Agreement in the field entrepreneurial activity - this is an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activities, the parties (or one of the parties) of which act as business entities.

Entrepreneurial agreements are subject to special rules on obligations related to the implementation of entrepreneurial activities, as well as general provisions on obligations.

An entrepreneurial agreement is concluded for the purpose of carrying out entrepreneurial activities by its parties (parties).

The obligations of a party that has entered into an agreement with an entrepreneur and does not pursue the goal of carrying out entrepreneurial activities are subject to the general rules of civil law.

Parties (or one of the parties) of business agreements are business entities.

At the same time, a citizen engaged in entrepreneurial activity without state registration is not entitled to refer, in relation to transactions concluded by him, to the fact that he is not an entrepreneur. The court may apply to such transactions the rules on obligations associated with the implementation of entrepreneurial activities.

Contracts between business entities that are commercial legal entities are assumed to be entrepreneurial.

Agreements concluded with the participation of non-profit organizations are classified as entrepreneurial, depending on the goals they pursue, acting as a party to the relevant agreements.

Entrepreneurial contracts are of a reimbursable nature: the party to the contract must receive a fee or other consideration for the performance of the contract.

The legislation contains a fundamental ban on the conclusion of gratuitous contracts between business entities. In fact, a number of gratuitous contracts are concluded between entrepreneurs. The law provides for a ban only on the transfer of property by a commercial organization for free use to a person who is its founder, participant, head, member of its management or control bodies (clause 2 of article 690 of the Civil Code of the Russian Federation). In other cases, the special rule of paragraph 2 of Art. 690 of the Civil Code of the Russian Federation does not prohibit the conclusion of contracts for gratuitous use between business entities.

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 (clause 1, article 426 of the Civil Code of the Russian Federation).

Economic entities that occupy a dominant position in the market of a certain product are prohibited from refusing to conclude an agreement with consumers (buyers, customers) if it is possible to produce or supply this product. A similar rule also applies to the conclusion of public contracts.

Apply to business contracts General requirements on the conclusion, amendment and termination of contracts, provided for in the norms of civil law. There are also features of the conclusion of business contracts.

In conditions market economy the contract is the main form of organization of economic relations of subjects. The variety of contractual structures allows you to cover various aspects of doing business. In the process of creation and functioning of an enterprise or organization, numerous economic ties are established. Thus, to ensure the life of a legal entity, it is necessary to conclude contracts for the sale or lease of premises, connection to power networks is carried out on the basis of an energy supply contract, contracts for the production and distribution of promotional products, etc.

The production activity of the enterprise is impossible without the conclusion of contracts for the supply of materials and equipment for the production of goods and the subsequent sale of these products to consumers, contracts for the storage of products ready for transfer, etc.

Entrepreneurial activity related to the sale of goods, the performance of work or the provision of services to the population is formalized by the conclusion of contracts retail purchase and sale, household contracts, rental, paid services to citizens-consumers, as well as transportation of passengers and luggage, storage, personal and property insurance, bank deposits, consumer lending, etc.

In the process of carrying out construction activities, construction contracts, contracts for the performance of research, development and technological work, as well as supply, transportation and other contracts necessary for the implementation of the construction process are concluded.

In the process of doing business, numerous financial transactions are concluded. In order to obtain financing, the parties enter into loan agreements and loan agreements, make factoring transactions. To carry out settlement operations, legal entities and individual entrepreneurs enter into bank account agreements.

In order to minimize risks in the process of doing business, entrepreneurs enter into property insurance contracts.

In the process of carrying out entrepreneurial activities, business entities resort to the services of intermediaries, concluding contracts of agency, commission, agency, trust management of property and other intermediary agreements and acting as a customer in them, and also carry out intermediary services themselves in order to make a profit as a type of entrepreneurial activity acting in them as a service provider.

As can be seen from the presented analysis, universal contractual structures (such as the supply of goods, financial services, insurance, intermediary services, etc.) are in demand in various types of business activities, which makes it difficult to classify them rigidly. In addition, business entities with general legal capacity may carry out various types of business activities, including trade, production, intermediary and others, except for those prohibited by law.

In this regard, the main types of entrepreneurial activity will be taken as the basis for the classification of contractual structures used in the process of doing business.

In the process of carrying out production and trading activities, entrepreneurs conclude various agreements that form the basis of commodity exchange. The main one is supply contract goods. Let's consider it in more detail.

The features of this agreement are due to its entrepreneurial orientation. The purpose of concluding a supply agreement is the purchase of goods for use in business activities or other purposes not related to personal, family, home and other similar use (for example, the purchase by the buyer of goods to ensure his activities as an organization or a citizen-entrepreneur, including including office equipment, office furniture, Vehicle, materials for repair work etc.).

However, if these goods are purchased from a seller engaged in entrepreneurial activities in the sale of goods at retail, the relations between the parties are governed by the rules on retail sale 1 . Not only the nature of the applicable rules, but also the specifics of taxation will depend on the correct qualification of the contract (for example, the application of a taxation system in the form of a single tax on imputed income for retail trade (Article 346.26 of the Tax Code of the Russian Federation) and the impossibility of applying simplified taxation in relation to a supply contract).

The purpose of the supply contract determines its subject composition - supply contracts are concluded between manufacturers of goods and suppliers of raw materials (materials, components) or between manufacturers of goods and sellers of these goods, etc., i.e. between subjects of entrepreneurial and material activity.

The object of the supply contract is not any goods, but only those produced or purchased by the supplier, therefore, suppliers are most often commercial organizations or individual entrepreneurs specializing in the production of the relevant goods or professionally engaged in their purchases. Since non-profit organizations have the right to carry out entrepreneurial activities, they can also act as subjects of a supply agreement, except in cases of purchase and sale of property non-profit organization carried out under one-time transactions. In this case, we will talk about the usual sale and purchase.

Relationships between suppliers and buyers of products are often long-term in nature, and therefore the legal regulation of the supply contract provides the possibility of long-term contractual relations (the periods for the supply of goods are regulated, the procedure for filling underdelivery in subsequent periods, the turnover of reusable containers, etc.).

The only essential condition of the supply contract provided for by law is the subject of the contract. In the absence of a condition on the subject of the supply contract, the contract is considered not concluded (Article 432 of the Civil Code of the Russian Federation). "

Within the meaning of Art. 455 of the Civil Code of the Russian Federation, the subject of the contract of sale is considered agreed if it allows you to determine the name and quantity of the goods. When determining the name of the goods in the supply agreement, you should use standard trade terminology corresponding to GOST R 51303-2013 “Trade. Terms and definitions" 1 and All-Russian classifier products but types economic activity(OKPD 2) OK 034-2014. In accordance with the established terminology, the type or variety of goods must be indicated in the supply contract. An indication of the class of goods only, for example, meat and sausage products, Appliances, household chemicals, etc., does not allow to definitely establish the subject of the supply contract, which may lead to the recognition of the contract as not concluded.

