Capital construction can be carried out by contract, economic or mixed methods (contractor and economic), primarily due to the procedure for financing costs and the relationship of the parties in the construction process.
The construction of facilities and the performance of work by contract is the predominant method.
With the contract method of construction, construction and installation work is carried out by specialized organizations that have licenses to perform the relevant types of construction work, on the basis of a construction contract (contract) with the customer. The contract is the main legal document governing the relationship of construction participants. The contract method of doing work has a number of advantages. It provides conditions for the intensification of construction based on the maximum use of structures, parts, prefabricated units, the latest construction equipment, and advanced methods of work. Contracting organizations have a permanent staff of construction workers, production assets, perform work by industrial methods. This method of work allows to reduce the duration of construction, improve quality, reduce construction costs, and ensure the growth of savings.
Conclusion of work contracts is carried out in accordance with the rules for the conclusion and execution of construction contracts (contracts), approved by the Decree of the Council of Ministers of the Republic of Belarus dated September 15, 1998 No. 1450 (as amended and supplemented).
The subject matter of the contract is:
construction, reconstruction of an enterprise, building, structure or other facility;
performance of construction and other special installation works.
The rules for concluding and executing agreements (contracts) also apply to work on overhaul objects.
Customers and contractors (general contractors, subcontractors) may be legal entities and individuals of the Republic of Belarus and other states.
As a customer in the contract method of conducting work are: the management of the operating enterprise, organizations, individual citizens. The function of the customer in state-owned new buildings for industrial purposes, as well as large non-industrial facilities being built according to individual projects, can be carried out by a specially organized directorate of an enterprise under construction.
During the construction of residential buildings of objects of the socio-cultural sphere and public utilities in regions, cities, districts, a single customer service is created, which implements investment programs at the expense of the republican and local budgets, as well as legal and individuals contributing them in the order of equity participation.
During the construction of facilities for state needs, a state customer is determined from among government agencies management with the necessary investment resources, or organizations entitled to dispose of such resources.
The Directorate or, respectively, other bodies are the administrators of all funds allocated for financing investment projects and costs. They conclude contracts with design, construction organizations, equipment suppliers, for the implementation of design, construction and installation works, for the supply of equipment.
The choice of the contractor is carried out:
for objects for which contract tenders are held - according to their results;
for objects for which contract tenders are not held - at the discretion of the customer.
The customer can transfer part of the duties, as well as the authority to make decisions on his behalf in relations with the contractor, to the engineer (engineering organization). Relations between them are regulated by a contract for the provision of services. In this case, the consent of the contractor to conclude such an agreement is required.
The contractor has the right to attract, on the basis of subcontracts, including on competitive terms, to perform certain types work of subcontractors. The fulfillment of the obligations of the customer for the work for which the general contractor has concluded a subcontract is assigned to the general contractor, and the obligations of the contractor - to the subcontractor. The general contractor is responsible to the customer for all work performed by him and the subcontractor.
For commissioned facilities and completed construction works a two-year warranty period is established.
The contract is concluded if the customer has: an appropriate document certifying the right to land plot, decisions of local executive and administrative bodies on the construction of the facility; design and estimate documentation passed the state non-departmental examination, agreed and approved in the prescribed manner, if the obligation to develop it is not assigned to the contractor; protocol on contract bidding; protocol on the results of contract tenders and selection of their winner.
The contractor has a license to perform the relevant types of construction work, valid on the territory of the Republic of Belarus.
The contract may be signed by the parties no later than 20 days after the completion of contract bidding and execution of the protocol. If one of the parties evades the conclusion of a work contract, the other party has the right to apply to the economic court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by evasion from its conclusion.
If contract bidding is not mandatory, then the contract is concluded on the basis of negotiations and agreement of the parties; it can be prepared by the customer or the contractor or jointly by the parties. Prior to the conclusion of the contract, the customer and the contractor may conclude preliminary agreement, which determines the relationship of the parties at the stage of preparation for the construction of the facility.
When preparing a work contract by the contractor, the customer submits to him, within the agreed time frame, the documents indicated above, as well as:
proposals on the price and terms of construction of an object or performance of a type of construction work;
payment schedule;
delivery schedule for structures, materials, products, equipment and inventory, if their delivery is assigned to the customer by agreement of the parties;
the schedule for the implementation of commissioning works when putting the facility into operation in the planned year;
a schedule for combining the types of construction work and production processes at existing facilities, indicating, if necessary, the possible timing of a temporary stop to production, as well as the exclusion of land from agricultural circulation in order to create appropriate conditions for the performance of construction work; and other documentation.
The term for consideration by the contractor of these documents, drawing up and signing the work contract is determined by agreement of the parties, but should not exceed 30 days.
Within the specified period, the contractor develops a schedule for the production of work, as well as a schedule for the supply of structures, materials, products, equipment and inventory, the implementation of which he assumes. These schedules are attached to the draft contract.
The contractor, sending the signed draft contract to the customer, determines the normal necessary period(at least 20 days) during which the customer is obliged to consider this project and give an answer. If the conclusion of the contract is mandatory, the customer must respond within 30 days from the date of receipt of his project. The customer, in case of disagreement with certain conditions of the received draft contract for work, has the right to draw up a protocol of disagreements with its annex to the contract.
The contract contains the following information and mandatory conditions:
names of the parties and necessary details;
subject of the contract (name and location of the construction site, types of construction work);
terms (month and year) of the beginning and completion of the construction of the facility, the performance of construction work;
the contractual (contractual) price of an object, type of construction work, established by the results of the auction, and for objects for which the auction is not mandatory, the price is determined by agreement of the parties;
payment procedure for the work performed;
sources of financing;
distribution of functions between the customer and the contractor to provide the facility with structures, materials, equipment;
obligations of the customer and the contractor in the performance of the contract;
the procedure for control by the customer over the quality of the work performed by the contractor and the supplied structures, materials, products, equipment and inventory;
terms of payment and the amount of bonuses for the timely commissioning of the facility;
liability of the parties in case of non-fulfillment of obligations under the contract;
features of acceptance of completed construction works, commissioning of the facility;
the relationship of the parties in the event of force majeure and other conditions.
Legal entities, individual entrepreneurs, carrying out the construction, reconstruction of residential premises for citizens must determine in the contracts, along with the above, the following essential conditions:
Size and order of application Money citizens;
Grounds for terminating the contract before the deadline;
The procedure for the return of funds to citizens in case of non-fulfillment of obligations or termination of the contract before the deadline;
Liability for failure to fulfill obligations.
Mandatory annexes to the construction contract are the work schedule and the payment schedule.
A subcontract is concluded based on the results of contract tenders announced by the general contractor or through direct negotiations with subcontractors. The subcontract includes the same mandatory conditions as the subcontract. In addition, the subcontract defines the lists of services provided by the general contractor, as well as the amount and procedure for payment by the subcontractor of these services.
The contract may provide for the obligation of the party, which bears the risk of accidental loss or accidental damage to construction objects, materials, equipment, to insure the corresponding risks.
During the construction of facilities for state needs, financed from the funds of the republican and local budgets, off-budget funds, bank loans, the state customer concludes with the contractor government contract to perform contract work in compliance with the requirements of the Rules. At the same time, the state customer fulfills the obligations and has the rights established by the Rules for customers, with the exception of the right to independently make decisions on the volume of investments and directions for their use; on the transfer of their powers to third parties; on the conservation or termination of the construction of the facility.
The customer is responsible for non-fulfillment or improper fulfillment of the obligations stipulated by the work contract and pays a penalty to the contractor in the following amounts:
for unreasonable evasion of acceptance of completed construction work and registration confirming their completion - 0.1% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (object);
behind untimely transfer advance payment, funds for payment of completed and accepted construction works - 0.15% of the untransferred amount for each day of delay;
for violation of the terms of delivery of structures, materials, equipment - 0.15% of their value for each day of delay, but not more than the cost of undelivered structures, materials, products, equipment, inventory.
The contractor is liable for non-fulfillment or improper fulfillment of obligations stipulated by the work contract and pays a penalty at current prices to the customer in the following cases and amounts:
for untimely provision of construction readiness of work, including for failure to present the scope of work - 0.1% of their cost for each day of delay;
for violation of the deadlines for the performance of construction work that is the subject of a work contract, commissioning of an object - 0.15% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (object);
for untimely elimination of defects identified during the warranty period of operation of the facility - 0.15% of the cost of construction work to eliminate defects for each day of delay.
The Contractor shall be liable for poor-quality work performed within the warranty period.
In addition to the sanctions provided for by these rules for non-fulfillment of obligations under a work contract, the party that violated the contract shall compensate the other party for losses in the amount not covered by the penalty (fine, penalties).
The party guilty of exceeding the deadlines for the construction of the facility (performance of construction work) established by the work contract shall compensate the other party for the losses caused by this.
Similar information.
1.3. Contractual relationship in construction
Depending on the period, type, conditions and participants in the construction, the characteristics of the estimate documentation in construction are applied:
general contract- is concluded with the general contractor for the entire period of construction;
subcontract- is concluded between the general contractor and specialized organizations for the performance of certain types of work and complexes of construction and installation works.
The regulation of relations between construction participants, regardless of the form of ownership, when concluding and executing construction contracts (contracts) on the territory of the Republic of Belarus is carried out by Rules No. 1450, Civil Code of the Republic of Belarus No. 218-3 dated 07.12. 11. No. 286-3), Law No. 293-3 and other regulatory legal acts The Republic of Belarus.
According to the first part of Art. 696 Civil Code under a construction contract, the contractor undertakes to term to build a certain object on the instructions of the customer or to perform construction and other special installation works and hand them over to the customer, and the customer undertakes to create the necessary conditions to carry out work, accept results of these works and pay conditioned price.
The contract is concluded in writing by drawing up a single document. By agreement of the parties, the necessary documents are attached to the contract, which are an integral part of this contract. A work contract is concluded if, in the cases provided for by the legislation of the Republic of Belarus, there are:
at customer(subclause 12.1 of Regulation No. 1450):
the relevant document certifying the rights to the land plot;
decisions of local executive and administrative bodies for the construction of the facility;
design estimates that have passed the state non-departmental examination, agreed and approved in the prescribed manner, if the obligation to develop it is not assigned to the contractor;
protocol on the results of contract tenders and selection of their winner;
at contractor- licenses for the performance of relevant types of construction work, valid on the territory of the Republic of Belarus (Subclause 12.2 of Rules No. 1450).
In relation to a building contract, as in relation to work contracts, it is necessary that essential conditions , specified in the legislation. Otherwise, the contract may be recognized as not concluded, and in some cases the transaction may be declared invalid.
