovable) and its value determine the legal regime of the contract (the form of the contract, the possibility of donation by a specific person, etc. depend on them);

▪ the fate of the thing depends on how detailed the thing is described in the contract: a contract in which the thing is not specified is considered invalid;

▪ the intended use of the transferred item can be determined by the donor only in the donation agreement, and such a determination is necessary in agreements in which the beneficiary is a citizen (clause 3 of Article 582 of the Civil Code);

▪ the contract should provide for the method of transfer of the thing: direct delivery of the thing, symbolic transfer of the thing, delivery of legal documents for the thing.

25. PARTIES TO THE DONATION AGREEMENT

Hand in the donation agreement are called donor (in the donation agreement - by the donor and the philanthropist) and donee (in the donation agreement - by the beneficiary).

All subjects of civil law can act as parties, however, the state can be donee only in a donation agreement, and commercial organizations cannot be either donors or donee. For some subjects, the law imposes certain requirements or restrictions.

The donor must:

▪ have a proprietary right to the thing transferred under the contract;

▪ be legally capable;

▪ obtain consent for donation from certain persons in the following cases:

a) a legal entity that owns a thing on a limited real right (the right of economic management or operational management) must obtain the consent of its owner (clause 1 of article 576 of the Civil Code);

b) a spouse who wants to donate property that is the common property of the spouses must obtain consent from the other spouse (paragraph 2 of article 576 of the Civil Code);

c) minors aged 6 to 14 must obtain consent to give small gifts from their legal representatives;

d) minors aged 14 to 18 must obtain written consent from their parents or guardians (this provision does not apply to small gifts - paragraph 2 of article 26, paragraph 2 of article 28 of the Civil Code).

Restrictions regarding subjects acting as donee:

▪ entities that can act as beneficiaries in a donation agreement can be charitable organizations, medical and educational institutions, etc.;

▪ subjects who are prohibited from giving, except for giving ordinary gifts worth no more than 3 thousand rubles;

▪ on behalf of minors and citizens declared incompetent, their legal representatives;

▪ employees of medical, educational institutions, social protection institutions and other similar institutions, citizens receiving treatment, support or education there, spouses and relatives of these citizens;

▪ civil servants and employees of municipal bodies, employees of the Bank of Russia in connection with their official position or in connection with the performance of their official duties;

▪ in relations between commercial organizations.

26. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER A GIFT AGREEMENT

Responsibilities of the donor:

1) transfer the gift (this obligation passes to the assignees of the donor in consensual contracts containing a promise to donate the thing, but does not apply to donation contracts;

2) inform the donee about the shortcomings of the thing given to him;

3) determine the purpose of using the gift to the beneficiary in the donation agreement;

4) bear the costs associated with the transfer of the gift.

Donor's rights:

1) refuse to perform the contract in the following cases:

a) if, after the conclusion of the consensual agreement, the donor’s property or marital status or health status has changed, as a result of which the execution of the agreement will significantly reduce the donor’s standard of living, b) if, after the conclusion of the consensual agreement, the donee has made an attempt on the life of the donor or a member of his family;

2) cancel the contract in the following cases:

a) intentional deprivation of the life of the donor by the donee (the decision must be made by the court at the request of the heirs);

b) the recipient’s handling of the donated item, which is of great non-property value for the donor, creates a threat of its loss; c) if the donation was made by an individual. entrepreneur or legal person at the expense of funds associated with the enterprise. activities during the 6 months preceding the declaration of the donor as bankrupt; d) if the donee died before the donor and the condition for canceling the contract was stipulated in it; e) if the beneficiary used the gift not in accordance with the purpose specified by the donor. The rules on refusal and cancellation of gifts do not apply to ordinary gifts of small value;

3) stipulate in the contract the conditions, under the cat. his property will be transferred and he can demand its return (conditions can be suspensive and resolutive);

4) define in the donation agreement the purpose, purpose of the use of the gift.

The donor does not have the right to demand counter satisfaction from the donee, since the contract is free of charge.

Rights of the donee:

1) receive a gift;

2) refuse to accept the gift;

3) change the purpose of the use of the gift in the donation agreement in case of changed circumstances with the consent of the donor, and in the event of his death or liquidation of the legal entity - the donor by a court decision.

Responsibilities of the donee:

1) use the gift in accordance with the instructions of the donor on its purpose;

2) fulfill obligations in relation to museum items received as a gift (Article 25 of the Federal Law "On the Museum Fund of the Russian Federation and Museums of the Russian Federation");

3) keep a separate record of operations on the use of donated property, if the beneficiary is a legal entity;

4) properly treat the thing presented to him, which is of great non-property value for the donor;

5) return the donated thing in case of cancellation of the donation, if it has been preserved in kind, and leave all the things (income, products) received as a result of use, since they are the property of the donee.

27. FORM OF THE AGREEMENT OF DONATION, THE PROCEDURE FOR ITS CONCLUSION. RESPONSIBILITIES OF THE PARTIES

Form the contract of donation depends on its type, subject, subject composition of the parties. So, contracts of donation of movable property can be concluded orally, if they do not provide for a written form (clause 1 of article 574 of the Civil Code).

Written form is required for the following contracts:

▪ those in which the donor is a legal entity, and the subject of the agreement is movable property worth more than 3 thousand rubles. (Clause 2 of Article 574 of the Civil Code);

▪ containing a promise to donate movable property (clause 2 of Article 574 of the Civil Code);

▪ contracts the subject of which is real estate (such an agreement is subject to state Registration. - clause 3 of Art. 574 Civil Code).

Order conclusion of a donation agreement is the same as in other agreements: the donor declares to the donee his desire to give him a gift (offer), and the donee must agree to receive the gift (accept the offer of the donor).

The moment of conclusion of the contract donations are considered:

▪ in a real contract - the moment of transfer of the thing;

▪ in a consensual agreement - the moment of signing the agreement;

▪ in an agreement subject to registration - the moment of state registration.

Responsibility of the parties under a donation agreement:

▪ the donor is responsible for the damage caused by the donated item to the donee, provided that the shortcomings that arose before the item was transferred to him are not obvious, and the donor did not warn the donee about them (Article 580 of the Civil Code). Damage is subject to compensation if there is fault in accordance with the provisions of Chapter. 59 of the Civil Code, i.e. for illegal actions. The donor is not obliged to compensate for losses in the event of his refusal to fulfill the contract under clauses 1, 2 of Art. 577 of the Civil Code, as well as in the case of giving them things with defects, if the latter did not cause harm to the recipient; - the donee is responsible for:

a) losses caused to the donor by his refusal to accept the gift if the contract was concluded in writing. Form of responsibility - compensation for real damage (clause 3 of article 573 of the Civil Code);

b) improper handling of the thing. The form of responsibility is the return of the donated thing to the donor (clause 5 of article 578 of the Civil Code);

c) the use of property for another purpose if he is the beneficiary. The form of responsibility is the cancellation of a donation (clause 5, article 582 of the Civil Code).

28. CONCEPT, CHARACTERISTICS AND FEATURES OF RENT CONTRACT. LIABILITY UNDER THE CONTRACT

On an annuity agreement one party (rent recipient) transfers property to the other party (rent payer), and the rent payer undertakes, in exchange for the property received, to periodically pay the recipient a certain amount of money or provide funds for its maintenance in another form (clause 1 of article 583 of the Civil Code) .

Characteristics of the contract: real, unilaterally binding, reimbursable, risky (aliatory).

A lease agreement is similar to a loan agreement. It belongs, like the previous agreements, to the group of agreements aimed at the transfer of property into ownership. This is a new type of contract in Russian legislation (in the Civil Code of the RSFSR of 1964 there was only a contract for the sale of a residential building with lifelong residence of an incapacitated seller).

Types of contract rent:

▪ constant annuity;

▪ life annuity;

▪ lifelong maintenance with dependents.

These types of annuity agreements have a number of common features, but differ:

▪ form of providing maintenance to the rentee;

▪ the minimum amount of content provided to the annuitant;

▪ terms of provision of maintenance to the annuitant;

▪ possibilities of legal succession for the parties to contracts;

▪ possibilities for rent redemption;

▪ consequences of accidental loss of property, etc. These differences depend on whether the property was transferred by the rentee to the rent payer for a fee or free of charge.

The rent agreement is regulated only by the Civil Code of the Russian Federation.

Regulatory features lease agreements:

▪ regulation is carried out by legal norms of three types of contracts:

a) rent (they contain general provisions about this agreement and the features of each type of rent);

b) purchase and sale (these rules apply to a rent agreement in cases where the rent payer has received property against the payment of rent for compensation);

c) donations (these norms apply to a rent agreement in the case when the payer received property for rent free of charge);

▪ the content of the legal norms governing the annuity agreement is aimed at protecting the interests of the weaker party to the agreement, such a party is the annuity recipient;

▪ most of the legal norms governing the annuity agreement are of a dispositive nature (this means that the parties have the right to themselves determine the terms of the agreement referred to in these norms).

Responsibility of the payer rent comes for improper performance of the contract by him (in the form of payment of interest, penalties, termination of the contract, etc.), as well as subsidiary for improper payments of rent to its recipient by the person to whom he transferred ownership of the real estate received by him under rent (paragraph 2 of Art. 586 GK).

29. ELEMENTS OF RENT CONTRACT. RIGHTS AND OBLIGATIONS OF THE PARTIES

Hand agreement - the recipient of the rent and the payer of the rent. The subjective composition of the parties is limited by law for each type of rental agreement.

Subject contracts:

▪ property transferred by the rent recipient to the payer (movable and immovable; the legal regime of the contract depends on the type of property);

▪ rent (money, things, services), its type, size, terms of payment, as well as methods for ensuring its payment must be provided for in the contract.

Period The contract can be unlimited (in a permanent annuity contract), and can be measured by the life of the recipient of the annuity (in other types of contracts). This contract is ongoing. The uncertainty of the term of the contract does not allow at its conclusion to determine the entire amount of the rent that will be paid. This circumstance makes the contract risky, since it is not known in advance for which of the parties it will be more profitable, and any of the parties may receive satisfaction in a smaller amount than imagined.

Form rental agreements must be in writing, and the agreement must be certified by a notary; in the case of transfer by the recipient of the rent to the payer of real estate, the contract is subject to the state. registration.

The moment of conclusion of the contract is considered the transfer of a movable thing or state. registration of a contract for the transfer of real estate.

The rights and obligations of the parties vary depending on the type of rental agreement.

Rent recipient's rights: a) receive rent in a timely and full manner even in the event of accidental destruction of the thing transferred for rent;

b) demand that the annuity payer terminate the contract by repurchasing the annuity; c) demand payment of rent from the person to whom the rent payer will alienate the property transferred by the rent recipient upon concluding the rent agreement (this property is subject to the right of succession, etc.).

Rent payer rights: a) terminate the contract with the consent of the annuity recipient;

b) alienate to a third party real estate received by him under rent from the rent recipient, without the consent of the latter, etc.

Obligation of the annuitant - agree with the rent payer when concluding the agreement:

a) the amount, method and timing of payment of rent to him;

b) method of securing the contract; c) the fate of the contract in the event of the death of the annuity payer, etc.

Responsibilities of the rent payer: a) timely and fully pay the rent even in the event of accidental destruction of the property received by him under the rent;

b) index rent payments as inflation increases;

c) agree with the recipient of the rent on the terms of the contract, which were mentioned in the obligations of the recipient of the rent; d) compensate losses to the payer of rent in case of improper fulfillment of the obligation to pay rent, etc.

An essential condition of an agreement providing for the transfer of a sum of money or other movable property against payment of rent is a condition that establishes the duty of the rent payer to provide security for the performance of his obligations or to insure in favor of the recipient of the rent the risk of liability for non-performance or improper performance of these obligations.

30. FEATURES AND ELEMENTS OF THE CONTRACT OF PERMANENT RENT

hallmark permanent rent from other types of rent is its perpetuity.

Hand permanent lease agreements:

▪ the number of parties to the agreement is not limited by law;

▪ only citizens and legal entities can be parties to the agreement;

▪ the subject composition is limited only for one party - the recipient of the rent: they can be both the citizen who handed over the property for rent and the citizen indicated by him, as well as a non-profit organization (foundations, public and religious organizations) (clause 1 of Article 50 and Article 589 of the Civil Code);

The right to receive rent passes from the recipient of the rent to his successor by assignment of the claim during his lifetime or after death - by inheritance or during the reorganization of a legal entity, if it is such (paragraph 2 of article 589 of the Civil Code).

Subject The rent consists of property transferred by the recipient of the rent into the ownership of the payer of the rent and directly the rent - payment to the person who transferred his property into the ownership of the payer of the rent.

The property transferred by the recipient of the rent may be any thing that has not been withdrawn from civil circulation, both movable and immovable.

Rent can be of any form: monetary, clothing, services, work, but must always be expressed in monetary terms, otherwise the contract will be invalidated.

The minimum amount of rent is not defined by law (it must be determined by the parties to the agreement). The amount of rent is subject to indexation in accordance with the increase in the law of the minimum wage (clauses 1, 2 of article 590 of the Civil Code).

Deadlines in the permanent annuity agreement are defined only with respect to the time of payment of the annuity: it must be paid continuously at the end of each quarter, unless otherwise provided by the agreement (Article 591 of the Civil Code).

Price a permanent annuity agreement consists of the value of the property transferred to the payer by the recipient of the annuity and the amount of the annuity paid by the payer.

Grounds for the demand of the recipient of the annuity to redeem it (Article 593 of the Civil Code):

▪ rent payer:

a) delayed the payment of rent by more than one year;

b) violated his obligations to ensure the payment of rent (Article 587 of the Civil Code);

c) has been declared insolvent or circumstances have arisen that indicate that the rent will not be paid to them in the amount and within the time limits established by the agreement;

▪ real estate transferred for the payment of rent came into common ownership or was divided between several persons;

▪ in other cases provided for by the contract.

31. CONTENT OF THE CONTRACT OF PERMANENT RENT

Responsibilities of the rent payer:

▪ pay rent continuously in full even in the event of the destruction of the property transferred to him free of charge;

▪ pay interest established by the agreement or in accordance with Art. 395 of the Civil Code for late payment of rent (clause 1 of Article 595 of the Civil Code);

▪ bear the risk of accidental loss of property or accidental damage to it, transferred to him free of charge (clause 1 of Article 595 of the Civil Code).

Rent payer rights:

▪ refuse the annuity agreement by purchasing the annuity; to do this, he is obliged to notify the recipient of the annuity three months in advance in writing and pay subsequent amounts of annuity until its redemption (clause 1 of Article 592 of the Civil Code); waiver of this right in the contract is invalid, however, the contract can provide for a ban on redemption for a certain period: it cannot be more than 30 years (clause 3 of Article 592 of the Civil Code). The repurchase is carried out at the price specified in the contract, and in its absence - at a price corresponding to the annual amount of rent to be paid, plus the value of the property transferred for the payment of rent (clause 3 of Article 594 of the Civil Code);

▪ demand a reduction in the amount of rent or termination of the contract in the event of the destruction of property received for payment (clause 2 of Article 595 of the Civil Code).

Rent recipient's rights:

▪ require the payer to pay rent (Article 593 of the Civil Code);

▪ transfer to another person your right to receive annuity during your lifetime by assigning a claim, and after the death of the annuity recipient, this right is inherited (clause 2 of Article 589 of the Civil Code);

▪ demand from the payer to buy back the rent in case of improper performance of the contract by him, as well as in a number of cases and in case of improper performance of the contract by him: when the property received by him under the rent was transferred to several persons for common use or divided between them, as well as in the case when the payer is recognized insolvent (Article 593 of the Civil Code).

Grounds for termination permanent rent:

▪ general grounds for all contracts (Chapter 26 of the Civil Code);

▪ special reasons:

a) the requirements of the recipient to redeem the rent (Article 593 of the Civil Code);

b) the payer's requirements to terminate the contract due to the accidental loss of property transferred against the payment of rent (paragraph 2 of article 595 of the Civil Code).

Responsibility of the parties under a permanent rent agreement is not specifically provided for in the Civil Code of the Russian Federation. This means that it occurs in accordance with the general grounds provided for in paragraph 2 of Art. 586 and Art. 588 CC. However, there are some forms of responsibility:

▪ payment of interest by the rent payer for late payment of rent in accordance with Art. 395 Civil Code (Article 588 Civil Code);

▪ termination of the contract by purchasing the annuity at the request of the recipient (clause 1 of Article 593 of the Civil Code);

▪ termination of the annuity contract at the request of the payer by purchasing it (Article 592 of the Civil Code).

32. LIFE RENTAL AGREEMENT

subject of a contract life annuity differs from the subject matter of a permanent annuity agreement only in the requirements imposed on the annuity. The requirements for property transferred into the ownership of the payer have not been changed.

Requirements for rent in a life annuity agreement:

▪ rent can only be expressed in monetary terms;

▪ the amount of rent is at least one minimum wage per month (clause 2 of Article 597 of the Civil Code), it can increase in accordance with the rules provided for in Art. 318 Civil Code;

▪ the rent payment period is at the end of each calendar month, unless otherwise provided by the contract (Article 598 of the Civil Code).

Period The life annuity agreement is limited to the period starting from the moment of conclusion of the agreement and ending with the moment of death of the recipient of the annuity.

The subject composition of the recipient of the rent is more limited in comparison with a permanent rent agreement: only a citizen can act as a rent recipient.

Subject composition of the payer the same: all subjects of civil law can act as a payer.

Recipient rights life annuity:

▪ demand from the payer payment of rent on time and in full;

▪ receive the share of a deceased annuity recipient (co-shareholder), if there were several annuity recipients;

▪ demand from the payer in case of improper performance of the contract:

a) the return of this property with an offset of its value against the redemption price of the rent (clause 2 of article 599 of the Civil Code);

b) redemption of property according to the rules provided for in Art. 594 of the Civil Code for the redemption price of a permanent rent, or termination of the contract and compensation for losses (clause 1 of article 599 of the Civil Code).

The right to receive a life annuity does not pass by inheritance and cannot be transferred by assignment of a claim during the lifetime of the recipient of the annuity.

Grounds for termination of the contract life annuity:

▪ death of the last annuity recipient (the death of the annuity payer does not terminate the obligation to pay annuity, it passes to the heirs of the deceased payer);

▪ the demand of the annuity recipient to repurchase the annuity in the event of a significant violation of the contract by the payer (clause 1 of Article 599 of the Civil Code) under the terms of Art. 594 Civil Code.

The loss of property transferred under rent does not terminate the contract, regardless of whether its transfer is for compensation or gratuitous.

For late payment of rent, the payer of rent shall pay to the recipient of the rent interest, the amount of which is determined by the rate of bank interest existing at the place of residence of the recipient of the rent on the day of fulfillment of the monetary obligation or its corresponding part, unless a different amount of interest is established by the rent agreement.

33. LIFETIME ASSISTANCE CONTRACT

Subject This agreement has the following features: only real estate can be transferred under rent; the rent may include the obligation to provide for the needs of the recipient of the rent in housing, food, clothing, as well as care for him, if his state of health requires it. In addition, payment by the payer of ritual services to the recipient of the rent in the event of his death may be provided; the size of the rent must be at least two minimum wages, and the cost of the entire amount of maintenance must be determined in the contract; term of rent payment - at the end of each calendar month; it is allowed to replace maintenance in kind with periodic payments in the amount of money.

Period of the contract is limited to the period starting from the moment of conclusion of the contract and ending with the moment of death of the recipient of the annuity.

The subject composition of the recipient of the rent: only a citizen.

The subject composition of the payer: all subjects of civil law.

Rent recipient's rights: pledge on transferred property; receiving rent from the payer, and in case of alienation by the latter of the property received by rent to another person - from this person; demand from the payer in case of improper performance of the contract by him the return of his property transferred free of charge, or its redemption; to receive the share of the deceased co-shareholder under the obligation in the event of the death of the latter; require the payer to pay rent in a timely manner and in full.

The rent payer has the right encumber immovable property transferred to him under rent (alienate, pledge, etc.) only with the prior consent of the recipient of the rent and does not have the right to refuse to pay the rent by buying it out.

Responsibilities of the rent payer: not reduce the value of the property received under rent; obtain the consent of the recipient of the rent to pledge the property or otherwise encumber the immovable property received by him under the rent.

Grounds for termination of the contract: death of the recipient of the annuity; the requirement of the recipient of the rent to return the real estate transferred under rent, on the terms of Art. 594 of the Civil Code of the Russian Federation; material breach of obligations by the rent payer. In this case, the payer of the rent is not entitled to demand compensation for the expenses for the maintenance of the recipient of the rent.

The rules that should apply to each type of rent are not fully set out in the law, which is compensated by references to other articles. In addition, the possibility of applying the general provisions of the law of obligations is assumed. So, for example, the termination of an annuity contract can be carried out not only by buying it out, but also by traditional methods: by agreement of the parties, forgiveness of a debt, set-off, innovation, etc.

34. CONCEPT AND CHARACTERISTICS OF THE LEASE AGREEMENT. LIABILITY OF THE PARTIES AND TERMINATION OF THE AGREEMENT

On lease agreement one party (the lessor) undertakes to provide the other party (the lessee) with property for temporary possession and use or for temporary use for a fee.

This agreement is included in the group of agreements aimed at the transfer of property for use.

The concepts of "rent" and "property lease" in the Civil Code of the Russian Federation are synonymous.

Characteristics of the lease agreement: consensual, mutual, compensatory.

The Civil Code of the Russian Federation provides only 5 types of lease agreements (although in fact much more can be distinguished): rental; vehicle rental; lease of buildings and structures; enterprise lease; financial lease (leasing).

The lease agreement is regulated mainly by the Civil Code of the Russian Federation. Other normative acts: Law of the Russian Federation "On Protection of Consumer Rights" (under a rental agreement); Federal Law "On Leasing"; transport statutes (they regulate the rental of vehicles); Land Code of the Russian Federation; Forest Code of the Russian Federation; Water Code of the Russian Federation; RF Law "On Subsoil"; Law "On the Animal World".

The landlord responds: for the risk of accidental loss or damage to the leased property, since it is its owner; shortcomings of the leased property, if they impede its use; failure to fulfill their obligations under the contract and the law.

The tenant responds: for late rent; untimely return of property (he is obliged to pay rent for the time of delay, as well as pay a penalty); failure to fulfill other obligations stipulated by the contract and the law.

Grounds for termination of the lease: performance of the contract; the liquidation of a legal entity if it is a tenant or lessor, but the death of a citizen who is a party to a lease agreement does not terminate the agreement: the rights and obligations of the deceased are transferred to his heir; agreement of the parties to terminate the contract; a claim to the court of one of the parties, etc.

Grounds for termination of the lease agreement by the court at the request of the landlord: use by the tenant of the leased property in violation of the terms of the contract or the purpose of the property; significant deterioration by the tenant of the leased property; delay of two terms of rent payment; non-fulfillment by the tenant of the obligation to carry out current repairs or bear the costs of maintaining the leased property.

The peculiarity of the presentation by the lessor of the statement of claim to the arbitration court: he must present a copy of the document warning him of the tenant of a violation of his duties.

Grounds for termination of the lease agreement by the court at the request of the tenant: non-provision by the lessor of the subject of lease to the tenant; provision by the lessor of property with deficiencies that prevent its use; non-fulfillment by the lessor of obligations to carry out major repairs of the property leased by him; the unsuitability of the leased property for use due to circumstances for which the tenant is not responsible.

35. ELEMENTS OF A LEASE

The subject of the contract lease is an individually defined thing, both movable and immovable, that does not lose its properties in the process of its use. The leasing of certain items may be restricted by law (for example, weapons may only be leased with special permission from the parties). The lease of natural objects should be carried out taking into account not only the norms of the Civil Code, but also special laws. So, for example, Art. 53 of the Land Code requires the tenant to comply with the designated purpose of the land plot received by him. Natural objects, as a rule, can be leased if future tenants have special licenses. The condition on the subject of the contract is essential.

Form of contract lease depends on its term and the composition of the parties to the contract. So, if the contract is concluded for a period of more than one year, and also in the case when one of the parties is a legal entity, its form must be written (paragraph 1 of article 609 of the Civil Code). If the subject of the lease agreement is real estate, the agreement must be registered by the relevant state body.

The procedure for concluding a contract lease has two features. The first feature is that this contract can be concluded at auctions where the right to conclude a contract is sold as a result of a competition between persons claiming the right to be tenants (the contract is concluded with the person who won the auction). The second feature is that the tenant has the pre-emptive right to conclude an agreement for a new term after the expiration of the initial term of the agreement (Article 621 of the Civil Code).

