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- Legal technology as an academic discipline
- Legal technology in the structure of the theory of state and law
- The evolution of scientific views on legal technology
- Subject of legal technology
- Methodology of legal technology
- Structure of the course “Legal Technique”
- The importance of legal technology for a lawyer
- History of the development of legal technology
- Practice of application of legal technologies and science of legal technology
- Legal technology in ancient society(archaic law)
- Law Enforcement Techniques in Ancient Society
- Legal technology in traditional society(estate law)
- Legal technology in industrial society(developed, mature, national law)
- Law Enforcement Techniques in Industrial Society
- Concept and types of legal technology
- Concept and forms of legal activity
- Legal documents: concept and types
- Concept and structure of legal technology
- Legal tools
- Types of legal technology
- Features of legal technology in various legal families
- Romano-Germanic (Continental) family of law (or professorial law)
- Anglo-Saxon law (common law family, case law, judicial law)
- Muslim family law
- Customary law family (African law)
- Russian legal system in the context of world families of law
- General rules of legal technology (contents of legal technology)
- The concept of the content of legal technology
- Rules for achieving social adequacy of law (substantive rules)
- Rules for ensuring the logic of law
- Structural rules (internal form of a legal document)
- Language rules
- Formal (requisite) rules
- Procedural rules
- Lawmaking
- Concept and types of lawmaking
- Legislation: three approaches to understanding it
- Requirements for legislation (criteria for the quality of legislation)
- Errors in legislation
- Examination of draft regulations
- The concept of legislative technology and its content
- Rules for forming the content of regulations
- Requirements for the content of regulations (substantive rules)
- Basic methods and techniques for forming the content of normative acts
- Legal definitions
- Declarations
- Legal constructions
- Legal presumptions
- Legal fictions
- Legal axioms and exceptions
- Other ways of forming the content of norms of legal acts
- Logic of a normative legal act
- System of logical requirements (rules) in lawmaking
- Regulation of all elements of the logical rule of law
- Requirements for the internal form of regulations
- Structure normative act
- Structural units text
- Note
- Final provisions, annexes
- Language rules
- System of linguistic (linguistic) means of normative acts
- Style of regulations
- Symbolic devices
- Techniques for creating corporate regulatory legal acts
- Concept and features of corporate law
- Principles for creating corporate regulations
- Special principles for the adoption of corporate acts
- Features of corporate acts
- Errors when adopting corporate acts
- Lawmaking procedure
- Procedures in law
- Requirements for the lawmaking procedure
- Planning of law-making activities: its meaning and types of plans
- The concept of a normative act as a model for reflecting social reality
- Types of lawmaking procedures
- Departmental lawmaking procedure
- Procedure for adopting government regulations
- Types of parliaments and their influence on the legislative process
- Stages of the legislative process
- Adoption of the law
- Publication and entry into force of regulations
- Publication of regulations
- Entry into force of regulations
- Systematization of legal acts as a type of legal work
- Concept and reasons for systematization
- Reasons and significance of systematization
- Principles of systematization
- Rules for systematizing legal documents
- Codification and rules for its implementation
- Consolidation and rules for its implementation
- Incorporation and rules for its implementation
- Accounting for legal acts
- Computerization of systematization work
- Interpretation as a type of legal work
- Concept of interpretation
- Structure of interpretation
- Reasons for interpretation
- Techniques for interpreting regulations
- Interpretive technology
- Unofficial interpretation
- Authentic interpretation
- Judicial interpretation
- Acts of interpretation and their features
- Rules for creating legal-implementing legal documents
- Implementation of the law
- Legal documents and techniques for their creation
- Techniques for conducting contract work
- Technical and legal features of contracts
- Concept and content of the agreement
- Typical contract structure
- Conducting contract work
- Regulatory regulation of contract work
- Stages of contract work
- Technical and legal features of contracts
- Law enforcement as a type of exercise of law
- Characteristics of law enforcement
- Judicial activity as a type of law enforcement
- Judicial acts and techniques for their preparation
- Types of judicial acts
- Judgment and the verdict as the main acts of justice: general characteristics
- Requirements for the content of main judicial acts
- Validity and motivation
- Fairness and completeness
- Rules for ensuring the logic of main judicial acts
- Structure of main judicial acts
- Structure of a court sentence
- Language rules for drawing up judicial acts
- Stylistic rules
Typical contract structure
Not a single subject of law, be it a citizen or a legal entity, can do without concluding contracts. The reason for this is that in our complex world labor has become very specialized, resulting in the need for exchange to satisfy their needs.
Contracts are the legal form of such exchange between people. How larger organization, the greater the volume of contractual work she has to conduct.
How to streamline, improve the quality of contract work and make it more productive?