Under the terms of the supply agreement, LLC (supplier) undertook to supply public organization(to the buyer) meat and sausage products in the range, which the latter has undertaken to accept and pay for. Under the terms of the contract, the delivery time, quantity, assortment and price of each delivered batch of goods are agreed by the parties in a preliminary order by phone or in writing.

Appealing to the arbitration court, LLC claimed that the buyer had not paid for the goods delivered to him.

Considering the dispute, the courts on the basis of the provisions of Art. 432, paragraph 1 of Art. 454, paragraph 3 of Art. 455 of the Civil Code of the Russian Federation concluded that the supply contract was not concluded due to the absence of the name, quantity of goods and delivery time in it.

The Supreme Arbitration Court of the Russian Federation recognized the lawful position of the lower courts and did not find grounds for revising the decisions that had been made by way of supervision.

In addition to the subject matter of the contract, the supply contract may define conditions on the quality of the goods, including a guarantee of the quality of the goods, on the price and settlement procedure under the supply contract, on the time and periods for the delivery of goods, on the procedure for the delivery of goods, on the the order of acceptance of goods in terms of quantity and quality, as well as other rights and obligations of the parties to the contract and the responsibility of the parties for violation of the supply contract.

These conditions are not essential, and their absence does not affect the conclusion of the contract. The parties are free to determine which specified conditions must be agreed in the supply contract. In case of their absence in the contract, the content of these conditions, as well as the consequences of their non-compliance, are determined by the dispositive norms of the Civil Code of the Russian Federation. This measure is aimed at protecting the rights and legitimate interests of the parties to the agreement and does not exclude the possibility of concluding detailed multi-page agreements that will take into account all aspects of the relationship between business entities.

Arbitrage practice

The courts take an ambiguous approach to resolving the issue of recognizing the condition on the term in the supply contract as an essential condition and on the application of the consequences associated with the uncertainty of the term in the contract.

In paragraph 7, the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 10.22.1997 No. 18 “On some issues related to the application of the provisions of the Civil Code Russian Federation on the supply contract” it is noted that in cases where the moments of conclusion and execution of the contract do not coincide, and the parties do not specify the delivery time of the goods and it does not follow from the contract that it should be carried out in separate lots, when resolving disputes, it is necessary to proceed from the fact that the delivery time determined according to the rules established by Art. 314 of the Civil Code of the Russian Federation (Article 457 of the Civil Code of the Russian Federation).

The specified position of the court excludes the possibility of determining the condition on the term in the supply contract as an essential condition. However, in judicial practice available a large number of examples when the courts recognize the term in the supply contract as an essential condition or take a compromise position. Thus, in one of the decisions of the arbitration court it was noted that the condition on the timing of the delivery of goods is an essential condition, since an indication of it is present in the definition of the concept of a supply contract, which is given in Art. 506 of the Civil Code of the Russian Federation. At the same time, the court noted that the condition on the delivery time refers to definable essential conditions and the absence of delivery dates in the contract or their disagreement by the parties in itself cannot serve as a basis for recognizing the contract as not concluded.

Entrepreneurial activity may be accompanied by a conclusion exchange contracts. An exchange contract, like a contract for the supply of goods, is a commodity transaction. In both cases, exchange relations take place. However, unlike the sale and purchase, in which goods are exchanged for money, an exchange agreement involves the exchange of goods for goods. In fact, an exchange agreement is a double counter sale, where each of the parties to the agreement simultaneously acts as a seller and buyer of goods. The specified property of the barter agreement makes it possible to apply the norms of civil legislation on contracts of sale to its regulation, if they do not contradict the special rules governing the barter agreement (Chapter 31 of the Civil Code of the Russian Federation) and the essence of the barter agreement.

Despite the fact that such natural exchange relations preceded the emergence of commodity-money relations, today the use of an exchange agreement in business relations rather the exception than the rule. However, such exchange transactions can be carried out between business entities, and income received as a result of the execution of an exchange agreement is subject to taxation, since, in accordance with Art. 210 of the Tax Code of the Russian Federation, when determining the tax base, all incomes of the taxpayer received by him both in cash and in kind are taken into account.

Example

A barter agreement was concluded between the joint-stock company and the cooperative, according to which the parties undertook, within a week after the conclusion of the barter agreement, to transfer to the counterparty, respectively, three wagons of building materials in exchange for a certain number of computers.

On the last day of the term for the fulfillment of contractual obligations by the parties, the cooperative transferred to the company only one wagon of building materials.

Having received reliable information that the arrival of other wagons from building materials to the railway station in the near future is not expected, society, guided by Art. 328 of the Civil Code of the Russian Federation, suspended the fulfillment of its obligation to transfer computers to the cooperative.

Considering the dispute that had arisen, the court came to the conclusion that, under the terms of the exchange agreement concluded by the parties, each of the parties had to fulfill its obligations within the same period. As follows from Art. 569 of the Civil Code of the Russian Federation, the rules on the mutual fulfillment of obligations (Article 328 of the Civil Code of the Russian Federation) can be applied only if, in accordance with the exchange agreement, the terms for the transfer of the exchanged goods do not coincide. In addition, the fulfillment of an obligation by one of the parties, which, in accordance with the contract, is conditioned by the fulfillment of its obligations by the other party, is recognized as a counter.

Since under the contract the terms for the transfer of exchanged goods are the same, the company was not entitled to suspend the performance of its obligations.

Varieties of the supply contract are supply contracts for state and municipal needs and contracting.

Peculiarities supply of goods for state and municipal needs due to the subject composition of these legal relations, as well as the goals and procedure for concluding an agreement.

Peculiarities legal regulation supplies of goods for state and municipal needs are reflected in paragraph 4 of Ch. 30 of the Civil Code of the Russian Federation, as well as special laws:

• - Law on the contract system;
• - Federal Law of December 29, 2012 No. 275-FZ "On the State Defense Order";

Federal Law of December 29, 1994 No. 79-FZ “On the State Material Reserve”;

• - Federal Law No. 60-FZ of December 13, 1994 “On the supply of products for federal state needs”;
• - Federal Law No. 53-FZ of 02.12.1994 "On Procurement and Supply of Agricultural Products, Raw Materials and Food for State Needs".

These federal laws are applicable to the regulation of the supply contract for state and municipal needs in the part not regulated by paragraphs 3 and 4 of Ch. 30 of the Civil Code of the Russian Federation.

The first feature is associated with the participation in this legal relationship of special entities - state and municipal customers, which are the bodies authorized to accept budgetary obligations and make purchases. state power, State Corporation for Atomic Energy "Rosatom", management bodies of state off-budget funds or state public institutions acting on behalf of the Russian Federation or a constituent entity of the Russian Federation, as well as municipal authorities or municipal government agencies acting on behalf of the municipality.

Another feature of the supply contract for state and municipal needs is related to the procedure for its conclusion. The procedure for concluding an agreement, provided for by the Civil Code of the Russian Federation and special federal laws, involves several stages. In accordance with and. 1 st. 525 of the Civil Code of the Russian Federation, the supply of goods for state or municipal needs is carried out on the basis of a state or municipal contract for the supply of goods for state or municipal needs, as well as contracts concluded in accordance with it for the supply of goods for state or municipal needs.