Price contract is determined by agreement of the parties. If it is not determined at the conclusion of the contract, the usual rent for this type of property is applied. The rent can be set in the following way:

▪ in a certain amount of money, deposited at a time or periodically;

▪ in the share of products, fruits or income received as a result of the use of leased property;

▪ in the form of certain services;

▪ in transferring ownership or lease of a certain thing to the lessor;

▪ imposing costs on the tenant in order to improve the property leased by him.

Period contracts can be either definite or indefinite. If the term is not specified in the contract, it is considered concluded for an indefinite period. A feature of the contract with an indefinite period is that each of its parties may withdraw from the contract at any time by warning its counterparty one month in advance if the subject of the contract is movable property, or three months in advance if the subject of the contract is real estate . However, these terms can be changed by the parties to the agreement or by law. If the contract is concluded for a period exceeding the limits of the period established by law, the contract is considered concluded for a deadline.

36. PARTIES TO THE LEASE. RIGHTS AND OBLIGATIONS OF THE PARTIES

As parties (landlord и tenant) all subjects of civil legal relations can act: individuals and legal entities, as well as the state (through its bodies).

The lessor must be either the owner of the property transferred by him for use, or a person authorized by law or the owner of the property to lease this property. At the same time, a person who owns property on the basis of the right of operational management may lease it out only with the consent of the owner of this property.

Any person can be a tenant, however, in some types of lease, the subject composition may be limited by law. So, in a lease agreement for an enterprise and a leasing agreement, both parties must be entrepreneurs, and in a consumer rental agreement, only one party must be an entrepreneur - the lessor.

The lessor is obliged: provide the tenant with property in a condition corresponding to its purpose and the terms of the contract; supply the property transferred to the tenant with all accessories and documents related to it; transfer the property to the tenant within the time period established by the agreement; warn the tenant about the obligations of third parties to the property transferred to him; carry out capital repairs of the leased property at its own expense.

The lessor has the right: demand rent from the tenant; return of the leased item after the expiration of the contract; early termination of the contract, if the tenant uses the property not in accordance with the terms of the contract or with the purpose of the property.

The tenant is obliged: use the leased property in accordance with the terms of the contract or the purpose of the property; use the leased property only by himself; do not sublease this property without the consent of the landlord; pay rent on time; return the property to the lessor after the end of the contract in a state of normal wear and tear, together with accessories and documents related to it; maintain the leased property in good condition; carry out current repairs of the leased property; bear the cost of maintaining it.

The tenant has the right: require the lessor to transfer the subject of the lease to him; reduction of rent if the condition of the leased property has deteriorated significantly; claim the fruits, products, income received as a result of the lease, unless otherwise provided by the contract; for the redemption of the leased property, if it was provided for by the contract; to sublease the leased property (the rights of the subtenant are limited by the rights of the tenant, in particular, the sublease period cannot be longer than the lease period); to conclude a contract for a new term, primarily to other persons; for the transfer within one year of the right to conclude a new contract if the lessor refused to conclude an agreement for a new term, but at the same time concluded an agreement with another person.

The right of use of the tenant is inherent right to follow a thing, i.e., the transfer of ownership of the leased item does not terminate the contract.

37. FEATURES OF THE LEASE OF VEHICLES

The Civil Code of the Russian Federation regulates only two types of vehicle lease agreements:

a) rental of vehicles with a crew;

b) rental of vehicles without a crew;

▪ the concepts of these types of contracts are given in Art. 632 (this agreement is called chartering for a time) and in Art. 642 Civil Code;

▪ the subject of a vehicle rental agreement is only vehicles - devices intended for the transportation of goods, passengers and luggage. And the subject of the rental agreement for vehicles with crew consists of two elements:

a) a vehicle;

b) provision of services by the crew;

▪ the difference in the legal regulation of the two types of contracts indicated above is that in the first case, the responsibilities for managing the technical operation of transport are retained by the lessor (Article 635 of the Civil Code), and in the second they are transferred to the lessee (Article 645 of the Civil Code) ;

▪ vehicle rental agreements are regulated not only by the Civil Code of the Russian Federation, but also by transport charters and codes (Articles 641, 649 of the Civil Code);

▪ the crew of a leased vehicle finds itself in dual subordination: the lessee and the lessor;

▪ the fee paid by the lessee is called freight;

▪ deadlines for this type of contract are not established by law;

▪ the tenant has the right to enter into transactions related to the operation of the leased vehicle without the consent of the lessor;

▪ rules of liability for causing damage to rented vehicles are formulated by the legislator taking into account the fact that the latter is a source of increased danger;

▪ responsibility for causing harm to a third party by a rented vehicle when renting it without a crew is borne by the lessee, unless he proves that the damage arose as a result of force majeure or the intent of the victim (Article 648 of the Civil Code), and when renting it with a crew - the lessor (Article 1079 and 640 GK);

▪ liability under a time charter agreement is unusual: in the event of the destruction of a rented vehicle, the lessee is obliged to compensate the lessor for losses incurred unless the latter proves that the damage occurred due to circumstances for which the lessee is responsible in accordance with the law or the agreement (Article 639 of the Civil Code);

▪ responsibility of the parties for improper execution of the contract also occurs in the absence of guilt, since the parties are entrepreneurs (clause 3 of Article 401 of the Civil Code).

38. FEATURES OF THE ENTERPRISE LEASE AGREEMENT

A business lease is a type of real estate lease.

Parties to the agreement are entrepreneurs.

Essential conditions of the contract are its subject and the amount of rent (clause 2 of article 650, clause 1 of article 654 of the Civil Code).

The subject The contract is an enterprise as a property complex.

Since the enterprise is a complex object, its composition is determined on the basis of an inventory act, an audit opinion on its value, a balance sheet reflecting the assets and liabilities of the enterprise, as well as a list of obligations, in particular debts.

As part of the enterprise allocate fixed and working capital, as well as its exclusive rights.

The lease agreement must be presented by a document signed by both parties.

The lessor is obliged to notify the creditors of the enterprise about the lease of his enterprise to them in order to obtain their consent to transfer the debt due to them from the owner of the enterprise to the lessee.

A creditor who has received a notice from the lessor about the transfer of his enterprise for rent has the right to present a demand to the lessor to terminate the loan agreement with him within three months. A creditor who has not received such a notice shall be entitled to this claim within one year from the date on which he learned of the lease of the enterprise.

The tenant of the enterprise has broad rights in relation to the subject of the contract: he has the right to make transactions with property without the consent of the creditor (sublease, sell, exchange leased property, but these rights do not apply to natural resources); take actions aimed at increasing the value of the leased property (Article 660 of the Civil Code).

Inseparable improvements made by the tenant without the permission of the landlord are subject to compensation by the landlord, unless they are unreasonable (Article 662 of the Civil Code).

For debts transferred to the tenant together with the enterprise, the tenant and the lessor are jointly and severally liable to the creditor (paragraph 4 of article 657 of the Civil Code).

If the contract is recognized as invalid, the return to the parties of everything received under the transaction is possible only if this does not significantly violate the rights of the parties to the contract, other persons and does not contradict public interests.

39. FEATURES OF THE FINANCIAL LEASE (LEASE) AGREEMENT

The contract is concluded in order to meet the needs of the lessee at the expense of the lessor and receive income from the latter.

The rights and obligations of the parties to the contract arise as a result of two transactions: lease and sale.

The tenant determines the property that will be the subject of the lease agreement and its seller.

The property is transferred not only for use, but also for possession.

Contract types leasing: long-term - period more than 3 years, medium term - period from 1,5 to 3 years, short - up to 1,5 years.

Types of contract leasing: fynansovыy - the subject of the contract is chosen by the lessee, and the lessor buys it; upon expiration of the contract, the subject of leasing becomes the property of the lessee; operational - the subject of the contract when purchasing it is chosen by the lessor, the lessee does not have ownership rights, and the assignment of his rights to a third party is not allowed; returnable - the owner of the property sells it to a leasing company on the condition that the latter will lease it only to him.

Parties to the contract are: the lessor (lessor), the lessee (tenant) and the seller (supplier) of the property.

The lessor and the lessee act in relations with the seller as solidary creditors.

The subject of the contract are movable and immovable non-consumable things, except for land plots and natural objects.

Contract price - an amount including reimbursement of costs incurred by the lessor in connection with the acquisition of the leased asset, and the income of the lessor.

Form of contract can only be written, and its name determines the form (internal or international), type and type of contract.

Responsibility features: the collection of sums of money and the withdrawal of the subject of leasing take place in an indisputable manner, provided for by law or an agreement; the risk for the non-compliance of the subject matter of the contract with the purposes of its use is borne by the party that chose it upon purchase; the risk of accidental loss or damage to the subject of leasing lies with the lessee from the moment he receives it.

The lessor has the right to terminate the contractif: the terms of use of the leased asset do not comply with the terms of the agreement; the lessee carries out subleasing without his consent; the lessee worsens the consumer properties of the leased asset; the lessee missed the rent payment deadlines more than two times in a row.

The lessee has the right to terminate the contract, if: the leased asset was not transferred to him in a timely manner by the lessor; The lessor does not repair the property within the period established by the contract.

The lessee does not have the right to terminate the contract for the sale of the leased asset without the consent of the lessor.

Termination of the leasing agreement is possible by agreement of the parties, as well as by a court decision.

40. CONCEPT, CHARACTERISTICS, LEGAL REGULATION, ELEMENTS OF THE LOAN AGREEMENT. LIABILITY UNDER THE CONTRACT

Under a loan agreement, one party (lender) undertakes to transfer the thing for gratuitous temporary use to the other party (to the borrower), and the latter undertakes to return the same thing in the condition in which it was received, taking into account normal wear and tear or in the condition stipulated by the contract (clause 1 of Article 689 of the Civil Code).

This agreement belongs to the group of agreements on the transfer of property for use, it is regulated by the articles of Ch. 36 of the Civil Code, articles of the Civil Code on rent, as well as special laws, for example. "On librarianship", Forest Code of the Russian Federation.

By the participants This agreement can be any subjects of civil law, however, the lender can only be either the owner of the thing, or a person authorized by the owner or the law to lend property, in addition, the legislator somewhat restricts the rights of commercial organizations: they do not have the right to lend their property to the founder and a member of its organization, as well as persons exercising control over this organization. The change of the lender in the agreement does not terminate the loan agreement: his rights and obligations are transferred to his successor.

The subject of the contract are things. The requirements for the subject of the loan agreement are the same as for the subject of the lease agreement. The subject of the loan agreement is its essential condition.

Form of contract loans must be written only in cases where the value of the subject of the loan exceeds 10 times the minimum wage, or when at least one of the parties to the agreement is a legal entity (i.e., the rules establishing special conditions for the form of the lease agreement do not apply to the loan agreement) . In cases where the subject of the contract is real estate, the contract is subject to the state. registration.

Free of charge contract loans is its essential condition.

Contract term loans can be either definite or indefinite. If the term of the contract is indefinite, the notice of withdrawal from the contract must be given one month in advance.

The lender responds:

▪ for defects in the thing that he (intentionally or through gross negligence) did not stipulate when concluding the loan agreement, but is not responsible for the defects that were stipulated by him, were known in advance to the borrower or were discovered by him when concluding the agreement or transferring the thing;

▪ for damage caused to a third party as a result of the use of the item by the borrower, unless it proves that the damage was caused due to intent or gross negligence of the borrower or the third party.

The recipient responds:

▪ for the risk of accidental death or accidental damage to a thing in the event that he could have prevented its death or damage by sacrificing his thing, but chose to keep it;

▪ for accidental loss or accidental damage to a thing, if it was lost or damaged due to the fact that he did not use it in accordance with the agreement or purpose or transferred it to a third party without the consent of the lender.

41. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE LOAN AGREEMENT. TERMINATION OF THE CONTRACT

Borrower's obligations: transfer the thing to the borrower without defects, and in the event that they exist, stipulate them; warn the borrower about the rights of third parties to the thing transferred to him; provide the thing in a condition that meets the terms of the contract and its purpose; provide the transferred item with accessories and related documents.

Lender's rights: to replace the thing handed over to the borrower if the latter requires the elimination of defects in it; require the borrower to return the thing after the termination of the loan agreement.

Obligations of the borrower: use the thing in accordance with the terms of the contract or the purpose of the thing; maintain the thing received under the contract in good condition, including carrying out current and major repairs; bear the cost of maintaining the thing received under the contract; not transfer the received thing to third parties without the consent of the lender; return the item received in the same condition, subject to normal wear and tear, or in the condition stipulated by the contract.

Borrower's rights: demand from the lender the accessories to the thing and the documents relating to it that he has not submitted; in case of non-transfer of the subject of the contract by the lender, demand termination of the contract and compensation for actual damage; demand from the lender reimbursement of his expenses for the elimination of defects in the thing transferred to him or their removal free of charge if the lender bears responsibility for these shortcomings, or early termination of the contract and real damage suffered by him.

Grounds for terminating a loan agreement:

▪ expiration of the contract;

▪ termination of the borrower (death of a citizen-borrower or liquidation of a legal entity - borrower) unless otherwise provided by the agreement;

▪ unilateral refusal of a contract concluded without specifying a period (for this, the refusing party must notify the other party of this one month in advance, unless the contract provides for a different notice period).

Grounds for early termination of the contract by the lender:

▪ use by the borrower of the thing not in accordance with the agreement or its purpose;

▪ failure of the borrower to fulfill the obligation to maintain the item in good condition or the obligation to maintain it;

▪ significant deterioration in the condition of the item;

▪ transfer of an item by the lender to a third party without the consent of the lender.

Grounds for early termination of the contract by the borrower:

▪ discovery of defects in a thing that make its use impossible if he did not know about them at the time of concluding the contract;

▪ the item received under the contract turned out to be unsuitable for its intended use;

▪ when transferring the thing, the lender did not warn him about the rights of third parties to it;

▪ when transferring the thing, the lender did not transfer the accessories and documents related to it.

42. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE AGREEMENT FOR LEASE OF RESIDENTIAL PREMISES

Under a residential lease agreement, one party is the owner of the residential premises or a person authorized by him (landlord) - undertakes to provide the other party (to the employer) residential premises for a fee for possession and use for living in it (paragraph 1 of article 671 of the Civil Code).

Characteristics of the tenancy agreement: it is consensual, reimbursable, bilaterally binding.

The subject a residential lease agreement is an isolated (having a separate entrance), well-maintained (in relation to the conditions of a given settlement), a dwelling that meets the established sanitary and technical requirements (clause 1 of article 673 of the Civil Code, articles 40, 52 of the LCD). It can be a residential building, an apartment or parts of them.

By the parties residential lease agreements are landlord и employer. The lessor can be citizens and legal entities, and the tenant can only be an individual.

Form of contract renting a dwelling can only be in writing.

Contract term hiring a dwelling can be either definite or indefinite.

Types of contract rental housing:

▪ social rental agreement for residential premises;

▪ commercial rental agreement for residential premises. The above types of residential lease agreements differ from each other:

▪ the grounds for their conclusion;

▪ the form of ownership of the landlord for the rented residential premises;

▪ the size of the residential premises that are the subject of the contract;

▪ duration of the contract;

▪ method of determining payment for the use of residential premises;

▪ terms of the contract;

▪ powers of the parties to the agreement;

▪ sources of their legal regulation.

Both types of contract are regulated by Ch. 35 of the Civil Code, however, only seven of the eighteen articles relate to a social contract of employment. This is Art. 672, 674, 675, 678, 680, 681, art. 1-3 685 GK. In addition to them, this type of contract is regulated by the Housing Code, the Law of the Russian Federation "On the Fundamentals of Federal Housing Policy" dated December 24, 1992, and a number of other regulatory acts.

43. AGREEMENT FOR SOCIAL LEASE OF RESIDENTIAL PREMISES

Under a social tenancy agreement for residential premises, one party is the owner of the residential premises of the state housing stock or municipal housing stock (an authorized state body or an authorized local self-government body acting on his behalf) or a person authorized by him (landlord) undertakes to transfer to the other party - a citizen (to the employer) residential premises for possession and use for living in it on the terms established by law.

The contract is concluded without setting a term for its validity.

A change in the grounds and conditions that give the right to receive housing under a social tenancy agreement is not a basis for terminating the social tenancy agreement.

Features of a social contract of employment living quarters:

a) the subject of this type of contract may be residential premises included only in the state and municipal housing stock;

b) the residential premises indicated in paragraph "a" are intended for provision to vulnerable segments of the population: war veterans, the disabled, poor citizens;

c) granting the right to conclude this type of contract occurs on the basis of the order of needy persons in this locality;

d) the provision of such living space for rent is preceded by registration of persons in need of improved housing conditions, conducted in accordance with the rules provided for by housing legislation;

e) the direct basis for the conclusion of this type of contract for the rental of residential premises is the receipt of an order by the local authority by the future tenant;

f) the contract is concluded by the tenant with the housing maintenance authority on the basis of an order submitted by him;

g) the size of the residential premises issued on the basis of the warrant depends on the number of persons moving into this residential premises, as well as on the norm of living space established at the time of issuance of the warrant, issued per person;

h) payment for the rented residential premises is carried out in accordance with the tariffs in force at the time of payment;

i) the amount of payment by a specific tenant of a dwelling can be reduced if he has the appropriate benefits or if he falls into the category of persons who are subject to the issuance of compensation (subsidies) due to low financial resources;

j) the moment of conclusion of the contract is the signing of its text by the parties and the receipt by the tenant of the keys to the living quarters;

k) the order for the residential premises submitted by the tenant is a legal document that is subject to safekeeping by the housing maintenance organization.

The powers of the parties under a social tenancy agreement are divided into two groups:

a) the powers identical with the powers of the parties to the contract for the commercial rental of residential premises;

b) the powers inherent only to the parties to the social tenancy agreement.

44. POWERS OF THE PARTIES TO THE AGREEMENT OF SOCIAL LEASE OF RESIDENTIAL PREMISES DIFFERENT FROM THE POWERS OF THE PARTIES TO THE AGREEMENT OF COMMERCIAL LEASE OF RESIDENTIAL PREMISES

The powers of the parties under a social tenancy agreement are divided into two groups:

a) the powers identical with the powers of the parties to the contract for the commercial rental of residential premises;

b) the powers inherent only to the parties to the social tenancy agreement.

The group of powers of group "b" includes the following (according to the LC RF):

▪ the tenant is obliged to carry out routine repairs;

▪ the tenant is obliged, at his own expense, to restore the premises to their previous condition in the event of unauthorized redevelopment;

▪ the tenant has the right to exchange residential premises, etc.

The question of the circle of persons moved by the tenant to the living space occupied by him is solved differently. In accordance with the LCD, such persons include a spouse, children, parents, and other relatives. Moreover, for the settlement of these persons, the consent of all residents is required. The landlord may prohibit the occupancy of citizens as members of his family living together with the tenant if, after their occupancy, the total area of the relevant residential premises per family member is less than the accounting norm. The consent of the other members of the tenant's family and the consent of the landlord is not required to move in with the parents of their minor children.

When tenants are evicted from a dwelling occupied under a social tenancy agreement, in some cases provided for by law, another dwelling is provided, and when tenants are evicted from a dwelling occupied under a commercial lease, the provision of another dwelling is not provided for by law.

Otherwise, the issue of the responsibility of family members permanently residing with the tenant in the contracts of social rental of residential premises and commercial rental is resolved. Thus, persons residing under a contract of social tenancy of a dwelling are jointly and severally liable with the tenant. And in a family living under a commercial lease agreement, the tenant is responsible to the landlord for the actions of all citizens permanently residing with him, and joint and several liability is possible only if an appropriate agreement is concluded between these persons.

The contract of social rental of residential premises is unlimited, and the contract of commercial rental of residential premises is limited to the period of residence.

45. CONTRACT FOR COMMERCIAL LEASE OF RESIDENTIAL PREMISES

Features of a commercial rental agreement for residential premises:

a) the subject of the contract may be premises located in a private housing stock;

b) the amount of payment for residential premises is established by agreement of the parties. Unilateral changes in its size are not allowed; c) the term of payment for residential premises is determined by the contract, otherwise it must be paid monthly; d) the term of the contract cannot be more than 5 years; e) citizens permanently residing in residential premises must be indicated in the contract; f) citizens can be moved into residential premises for permanent residence, but with the consent of the landlord, tenant and citizens permanently residing with him, subject to compliance with the requirements of the law on the standard of living space per person, except in cases of moving in minor children; g) at the request of the tenant and other citizens permanently residing with him, and with the consent of the landlord, the tenant may be replaced by one of the citizens permanently residing with the tenant; h) in the event of the death of the tenant or his retirement, the contract continues to be valid on the same conditions, while one of the citizens permanently residing in this residential premises becomes the tenant with the consent of the remaining citizens.

Powers of the parties to the contract - the same as those indicated in group “a” in relation to the social rental agreement for residential premises, as well as the following: the landlord is obliged to transfer to the tenant free residential premises in a condition suitable for habitation; the landlord is obliged to carry out proper operation of the residential building in which the rented residential premises are located, to provide the tenant with utilities for a fee, and to carry out repairs to the common property of the apartment building; Only a citizen can be an employer under a contract; the tenant has a pre-emptive right to conclude a lease agreement for residential premises for a new term after the expiration of the lease agreement. This issue must be resolved 3 months before the expiration of the rental agreement. The tenant does not have the right to demand an increase in the number of people living with him when re-concluding the contract; the tenant has the right, with the consent of other persons permanently residing with him, to terminate the contract at any time by warning the landlord in writing 3 months in advance; the landlord has the right to demand termination of the contract in court if the tenant fails to pay for 6 months, and for a short-term contract - more than twice, as well as destruction or damage to the residential premises; the contract can be terminated in court at the request of either party if the residential premises have become unsuitable for habitation or are in disrepair, as well as in other cases; The landlord has the right to terminate the contract in court if the tenant or persons living with him use the residential premises for other purposes or systematically violate the rights and interests of neighbors.

In the event of termination of the contract, all persons living in the residential premises are subject to eviction on the basis of a court decision.

46. RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE CONTRACT

Customer Responsibilities: pay the contractor the agreed price after acceptance of the work; provide materials for the performance of work, if it is provided for by the contract; inspect and accept the work performed and, in case of detection of deficiencies, immediately report this to the contractor.

Customer rights: conclude contracts for the performance of certain types of work with other persons with the consent of the general contractor, who become responsible to the customer; control the progress and quality of work performed by the contractor, without interfering with his activities; refuse to perform the contract and demand compensation for damages in case of slow performance of work; set a reasonable time for the contractor to eliminate the deficiencies, and in case of failure to comply with this requirement, cancel the contract or entrust the correction of work to another person at the expense of the contractor, as well as demand compensation for losses from him.

Contractor Responsibilities: transfer the rights to the customer to the manufactured item; perform work from their own materials, by their own strength and means, unless otherwise provided by the contract; perform the work at the price determined by the contract, if he did not warn the customer in a timely manner about its actual excess; use the material provided by the customer economically and prudently, submitting to the customer a report on its consumption after completion of work and returning its balance; warn the customer and, until receiving instructions from him, suspend work if circumstances are discovered that threaten the suitability or strength of the results of the work being performed or the impossibility of completing it on time. In case of failure to take measures by the customer, the contractor has the right to refuse to perform the contract and demand compensation for losses caused by its termination.

Contractor's rights: independently determine ways to fulfill the customer's task; involve subcontractors in the performance of his duties, if the contract does not provide for his obligation to perform the work personally; demand payment at the price stipulated by the contract, in the event that the actual costs of the contractor turned out to be less than those taken into account when determining the price of the work; keep the result of work, equipment until the customer pays money for the performance of the contract; demand payment for the work performed by him, if the result of the work was not achieved or the achieved result turned out to be with defects that make it unsuitable for the use provided for in the work contract or for normal use, due to reasons caused by defects in the material provided by the customer; not to start work, but to suspend the work begun if the customer fails to fulfill counter obligations and demand compensation for losses.

Risk of death:

▪ property transferred for the execution of the contract is borne by the party that provided it;

▪ the result of the work performed before its acceptance by the customer is borne by the contractor;

▪ the result of work in case of delay in delivery or acceptance is borne by the party that caused the delay. The parties may provide in the contract for the distribution of savings received by the contractor between them.

47. HOUSEHOLD CONTRACT

On house contract the contractor carrying out the relevant entrepreneurial activity undertakes to perform, on the instructions of a citizen (customer), certain work intended to satisfy the household or other personal needs of the customer, and the customer undertakes to accept and pay for the work.