Various methods can be used here:
- use of variants of sample contracts, which in large quantities contained in published collections. But it is quite possible that the organization will need to conclude agreements that have no analogues;
- adjustments in accordance with the specifics of the corporation approximate types contracts, also published in many publications. However, you will have to do this every time;
- development of a standard contract structure in accordance with all the rules of legal technology.
It's more reliable way. Development may vary depending on the specifics of different organizations. That is why corporate lawyers should work on the development, proposing the optimal structure of the agreement to be enshrined in a special corporate act.
It could be called appropriately: standard contract structure. It is clear that in this case it is necessary to focus on the most common type of contract for a given organization, but at the same time try to create a standard scheme that could be used for all other types of contracts. This is a serious matter. And here we cannot do without using the opportunities provided by legal science.
The most general outline of any contract looks like this:
- introductory part (“header”), which contains the name of the agreement, place and date of its conclusion;
- a preamble in which the parties are named, their place in the contractual obligation is indicated, and the persons authorized to sign the contract are indicated;
- main part;
- final part (details, addresses and signatures of the parties).
Of course, the main part of the contract is the most meaningful, and it is rightfully always given great attention. I will list the questions that, as a rule, are reflected in it:
subject of the contract. It must be named clearly and specifically. When a contract is concluded regarding material objects and their identification is necessary, a special document must be attached to the contract (project for construction, specification for delivery, technical specifications for research work, etc.);
rights and obligations of the parties. The principle applies here: the more fully the rights and obligations of the parties are described, the better. However, maximalist adherence to this principle sometimes creates difficulties in assimilating the content of the agreement and using it. A multi-page tome, as a contract may appear before the eyes of users, can inspire horror. That is why the parties often sometimes try to simplify the contract, make it compact, indicating only the responsibilities of the parties. In principle, there is nothing wrong with this, if we keep in mind that the rights and obligations of the parties are mutually directed and interrelated;
price. Although this condition, according to the law, is not essential for all types of contracts, in practice the parties do not ignore it. Sometimes this condition is again recorded in a special document attached to the contract (protocol agreement on the price or cost of work, estimate, calculation, etc.);
period of execution, which is indicated by a specific date or chronological framework;
specific conditions For certain type contracts (for delivery - conditions on packaging, shipment, transportation, for a contract agreement - conditions on the procedure for delivery and acceptance of work performed);
special or additional conditions(for example, about confidentiality);
form of payment(non-cash or cash payments, payment terms);
responsibility. Quite often, the contract does not say anything about this, either the parties hope for a good outcome of events because they have confidence in the counterparty, or they let everything take its course, or simply forget about the distribution of responsibility.
Of course, the Civil Code of the Russian Federation can be insurance for this case, but this is not acceptable for all types of contracts. As practice shows, in most cases, indications of liability measures (penalty in the form of a fine or penalty, compensation for losses) are by no means superfluous. Property liability primarily performs a compensatory function and cannot be the basis for enrichment. That is why the flight of fancy of the parties in terms of establishing large sanctions in the agreement can be “grounded” by the court if this agreement becomes the subject of its consideration in court;
force majeure or force majeure. Sometimes the parties discuss this issue in such detail, listing various circumstances, that it seems that some of them are secretly counting on a bad outcome of the contractual relationship.
It's enough to give here general definition force majeure as a circumstance that the parties could not have foreseen or prevented. It is much more productive in this part of the contract to provide for the actions of the parties in the event of force majeure in order to reduce its adverse consequences, for example, immediately inform the counterparty about it;
duration of the contract. Here the moment of the beginning and termination of the contract, the procedure for making changes and additions to it are determined.
This is universal scheme agreement. You should not strive to keep the contract short (this may give rise to unnecessary disputes in the future). But there is also no need to turn the agreement into a multi-page tome. This is exactly what happens when the contract translates legislative norms (for example, the parties indicate that their disputes will be resolved in court). Sometimes in a contract there are empty phrases like “on issues not stipulated by the contract, the parties are guided by current legislation."
In a word, drawing up any contract is science, experience, and art. It is advisable that employees of the organization involved in contract work (often they do not have legal knowledge) do not “reinvent the wheel”, but familiarize themselves with the data legal science and the accumulated experience of others in drafting contracts. If the organization has talented employees, then they will certainly make their contribution to this matter.
Agreements are concluded not only by legal entities, but also by individuals. However, these agreements are much simpler in content. This is explained not only by the fact that contracts in which individuals participate mediate less complex legal relationships, but also by the fact that citizens do not have the skills to draw them up. Sometimes the simplicity in their drafting of contracts results in conflicts and legal disputes.
Various agreements have wide use in our life. What distinguishes them is big variety forms and rules for concluding, there are also features of drawing up contracts different types. P we present to you quick guide By general rules drawing up contracts.