TO essential conditions building contracts are
conditions on the subject of the contract (name and location of the construction object, types and volumes of construction and other special installation works),
start and end dates of work,
agreed (contract) price of works, established based on the results of contract bidding,
which of the parties and within what time period must submit the relevant documentation,
conditions on which, at the request of one of the parties, an agreement must be reached.
Paragraph 16 of Regulation No. 1450 provides for the following mandatory terms of the contract :
the names of the parties and the necessary details (legal addresses in accordance with the constituent documents or passport data, settlement accounts of servicing banks, account numbers tax office, numbers of certificates of state registration, numbers and validity periods of the contractor's licenses);
subject of the contract (name and location of the construction site, types of construction work);
terms (month and year) of the beginning and completion of the construction of the facility, the performance of types of construction work;
contractual (contract) price of an object, type of construction work, established based on the results of contract bidding. For objects for which contract bidding is not mandatory, the agreed (contract) price is determined by agreement of the parties, taking into account the legislation of the Republic of Belarus;
payment procedure for the work performed;
sources of financing;
distribution of functions between the customer and the contractor to provide the object with structures, materials, products, equipment, inventory, and, if necessary, for the design of the object;
obligations of the customer and the contractor in the performance of the contract.
Each party has the right to make proposals for the inclusion in the work contract and other conditions providing:
terms of payment and the amount of bonuses for the timely commissioning of the facility;
liability of the parties in case of non-fulfillment of obligations under the contract;
features of acceptance of completed construction works, commissioning of the facility;
the relationship of the parties in the event of force majeure;
the procedure and grounds for changing or terminating the contract;
a list of services provided by one party to the other party;
other conditions.
The work contract is the main legal document regulating the relationship between construction participants and must comply with the requirements mandatory for the customer and contractor established by Rules No. 1450 and other legislative acts of the Republic of Belarus.
Control questions.
1. What is included in the concept of "construction activity"?
2. Define construction.
3. List the basic principles of construction activity.
4. List the main factors of construction production.
5. Name the classification features of construction organizations.
6. List the subjects of investment activity.
7. Define investment activity.
8. Describe the methods of production of construction and installation works.
9. On the basis of what documents are contractual relations in construction formed?
10. Name the essential, mandatory and other terms of the subcontract.
Relationship between client and designer design organization) regulate the contract for the performance of design and survey work. According to Art. 758 of the Civil Code of the Russian Federation (part 2), the designer undertakes, on the instructions of the customer (investor), to develop technical documentation or perform survey work,
and the customer - to accept for payment their result.
Under a contract for the performance of design and survey work, the customer is obliged to transfer to the designer a design assignment, as well as other initial data for the preparation of technical documentation. Task to be executed design work can be prepared on behalf of the customer by the contractor.
The designer is obliged to comply with the requirements contained in the assignment for the performance of design and survey work, and has the right to correct them with the consent of the customer.
The designer must: (see the textbook)
Developers have the right to carry out construction and installation work on the construction of buildings and structures on their own (in an economic way). However, in practice, developers more often involve specialized contractors (firms). Relationships between builders and contractors
are built on a regular commercial basis, subject to the rights and obligations arising from the construction contract.
According to Art. 740 of the Civil Code of the Russian Federation (part 2), a construction contract is concluded for the construction or reconstruction of an enterprise, building, structure or other object, as well as for the implementation of installation, commissioning and other work inextricably linked with the object under construction.
The recommended list of articles of the treaty is sufficiently typified and universal, which allows it to be used as a basic scheme in the preparation various kinds contracts. An approximate list of the main articles of a construction contract is as follows: (see in the textbook)
By agreement of the parties, the articles of the contract may be supplemented and amended based on the specifics of the facility under construction, its location and other conditions. The contractor may, in agreement with the customer (if provided for by the terms of the contract), engage other organizations of subcontractors to perform a complex or type of work (plumbing, electrical installation, landscaping), concluding subcontracts with them.
In this case, the responsibility to the customer for the performance of all work within the time frame stipulated by the construction contract and with the proper quality is assumed by the contractor. Under these conditions, the contractor will act to the customer as general contractor, and before the subcontractor - as a customer.
In construction practice, the customer concludes an agreement, as a rule, with one contractor (called the general contractor), who performs the main part of the work and assumes the obligation to coordinate the work and be responsible for the timely and high-quality performance of the entire range of work provided for in the contract. It attracts subcontractors to perform certain types of work.
organizations.
The contractor may assume an obligation to provide construction with all types of material resources and equipment. If the customer, in addition to the main contract, concludes other contracts for the performance of certain types and complexes of work necessary for the construction of the facility, then the coordination of the work provided for by the main contract with the work provided for by other contracts is provided by the customer. The latter is responsible for the timely completion of all works on the construction of the facility.
The customer may also conclude separate contracts with contractors for the performance of fixed scopes of work with or without the supply of equipment, one-time contracts for the supply and installation of equipment, for the construction of individual buildings and structures, and other contracts.
Under a separate agreement, each contractor is liable to the customer only for his direct obligations, and the customer coordinates the activities of each contractor so that different contractors do not interfere with each other and perform their work and deliveries in the required sequence. For a general contractor, a separate contract is a subcontract. In cases stipulated by the contract, the contractor may assume responsibility for ensuring the operation of the facility after its delivery to the customer for the period specified in the contract. The contractor bears the risk of accidental loss of the construction object, which is the subject of the work contract, before acceptance of this object by the customer. If the construction object, prior to its acceptance by the customer, is lost or damaged due to the poor quality of materials, structures provided by the customer or his incorrect instructions, the contractor has the right to demand payment for all work performed by him (according to estimated cost).
The contractor is obliged to conduct construction and related work in accordance with the technical documentation, which determines the scope, content of work and other requirements for them, and with an estimate confirming the cost (price) of work. As a rule, the contractor is obliged to carry out all construction and installation works recorded in the technical documentation and estimates.
The construction contract must define the composition and content of the technical documentation, as well as the terms and obligations of the parties for its submission. The contractor, who discovered during the construction works that are not taken into account in the technical documentation, which are subject to mandatory performance, is obliged to inform the customer about this. If no response is received from the latter within ten days, the contractor is obliged to suspend the relevant work with the attribution of losses caused by downtime to the customer's account. The customer is released from compensation for these losses if he argues that there is no need to carry out additional work. If the customer agrees to carry out and pay for additional work, the contractor may refuse to perform them only in cases where they are not included in the scope of his professional activities or cannot be performed by the contractor for reasons beyond his control.
The customer has the right to make changes to the technical documentation, provided that the additional work caused by this does not exceed 10% of that indicated in the estimate total cost construction and do not change the nature of the work fixed in the contract. Making changes to the technical documentation in excess of 10 % of the total cost of work is carried out on the basis of an additional estimate agreed by the parties. The contractor has the right to demand that the customer revise the estimate if, for reasons beyond his control, the cost of the work exceeded the estimate by at least 10 %. The Contractor may also claim compensation for various expenses incurred by him in connection with the elimination of defects in the technical documentation.
The obligation to provide the construction site with materials or equipment is borne by the contractor, unless the construction contract provides for the assignment of these obligations to the customer.
The customer pays for the work performed by the contractor in the amount stipulated by the estimate, on time and in the manner determined by the construction contract. This agreement may provide for payment for the work at a time and in full after the object is accepted by the developer. Calculations can also be made using structural elements for the performance of individual works or their stages. The parties have the right to agree on the size of the reserve of funds for financial guarantees and the order in which they are listed. It is advisable to provide in the contract the conditions under which the customer has the right to withhold payment for the work performed to the contractor:
Failure to eliminate defects identified in the work;
Causing damage to the customer;
In the event of a delay in the performance of work from the volumes provided for by the schedule of their production, etc.
The customer makes the final settlement after the contractor has completed all the work under the contract, including the elimination of defects identified during the acceptance of the object, with the offset of the funds previously transferred to the contractor and the amount of financial guarantees, if they were provided for in the contract.
The customer, having received the contractor's message about the readiness to deliver the result of the work performed under the work contract, must immediately begin to accept the finished object (stage). The customer carries out its acceptance at its own expense, unless otherwise provided by the construction contract. In necessary cases at the reception
the results of the work are attended by representatives of state bodies and bodies local government. The delivery of the result of work by the contractor and its acceptance by the customer is formalized by an act signed by both parties. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as unreasonable. The customer has the right to refuse to accept the result of the work in case of detection of deficiencies that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.
The customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials submitted by the contractor, as well as the correct use of the customer's materials by the latter. To carry out this work, the customer has the right to conclude independently (without the consent of the contractor) an agreement on the provision of various engineering services to him by an engineering organization. In this case, the construction contract defines the functions of the engineering organization related to the consequences of its actions for the contractor.
The construction contract may provide for the obligation of the party, which bears the risk of accidental loss or accidental damage to the construction object, to insure the corresponding risks. The party charged with insurance must provide the other party with evidence that it has concluded an insurance contract on the terms and conditions specified in the construction contract. Such evidence includes necessary information about the insurer, the sum insured and the insured risks. Insurance does not release the policyholder from the obligation to take appropriate measures to prevent the occurrence of an insured event.
The contract is the main legally significant document from which obligations arise. In practice, it is not uncommon to conclude illiterate contracts and agreements from a legal point of view. This, in turn, manifests itself in the misrepresentation of various financial and business transactions in accounting and, as a result, leads to significant losses budget funds.Civil law defines:
1. legal status participants in civil circulation
2. grounds for occurrence and procedure for implementation
Ownership
Other rights in rem
Exclusive rights to the results of intellectual activity (intellectual property).
3. regulation of contractual and other obligations
4. other property and related personal non-property relations based on equality, autonomy of will and property independence of their participants.
In accordance with clause 1 of Article 420 of the Civil Code, an agreement between two or more persons on the establishment, change or termination of civil rights and obligations is recognized as an agreement.
The term "contract" is used in civil law in various meanings. Under the contract is understood both the legal fact underlying the obligation, and the contractual obligation itself, and the document in which the fact of establishing a legal relationship is fixed. Under the contract understand the set of conditions that determine the actions of the parties.
A contract is the most common type of transaction. Only a few unilateral transactions do not qualify as treaties. The bulk of the transactions encountered in civil law are contracts.
Contracts, like transactions, are divided into unilateral, bilateral and multilateral treaties. However, despite the similarity of the wording, the division is carried out on different grounds, i.e. there are different criteria for dividing contracts and transactions into unilateral and bilateral or multilateral. If in. In a transaction, the criterion is such a subjective factor as the will to make a transaction and its expression outside (expression of will), then in the division of contracts into unilateral and bilateral lies the distribution of rights and obligations of the contracting parties.
In unilateral agreements, one side has only rights, while the other has only obligations.