Features of the contract household contract:

▪ the subject of the contract is intended to satisfy the household or other personal needs of the customer;

▪ the customer is a citizen, and the contractor is an entrepreneur (clause 1 of article 730 of the Civil Code);

▪ the contract is public - Art. 426 of the Civil Code (clause 2 of Article 730 of the Civil Code);

▪ laws on the protection of consumer rights apply to relations arising under this agreement (clause 3 of Article 730 of the Civil Code);

▪ the contractor has no right to impose additional work or services on the customer (clause 1 of Article 731 of the Civil Code);

▪ the contractor is obliged to provide the customer with reliable information about the proposed work before concluding the contract, as well as about the specific performer, if this is relevant (clause 1 of Article 732 of the Civil Code). Otherwise, the customer has the right to demand termination of the contract without payment for its implementation (clause 2 of Article 732 of the Civil Code);

▪ the contractor’s materials are paid by the customer upon conclusion of the contract, either in full or only in the part specified in the contract, with final payment upon receipt of the result of the work (clause 1 of Article 733 of the Civil Code). A change in the price of material provided by the contractor does not entail recalculation (clause 2 of Article 733 of the Civil Code);

▪ the customer’s material must be described and assessed in the receipt issued to him by the contractor (Article 734 of the Civil Code);

▪ the price of the work is determined by agreement of the parties and cannot be higher than that established or regulated by the relevant government bodies (Article 735 of the Civil Code);

▪ the work is paid for by the customer after its final delivery by the contractor. With the consent of the customer, the work can be paid for by him at the conclusion of the contract in full or by issuing an advance;

▪ the contractor is obliged to inform the customer about the conditions for using the work he has performed (Article 736 of the Civil Code);

▪ if the customer evades acceptance of the result of the work, the contractor has the right, after 2 months from the date of written warning, to sell the result of the work, withhold the amount due to him, and deposit the rest - Art. 327 Civil Code (Article 738 Civil Code).

48. CONSTRUCTION CONTRACT

On building contract the contractor undertakes, within the time period established by the contract, to build a certain facility on the instructions of the customer or perform other construction work, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.

Features of the contract construction contract:

▪ the subject of the contract may be a new construction project, reconstruction and technical re-equipment of an existing enterprise, major repairs of buildings, installation of technological equipment, commissioning work (clause 2 of Article 740 of the Civil Code);

▪ the customer is represented by specialized organizations that are representatives of those persons for whom the object is being built; construction organizations and individual entrepreneurs with a license for construction activities act as contractors. The parties to such an agreement may be Investors - persons investing their funds in construction. Such persons may also act as customers;

▪ the essential terms of this agreement are its subject, price and term (clause 1 of Article 740 of the Civil Code);

▪ the customer is obliged to provide the contractor with a land plot for construction in a timely manner (clause 1 of Article 747 of the Civil Code);

▪ the exercise of customer rights is possible with the help of an engineer or engineering organization (Article 749 of the Civil Code);

▪ the contractor is obliged to comply with the requirements of the law on environmental protection and the safety of construction work (clause 1 of article 751 of the Civil Code);

▪ the customer is obliged to pay the contractor for the work performed by him before the conservation of the latter, as well as to reimburse expenses caused by the cessation of work (Article 752 of the Civil Code);

▪ the customer is obliged to immediately begin accepting the work performed (clause 1 of Article 753 of the Civil Code), which he carries out at his own expense (clause 2 of Article 753 of the Civil Code);

▪ the risk of the consequences of the destruction of a separate stage of work, previously accepted by the customer, is borne by the latter (clause 3 of Article 752 of the Civil Code);

▪ delivery and acceptance of the work result is documented by an act, which must be signed by both parties to the contract (clause 4 of Article 753 of the Civil Code);

▪ acceptance of the work result must be preceded by preliminary tests, if they are provided for in the contract (clause 5 of Article 753 of the Civil Code);

▪ the customer has the right to refuse to accept the results of the work if they have fatal deficiencies (clause 6 of Article 753 of the Civil Code).

49. CONTRACT FOR THE PERFORMANCE OF DESIGN AND SURVEY WORKS

Under a contract for the performance of design and survey work, the contractor (designer, prospector) undertakes, on the instructions of the customer, to develop technical documentation and (or) perform survey work, and the customer undertakes to accept and pay for their result.

Features of the contract contract for design and survey works:

▪ the subject of the contract is the execution by the designer (surveyor) of design and (or) survey work, culminating in the preparation of technical documentation or the presentation of data on the surveys carried out (clause 1 of Article 759 of the Civil Code);

▪ customers can be persons who need the results of design and survey work; often they are contractors under a construction contract. Only entrepreneurs who have a special license to perform such work can act as a contractor (designer, surveyor);

▪ the contract price is determined in accordance with the estimate containing a list of the contractor’s costs;

▪ the contractor has no right to transfer technical documentation developed in accordance with the contract to third parties without the consent of the customer (clause 1 of Article 760 of the Civil Code);

▪ the contractor guarantees to the customer that third parties will not have the right to prevent the execution of work based on the technical documentation developed by him (clause 2 of Article 760 of the Civil Code);

▪ the contractor is obliged to redo the technical documentation free of charge, as well as to compensate the customer for losses if there are deficiencies in the technical documents or survey work (clause 2 of Article 761 of the Civil Code);

▪ the customer is obliged to use technical documentation only for the purposes specified in the contract, not to transfer it to third parties and not to disclose the data contained in it (Part 3 of Article 762 of the Civil Code);

▪ the customer is obliged, together with the contractor, to participate in the coordination of finished technical documentation with the relevant state bodies and local governments (clause 5 of Article 762 of the Civil Code);

▪ the customer is obliged to reimburse the contractor for expenses caused by changes in the initial data for completing his task, which arose regardless of the contractor (clause 6 of article 762 of the Civil Code).

50. CONTRACT FOR THE PERFORMANCE OF WORKS FOR STATE OR MUNICIPAL NEEDS

Contract work for state or municipal needs - contract construction work, design and survey work intended to meet the needs of the Russian Federation or a constituent entity of the Russian Federation and financed from the relevant budgets and extra-budgetary sources.

Contract work for state or municipal needs is carried out on the basis of state or municipal contract to perform contract work for state or municipal needs.

On state or municipal contract for the performance of contract work for state or municipal needs the contractor undertakes to perform construction, design and other work related to the construction and repair of industrial and non-production objects and transfer them to the customer, and the customer undertakes to accept the work performed and pay for them or ensure their payment.

Features of the state or municipal contract:

▪ the subject of the contract is the results of construction and other work related to them (design, survey, repair, etc.) (clause 2 of article 763 of the Civil Code);

▪ the customer under the contract is a state or municipal body that has investment resources, or an organization that has the right to dispose of such resources, and the contractor can be a legal entity or an individual (Article 764 of the Civil Code);

▪ the grounds and procedure for the conclusion are determined according to the rules of Art. 527 and 528 Civil Code;

▪ the essential terms of the contract include the volume and cost of the work, the start and end dates of the work, the amount and procedure for financing and payment, methods of ensuring the fulfillment of obligations by the parties (clause 1 of Article 766 of the Civil Code);

▪ the content of a state or municipal contract concluded as a result of a competition for placing an order for contract work is determined in accordance with the terms of the competition and the proposals of the contractor recognized as its winner (clause 2 of Article 766 of the Civil Code);

▪ contract work performed under a contract is intended to meet state or municipal needs and is financed from the relevant budgets and extra-budgetary sources (clause 1 of Article 763 of the Civil Code);

▪ if there is a decrease in budget funds allocated to finance contract work, the parties must agree on new conditions, and the contractor has the right to demand compensation from the customer for losses due to changes in the deadlines for completing the work (clause 1 of Article 767 of the Civil Code);

▪ relations under a government contract are regulated not only by the Civil Code of the Russian Federation, but also by the law on contracts for state or municipal needs (Article 768 of the Civil Code).

51. CONCEPT, TYPES, REGULATION OF THE AGREEMENT FOR PAID SERVICES

On contract for the provision of services the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1 of article 779 of the Civil Code).

Closest to this type of contract is a work contract. However, if in a work contract the subject of the contract is the embodied result of work, then in the contract for the provision of services for a fee, the subject is the services themselves.

Characteristics of the contract: consensual, bilaterally binding, reimbursable.

Types of Service Obligations differentiated according to the nature of the activity of the service provider:

▪ medical;

▪ veterinary;

▪ consulting;

▪ audit;

▪ informational;

▪ on training and others.

The list of these services is not closed, but they do not include services provided under contracts specifically provided for by other chapters of the Civil Code of the Russian Federation.

Features of the legal regulation of paid services:

▪ provisions of Ch. 39 of the Civil Code, devoted to the regulation of paid services, do not apply to those services that are independently regulated by the Civil Code of the Russian Federation, in particular to commission agreements, orders, bank deposits, bank accounts, and settlement obligations;

▪ it is allowed to apply general provisions on contracts and household contracts to the regulation of paid services, if this does not contradict Art. 779-782 of the Civil Code, as well as the peculiarities of the subject of the contract for the provision of paid services.

In addition to the Civil Code of the Russian Federation, the contracts we are considering are governed by the following legal acts:

▪ laws “On the Protection of Consumer Rights”, “On Certification of Products and Services”, “On State Regulation of Foreign Trade Activities”, “On the Privatization of State Property”, “On the Fundamentals of the Privatization of Municipal Property in the Russian Federation”, etc.;

▪ decrees of the President of the Russian Federation “On the organization of operational statistical and information-analytical monitoring of the state of trade, markets for goods and services”, “On the single economic space of the RSFSR”;

▪ Rules for the provision of hotel services in the Russian Federation, approved by the Decree of the Government of the Russian Federation of June 15, 1994;

▪ Rules for the provision of services by local telephone networks, approved by the Decree of the Government of the Russian Federation of May 24, 1994;

▪ Rules for the provision of paid medical services to the population by medical institutions, approved by the Decree of the Government of the Russian Federation of January 13, 1996;

▪ Rules for consumer services for the population, approved by the Decree of the Government of the Russian Federation of August 15, 1997.

52. ELEMENTS AND CONTENT OF THE AGREEMENT FOR PAID SERVICES

By the parties service contracts are: service provider (performer) and service recipient (customer).

Features of the legal status of the service provider:

▪ he must have a license for his activities to provide communication services, auditing, legal and some others;

▪ to obtain a license, in turn, a higher education in the relevant field of activity and a certain length of work experience in the specialty are required;

▪ the service in a number of contracts must be performed personally.

The subject contracts for the provision of services are intangible services, i.e. actions that do not have a materialized expression and are not guaranteed by the service provider.

For example, a tutor provides a service to prepare a student for entering a university, but the tutor cannot guarantee his admission.

Price service is determined by the service provider and presented to them in the form of price lists or tariffs. Payment is made in the terms and in the manner specified in the contract (clause 1 of article 781 of the Civil Code).

Period performance of the service is determined by the parties.

Content of the contract constitute the rights and obligations of the parties: the service provider must perform the service, the service recipient must pay for it in the manner and terms specified in the contract.

The risk of non-performance of the contract lies with the service recipient (this provision is unusual: in a work contract, as you know, the risk of non-performance lies with the contractor).

The recipient responds:

▪ for failure to perform a service by the service provider if he is at fault; the service is subject to payment in full, unless otherwise provided by the contract or law (clause 2 of article 781 of the Civil Code);

▪ actual expenses incurred by the service provider in the case where the impossibility of performance arose due to circumstances for which neither party is responsible (clause 3 of Article 781 of the Civil Code).

Unilateral refusal to perform the contract is possible if:

▪ the customer will pay the contractor the actual expenses incurred by him;

▪ the contractor will fully compensate the customer for losses (clause 2 of article 782 of the Civil Code).

53. TRANSPORT CONTRACTS

Contracts related to transportation are referred to transport contracts, the same contracts include contracts of transport expedition and towing.

Subject transport contracts - the provision of services for the delivery of objects entrusted to the carrier to the destination.

Objects transport contracts can be cargo, passengers and luggage (clause 1 of article 784 of the Civil Code).

The general conditions of transportation are determined by the Civil Code of the Russian Federation (Chapter 40), transport charters and codes, other laws and regulations (Clause 1, Article 784 of the Civil Code). The conditions of transportation by certain modes of transport, as well as liability for these transportations, are determined by agreement of the parties (part 2, clause 2, article 784 of the Civil Code).

Characteristics of transport contracts: compensated, mutual, can be real and consensual.

The relationship of transport organizations during transportation by different modes of transport under a single transport document (direct mixed traffic) is determined by agreements between organizations of the corresponding modes of transport (Article 788

GK).

Contracts of carriage by public transport carried out by commercial organizations are public - Art. 426 of the Civil Code (Article 789 of the Civil Code).

Freight charged freight charge, established by agreement of the parties, and when transported by public transport - in accordance with tariffs (clauses 1 and 2 of Article 790 of the Civil Code).

The carrier has the right to withhold cargo and luggage in order to secure the carriage fee due to him (paragraph 4 of article 790 of the Civil Code).

Deadlines delivery of objects of transportation to the destination are determined in accordance with transport charters and codes, or must be reasonable (Article 792 of the Civil Code).

Responsibility for violation of transportation obligations, the parties bear in accordance with the Civil Code of the Russian Federation, transport charters and codes, as well as an agreement of the parties (Article 793 of the Civil Code).

Carrier liability for loss and damage to cargo or baggage, art. 796 of the Civil Code: damage is compensated either in the amount of the value of the cargo or baggage (if they are lost), or in the amount by which their value has decreased (in case of damage), or in the amount of the declared value (clause 2 of article 796 of the Civil Code).

54. CARRIAGE CONTRACT

On contract for the carriage of goods the carrier undertakes to deliver the cargo entrusted to him by the sender to the point of destination and issue it to the person (recipient) authorized to receive the cargo, and the sender undertakes to pay the established fee for the carriage of the cargo.

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. (bill of lading or other document for the cargo provided for by the relevant transport charter or code) (clause 2 of article 785 of the Civil Code).

Charter agreement (charter) - a contract of carriage, under which one party (the charterer) provides the other party (the charterer) with all or part of the capacity of one or more vehicles for one or more flights for the carriage of goods, passengers and baggage.

By the parties contracts are: shipper, carrier и consignee.

Shipper's powers:

▪ for one-time transportation, submit an application for transportation within the established period, and for systematic transportation, enter into a long-term agreement on the organization of transportation (Article 798 of the Civil Code);

▪ present cargo for transportation in the specified volume, if an agreement has been concluded on the organization of cargo transportation (Part 1 of Article 798 of the Civil Code);

▪ make claims against the cargo carrier before filing a claim in court in case of improper performance of the contract (clause 1 of Article 797 of the Civil Code). The limitation period for such claims is 1 year (clause 3 of Article 797 of the Civil Code);

▪ refuse the vehicles provided to him if they are not suitable for transporting his cargo (Part 2, Clause 1, Article 791 of the Civil Code);

▪ carry out loading in accordance with the established rules, if it is provided for by the contract (clause 2 of Article 791 of the Civil Code), and within the time limits provided for by it (clause 3 of Article 791 of the Civil Code);

Carrier powers:

▪ provide the sender with serviceable vehicles suitable for transporting the relevant cargo within the period established in the shipper’s application (clause 1 of Article 791 of the Civil Code);

▪ load the cargo if this is provided for in the contract (clause 2 of article 791 of the Civil Code).

The rights of the consignee:

▪ unload the arrived cargo within the period stipulated by the contract (clause 3 of Article 791 of the Civil Code);

▪ make claims against the cargo carrier before filing a claim in court in case of improper performance of the contract (clause 1 of Article 797 of the Civil Code).

55. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE CONTRACT FOR THE CARRIAGE OF PASSENGERS AND BAGGAGE. LIABILITY UNDER THE CONTRACT

On passenger carriage contract и baggage transportation the carrier undertakes to transport the passenger to the point of destination, and in the case of check-in by the passenger of the baggage, also deliver the baggage to the point of destination and issue it to the person authorized to receive the baggage, and the passenger undertakes to pay the established fare, and when checking in the baggage, also for the carriage of the baggage (Article 786 GK).

The conclusion of a contract for the carriage of a passenger is certified ticket, and baggage check-in by the passenger - baggage receipt.

This contract, unlike the contract for the carriage of goods, is consensual, and in case of transportation by public transport - public. Such contracts can be one-time or long-term.

Carriage charge currently regulated by tariffs established by the state, only for the carriage of passengers by rail and all types of public urban and suburban transport, and in other cases is determined by agreement of the parties.

Luggage carriage agreement is real, in case of transportation by public transport - public.

Relationships related to the carriage of luggage, as well as the carriage of a passenger, are subject to consumer protection legislation.

Baggage - things that are used for the passenger’s personal household purposes and are transported with him, but in the baggage car for an additional fee based on the passenger’s travel ticket. The carrier's obligation to transport baggage arises from the passenger carriage contract, but is formalized by a baggage receipt (clause 2 of Article 786 of the Civil Code).

Plateau for the carriage of baggage is collected at the time of its acceptance.

Period delivery of luggage is calculated by the time it takes the transport to reach the destination.

Luggage is issued to the bearer of the baggage receipt, and in case of its loss - provided that the passenger has proved his rights to receive it (in this case, the baggage is issued according to the act).

Luggage is stored at the destination free of charge only for a day, subsequent storage is carried out for a fee in accordance with the tariff. Luggage not received within 30 days is subject to sale, and the proceeds for it, minus the amounts due to the carrier, are transferred to the bearer of the baggage receipt within 6 months.

The carrier is responsible for the non-safety of cargo or baggage that occurred after it was accepted for transportation and before delivery to the consignee, unless he proves that the loss, shortage or damage (spoilage) of cargo or baggage occurred due to circumstances that the carrier could not prevent and the elimination of which did not depend on him.

The carrier, along with compensation for the established damage caused by the loss, shortage or damage (spoilage) of cargo or baggage, returns to the sender (recipient) the carriage fee charged for the carriage of the lost, missing, spoiled or damaged cargo or baggage, if this fee is not included in the cost of the cargo .

56. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT OF CARRIAGE OF PASSENGERS AND BAGGAGE AND UNDER THE CONTRACT OF TRANSPORT FORWARD

Contract for the carriage of passengers and baggage Obligations of the passenger: purchase a ticket, keep it until the end of the trip and present it to authorized officials along the way; pay a fine for ticketless travel in the prescribed amount; comply with the established rules of transportation.

Passenger rights: take a seat according to the ticket; transport children with you free of charge or on preferential terms; carry hand luggage with you free of charge within the established norms; check in baggage for transportation for a fee at the rate; demand payment of a fine to him by the carrier in case of delay in departure or late arrival of the vehicle carrying him; refuse transportation due to a delay in the departure of the vehicle and receive a carriage charge from the carrier; receive compensation from the carrier for the harm caused to his life and health.

Carrier Responsibilities: transport the passenger to the destination within the time period stipulated by the contract or within a reasonable time; return the money to the passenger for the unused ticket in case of forced refusal of the passenger from transportation, as well as pay him a fine for the delay in departure or late arrival of the vehicle; be liable for harm caused to the life or health of a passenger according to the rules of Ch. 59 of the Civil Code, if the law or the contract of carriage does not provide for increased liability.

Freight Forwarding Agreement Forwarder's obligations:

▪ organize the transportation of cargo by a certain type of transport along the route chosen by the client or himself;

▪ enter into a contract for the carriage of goods on your own behalf or on behalf of the client;

▪ ensure dispatch and receipt of cargo at the agreed location, etc.;

▪ the following may be included as additional responsibilities: obtaining documents required for exporting or importing cargo; fulfillment of customs or other formalities; checking the quantity and condition of the cargo; loading and unloading cargo; payment of duties, fees and other expenses; cargo storage; receipt of cargo at destination.

Key responsibilities of the client:

▪ transfer of cargo to the forwarder and receipt of it;

▪ reimbursement of freight forwarder expenses;

▪ provide the forwarder with documents and other information necessary for the forwarder (about the properties of the cargo, about the conditions of its transportation) (clause 1 of Article 804 of the Civil Code). If it is insufficient, supplement the information at the request of the forwarder (clause 2 of Article 804 of the Civil Code); failure to provide it gives the right to the forwarder not to begin fulfilling his duties (clause 3 of Article 804 of the Civil Code);

▪ is obliged to compensate the forwarder for losses incurred due to failure to provide the necessary information (clause 4 of Article 804 of the Civil Code).

The content of additional obligations of the client is determined by the specifics of each expedition contract.

57. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE CONTRACT OF TRANSPORT EXPEDITION. LIABILITY UNDER THE CONTRACT

On forwarding contract one side (forwarder) undertakes for remuneration and at the expense of the other party (client) perform or organize the performance of the services specified in the forwarding agreement related to the carriage of cargo.

The duties of a freight forwarder may be performed by the carrier.

The contract may provide for the forwarder's obligations to organize the carriage of goods by transport and along the route chosen by the forwarder or the client, the forwarder's obligation to conclude on behalf of the client or on his own behalf a contract for the carriage of goods, to ensure its dispatch and receipt, as well as other obligations.

As additional services, the contract may provide for obtaining the documents required for export or import, performing customs and other formalities, checking the quantity and condition of the cargo, loading and unloading it, paying duties, fees and other expenses imposed on the client, storing the cargo, its receipt at the destination, etc.

Characteristics of the contract: mutual, reimbursable, can be either consensual or real.

Subject contracts - services related to the carriage of goods, which are divided into basic (conclusion of a contract of carriage and its organization) and additional (any services related to the carriage of goods).

Forwarder can only be an entrepreneur who has a license for this type of activity.

Client there may be a person interested in receiving forwarding services: the sender, the recipient, the owner of the cargo.

Form contracts - simple written. The client must issue a power of attorney to the freight forwarder.

Period The contract is determined by the nature of the operations carried out by the freight forwarder: they can be both single and multiple. In the latter case, contracts are concluded for a long period.

Price contracts - the remuneration of the forwarder, determined either by agreement of the parties, or in accordance with the tariffs and rates established by the forwarder.

Responsibility of the parties for non-performance or for improper performance of the contract is complete, it may be based on business risk, and not the fault of the party, as well as the existence of general conditions provided for liability for non-performance of obligations.

If the freight forwarder proves that the breach of obligation was caused by improper performance of the contracts of carriage, the liability of the freight forwarder to the client is determined in accordance with the same rules under which the respective carrier is liable to the forwarder.

Termination The contract has a peculiarity: it is possible as a result of a unilateral refusal of any party, but with a mandatory warning of this to the other party within a reasonable time and compensation by the party that declared the refusal to the other party for losses caused by termination of the contract.

58. TOW CONTRACT

On towing agreement one side (tow) is obliged for a fee to tow a floating object to a certain point or to perform a certain maneuver, and the other party (client) - pay the contractual fee.

Characteristics of the contract: mutual, compensated, can be both real and consensual.

This agreement is regulated only by the Merchant Shipping Code, the code and charters of inland water transport (KTM, KVVT UVVT).

Subject contracts - services for moving a floating object. Such an object can be a raft, a ship, a non-self-propelled barge, a transport being towed out of the harbor.

An object is moved by pulling or pushing it.

The movement of a floating object at sea to a certain point is sea towing, and its movement to perform a certain maneuver in the port waters is port towing (Article 225 of the CTM).

Sea towing is carried out under the control of the captain of the towing vessel, and port towing - under the control of the captain of the towed floating object (Articles 229, 230 of the CTM).

During river towing, the crew of the towed object is operationally subordinate to the captain of the towing vessel (Article 89 of the KVVT).

Form towing agreements on river transport must be written in the form of an invoice submitted by the client to the towing vehicle. In exchange for the consignment note, the tugboat (shipping company) issues a receipt to the client. The contract of sea towing can be concluded in any form, regardless of its amount. However, the fact that the captain of the towing vessel is responsible for managing the towing must be proved only by written evidence.

Hand towing contracts.

Towing vehicle is the owner of the towing vessel. This role can be played by a shipping company, a port, a wharf.

Client is the owner of the towed object. It can be any person interested in towing a floating object, while the right of possession can be associated with both the right of ownership and the real right of the non-owner.

Powers of the parties to the contract differ depending on the object being towed: whether the object is a ship or a raft, as well as on the stage of rendering services: before the tug is delivered and the object is accepted for towing, during towing and after its completion.

Responsibility of the parties to the contract towing for damage caused to the client or the towing vehicle depends on the allocation of responsibilities for managing the towing. So, the responsibility for damage to the towed object is borne by the towing operator, unless he proves his innocence and only if the captain of the towing vessel controlled the towing. And for the damage caused to the towing vehicle, the client is responsible if the towing is managed by the captain of the towed object. The parties to the agreement may also establish a different procedure for their liability.

59. CONCEPT, TYPES AND LEGAL REGULATION OF THE CONTRACT OF STORAGE

On storage agreement one side (the keeper) undertakes to keep the thing transferred to it by the other party (bailor), and return this item safely.

This agreement refers to contracts for the provision of actual services.

Characteristics of the storage agreement: can be both real and consensual, both compensated and gratuitous, mutual.

Types of contracts storage depends on the type of storage.