What features to pay attention to
- general rules for drawing up contracts
The contract is the main and integral part of the sphere of commodity-money relations. With its help, relations between the parties are regulated, their rights and obligations are determined. When concluding an agreement, you should clearly understand the goals to which it should lead. It is important to pay attention to all the nuances associated with the preparation, approval and implementation of the document.
The main rule for drawing up contracts is to “onshore” consider the main issues of the proposed work as a whole and smoothly move on to the details. The contract includes a detailed action plan and all possible risks.
Requirements, order and form
correct drafting of contracts
Transactions between legal entities and individuals must be concluded in accordance with the requirements specified in Civil Code of the Russian Federation.
As a rule, the agreement is concluded in simple written form, with the exception of cases where notarization or state registration is required to complete the transaction.
A document receives the status of a concluded agreement if agreements are reached between the parties on all the terms and conditions contained in the text of the document.
If the form of the contract is written, the legislation imposes a requirement for approval of the document through the handwritten signing of the paper by the persons who expressed their will in it. It is also acceptable for the document to be signed by a representative who has everything necessary for signing of this act powers.
If we consider the remote execution of a transaction using fax technology, then it is permissible to use a digital signature or another analogue of a handwritten signature in the manner regulated by the Civil Code or other acts and agreements of the parties.
How to draw up a contract correctly
- main points of the contract
Let's look into general outline How to correctly draw up a contract.
The standard document includes the following items:
1. Introductory part.
The preamble indicates the name of the agreement, which determines the type of document: supply agreement, commission, purchase and sale, etc. It happens that for one reason or another the contract does not have a title, in which case its main part should be studied. Actually, this should be done in any case, since although the name determines the type of legal relationship, the essence of the agreement is still contained in the text of the document. The date of signature determines the moment the contract comes into effect, with all the ensuing consequences. From a legal point of view, this is a very important point. Of no less importance is the indication of the place where the agreement was signed - this point is not an ordinary formality, since the legal relations described in the agreement are subject to the laws of the place of signing.
Correct drafting of a contract involves indicating the names of counterparties in full form, in addition, the short name of the parties appearing in the document is mentioned (“Seller”, “Recipient”, “Customer”, etc.). Names and positions are also indicated in full name format individuals signing the contract.
2. Subject of the transaction.
The subject of the agreement contains the most significant conditions. This part specifies the essence of the legal relationship into which the parties enter, their rights and obligations, prices for services or goods, the method of payment and the time frame during which the obligations of the contracting parties must be realized. Of course, the specific terms depend on the nature of the contract and the situation in which it is concluded.
3. Additional conditions.
The peculiarities of drawing up contracts are such that additional conditions are not a mandatory section of the document, but, nevertheless, they play a role big role in the implementation by the parties of their rights and obligations. By additional conditions we mean the duration of the contract as having legal force document, clarification of the responsibilities of the parties in case of non-compliance with the agreed conditions, as well as the grounds for terminating or amending the document. It is also possible to include conditions for confidentiality and resolution of disputes that may arise between the parties during the execution of the contract.
Any contract can be divided into four parts:
- preamble (introductory part);
- subject of the contract;
- additional terms of the contract;
- other terms of the contract.
This part of the contract includes:
a) name of the agreement (purchase and sale agreement, supply, commission, transport services, lease, joint activities etc.). The exact name of the agreement helps to understand what legal relations it defines. However, it must be remembered that the essence of the agreement follows not from the name, but from its content.
If there is no title, the contract should first be read to understand what it is about, and only then deal with it on its merits;
b) date of signing the contract (day, month and year of signing).
These details are associated with the correct establishment of the moment of conclusion of the contract and the expiration of its validity, and therefore certain legal consequences;
c) place of signing the agreement (city or locality). Indication of the place of the transaction - not simple formality, it sometimes has great legal significance. According to the legislation of the place where the transaction is made, the following are determined: the legal capacity and capacity of the persons who entered into the transaction; the form of the transaction and the obligations arising from the transaction;
d) full corporate name of the counterparty under which the latter is registered in the register state registration, as well as the abbreviated name of the parties to the agreement (“Customer”, “Buyer”, “Lessee”, etc.);
e) positions, surnames, first names and patronymics of the persons signing the agreement, indications of their authority to sign the agreement.