In turn, the basis for concluding a state or municipal contract is an order for the supply of goods for state or municipal needs, placed in the manner prescribed by law (Article 527 of the Civil Code of the Russian Federation). Currently, the procedure for the procurement of goods, works, services to meet state and municipal needs is regulated by the Law on the contract system.

Civil law singles out a contract contract as a special type of sale and purchase. This agreement also has an entrepreneurial focus. The producer of agricultural products acts as a seller in the contracting agreement, i.e. a person (a business partnership or company, a peasant (farm) enterprise, individual entrepreneur etc.), which independently grew grain, livestock or other types of agricultural products. The buyer in this agreement is the purveyor of grown or produced agricultural products, who purchases them for subsequent processing or sale.

The specifics of the legal regulation of this agreement is due to the need to provide additional support to the agricultural producer, since this type of entrepreneurial activity is associated with new risks due to natural factors, often independent of the will and desire of people. As measures of such support, the legislator imposes additional obligations on the purveyor of agricultural products (unless otherwise provided by the contract, accept agricultural products from the manufacturer at the place of its location and ensure its export, return waste from the processing of agricultural products with payment at a price determined by the contract, etc.) . In addition, the legislation guarantees the protection of the rights and legitimate interests of the procurer as a special business entity, allowing the possibility of bringing him to responsibility for violating the contracting agreement only if he is guilty.

The implementation of entrepreneurial activities for the sale of goods at retail is accompanied by a conclusion retail sales contracts. A feature of this agreement, which distinguishes it from the entrepreneurial supply agreement, is the purpose of the purchase of goods by buyers. Under a retail sale and purchase agreement, goods are purchased for personal, family, home use, not related to business activities.

The sellers in the retail sale agreement may be commercial organizations or individual entrepreneurs engaged in entrepreneurial activities for the sale of goods at retail. Considering the purpose of purchasing goods, the buyer in a retail sale and purchase agreement is most often a citizen, although civil law does not exclude the possibility of purchasing goods at retail by legal entities.

However, the retail sale contract is not a business contract and does not seek to ensure an equal position of the parties. On the contrary, the provisions of the civil law governing the retail sale and purchase create a more preferential regime for the buyer and, accordingly, more onerous for the seller. The preferential regime provides for the provision of additional measures to protect the rights of a consumer citizen, which is ensured by the norms of the Civil Code of the Russian Federation and the Law on the Protection of Consumer Rights.

An important role in the provision and implementation of entrepreneurial activity is played by power supply contract. Business entities, depending on the nature of their activities, can act as both suppliers and consumers of energy. Under the power supply agreement, the power supply organization undertakes to supply the subscriber (consumer) with energy through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply with the mode of its consumption provided for by the agreement, to ensure the safety of operation of the energy networks under his control and the serviceability of the devices and equipment used by him, connected with energy consumption.

These general requirements apply to all consumer-subscribers, regardless of their legal status. Nevertheless, civil legislation has a differentiated approach to the regulation of energy supply relations, depending on the status of the subscriber. In the case when the subscriber is a business entity, the contract must be concluded in writing. At the same time, the contract must determine the amount of energy supplied, the mode of its supply, and the subscriber’s right to change the amount of energy received by him, determined by the contract, subject to reimbursement of expenses incurred by the energy supply organization in connection with ensuring the supply of energy not in the amount stipulated by the contract, can be agreed upon.

The subscriber-entrepreneur has additional responsibilities for monitoring the technical condition and safety of power networks, instruments and equipment, and compliance with the energy consumption regime. In addition, the law gives the power supply organization the right to unilaterally refuse to execute the contract in the event of a material breach of the contract by a legal entity subscriber. Within the meaning of paragraph 3 of Art. 523 of the Civil Code of the Russian Federation under a significant violation of the energy supply agreement by the subscriber is repeated violation of the terms of payment for the received energy.

Business entities may conclude other agreements that facilitate the implementation of entrepreneurial activities, including contracts for the sale of real estate, the sale of an enterprise, a lease agreement, etc.

Lease contract is the most demanded contract in business relations. This contractual structure can be used when renting buildings and structures, land plots, equipment, vehicles, enterprises and similar objects used in the course of business activities. In addition, the lease of property, drawn up by the relevant lease agreements, may be an independent type of entrepreneurial activity (for example, a rental agreement, a lease agreement for vehicles with a crew and without a crew, etc.).

Lease relations are regulated by the norms of Ch. 34 of the Civil Code of the Russian Federation. Features of the lease of natural objects are regulated by special norms of the Land Code of the Russian Federation (Chapter IV), the Forest Code of the Russian Federation (Chapter 72-74) and other norms of natural resource legislation.

Special, including preferential, lease conditions are provided for small and medium-sized businesses by the Law on the Development of Entrepreneurship. Federal Law No. 159-FZ dated July 22, 2008 “On the Peculiarities of the Alienation of Real Estate State-Owned by the Subjects of the Russian Federation or in Municipal Property and Leased by Small and Medium-Sized Businesses, and on Amendments to Certain legislative acts of the Russian Federation” regulates the specifics of the participation of small and medium-sized businesses in the privatization of leased property.

Important in ensuring the uniformity of the application of rent rules, especially in the field of entrepreneurial activity, are information mail The Presidium of the Supreme Arbitration Court of the Russian Federation No. 66 dated January 11, 2002 “Review of the practice of resolving disputes related to rent” and Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 73 dated November 17, 2011 “On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on a lease agreement”.

The nature of the lease agreement contributes to its active use in business relations, since this agreement is consensual, mutual and reimbursable. Compensation is hallmark entrepreneurial contract, and the lease agreement fully complies with this criterion, since the lease agreement by its nature cannot be gratuitous. Even if the contract does not define the rent and the procedure for its payment, a comparable rent for similar property under comparable circumstances shall be applied (clause 1, article 614 of the Civil Code of the Russian Federation). Thus, the gratuitousness of the contract should directly follow from its content, and in this case, the relations of the parties will be built according to the rules of another civil law obligation - a contract for gratuitous use (loans) 1 .

Under a lease agreement, property is transferred for temporary possession and use or only use. Since the lease does not involve the transfer of property, the lease cannot be recognized big deal society, the decision to commit which is made general meeting members of the company (in the manner prescribed by Article 46 of the LLC Law) /

Under a lease agreement, any non-consumable thing that does not lose its natural properties in the process of their use can be transferred for temporary possession and use.

Arbitrage practice

In the practice of arbitration courts, the issue of whether only an independent separate object should be transferred under a lease agreement or a non-isolated part of this object, for example, the roof or load-bearing wall of a building for placement of outdoor advertising on it, is ambiguously resolved.

Without denying in general the opportunity to place advertisements on the roof of the building owned by the defendant on a reimbursable basis, arbitration courts do not recognize such contracts as leases. At the same time, according to the Supreme Arbitration Court of the Russian Federation, such agreements can be applied by analogy with the provisions of the legislation on a lease agreement.