Storage types:

▪ normal storage and special storage:

a) in a warehouse;

b) in a pawnshop;

c) in a storage room in a transport organization;

d) in the wardrobe;

e) in a hotel and in other places of temporary residence (in a sanatorium) and places of stay (in a bathhouse);

f) things that are the subject of a dispute (sequestration);

g) notarial deposit;

h) cultural property belonging to private individuals or museums;

▪ regular (regular) storage (after the end of such an agreement, the bailor is returned the same thing that he deposited for storage) and irregular storage - storage with depersonalization (after the end of such an agreement, the bailor is returned a thing of the same kind, type, quantity and quality that he deposited);

▪ professional storage (the service is provided by an organization for which storage is the purpose of its professional activity) (clause 2 of Article 886 of the Civil Code) and non-professional storage (the service is provided by a citizen or organization for which storage is not the purpose of its activity);

▪ storage that arose under normal conditions of civil circulation, and storage that arose during emergency circumstances (natural disasters, military operations);

▪ storage arising from an agreement, and storage arising by force of law (for example, storage of a find - Article 277 of the Civil Code, stray animals - Article 230 of the Civil Code, inherited property - Article 514 of the Civil Code, illegal goods, etc.).

The storage agreement is regulated by the Civil Code of the Russian Federation, which highlights the general provisions of this agreement and certain types of agreements (general provisions apply both to certain types of this agreement - Article 905 of the Civil Code, and to obligations arising by virtue of law - Article 906 of the Civil Code). In addition, certain types of contracts are regulated by laws (for example, "On Pledge", Fundamentals of Russian Legislation on Notaries, Federal Law "On the Museum Fund of the Russian Federation and Museums of the Russian Federation"), regulations on legal entities that carry out storage (for example, Regulations on the Museum Fund of the Russian Federation, Regulations on Licensing the Activities of Museums of the Russian Federation), charters of legal entities that carry out storage, taking into account the explanations given by the resolutions of the Plenum of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation.

60. ELEMENTS OF A STORAGE AGREEMENT

On storage agreement one side (the keeper) undertakes to keep the thing transferred to it by the other party (bailor), and return this item safely.

The subject storage agreements are the actual storage services provided by the custodian to the bailor.

The object storage agreement services are movable things and only as an exception immovable things (in cases of direct indication of the law, for example, sequestration - clause 3 of article 926 of the Civil Code), things individually defined and defined by generic characteristics.

Timing There can be several things in a storage agreement:

▪ the period during which the custodian is obliged to store the thing (on this basis, fixed-term contracts are distinguished from demand contracts - unlimited);

▪ the period within which the custodian undertakes in the consensual agreement to accept the thing for storage;

▪ the period during which the depositor in the consensual agreement undertakes to provide the custodian with property for storage.

Price is an element of the contract only in reimbursable contracts. It is set on the basis of tariffs, rates.

Form storage agreement is defined by Art. 887 GK. Written form is required for storage agreements concluded:

▪ between legal entities;

▪ between a legal entity and a citizen;

▪ between citizens, if the cost of the storage facility does not exceed 10 minimum wages;

▪ between any entities in agreements, the conclusion of which is mandatory for the custodian.

The acceptance of a thing for storage is certified by the issuance by the keeper to the bailor of either an appropriate document (safety receipt, receipt, certificate, etc.), or an appropriate sign (numbered token) (clause 2, article 887 of the Civil Code).

Failure to comply with the written form of the contract deprives the parties of the right to refer to witness testimony in relation to the fact of the transaction, but not in relation to the identity of the returned object (clause 3 of article 887 of the Civil Code). This rule does not apply in cases where the contract was concluded under extraordinary circumstances.

61. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE STORAGE AGREEMENT

Guardian Responsibilities:

▪ accept the thing for storage (this obligation applies only to consensual agreements);

▪ store the item for the period stipulated by the contract;

▪ ensure the safety of the item accepted for storage;

▪ change the conditions for storing an item or sell it if storage is impossible (with reimbursement of expenses to the bailor);

▪ take care of the bailor’s property in gratuitous storage agreements in the same way as with his own property;

▪ do not use the item received for storage without the consent of the depositor;

▪ fulfill the storage obligation personally;

▪ immediately return to the depositor the thing transferred for storage upon his request, unless the agreement provides for its depersonalization;

▪ return the item in the condition in which it was accepted for storage, taking into account changes in it due to its natural properties;

▪ simultaneously with the return of the item, transfer the fruits and income received from it;

▪ issue the depositor with the appropriate document or sign indicating that the item has been accepted for storage;

▪ transfer to the depositor the amount of money he received from the sale of the object of storage, subtracting from it the amount of funds due to him for the storage and sale of the object.

Guardian rights:

▪ receive payment for storage in paid storage agreements;

▪ receive compensation for the bailor’s delay in storage;

▪ sell the stored item independently or at auction without the consent of the bailor in the event of changed storage conditions and the impossibility of obtaining such consent from the bailor;

▪ terminate the contract early if the bailor has delayed payment for storage of the item for more than half of the storage period in cases where the frequency of payment was provided for in the contract;

▪ demand from the bailor the thing stored under the contract until demand after the expiration of the usual storage period;

▪ incur extraordinary expenses associated with storage and demand payment from the bailor;

▪ not to accept things with dangerous properties, etc., under a consensual agreement.

The bailee is not entitled to use the thing received for storage, and is not entitled to transfer it to a third party for storage without the consent of the bailor.

Beneficiary's obligations: warn the custodian about the properties of the thing and the peculiarities of its storage; upon the expiration of the stipulated period of storage or the period provided by the bailee for the return receipt of the thing, the bailor is obliged to immediately take the thing transferred for storage; pay the custodian remuneration, if it is provided for by law or contract; reimburse storage costs.

Depositor's rights: take the object of storage from the custodian ahead of schedule, even in a fixed-term contract; to refuse a thing that has changed in the process of storage.

62. RESPONSIBILITY OF THE PARTIES UNDER THE STORAGE AGREEMENT

The beneficiary is responsible for:

▪ losses caused to the custodian by the dangerous properties of the thing deposited in storage, if he did not warn the custodian about them (Articles 894, 903 of the Civil Code);

▪ losses caused in connection with the failure to provide the thing to the custodian for storage under a consensual agreement (clause 1 of Article 888 of the Civil Code);

▪ untimely payment of remuneration for storage and for untimely reimbursement of expenses for storage (clause 1 of Article 896-898 of the Civil Code) in the form of fines provided for in the contract, or payment of interest for the use of other people's funds in accordance with Art. 395 Civil Code.

The Guardian answers:

▪ for refusal to accept an item for storage if the contract is consensual (damage caused to the depositor is compensated in full);

▪ loss, shortage, damage to an item accepted for storage (in this case, a non-professional custodian is liable only if there is his fault, and a professional one - regardless of its presence, since he is an entrepreneur - paragraph 3 of Article 401, paragraphs 1, 3 of Article 902 Civil Code), and if this happened after the expiration of the stipulated storage period, liability arises only if there is intent or gross negligence of the custodian (clause 2 of Article 901 of the Civil Code);

▪ for early termination of storage (clause 3 of Article 896 of the Civil Code);

▪ for illegal use of a thing without the consent of the bailor (Article 892 of the Civil Code);

▪ for the actions of a third party to whom the custodian transferred the item for storage (clause 3 of Article 895 of the Civil Code).

Custodian Liability Limits:

▪ for harm caused by the loss or damage of a thing, under a compensation contract, real damage and lost profits or the amount of the value of the thing determined when accepting it for storage are compensated (clause 1 of Article 902 of the Civil Code);

▪ under a gratuitous contract, the cost of lost or missing items and the amount by which the value of damaged items has decreased (clause 2 of Article 902 of the Civil Code) is reimbursed.

The contract is terminated at the first demand of the bailor to return the thing to him (Article 904 of the Civil Code).

The conditions for the execution of the contract can be changed by the custodian with the notification of the bailor or independently (Article 892 of the Civil Code).

63. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE AGREEMENT OF ORDER. FEATURES OF A COMMERCIAL ORDER

On commission agreement one party (attorney) undertakes to perform on behalf of and at the expense of the other party (principal) certain legal actions. The rights and obligations under the transaction made by the attorney arise directly from the principal.

Characteristics of the contract: it is consensual, bilaterally binding, can be both gratuitous and paid (when it is associated with the implementation of entrepreneurial activities by the parties).

This agreement is fiduciary, i.e. based on a trusting relationship between the principal and the attorney. This agreement is based on mutual trust between the parties.

The subject contract of commission is the commission by the attorney of legal actions (as a rule, transactions). The subject of this agreement may not be legal actions of a personal nature, for example. making a will.

By the parties contracts are the principal and the attorney, which can be both legal entities and capable citizens. If such an agreement is concluded for the implementation of commercial mediation, then only an entrepreneur (citizen or legal entity) can be an attorney.

Form The contract of assignment can be either oral or written. Under the contract of agency, the principal must always issue a power of attorney to the attorney, and the attorney has the right to act exclusively on the basis of the trust's power of attorney.

Period contract of agency can be both definite and indefinite. If the term is not specified in the contract, then it is considered unlimited, but taking into account the rules of the Civil Code of the Russian Federation on the term of the power of attorney.

Features of a commercial order.

This agreement is always paid.

If, as a general rule, a representative on behalf of the person being represented cannot make transactions in relation to another person, whose representative he is at the same time, then this is allowed in a commercial representation.

One commercial representative can represent the interests of two parties to the transaction at the same time, if only both parties know about it and if both parties do not object.

In addition, the commercial representative has the right to retain the things of the principal in order to secure his property claims.

The attorney is granted the right to deviate in the interests of the principal from his instructions without prior request to do so. He is obliged only within a reasonable time to notify the principal about these deviations.

Under a commercial representation agreement, the party terminating the agreement is obliged to notify the other party no later than 30 days before the termination of the agreement. In an ordinary representation, either party has the right to withdraw from the contract at any time without any notice. However, during the reorganization of a legal entity - a commercial representative, the principal has the right to cancel the order without such notice.

64. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT OF ORDER. TERMINATION OF THE CONTRACT

Trustee Responsibilities: issue a power of attorney to the attorney to perform the actions provided for by the contract (with the exception of only those cases when a person can act without a power of attorney). This can be clearly indicated by the environment in which the person operates. For example, a trader in the market asked another person to trade his goods. In this case, there is an oral transaction-order in front of witnesses and a power of attorney is not required; provide the agent with funds necessary for the execution of the order, and in case of their insufficiency, reimburse the expenses incurred by the agent; pay the attorney remuneration, if the contract is onerous; without delay to accept from the attorney everything performed by him in accordance with the contract.

Trustee rights: cancel the order at any time; withdraw the deputy elected attorney.

Attorney Responsibilities: carry out the order of the principal in accordance with his instructions, which must be lawful, feasible and specific; to execute the order given to him personally, except for the case of reassignment of the order; inform the principal, at his request, of all information on the progress of the execution of the order; transfer to the principal without delay everything received under transactions made in pursuance of the order; submit a report with corroborative documents attached, if required by the terms of the contract.

Attorney's rights: an attorney acting as a commercial representative has the right to keep things in his possession that are subject to transfer to the principal, in order to secure his claims under the contract of agency; deviate from the instructions of the principal in his interests if he could not previously request the principal or did not receive a response from him to his request within a reasonable time, notifying the principal of the deviations made as soon as possible; an attorney acting as a commercial representative may obtain the right from the principal to deviate from his instructions without prior request, but with subsequent notification of the principal; transfer the execution of the order to another person (deputy) only in cases and under the conditions provided for in Art. 187 GK. If the deputy attorney is specified in the agency agreement, the attorney is not responsible either for his choice or for the conduct of his affairs. If the deputy attorney is not specified in the contract, the latter is responsible for his choice and for the conduct of his affairs.

In the event of the death of an attorney, his heirs are obliged to notify the principal of the termination of the contract and take measures to protect the property of the principal. The same duty lies with the liquidator of a legal entity who is an attorney.

The assignment agreement is terminated on the following grounds: execution of the order; cancellation of the order by the principal; refusal of the attorney to execute the order; death of a principal or attorney; recognition of the principal or agent as incapable, partially incapacitated or missing.

65. CONCEPT, CHARACTERISTICS, ELEMENTS OF THE AGREEMENT OF THE COMMISSION. TERMINATION OF THE CONTRACT

On commission agreement one side (commission agent) undertakes on behalf of the other party (committent) make one or more transactions for a fee on its own behalf, but at the expense of the principal. Under a transaction made by a commission agent with a third party, the commission agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into a direct relationship with the third party in the execution of the transaction.

Characteristics of the contract: consensual, reimbursable, bilaterally binding, intermediary, representative. With the help of this agreement, the property belonging to the committent is alienated, and the property is acquired for him, but not by him, but by the commission agent.

The legislator allows the establishment of features of certain types of commission agreement. Certain types of commission agreement include the Rules for commission trade in non-food products, approved. Decree of the Government of the Russian Federation of June 6, 1998 No. 569.

In addition to the Civil Code of the Russian Federation, this agreement is regulated by the Federal Law "On Protection of Consumer Rights", the Rules for Commission Trade in Non-Food Products, the Federal Law "On the Securities Market", the Law of the Russian Federation "On Commodity Exchanges and Exchange Trading".

The commission agreement has common features with the contract of agency. The commission agent acts in the interests and at the expense of the interested party (principal). In addition, the purpose of the commission agent’s actions is to carry out transactions, that is, legal actions for another person. The ownership of property received or transferred to the commission agent during the execution of commission agreements always belongs to the principal, i.e., the interested party. The commission agent must report to the committent on the results of his actions and concluded transactions.

В difference from contract the commission agent acts on his own behalf in relation to third parties. He concludes transactions at the expense and on behalf of the committent, but he concludes these contracts and transactions on his own behalf, that is, he is a party to the transaction, but the committent is not.

The subject contract is the commission of one or more transactions on behalf of the principal.

Contract participants can be all subjects of civil law. The commission agent is usually the entrepreneur.

Form commission agreement is determined by the general rules on the form of the transaction and the contract.

Period The contract can be either a definite or an indefinite contract. However, only under an open-ended contract, the commission agent has the right to unilaterally withdraw from the contract.

The commission agreement is terminated on the following grounds: performance of the contract; refusal of the committent or commission agent from the performance of the contract; death of the commission agent, recognition of him as incapable, partially incapacitated or missing; recognition of the commission agent - an individual entrepreneur as bankrupt (in this case, the rights and obligations under the transactions concluded by him for the committent are transferred to the latter).

66. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE COMMISSION AGREEMENT

Commitee's responsibilities: pay the commission agent remuneration after the execution of the contract, as well as in case of non-performance for reasons beyond his control, and at the same time reimburse the commission agent for the expenses incurred by him; to declare to the commission agent within a reasonable time after receiving from him a notice of the transaction at a price higher than agreed with him, about his disagreement to accept such a purchase (if the commission agent accepts the difference in price to his account, then the committent is obliged to accept such a purchase); accept from the commission agent everything performed under the contract; inspect the property acquired for him by the commission agent, and notify the latter without delay of the shortcomings of the property; release the commission agent from the obligations assumed by him to a third party upon the execution of the commission order; notify the commission agent of the termination of the contract (if it was concluded without specifying the validity period) no later than 30 days; immediately dispose of their property, which is under the authority of the commission agent, in case of cancellation of the order, as well as dispose of such property within 15 days from the date of receipt of the commission agent's notification of refusal to execute the order.

The rights of the committer: ownership of things acquired by him at his own expense, but received from him by the commission agent; withdraw from the contract at any time by canceling your order; is not entitled to enter into direct relations with the subcommission agent without the consent of the commission agent until the termination of the contract.

Commissioner Responsibilities: execute the order on the most favorable terms for the principal; inform the committent about the failure of the third party to perform the transaction concluded with him, collect the necessary evidence and, at the request of the committent, transfer the rights under such a transaction to him in compliance with the rules on the assignment of rights of claim; reimburse the principal for the difference in the event of the sale of property at a price lower than agreed with him; submit a report to the committent and transfer to him everything received under the contract.

Commissioner's rights: for remuneration and reimbursement of expenses incurred, if the contract was not executed for reasons depending on the committent; for remuneration for transactions made by him before the termination of the contract in the event that the commission agent refused to execute the order of the committent; by half of the additional benefit if the commission agent made a transaction on terms more favorable than those of the cat. were pointed out to him; to conclude a subcommission agreement; to deviate from the instructions of the committent in the interests of the latter, if he could not first request the committent or did not receive a response to his request within a reasonable time. The commission agent-entrepreneur may be granted by the committent the right to deviate from his instructions without prior notice. request; to withhold the things he has, subject to transfer to the committent, and the amounts of money due to him from all the amounts received by him at the expense of the committent.

The commission agent does not have the right: for reimbursement of expenses for the storage of the property of the committent, if otherwise provided by law or contract; to refuse to perform the contract, except for the case when it is concluded without specifying the period of its validity.

67. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE AGENCY AGREEMENT

On agency agreement one side (agent) undertakes, for a fee, to perform on behalf of another party (principal) legal and other actions in its own name, but at the expense of the principal or on behalf and at the expense of the principal.

The agent can act on his own behalf and at the expense of the principal, then the rights and obligations under transactions concluded by the agent with third parties are acquired by the agent. When the agent acts on behalf of the principal and at his expense, the subject of rights and obligations is the principal, who in this case is a party to the transaction.

The agency agreement has similarities with the agency agreement, when the attorney concludes transactions on behalf of and at the expense of the principal, and with the commission agreement, when the commission agent concludes the agreement on his own behalf, but at the expense of the committent.

Subject contracts are not only actions that give rise to legal consequences, but also other actions, that is, actual actions. What is not in the commission agreement, nor in the commission agreement. For example, an agent not only concludes transactions, but also conducts negotiations, surveys, organizes exhibitions, advertising campaigns, etc. However, the subject of this contract cannot be only actual actions, they are included in the subject of the contract as an addition to legal actions.

There is also another significant specific circumstance related to the subject. Both the principal and the agent have the right to demand restrictions on each other's actions to serve other principals or to attract other agents. For example, include in the contract conditions on limiting the action of an agent or principal in a certain area of business, in a certain territory, etc.

In addition, the agent's actions are always ongoing.

Characterization contracts: consensual, reimbursable, bilaterally binding.

As parties to a contract any subjects of civil law can act. Individuals must be fully capable.

Form The contract is subject to the general rules on the form of transactions. If the contract is concluded in writing and it reflects the powers of the agent, then the principal is not entitled to refer to the lack of proper powers of the agent, unless he proves that the third party with whom the agent made the transaction knew about the limitation of the powers of the agent.

The agency agreement gives rise to relations that are referred to in the literature as special form of representation. An agent, when he must perform legal actions, including even when an action is performed on behalf of the principal, does not require a power of attorney, even if the agreement does not detail all the powers that are vested in the agent by the principal, but formulates the powers in a general form. In this case, the principal has no right to rely, in the event of a dispute with a third party, that the agent acted beyond the scope of his authority.

Period contracts can be either definite or indefinite. If the term of the contract is not defined, then any party to the contract has the right to refuse to perform it at any time.

68. CONTENT OF THE AGENCY AGREEMENT

Principal's obligations:

▪ pay the agent remuneration in the amount and manner established in the agency agreement. If the amount of remuneration is not defined in the contract, then it should be determined in accordance with clause 3 of Art. 424 Civil Code, i.e. at the price of a similar service. If the procedure for paying remuneration has not been determined, the principal is obliged to pay it within a week from the moment the agent submits to him a report for the past period (dispositive norm) (Article 1006 of the Civil Code);

▪ inform the agent about any objections he has regarding his report within 30 days from the date of receipt of the latter (dispositive norm) (clause 3 of Article 1008 of the Civil Code);

▪ not to enter into similar agency agreements with other agents operating in the territory specified in the agreement and not to act independently in this territory in the same way as an agent, if this is specified in the agreement (clause 1 of Article 1007 of the Civil Code);

▪ authority for transactions made by an agent arises with the principal only if the agent acted on his behalf and at his expense (clause 3 of Article 1005 of the Civil Code).

Agent Responsibilities:

▪ must not conclude similar agency agreements with other principals, which must be executed in the same territory, if this prohibition is specified in the agreement (clause 3 of Article 1007 of the Civil Code);

▪ not to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) living or located in the territory specified in the contract (clause 3 of Article 1007 of the Civil Code);

▪ submit reports to the principal in the manner and within the time limits stipulated by the agreement (clause 1 of Article 1008 of the Civil Code);

▪ attach to the report the necessary evidence of expenses incurred at the expense of the principal (clause 2 of Article 1008 of the Civil Code);

▪ authority for transactions made at the expense of the principal arises with the agent only if he acted on his own behalf (Part 2, Clause 1, Article 1005 of the Civil Code).

Agent rights:

▪ receive remuneration for fulfilling the principal’s instructions (Part 1 of Article 1006 of the Civil Code);

▪ enter into a subagency agreement with another person, while remaining responsible for the actions of the subagent to the principal (clause 1 of Article 1009 of the Civil Code).

The agency contract is terminated due to the refusal of one of the parties to fulfill the contract concluded without determining the expiration date for its validity; death of an agent; recognition of the agent as incapable, partially incapacitated or missing; recognition of an agent - an individual entrepreneur as bankrupt.

Relations arising from an agency agreement are subject to the rules on agency agreement, if the agent in relations with third parties acted on principal's name, or rules about commission agreement, if the agent in relations with third parties acted on your name. These rules are applied subsidiaryly and only if they do not contradict the norms of Chapter. 52 of the Civil Code, dedicated to agency.

69. CONCEPT AND CHARACTERISTICS OF THE CONTRACT OF TRUST MANAGEMENT OF PROPERTY. PARTIES TO THE AGREEMENT

On property trust agreement one side (management founder) passes to the other party (trustee) for a certain period of time, property in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (beneficiary).

The transfer of property for trust management does not entail the transfer of ownership of it to the trustee.

A property trust management agreement is one of the types of property management. In addition to contractual property management, there is management based on the law (Article 1026 of the Civil Code). This is a new type of contract for domestic legislation.

Characteristics of the contract trust management of property: real; can be both paid and free of charge; mutual if it is reimbursable; can be both free and mandatory; can be both in favor of the founder of trust management, and in favor of the person appointed by him.

This agreement is regulated only by the Civil Code of the Russian Federation (Articles 1012-1026).

As a founder of trust management of property may act: any owner of property (in relation to his property - Article 1014 of the Civil Code);

▪ a person authorized by law:

a) the body of guardianship and guardianship (in relation to the property of an incapacitated person);

b) arbitration court (in relation to the property of a person declared bankrupt);

c) the testator in relation to his property (by appointing an executor in his will - Article 1026 of the Civil Code);

d) authors of works of science, art, literature, as well as creators of objects related to copyright in relation to their property rights in relation to works created by them.

As a trustee of property managementbased on an agreement, only entrepreneurs, both collective (commercial legal entities) and individual, can act. In cases where trust management is based on the law, any citizens and non-profit organizations can act as a trustee, with the exception of institutions, state bodies and local governments (clauses 1, 2 of article 1015 of the Civil Code).

As a beneficiary any persons appointed as the founder of trust management can act, with the exception of the trust manager (clause 3 of article 1015 of the Civil Code). Their number is not limited.

70. ELEMENTS OF THE CONTRACT OF TRUST MANAGEMENT OF PROPERTY. GROUNDS FOR TERMINATION OF THE AGREEMENT

subject of a contract - execution of any legal acts by the manager. and fact. actions in the interests of the beneficiary, and the manager performs actions in relation to someone else's property on his own behalf, while indicating that he is acting as a trustee of the property of another person. The performance of actual actions along with legal actions, as well as the need to inform counterparties in transactions about their position, distinguishes this agreement from others similar to it (orders, commissions, agency).

The object can be: individually defined things, both movable (eg, securities) and immovable (eg, enterprises); subjective rights (for example, rights certified by book-entry securities, exclusive rights), including rights acquired in the course of the performance of the contract.

Money and property that are under the right of operational management and economic management cannot be objects. Property encumbered with a pledge may be transferred to trust management, while the rights of the pledge holder are preserved: he can levy execution on this property. However, foreclosure on the debts of the founder of management on the property transferred by him to trust management is not allowed, except for the case when he is declared bankrupt.

Requirements for accounting for property transferred to trust management: with the exception of securities, it must be separated and reflected with the trustee on a separate balance sheet, it is kept independently, and a separate bank account is opened for settlements on activities related to trust management .

Period of the agreement is limited to five years, after the expiration of the term, the agreement is considered extended for the same period, if the parties have not terminated it.

Price agreement is a remuneration paid to the manager at the expense of income received from the use of the property transferred to him.

Forms of payment: in a fixed amount of money paid at certain periods (eg monthly, quarterly, etc.) or after the end of the contract; actually; in mixed form.

The terms of the agreement on the form and amount of remuneration payments are essential.