Subject of the agreement
This part of the agreement contains essential terms:
a) the subject of the contract, i.e. what the parties specifically agree on;
b) obligations and rights of one party under the contract;
c) obligations and rights of the second party under the contract;
d) contract price, payment procedure, etc.;
e) the deadline for the parties to fulfill their obligations. The content of these conditions depends on the type of contract and specific situation his conclusions
Additional terms of the agreement
This section includes conditions that do not have to be provided for in every agreement, but they significantly affect the implementation of the rights and obligations of the parties:
a) the validity period of the contract must be indicated, even if the deadlines for the fulfillment of obligations by the parties are specified. This is due to the fact that you need to know when the contract terminates and when it will be possible to present the corresponding requirements to the counterparty;
b) the responsibility of the parties ensures the fulfillment of obligations by the parties in the event
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violation of the terms of the contract by one of them. Usually defined here various kinds sanctions in the form of penalties, penalties, fines paid by the counterparty who has not fulfilled its obligations in relation to one of the agreed conditions.
When drawing up a contract, the following methodology for determining liability can be proposed: for each obligation of a party, a corresponding liability must be provided, mainly in the form of a penalty. This means that losses in case of improper fulfillment of the counterparty’s obligations can be recovered from him in addition to the penalty. Remember: if this type of liability is absent, the penalty is offset, and losses from the counterparty can be recovered in the part not covered by the penalty;
c) ways to secure obligations. Russian civil legislation provides for the following main methods of securing obligations: penalty, pledge, retention of the debtor's property, surety, bank guarantee, deposit.
In addition, other methods may be provided in accordance with law or contract;
d) the grounds for changing or unilaterally terminating the contract;
e) terms of confidentiality of information under the contract;
f) the procedure for resolving disputes between the parties to the agreement. Disputes between the parties are resolved in accordance with the legislation of the Russian Federation in arbitration court.
However, the parties may provide for the resolution of disputes in an arbitration court, created either by the parties themselves or in accordance with the rules of any permanent arbitration court;
g) features of changing persons under a contract. This paragraph may provide that the assignment of a claim under an agreement can only be carried out with the consent of the debtor.
Other terms of the agreement
These terms may include the following:
a) the legislation of which state the parties apply (this is especially important for foreign trade contracts);
b) features of communication agreements between the parties. Here, for each party, persons authorized to provide information and resolve issues related to the execution of the contract are indicated;
c) the result of pre-contractual work and its consequences after signing the contract. This item contains a provision according to which the parties establish that after signing this agreement, all preliminary negotiations on it, correspondence, preliminary agreements and protocols of intent become invalid;
d) details of the parties:
- postal details;
- location (address) of the enterprise;
- bank details of the parties (current account numbers, bank establishment, bank code, MFO or RCC data);
- shipping details (for rail shipments, containers, small shipments).
e) number of copies of the agreement (at the discretion of the parties);
f) signatures of the parties.
Pre-contractual questions (if you intend to enter into a contract):
- th block of questions
- What goals need to be achieved during its implementation.
- Are the most specified important points related to its execution, signing and execution.
- Are the main issues of the upcoming work envisaged, and then, moving from the general to the specific, is an approximate step-by-step scheme of work drawn up and is it thought through what and how should be done at each stage, what specific actions will be required for this, and determine the possibility of risk.
- th block of questions
Note (recommendations):
It is advisable for the draft of the upcoming contract to be developed by the interested party itself, and not to receive the draft from the counterparty. When drafting the terms of the contract, it is best to involve specialists in the relevant field.
If the agreement is drawn up by a partner, it is possible that your interests will not be properly taken into account in it, and they will have to be adjusted to fit “someone else’s” agreement. As a result, your initiative may be lost.
When drawing up a contract, it is possible to avoid many surprises that may come from your counterparty. Based on his comments, it is possible to trace exactly what his interests are and prevent the inclusion of undesirable conditions in the contract.
- th block of questions
If a proposal to conclude a contract comes from an unknown partner, it is necessary to obtain as much information as possible about him.
Abroad, entrepreneurs are extremely cautious about offers from new partners, despite the fact that there are open trade registers and firms specializing in collecting and processing information about companies and individual merchants, ready to provide upon request: detailed information about the company as such (authorized capital, specialization, annual turnover, personnel qualifications, servicing bank, etc.), about the biographies of the co-owners of the enterprise and its managers; assessment business reputation potential partners, information about trials and conflicts in which they were involved, as well as provide details about suppliers, customers, clients, etc.
You also need to make sure that the organization you are going to work with actually exists. To do this, you should familiarize yourself with its constituent documents(charter, constituent agreement) and registration certificate. It is recommended to pay attention to who the founders of the company are, what is the size of its authorized capital and whether it has been formed. Moreover, ask whether the organization has its own office and where it is located (do not limit your interest in the company only legal address). It will not be superfluous if you find out in which bank the organization is served (for more details, see Shevchuk D.A. Banking operations. - M.: GrossMedia: ROSBUKH, 2007), what are its financial position and commercial reputation. Through partners, counterparties, bankers, you should collect as much information as possible about the partner company and its managers.
- th block of questions
Note (recommendations):
When signing an agreement, you must make sure that the counterparty's representative has the legal right and authority to sign the document.