A typical unilateral agreement is a loan agreement. The lender (the one who lent) has the right to demand the repayment of the debt, and the borrower (the one who borrowed) has the obligation to return the amount taken. At the same time, the lender does not acquire any additional obligations under the agreement in relation to the borrower, and the borrower does not acquire any additional rights in relation to the lender.
In bilateral agreements, each of the parties has both rights and obligations in relation to each other.
Most civil law contracts are bilateral, that is, the parties are said to have mutual rights and obligations or rights and obligations that correspond to each other. For example, a construction contract provides for both the contractor's obligation to build an object and his right to require the customer to pay the cost of work under the contract. The customer, in turn, has the right to demand the transfer of an object completed by construction to him, but is obliged to pay a stipulated amount for it.
By multilateral it is customary to understand treaties in which there is no overlap of the rights of its parties, which is characteristic of bilateral treaties. The rights and obligations of persons participating in a multilateral agreement, as a rule, are not mutual. Multilateral, for example, is a simple partnership agreement (agreement on joint activities), regulated by Chapter 55 of the Civil Code.
Like any transaction, the contract is an act of will. However, this volitional act has its own specific features. It is not disparate volitional actions of two or more persons, but a single expression of will expressing their common will. In order for this general will to be formed and enshrined in a treaty, it must be free from any external influence. Autonomy of will and freedom of contract are manifested in various aspects, a number of which are regulated in article 421 of the Civil Code.
The right to decide whether to enter into a contract
Freedom to choose a partner
Freedom to choose the type of contract
Freedom of contract
Freedom to determine the terms of the contract
The right of the parties to choose the form of the contract
Freedom to choose the method of securing the contract
The right to change or terminate the contract at any time
First, the freedom of the contract implies that the subjects of civil law are free to decide whether to conclude or not to conclude a contract. Paragraph 1 of Article 421 of the Civil Code establishes: "Citizens and legal entities are free to conclude a contract. Coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, the law or a voluntarily accepted obligation." Currently, there are not so many cases where the obligation to conclude a contract is established by law.
Secondly, the freedom of contract provides for the freedom to choose a partner when concluding a contract.
Thirdly, the freedom of contract implies the freedom of participants in civil transactions in choosing the type of contract. In accordance with paragraphs 2, 3 of Article 421 of the Civil Code, the parties may conclude an agreement, both provided and not provided for by law or other legal acts. The parties may conclude an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement).
Fourth, the freedom of the contract implies the freedom of discretion of the parties in determining the terms of the contract. In accordance with paragraph 4 of Article 421 of the Civil Code, the terms of the contract are determined at the discretion of the parties, except when the content of the relevant term is prescribed by law or other legal acts.
In cases where the term of the contract is provided for by a rule that is applied insofar as the agreement of the parties does not establish otherwise (dispositive rule), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm.
With all the freedom of the contract, the latter must comply with the rules binding on the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion.
In other words, contracts are subject to such general rule, as "the law has no retroactive effect", which undoubtedly gives stability to civil circulation. The parties to the agreement can be sure that subsequent changes in the legislation cannot change the terms of the agreements they have concluded.
Among the norms of the Civil Code that restrict the freedom of contract, first of all, we should mention Article 426 of the Civil Code, which establishes the obligation to conclude a public contract and the right of the counterparty of the obligated party to apply to the court with a claim to compel the conclusion of the contract.
The obligation of the bank to enter into an agreement bank account with a client (construction organization) who applied with a proposal to open an account on the conditions announced by the bank, paragraph 2 of article 846 of the Civil Code is established.
The pre-emptive right of the tenant to conclude a lease agreement for new term Article 621 of the Civil Code provides for a similar right to conclude a commercial concession agreement - Article 1035 of the Civil Code. In all these cases, the owner of the pre-emptive right, in accordance with Article 446 of the Civil Code, enjoys the right judicial protection if the counterparty committed violations related to the conclusion of the contract. Laws providing various exceptions to the principle of freedom of contract include the Law on Natural Monopolies and the Law on Competition.
2. Types of contracts
Numerous civil law contracts have both common properties and certain differences that allow them to be distinguished from each other. In order to correctly navigate the whole mass of numerous and diverse contracts, it is customary to divide them into separate types. Such a division can be based on a variety of categories, selected depending on the goals pursued. The division of contracts into separate types is not only theoretical, but also of great practical importance. It allows participants in civil circulation to easily identify and use in their activities the most essential properties of contracts, to resort in practice to such a contract that best suits their needs.In civil law, the distinction and classification of contracts is related to their compliance with the content of the activities of subjects of law regulated by them. According to this criterion, the following types of contracts are distinguished:
2.1. Main and preliminary agreements
Civil law contracts differ depending on their legal focus. The main agreement directly gives rise to the rights and obligations of the parties related to the movement of material goods, the transfer of property, the performance of work, the provision of services, etc. The preliminary agreement is an agreement between the parties to conclude the main agreement in the future. Most of the contracts are the main contracts, preliminary contracts are much less common. The conclusion of preliminary agreements is regulated by Article 429 of the Civil Code.A preliminary contract must be distinguished from agreements of intent that take place in practice. In these agreements of intent, only the desire of the parties to enter into contractual relations in the future is recorded.
Under the preliminary agreement, the parties undertake to conclude in the future an agreement on the transfer of property, performance of work or provision of services (basic agreement) on the terms stipulated by the preliminary agreement. The article provides for the conclusion of a preliminary contract a number of requirements designed to create clarity in the relationship of the parties. Such an agreement must be concluded, as a rule, in writing, determine the essential terms of the future main contract and contain instructions on the term of its conclusion.
The preliminary agreement is concluded in the form established for the main agreement, and if the form of the main agreement is not established, then in writing. Failure to comply with the rules on the form of a preliminary contract entails its nullity. A preliminary contract can be made through the exchange of an offer and acceptance, as well as by signing a single document, which in practice most often takes the form of an agreement (protocol) of intent.
The preliminary contract must contain conditions that allow to establish the subject, as well as other essential conditions of the main contract. In practice, there are cases when the parties assume obligations in relation to certain conditions of the future contract (on the provision of discounts, payment by installments, subsequent maintenance, etc.).
Such obligations can be bilateral and unilateral in nature and must be recognized as having legal force on the basis of the provisions of Article 8 of the Civil Code, according to which the obligations of subjects of civil law also arise from actions that are not directly provided for by law, but give rise to obligations.
The preliminary contract indicates the period in which the parties undertake to conclude the main contract.
If such a period is not specified in the preliminary agreement, the main agreement is subject to conclusion within a year from the date of conclusion of the preliminary agreement. In the event of a subsequent refusal to complete the main contract interested party has the right to demand in court its conclusion on previously agreed conditions and compensation for losses incurred (clause 4 of article 445 of the Civil Code). Such losses include losses due to the failure to conclude the contract and the failure to obtain the performance envisaged under it.
2.2. Oral and written contracts
Compliance with the form of the contract is one of the most important conditions for recognizing the validity of the contract. Therefore, it is necessary to have a good idea to which of the forms of the contract determined by law this or that method of formalizing the contract, adopted in practice, belongs.By form, contracts are divided into those made orally and in writing (simple or notarial).
Oral contracts are contracts that are not fixed in writing or in any other specific form.
Articles 158, 434 of the Civil Code provide for the possibility of concluding any contracts orally, for which the law or agreement of the parties does not provide for a written (simple or notarial) form.
A typical example of such an agreement is a sale and purchase agreement concluded by citizens among themselves for an amount not exceeding ten times the minimum wage established by law (with the exception of certain cases specified by law). In the activities of a construction organization oral contracts do not apply.
In a simple fiery form, a contract can be concluded:
1. By drawing up one document signed by the parties.
2. By exchanging documents.
Documents are exchanged through
postal service
telegraph communication
teletype communication
telephone communication
electronic or other communication
3. By recognizing the written form for one party and conclusive actions (actions from which the intention of the person to conclude a contract is clear) for the other.
In any case, it is necessary to reliably establish that the document comes from the party to the contract.
Mandatory conclusion in a simple written form is subject to all contracts concluded:
1. legal entities among themselves and with citizens;
2. citizens among themselves for an amount exceeding at least ten times the minimum wage established by law, and in cases provided for by law, regardless of the amount of the contract.
These rules, of course, do not apply to contracts that, in accordance with the law, must be notarized.
Failure to comply with the simple written form of the contract deprives the parties of the right, in the event of a dispute, to refer to evidence of the transaction and its conditions, but does not deprive them of the right to provide written and other evidence.
In cases expressly specified in the law or in the agreement of the parties, failure to comply with a simple written form entails the invalidity of this agreement.
The following contracts are invalid if they are made in violation of a simple written form
foreign economic
Property For Sale
sale of the enterprise
rent of buildings and structures;
business lease
donation in cases where the donor is a legal entity and the value of the gift exceeds five established by law minimum dimensions wages; and also if the contract contains a promise of donation in the future
loan agreement
bank deposit agreement
insurance contract (except for compulsory state insurance contract)
trust management property
commercial concession agreement
Notarial certification is carried out by making a certification inscription on a document that meets the requirements of Article 160 of the Civil Code by a notary or other official who have the right to perform such a notarial act (Article 37 of the Fundamentals of Legislation Russian Federation about the notary").
Notarial certification of transactions is obligatory in the cases specified in the law. In addition, by agreement of the parties, the need to give the contract a notarial form can be determined, even if this form was not required by law for contracts of this type.
Although the Civil Code does not provide for mandatory notarization of contracts for the sale of real estate, the sale of an enterprise, as well as donations, before the federal law on registration of rights to real estate and transactions with them comes into force in accordance with Article 7 of the federal law "On the Enactment of Part Two of the Civil Code of the Russian Federation" for these contracts, the rules on mandatory notarization established by the legislation in force before the entry into force of part two of the Civil Code remain in force.
Failure to comply with the notarial form of the contract entails its invalidity. Such an agreement is considered null and void.
If one of the parties has fully or partially performed an agreement that requires notarization, and the other party evades such certification of the agreement, the court shall have the right, at the request of the party that performed the agreement, to recognize the agreement as valid. In this case, subsequent notarization of the contract is not required.
If a party unreasonably evades notarization of the contract, that party is obliged to compensate the other party for losses caused by the delay in the conclusion of the contract.
In addition to the need to comply with the above conditions for the execution of the contract, it must be borne in mind that transactions with land and other movable property subject to state registration in cases in the manner prescribed by Article 131 of the Civil Code and federal law on registration of rights to real estate, and transactions with it.
The law may establish state registration of transactions with certain types of movable property.
Some types of contracts are subject to state registration and come into force from the moment of such registration in accordance with other laws.