Form contracts can only be in writing. The agreement regarding the trust management of real estate is subject to the state. registration.

The procedure for concluding an agreement: it is possible both by signing one document by the parties (in contracts in which the object of management is real estate), and by exchanging documents using communication means. The transfer of immovable property must be carried out according to the deed of transfer.

Grounds for termination of the contract: death of one of the parties or its liquidation, if it is a legal entity; refusal of one party or both parties from the contract; recognition of one of the parties as incapable, or with limited capacity, or missing, or bankrupt (this ground does not apply to the beneficiary).

71. CONTENT OF THE PROPERTY TRUST MANAGEMENT AGREEMENT

The manager has the right: exercise the powers of the owner (but does not have the right of ownership to the property received under the contract); perform any legal and actual actions in relation to this property in the interests of the beneficiary, but restrictions may be provided for by law or contract; perform actions with property on his own behalf, but at the same time he must warn the counterparty in the transaction that he is a trustee; use negatory and vindication claims to protect the rights to property transferred to him for management; instruct another person to perform their duties with the written consent of the founder or independently in the absence of the possibility of obtaining such consent.

The manager must: act in the interests of the founder or beneficiary; personally manage the property entrusted to him; separate the property entrusted to him from his personal property and reflect it on a separate balance sheet; open a separate bank account enroll all income and expenses from the management of entrusted property; maintain property in proper condition and take care of it the same as with respect to their own property; submit to the founder of the management and the beneficiary a report on their activities within the time limits stipulated by the contract.

The founder has the right: demand from the manager the proper performance of the contract; exercise control over its activities; withdraw from the contract, subject to the payment of remuneration to the manager, stipulated by the contract, notifying him of this 3 months in advance (these rights also arise for the beneficiary, in addition, he has the right to waive his rights granted to him by the contract).

The founder is obliged: pay remuneration to the manager; reimburse him for the necessary expenses; perform creditor obligations related to trust management; warn the manager that the property transferred to him is encumbered with a pledge; not to interfere in the operational and economic activities of managing its property.

The manager is responsible for improper management before the founder or beneficiary in the form of compensation for losses, regardless of his fault, unless he proves that they arose as a result of force majeure or actions of the beneficiary or founder of the management.

The founder responds: for the transfer of property encumbered with a pledge to the manager without warning him (sanction - payment of remuneration to the manager for one year); for the transfer to the manager of property burdened with debts (termination of the contract by a court decision and compensation for losses); for interference in the operational and economic activities of the manager (compensation for losses); for late payment of remuneration to the manager (forfeit if the founder pays this remuneration himself).

The founder is not responsible for his civil obligations with the property transferred to trust management, with the exception of two cases: when the property transferred by him was encumbered with a pledge, and when he was declared bankrupt.

72. CONCEPT AND CHARACTERISTICS OF THE CONTRACT OF INSURANCE. PARTIES TO THE AGREEMENT

On insurance contract one side (insured) brings to the other side (to the insurer) contractual fee (insurance premium),

and the insurer undertakes upon the occurrence of an event stipulated by the contract (insured event) pay the insured or other person (to the beneficiary), in whose favor an insurance contract, insurance compensation or insured amount has been concluded.

Characterization contract: it is paid, bilaterally binding, it can be real or consensual.

By the parties contracts are the policyholder and the insurer.

The insured - this is a legal or capable individual who has an insurable interest and enters into relations with the insurer by virtue of law or contract. On the side of the policyholder, in addition to himself, a third party (or several persons) may simultaneously act - beneficiary - a person in favor of whom, with his consent, the policyholder has concluded an insurance contract.

Insurer - this is a legal entity of any organizational and legal form that has a license to insure the relevant person (Article 938 of the Civil Code).

Participants of insurance relations may be:

▪ insurance agents - individuals or legal entities acting on behalf of the insurer on his behalf;

▪ insurance brokers - individuals or legal entities - entrepreneurs carrying out insurance activities on their own behalf and representing the interests of the policyholder or insurer (they are intermediaries);

▪ insurance pool - a voluntary association of insurers in order to ensure the financial stability of insurance operations on the terms of joint liability of its participants for the fulfillment of obligations under insurance contracts. In addition to the insurance itself, the following actions can be carried out during insurance:

▪ double insurance - this is insurance of the same interest against the same dangers from several insurers in the case where the total insured amount exceeds the insured value;

▪ reinsurance - insurance by one insurer (reinsurer) from another insurer (reinsurer) under the terms of the risk of fulfillment of all or part of the obligations to the insured determined by the contract;

▪ mutual insurance - this is insurance of property and property interests based on the pooling of funds of citizens and (or) business entities.

73. BASIC CONCEPTS OF INSURANCE LAW. ELEMENTS OF INSURANCE CONTRACT

Insurable interest - a measure of material interest in insurance. There are:

a) policyholder's interest, cat. is divided into the interest of the owner of the property (consists in the property itself and in liability for loss of profit) and the implied interest (occurs for the insured from the moment he learns that he may suffer damage as a result of an accident);

b) insurer's interest - his liability specified in the terms of insurance. The insurer may reinsure this interest only under the same conditions.

There are two types of relationships between the policyholder and the insurer:

a) for payment of contributions to the insurance fund. In this case, two concepts are distinguished: insurance premium - insurance fee, which the policyholder is obliged to pay to the insurer within the established time limits; insurance fee - part of the insurance premium, if it is payable in installments;

b) for insurance payment - this is the amount of money that the insurer is obliged to pay as a result of the occurrence of an insured event.

Insurance case - this is an actual event that entails the insurer’s obligation to make an insurance payment.

insurance risk - the expected event against which insurance is provided.

Insurance tariff - the rate charged by the insurer per unit of sum insured, taking into account the object of insurance and the nature of the insurance risk, which is used to calculate the amount of the insurance premium.

It is not allowed to insure illegal interests, as well as losses from participation in games, lotteries and bets.

The subject An insurance contract is a special kind of service that the insurer provides to the insured and which is embodied in the bearing of the insured risk within the sum insured.

Form contracts are written only. The contract can be concluded by drawing up a document, or by handing the insurance policy (certificate, certificate, receipt) signed by the insurer to the insured by the insurer.

Insurance policy - a document confirming the fact of concluding an insurance contract. He can be one-time - simple insurance transactions are processed, and general - extending to several homogeneous property insurance operations (in relation to a group of items).

Essential conditions contracts: insurable interest; insurance risk; sum insured; term.

Period the contract is determined by the general rules established by Ch. 11 GK. It begins to flow after the payment of the insurance premium or its first installment. The Agreement terminates at the end of its term or upon early termination.

Limitation of actions under the contract: a claim on demand from a property insurance contract can be brought within 2 years (exception - under a liability risk insurance contract for obligations arising from damage to life, health or property of other persons, the limitation period is 3 years); a claim on demand from a personal insurance contract is presented in accordance with the rules of the Civil Code of the Russian Federation on limitation of actions.

74. RIGHTS OF THE PARTIES UNDER THE INSURANCE CONTRACT

Rights of the policyholder:

1) conclude a personal insurance contract with the insurer in favor of a third party;

2) appoint a beneficiary to receive insurance payments;

3) replace the beneficiary named in the insurance contract with another person by notifying the insurer in writing;

4) make co-insurance, additional insurance;

5) require the insurer to reduce the amount of the insurance premium (contributions) by renegotiating the contract, if the measures taken by the insured reduce the risk of an insured event;

6) refer in defense of their interests to the insurance rules of the respective type, to which there is a link in the insurance contract (insurance policy), even if these rules, by virtue of Art. 943 of the Civil Code are optional for him.

Insurer's rights:

1) apply the standard forms of the contract (insurance policy) developed by him or the association of insurers for certain types of insurance;

2) when concluding an insurance contract, require from the policyholder the necessary information to determine the insured risk and independently assess this risk;

3) inspect the property, and, if necessary, appoint an examination in order to establish its actual value when concluding an insurance contract;

4) conduct an examination of the insured person under personal insurance in order to assess the actual state of his health;

5) apply the insurance rates developed by him, which determine the premium charged per unit of the sum insured, taking into account the object of insurance and the nature of the insured risk, when determining the amount of the insurance premium payable under the insurance contract;

6) independently find out the causes and circumstances of the insured event;

7) set off the amount of the overdue insurance premium when determining the amount of insurance compensation payable under a property insurance contract or the sum insured under a personal insurance contract, if the insured event occurred before the payment of the overdue regular insurance premium;

8) demand recognition of the contract as invalid if, when concluding it, the insured provided the insurer with knowingly false information about the circumstances that are essential for determining the insured risk;

9) demand a change in the terms of the contract or payment of an additional insurance premium in proportion to the increase in risk upon receipt of a notice from the insured about the circumstances that entail an increase in the insured risk;

10) demand termination of the contract and compensation for losses caused by the termination of the contract if the policyholder fails to fulfill the obligation to report the circumstances that increase the insured risk;

11) is not entitled to demand termination of the contract or its recognition as invalid on the grounds that the contract was concluded in the absence of answers from the insured to any questions of the insurer.

75. OBLIGATIONS OF THE PARTIES UNDER THE INSURANCE CONTRACT

Obligations of the insurer: familiarize the insured with the rules of insurance; at the request of the insured, issue insurance policies for individual lots of property falling under the general policy; renegotiate the contract at the request of the insured in the event of circumstances that reduce the risk of an insured event and the amount of possible damage to the insured property; make an insurance payment within the time limits established by the contract or law, upon the occurrence of an insured event (in case of non-compliance with this obligation, the insurer pays the policyholder a fine in the amount of 1% of the amount of the insurance payment for each day of delay); reimburse the expenses incurred by the policyholder in the event of an insured event, to prevent or reduce damage to the insured property, if this obligation is provided for by the insurance rules (reimbursement of expenses is made only within the amount of damage); not to disclose information about the insured and his property status; compensate the insured for part of the losses incurred by the latter in proportion to the ratio of the sum insured to the insured value, if the property or business risk insurance contract sets the sum insured below the insured value.

The insurer is not required make an insurance payment if:

a) the insured event occurred as a result of the intention of the insured, except in cases where the cat. he is not exempt from payment: for causing harm to life or health, even if the harm was caused through the fault of the person responsible for it; sum insured, cat. under a personal insurance contract, it is payable in the event of the death of the insured person, if his death was due to suicide and by that time the contract had been in force for at least two years; upon the occurrence of an insured event due to the negligence of the insured, both light and gross (if this is not related to the property insurance contract);

b) the insured event occurred as a result of: the impact of a nuclear explosion, radiation or radioactive contamination; military operations, as well as maneuvers or military measures; civil war, strikes;

c) losses arose as a result of the seizure, confiscation, requisition, arrest or destruction of the insured property by order of the state. organs;

d) the policyholder failed to notify the insurer of the insured event.

Obligations of the insured: inform the insurer, when concluding the contract, of the circumstances that are important for the correct assessment of the insured risk, as well as of all insurance contracts concluded in relation to this insurance object; report, in respect of each lot of property falling under the general policy, the information stipulated by such a policy within the period stipulated by it; pay insurance premiums on time; notify immediately of significant changes that have become known in the circumstances reported to the insurer at the conclusion of the contract, if these changes may significantly affect the increase in the insured risk; submit an application to the insurer about the occurrence of an insured event within the established time limits.

76. TYPES OF INSURANCE

The objects of insurance are the basis for the classification of insurance into branches, types, varieties, forms, systems of insurance relations.

Insurance objects there may be property interests related to:

a) life, health, ability to work and pensions of the insured or the insured person (personal insurance);

b) possession, use, disposal of property (property insurance);

c) compensation by the insured for damage caused to the person or property of a citizen, as well as damage caused to an economic entity (liability insurance).

When classifying insurance, differences are taken into account in the following circumstances: in the objects of insurance; in the categories of insurers; in the scope of insurance liability; in the form of insurance.

Insurance industries:

a) personal;

b) property;

c) liability insurance.

Types of personal insurance:

a) life insurance;

b) accident and illness insurance;

c) health insurance.

Types of personal insurance: children's insurance; marriage insurance; mixed life insurance; supplementary pension insurance; death and health insurance.

Types of property insurance:

a) insurance of means of ground, air and water transport;

b) cargo insurance;

c) insurance of other types of property;

d) insurance of financial risks.

Types of property insurance:

▪ insurance of buildings;

▪ insurance of fixed and working capital;

▪ animal insurance;

▪ home contents insurance;

▪ insurance of vehicles, etc.

Types of liability insurance:

a) liability insurance of borrowers for repayment of loans;

b) liability insurance of motor vehicle owners;

c) insurance of other types of liability.

Types of liability insurance:

in case of harm in the course of economic and professional activities; from losses due to interruptions in production, etc.

77. FORMS OF INSURANCE

The objects of insurance are the basis for the classification of insurance into branches, types, varieties, forms, systems of insurance relations.

Insurance objects there may be property interests related to:

a) life, health, ability to work and pensions of the insured or the insured person (personal insurance);

b) with possession, use, disposal of property (property insurance);

c) with compensation by the insured for damage caused to the person or property of a citizen, as well as damage caused to an economic entity (liability insurance).

Forms of insurance:

a) compulsory insurance - carried out by force of law. The types, conditions and procedure for such insurance are determined by law. The costs of such insurance are included in the cost of production. Contribution rates for this form of insurance are set for employers as a percentage of the accrued amount of the wage fund, and for individual entrepreneurs and farms - as a percentage of their income;

b) voluntary insurance - carried out on the basis of an agreement between the insurance organization and the person insuring his interest.

The difference between the two forms of insurance It is as follows:

a) with compulsory insurance, payments do not depend only on contributions, and with voluntary insurance, payments correspond to contributions;

b) with compulsory insurance, the insured does not have the right to terminate insurance, and with voluntary insurance, the latter is terminated in case of non-payment of premiums. The obligation to insure their property may be imposed by law on legal entities that have property in economic jurisdiction or operational management that is state or municipal property (Article 945 of the Civil Code). To compulsory insurance relate:

a) personal insurance of passengers against accidents on all modes of transport;

b) state personal insurance of military personnel and persons liable for military service, citizens called up for military training, private and commanding personnel of internal affairs bodies;

c) state personal insurance of customs officials;

d) medical insurance of citizens of the Russian Federation;

e) insurance of employees of enterprises with especially dangerous working conditions, etc.;

f) compulsory liability insurance of vehicle owners.

Compulsory state insurance carried out at the expense of funds provided from the relevant budget (clause 3 of article 927 of the Civil Code).

78. CONCEPT, CHARACTERISTICS, ELEMENTS AND TYPES OF LOAN AGREEMENT

On loan agreement one side (lender) transfers ownership to another party (to the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things of the same kind and quality received by him (paragraph 1 of article 807 of the Civil Code).

Characteristics of the loan agreement: it is real, one-sided, can be both paid and free of charge.

The contract is considered concluded from the moment of transfer of money or other things (clause 1 of article 807 of the Civil Code). The unilateral nature of the contract is expressed in the fact that the borrower creates only debt for himself by concluding the contract, and the lender always receives the right to claim.

The subject loan agreements are money or other things defined by generic characteristics, foreign currency and currency values can be the subject of a loan agreement on the territories of the Russian Federation in compliance with the rules of Art. 140, 141 and 317 of the Civil Code (clause 2 of article 807 of the Civil Code).

By the parties loan agreement are the lender and the borrower. Any subjects of civil law can act as a lender, as well as a borrower. The borrower can be the Russian Federation and its subjects (clause 1 of article 817 of the Civil Code).

Form loan agreements - written, if its amount exceeds at least 10 times the minimum wage established by law, and in the case when the lender is a legal entity - regardless of the amount (clause 1 of article 808 of the Civil Code).

In confirmation of the conclusion of the loan agreement, the borrower issues a receipt or other document certifying the transfer of a certain amount of money or a certain number of things by the lender to him (clause 2 of article 808 of the Civil Code). Other documents may be securities - a bill of exchange (Article 815 of the Civil Code) or a bond (Article 816 of the Civil Code).

Procedure and term the return by the borrower of the loan amount to the lender is determined by the agreement (paragraph 1 of article 810 of the Civil Code).

Types of loan agreement:

▪ targeted loan (Article 814 of the Civil Code);

▪ government loan (Article 817 of the Civil Code).

79. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE LOAN AGREEMENT

Borrower Responsibilities:

▪ return to the lender the loan amount or an equal number of other things of the same kind and quality received by him (clause 1 of Article 807, clause 1 of Article 810 of the Civil Code);

▪ provide the lender with a receipt or other document certifying the latter’s transfer to him of a certain amount of money or a certain number of things (clause 2 of Article 808 of the Civil Code);

▪ ensure that the lender can exercise control over the intended use of the loan amount for a targeted loan (clause 1 of Article 814 of the Civil Code);

▪ pay the lender, upon repayment of the loan amount, interest on the loan amount in the amount and in the manner determined by the agreement (clause 1 of Article 803 of the Civil Code), or pay them monthly until the day of repayment of the loan amount in the absence of another agreement (clause 2 of Art. 809 Civil Code).

The borrower has the right challenge the loan agreement for its lack of money, proving that money or other things were not actually received by him from the lender or received in a smaller amount than indicated in the agreement (clause 1 of article 812 of the Civil Code).

The lender is obliged transfer money or other things defined by generic characteristics to the borrower in accordance with the loan agreement (clause 1 of article 807 of the Civil Code).

Lender's rights:

▪ receive interest from the borrower on the loan amount in the amount and in the manner specified in the loan agreement (clause 1 of Article 809 of the Civil Code);

▪ enter into a government loan agreement by purchasing issued government bonds or other government securities certifying the lender’s right to receive from the borrower the funds lent to him and the established interest;

▪ demand from the borrower the early repayment of the entire remaining loan amount along with the interest due if the latter violates the deadline established for the repayment of the next part of the loan, if the agreement provides for the repayment of the loan in parts - in installments (clause 2 of Article 811 of the Civil Code);

▪ demand from the borrower early repayment of the loan amount and payment of interest due in case of failure to fulfill the obligations stipulated by the contract to ensure the return of the loan amount, as well as in the event of loss of security (for example, the guarantor went bankrupt) or deterioration of its conditions (for example, depreciation of the collateral) according to the circumstances , for which the lender is not responsible (clause 813 of the Civil Code);

▪ demand from the borrower early repayment of the loan amount and payment of interest due in the event of misuse of the loan, as well as in case of violation of the obligations provided for in paragraph 1 of Art. 814 Civil Code (clause 2 of Article 814 Civil Code).

80. LOAN AGREEMENT

On loan agreement bank or other credit organization (creditor) undertake to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the received amount of money and pay interest on it (clause 1 of article 819 of the Civil Code).

Characteristics of the loan agreement: consensual, bilaterally binding, reimbursable.

The subject loan agreement can only be cash.

By the parties loan agreement are creditor (bank or other credit institution) licensed by the Bank of Russia for all or certain banking operations, and borrowerreceiving funds for business or consumer purposes.

Form loan agreement - written (Article 820 of the Civil Code).

Period credit agreement can be short-term (up to one year) and long-term (more than one year).

Powers of the parties loan agreement are similar to the powers of the parties to the loan agreement.

The lender has the right to refuse to provide the borrower with the loan provided for by the loan agreement in whole or in part if there are circumstances that clearly indicate that the amount provided to the borrower will not be returned on time (clause 1 of article 821 of the Civil Code).

The borrower has the right to refuse to receive a loan in whole or in part, notifying the lender about this before the deadline for its provision established by the agreement, unless otherwise provided by law, other legal acts or a loan agreement (clause 2 of article 821 of the Civil Code).

Types of loan agreement: commodity and commercial.

Commodity credit such a loan agreement is called, which provides for the obligation of one party to provide the other party with things defined by generic characteristics (Article 822 of the Civil Code).

Characteristics of the commodity loan agreement: it is consensual, bilaterally binding, reimbursable.

The subject commodity credit agreements are such goods as agricultural products, semi-finished products, raw materials, fuels and lubricants, etc.

A feature of the commodity loan agreement is that it is subject to the rules governing the sale and purchase agreement, unless otherwise provided by the commodity loan agreement (Article 822 of the Civil Code).

By the parties Commodity credit agreements can be any subjects of civil law.

Form trade credit agreements - written.

RџSЂRё commercial loan the contract includes a condition by virtue of which one party grants the other party a deferral or installment plan for the performance of any obligation (to pay money or transfer property, perform work or services) (clause 1 of article 823 of the Civil Code). For example, the sale of durable goods to citizens on credit.

The rules on a loan or credit are applied to the condition of a commercial loan, unless otherwise provided by the agreement (clause 2 of article 823 of the Civil Code).

81. THE CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE AGREEMENT OF FINANCING UNDER THE ASSIGNMENT OF A MONETARY CLAIMS (FACTORING). RESPONSIBILITIES OF THE PARTIES

One party contract (financial agent) transfers or undertakes to transfer to another party (to the client) cash on account of the client's monetary claim (creditor) to a third party (to the debtor)arising from the provision by the client of goods, performance of work or provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent.

Characteristics of the contract: it can be real and consensual, it is mutual, compensatory.

The subject the contract can be as a monetary requirement, the payment term for the cat. has already occurred (existing requirement), and the right to receive funds, cat. will occur in the future (future requirement). The monetary claim must be defined in the contract in such a way that the cat. allows you to identify the existing claim at the time of the conclusion of the contract, and the future claim - no later than at the time of its occurrence. If an assignment is conditional on a certain event, it takes effect after the occurrence of that event.

As a financial agent (factor) any commercial organization can act.

Client can be any person, but in most cases they are commercial organizations and entrepreneurs. The debtor of the client is not a party to the agreement, but it depends on the business reputation of the debtor whether the financial agent will accept the claim against him under the agreement.

Form contract is subject to the provisions of the law on the form of assignment. This may be a simple or qualified written form of the transaction, and in cases established by law - a written form with the state. registration of the assignment of the right to claim.

Period in the contract is determined by the agreement of the parties.

Price contract - the value of the assigned client's claim to the debtor.

Property liability under contract.

В consensual agreement the financial agent is responsible for refusing to transfer funds to the client on account of the latter's monetary claim. The client is responsible to the financial agent for the validity of the monetary claim that is the subject of the assignment, and is also liable for non-execution or improper execution of the assignment of the claim. If a valid claim has been assigned, but the debtor has become insolvent, the client is not responsible for the non-performance of this claim.

В real contract responsibility for its failure occurs only for the client - for the validity of the subject of the contract, or for its feasibility. The client is liable to the debtor for violation of the agreement on the prohibition of the assignment of the right to claim, as well as in the case when the debtor has fulfilled the monetary requirement to the financial agent, and the client has not fulfilled his obligation to the debtor. This liability arises from the contract between the client and the debtor.

In all cases of the client's liability to the financial agent or to the debtor, the client compensates for the losses incurred and the penalty, if it is provided for by the contract.

82. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE AGREEMENT OF FINANCING UNDER THE ASSIGNMENT OF A MONETARY CLAIMS (FACTORING)

Responsibilities of a financial agent: to finance the client by transferring the price of the contract (cash) in the manner prescribed in the contract; accept from the client the necessary documentation for accounting of the client's operations in specially stipulated cases; provide the client with other financial services related to monetary claims, cat. are the subject of an assignment (for example, to make settlements through the correspondent network of a financial agent); provide the debtor (at his request) within a reasonable time with proof that the assignment of the monetary claim to the financial agent actually took place. If the latter does not fulfill this obligation, the debtor has the right to make payment to the client on this demand in fulfillment of his obligation to the latter; return to the debtor the funds received in pursuance of a monetary claim, if the financial agent has not fulfilled its obligation to make the promised payment to the client related to the assignment of the claim, or has made such a payment, knowing that the client has violated that obligation to the debtor, to the cat. the payment related to the assignment of the claim; provide a report to the client and transfer to him an amount exceeding the amount of the client's debt secured by the assignment of the claim.

The financial agent has the right receive money from the debtor. are the subject of the assignment of the claim provided for by the contract after this right has arisen.

Client Responsibilities: assign or undertake to assign to the financial agent the client's monetary claim against the debtor, arising from the provision by the client of goods, the performance of work or the provision of services to the debtor (in this case, there is a change of persons in the obligation); transfer to the financial agent documents certifying the right to claim and provide information relevant to the implementation of the claim; notify the debtor in writing of the assignment of the monetary claim; pay for the services of a financial agent.

Obligations of a debtor who is not a party to the contract: make a payment to the financial agent, provided that he received from the client or from the financial agent a written notification of the assignment of the monetary claim to this financial agent and the notification specifies the monetary claim to be fulfilled, and also indicates the financial agent, cat. payment must be made; make a payment on this monetary claim to the client in fulfillment of its obligation to the latter, if the financial agent does not provide him with proof that the assignment of the monetary claim to this financial agent actually took place.