Signing an agreement by a representative without the appropriate authority may subsequently lead to the inability to receive payment for the goods supplied or to obtain a return of the amounts paid for the goods, or the goods will be delivered incompletely or with significant defects.
Often, unscrupulous counterparties, not wanting to fulfill their obligations under the contract and bear responsibility, declare that the person who signed the contract did not have the appropriate authority (this is one of the most common methods of fraud). To prevent this from happening, it is necessary to verify the identity of the representative, for which you should correctly ask him to submit the relevant documents.
If the representative of the counterparty is the director of the enterprise, acting without a power of attorney, you need to familiarize yourself with the order on his appointment (this mainly applies to state-owned enterprises), or inquire about the minutes of the meeting of the founders of the enterprise (for commercial organizations). Regarding the latter, you should pay attention to the following.
IN Lately Often in some enterprises, especially where the director is employed, the founders limit his powers to one degree or another and grant them only with the consent of the Management Board, Board of Directors, meeting of founders, etc. For example, in the organization’s charter, in the section “Competence of the director,” it may be stated that the director has the right to make transactions worth more than 100 thousand rubles only with the consent of the board of directors of the enterprise. Therefore, you should familiarize yourself with the relevant section of the charter of the counterparty organization and make sure that the powers of the director are not limited.
If a representative acts under a power of attorney, you should check whether the power of attorney has the signature of the head of the organization and its seal, what date it was issued (if the date is not indicated, then the document is generally invalid), its validity period, and the scope of powers under the power of attorney.
- th block of questions
Note (recommendations):
When starting work on formulating the terms of the contract, one should not allow ambiguity or unclear phrases.
Every word in a contract matters. If it is not clear what this or that term means, what meaning this or that phrase, phrase, etc. carries, it is necessary to find out with the involvement of specialists. It should be borne in mind that subsequently, in the event of a dispute over the terms of the contract, the counterparty will try to interpret any inaccurate wording in the contract in its favor.
Moreover, the partner may specifically include in the contract unclear (but well understood by him) language and provisions in which your interests may be infringed.
Quite often, inaccuracies are made when using legal trade agreements in contracts. international terms, in particular, defining the basic terms of delivery. For example, the trade term “Incoterms-90” intended for water transport is used to refer to transport by land (rail, road) or intermodal transport (several modes of transport). If there are no provisions in the contract that clarify what the parties intended, difficulties may arise in resolving disputes, in particular regarding the issue of the moment when the goods are considered to be delivered and the moment when risk passes from the seller to the buyer.
- th block of questions
Note (recommendations):
When formulating conditions regarding circumstances exempting from liability (so-called “force majeure clauses”), one should take into account the consequences of one or another wording, which may lead to a decrease or increase in the property liability of a party to the contract.
If a clause is included in the contract providing for a specific list of circumstances, the occurrence of which exempts from liability in the event of a breach of obligation, arbitration courts, as a rule, make decisions to recover losses from the party that were the result of circumstances beyond their control, if they are not provided for in the list contained in the contract.
- th block of questions
- Are competent specialists involved in drawing up the contract?
When the draft agreement is ready, it must be reviewed again in order to catch the double meaning of any phrase or see any omission, etc.
Any contract is a legal document, and it cannot be drawn up without the participation of competent specialists who, before signing the contract, can explain the legal consequences of certain conditions, offer new options for a specific clause, etc. Therefore, before signing the contract, it is necessary to have it reviewed and endorsed by a lawyer.
- th block of questions
- What contracts (short or detailed multi-page) apply?
Many business structures widely used various shapes contracts, samples of which are currently offered in dubious collections and recommendations.
Along with very short contracts containing a minimum of conditions (the subject of the contract, including the name and quantity of goods, price indicating the delivery basis, quality requirements, delivery time, terms of payment), multi-page, very detailed contracts are often concluded, providing for a significant number additional conditions.
Conclusion short contracts requires the organization to have a clear idea of how the gaps in the contract will be filled. Arbitration practice shows that about this, to
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Unfortunately, it is often forgotten and this leads to damage.
At the same time, multi-page and detailed contracts, unfortunately, also have disadvantages. The most typical ones are as follows:
- firstly, such agreements are often drawn up according to a template that does not sufficiently take into account the type of goods that are the subject of a sale or purchase or other type of transaction. Almost identical conditions are provided both for all types of food and industrial goods, and for machinery and equipment;
- secondly, contracts of approximately the same content are drawn up regardless of which partner they are concluded with;
- thirdly, the desire to provide in the contract conditions for all cases that may arise during its execution complicates, on the one hand, negotiations when concluding a contract, and on the other, leads to an aggravation of the contract a large number common and sometimes not better provisions. Moreover, as practice shows, it is impossible to provide for everything in the contract. It must be taken into account that there is no universal form that can reliably protect you and your business. An agreement is a strictly individual act, and it must be drawn up for each case separately.