The object of the lease must be clearly defined in the contract by including data in it that allows you to definitely determine the property to be transferred to the tenant. Otherwise, the condition on the subject is considered inconsistent, and the contract is considered not concluded.

Arbitrage practice

The landlord transferred into temporary possession a large cattle, livestock of pigs and livestock of horses according to the act of acceptance and transfer.

In the lease agreement, only the amount of live weight to be transferred was determined and there were no individually defined signs characterizing each head of the animal: color, nickname, tag, brand, inventory numbers.

If there is no data in the contract that allows to definitely establish the property to be transferred to the tenant as an object of lease, the condition on the object to be transferred to lease is considered not agreed by the parties, and the corresponding agreement is not considered concluded.

The property to be leased must be in a condition that complies with the terms of the lease agreement and the purpose of the property, and is transferred with all accessories and documents necessary for its use in accordance with the terms of the agreement. Otherwise, the tenant may demand termination of the contract and compensation for damages.

As a general rule, the term in the lease agreement is not an essential condition, and in the absence of it, the agreement is considered concluded for an indefinite period (and. 2 article 610 of the Civil Code of the Russian Federation), which simplifies the procedure for terminating it at the initiative of the parties, it is enough just to warn the counterparty about the refusal to further execution of the contract for one month, and for the lease of real estate - for three months. The exception to this general rule are the maximum (limit) periods established by law for certain types lease and lease of certain types of property (for example, land plots, forest fund plots, water bodies, etc.).

If the term is not specified in the lease agreement, but a condition is formulated upon the occurrence of which the lease relationship is subject to termination (for example, "before the reconstruction of the building"), such an agreement is also considered concluded for an indefinite period.

The rent in the lease is also not an essential condition. An exception is the requirement to determine the rent when leasing real estate objects (rent of buildings and structures, lease of enterprises, lease of land plots and other natural objects).

In addition to compliance with the form, the law requires state registration of a building and structure lease agreement concluded for a period of at least one year (Article 651 of the Civil Code of the Russian Federation), as well as an enterprise lease agreement, regardless of the term (Article 658 of the Civil Code of the Russian Federation). In this regard, a lease agreement for buildings and structures concluded for a period of less than a year and subsequently extended for an indefinite period, as well as a similar agreement that was originally concluded for an indefinite period, is not subject to state registration.

Law reform

The requirements for mandatory state registration of lease agreements for buildings, structures and enterprises were canceled from March 1, 2013 in accordance with the Federal Law of December 30, 2012 No. Federation".

However, three days later, Federal Law No. 21-FZ of 04.03.2013 “On Amendments to Certain Legislative Acts of the Russian Federation and the Recognition of Certain Provisions of Legislative Acts of the Russian Federation as Invalid” was officially published and entered into force, which actually retained the rule on the need for state registration of lease agreements for buildings, structures and enterprises, valid until March 1, 2013

Thus, canceled from March 1, 2013. state registration lease agreements for certain types of real estate from March 4, 2013 is carried out again.

entrepreneurial activity, which are the right holders, may enter into contracts for the alienation of exclusive rights (Article 1234 of the Civil Code of the Russian Federation), transferring their exclusive rights to the results of intellectual activity or means of individualization in full to the other party (acquirer), as well as to conclude license agreements (Article 1235 of the Civil Code of the Russian Federation), granting the right to use such a result or means within the limits provided for by the contract. And vice versa, entrepreneurs act as active consumers of an intellectual product, acting in civil relations as acquirers of exclusive rights to the results of intellectual activity and means of individualization, as well as as licensees using such results and means within the limits stipulated by the contract.

For implementation joint activities entrepreneurs can enter into partnership agreements. This agreement creates a legal basis for the association of entities in order to achieve a certain economic or other goal that does not contradict the law. At the same time, only individual entrepreneurs and (or) commercial organizations can be parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities (clause 2 of article 1041 of the Civil Code of the Russian Federation). The joint activity of comrades involves the unification of efforts to achieve a specific goal, which can be expressed in material (cash and other property) and intangible form (professional and other knowledge, skills and abilities, as well as business reputation and business connections). Since the value of an intangible contribution is difficult to measure, the contributions of partners are assumed to be equal in value, unless otherwise follows from a simple partnership agreement or actual circumstances.

Arbitrage practice

The implementation of joint activities assumes that the parties, joining efforts, pursue the same goal. In this regard, the agreement of the parties under which one party undertakes to allocate a land plot for the organization cannot be qualified as a simple partnership agreement. outlets other persons (parties of the contract), who, in turn, undertake to pay the first sums of money defined in the agreement as contributions for the implementation of joint activities. In the example considered, each of the parties pursues its own goals: one party plans to trade in the territory allocated to it, the other party plans to profit from the disposal of the land. In the absence of a single purpose, the contract cannot be recognized as a simple partnership contract, and therefore the norms of Ch. 55 of the Civil Code of the Russian Federation.

In the design of business relations in the field of work performance, the leading role is played by work agreement, on the basis of which one party (contractor) undertakes, on the instructions of the other party (customer), to perform certain work and hand over its result to the customer, and the customer undertakes to accept the work performed and pay.

The contract is compensated contract, the performance of work is a type of paid activity, therefore, in the vast majority of work contracts, contractors are business entities.

Business entities act as contractors in contracts:

• - household contract, performing work intended to meet the household or other personal needs of a customer-citizen (paragraph 2 of Chapter 37 of the Civil Code of the Russian Federation). In this case, contractors are subject to the requirements of the Consumer Protection Act;
• - construction contract aimed at the implementation construction works, including the construction or reconstruction of enterprises, buildings (including residential buildings), structures or other facilities, as well as the performance of installation, commissioning and other works inextricably linked with the facility under construction (paragraph 3 of Chapter 37 of the Civil Code of the Russian Federation);
• - a contract for the performance of design and survey work aimed at the development of design and technical documentation and (or) the performance of survey work, which is the initial stage of preparation for the construction or reconstruction of real estate objects (paragraph 4 of Chapter 37 of the Civil Code of the Russian Federation).

A special procedure for the conclusion is provided for construction contracts, as well as a contract for the performance of design and survey work for state and municipal needs (paragraph 5 of Chapter 37 of the Civil Code of the Russian Federation). In accordance with Art. 765 of the Civil Code of the Russian Federation, the grounds and procedure for concluding a state or municipal contract for the implementation of contract work for state and municipal needs corresponds to the grounds and procedure provided for the conclusion of contracts for the supply of goods for state and municipal needs.

Business entities can act as executors and customers in contracts for the performance research works , experimental design and technological work.

The implementation of research work involves the conduct of scientific research, due to the terms of reference of the customer. Unless otherwise provided by the contract, scientific research must be carried out by the contractor personally. Third parties may be involved in the performance of research work only with the consent of the customer.