The debtor has the right not to fulfill a monetary claim to a financial agent, if the client has performed his obligation to the debtor improperly. If the client is aware of the improper performance of his obligation, the assignment of the claim under this obligation will be invalid.

The fulfillment of a monetary claim by the debtor to the financial agent releases the debtor from the corresponding obligation to the client.

83. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE CONTRACT OF BANK DEPOSIT (DEPOSIT). TERMINATION OF THE CONTRACT

On bank deposit agreement one side (bank), which received what was received from the other side (contributor) or the amount of money received for her (contribution), undertakes to return the deposit amount and pay interest on it on the terms and in the manner prescribed by the contract (paragraph 1 of article 834 of the Civil Code).

Characteristics of the contract: it is real, unilateral, reimbursable and public, if an individual acts as a depositor in the agreement. An agreement in which a legal entity acts as a depositor does not have the property of publicity, since the bank has the right to pursue a differentiated economic policy on the deposits of such entities.

The subject contracts are money - a contribution in rubles or foreign currency. The depositor's right to funds transferred to the bank as a deposit is not a property right, but the right to demand the return of money and the payment of interest due.

By the parties the contract are the bank and the depositor. The Bank has the right to attract funds in deposits only in accordance with the license it has received. The right to accept deposits from individuals is enjoyed only by those banks that carry out banking activities for a period of at least 2 years from the date of state registration. Any individual or legal entity can be a contributor.

Form contracts are in writing. The written form of the agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements provided for such documents by the law, the banking rules established in accordance with it and the customs of business turnover applied in banking practice (p. 1 article 836 of the Civil Code).

Deadlines (day, month, quarter, year, etc.) and the procedure for paying interest on the deposit (with capitalization, without capitalization) and the return of the deposit amount must be agreed by the parties in the agreement. When the deposit is returned, all interest accrued up to that moment is paid.

The price the loan issued by the depositor to the bank are interest.

The bank deposit agreement is concluded on following conditions (clause 1 of article 837 of the Civil Code):

▪ issuing a deposit upon immediate request (demand deposit);

▪ return of the deposit after the period specified in the agreement (time deposit).

However, regardless of the type of deposit, the bank is obliged to issue the deposit amount or part of it. on demand depositor (clause 2 of article 837 of the Civil Code), with the exception of deposits made by legal entities on other terms of return provided for by the agreement.

Termination of the contract always occurs by virtue of the unilateral will of the citizen-investor. For legal entities, the termination of this agreement depends on the type of deposit: for demand deposits - on demand, and for deposits on special conditions - in the manner prescribed by the agreement.

84. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE CONTRACT OF BANK DEPOSIT (DEPOSIT)

Bank Responsibilities:

a) issue to the depositor, in accordance with the concluded agreement, a personalized savings book or a savings book to bearer;

b) carry out the issuance of a deposit, the payment of interest on it and the execution of the depositor's orders to transfer funds from the deposit account to other persons only upon presentation of a savings book;

at) issue a new savings book to the depositor at the request of the latter in case of loss of the personalized savings book or if it is rendered unusable for presentation;

d) return the deposit amount to the depositor and pay interest on it on the terms and in the manner prescribed by the agreement;

d) issue the deposit amount or part of it at the first request of the depositor;

f) pay the depositor interest on the amount of the deposit in the amount determined by the agreement, and in the absence of a clause in the agreement on the amount of interest paid - pay interest in the amount determined in accordance with the Civil Code of the Russian Federation;

g) ensure the return of citizens' deposits by: compulsory insurance of citizens' deposits at the expense of the Federal Fund for Compulsory Deposit Insurance; introduction of subsidiary liability of the Russian Federation, constituent entities of the Russian Federation and municipalities for the debts of banks - in cases established by law; voluntary deposit insurance; use of traditional methods of enforcement of obligations in civil law;

with) credit to the deposit account funds received by the bank in the name of the depositor from third parties, indicating the necessary data on his deposit account;

and) pay the deposit amount and interest paid on demand deposits, unless the terms of the certificate establish a different amount of interest, in case of its early presentation to the bank for payment.

Bank rights: attract funds to deposits in accordance with a permit (license) issued in the manner prescribed by law; change the amount of interest paid on demand deposits.

The bank is not entitled unilaterally reduce the amount of interest on the deposit specified in the bank deposit agreement.

Contributor powers are expressed in the right to demand an immediate return of the deposit amount (as well as the payment of interest on it, provided for in Article 395 of the Civil Code), in the following cases:

a) in case of non-fulfillment or improper fulfillment of the obligation to ensure the return of the deposit;

b) in case of deterioration of the conditions of support;

at) when accepting a deposit from citizens by an unauthorized person or in violation of the legislation on deposits. In this case, the depositor has an additional right to demand compensation in excess of the amount of interest for all losses caused to him;

d) in case of non-return of the deposit, its illegal deduction or non-payment of interest.

85. CONCEPT, CHARACTERISTICS AND ELEMENTS OF THE BANK ACCOUNT AGREEMENT

On bank account agreement the bank undertakes to accept and credit funds incoming to the account opened by the client (account holder), fulfill the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account (clause 1 of article 845 of the Civil Code).

Characterization bank account agreement: it is consensual, bilaterally binding, reimbursable, public.

Subject bank account agreements - the client's funds in his bank account, with which operations are carried out, stipulated by the agreement.

By the parties bank account agreements are bank or a credit institution licensed by the Bank of Russia, and client - account owner. Any legal entity or individual can act as a client.

Form bank account agreements - written. It is directly related to the procedure for concluding an agreement and opening an account.

To open an account, a client - a legal entity submits to the bank:

▪ application for opening an account;

▪ constituent documents and certificate of state registration of a legal entity;

▪ a card with sample signatures of the client’s manager and chief accountant and his seal.

To open an account, individual entrepreneurs provide:

▪ application for opening an account, signed by the entrepreneur;

▪ document on state registration of the entrepreneur;

▪ a card with a sample signature of the entrepreneur, certified by a notary.

Conclusion of the contract takes place by signing single document (in the form of an adhesion agreement on a standard bank letterhead) or by submitting by the client statements with the above documents and making on the application administrative inscription bank manager.

Deadlines account transactions (Article 849 of the Civil Code):

▪ the first term - for crediting to the client’s account the money that came to him from his counterparties. This money is first credited to the bank's correspondent account. The period for crediting them to the client’s account begins from the moment the bank learned that the money belongs to the client, i.e., from the moment it receives the payment document confirming the payment. This period is one day;

▪ second term - for transferring and issuing money according to the client’s payment document. This period is also equal to one day.

The concept of "day" means not a calendar day, but an operating day, i.e. the day of the bank's work, or rather, part of the bank's working time, during which payment documents of a certain date are serviced. The transaction day ends two hours before the end of the bank's work, and all payment documents received after that are executed the next day.

86. TYPES OF ACCOUNTS UNDER BANK ACCOUNT AGREEMENT. LIABILITY OF THE PARTIES AND TERMINATION OF THE AGREEMENT

Types of accounts:

▪ current account - an account for carrying out business activities;

▪ an account for performing work under production sharing agreements, opened in Russian and foreign banks by investors in accordance with the Federal Law “On Production Sharing Agreements”;

▪ an account for joint activities opened in Russian banks;

▪ current account - a financing account for non-profit legal entities;

▪ budget account - an account opened for an enterprise or organization when it allocates funds from the federal or local budgets for certain types of activities;

▪ investment and conversion accounts - accounts for recording federal budget funds provided on a repayable and paid basis to finance conversion and investment programs. These accounts are opened in specially authorized banks;

▪ bank correspondent account - this account is opened by banks for mutual settlements or in cash settlement centers of the Central Bank of Russia;

▪ checking account - its purpose is to credit the account owner in the absence of funds on it and to carry out offsets against the balance of mutual claims.

Bank liability for improper performance of operations on the account occurs in the following cases: untimely crediting of funds received by the client to the account; unreasonable debiting of funds by the bank from the client's account; failure to comply with the client's instructions to transfer funds from the account or to issue them from the account.

In all these cases, the bank is obliged to pay interest on the amount of funds in the manner and in the amount provided for in Art. 395 of the Civil Code (Article 856 of the Civil Code).

Law terminate the contractual relationship belongs to both parties to the contract.

At the request of the bank, the agreement may be terminated by the court in the following cases:

a) when the amount of funds stored in the client’s account is below the minimum amount provided for by banking rules or agreement, unless such amount is restored within a month from the date the bank warned about this;

b) in the absence of transactions on this account during the year, unless otherwise provided by the agreement.

At the request of the client, the contract terminated at any time.

Termination of the agreement is the basis for closing the client's account. The balance of funds on the account is issued to the client or, at his instruction, transferred to another account no later than 7 days after receiving the corresponding written application from the client.

87. RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE BANK ACCOUNT AGREEMENT

Bank Responsibilities:

a) receive and credit funds received to the account;

b) to fulfill the client's instructions on the transfer and issuance of amounts from the account and to carry out other operations on the account;

at) execute the client's instructions to debit funds from the account at the request of third parties, including those related to the client's fulfillment of its obligations to these persons, provided that the instructions contain the necessary data to identify the person entitled to submit a claim;

d) perform operations for the client, provided for accounts of this type by law, banking rules and business customs;

d) credit the funds received to the client's account no later than the day, next. after the day of receipt of the corresponding payment document by the bank;

f) issue by order. client or transfer funds from the client's account no later than the day, next. after the day of receipt of the corresponding payment document by the bank;

g) pay interest for the use of the client's funds, crediting them to his account within the terms stipulated by the agreement;

with) to write off funds from the account on the basis of the order. client;

and) to write off funds in case of their insufficiency on the client's account to satisfy all the requirements presented to him in the next. sequence: in the 1st turn - according to the performer. documents providing for the transfer or withdrawal of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the recovery of alimony;

▪ in the 2nd - by execution. documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working under an employment contract, for the payment of remuneration to the authors of the results of intellectual activity;

▪ in the 3rd - according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment contract, as well as for contributions to extra-budgetary funds;

▪ in the 4th - according to payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the 3rd stage;

▪ in the 5th - by execution. documents providing for the satisfaction of other monetary claims;

▪ in the 6th - according to other payment documents in calendar order.

Bank rights: use the funds available on the account, guaranteeing the right of the client to freely dispose of these funds; charge the client a fee for transactions with the funds in his account after each quarter from the client's funds in the account.

The Bank is not entitled: refuse to open an account for the client, to perform relevant operations on the cat. provided by the law, the constituent documents of the bank and the permission (license) issued to it; determine and control the directions of use of the client's funds.

Client Responsibilities: compliance with banking rules when making transactions on the account; payment of bank expenses for transactions on the account.

88. SETTLEMENT LIABILITIES. FORMS OF NON-CASH PAYMENTS. SETTLEMENTS BY PAYMENT ORDER

Settlement liabilities established by agreements. As an element of these contracts, the settlement legal relationship involves the establishment of the obligation of one party - the payer - to pay and the right of the other party - the recipient of money - to demand payment.

Settlements with the participation of citizens, not related to their entrepreneurial activities, can be made in cash without limiting the amount or in a non-cash manner.

Settlements between legal entities, as well as settlements with the participation of citizens related to their entrepreneurial activities, are made in a non-cash manner. Settlements between these persons may also be made in cash, unless otherwise provided by law.

Non-cash payments are made through banks, other credit institutions (hereinafter referred to as banks) in which the relevant accounts are opened, unless otherwise follows from the law and is not due to the form of payment used.

Forms cashless payments. Settlements by payment orders, letters of credit, checks, settlements by collection, as well as settlements in other forms provided for by law, banking rules established in accordance with it, and business practices applied in banking practice are allowed.

For any non-cash payments, legal term: two business days within one subject of the Russian Federation and five business days within different subjects of the Russian Federation (Article 80 of the Federal Law "On the Central Bank of the Russian Federation (Bank of Russia)").

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 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 used in banking practice.

The payment order is valid only for ten days from the date of issue, and the day of issue is not taken into account. Urgent, early and deferred orders are also known. The payer's order is executed by the bank if there are funds on the payer's account. Instructions are executed by the bank in compliance with the order in which funds are debited from the account. The Bank is obliged to immediately inform the payer on his request about the execution of the order.

For non-execution or improper execution of the client's transfer order, the bank bears the full property liability according to the rules established for commercial organizations. Such liability may be imposed by the court on a third party - a bank that was attracted by the payer's bank to transfer money, but did not execute or improperly executed the order. If the violation of the rules for settlement transactions by the bank resulted in the unlawful withholding of funds, the bank is obliged to pay interest in the manner and in the amount provided for in Art. 395 GK.

89. PAYMENTS UNDER LETTER OF CREDIT

Bank acting on behalf payer on the opening of a letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments recipient of funds or pay, accept or discount a bill of exchange or authorize another bank to do so (to the executing bank). Payment under a letter of credit can be made in cash or by bill of exchange.

Types of letters of credit: revocable - can be changed or canceled by the issuing bank without prior notice. notifications to the recipient (revocation does not create any obligations of the issuing bank to the recipient); irrevocable - cannot be canceled without the consent of the recipient. He can gain character confirmed letter of credit, if, at the request of the issuing bank, the executing bank confirms an irrevocable letter of credit; coated - creates the obligation of the issuing bank to transfer the amount of the letter of credit (coverage) at the expense of the payer’s funds or to provide the latter with a loan by transferring funds to the disposal of the executing bank; uncovered - based on the right of the executing bank to write off the entire amount of the letter of credit from the correspondent. issuing bank accounts; transferable (transferable) - used in foreign trade relations. According to it, the first beneficiary has the right to instruct the issuing bank to transfer all or part of the rights under the letter of credit to another person (the second beneficiary).

For the execution of the letter of credit, the recipient submits to the executing bank documents confirming the fulfillment of all the conditions of the letter of credit. If the executing bank has made payment in accordance with the terms of the letter of credit, the issuing bank is obliged to reimburse it for the costs incurred. All expenses of the issuing bank related to the execution of the letter of credit are reimbursed by the payer. If the executing bank refuses to accept documents, the cat. outwardly do not comply with the terms of the letter of credit, he is obliged to immediately inform the recipient and the issuing bank about this, indicating the reasons for the refusal. If the issuing bank, having received the documents accepted by the executing bank, considers that they do not conform to the terms of the letter of credit on their outward appearance, it has the right to refuse to accept them and demand from the executing bank the amount paid to the recipient of funds in violation of the terms of the letter of credit, and for an uncovered letter of credit refuse reimbursement of the amounts paid.

Responsibility for violation of the terms of the letter of credit before the payer is the issuing bank, and before the issuing bank - the executing bank.

The executing bank is responsible before: the recipient in case of unreasonable refusal to pay den. funds under a letter of credit; payer in case of incorrect payment of money. funds under a letter of credit due to violation of its terms.

Closing of a letter of credit in the executing bank is carried out:

a) after expiration term of the letter of credit;

b) at the request of the recipient to refuse to use the letter of credit before the expiration. its validity period, if the possibility of such refusal is provided for by the terms of the letter of credit;

at) at the request of the payer for full or partial withdrawal of the letter of credit, if such withdrawal is possible under the terms of the letter of credit.

90. CHECK SETTLEMENTS

A check is a security containing an unconditional order drawer of a check (debtor) bank make payment of the amount specified in it check holder (creditor).

Required check details, the absence of which deprives it of its validity: the name “check”; an order to pay a certain amount of money; name of the payer and indication of the account, with cat. payment must be made; payment currency; date and place of drawing up of the check; drawer's signature.

Form check and the procedure for filling it out are determined by law and banking rules established in accordance with it.

The check could be nominal, order и bearer. A check is characterized by abstractness, public authenticity and unconditionality of payment. The check is paid at the expense of the drawer.

The personal check is not transferable. In a transferable endorsement to the payer has the force of a receipt for payment. An endorsement made by the payer is invalid. A person who is in possession of a transferable check received by endorsement is considered to be its legal owner if he bases his right on an uninterrupted series of endorsements.

Payment on a check may be guaranteed in whole or in part by avalya, cat. may be given by any person other than the payer. The aval is placed on the front side of the check or on an additional sheet by writing “considered as aval” and indicating by whom and for whom it was given. If it is not indicated for whom it was given, then it is considered that the aval was given for the drawer of the check.

The avalist is responsible in the same way as the one for whom he gave the aval. His obligation is valid even if it should be invalid for any reason other than failure to comply with the form. The avalist who paid the check acquires the rights arising from the check against the one for whom he gave the guarantee, and against those who are indebted to the latter.

Period check payment - 10 days, not counting the day of its issuance.

No, thanks from payment of the check must be certified: by a notary making a protest or drawing up an equivalent act in the manner prescribed by law; the payer's mark on the check on the refusal to pay it, indicating the date of submission of the check for payment; a mark of the collecting bank indicating the date that the check was promptly issued and not paid.

The holder of a check is obliged to notify his endorser and the drawer of non-payment within two business days following the date of the protest or an equivalent act. Each endorser must, within two working days following the day of receipt of the notice by him, bring to the attention of his endorser the notice received by him. At the same time, a notice is sent to the one who gave the aval for this person.

Each person liable for a check (drawer, endorsers, avalist) is responsible for the payer's refusal to pay jointly and severally.

The holder of a check has the right to demand from obligated persons: payment of the amount of the check; reimbursement of expenses for receiving payment (making a protest); interest for non-fulfillment of a monetary obligation under Art. 395 GK.

Statute of limitations for a check obligation - 6 months from the date of expiry of the term for presenting a check for payment.

91. COLLECTION SETTLEMENTS

When calculating for collection the bank (issuing bank) undertakes, on behalf of the client, to carry out at the expense of the client actions to receive payment and (or) acceptance of payment from the payer (clause 1 of article 874 of the Civil Code).

The issuing bank, having received documents from the client, begins the procedure collection himself or sends them to the executing bank. In the absence of any document or inconsistency of documents on external signs with the collection order, the executing bank is obliged to immediately notify the person from whom the collection order was received. In the event that these shortcomings are not eliminated, the bank has the right to return the documents without execution (clause 2 of article 875 of the Civil Code). The documents are submitted to the payer in the form in which they are received, with the exception of the marks and inscriptions of the banks required to complete the collection transaction.

Period payment of documents can be: upon presentation or on time. The received (collected) amounts must be immediately transferred by the executing bank to the disposal of the issuing bank, which is obliged to credit these amounts to the client's account. The executing bank has the right to withhold from the collected amounts the remuneration due to it and reimbursement of expenses (clause 5 of article 875 of the Civil Code).

If payment and (or) acceptance were not received, the executing bank is obliged to immediately notify the issuing bank of the reasons for non-payment or refusal of acceptance. The issuing bank is obliged to immediately inform the client about this, asking him for instructions on further actions. If such instructions are not received within the period established by banking rules, and in the absence of such instructions within a reasonable time, the executing bank has the right to return the documents to the issuing bank (Article 876 of the Civil Code).

In case of non-execution or improper execution of the client's order, the issuing bank bears to him responsibility on the grounds and in the amount provided for in Sec. 25 GK. If non-execution or improper execution of the client's order occurred due to violation of the rules for settlement transactions by the executing bank, responsibility before the client can be assigned to this bank (clause 3 of article 874 of the Civil Code).

92. CONCEPT, CHARACTERISTICS, ELEMENTS AND TYPES OF A SIMPLE PARTNERSHIP AGREEMENT

Under a simple partnership agreement (on joint activities), two or more persons (comrades) undertake to combine their contributions and act jointly without forming a legal entity for profit or to achieve another purpose not contrary to the law.

Characterization contracts: consensual, bilateral binding, reimbursable.

The contract is considered concluded from the moment when the parties have reached an agreement on all its essential conditions: on the subject, the contributions of the participants to the common cause and the obligations to conduct joint activities.

The subject agreement is the joint conduct of activities aimed at achieving a common goal for all participants. The general purpose of the parties to the agreement may be the implementation of either entrepreneurial activities or other activities that do not contradict the law.

By the parties an agreement concluded for the implementation of entrepreneurial activity can only be individual entrepreneurs and (or) commercial organizations. Non-profit organizations that carry out entrepreneurial activities in accordance with their statutory goals and to achieve these goals can also participate. Citizens who are not entrepreneurs, the state and state organizations cannot be parties to the agreement. (municipal) formations.

One and the same person may participate in several simple partnerships at the same time.

Form and order the conclusion of contracts is not specifically regulated by law, therefore, the parties should be guided by the general provisions on the form of transactions and the conclusion of contracts. At the same time, there is no difficulty in resolving the issue of the form of contracts, cat. concluded between legal entities or legal entities and citizens. They must be in writing, and in case of transfer of real estate objects as a contribution, they are subject to state registration. Agreements involving only citizens for an amount up to 10 minimum wages can be oral, and above this amount must be concluded in writing.

Period The duration of the contract can be both fixed-term and indefinite. An agreement concluded without specifying a term remains valid until the ultimate goal for which the partners have united is reached, or the obvious impossibility of achieving it is revealed, or the participants decide to terminate the activities of the partnership.

Types contracts: commercial - only individual entrepreneurs and (or) commercial organizations can be parties to such an agreement; non-commercial - participants can be any subjects of civil law.

A special type of contracts are secret partnerships, cat. have the peculiarity that their existence is not disclosed to third parties. In relations with third parties, each of the participants in such a partnership is liable with all its property for transactions, cat. he concluded on his own behalf in the common interests of his comrades. In relations between partners, obligations arising in the course of their joint activities are considered general.

93. CONTENT OF A PARTNERSHIP AGREEMENT

Responsibilities of the Contracting Parties: contribute to the common cause; work together to achieve a common goal; maintain common property in good condition; keep accounting of common property, if it is entrusted to him by his comrades; bear the costs and losses incurred as a result of joint activities in proportion to the value of his contribution to the common cause.

Participant rights: use the common property of comrades; participate in the management of common affairs; get acquainted with all the documentation for the conduct of cases; act on behalf of all partners in the conduct of common affairs, unless the agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in the agreement; make transactions with third parties on behalf of all partners in the presence of a power of attorney issued to him by the other partners; on profits received as a result of joint activities, distributed in proportion to the value of the contributions of comrades to the common cause.

Contribution of a comrade everything that he contributes to the common cause is recognized, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business ties. Partners' contributions are subject to monetary value by mutual agreement between the partners and are assumed equal at cost, unless otherwise follows from the contract or actual circumstances.

Conducting common affairs of comrades can be carried out by each of them. The agreement may also provide that the conduct of common affairs is entrusted to one or more partners. In these cases, the authority to conduct common affairs is certified by a special power of attorney signed by all other partners, or by the agreement itself.

In relations with third parties, the partners may not refer to restrictions on the rights of the partner who made the transaction to conduct the common affairs of the partners, unless they prove that at the time of the conclusion of the transaction the third person knew or should have known about the existence of such restrictions.

A partner who has made transactions on behalf of all partners in respect of which his right to manage the common affairs of partners has been limited, or who has concluded transactions in the interests of all partners on his own behalf, may demand reimbursement of expenses incurred by him at his own expense, if there were sufficient grounds to believe that these deals were necessary in the interests of all comrades. A partner who has suffered losses as a result of such transactions has the right to demand their compensation.

The creditor of the party to the agreement has the right to present a claim for the allocation of his share in the common property.

Responsibilities of comrades:

a) if the contract is not related to the implementation of entrepreneurial activities by its participants, each partner is liable for general contractual obligations with all his property in proportion to the value of his contribution to the common cause. For general obligations arising not from the contract, the partners are jointly and severally liable;

b) if the contract is related to the implementation of entrepreneurial activities by its participants, the partners are jointly and severally liable for all common obligations, regardless of the grounds for their occurrence.

94. TERMINATION OF A PARTNERSHIP AGREEMENT

Termination of a simple partnership agreement is carried out as a result of:

▪ declaring one of the partners incompetent, partially incapacitated or missing, unless the contract or subsequent agreement provides for the continuation of the agreement in relations between the other partners;

▪ declaring one of the partners insolvent (bankrupt);

▪ death of a partner or liquidation or reorganization of a legal entity participating in the agreement, unless the agreement or subsequent agreement provides for the preservation of the agreement in relations between the remaining partners or the replacement of the deceased partner (liquidated or reorganized legal entity) by his heirs (successors);

▪ refusal of any of the partners to further participate in an open-ended simple partnership agreement;

▪ termination of a simple partnership agreement, concluded with a specified period, at the request of one of the partners in relations between him and the other partners;

▪ expiration of the simple partnership agreement;

▪ allocation of a partner's share at the request of his creditor.

An application for the refusal of a partner from an open-ended simple partnership agreement must be made by him no later than three months before the expected withdrawal from the agreement (Article 1051 of the Civil Code).

A party to a simple partnership agreement concluded with an indication of a term or an indication of the purpose as a resolutive condition has the right to demand termination of the agreement in relations between itself and the other partners for a good reason with compensation to the rest of the partners for real damage caused by the termination of the agreement (Article 1052 of the Civil Code).