General scheme Typologies of business agreements can be presented as follows:
Entrepreneurial agreement |
|||
Paid (characteristic- fee) | Gratuitous |
||
|
|||
Before the famine | |||
| Agreement for free use of property | ||
Bilateral | Multilateral |
||
Real | Consensual |
||
To- | |||
Basic | s-3 | G-. | About two rules |
¦J. | |||
Agreement in favor of its participants | *¦- | Agreement in favor of third parties |
|
"¦1. | 1" - | ||
Free | Mandatory (including public) |
||
The agreement was agreed upon | Agreement accession |
||
¦h. G |
The provisions of Chapter 27 of the Civil Code of the Russian Federation define the concept and terms of the contract.
The concept of a contract is defined in Article 420. Thus, a contract is an agreement between two or more persons to establish, change or terminate civil rights and responsibilities.
Article 421 states that citizens and legal entities are free to enter into a contract. The parties may enter into an agreement, either provided for or not provided for by law or other legal acts. The parties may enter into an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement). The relations of the parties under a mixed contract are applied in the relevant parts to 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.
The terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422).
In cases where the condition of the contract is provided for by a norm that is applied to the extent that the agreement of the parties does not establish otherwise (dispositive norm), 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.
If the terms of the contract are not determined by the parties or by a dispositive rule, the relevant conditions are determined by business customs applicable to the relations of the parties.
In accordance with the requirements of Article 422, the contract must comply with the rules obligatory for the parties established by law and other legal acts (imperative norms) in force at the time of its conclusion.
If, after the conclusion of an agreement, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the agreement, the terms of the concluded agreement remain in force, except in cases where the law establishes that its effect extends to relations arising from previously concluded agreements.
The contract may be paid or gratuitous (Article 423). An agreement under which a party must receive payment or other consideration for the performance of its obligations is compensated.
A gratuitous agreement is an agreement under which one party undertakes to provide something to the other party without receiving payment or other consideration from it.
An agreement is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the agreement.
Article 425 contains legal norms about the validity of the contract. Thus, the Agreement comes into force and becomes binding on the parties from the moment of its conclusion. The parties have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement.
The law or contract may provide that the expiration of the contract entails the termination of the obligations of the parties under the contract. An agreement that does not contain such a condition is recognized as valid until the moment specified in it when the parties fulfill the obligation.
The expiration of the contract does not relieve the parties from liability for its violation.
Chapter 28 of the Civil Code of the Russian Federation determines the procedure for concluding an agreement.
The main provisions for concluding a contract are reflected in Article 432. The provisions of this article determine the following:
An agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement. Essential are the conditions regarding the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the
the parties must reach an agreement.
An agreement is concluded by sending an offer (offer to conclude an agreement) by one of the parties and its acceptance (acceptance of the offer) by the other party.
The main provisions on amendment and termination of the contract are reflected in Chapter 29 of the Civil Code of the Russian Federation.
In accordance with the provisions of Article 450, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract.
At the request of one of the parties, the contract can be changed or terminated by a court decision only:
- in case of a significant breach of contract by the other party;
- in other cases provided for by the Civil Code of the Russian Federation, other laws or agreement.
In the event of a unilateral refusal to fulfill the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered respectively terminated or modified.
The procedure for changing and terminating the contract in connection with significant change circumstances is determined by Article 451, according to which:
- A significant change in the circumstances from which the parties proceeded when concluding the contract is the basis for its modification or termination, unless otherwise provided for by the contract or follows from its essence.
- If the parties have not reached an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it, the contract may be terminated, and on the grounds provided for in paragraph 4 of this article, amended by the court at the request of the interested party if the following conditions are simultaneously present:
- at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;
- the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence that was required of it by the nature of the contract and the conditions of turnover;
- execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;
- It does not follow from business customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.
- If the contract is terminated due to significantly changed circumstances, the court, at the request of either party, determines the consequences of termination of the contract, based on the need for a fair distribution of expenses incurred between the parties
- Amendment of the contract due to a significant change in circumstances is permitted by court decision in exceptional cases when termination of the contract is contrary public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.
A demand to change or terminate a contract may be submitted by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - within thirty days.
In conditions of increasing competition and increasing customer demands for tourism services, reliable contractual relationships in the activities of tourism enterprises are very important. Tourism has certain features related to the nature of the services provided, forms of sales, nature of labor, etc., and from this follows the specifics of contractual relations. Tourist services cover a wide range of operations (providing international and domestic transportation of tourists, accommodation, meals, excursions, insurance, obtaining foreign visas, etc.). All these operations require documentary confirmation. By- f Therefore, correctly drawn up contracts are important in achieving high quality tourist services:
If you intend to conclude a contract, you should clearly know what goals need to be achieved during its implementation, and clarify the most important points related to its execution, signing and execution. It is extremely important to foresee the main issues of the upcoming contract, and then, moving from general to specific, draw up an approximate step-by-step scheme of work and think through what needs to be done at each stage.