Contracts subject to state registration
sale of a residential building, apartment, part of a residential building or apartment (Article 558 of the Civil Code);
sale of the enterprise (Article 560 of the Civil Code);
donations real estate(Article 574 of the Civil Code);
Providing for the alienation of real estate against the payment of rent (Article 584 of the Civil Code);
lease of real estate, unless otherwise provided by law (Article 609 of the Civil Code);
Lease of a building or structure, concluded for a period of at least a year (Article 651 of the Civil Code);
Enterprise lease (Article 658 of the Civil Code);
transfer of real estate to trust management (Article 1017 of the Civil Code).
Failure to comply, in cases established by law, with the requirement for state registration of a transaction shall entail its invalidity. Such a transaction is considered void.
If a transaction requiring state registration 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 transaction. In this case, the transaction is registered in accordance with the decision of the court.
In cases stipulated by law, a party that unreasonably evades state registration of a transaction must compensate the other party for losses caused by a delay in making or registering a transaction.
Since the contract is a bilateral or multilateral transaction, in accordance with Article 160 of the Civil Code, the law, other legal acts and the agreement of the parties may establish additional requirements that the form of the contract must comply with (execution on a letterhead of a certain form, sealing, etc. .), and foresee the consequences of non-compliance with these requirements. If such consequences are not provided, the consequences of non-compliance with a simple written form of the transaction (clause 1 of article 162 of the Civil Code) apply.
An example of such additional requirements Article 913 of the Civil Code can serve, according to which both parts of a double warehouse certificate certifying the conclusion of a warehouse storage agreement must have identical signatures of an authorized person and seals of a warehouse.
Often the law directly establishes a specific form of concluding a contract of a certain type or with the participation of certain subjects. For example, a lease agreement vehicle with the crew or an agreement, the participants of which are only legal entities, with the exception of cases established by law, must be concluded in writing, regardless of how long they are concluded.
2.3. Consensual and real contracts
This type of division of contracts is of great importance for determining the moment when the parties acquire rights and obligations under the contract. For certain types of contracts, the law establishes some features of determining this moment, which must be taken into account by the parties when drawing up such an agreement. On this basis, contracts are divided into real and consensual.A contract is recognized as real, for the conclusion of which, in addition to reaching an agreement between the parties on all the essential terms of the contract and giving it the appropriate form, the law requires the performance of certain specific actions.
For example, a loan agreement is considered concluded from the moment the borrower transfers money or other things that are the subject of the loan to the debtor. The parties cannot determine in their loan agreement other conditions for determining the moment of conclusion of this agreement, for example, from the date of its signing. Therefore, the parties are not entitled to include in such an agreement, for example, a provision on the collection of penalties from the lender for late provision of the loan amount. Such a provision of the contract will not have legal force.
A consensual agreement is an agreement that, by law, is considered concluded when the parties reach an agreement on all essential conditions and give the agreement the proper form. At the same time, nothing more is required for the entry into force of such an agreement, and the rights and obligations of the parties arise, for example, from the moment the agreement is signed. An example of consensual contracts is a contract for work, supply, etc.
TO this species applies to most civil law contracts.
2.4. Unilateral and reciprocal agreements
Depending on the nature of the distribution of rights and obligations between the participants, all agreements are divided into mutual and unilateral. A unilateral contract generates only rights for one side, and only obligations for the other. In mutual agreements, each of the parties acquires rights and at the same time bears obligations in relation to the other party. Most agreements are mutual in nature. Yes, according to the supply contract building materials the supplier acquires the right to require the buyer to pay money for the delivered goods and at the same time is obliged to transfer these goods to the buyer. Unilateral Treaties must be distinguished from unilateral transactions. The latter do not apply to contracts, since their execution does not require the agreement of the parties, but rather the will of one party.2.5. Compensatory and gratuitous contracts
These contracts differ depending on the nature of the movement of material goods mediated by the contract. An agreement under which the provision of property by one party determines the counter provision of property from the other party is recognized as paid. In without compensated contract property provision is made only by one party without receiving a counter property provision from the other party. So, a construction contract is a paid contract, which, in principle, cannot be free of charge. A donation contract, on the contrary, by its legal nature is a gratuitous contract, which, in principle, cannot be compensated. Most of the contracts are of a reimbursable nature, which corresponds to the nature of social relations regulated by civil law.2.6. Free and binding contracts
On the basis of the conclusion, all contracts are divided into free and mandatory. Free - these are contracts, the conclusion of which depends entirely on the discretion of the parties. Conclusion binding treaties, as their very name suggests, is binding on one or both parties. Most contracts are free. They are concluded at the request of both parties, which fully corresponds to the needs of the development of a market economy.Among binding contracts, public contracts are of particular importance. In accordance with this article, a public contract is characterized by the following features:
A public contract is a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it ( retail, transportation common use, communication services, energy supply, medical, hotel services, etc.). This activity is associated with the fulfillment of the obligation to sell goods, perform work and indicate services in relation to everyone who applies to a commercial organization, i.e., the activity must be public. It is this sign that gave the name to the contract, although in its content it is civil law, regulated by private law.
In the absence of at least one of these features, the contract is not public and is considered as a free contract.
The practical significance of singling out public contracts is that rules that differ from the general norms of contract law apply to public contracts. Such special rules applicable to public contracts include the following:
A commercial organization is not entitled to refuse to conclude a public contract if it is possible to provide the consumer with the relevant goods, services, perform appropriate work for him.
If a commercial organization unreasonably evades the conclusion of a public contract, the other party shall have the right in court to demand the conclusion of this contract with it in accordance with the provisions applicable when concluding a contract in without fail.
The price of goods, works and services, as well as other conditions of a public contract, are established the same for all consumers, except for cases when the law and other legal acts allow the provision of benefits for certain categories consumers.
In cases stipulated by law, the Government of the Russian Federation may issue rules binding on the parties when concluding and executing public contracts ( standard contracts, positions, etc.).
The terms of a public contract that do not meet the requirements of Article 426 of the Civil Code are void.
2.7. Mutually agreed agreements and accession agreements
These contracts differ depending on the method of their conclusion. When concluding mutually agreed contracts, their terms are established by all parties participating in the contract. When concluding accession agreements, their conditions are established only by one of the parties. The other party is deprived of the opportunity to supplement or change them and can conclude such an agreement only by agreeing to these conditions (by acceding to these conditions).An accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and could be accepted by the other party only by joining the proposed agreement as a whole. Along with the public (Article 426) of the Civil Code introduces another the new kind contracts - contract of accession. A sign that allows you to highlight this contract is the procedure for concluding and developing its conditions.
The name of the contract reflects its essence, which consists in the fact that the contract proposed by one party with standard conditions the second side presto joins without affecting its content (conditions). However, in this case, the principle of freedom of contract is not violated, since it is up to the acceding party to decide whether to conclude a contract or not. It follows from this that one of the conditions for using the accession agreement, as a rule, should be the possibility of choosing a counterparty from among those who offer the accession agreement.
The party that has acceded to the contract has the right to demand termination or amendment of the contract if the contract of accession, although it does not contradict the law and other legal acts, deprives this party of the rights usually granted under contracts of this type, excludes or limits the liability of the other party for breach of obligations, or contains other explicitly burdensome conditions for the acceding party, which, based on its reasonably understood interests, it would not accept if it had the opportunity to participate in determining the terms of the contract.
The features of an accession agreement are as follows:
1. the contract is developed by one party using a form or other standard form; the other party does not participate in determining the terms of the contract;
2. a form or other standard form of the contract is developed by the party itself that offers (uses) the adhesion contract. Such a form, a different standard form than the standard or exemplary contract not subject to approval and does not require publication in the press;
3. the offeror is the party that developed the accession agreement;
4. Acceptance of the accession agreement is the consent to conclude such an agreement, expressed by signing on the form (standard form) or by performing conclusive actions, for example, in cases provided for in paragraph 2 of Article 494 and Article 498 of the Civil Code;
5. As a rule, the accession agreement is accepted in its entirety, i.e. a protocol of disagreements cannot be drawn up against it (objections are presented in a different form). In case of disagreement on at least one of the conditions of the accession agreement, it is recognized as not concluded;
6. The terms of the accession agreement must comply with the Civil Code, other laws or other legal acts, reflect the rights usually granted under agreements of this type.
A party that has acceded to a treaty in connection with the exercise of its entrepreneurial activity, must be careful, because it is granted the right to demand termination or amendment of the accession agreement only in cases where it proves that it did not know or should not have known on what conditions the agreement was concluded.
2.8. Contracts in favor of their participants and contracts in favor of third parties
As a rule, agreements are concluded in favor of their participants and the right to demand the execution of such agreements belongs only to their participants. At the same time, there are also contracts in favor of persons who did not take part in their conclusion, i.e. with. agreements for the benefit of third parties.A contract in favor of a third party is a contract in which the parties have established that the debtor is obliged to perform performance not to the creditor, but to a third party specified or not specified in the contract, who has the right to demand from the debtor the performance of the obligation in his favor. A contract in favor of a third party should be distinguished from a contract on performance to a third party (for example, when the supplied products are shipped not to the buyer, but to the recipients named in its order), when this third party can accept performance, but is not entitled to present claims to the debtor for the performance of the contract in your favor. Accordingly, the rules of Article 430 of the Civil Code are not applicable to such contracts.
Unless otherwise provided by law, other legal acts or the contract, from the moment the third party expresses to the debtor the intention to exercise their right under the contract, the parties cannot terminate or change the contract they have concluded without the consent of the third party. The debtor in the contract has the right to put forward objections against the claim of a third party, which he could put forward against the creditor. The third party in whose favor the contract is concluded may or may not be indicated in accordance with paragraph 1 of Article 430 of the Civil Code.
3. Parties to the agreement
Participants of relations regulated by civil law are citizens and legal entities. In addition, the Russian Federation, subjects of the Russian Federation and municipalities also participate in these relations.Accordingly, the parties to the agreement are citizens, legal entities, as well as on behalf of the Russian Federation, constituent entities of the Russian Federation or municipalities, bodies authorized by them within the competence established by the acts determining the status of these bodies.
In order for the contract to be recognized as valid, all parties to the contract must be fully legal and capable.
Civil legal capacity, i.e. the ability to have civil rights and bear obligations is recognized equally for all citizens and arises at the moment of their birth and ends with death.
The legal capacity of citizens includes the right of citizens:
own property;
inherit and bequeath property;
engage in entrepreneurial and any other activities not prohibited by law;
create legal entities independently or jointly with other citizens and legal entities;
Civil capacity is the ability of a citizen to acquire and exercise civil rights by his actions, to create civil duties for himself and to fulfill them. It occurs in full with the onset of adulthood, that is, upon reaching the age of eighteen.