In the event that a simple partnership agreement has not been terminated as a result of a statement by one of the participants to refuse further participation in it or termination of the agreement at the request of one of the partners, the person whose participation in the agreement has ceased is liable to third parties for the general obligations arising during the period of his participation in the agreement, as if he had remained a participant in the simple partnership agreement (Article 1053 of the Civil Code).

Upon termination of a simple partnership agreement, things transferred to the common possession and (or) use of the partners shall be returned to the partners who provided them without compensation, unless otherwise provided by agreement of the parties.

From the moment of termination of the simple partnership agreement, its participants are jointly and severally liable for unfulfilled general obligations in relation to third parties (paragraph 2 of article 1050 of the Civil Code).

95. ACTION IN THE INTEREST OF ANOTHER WITHOUT A MANDATORY

Commitment from action in someone else's interest an extra-contractual obligation that arises by virtue of the voluntary, conscious commission by one person (gestor) actual or legal action for the apparent benefit of another person (dominus) and gives rise to the obligation of the latter to compensate the gestor for the necessary expenses or damage suffered by him, and sometimes to pay a commensurate reward.

In order for actions in someone else's interest without an order to serve as a basis for the emergence of an obligation, they must meet the requirements provided for in paragraph 1 of Art. 980 GK:

a) a person (gestor) acting in someone else's interest should not have special powers for that, expressed in any agreement, power of attorney or in any other way (for example, written or oral instructions of the person concerned (dominus);

b) actions should have a specific focus:

▪ carried out in order to prevent harm to the person (providing medical care, etc.) or property (repairing a roof blown off by the wind in the absence of the owner of the house, etc.) of the person concerned;

▪ fulfilling his obligations (to pay utility bills for a temporarily absent neighbor, etc.) or for other non-illegal purposes (keeping pets whose owner is in the hospital, etc.);

c) actions must be performed based on the obvious benefit or benefit of the person concerned, his actual or probable intentions.

The subject obligation is a specific action that is performed by a person not in his own interest. The subject of the obligation is both legal (conclusion of transactions, performance of duties) and actual (transportation of someone else's property to a safe place in case of natural disasters) actions.

By the parties obligation is a person who performs an action in someone else's interest (gestor), and a person in whose interests such an action is performed (dominus). Both in the role of a gestor and in the role of a dominus, any legal and natural persons can act. State and municipal bodies, for which the commission of actions in the interests of other persons is one of the goals of their activities, cannot be recognized as parties to the obligation under consideration (paragraph 2 of article 980 of the Civil Code).

96. RIGHTS AND OBLIGATIONS OF THE PARTIES WHEN ACTING IN THE INTEREST OF ANOTHER WITHOUT A REQUEST

Gestor's Responsibilities:

▪ notify the dominus at the first real opportunity about the actions being performed for him (clause 1 of article 981 of the Civil Code). Such notification is not required only in cases where actions are taken directly in the presence of a dominus (clause 2 of Article 981 of the Civil Code);

▪ wait for a reasonable period of time for the decision of the dominus to approve or disapprove of the actions taken, unless such a wait entails serious damage to the dominus (clause 1 of Article 981 of the Civil Code). From the moment the gestor receives the approval of the dominus, contractual relations arise between them (Article 982 of the Civil Code). If the dominus considers the actions of the gestor inappropriate and useless, he expresses his disagreement. In this case, the gestor is obliged to cease its activities. Actions taken by the gestor after it became known about their disapproval do not give rise to obligations for the dominus either in relation to the gestor or in relation to third parties (clause 1 of Article 983 of the Civil Code), i.e. in this case, expenses incurred by the gestor , are not subject to compensation by Dominus;

▪ submit a report to the dominus indicating the income received and expenses incurred and other losses (Article 989 of the Civil Code).

Gestor has the right to:

▪ compensation for expenses and actual losses incurred as a result of actions in the interest of the dominant. This right is retained even in the case where actions in the interest of the dominant did not lead to the intended result (clause 1 of Article 984 of the Civil Code). Expenses and other losses of the gestor incurred in connection with actions taken after receiving approval from the dominus are reimbursed according to the rules on the contract of the corresponding type (clause 2 of Article 984 of the Civil Code);

▪ remuneration for actions in the interests of the dominant (Article 985 of the Civil Code).

Dominus must:

▪ compensate the gestor for the necessary expenses and other damage incurred by him (clause 1 of Article 984 of the Civil Code). Disapproval of the actions taken by the gestor removes the corresponding obligation from the dominus only in relation to actions that will be committed against his will in the future;

▪ pay the gestor remuneration for his actions if they led to a positive result and if such a right is provided for by law, agreement or business customs (Article 985 of the Civil Code). If a transaction is made in someone else's interest, the rights and obligations under it are transferred to the dominant only if he approves this transaction (Article 986 of the Civil Code).

Relations for compensation for harm caused by actions in the interest of the dominus to the last or third person are governed by the rules provided for in Ch. 59 of the Civil Code (Article 988 of the Civil Code).

97. PUBLIC PROMISE OF REWARD

Public promise of reward - a public promise of monetary reward for performing a lawful action specified in the announcement, obliging the person who announced the reward to pay the promised reward to any person who committed the corresponding lawful action (clause 1 of Article 1005 of the Civil Code).

By the parties relations arising from the public promise of a reward can be any natural or legal person.

Form announcement of a public promise of a reward can be any.

The public promise of the reward is unilateral deal and puts the one who promised the reward in the position of a debtor, and anyone who responds to this promise - in the position of a creditor.

Duty to pay the reward to the debtor arises on the condition that the promise of the reward makes it possible to establish by whom it was promised (clause 2 of article 1055 of the Civil Code), and regardless of whether the corresponding action was performed in connection with the announcement made or independently of it (clause 4 of article 1055 of the Civil Code) XNUMX GK).

The person who responded to the promise (creditor), right require a written confirmation of the promise and bears the risk of the consequences of not presenting this demand, if it turns out that in reality the announcement of the reward was not made by the person indicated in it (paragraph 2 of article 1055 of the Civil Code).

If the amount of the reward is not indicated in the public promise, it is determined by agreement with the person who promised the reward, and in the event of a dispute - by the court (clause 3 of article 1055 of the Civil Code).

In cases where the action specified in the announcement was performed by several persons, the right to receive the reward is acquired by the one who performed the action first.

If the action specified in the announcement is committed by two or more persons and it is impossible to determine which of them performed the corresponding action first, as well as if the action is committed by two or more persons at the same time, the reward is divided between them equally or as otherwise provided by the agreement between them. size (clause 5 of article 1055 of the Civil Code).

Compliance of the performed action with the requirements contained in the announcement is determined by the person who publicly promised the reward, and in the event of a dispute - by the court (clause 6 of article 1055 of the Civil Code).

A person who has publicly announced the payment of an award has the right to cancel this public promise. In this case, the refusal must be expressed in the same form in which the promise of the reward was made.

Grounds, if any of which this promise cannot be waived. (Article 1056 of the Civil Code):

▪ the advertisement provides for or implies the inadmissibility of refusal:

▪ the announcement indicates the period for performing the action for which the reward is established;

▪ the action specified in the announcement was performed by some person by the time the refusal was announced. The cancellation of a public promise of a reward does not exempt the person who announced the reward from reimbursing the responding persons for the expenses incurred by them in connection with the commission of the action specified in the announcement, within the limits of the reward specified in the announcement (clause 2 of Article 1056 of the Civil Code).

98. PUBLIC COMPETITION

A public competition is a type of public promise of an award. A person who has publicly announced the payment of a monetary reward or the issuance of another award (about the payment of an award) for the best performance of work or the achievement of other results (the organizer), must pay (give out) a conditional award to the one who, in accordance with the terms of the competition, is recognized as its winner. A public competition must be aimed at achieving some socially useful goals.

Contest organizers can be any legal and (or) individuals, as well as state. bodies and bodies of local self-government.

Circle of participants public competition is also not limited.

Types of public competition: open - when the proposal of the organizer of the competition to take part in it is addressed to everyone by an announcement in the press or other media; closed - when an offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

Form announcement of a public competition can be any.

Conditions, cat. must contain a competition announcement, are divided into mandatory and optional.

Mandatory conditions include: information about the essence of the assignment (subject of the competition); deadline for completing the task; the procedure for presenting works or other achievements; place of presentation of the work; criterion, procedure and term for comparative evaluation of works; amount of remuneration (premiums); the procedure and deadline for the announcement of the results of the competition.

Optional conditions are specified at the free discretion of the organizer of the competition, and their number and nature depend on the characteristics of the competition.

Change of conditions and cancellation of the public competition: the person who announced a public competition has the right to change its conditions or cancel the competition only during the first half of the period established for the submission of works; notification of changes in the conditions or cancellation of the competition must be made in the same way in which the competition was announced; the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the conditions of the competition and its cancellation; the person who announced the competition shall be released from the obligation to reimburse expenses if he proves that the said work was performed not in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

The right to receive an award (award) arises from the participant of the competition only if his work is recognized as the best. If the results are achieved in the work performed jointly by two or more persons, the reward is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the procedure for distributing the award is determined by the court.

Competitive works that were not awarded an award, the organizer of the competition is obliged to return to the participants immediately after the announcement of the results. Failure to fulfill this obligation gives the contestants the right to demand the return of their works, and in case of their loss or damage - compensation for damages.

99. HOLDING GAMES AND BETTING

Game - this is an obligation by virtue of which the organizers promise one of the participants to receive a certain winnings, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants in the games. In the game, participants have the opportunity to influence its outcome.

Bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them. The parties only note its onset.

Requirements of citizens and legal entities related to the organization of games and betting with participation in them, not subject to judicial protection (Article 1062 of the Civil Code), with the exception of the claims of persons who took part in games or bets under the influence of deceit, violence, threats or a malicious agreement between their representative and the organizer of games or bets.

Requirements related to participation in transactions that provide for the obligation of the parties to pay sums of money depending on changes in prices for goods, securities, inflation, etc., subject to judicial protection, if at least one of the parties to the transaction is a legal entity. the person who received the license and the transaction was concluded on the exchange.

Lotteries, sweepstakes and other games based on risk, conducted by the state, municipalities or on their behalf, have special regulations.

Lottery - a mass game, during which the lottery organizer conducts a drawing of the lottery prize pool among the lottery participants - owners of lottery tickets. At the same time, winning any lottery ticket does not depend on the will and actions of all subjects of lottery activity, is a matter of chance and cannot be specially arranged by anyone.

Tote - a game in which the participant makes a forecast (bet) on a possible variant of a gaming situation, where the winnings depend on the partial or complete coincidence of the forecast with the resulting consequences, documented by facts.

System (electronic) game - a game in which bets are fixed and participants’ forecasts are carried out using electronic devices.

Persons who, in accordance with the terms of the lottery, totalizator or other games, are recognized as winners, must be paid by the organizer of the games the winnings in the amount, form (in cash or in kind) provided for by the terms of the games, and if the term is not specified in these conditions, not later than ten days from the date of determining the results of the games. In case of non-fulfillment of these conditions by the organizer of games, the participant has the right to demand from the organizer of games the payment of winnings, as well as compensation for losses caused by violation of the contract by the organizer (clauses 4 and 5 of article 1063 of the Civil Code).

100. GENERAL PROVISIONS ON TORT LIABILITIES (DUE TO INJURY)

There is no legal definition of this type of obligation. It should be defined as such an obligation, according to cat. one side (victim) has the right to demand according to the law from the other party (responsible for causing harm) compensation for harm or suspension (cessation) of harmful activities that create a risk of causing harm in the future. Such obligations are called tortious.

Characterization tort obligations: non-contractual (generated due to the occurrence of a fact provided for by law), unilateral (the tortfeasor has only obligations, and the victim only rights), can be alternative (the victim in some cases has the right to "choose" the responsible person or the form of compensation for harm - in in kind or in the form of monetary compensation).

The object is committing activity either to compensate for harm, or to suspend the occurrence of possible harmful consequences.

The subject is the form in the cat. Compensation for harm is expressed: it can be presented either in kind or in the form of compensation for losses incurred.

By the parties are:

a) victim - a person who has already suffered losses as a result of a harmful action or who may suffer losses as a result of such actions;

b) the person responsible for causing the harm. They can be either the direct cause of harm, or a person who did not cause harm, but is “appointed” by law as a defendant for causing it (for example, their parents are responsible for harm caused by minors). Any subjects of civil legal relations can act as parties.

The victim has the right to demand: compensation for harm in kind; compensation for real losses resulting from the infliction of harm; suspension of activities that threaten harm; compensation for moral damage.

Such claims can be made both in the case of one person, and several persons, as well as society as a whole.

Responsibilities of the person responsible for causing harm: compensate the injured person in the form and amount required by him.

The basis for the emergence of tort obligations are: the onset of real harm; the possibility of harm.

Types of tortious obligations:

a) from causing harm by legal entities, including state. bodies, bodies of local self-government;

b) from causing harm by minors and incompetent persons;

at) from causing harm by a source of increased danger;

d) from causing harm to the life or health of a citizen;

d) from causing harm by defects in goods, works or services.

The right to receive compensation for harm arises only if the liability of the tortfeasor arises. The rules on liability for tort obligations contain general provisions for all types of obligations, as well as provisions for certain types of these obligations.

101. GENERAL PROVISIONS OF THE RULES ON LIABILITY FOR TORT OBLIGATIONS

Responsibility - a legal relationship expressed in the form of adverse consequences of a property and non-property nature for the offender (debtor), ensured by state coercion and accompanied by condemnation of the offense and its subject.

Liability for tort obligations arises when the simultaneous presence of all the following conditions:

a) in case of unlawful action or inaction of the person responsible for the harm caused to them;

b) in the presence of harm - adverse consequences in the form of a violation of the personal or property benefits of the victim. It can be property and non-property (moral). The presence of harm is proved by the victims;

at) if there is a causal relationship between the unlawful behavior of the debtor and the harm that occurred to the victim;

d) if the debtor is at fault. Guilt is understood as the mental attitude of a person to the consequences of his illegal activity. It can be in two forms: intent or negligence. The guilt of the debtor in tort obligations is presumed. To avoid liability, he must prove the absence of his guilt.

General provisions on liability for tortious obligations:

a) the harm caused is subject to compensation in full (Article 1064 of the Civil Code);

b) damage caused by lawful actions is also subject to compensation, if this is stated in the law (Article 1067 of the Civil Code - in conditions of extreme necessity);

at) harm is subject to compensation even in the absence of guilt, if this is stated in the law (paragraph 2 of article 1064 of the Civil Code);

d) harm caused at the request or with the consent of the victim is not subject to compensation, if the actions of the tortfeasor do not violate the moral principles of society (part 2, clause 3, article 1064 of the Civil Code);

d) actions committed in conditions of extreme necessity, causing harm, entail liability for their tortfeasor. However, the court may impose the obligation to compensate him on the person in whose interests the tortfeasor acted. He can release from compensation for harm, in whole or in part, both the tortfeasor himself and the person in whose interests he acted (Article 1067 of the Civil Code);

f) damage caused in a state of necessary defense is not subject to compensation if its limits are not exceeded (Article 1066 of the Civil Code);

g) compensation for property damage can be in two forms: in kind or in monetary terms for the damages caused, and non-property - only the recovery of the damage incurred;

with) persons who jointly caused harm are jointly and severally liable to the victim (Article 1080 of the Civil Code). However, at the request of the victim, the court has the right to determine the liability of the tortfeasors in shares;

and) a person who has compensated for the harm caused by another subject has the right of recourse to this subject in the amount of the compensation paid (Article 1081 of the Civil Code);

to) compensation for non-pecuniary damage is carried out according to the rules of Art. 151 and 1099 of the Civil Code.

102. FEATURES OF LIABILITY OF LEGAL ENTITIES FOR TORT OBLIGATIONS

Responsibility of legal entities:

a) a legal entity compensates for the harm caused by its employee (a citizen performing work on the basis of an employment contract, as well as on the basis of a civil law contract) in the performance of labor (official, official) duties (paragraph 1 of article 1068 of the Civil Code);

b) economic partnerships and production cooperatives compensate for the harm caused by their participants (members) in the course of the latter's carrying out any activity of these organizations (paragraph 2 of article 1068 of the Civil Code);

c) state bodies, local self-government bodies, as well as their officials, are liable for harm caused to a citizen or legal entity as a result of their illegal actions or inaction, including as a result of their issuing an act that does not comply with the law. Harm is compensated at the expense of the relevant treasury (Article 1069 of the Civil Code);

d) harm caused to a citizen by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court is compensated at the expense of the treasury of the Russian Federation or its constituent entity or municipality in full, regardless of the fault of officials of these bodies (clause 1 of article 1070 of the Civil Code) in case of illegal conviction or prosecution or use as a preventive measure of detention or recognizance not to leave, or unlawful administrative liability in the form of admin. arrest, as well as harm caused to a legal entity as a result of illegal attraction to the admin. responsibility in the form of admin. suspension of activities. If the harm is caused by the listed bodies, but not as a result of the listed actions, the harm is compensated in accordance with Art. 1069 of the Civil Code (clause 2 of article 1070 of the Civil Code);

e) harm caused in the course of administration of justice is compensated only if the guilt of the judge is established by a court verdict (paragraph 2, clause 2, article 1070 of the Civil Code);

f) in cases where damage is subject to compensation at the expense of the treasury of the Russian Federation and its constituent entities or a municipality, the relevant financial authorities act on behalf of the treasury (Article 1071 of the Civil Code);

g) a legal entity that has insured its liability in the form of voluntary or compulsory insurance in favor of the victim, in the event that the insurance indemnity turned out to be insufficient to fully compensate for the harm caused, compensates for the difference between the insurance indemnity and the actual amount of damage. The same provision applies to a citizen (Article 1072 of the Civil Code).

103. LIABILITY FOR TORT OBLIGATIONS OF MINORS, PERSONS LIMITED IN CAPABILITY AND INcapacitated

1. For damage caused to minors under 14 years of age, their legal representatives are responsible unless they prove that the damage was not their fault; if such a person at the time of causing harm was under the supervision of an organization for orphans and children left without parental care, or was temporarily under the supervision of an educational, medical or other organization, or a person exercising supervision under a contract, the relevant organizations bear responsibility for him or faces.

2. The obligation of legal representatives to compensate for damage caused by the persons specified in paragraph 1 does not cease upon reaching the age of majority or receiving property sufficient to compensate for the damage, except for: cases where legal representatives have died or do not have sufficient funds: compensation for harm can be fully assigned by the court to the person causing the harm.

3. Minors from 14 to 18 years old are responsible for the harm caused independently. If such persons do not have income or property sufficient to compensate for the damage, the damage must be compensated by their legal representatives, unless the latter prove that the damage did not arise through their fault. If such persons at the time of the harm were under the supervision of an organization for orphans and children left without parental care, the relevant organizations bear responsibility for them.

4. The obligation of legal representatives to compensate for damage caused to minors from 14 to 18 years of age terminates upon their reaching the age of majority, the acquisition of income or property, or their acquisition of full legal capacity before adulthood. Responsibility may also be imposed on a parent deprived of parental rights if the child’s harmful behavior was a consequence of improper performance of parental responsibilities, and within three years after such deprivation.

5. Damage caused by a citizen declared incompetent is compensated by his guardian or the organization supervising him, unless they prove that the harm arose not through their fault. This obligation does not cease if the harm-cauter is recognized as legally competent. However, if the guardian has died or does not have sufficient funds to compensate for the harm caused to the life or health of the victim, and the harm-doer himself has such means, the court has the right to assign compensation for harm to the harm-doer himself.

6. Harm caused by a citizen with limited legal capacity is compensated by the causer of the harm.

7. A capable citizen or a minor from 14 to 18 years of age who caused harm in a state where he could not understand the meaning of his actions is not liable for the harm caused. However, if harm is caused to the life or health of the victim, the court may impose compensation for the harm on the causer, taking into account his property status. The causer of harm is not exempt from liability if he himself brought himself into such a state. If a lack of understanding of the meaning of one’s actions was the result of a mental disorder, the obligation to compensate for damage may be imposed by the court on his relatives if they knew about such a mental disorder of the harm-doer, but did not take measures to recognize him as incompetent.

104. FEATURES OF RESPONSIBILITY OF PERSONS OWNING A SOURCE OF INCREASED DANGER IN THE EVENT OF HARM

A source of increased danger is understood as vehicles, mechanisms, high-voltage electrical energy, atomic energy, explosives, highly effective poisons, etc. (clause 1 of article 1079 of the Civil Code).

The owner of a source of increased danger is obliged to compensate for the harm caused, unless he proves that it arose as a result of force majeure or the intent of the victim (paragraph 1 of article 1079 of the Civil Code).

The owner of a source of increased danger may be released by the court from liability in whole or in part in the following cases:

▪ gross negligence of the victim himself (clause 2 of Article 1083 of the Civil Code);

▪ property insolvency of the tortfeasor, except for the case when the harm was caused by him intentionally (clause 3 of Article 1083 of the Civil Code);

▪ if he proves that the source was removed from his possession as a result of illegal actions of other persons. These persons will be responsible (clause 2 of Article 1079). Owners of sources of increased danger who caused harm to third parties as a result of the latter’s interaction are jointly liable (clause 3 of Article 1079 of the Civil Code).

Responsibility for causing harm can be assigned both to its owner and to the person who unlawfully took possession of it, if the owner of the source of increased danger is guilty of illegally seizing it (for example, the owner of the car left the car door open with the ignition keys for a short period of his absence). ) (clause 2 of article 1079 of the Civil Code).

The harm caused to the owners of sources of increased danger as a result of the interaction of these sources is compensated on a general basis - Art. 1064 of the Civil Code (clause 3 of article 1079 of the Civil Code).

The fault of the victim is not taken into account when reimbursing additional expenses - paragraph 1 of Art. 1085 of the Civil Code, in case of compensation for harm in connection with the death of the breadwinner - Art. 1089 of the Civil Code, as well as for reimbursement of burial expenses - Art. 1094 of the Civil Code (paragraph 3 of clause 2 of article 1083 of the Civil Code).

105. FEATURES OF COMPENSATION FOR HARM CAUSED TO THE LIFE OR HEALTH OF A CITIZEN, AND HARM CAUSED BY DEFICIENCY OF GOODS, WORKS OR SERVICES

Features of compensation for harm to life and health:

a) in the performance of contractual obligations, the performance of duties of military service or police service, compensation for harm to life or health is carried out according to the rules of Ch. 59 of the Civil Code, unless the law or the contract provides for a higher amount of liability;

b) damage to health is compensated by the lost earnings of the injured, as well as compensation for additional expenses incurred in connection with this (prosthetics, sanatorium treatment, etc.);

at) pensions and allowances are not counted towards compensation for harm; the amount of compensation for harm may be increased by law or contract;

d) the amount of compensation for lost earnings is determined as a percentage of the average monthly. earnings before injury. The composition of the lost earnings includes all types of remuneration of the victim for labor and for gr. - legal contracts in amounts accrued before taxes. The average monthly earnings are calculated by dividing the total amount of the victim's earnings for 12 months. work prior to the damage to health, by 12. Damage to the health of a minor (under 14 years of age) is compensated for by compensation for the costs incurred for its restoration. Minors who have lost their ability to work as a result of harm are also compensated for their loss in the amount based on the subsistence minimum in the Russian Federation;

d) persons entitled to compensation for harm in connection with the death of the breadwinner, the harm is compensated in the amount of that share of the earnings of the deceased, cat. they received during his lifetime. The amount of compensation is not subject to further recalculation, except for the cases specified in the law. The amount of compensation may be increased by law or contract. Burial expenses are reimbursed by the person responsible for the damage to the person who incurred these expenses, cat. is an independent benefit;

f) compensation for harm caused to life or health is made monthly and is subject to indexation.

Features of compensation for damage caused by defects in goods, works or services:

a) subject to compensation by the seller or manufacturer (at the choice of the victim), the person who performed the work (service), regardless of his fault and whether the victim was in a contractual relationship with him or not. Damage caused due to unreliable, insufficient information, as well as in case of failure to provide the latter about the work (service) to the customer, is subject to compensation by the performer of the work (service);

b) decree. the rules apply only in cases of the acquisition of goods and the performance of work (services) in the consumer. purposes;

at) damage is subject to compensation only if it occurred during the established shelf life or service life of the goods or work (service), and if they are not established - within 10 years from the date of production of the goods (service);

d) the seller (manufacturer) of the goods and the performer of the work (service) shall be released from liability if he proves that the harm was caused by force majeure or violation by the consumer of the rules for using or storing the goods or the result of the work (service).