It is advisable to develop the draft of the upcoming contract yourself, rather than receive it from the counterparty. If the agreement is drawn up by a partner or supplier, it is possible that the interests of the tourism enterprise will not be fully taken into account.
If a proposal to conclude a contract comes from an unknown organization, it is necessary to obtain as much information as possible about it. Entrepreneurs abroad are extremely wary of offers from new partners. And this is despite the fact that there are open trade registers and firms that specialize in collecting and processing information about companies and individual entrepreneurs. Upon request, they can provide detailed information about the company of interest: its authorized capital, specialization, annual turnover, personnel qualifications, servicing bank, biography of the directors and co-owners of the company, business reputation,
lawsuits, conflicts in which the enterprise was involved, suppliers, buyers, clients, etc.
Unfortunately, there are clearly not enough enterprises of this kind on the domestic market, so travel companies most often have to make inquiries about their partners and contractors themselves. You should request from your partner a notarized copy of the registration of their enterprise, a bank guarantee and other information. Naturally, the foreign partner will also request similar information from the company. Receiving and transmitting this kind of information is associated with an increase in the preparatory period and certain financial costs. However, in the long run it pays off many times over.
You need to make sure that the organization you are going to work with really exists. To do this, you should familiarize yourself with its constituent documents (charter, constituent agreement) and certificate of registration. It is recommended to pay attention to who are its founders, what is the size of its authorized capital and whether it has been formed, where the office is located, which bank the organization is serviced by, what is its financial position and commercial reputation, i.e. collect as much information as possible.
As mentioned above, the choice of a partner is of particular importance when concluding an agreement (contract), which is always a potential risk. The lowest risk for domestic tourism enterprises is achieved when concluding contracts for ready-made tours with a well-known tour operator. As a rule, such a tour has already been well worked out in practice. Usually in the contract it is possible to agree on a 10-12% commission for the travel agent on the cost of each tour sold. It should be noted that foreign tour operators with a high image impose rather strict contract conditions. In some cases, it is more expedient to enter into direct contracts with suppliers of tourist services (accommodation facilities, catering facilities, transport agencies, etc.).
In international tourism practice, the form of oral relations between a tour operator and a travel agent is often used. However, this form of working on trust exists between long-time partners. In order to avoid various troubles, it is recommended to conclude a written version of the contract.
In a number of countries, packages of general contractual conditions for the tour operator and travel agent have been developed and officially published in the press, which can be referred to in the contract. In Germany, for example, there is a special Law “Basic Rules for Concluding Contracts”, adopted in 1977. If such regulations exist in the country, you can practice concluding short, concise contracts with references to these acts, which are usually published in catalogs of tours by country.
When signing an agreement, you must make sure that the counterparty's representative has the legal right and authority to sign the document. Therefore, when entering into negotiations with representatives of a commercial organization to conclude an agreement, it is necessary to check their authority.
As practice shows, often unscrupulous counterparties, not wanting to fulfill their obligations under the contract and bear responsibility, announce that the person who signed the contract did not have the appropriate authority (this is one of the most common methods of fraud). To prevent this from happening, it is necessary to verify the identity of the representative by correctly asking him to submit the relevant documents. If the representative of the counterparty is the director of the enterprise, acting without a power of attorney, it is necessary to familiarize yourself with the order on his appointment (this mainly applies to state-owned enterprises) or with the minutes of the meeting of the founders of the enterprise (for commercial enterprises). It should be noted that recently, in enterprises where the director is employed, the founders, to one degree or another, limit his powers and grant them to him only with the consent of the board, board of directors, meeting of founders, etc. Therefore, you should familiarize yourself with the relevant section of the organization’s charter - the counterparty and make sure that the director’s powers are not limited. In the event that a representative acts under a power of attorney, you need to check whether it has the signature of the head of the enterprise, his seal, what date it was issued (if the date is not indicated, then the power of attorney is generally invalid), the validity period of the power of attorney, and the scope of powers under it.
When starting work on formulating the terms of the contract, one must not allow ambiguity or vagueness of phrases, since subsequently, in the event of a dispute regarding the terms of execution of the contract
the counterparty will try to interpret any inaccurate wording in this document in its favor.
The language of the agreement is chosen by the parties by mutual agreement. If a foreign company specializes in the national market, you can conclude a contract in Russian. However, as a rule, the contract is drawn up in two languages chosen by the partners. In some cases, by agreement of the parties, the contract is concluded in three languages (for example, a contract with a German tour operator can be concluded in German, Russian and English).