An individual, being a party to a civil law contract, can act both personally, if the contract is not related to entrepreneurial activity (for example, a contract for the sale of residential premises for personal use), and as an individual entrepreneur (this requires special state registration as such).
The legal capacity of a legal entity arises at the moment of its creation and terminates at the moment of completion of its liquidation. For legal entities, the concept of legal capacity and legal capacity are the same.
In accordance with Russian legislation a legal entity is an organization that owns, manages or manages separate property and is liable for its obligations with this property, may, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and a defendant in court.
Legal entities must have an independent balance sheet or estimate.
Any legal entity is subject to state registration and is considered established from the moment of such registration.
The civil rights and obligations of a legal entity correspond to the objectives of the activity provided for in its constituent documents.
Commercial organizations may enter into contracts necessary for any type of activity not prohibited by law.
It should be borne in mind that certain types of activities require a special permit (license). Therefore, when concluding an agreement, it is necessary to make sure that the counterparty has the appropriate license. The right of a legal entity to carry out activities for which a license is required arises from the moment such a license is received or within the period specified in it and terminates upon the expiration of its validity period, unless otherwise provided by law or other legal acts. For example, when concluding a construction contract, it is necessary to check whether the contractor has a license to perform the relevant types of work.
An agreement may be signed on behalf of a citizen by him personally, on behalf of a legal entity - by an official authorized to do so by the constituent documents of this legal entity.
The law also allows the signing of the contract by their representatives if the latter have the appropriate powers (based on a power of attorney, an indication of the law or an act of an authorized state body or local government body). A transaction made by a representative directly creates, changes and terminates the civil rights and obligations of the represented.
4. Drawing up a contract
4.1. General provisions
When starting to draw up a contract, it must be clearly remembered that every word in the contract matters. Therefore, the contract must be drawn up by using precise wording. As experience shows, unscrupulous counterparties may specifically include in the contract unclear (but well understood by themselves) wordings and provisions in which the interests of the other partner may be infringed. In the event of a dispute over the terms of the execution of the contract, the counterparty may try to use any inaccurate wording in the contract in its favor.The development of a free market sometimes requires the adoption of non-standard decisions, and therefore modern legislation provides the parties to the contract with the right to conclude contracts, both provided and not provided for by law or other legal acts. In addition, the parties may conclude an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). At the same time, the relations of the parties under a mixed contract will be applied in the relevant parts of the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract. They require a fairly high legal qualification. Otherwise, if a dispute arises under such an agreement, the parties may expect an unpleasant surprise when the court determines the law applicable to this agreement and it turns out that the relations of the parties, including liability for violation of their obligations under this agreement, are not established in the same way as the parties counted. Unfortunately, this is a fairly common practice.
The parties to the contract may determine its terms at their own discretion in all cases where the content of the relevant term is not determined by law or other legal act of a strictly binding nature (imperative norms). That is, the principle of "freedom within the framework of the law" applies.
However, for civil law, mandatory regulation of the relations of the parties is not typical. In most cases, the condition of the contract is determined by the norm, which is applied insofar as the agreement of the parties does not establish otherwise (dispositive norm). Thus, the parties may, by their agreement, establish a condition different from that provided for in the dispositive norm. At the same time, if the parties, for some reason, did not agree on a solution to this issue, it will still not be unresolved. In this case, just the dispositive norm will operate.
If any condition is not determined by the parties in the contract or by a dispositive norm of the law, the relations of the parties on this issue are determined by the business customs applicable to the relations of the parties.
When concluding a contract, the parties express their will in the form of an intention to conclude a contract. At the same time, each party seeks to conclude an agreement on the most favorable terms for itself. In the process of concluding a contract, the wills of the parties are agreed. Thus, the contract is a compromise between the parties on the issue of interest to them. If such a compromise is not reached, the conclusion of the contract is impossible, except in cases where the conclusion of the contract is obligatory for the parties (by virtue of law or contract). In this case, the dispute may be referred to the court.
Unlike such acts, the Civil Code requires strict observance of imperative norms. The parties are free to change only norms that are dispositive in nature.
4.2. Details of the contract
name of the contract (title)place of contract
Location (address) of the enterprise
TIN ( identification numbers taxpayers
Bank details of the parties
Shipping details
make any transactions that do not contradict the law and participate in obligations;
choose a place of residence;
have other property and personal non-property rights.
The name of the agreement indicates the legal nature of the drawn up document, for example: "Property Lease Agreement". When determining the title of the contract, one should not come up with names that differ from those provided by law for these types of contracts. So, for example, it is common practice to call an agreement on joint activities a "simple partnership agreement" a "cooperation agreement", a "partnership agreement", etc. to disguise it legal nature. However, when checking or adjudicating a dispute under such an agreement, the truth is still found and this agreement is properly qualified. Possible option" is an indication of only the word "Contract" at the beginning of the document.
The date of drawing up the contract is a necessary requisite, in many cases allowing to determine the beginning of the flow of terms under the contract, especially for contracts that come into force from the date of signing.
Usually the date is placed after the title before the text. A simple written form is characterized by writing numbers in numbers, and months in a word. In notarized contracts, as a rule, it is required to write the entire date in words (date, month and year).
The place of conclusion of the contract is also usually indicated at the beginning of the contract after the heading.
If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or the location of the legal entity that sent the offer (Article 444 of the Civil Code).
Particular attention should be paid to verifying the availability and correctness of information regarding the bank details (settlement account number, bank institution, bank code, MFI or RCC data) of the partner, since without them it will be very difficult for the organization to recover losses.
In cases where the payment under the contract must be made not to the party under the contract, but to a third party (for example, in the manner of mutual settlements), then the fact of this redirection of payment must be recorded in writing, either in the text of the contract itself, or in an additional bilateral protocol to the treaty.
Preamble to the treatyThis part should include:
1. type of contract;
2. date and place of signing the contract;
3. full company names of the parties in accordance with the state registration data, as well as abbreviated names in the contract ("Customer", "Contractor", "Supplier");
4. Positions, surnames, names and patronymics of the persons signing the contract, as well as their authority to sign the contract (for example, the reference "by proxy").
Essential conditions
Conditions that are necessary and sufficient for the conclusion of the contract are recognized as essential. In order for the contract to be considered concluded, it is necessary to agree on all its essential conditions. The contract will not be concluded until at least one of its essential conditions is agreed upon. Therefore, it is important to clearly define the conditions for this agreement are essential.
In accordance with the Civil Code (Article 432), the following conditions are recognized as essential:
About the subject of the contract;
Regarding which, at the request of one of the parties, an agreement must be reached;
Which are named in the law or other legal acts as essential or necessary for contracts of this type.
The subject of the contract must define the relations in respect of which the contract is concluded, as well as some additional information in cases established by law.
Sometimes the law establishes certain requirements for the subject of the contract.
It is necessary to distinguish between the subject of the contract and the object of the contract.
The object of the contract is the property in respect of which this or that contract is concluded.
Thus, the concept of the subject of the contract is wider than the concept of the object of the contract and includes it. When drawing up this section of the contract, it should be taken into account that the subject of the contract, as a rule, can be established from the first article in each section of the Civil Code in relation to the contracts specified in it.
If the parties determine in advance or at the conclusion of the contract that it is a significant issue for them, for example, on the procedure for amending the contract, then in the absence of a corresponding condition in the contract, despite the fact that it is not essential for contracts and is sufficiently fully regulated by law, the contract will be considered void.
Mandatory requirements for the terms of the contract may be established by law, and not only by civil law, but also by the norms of other branches of law.
The conditions provided for in the relevant regulatory enactments automatically enter into force at the time of the conclusion of the contract. This does not mean that the usual terms operate against the will of the parties to the contract. It is assumed that if the parties have reached an agreement to conclude this agreement, then by doing so they have agreed to the conditions contained in the legislation on this agreement.
As noted above, for each individual type of contract, the legislation defines the essential conditions. However, it is possible to single out conditions that are essential for most contracts used in construction.
One of the essential conditions of many contracts is the time period for the parties to fulfill their obligations. In practice, it is very rare to find a contract without specifying specific deadlines for the fulfillment of the obligations assumed.
Terms in the contract are specified in the following ways:
Determination of a fixed date for the delivery or provision of services;
Establishing a period, that is, the period of time for which obligations must be fulfilled (decade, month, quarter, year);
An indication of the fulfillment of obligations in parts or stages. In this case, the obligations are carried out according to the calendar plan. This plan is fixed in the text of the contract: "Appendix N 1 (document name) on ____ sheets. in ___ copies."
In the text of the contract, it should be noted that "Appendix No. 1 (or 2)" is an integral part of the contract (with reference to the number and date of the concluded contract.
The deadlines for fulfilling obligations can be associated not only with a time period, but also with any action of the partner (for example, prepayment, advance payment), which should be reflected in the terms of the contract accordingly.
An essential condition of the contract is also the price of the contract. The contract price is the price payable under the contract.
The contract price may include not only the direct cost of works, services or goods, but also taxes in cases provided for by law. Thus, for construction contracts, when specifying the price in the text, value added tax must be provided. The absence of an indication of the amount of VAT may lead to the fact that the contractor has the right to demand payment for the work performed in an amount increased against the price established in the contract by the amount of VAT, that is, by 20%.
Additional terms
As noted above, the parties may include in the contract any additional or, in other words, optional terms of the contract that do not contradict the mandatory norms of the law.
The part of the contract that includes additional conditions may significantly affect the implementation of the rights and obligations of the parties.
Of course, it is impossible to describe all possible additional conditions. In their preparation, the parties proceed from the specific circumstances of the case. It can only be noted that the use of optional conditions makes it possible to limit the arbitrariness of the strong party in the performance of the contract and contributes to the protection of the weaker party.
In most cases, it seems appropriate for the parties to determine in more detail the procedure and form of settlements, which can be used as a means of ensuring the convenience and reliability of the fulfillment by the parties of their obligations under the contract. So, if the contract does not include a condition on the form of payment and the law does not contain a corresponding dispositive norm, the debtor will be able to choose any of the forms of payment provided for by the current legislation. However, if this condition is included in the contract, then the debtor will already be obliged to use the form of payment provided for by the contract. The definition by the parties as a form of payment, for example, for the delivered goods of a letter of credit issued on short term, corresponding to the period of shipment of the goods, will be in more protect the interests of the buyer and encourage the supplier to fulfill its obligations in a timely and complete manner, than prepayment payment orders.
Important additional conditions refers to an indication in the contract of the duration of the contract. The importance of this provision is due to the fact that it is necessary to know exactly when the contract terminates and when it will be possible to present the corresponding requirements to the partner.