106. GENERAL PROVISIONS ON LIABILITIES ARISING FROM UNFAIR ENRICHMENT

Obligations arising as a result of unjust enrichment are an independent type of obligations, the scope of which is determined both by the features of the grounds for their occurrence and the specifics of their content.

Concept of obligation from unjust enrichment follows from paragraph 1 of Art. 1102 of the Civil Code: a person who, without statutory, other legal acts or a transaction, has acquired or saved property (acquirer) at the expense of another person (victim), is obliged to return to the latter the property acquired or saved unjustifiably (unjust enrichment).

By the parties obligations from unjust enrichment are the acquirer (debtor) and the victim (creditor). Citizens, legal entities and other subjects of civil law can act as debtors and creditors.

The subject obligation from unjust enrichment is the action of the unjustly enriched (debtor) to return to the victim (creditor) unjustly acquired or saved.

The object liabilities from unjust enrichment is property. Term "property" includes:

▪ material objects, which in this obligation must be determined by generic characteristics, since the demand for the return of an individually defined item is possible only with the help of a vindication claim;

▪ property rights in accordance with Art. 1106 Civil Code.

Types of obligations from unjust enrichment:

▪ arising as a result acquisitions property (the property of the acquirer increases, and the property of the victim decreases);

▪ arising as a result savings property (preservation of property on the side of the acquirer and reduction or non-increase of property on the side of the victim).

Conditions for the emergence of obligations from unjust enrichment:

▪ the enrichment of one person must occur at the expense of another;

▪ enrichment must occur due to the lack of legal grounds for it.

107. GROUNDS FOR LIABILITIES FROM UNFAIR ENRICHMENT

Grounds for the emergence of obligations from unjust enrichment:

▪ acquisition of property by one person at the expense of another person (clause 1 of Article 1102 of the Civil Code);

▪ saving of one’s property by one person at the expense of the loss of property by another person (clause 1 of Article 1102 of the Civil Code);

▪ temporary use of someone else's property without the intention of acquiring it (clause 2 of Article 1105 of the Civil Code);

▪ acquisition of rights belonging to another person by way of assignment of claims or otherwise on the basis of a non-existent or invalid obligation (Article 1106 of the Civil Code).

Based on the principle on which Art. 1102 of the Civil Code (no one has the right to enrich himself at someone else's expense without a basis established by law or a transaction), the groundlessness of enrichment makes it objectively illegal. However, in many cases it would be wrong to conclude that the act that resulted in the unjust enrichment was wrongful because it could be:

▪ both as a consequence of human behavior and occur under the influence of natural forces, animal actions, etc.;

▪ as a result of the actions of third parties (for example, when a parcel was erroneously delivered to the namesake of the actual addressee);

▪ the result of the behavior of the victim himself, which will lead to losses in his property and corresponding savings in the property of the enriched person;

▪ a consequence of the behavior of the person who enriched himself, since it is not always reproachable, especially when unjust enrichment becomes the result of the disappearance of the initially completely legal basis for acquiring property. Thus, illegality of conduct is neither a mandatory nor even a characteristic condition of unjust enrichment. Since otherwise is not established by the Civil Code of the Russian Federation, other laws or other legal acts and does not follow from existing relations, the rules provided for in Chapter. 60 of the Civil Code, are also subject to application to the requirements (Article 1103 of the Civil Code):

a) on the return of the executed under an invalid transaction;

b) on the recovery of property by the owner from someone else's illegal possession;

c) one party in an obligation to the other to return what was performed in connection with this obligation;

d) on compensation for harm, including that caused by the dishonest behavior of the enriched person.

108. POWERS OF PARTIES TO OBLIGATIONS FROM UNFAIR ENRICHMENT

Buyer Responsibilities:

▪ return unjustifiably received property in kind (clause 1 of Article 1104 of the Civil Code);

▪ reimburse the actual value of the property at the time of its acquisition if it is impossible to return the property in kind (clause 1 of Article 1105 of the Civil Code);

▪ compensate the victim for losses in the event of a change in the value of the property, if he did not compensate them immediately after learning about the unjustification of his enrichment (clause 2 of Article 1104 of the Civil Code);

▪ pay interest, if the enrichment had a monetary value, for the illegal use of other people’s money (Article 395 of the Civil Code) from the time when he learned or should have learned about the unjustification of receiving or saving money (clause 2 of Article 1107 of the Civil Code);

▪ to compensate the victim for what he saved as a result of unjust temporary use of someone else’s property without the intention of acquiring it, paying for it the price that existed at the time when the use ended and in the place where it took place (clause 2 of Article 1105 of the Civil Code);

▪ restore the previous situation, including the return of documents certifying the right that belonged to the victim transferred to him by way of assignment of a claim or otherwise on the basis of an invalid obligation (Article 1106 of the Civil Code);

▪ return all income from unjustly saved property from the moment he learned about his unjust enrichment (clause 1 of Article 1107 of the Civil Code).

Buyer's rights: demand compensation from the victim for the necessary expenses incurred for the maintenance and preservation of property from the time from which he is obliged to compensate income, taking into account the benefits received by him. The right to reimbursement of expenses is lost if the acquirer intentionally withheld property subject to return (Article 1108 of the Civil Code).

Victim's duty: reimburse the acquirer for the necessary expenses incurred by him for the maintenance and preservation of property from the time from which he has the right to claim income from the acquirer, offsetting the benefits received by the acquirer. The law exempts the victim from the performance of this obligation when the acquirer deliberately withheld property subject to return (Article 1108 of the Civil Code).

Victim's right: demand the return of unjustifiably received or saved property (Article 1104 of the Civil Code) or reimbursement of its value (Article 1105 of the Civil Code).

109. LIABILITY OF PARTIES TO OBLIGATIONS FROM UNFAIR ENRICHMENT

Responsibility of the parties obligations from unjust enrichment in the Civil Code of the Russian Federation is presented in the form of obligations of the acquirer and the victim. In addition, in paragraph 2 of Art. 1104 of the Civil Code specifically refers to the liability of the acquirer, while the liability of the acquirer depends on the presence or absence of fault and the moment when the deterioration of the unjustly acquired or saved property occurred.

The acquirer is responsible to the victim for:

▪ shortcomings, including accidental shortages or deterioration of property that occurred after he learned of the unjustified enrichment, i.e.

regardless of his guilt;

▪ defects and deterioration of property that arose before the moment when the acquirer learned about the unjustified enrichment, he is responsible only for intent and gross negligence, i.e.

if you are at fault.

In the event of unjust enrichment, the acquirer must perform one or more of the following actions in different combinations:

▪ return property in kind;

▪ reimburse its cost;

▪ return or compensate for lost income. However, there are cases when the law exempts the acquirer from such an obligation.

Non-refundable as unjust enrichment (Article 1109 of the Civil Code):

a) property transferred in pursuance of an obligation before the due date for performance, unless the obligation provides otherwise;

b) property transferred in fulfillment of an obligation after the expiration of the limitation period;

c) wages and payments equivalent to it, pensions, allowances, scholarships, compensation for harm caused to life or health, alimony and other amounts of money provided to a citizen as a means of subsistence, in the absence of dishonesty on his part and a counting error;

d) amounts of money and other property provided in pursuance of a non-existent obligation, if the acquirer proves that the person demanding the return of the property knew about the absence of the obligation or provided the property for charity purposes.

110. CONCEPT, CHARACTERISTICS AND ELEMENTS OF CONTRACTS FOR THE PERFORMANCE OF SCIENTIFIC RESEARCH (R&D), EXPERIMENTAL DESIGN (ROD) AND TECHNOLOGICAL WORKS

On contract for the performance of research work the contractor undertakes to conduct scientific research determined by the customer’s technical assignment, and according to contract for the performance of experimental design and technological work - develop a sample of a new product, design documentation for it or a new technology, and the customer undertakes to accept the work and pay for it (clause 1 of article 769 of the Civil Code).

Characterization these agreements: consensual, bilaterally binding, reimbursable.

The subject each of the contracts is:

▪ contracts for research work - the research itself, i.e. the work as such;

▪ agreement for the implementation of design and development work - the result of the work, i.e. a sample of a product, documentation for a product or technology.

By the parties of these contracts are the contractor and the customer. Both individuals and legal entities with special knowledge in a particular field of science and technology can act as executors. Any subjects of civil law, including the Russian Federation and its subjects, can act as customers.

Form contracts - written.

Period These contracts can be of three types:

▪ validity period of the contract itself (work completion date);

▪ start date for the work;

▪ deadlines for completing individual stages of work, which are usually specified in a calendar plan or other similar document. As a rule, the contractor is given the right to complete work ahead of schedule, the results of which must be accepted by the customer.

Price of both contracts is established by agreement of the parties and includes compensation for the costs of the contractor (depreciation of equipment, consumption of materials, etc.), as well as the wages themselves. Most often, the price of the work is determined by drawing up an estimate. The estimate is prepared by the contractor and, from the moment it is confirmed by the customer, becomes an integral part of the contract. The price of the work (estimate) can be approximate or fixed (Article 709 of the Civil Code). Payment can be made upon completion of individual stages of work or upon completion of all works.

111. CONTENT OF THE CONTRACT FOR THE PERFORMANCE OF SCIENTIFIC RESEARCH (R&D), EXPERIMENTAL DESIGN (ROD) AND TECHNOLOGICAL WORKS

Performer Responsibilities: perform work in accordance with the terms of reference agreed with the customer and transfer the results to the customer within the time period stipulated by the contract; agree with the customer on the need to use protected results of intellectual activity owned by third parties and the acquisition of rights to use them; on their own and at their own expense to eliminate the shortcomings admitted through his fault in the work performed, the cat. may result in deviations from the technical and economic parameters provided for in the terms of reference or in the contract; immediately inform the customer about the discovered impossibility to obtain the expected results or about the inexpediency of continuing the work; guarantee to the customer the transfer of the results obtained under the contract that do not violate the exclusive rights of other persons; conduct scientific research (under a contract for the implementation of research) personally.

Performer's rights: involve third parties in the execution of the contract for the performance of R&D only with the consent of the customer; involve third parties in the execution of the contract for the performance of R & D, unless otherwise provided by the contract.

Customer Responsibilities: transfer to the performer the information necessary for the performance of the work; accept the results of the work performed and pay for them; issue the terms of reference to the contractor and agree with him the program (technical and economic parameters) or the subject of work, if the contract provides for this obligation of the customer; pay the cost of work carried out before revealing the impossibility of obtaining the results provided for by the contract for the performance of research and development, due to circumstances beyond the control of the contractor; pay the costs incurred by the contractor, if in the course of performing R & D and technological work, it is discovered that it is impossible or inexpedient to continue the work that has arisen through no fault of the contractor.

Duties of the parties: ensure the confidentiality of information relating to the subject of the contract and the results obtained, the amount of information is determined in the contract; publish information received during the performance of work, recognized as confidential, only with the consent of the other party.

Parties' rights: use the results of the work within the limits and on the terms stipulated by the contract; use the results of work obtained by the contractor for their own needs, unless otherwise provided by the contract. The rights of the parties to the results of work, which are granted legal protection as the results of intellectual activity, are determined in accordance with Part 4 of the Civil Code of the Russian Federation.

Responsibility of the performer occurs in case of violation of the contract by him, unless he proves that such a violation occurred through no fault of his; limited in scope, since, unless otherwise expressly provided by the contract, he must compensate only for real damage to property, but not for lost profits by the customer.

The responsibility of the customer comes on the basis of the general rules of the Civil Code of the Russian Federation on liability for non-performance or improper performance of an obligation.

112. CONCEPT AND CONTENT OF KNOW-HOW (LICENSE AGREEMENT ON GRANTING THE RIGHT TO USE A PRODUCTION SECRET)

Know-xay - information of any nature intended for the professional activities of citizens and legal entities (technical, economic, organizational and others), to which third parties do not have free access legally and the owner of which takes measures to protect their confidentiality.

Know-how for Russian legislation is a new object of law. Regulated by part 4 of the Civil Code of the Russian Federation.

When an exclusive right to know-how arises and is exercised, its registration or compliance with any other formalities is not required.

The author of the exclusive right to know-how has the right to transfer the exclusive right to know-how to another person under an agreement or to allow its use to another person under a license agreement (issue a license).

The subject such an agreement is know-how, therefore an essential condition of such an agreement is a description of the transferred know-how. In the case of a license, the exclusive right to know-how is retained by the right holder.

By the parties of the license agreement are the licensor (the owner of the exclusive right to know-how) and the licensee (the person having the right to use the know-how).

Form the contract must be in writing.

Both the licensor and the licensee are obliged to keep the know-how confidential throughout the term of the agreement, and the licensee - even after the expiration of the know-how license agreement.

Using know-how is its use for industrial, technical, economic, organizational and other purposes, in particular:

▪ in manufactured products;

▪ during the manufacture of a product;

▪ when implementing economic and organizational decisions.

A person who illegally received information about know-how is not entitled to use it. When disclosing or using this information, the infringer is obliged to compensate for the losses caused to the right holder. The same responsibility is imposed on employees who divulged information about know-how contrary to an employment contract, and on contractors who did so contrary to a civil law contract.

Illegal disclosure or use of information about know-how without the consent of its owner, committed out of mercenary or other personal interest and causing large damage, entails criminal liability (Article 183 of the Criminal Code).

113. LICENSE AGREEMENT

On license agreement the author or other owner of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) provides or undertakes to provide to another party (to the licensee) the right to use such result or means within the limits established by the contract.

The subject contract is the right to use the result of intellectual activity or means of individualization. Regulated by part 4 of the Civil Code of the Russian Federation.

Form contracts are in writing. The contract is subject to registration with the Patent Office and without registration is considered invalid.

Period the term of the contract cannot exceed the term of the exclusive right to the result of intellectual activity or means of individualization.

Types of licenses: simple (non-exclusive) - provides for granting the licensee the right to use with the licensor retaining the right to use and the right to issue licenses to other persons; exceptional - provides for granting the licensee the right to use, preserving the right of use to the licensor, but without preserving the right to issue licenses to other persons; full - provides for granting the licensee the right to use without retaining the licensor’s right to use and the right to issue licenses to other persons; compulsory - when the court, at the request of an interested person, obliges the copyright holder to issue such a person, under conditions determined by the court, a license to use the protected result of creative activity.

Mutual rights and obligations the licensee and the licensor are determined by mutual agreement on the basis of the contract, as well as the general provisions of the civil law on transactions.

Terms of the license agreement: subject of the contract; type of license (amount of transferred rights); the territory and duration of the agreement; the amount of remuneration; rights and obligations of the parties and other conditions.

The patent owner has the right to file an application with the Patent Office for granting any person the right to use an invention, utility model or industrial design. (open license). The patent office publishes the open license at the expense of the patent owner. The open license is valid for one year from the date of publication.

The Patent Office carries out the state. registration of a patent license agreement under the terms of a simple (non-exclusive) license based on a written application of a person wishing to use an open license.

The procedure for registering license agreements is governed by the Rules for the Registration of Agreements on the Transfer of Exclusive Rights to an Invention, Utility Model, Industrial Design, Trademark, Service Mark, Registered Topology of an Integrated Circuit and the Right to Use Them, Full or Partial Transfer of the Exclusive Right to a Program for Electronic Computers and database dated April 29, 2003 No. 64.

The Government of the Russian Federation, in the interests of national security, has the right to allow the use of inventions without the consent of the patent owner, with the payment of commensurate compensation to him.

114. CONCEPT, CHARACTERISTICS AND ELEMENTS OF A COMMERCIAL CONCESSION (FRANCHISING) AGREEMENT

On commercial concession agreement (franchising) one side (copyright holder) undertakes to provide the other party (to 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 right holder, including the right to a trademark, service mark, as well as other objects of exclusive rights provided for by the agreement - commercial designation, know-how, etc. d.

Characterization contracts: consensual, bilaterally binding, reimbursable.

The main purpose of the agreement is the creation of new economic complexes (shops, restaurants, hotels, industrial enterprises).

The subject The agreement is a set of exclusive rights belonging to the right holder, including the right to a trade name and (or) commercial designation, to protected commercial information, trademark, service mark, etc.

A commercial concession agreement should provide for the use of a set of exclusive rights, business reputation and commercial experience of the right holder to a certain extent (in particular, with the establishment of a minimum and (or) maximum amount of use), with or without indicating the territory of use in relation to a certain area of business activity (sale goods received from the copyright holder or produced by the user, other trading activities, performance of work, provision of services).

Hand contracts must be commercial organizations or individual entrepreneurs.

Form written contracts. Failure to comply with it entails the nullity of the contract. The agreement is subject to state registration with Rospatent. Failure to comply with this requirement will render the contract null and void.

Period does not apply to the essential terms of the contract. The contract may be concluded for a term or without specifying a term. An agreement concluded without specifying a period lasts for an arbitrarily long time and can be terminated at the request of any of the parties in compliance with the requirements provided for in paragraph 1 of Art. 1037 GK.

115. RIGHT HOLDER'S RIGHTS UNDER COMMERCIAL CONCESSION AGREEMENT

Obligations of the copyright holder (Article 1031 of the Civil Code):

a) transfer to the user technical and commercial documentation (plans, calculations, drawings), instruct the user and his employees on the implementation of the rights transferred under the commercial concession agreement, and also provide the user with other information necessary for the exercise of these rights (the right holder should indicate in the agreement what kind of information is to be provided);

b) ensure state registration of a commercial concession agreement. This obligation, like all subsequent ones, is dispositive;

c) provide the user with ongoing technical and advisory assistance, including assistance in training and advanced training of employees. The user has an objective interest in receiving new information in connection with such training, which can improve his position in the market. In turn, the right holder may receive a separate remuneration for providing information assistance;

d) control the quality of goods (works, services) produced (performed, rendered) by the user on the basis of a commercial concession agreement. This obligation is easier to fulfill for the right holder as a person who is more deeply familiar with the process of issuing goods (performance of work, provision of services) than for the user.

The copyright holder has the right refuse the user to conclude a commercial concession agreement for a new term, provided that within three years from the date of expiration of this agreement, he will not conclude similar commercial concession agreements with other persons and agree to conclude similar commercial subconcession agreements, the effect of which will apply to that the same territory in which the terminated treaty was in force. If, before the expiration of the three-year period, the right holder wishes to grant someone the same rights that were granted to the user under the terminated agreement, he is obliged to offer the user to conclude a new agreement or compensate for the losses incurred by him. When concluding a new contract, its terms must be no less favorable for the user than the terms of the terminated contract (paragraph 2 of article 1035 of the Civil Code).

116. OBLIGATIONS OF THE USER UNDER THE CONTRACT OF COMMERCIAL CONCESSION

The user is obliged:

1) use the complex of exclusive rights received by him in strict accordance with the terms of the contract, in the prescribed amount and properly:

a) use a commercial designation, trademark, service mark or other means of individualization of the right holder in the manner specified in the contract when carrying out the activities provided for by the contract. The absence in the contract of any restrictions on this account means that these funds can be used in any way not prohibited by law;

b) to ensure that the quality of the goods produced by him on the basis of the contract, the works performed, the services rendered, are consistent with the quality of similar goods, works or services produced, performed or provided directly by the right holder. This obligation corresponds to the purpose of the agreement - to promote the expansion of the sale of goods (works, services);

at) comply with the instructions and instructions of the right holder aimed at ensuring that the nature, methods and conditions for using the complex of exclusive rights correspond to how it is used by the right holder, including instructions regarding the external and internal design of commercial premises used by the user in exercising the rights granted to him under the contract. If the contract does not limit the scope or content of instructions (instructions), they can be any;

d) provide buyers (customers) with all additional services that they could count on when purchasing (ordering) a product (work, service) directly from the copyright holder;

d) not to disclose production secrets (know-how) of the right holder and other confidential commercial information received from him. At the conclusion of the contract, the right holder must indicate what information he considers to be secret, and only in relation to them will the user be obliged to keep it secret;

f) inform buyers (customers) in the most obvious way for them that he uses a commercial designation, trademark, service mark or other means of individualization by virtue of a commercial concession agreement. The main area in which this obligation is carried out is advertising;

2) timely pay the right holder the remuneration stipulated by the contract. The remuneration can be paid in any form provided for by the agreement, in particular in the form of fixed one-time or periodic payments, deductions from proceeds, mark-ups on the wholesale price of goods transferred by the right holder for resale, etc. The choice of the form of payment of remuneration depends on the the sphere of commercial activity is granted a concession, how much trust the parties have in each other, how the registration of the right holder or user is built, etc.;

3) not to transfer the complex of rights received by him or part thereof to a subconcession without the consent of the right holder;

4) provide a specified number of subconcessions, if such an obligation is provided for by the agreement.

117. VARIETY OF COMMERCIAL CONCESSION (FRANCHISING). SUB-CONCESSION. LIMITATIONS OF THE RIGHTS OF THE PARTIES UNDER THE AGREEMENT

Types of commercial concession: a) sales - a unified sales network is created under the general control of the copyright holder;

b) trading - trading enterprises are opened that are not legally branches or structural divisions of the copyright holder, but only use its trademark; c) commercial concession in the service sector - for example, a hotel chain; d) production - the user organizes the production of goods using the trademark of the copyright holder.

Subconcession - this is an agreement according to which the user undertakes to transfer to the sub-user the entire complex of rights received by him from the copyright holder under a commercial concession agreement or part of them. Under a subconcession agreement, the user acts as a secondary copyright holder, and his counterparty acts as a secondary user. With the help of a subconcession, the original copyright holder expands its ability to influence the market for goods or services and is therefore interested in issuing them.

A commercial concession agreement may provide for restrictions on the rights of the parties under such an agreement, in particular, the following may be provided:

a) the obligation of the copyright holder not to provide other persons with similar sets of exclusive rights for their use in the territory assigned to the user or to refrain from their own similar activities in this territory;

b) the user’s obligation not to compete with the copyright holder in the territory covered by the commercial concession agreement in relation to business activities carried out by the user using the exclusive rights belonging to the copyright holder; c) the user’s refusal to obtain similar rights under commercial concession agreements from competitors (potential competitors) of the copyright holder; d) the obligation of the user to agree with the copyright holder on the location of commercial premises used in the exercise of the exclusive rights granted under the contract, as well as their external and internal design.

Restrictive conditions may be declared invalid at the request of the antimonopoly body or other interested person, if these conditions, taking into account the state of the relevant market and the economic situation of the parties, contradict the antimonopoly legislation.

The conditions restricting the rights of the parties are null and void. under a commercial concession agreement, by virtue of which: the right holder has the right to determine the sale price of goods by the user or the price of works (services) performed (rendered) by the user, or to set an upper or lower limit for these prices; the user has the right to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) located (place of residence) in the territory specified in the contract.

118. LIABILITY UNDER A COMMERCIAL CONCESSION AGREEMENT. AMENDMENT AND TERMINATION OF THE AGREEMENT

The liability of the parties under the commercial concession agreement comes regardless of their guilt.

The right holder is responsible not only to the user for improper performance of the contract, but also to third parties - for the inadequate quality of goods (works, services). Such liability can be both subsidiary and joint and several.

The right holder bears subsidiary responsibility for the claims made to the user about the discrepancy between the quality of goods (works, services) sold (performed, rendered) by the user under a commercial concession agreement. According to the requirements for the user as a manufacturer of products (goods) of the right holder, the right holder is jointly and severally liable with the user (Article 1034 of the Civil Code).

Changing the terms of the contract carried out: by agreement of the parties; in court at the request of one of the parties in case of a material breach of the contract by the other party; with a significant change in the circumstances from which the parties proceeded when concluding the contract.

Any changes to the contract are subject to mandatory state registration in the same manner as its conclusion.

The commercial concession agreement is terminated in cases of:

a) unilateral repudiation of an agreement concluded without specifying a term. Each of the parties to the contract has the right to withdraw from it at any time by notifying the other party six months in advance, unless a longer period is provided for by the contract (paragraph 1 of article 1037 of the Civil Code);

b) unilateral refusal of the user from the contract in the event of a change in the commercial designation of the copyright holder (paragraph 2 of article 1037 and article 1039 of the Civil Code);

c) termination of the rights to a trademark, service mark or commercial designation belonging to the copyright holder without replacing them with new similar rights (clause 3 of article 1037 of the Civil Code);

d) the death of the right holder, if the heir does not register as an individual entrepreneur within six months from the date of opening of the inheritance (paragraph 2 of article 1038 of the Civil Code);

e) declaring the right holder or user insolvent (bankrupt) in the prescribed manner (clause 4 of article 1037 of the Civil Code);

e) in other cases provided for in Ch. 26 of the Civil Code, for example. in novation or debt forgiveness.

Termination of a commercial concession agreement is subject to state registration in the same bodies that register the conclusion of this agreement.

In the event of termination of one of the exclusive rights included in the complex of exclusive rights transferred under a commercial concession agreement, the agreement continues to be valid, with the exception of those provisions that relate to the terminated right (Article 1040 of the Civil Code).

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