The implementation of experimental design and technological work involves the development of a sample of a new product, as well as the development design documentation for this product or new technology. The contractor has the right to involve third parties in carrying out experimental design and technological work, unless otherwise provided by the contract with the customer. If third parties are involved in the performance of work, relations between the parties are built on the basis of the “general contract” rules.

A special role in the formalization of relations for the construction of real estate is played by treaty equity participation in construction. This agreement is one of the "unnamed" in the Civil Code of the Russian Federation and is regulated by the Federal Law of December 30, 2004 No. 214-FZ "On Participation in Shared Construction apartment buildings and other real estate objects and on amendments to certain legislative acts of the Russian Federation”. The Shared Construction Participation Agreement regulates the relationship between the parties in organizing the construction of a residential building and investing funds in this construction.

In accordance with Art. 4 federal law dated December 30, 2004 No. 214-FZ, the parties to the agreement on participation in shared construction are the developer and the participant in shared construction.

The developer is a legal entity, regardless of its organizational and legal form, which undertakes to build an apartment building and (or) other real estate object within the period stipulated by the contract on its own and (or) with the involvement of other persons and, after obtaining permission to put these objects into operation, transfer the appropriate object to the participant of shared construction.

A participant in shared construction may be a citizen or a legal entity who undertakes to pay the price stipulated by the contract and accept the object of shared construction if there is a permit to put into operation an apartment building and (or) another real estate object. If a citizen who acquires property for personal purposes not related to entrepreneurial activities acts as a participant in shared construction, the norms of the Law on the Protection of Consumer Rights are applied to relations under the contract in question.

The implementation of entrepreneurial activities in the provision of services is formalized by the conclusion of contracts regulating the relationship between the contractor and the customer of the service. Obligations to provide services are the largest group of obligations, represented by various types of civil law contracts, taking into account the specifics of the provision of certain types of services.

Civil law obligations in the provision of services can be divided into two groups:

obligations that have an independent contractual structure provided for by the Civil Code of the Russian Federation, including contracts for transportation, transport expedition, bank deposit, bank account, storage, commission, commission, trust management of property, etc.;

All other obligations in the provision of services, the regulation of which is carried out on the basis of the norms of Ch. 39 of the Civil Code of the Russian Federation "Paid Services" and special laws.

The norms of the contract for the provision of services for a fee govern relations in the field of the provision of actual services, including communication services, medical, veterinary, auditing, consulting, information services, training services, tourist service and others.

Regulation of contractual relations:

• - in the field of communication services carried out by Federal Law No. 126-FZ of July 7, 2003 “On Communications”, as well as Federal Law No. 176-FZ of July 17, 1999 “On Postal Communications”;
• - in the field of medical and veterinary services - Federal Law No. 323-FZ of November 21, 2011 “On the Basics of Protecting the Health of Citizens in the Russian Federation” and Decree of the Government of the Russian Federation of August 6, 1998 No. 898 “On Approval of the Rules for the Provision of Paid Veterinary Services”;
• - in the field of audit services- Federal Law No. 307-FZ dated December 30, 2008 “On Auditing Activities”;
• - in the field of valuation activities- Federal Law No. 135-FZ of July 29, 1998 “On Appraisal Activities in the Russian Federation”;
• - in the field educational activities - Federal Law No. 273-FZ of December 29, 2012 “On Education in the Russian Federation”;
• - in the field of tourist services - Federal Law No. 132-FZ of November 24, 1996 “On the Basics tourism activities in the Russian Federation, etc.

As in the case of a work contract, the provision of paid services is a type of paid activity, therefore, in the vast majority of cases, the contractors in the contract for the provision of services are business entities.

In addition, Art. 783 of the Civil Code of the Russian Federation allows additional application of the norms on a work contract and a household contract in relation to a contract for the provision of services for a fee, if this does not contradict the special rules of Ch. 39 of the Civil Code of the Russian Federation, as well as the features of the subject of the contract for the provision of services for compensation. All this gives grounds for classifying contracts for the provision of services for contracts:

• - paid provision household services, where the service provider is an entrepreneur who provides services to the population for a fee, and the customer (consumer) of the service is a citizen. In this case, the service provider is subject to the requirements of the Consumer Rights Protection Law;
• - paid provision of services in the field of entrepreneurial activity, where business entities act both on the side of the contractor and on the side of the customer of the service.

The legislation may provide for special requirements for the service provider (for example, licensing the activities of legal entities and individual entrepreneurs for the provision of communication services for a fee, carried out on the basis of Article 29 of the Federal Law of July 7, 2003 No. 126-FZ "On Communications"). In addition, the law connects the performance of the service with the personality of the service provider, since the service is consumed in the process of its provision by the service provider. In this regard, the personality of the performer is of fundamental importance for the characteristics of the service provided, affecting, among other things, the quality of its provision.

From the date of entry into force of the Law on Technical Regulation, services are not subject to mandatory confirmation of conformity, and such confirmation of conformity can be carried out on a voluntary basis (Article 21 of the said Law).

The implementation of entrepreneurial activity is accompanied by the participation of entrepreneurs in obligations to provide transport services, including in contracts for the carriage of goods, passengers and luggage (Chapter 40 of the Civil Code of the Russian Federation), transport expedition (Chapter 41 of the Civil Code of the Russian Federation), towing (for example, Article 88 of the Code of Inland Water Transport of the Russian Federation, Chapter XII of the CTM of the Russian Federation), chartering (Article 787 of the Civil Code of the Russian Federation, Article 104 of the Air Code of the Russian Federation), as well as in agreements on the organization of transportation (Article 798 of the Civil Code of the Russian Federation), key agreements, contracts for the centralized delivery (export) of goods (Article 799 of the Civil Code of the Russian Federation), etc. .

The specificity of the legal regulation of transport obligations is due to their special subject composition. First of all, it concerns the special status transport organizations, which are one of the most important subjects of economic turnover in the state, on the stable and uninterrupted activity of which the stability of the state economy as a whole depends. This, in particular, is the reason for a number of restrictions on the liability of carriers, provided for by transport charters and codes, in comparison with the liability of other business entities. So, for non-fulfillment or improper fulfillment of obligations for the carriage of goods, the liability of the carrier is limited to the amount of an exceptional penalty (for example, for delay in the delivery of goods) or compensation for real damage (for loss, shortage or damage to goods during transportation).

In the process of doing business, an important role is played by the provision of financial services entrepreneurs. Obtaining financing is the key to the stable development of entrepreneurial activity.

Financing of entrepreneurial activity can be carried out by concluding loan agreements (paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation), by concluding loan agreements with a bank or other credit organization (paragraph 2 of Chapter 42 of the Civil Code of the Russian Federation), as well as by concluding factoring agreements, the purpose of which is to implement financing against the assignment of a monetary claim belonging to the entrepreneur to a third party (Chapter 43 of the Civil Code of the Russian Federation).