The agreement is drawn up and signed in at least two copies. It must contain a reference to the fact that all its copies in such and such languages are equally valid. The number of these copies is also indicated. All changes and additions to the agreement are formalized in protocols or agreements and are an integral part of the main agreement. The storage period for the contract in accordance with the limitation period is three years. It would be advisable to include an article on confidentiality.
The first persons from each party sign the agreement. The signing of an agreement by a person who is not authorized to do so is associated with the loss of legal force of the document. Signatures are certified by seals. According to established practice, a stamp on the signature of a foreign partner is not mandatory. Certification of signatures of partners on each page is allowed.
The sections that form the basis of any contract are the preamble, main and final parts (Fig. 9.1).
Rice. 9.1. Main sections of the agreement
Preamble (from the French preambule - preface) - this is a kind of introduction to the contract, which includes:
title (title) of the agreement, which indicates its legal nature (agreement for tourist services, rental agreement, commission agreement, etc.);
indication of the place and time of conclusion of the contract (this information may also be included in the final part);
names of the parties; in this case, the seller, or transferring party, is called the first, and the buyer, or receiving party, is called the second ( full names legal entities and abbreviated names under which they will appear in the agreement);
positions, surnames, first names and patronymics of the persons signing the agreement;
the basis for the action of the parties' proxies (charter, power of attorney).
The name of the agreement is not normative. This is the starting point of the deal. The absence of a contract name does not contradict its legality. The content of the contract is of decisive importance for the initial assessment of the contract.
A prerequisite for the validity of a contract is legal capacity contracting parties, which is understood as the ability of a person (citizen, organization) through his actions to acquire rights and fulfill legal obligations, as well as bear responsibility for committing offenses. Every person, starting from a certain age (for example, in Belarus and Russia currently - upon reaching 18 years of age), and any legal entity are legally capable. The legal representatives of a person under 18 years of age are usually his parents.
Main part of the contract is divided into specific and general terms of the contract. TO specific The following conditions are specific to this transaction, but are unlikely to apply to other transactions:
subject of the contract;
quality of services, goods, works;
price parameters of the transaction;
price discounts and surcharges (if they apply);
payment procedure;
rights and obligations of the parties;
liability of the parties;
deadline for fulfilling obligations;
procedure for changing and terminating the contract.
The specific terms of the contract constitute the topic and content of discussion when partners negotiate a deal.
TO general The terms of the contract include provisions that are included in all contracts, regardless of their content:
arbitration clause;
force majeure or force majeure circumstances, i.e. emergency and unpreventable: natural disasters(earthquakes, floods, fires, sudden temperature fluctuations); social phenomena(military actions, strikes); prohibitory acts government agencies(declaration of quarantine, closure of ports, restriction of transportation), etc. These circumstances make it possible to postpone the fulfillment of obligations, and in the absence of a positive result, release the parties from their fulfillment.
IN final part of the contract are indicated:
legal addresses;
postal and bank details of the parties (for example, number current account, name of the bank institution, its code, etc.);
all annexes that are integral parts of the agreement;
signatures of the parties accompanied by the seal of each participant in the transaction;
number of copies of the agreement;
indication of the place and date of conclusion of the contract (if this was not done in the preamble).
The introductory part of the contract usually contains the following provisions.
1.1. Contract name
A simple and unambiguous name of the agreement (for example, a purchase and sale agreement) immediately determines the essence of the agreement. In cases where the agreement does not have a title, you have to read it to understand the essence of the agreement.
1.2. Contract signing date
Any contract must contain the date of signing the contract. Unless otherwise specified in the terms of the contract, the date of signing unambiguously determines the moment the contractual relationship enters into force, and with it the deadline for its completion, after which liability begins.
If the parties sign an agreement in different time, then the agreement comes into force from the moment it is signed by the last party.
1.3. Place of signing the contract
1.4. Full corporate name of counterparties
The full corporate name of the counterparties is exactly as they are registered in the state registration register. It is also necessary to indicate the role of each party in the agreement, for example, customer, contractor, lessor, tenant, etc. Specifying the role will simplify the contract and avoid repeating the names of the parties' companies many times.
1.5. Authorized persons
Last name, first name and patronymic without abbreviations, as well as the full title of the position of the person who signs the agreement and the name of the document from which the authority to sign the agreement follows.
2. Subject of the agreement. Rights and obligations
2.1. Obligations and rights of one party under the contract.
2.2. Obligations and rights of the other party under the contract.
2.3. The deadline for the parties to fulfill their obligations.
2.4. Place of performance of each party's obligations.
2.5. The method of fulfilling the obligations of each party (actions, their sequence and deadlines).