Along with the methods of securing obligations established in the Civil Code (forfeit, pledge, guarantee, deposit, retention and bank guarantee) or instead of them, the parties may introduce, as a kind of way to ensure the fulfillment by the parties of their obligations under the contract, a change in the procedure and form of settlements in the direction of tightening them for the offending party. For example, include in the contract a condition that in case of repeated (i.e. more than once) delay in the fulfillment of any obligations under the contract, a different form of payment will be applied. If such a provision is included in the supply contract, for example, it can be specified that in case of repeated delay in delivery due to the fault of the supplier, the buyer will pay for subsequent consignments of goods, for example, not advance payments, but on the fact of shipment of goods.
When determining penalties, it should be taken into account that if the non-payment penalty is clearly disproportionate to the consequences of the violation of the obligation, the court will have the right to reduce its amount in accordance with Article 333 of the Civil Code.
The inclusion of a so-called arbitration clause in the contract is widespread.
In this case, the following main options are possible:
1. The contract provides for a claim procedure for resolving disputes before the court (in the event that a claim procedure is not provided for by law for this contract).
2. In the absence of special clauses in the contract or if there is an indication in the contract that the disputes that have arisen are resolved in the prescribed manner, disputes between the parties will be resolved by the court, as a rule, at the location of the defendant, in accordance with the procedure established by the current legislation of the Russian Federation. However, in the cases established by Article 120 of the Code of Civil Procedure, the parties may, at their discretion, change the territorial jurisdiction for disputes under the contract, for example, by determining the place of consideration of disputes by the court not the location of the seller, but the location of the buyer.
3. In order to simplify and reduce the cost of the procedure for resolving disputes under a contract, the parties may provide for their transfer to an arbitration court. In this case, the parties must agree on the name and location of the permanent arbitration court or determine the procedure for the formation of the arbitration court, in particular, indicate the number of judges, the language of the proceedings and other issues immediately after signing this agreement, since if one of the parties subsequently evades this, the dispute will remain unresolved.
4. For foreign trade agreements, the so-called standard arbitration clause is used stating that disputes arising from this agreement are subject to resolution in arbitration acting under the UNCITRAL rules governing the formation of an arbitration court, including in the event that one of the parties evades the approval of candidates arbitrators.
When determining the liability of the parties for failure to perform or improper performance them of their obligations under the contract should take into account that it is determined in accordance with general provisions legislation (Article 15, 401 and others of the Civil Code), taking into account the specifics provided for by law or contract.
Also, the contract should provide for circumstances that relieve the parties from liability (force majeure). In the absence of relevant provisions in the contract, this issue will be regulated by the norms of the law, in particular Article 401 of the Civil Code, which establishes that a person who has not fulfilled obligations or performed improperly is liable if there is fault in the form of intent or negligence. A person is recognized as innocent if, with the degree of care and diligence required of him by the nature of the obligation and the conditions of turnover, he took all measures for the proper performance of the obligation. The absence of guilt is proved by the person who violated the obligation.
However, other conditions of liability may be established by law. So, for example, a person who has not fulfilled or improperly fulfilled his obligations in the course of entrepreneurial activity shall be liable regardless of fault. The only ground (unless otherwise provided by law or contract) that relieves him from liability will be force majeure, that is, extraordinary and unavoidable circumstances under the given conditions. It should be noted that such circumstances do not include, in particular, a breach of obligations by the debtor's counterparties, the absence of the goods needed for execution on the market, and the debtor's lack of the necessary funds.
In practice, proving by the defendant that the event that caused the failure to fulfill his obligation under the contract is a force majeure is quite difficult. In the only article of the Civil Code of the Russian Federation devoted to this, there are no clear criteria that allow one or another event to be classified as force majeure with a sufficient degree of certainty. In this regard, there is a practice of listing in the terms of the contract specific events that the parties attribute to force majeure (force majeure circumstances).
The contract must provide for the grounds for changing or terminating the contract unilaterally (Chapter 29 of the Civil Code).
In addition to the above, today it becomes relevant to include in the contract the rules governing confidentiality issues, especially if the parties impose increased requirements for the preservation of trade secrets.
Other terms of the contract
Other conditions are such conditions that change or supplement the usual conditions. They are included in the text of the contract at the discretion of the parties. Their absence, as well as the absence of the usual conditions, does not affect the validity of the contract. However, unlike ordinary ones, they acquire legal force only if they are included in the text of the treaty. Unlike essential ones, the absence of a random condition only entails the recognition of this contract as not concluded if the interested party proves that it demanded the agreement of this condition.
Other terms of the contract may include the following issues:
2. Features of the coordination of communication between the parties with a link
To the list of persons authorized to provide information and resolve issues related to the execution of the contract;
For the duration of communication between the parties;
On the methods of communication (telephone, fax, telex, telegraph, teletype with indication of numbers and other data).
3. The fate of the pre-contractual work and its result after the signing of the contract.
(This paragraph usually contains a provision according to which the parties establish that after the signing of the contract, all preliminary negotiations on it, correspondence, preliminary agreements and protocols of intent lose their force).
4. Number of copies of the contract.
5. Signatures and seals of the parties.
5. Approximate contract structure
Although it is not possible to define the structure of an abstract treaty or to develop such a structure as universal, suitable for all types of contracts, nevertheless, it is very common to encounter requests for its development. This is how this "scheme" of the contract was prepared, which should, of course, be applied taking into account the specifics of drawing up a particular type of contractIn view of the foregoing, the following approximate structure of the contract is proposed.
1. Details of the contract:
a) the name of the contract;
b) the place of his imprisonment;
c) the date of conclusion of the contract.
2. Preamble (includes the names of the parties and an indication that they have entered into this agreement).
3. Subject of the contract (including specifying the object of the contract).
4. Term of the contract (if necessary).
5. Rights and obligations of the parties.
6. Settlements of the parties.
7. Responsibility of the parties.
8. The term of the contract and its early termination.
9. Dispute resolution.
10. Final provisions.
11. Legal addresses and bank details of the parties.
12. Signatures of the parties.
6. Conclusion of the contract
6.1. General provisions
In order for the parties to reach an agreement and thereby conclude a contract, it is necessary that at least one of them makes an offer to conclude a contract, and the other accepts this offer. Therefore, the conclusion of the contract goes through two stages. The first stage is called the offer, and the second - the acceptance. In accordance with this, the party making the offer to conclude a contract is called the offeror, and the party accepting the offer is called the acceptor. The contract is considered concluded when the offeror receives an acceptance from the acceptor.An offer is recognized as an offer addressed to one or several specific persons, which is quite definite and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee who will accept the offer.
At the same time, not every proposal to conclude a contract acquires the force of an offer. An offer recognized as an offer, in accordance with Article 435 of the Civil Code:
a) must be sufficiently specific and express the clear intention of the person to conclude the contract;
c) must be addressed to one or more specific persons.
The first requirement is due to the fact that without the intention of the person to conclude an agreement, the latter cannot be concluded, even if this person informed the counterparty of all the essential terms of the agreement. The second requirement follows from paragraph 1 of Article 432 of the Civil Code, according to which the contract is considered concluded if an agreement is reached between the parties on all the essential terms of the contract. If the proposal to conclude a contract lacks at least one of the essential conditions, it cannot be concluded, even if the other party agrees with such a proposal. Finally, the third requirement is due to the fact that at the time of the conclusion of the contract, the proposal to conclude it must be withdrawn. Otherwise, several contracts may be concluded with regard to the same subject, of which only one can actually be executed.
It is necessary to distinguish a public offer from a call for an offer. A public offer is understood as a proposal containing all the essential terms of the contract, from which the will of the person making the offer is seen to conclude an agreement on the conditions specified in the proposal with anyone who responds (clause 2 of article 437 of the Civil Code). An offer to an indefinite circle of persons expressing the will of the person who made it to conclude an agreement and containing all the essential terms of the agreement is an offer, which the Civil Code calls public. A public offer is possible both in writing and orally (on radio, television, through a microphone, etc.), however, it must contain the essential terms of the contract.
Acceptance is the consent of the person to whom the offer is addressed to accept this offer, and not any consent, but only one that is complete and unconditional (clause 1 of article 438 of the Civil Code). If the agreement in principle to the proposal to conclude an agreement is accompanied by any additions or changes in the conditions.
The performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the conditions of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or not specified in the offer (clause 3 of article 438 of the Civil Code).
Having the necessary features, an offer and an acceptance give rise to certain legal consequences for the persons who made them. The legal effect of an offer depends on whether it was received by its addressee or not. Until the offer is received by its addressee, it does not bind the offeror in any way and he has the right to withdraw it and thereby withdraw the offer to conclude an agreement. If the proposal to withdraw the offer was received earlier or simultaneously with the offer itself, the offer is considered not received (clause 2 of article 435 of the Civil Code). Like an offer, an acceptance binds the acceptor from the moment it is received by the offeror.
Before the acceptance is received by the offeror, the acceptor has the right to withdraw the acceptance. Moreover, if a notice of withdrawal of acceptance was received by the person who sent the offer before the acceptance or simultaneously with it, the acceptance is considered not received (Article 439 of the Civil Code). If the notice of withdrawal of acceptance was received by the person who sent the offer before the acceptance or simultaneously with it, the acceptance shall be deemed not received. Like an offer (Clause 2, Article 435 of the Civil Code), an acceptance may be withdrawn, provided that such withdrawal is received by the offeror earlier or at least simultaneously with the acceptance.
The legal effect of an offer also depends on whether it is made with or without a deadline for a response. If the offer is made with an indication of the deadline for a response, then the contract is considered concluded if the acceptance is received by the person who sent the offer within the period specified in it (Article 440 of the Civil Code). If the offer is made without specifying a deadline for a response, then its legal effect depends on the form in which it is made. When an offer is made orally without specifying a deadline for acceptance, the contract is considered concluded if the other party immediately declared its acceptance. If there is no such acceptance, then the offeror is in no way bound by the offer he made. When an offer is made in writing without specifying a period for acceptance, the contract is considered concluded if the acceptance is received by the person who sent the offer before the expiration of the period established by law or other legal acts, and if such a period is not established, within the period normally necessary for this. time (Article 441 of the Civil Code). If the acceptance is received late, then the fate of the contract depends on the offeror, who can ignore the late response and agree to the conclusion of the contract or refuse to conclude the contract due to a delay in responding to his offer. If the offeror, who received the late acceptance, immediately informs the other party of the acceptance of his late acceptance, the contract is considered concluded.
The answer about the consent to conclude a contract on other terms than those proposed in the offer is not an acceptance.
Such a response is recognized as a refusal of acceptance and at the same time a new offer.