A factoring agreement (financing against the assignment of a monetary claim) is used in business relations to speed up the process of obtaining "live" money. A client who has acquired a monetary claim against a third party, for example, as a result of the fulfillment of an obligation to transfer goods under a supply agreement (performance of work or provision of a service), without waiting for the fulfillment of this monetary claim by his counterparty under a supply agreement (contract, etc.) .), assigns this monetary claim to a financial agent (bank or other commercial organization) in exchange for funding. Thus, the client has the opportunity to increase the delay in payments for buyers, as well as to protect himself from the risk of non-payment for the delivered goods, work performed or services rendered.

In fact, factoring is an unsecured financing that allows you to increase the volume of working capital enterprises. It plays a special role in financing the activities of small and medium-sized businesses, which often have no other way to obtain financing, except for the assignment of their receivables.

Russian civil law provides for two options for relations that arise between a client and a financial agent. Firstly, financing can be carried out by selling the client's claim to a third party - a financial agent. In this case, the financial agent acquires the rights to all the amounts that he receives from the debtor in fulfillment of the claim, and the client is not liable to the financial agent for the fact that the amounts received by him turned out to be less than the price for which the agent acquired the claim. The second option involves the use of an assignable claim as a security instrument for fulfilling the client's obligation to the financial agent. In this case, the financial agent is obliged to submit a report to the client and transfer to him the amount in excess of the client's debt secured by the assignment of the claim. If the financial agent receives a smaller amount from the debtor, the client remains liable to the financial agent for the balance of the debt.

The implementation of entrepreneurial activity is accompanied by the conclusion of a bank account agreement (Chapter 45 of the Civil Code of the Russian Federation), without which it is impossible to carry out non-cash payments between business entities.

In the process of doing business, there are investment contracts, including:

• - an investment agreement regulating relations between subjects of investment activity and concluded in the manner prescribed by Federal Law No. 39-FZ of February 25, 1999 “On investment activity in the Russian Federation carried out in the form of capital investments”;
• - a financial lease (leasing) agreement, according to which the lessor (lessor) undertakes to acquire ownership of the property specified by the lessee (lessee) from the seller specified by him and provide the lessee with this property for a fee for temporary possession and use (paragraph b of Chapter 34 of the Civil Code of the Russian Federation );
• - a production sharing agreement, on the basis of which the Russian Federation grants to a business entity (investor) on a reimbursable basis and for a certain period of time, exclusive rights to prospecting, exploration, production of mineral raw materials in the subsoil area specified in the agreement, and to conduct related work , and the investor undertakes to carry out the specified work at his own expense and at his own risk. The production sharing agreement defines all the necessary conditions related to the use of subsoil, including the conditions and procedure for the division of manufactured products between the parties to the agreement in accordance with the provisions of the Federal Law of December 30, 1995 No. 225-FZ “On Production Sharing Agreements”;
• - a concession agreement, according to which one party (the concessionaire) undertakes at its own expense to create and (or) reconstruct the property specified by this agreement (real estate or real estate and movable property, technologically interconnected and intended for the implementation of activities provided for by the concession agreement ), the right of ownership to which belongs or will belong to the other party (grantor), to carry out activities using (exploitation) of the object of the concession agreement, and the concessor undertakes to provide the concessionaire for the period established by this agreement, the rights of possession and use of the object of the concession agreement for the implementation the specified activity (Article 3 of the Federal Law of July 21, 2005 No. 115-FZ “On Concession Agreements”);
• - a simple partnership agreement (agreement on joint activities), on the basis of which two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law (Chapter 55 of the Civil Code of the Russian Federation);
• - an investment partnership agreement, according to which two or more persons (partners) undertake to combine their deposits and carry out joint investment activities without forming a legal entity to generate profit (Article 3 of the Federal Law of November 28, 2011 No. 335-FZ "On Investment Partnership ") and etc.

In order to minimize the risks that arise in the process of doing business, entrepreneurs enter into property insurance contracts.

Entrepreneurs can act as subjects of voluntary and compulsory insurance. In this case, the difference will consist only in the basis of the conclusion of the contract (the agreement of the parties or the law), since in both cases the relationship is formalized by the contract. Compulsory insurance is carried out only on the basis of a law that regulates the object of insurance, the insured risk and the minimum amount of the sum insured (Article 936 of the Civil Code of the Russian Federation). Thus, civil liability of the owner of a hazardous facility for causing harm as a result of an accident at a hazardous facility is subject to compulsory insurance.

Entrepreneurs can conclude property insurance contracts, the purpose of which is to compensate at the expense of the insurer for losses in the insured property or losses in connection with other property interests of the insured within the sum insured (Article 929 of the Civil Code of the Russian Federation).

The procedure for insuring export credits and investments against business and (or) political risks of Russian exporters of goods (works, services), Russian investors investing outside the territory of the Russian Federation, their foreign counterparties in relevant transactions, as well as Russian and foreign credit organizations providing loans relevant transactions is governed by Federal Law No. 82-FZ dated May 17, 2007 “On the Development Bank”.

In Art. 967 of the Civil Code of the Russian Federation, it is allowed to conclude a reinsurance contract, the purpose of which is to insure business risk, when the insurer itself acts as the insured. The risk of payment of insurance indemnity or the sum insured assumed by the insurer under the insurance contract is subject to insurance in full or in part with another insurer.

In this case, the insurer transferring its obligations is called the "reinsurer" (assignor), and the new insurer is called the reinsurer (assignee). The original insurer remains liable under the main (original) insurance contract.

In the process of carrying out activities, entrepreneurs turn to the services of intermediaries. To entrepreneurial contracts in the field of intermediary activities contracts of agency, including commercial representation, commissions, agency services, as well as a contract of trust management of property, can be attributed. A distinctive feature of this group of contracts is the presence of an intermediary (representative, attorney, agent, commission agent, trustee), who, depending on the type of contract, can act on behalf of someone else or even on his own behalf, but always in someone else's interest, i.e. creating, changing or terminating certain rights or obligations for its represented person (principal, committent, etc.).

Intermediary transactions can pursue entrepreneurial and consumer purposes. Commercial representation can be classified as purely entrepreneurial, since, by virtue of Art. 184 of the Civil Code of the Russian Federation, a commercial representative is a person who constantly and independently represents entrepreneurs when they conclude contracts in the field of entrepreneurial activity.

As a general rule, an agency agreement is a fiduciary transaction, since the relationship between the principal and the attorney implies a high degree of trust in conditions where the principal, not being able to constantly monitor the actions of the attorney, automatically, by virtue of law, becomes a party to the transactions concluded by him. However, unlike a regular contract of agency, an agency contract in which the attorney acts as a commercial representative, due to its entrepreneurial nature, cannot be considered as a fiduciary transaction, which determines its compensatory nature and the impossibility of unilateral refusal to execute it.

As a general rule, an entrepreneurial agreement is a property trust management agreement, since effective management property involves the receipt of income from its management in favor of the beneficiary. In accordance with Art. 1015 of the Civil Code of the Russian Federation, except for the case of trust management by virtue of law, the trustee may be an individual entrepreneur or a commercial organization, with the exception of a unitary enterprise.

• Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997 No. 18 “On Certain Issues Related to the Application of the Provisions of the Civil Code of the Russian Federation on the Supply Contract”.
• See, for example: Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of August 11, 2003 No. A43-9519 / 02-21-358.

Classification of business contracts can be carried out on various grounds.

Business contracts for the sale (realization) of goods include a contract of sale, including a contract for the supply of goods, a contract for the supply of goods for state needs, a contracting agreement, an energy supply contract, an enterprise sale contract, as well as a retail sale contract, an energy supply contract, etc.

Business contracts for the sale of goods have exclusively importance for business turnover, as a developed civilized trading activity is the basis of full-fledged entrepreneurship, stimulating production, intermediary and other types of entrepreneurial activity.

Among the business contracts for the transfer of property for use, first of all, it is necessary to include various types of lease agreements, since, on the one hand, the provision of property for temporary possession and use allows the lessor to receive entrepreneurial income (profit). On the other hand, for the effective implementation of their activities by entrepreneurs, in some cases it is more economically advantageous for them not to acquire property, but to rent it and use it for their activities. For example, a trading company that is expanding the volume of sales of its goods may need additional storage and office space etc.

In this regard, the most typical for entrepreneurial activity are a lease agreement for an enterprise, a financial lease (leasing) agreement, and a rental agreement.

Entrepreneurial contracts for the performance (production) of work are, first of all, various types of work contracts - a construction contract, a contract for the performance of design and survey work, a state contract for the performance of contract work for state needs, a household contract, etc.

Business contracts for the provision of services are of great importance in entrepreneurial activity. The provision of services is essential in business turnover. In this regard, a significant number of contractual obligations in entrepreneurship are associated with the provision of services that both entrepreneurs themselves and persons who are not related to them may need. Unlike works, services do not receive a reified expression that is distinct from the activity itself in which they are expressed. The legislation provides for the possibility of providing various kinds services under the following agreements: paid services, commercial representation, commission, agency, transportation, forwarding, insurance, trust management of property, storage, etc.

According to the subject composition of the parties, contracts are distinguished, all parties to which are entrepreneurs and in which an entrepreneur acts as one of the parties.

Contracts in which one party acts as an entrepreneur are contracts of retail sale, rental, bank deposit and bank account, loan agreement, contracts for energy supply, transportation of goods, transport expedition, construction contract, agency agreement and many others.

Contracts concluded exclusively between entrepreneurs include contracts for the supply of goods for business purposes, contracts, commercial concessions, financial leases (leasing), warehousing, business risk insurance and a simple partnership agreement concluded for the implementation of entrepreneurial activities, as well as other agreements to which business entities are parties.

Treaty supply of goods, according to which the supplier-seller, carrying out entrepreneurial activities, undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or for other purposes not related to personal, family, home and other similar use ().

The Civil Code of the Russian Federation establishes the following features of a supply agreement, which make it possible to distinguish it from other types of a sale and purchase agreement:

The special legal status of the seller and the buyer, who must act as business entities;

The purpose of acquiring goods under a supply agreement is to use it for business or for other purposes not related to personal, family, household or other similar use (for industrial processing, for subsequent sale, etc.).

Treaty contracting- a special type of contract for the sale of goods concluded between business entities.

Under contract contracting the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the procurer - the person who purchases such products for processing or sale ().

The parties to this agreement are the seller - the manufacturer of agricultural products and the buyer - the purveyor of these products.

Agricultural commercial organizations act as seller-manufacturers: economic societies and partnerships, production cooperatives, peasant (farm) enterprises engaged in entrepreneurial activities for the production (cultivation) of agricultural products.

The buyer-producer can be a commercial organization or an individual entrepreneur engaged in entrepreneurial activities for the acquisition (purchase) of agricultural products for their subsequent processing or sale (for example, dairies, meat processing plants, wool processing factories, wholesale trade enterprises in the field of consumer cooperation, etc.) .

Unlike a supply contract, under a contracting contract, the seller is obliged to produce (grow) agricultural products in order to sell them to the buyer (producer).

Treaty financial lease (leasing)- this is an agreement of the parties, according to which the lessor undertakes to acquire ownership of the property indicated by the tenant from the seller specified by him and to provide the tenant with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the subject of the lease and the seller ().

The subject of a financial lease agreement may be any non-consumable items used for business activities, except for land plots and other natural objects. Based on this, a leasing agreement is concluded only for an entrepreneurial purpose and, accordingly, between business entities.

Lessors (lessors) are leasing companies created by various structures: manufacturers of machinery and equipment, banks, etc. Leasing companies (firms) are commercial organizations (residents of the Russian Federation or non-residents of the Russian Federation) that perform, in accordance with their founding documents functions of lessors and those who, in accordance with the procedure established by the legislation of the Russian Federation, have received permits (licenses) to carry out leasing activities (Article 5 of the Federal Law of October 29, 1998 No. 164-FZ “On Financial Lease (Leasing)”).

Treaty commercial concession- an agreement under which one party (right holder) undertakes to grant the other party (user) for a fee for a period or without specifying a period, the right to use in business activities a set of exclusive rights belonging to the right holder, including the right to a trade name and (or) commercial designation of the copyright holder, to protected commercial information, as well as to other objects of exclusive rights provided for by the agreement - a trademark, a service mark, etc. ().

Only commercial organizations and individual entrepreneurs can be parties to a commercial concession agreement.

By simple partnership agreement two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law ().

The subject of a simple partnership agreement is the joint activity of the partners to achieve the goal specified in the agreement.

The parties to the agreement can be commercial organizations and individual entrepreneurs. Simple partnership agreements are, as a rule, multilateral.

Treaty warehousing is an agreement by virtue of which the warehouse (custodian) undertakes to store the goods transferred to it by the goods owner (bailor) for a fee and return these goods in safety ().

A commodity warehouse is an organization that carries out storage of goods as an entrepreneurial activity and provides services related to storage.

An entrepreneurial contract is a kind of civil law contract - the so-called "trade deal".

An agreement is an agreement between two or more parties aimed at establishing, changing and terminating civil rights and obligations, including in the field of economic relations.

The terms of the contract are determined at the discretion of the parties, except when the terms are prescribed by law or other legal acts. If the terms of the contract are not defined by the parties, the relevant terms are determined by the business practices applicable to the relations of the parties.

Entrepreneurial agreement - an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activities, the parties or one of the parties of which act as a business entity.

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 applied to it (retail trade, transportation by public transport, etc.). .P)

Features of the business agreement:

1) is concluded for the purpose of carrying out entrepreneurial activities by its parties (party);

2) the parties (or at least one of the parties) must be a business entity;

3) compensatory nature of the contract;

4) the legislation establishes more “tough” rules in relation to entrepreneurs, including increased liability for violation of contractual obligations and restriction in some cases of the will of subjects, as a result of which the parties who have entered into an agreement may be deprived of the main civil law features - legal equality, dispositive behavior;

5) the written form of the contract;

6) clarity of the subject matter of the contract;

7) non-cash payments in the contractual relations of organizations

8) long term of the contract;

9) accounting and tax consequences of the agreement;

10) the procedure for activating the shortage (spoilage) of goods;

11) claims and arbitration procedure for consideration of disputes from a business contract.