By virtue of Article 438 of the Civil Code, the acceptance must be complete and unconditional. Therefore, consent to conclude a contract on other conditions is not an acceptance, regardless of the nature and significance of such conditions (Article 443 of the Civil Code). The parties in this case change places: the acceptor becomes the offeror with all the ensuing consequences. If the parties themselves cannot resolve the disagreements that arose during the conclusion of the contract, then they have the opportunity to come to an agreement on the transfer of the dispute that has arisen to the court (Article 446 of the Civil Code). In this case, the terms of the contract, on which the parties have not reached an agreement, are determined in accordance with the decision of the court.
If the addressee did not react at all to the proposal to conclude an agreement, then his silence is considered, as a general rule, as a refusal to conclude an agreement.
When concluding contracts, the question of the time and place of the conclusion of the contract is of great importance. The contractual relationship shall be governed by the legislation in force at the time of its conclusion in the territory where it was concluded. The agreement is considered concluded at the moment when the offeror has received the consent of the acceptor. This moment is recognized as the time of the conclusion of the contract.
If the contract does not indicate the place of its conclusion, the contract is recognized as concluded at the place of residence of the citizen or the location of the legal entity that sent the offer.
The place of conclusion of the contract is important primarily for determining the law applicable to the contract: acts of joint jurisdiction of the Russian Federation and its subjects, if the subjects of the Federation provide different regulation, as well as local customs, which in certain regions of the Russian Federation may have features.
The place of conclusion of the contract is also essential for solving some other issues, for example, setting the price in a paid contract, if it was not provided for and should be determined in relation to the price that. under comparable circumstances, it is usually charged for similar goods, works and services (clause 3 of article 424 of the Civil Code). The place of conclusion of the contract must also be taken into account when interpreting the terms of the contract.
The contract can also be concluded directly through negotiations between the parties. The algorithm for concluding a contract might look like this:
1. Selection of a potential partner (counterparty).
2. Coordination of the form of terms, dates of negotiations "face to face" on the conclusion of an agreement with a potential counterparty.
3. Appointment of a person (department) to conduct negotiations and commission the legal service to prepare a preliminary draft of the contract.
4. Approval of the draft contract by the chief accountant, head of financial and planning departments; collection of visas and control by the departments that draw up the draft contract.
5. Approval of the draft contract by the head of the legal service and transfer to the person responsible for negotiating.
6. Signing of the final agreement or protocol for reconciliation of disagreements to the initial draft and the project itself by authorized representatives of both parties following the results of negotiations.
After passing all the stages, the contract is considered concluded. If the negotiations end with the signing of the preliminary contract with the initial draft and the protocol for reconciliation of disagreements attached to it, they are sent for giving conclusions to the units that endorsed the contract. The prepared conclusions are sent to the legal service.
7. Approval of the final version of the contract by the legal service of the relevant departments and submission for signature to the head or authorized deputy head of the organization; the document must be drawn up in at least two copies and certified by the seals of both organizations.
The leaders of any construction organization must remember that before entering into an agreement with an unknown organization as a partner (counterparty), you must try to get as much information about it as possible. You need to make sure that such an organization really exists. To do this, you should familiarize yourself with its constituent documents (charter, constituent agreement) and a certificate of state registration. It is necessary to pay attention to who are its founders, what is the size of its authorized capital and whether it is formed, where the office is located (and not the so-called legal address), in which bank the organization is serviced, what is its financial position and commercial reputation.
When signing the contract, it is imperative to check the authority of the partner's representative. At the same time, you need to make sure that he has the legal right and authority to sign the document.
6.2. Mandatory signing of a contract
This procedure is applied in cases where the conclusion of an agreement is mandatory for one of the parties by virtue of law, i.e. when concluding binding contracts. When concluding a contract, the rules of Article 445 of the Civil Code are applied without fail.In cases where, in accordance with this Code or other laws, it is mandatory for the party to whom the offer (draft agreement) is sent to conclude an agreement, this party must send the other party a notice of acceptance, or refusal of acceptance, or acceptance of the offer on other conditions (minutes of disagreement to the draft contract) within thirty days from the date of receipt of the offer.
The party that sent the offer and received from the party for whom the conclusion of the contract is obligatory, a notice of its acceptance on other terms (the protocol of disagreements to the draft contract), has the right to transfer the disagreements that arose during the conclusion of the contract to the court within thirty days from the date of receipt of such notice or expiration of the acceptance period. The article provides for the procedure and terms for concluding a contract for those cases where the Civil Code or other laws establish the obligation to conclude a contract. The norms included in the article are given a dispositive character, i.e. The parties may agree on other procedures and terms. In addition, these rules do not apply if there are special rules, for example, rules on the procedure and terms for concluding a state contract (agreement) for the supply of goods for state needs (Articles 528 and 529 of the Civil Code) and a contract for the performance of contract work for state needs ( article 765 of the Civil Code).
In cases where, in accordance with this Code or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged, within thirty days from the date of receipt of the protocol disagreements, notify the other party of the acceptance of the agreement in its wording or the rejection of the protocol of disagreements.
If the protocol of disagreements is rejected or the notice of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.
The article established several options for concluding a contract without fail. In the first option, the buyer (customer, tenant) acts as the offeror, in the second option, the obligated party.
None of these options provides for a deadline for submitting an offer (draft agreement). Judicial arbitration practice proceeds from the absence of grounds for compelling the obligated party to conclude an agreement if the other party has not previously applied to it with a proposal to conclude an agreement.
The rules on terms are applied if other terms are not established by law, other legal acts or are not agreed by the parties.
As a rule, the offer must come from the consumer of goods, works, services (buyer, customer). It can be sent in the form of a draft agreement - one document signed by the parties, or another written document by post, telegraph, telephone, electronic or other communication. The second party (obliged) must return the signed draft agreement (accept the offer in a different form provided for in Articles 434 and 438 of the Civil Code) or notify the counterparty of the refusal to accept or accept the offer on other conditions. These actions must be completed within 30 days, including the time required to deliver the draft contract (notice) to the offeror.
If a party, for whom, in accordance with this Code or other laws, the conclusion of a contract is mandatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of the contract.
A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.
In the second option, the draft agreement in the form of a single document signed by the parties (an offer in a different form) is sent by the obligated party. The other party has the right within thirty days:
a) return the signed draft agreement (notice of acceptance of the offer) without objection;
b) return the contract with the protocol of disagreements;
c) notify the offeror of the refusal to conclude the contract.
It must be emphasized that the second party has the right, but is not obliged to conclude an agreement, however, in order to return the signed agreement or notify the obligated party of the acceptance of the offer (acceptance of the offer), or the refusal of acceptance, a period is set that must be observed by the counterparty of the obligated party; At the same time, acceptance is also possible in the form of conclusive actions, i.e. use of goods, services offered by the obligated party.
If the obligated party rejects the conditions proposed to it, does not resolve the disagreements within 30 days, or does not receive notice of the results of their consideration within this period, the other party - the buyer (customer) has the right to refer the disagreements that arose during the conclusion of the contract to the court.
From this norm, for a long time in practice, it was concluded that both in the first and in the second version of the conclusion of the contract, only the party for whom the conclusion of the contract is a right, not an obligation, can go to court with disagreements.
Although if the dispute is not referred to the court and the parties do not settle the disagreements, the contract is recognized as not concluded by virtue of Article 433 of the Civil Code, the obligated party is often interested in the intervention of the court in reconciling the disagreements that have arisen. In judicial and arbitration practice, there were cases of consideration of disagreements submitted to the court by the obligated party, in the absence of objections from the second party to the consideration of the dispute.
Capital construction can be carried out by contract, economic or mixed methods (contractor and economic), primarily due to the procedure for financing costs and the relationship of the parties in the construction process.
The construction of facilities and the performance of work by contract is the predominant method.
With the contract method of construction, construction and installation work is carried out by specialized organizations that have licenses to perform the relevant types of construction work, on the basis of a construction contract (contract) with the customer. The work contract is the main legal document regulating the relationship of construction participants. The contract method of doing work has a number of advantages. It provides conditions for the intensification of construction based on the maximum use of structures, parts, prefabricated units, the latest construction equipment, and advanced methods of work. Contracting organizations have a permanent staff of construction workers, production funds, and perform work using industrial methods. This method of work allows to reduce the duration of construction, improve quality, reduce construction costs, and ensure the growth of savings.
The subject matter of the contract is:
construction, reconstruction of an enterprise, building, structure or other facility;
performance of construction and other special installation works.
The rules for concluding and executing agreements (contracts) also apply to major repairs of facilities.
Customers and contractors (general contractors, subcontractors) may be legal entities and individuals of the Republic of Belarus and other states.
As a customer in the contract method of conducting work are: the management of the operating enterprise, organizations, individual citizens. The function of the customer in state-owned new buildings for industrial purposes, as well as large non-industrial facilities built according to individual projects, can be performed by a specially organized directorate of the enterprise under construction.
During the construction of residential buildings of social and cultural facilities and public utilities in regions, cities, districts, a single customer service is created, which implements investment programs at the expense of the republican and local budgets, as well as funds from legal entities and individuals contributing them in the form of equity participation .
During the construction of facilities for state needs, a state customer is determined from among state governing bodies that have the necessary investment resources, or organizations entitled to dispose of such resources.
The Directorate or, respectively, other bodies are the administrators of all funds allocated to finance investment projects and expenses. They conclude contracts with design, construction organizations, equipment suppliers, for the implementation of design, construction and installation works, for the supply of equipment.
The choice of the contractor is carried out:
for objects for which contract tenders are held - according to their results;
for objects for which contract tenders are not held - at the discretion of the customer.
The customer can transfer part of the duties, as well as the authority to make decisions on his behalf in relations with the contractor, to the engineer (engineering organization). Relations between them are regulated by a contract for the provision of services. In this case, the consent of the contractor to conclude such an agreement is required.
The contractor has the right to attract, on the basis of subcontracts, including on competitive terms, to perform certain types of work subcontractors. The fulfillment of the obligations of the customer for the work for which the general contractor has concluded a subcontract is assigned to the general contractor, and the obligations of the contractor - to the subcontractor. The general contractor is responsible to the customer for all work performed by him and the subcontractor.
A two-year warranty period is established for the objects accepted for operation and construction work performed.
The contract is concluded if the customer has: an appropriate document certifying the rights to the land plot, decisions of local executive and administrative bodies for the construction of the facility; design estimates that have passed the state non-departmental examination, agreed and approved in the prescribed manner, if the obligation to develop it is not assigned to the contractor; protocol on contract bidding; protocol on the results of contract tenders and selection of their winner.
The contractor has a license to perform the relevant types of construction work, valid on the territory of the Republic of Belarus.
The contract may be signed by the parties no later than 20 days after the completion of contract bidding and execution of the protocol. If one of the parties evades the conclusion of a work contract, the other party has the right to apply to the economic court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by evasion from its conclusion.
If contract bidding is not mandatory, then the contract is concluded on the basis of negotiations and agreement of the parties; it can be prepared by the customer or the contractor or jointly by the parties. Prior to concluding a work contract, the customer and the contractor may conclude a preliminary contract that defines the relationship of the parties at the stage of preparation for the construction of the facility.
When preparing a work contract by the contractor, the customer submits to him, within the agreed time frame, the documents indicated above, as well as:
proposals on the price and terms of construction of an object or performance of a type of construction work;
payment schedule;
delivery schedule for structures, materials, products, equipment and inventory, if their delivery is assigned to the customer by agreement of the parties;
the schedule for the implementation of commissioning works when putting the facility into operation in the planned year;
a schedule for combining the types of construction work and production processes at existing facilities, indicating, if necessary, the possible timing of a temporary stop to production, as well as the exclusion of land from agricultural circulation in order to create appropriate conditions for the performance of construction work; and other documentation.
The term for consideration by the contractor of these documents, drawing up and signing the work contract is determined by agreement of the parties, but should not exceed 30 days.
Within the specified period, the contractor develops a schedule for the production of work, as well as a schedule for the supply of structures, materials, products, equipment and inventory, the implementation of which he assumes. These schedules are attached to the draft contract.
The contractor, sending the signed draft contract to the customer, determines the normally necessary period (at least 20 days) during which the customer is obliged to consider this draft and give an answer. If the conclusion of the contract is mandatory, the customer must respond within 30 days from the date of receipt of his project. The customer, in case of disagreement with certain conditions of the received draft contract for work, has the right to draw up a protocol of disagreements with its annex to the contract.
The contract contains the following data and mandatory conditions:
names of the parties and necessary details;
subject of the contract (name and location of the construction site, types of construction work);
terms (month and year) of the beginning and completion of the construction of the facility, the performance of construction work;
the contractual (contractual) price of an object, type of construction work, established by the results of the auction, and for objects for which the auction is not mandatory, the price is determined by agreement of the parties;
payment procedure for the work performed;
sources of financing;
distribution of functions between the customer and the contractor to provide the facility with structures, materials, equipment;
obligations of the customer and the contractor in the performance of the contract;
the procedure for control by the customer over the quality of the work performed by the contractor and the supplied structures, materials, products, equipment and inventory;
terms of payment and the amount of bonuses for the timely commissioning of the facility;
liability of the parties in case of non-fulfillment of obligations under the contract;
features of acceptance of completed construction works, commissioning of the facility;
the relationship of the parties in the event of force majeure and other conditions.
Legal entities, individual entrepreneurs engaged in the construction, reconstruction of residential premises for citizens must determine in contracts, along with the above, the following essential conditions:
The amount and procedure for depositing funds by citizens;
Grounds for terminating the contract before the deadline;
The procedure for the return of funds to citizens in case of non-fulfillment of obligations or termination of the contract before the deadline;
Liability for failure to fulfill obligations.
Mandatory annexes to the construction contract are the work schedule and the payment schedule.
A subcontract is concluded based on the results of contract tenders announced by the general contractor or through direct negotiations with subcontractors. The subcontract includes the same mandatory conditions as the subcontract. In addition, the subcontract defines the lists of services provided by the general contractor, as well as the amount and procedure for payment by the subcontractor of these services.
The contract may provide for the obligation of the party, which bears the risk of accidental loss or accidental damage to construction objects, materials, equipment, to insure the corresponding risks.
During the construction of facilities for state needs financed from the funds of the republican and local budgets, extra-budgetary funds, bank loans, the state customer concludes a state contract with the contractor for the performance of contract work in compliance with the requirements of the Rules. At the same time, the state customer fulfills the obligations and has the rights established by the Rules for customers, with the exception of the right to independently make decisions on the volume of investments and directions for their use; on the transfer of their powers to third parties; on the conservation or termination of the construction of the facility.
The customer is responsible for non-fulfillment or improper fulfillment of the obligations stipulated by the work contract and pays a penalty to the contractor in the following amounts:
for unreasonable evasion of acceptance of completed construction work and registration confirming their completion - 0.1% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (object);
for untimely transfer of an advance payment, funds for payment for completed and accepted construction work - 0.15% of the untransferred amount for each day of delay;
for violation of the terms of delivery of structures, materials, equipment - 0.15% of their value for each day of delay, but not more than the cost of undelivered structures, materials, products, equipment, inventory.
The contractor is liable for non-fulfillment or improper fulfillment of obligations stipulated by the work contract and pays a penalty at current prices to the customer in the following cases and amounts:
for untimely provision of construction readiness of work, including for failure to present the scope of work - 0.1% of their cost for each day of delay;
for violation of the deadlines for the performance of construction work that is the subject of a work contract, commissioning of an object - 0.15% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (object);
for untimely elimination of defects identified during the warranty period of operation of the facility - 0.15% of the cost of construction work to eliminate defects for each day of delay.
The Contractor shall be liable for poor-quality work performed within the warranty period.
In addition to the sanctions provided for by these rules for non-fulfillment of obligations under a work contract, the party that violated the contract shall compensate the other party for losses in the amount not covered by the penalty (fine, penalties).
The party guilty of exceeding the deadlines for the construction of the facility (performance of construction work) established by the work contract shall compensate the other party for the losses caused by this.
The procedure for financing capital construction costs depends on the sources of financing and the procedure for payments for work performed between the customer and the contractor established in the construction contract. Financing of the customer's costs for capital construction can be carried out with current(settlement) account (when financed from state budgetary funds and own funds investor) or from the account for accounting for debts on loans(for construction loans).
From the account from which construction is financed, the following are paid: equipment and materials, work performed and services rendered, completed enterprises, start-up complexes, construction phases and facilities, design estimates, expenses for maintaining the management of the enterprise under construction and other costs.
Works performed by subcontractors can be paid either from the current (settlement) account of the general contractor, or directly from the customer's account (in accordance with the concluded agreements). Construction and installation works performed by contractors under direct contracts with customers are paid from the customer's account on the basis of acceptance certificates for the work performed.
Financing of construction is carried out at the agreed (contract) price established in the construction contract.
The agreed (contract) price when placing construction orders through contract bidding is established upon conclusion of a construction contract (contract) between the customer and the contractor. The following types of prices are applied during contract bidding:
The price of the customer (investor), which is the starting price of the construction object or contract work, proposed by him on the date of the decision to conduct and contract work.
The price of the contractor's offer, which is determined by the contracting organizations that are applicants for a construction order and serves to submit a competitive offer by them when participating in the auction.
When concluding a construction contract (contract), the agreed (contract) price is applied, which is fixed in the construction contract (contract) and is determined by the results of the auction based on the bid price of the winning contractor.
The price of the customer (investor) and the price of the contractor's offer are determined in prices as of the date of the decision to conduct contract bidding, taking into account taxes, fees (duties) and other deductions to the income of the relevant budgets in accordance with the current legislation. To determine the price of the customer, the base-index method is used, in which indexes of changes in the cost of construction and installation works by cost elements are applied to the base estimated cost of contract work, approved in the prescribed manner by the republican authorities government controlled. The contractor's bid price can be determined as basis-index method, and the resource method, which provides for the use of weighted average and current (current) prices, tariffs to the norms of resource consumption approved by construction organizations or republican government bodies, including resource-estimated norms. In some cases, to form the contractor's offer price, a resource-index method can be used that combines resource method with the system of resource price indices used in construction
For calculations, it is determined billing period, which can be taken as a month, or another period of time necessary to complete a stage of work or the entire scope of work provided for in a construction contract
The basis for settlements for work performed, complexes (stages) of work (services) are certificates of the cost of work performed, signed by representatives of the contractor and the customer, drawn up on the basis of acts of work (stages) performed. Payments for the work performed can be made with the payment of advances by the customer to the contractor or without payment of advances. The procedure and conditions for advance payment are stipulated in the construction contract.
The Bank provides continuous financing and lending to construction projects in accordance with work contracts - within their estimated cost based on a copy of the consolidated budget calculation, work schedules and payments developed on the basis of projects, estimates and norms for the duration of construction. A bank institution, in which financing is opened at the expense of budgetary funds and bank loans, exercises preliminary and subsequent control over the targeted spending of funds, compliance by enterprises with state, financial, design, estimate and settlement discipline in construction, as well as contractual obligations.
Individual enterprises carry out construction work in an economic way, the volume of such work in the republic is 4-5%.
With the economic method, work is carried out by the forces and means of the customer. During the construction period, enterprises will organize construction organizations, teams, departments capital construction, create a production base.
The role of the customer is performed by the management of the enterprise, and the duties of the contractor are usually departments or departments of capital construction that carry out construction and installation work.
The economic method of conducting construction has become widespread during the work on the re-equipment of continuous production. It is also advisable for small amounts of work, in cases where their performance by a third-party organization in working conditions creates inconvenience for both the contractor and the customer.
It is also used in the implementation of technical re-equipment and reconstruction of existing industries. Such work can be carried out in a mixed way (contracting and economic).
With a large number of works performed by the economic method, enterprises can organize auxiliary production for the manufacture of materials, structures and products for these purposes, if the need for them cannot be met by enterprises in the construction industry and the building materials industry.
In construction carried out by economic means, two methods of financing are used - to the extent of the amount of work performed and by cost elements.
In the first method, work is accepted and paid for as construction and installation work is completed. In this case, the management of the enterprise is the manager of all funds intended for capital construction. The work is carried out by the department (management) of capital construction. The relationship between the management of the enterprise and the department (management) of capital construction is organized in approximately the same order as the contract method of performing work. The management of the enterprise is fully responsible for the quality, timing and cost of construction. At the same time, the head of construction, who is subordinate to the management of the enterprise and is responsible for the results of his financial and economic activity. Instead of the contract, a list of construction objects is drawn up, which is signed by the parties and transferred to the construction manager. It indicates the amount of work at an estimated cost for each object. For each year, quarterly tasks are determined for technological stages and work packages.
The department of capital construction, as well as the contractor, needs working capital for the procurement of building materials, structures, parts and other costs associated with the production of work. Payment for the work performed is made, as a rule, on a monthly basis on the basis of acts on the cost of work performed, which are signed by the construction manager and the director of the enterprise. However, if the customer pays the contractor for the completed construction and installation work on full cost(contractual price), then when paying for work performed in an economic way, a number of deductions are made - planned savings, depreciation deductions for capital construction equipment. These amounts are withheld due to the fact that they are provided as sources of funding. capital investments in economic construction.
Small construction projects can be financed by the bank on cost elements. In this case, a single account is opened for the construction site, from which all costs associated with construction are paid (preparation of design estimates, purchase of equipment, materials, structures, parts, assemblies, wage and etc.).