Classification and types of contracts:

for the sale of goods

The basis of the contract is the contract of sale. Contract types:

Contract for the supply of goods

Contract for the supply of goods for the state. needs

Electricity contract

Retail sales contract

on the transfer of property for use (lease)

Lease contract

Financial lease agreement

3) contracts for the performance of work and the provision of services

Work agreement

building contract

State. contract for contract work

Contract for the provision of services

Commercial representation agreement

Commission agreement

54. Features of the procedure for concluding, amending and terminating a business contract.

Conclusion of an agreement

The contract is considered concluded if the parties have reached an agreement on all essential terms of the contract in the form required in the relevant cases.

The contract is concluded by sending an offer (offer to conclude a contract) by one of the parties and its acceptance (acceptance of the offer) by the other party.

Amendment of the contract is an act legal fact), which entails a change in those circumstances that previously arose on the basis of the amended contract.

Therefore, the ways and forms of changing the contract must be consistent with the relevant rules on changing obligations, including special rules on changing the business contract.

In its turn, termination of an agreement there is an act aimed at terminating a partially or completely unfulfilled contract, including obligations arising from it for the future.

The main difference between the change of the contract and its termination is expressed in the legal consequences. Termination of the contract always entails the complete and unconditional termination of obligations

When the contract is amended, the obligations of the parties remain unchanged.

In accordance with Art. 450 of the Civil Code, a change or termination of the contract is possible:

1) by agreement of the parties, unless otherwise provided by the Code, other laws or an agreement;

2) by a court decision under the following conditions:

a) at the request of one of the parties;

b) in case of a material breach of the contract by the other party; c) in other cases provided for by the Code, other laws or an agreement;

3) in case of unilateral refusal to perform the contract in whole or in part, when such refusal is allowed by law or by agreement of the parties.

Property contracts include contracts aimed at regulating the activities of participants in a legal relationship regarding a certain property benefit. In turn, property contracts are divided into contracts for the transfer of property, the performance of work and the provision of services (this classification is carried out by type of activity).

Contracts for the alienation (transfer) of property include two groups: 1) contracts for the transfer of property into ownership, economic management or operational management(purchase and sale, supply, contracting, supply of gas, heat and energy); 2) contracts for the transfer of property for temporary use (property lease).

Contracts for the performance of work are contracts for household and construction contracts, contracts for design and survey work, contracts for research, development and technological work, etc.

Contracts for the provision of services include contracts for the carriage of goods, towing, expeditions, insurance, banking services, storage, commissions, orders, etc.

Organizational agreements create the prerequisites for subsequent entrepreneurial or other activities, and, as a rule, are the basis for concluding property agreements.

Among organizational agreements, it is possible to single out constituent agreements on the formation of legal entities. Organizational contracts can also include the so-called preliminary contracts, under which the parties undertake to conclude in the future an agreement on the transfer of property, the performance of work or the provision of services (the main contract) on the terms stipulated by the preliminary contract.

By economic spheres, business contracts can be classified as follows: 1) in the field of logistics and sales - contracts for the supply, sale, exchange, loan, commission and other types of business contracts; 2) in construction - construction contracts, for design and survey work, for repair, lease of buildings and equipment, construction mediation; 3) in agriculture– contracts for contracting, renting buildings and equipment, for repairs, for comprehensive maintenance, for the performance of other agricultural and agrochemical works; 4) in transport - contracts for the organization of transportation of goods, obligations to supply vehicles and present cargo for transportation, contracts for the carriage of goods, towing, transport expeditions, for the operation of railway sidings, for the supply and cleaning of wagons, the lease of vehicles, the provision of aviation services , obligations with the participation of pipeline transport; 5) in connection - contracts for postal forwarding, postal forwarding, lease, for the provision of telegraph channels and telegraph subscriber communications by communication enterprises, for the provision of Internet communications; 6) in the field of settlements and loans (in the banking sector) - bank account, money transfer and bank deposit agreements; 7) in the field of scientific and technological progress - contracts for research, development and technological work; 8) in the field of subsoil use (concession agreements, production sharing agreements, service contracts and contracts on joint activities); 9) in the securities market (contracts for the sale and purchase of securities); etc.

Civil Code The Republic of Kazakhstan highlights public agreements that regulate relations with the participation of commercial organizations engaged in retail, transportation by public transport, communication services, energy supply, medical, hotel services, etc.

Commercial organizations do not have the right to avoid concluding an agreement, they are obliged to conclude it with everyone who applies to them, they also do not have the right to give preference to one person over another in relation to the conclusion of a public agreement, except for cases provided for by law. The price of goods, works and services, as well as other terms of a public contract, are established the same for all consumers, with the exception of cases where the legislation allows the provision of benefits for individual consumers.

The refusal of a commercial organization to conclude a public contract, if it is possible to provide the consumer with the relevant goods and services, is not allowed. In case of unreasonable evasion of a commercial organization from concluding this agreement, the provisions provided for in paragraph 4 of Art. 399 of the Civil Code of the Republic of Kazakhstan (the consumer has the right to apply to the court with a demand for compulsion to conclude an agreement).

A separate group of contracts can also include an accession contract, the terms of which are defined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed contract as a whole.

The legislation provides for measures to protect the interests of the acceding party, in particular, establishes a simplified procedure for terminating such an agreement at the initiative of the acceding party, which has the right to demand termination of the agreement if the accession agreement, although it does not contradict the law, deprives this party of the rights usually granted under agreements of this type , excludes or limits the liability of the other party for breach of obligations, or contains other clearly burdensome conditions for the acceding party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract. The exception is the party that joined the agreement in connection with the implementation of entrepreneurial activities, if it knew or should have known on what conditions the agreement was concluded, that is, the simplified procedure for terminating the agreement of accession does not apply to entrepreneurs.

Exchange transactions and their classification

An exchange transaction is a contract (agreement) registered by the exchange, concluded by participants in exchange trading in relation to an exchange commodity during exchange trading. The procedure for registration and execution of exchange transactions is established by the exchange. Transactions made on the exchange, but not meeting the above requirements, are not exchange transactions.

The Exchange has the right to apply sanctions to the participants of exchange trading, making non-exchange transactions on this exchange.

An exchange transaction is considered concluded from the moment of its registration in accordance with the procedure established by the Exchange Trading Rules. Many exchanges have developed Model Agreements, therefore, in the Exchange Trading Rules adopted by exchanges, it is recommended that when drawing up all types of documents, take into account the content standard contracts.

Exchange transactions can be of various types. So, in the course of exchange trading, participants in exchange trading can make transactions related to:

Mutual transfer of rights and obligations in relation to the real goods;

Mutual transfer of rights and obligations in respect of real goods with a delayed delivery date (forward transactions);

Mutual transfer of rights and obligations in relation to standard contracts for the supply of exchange goods (futures transactions);

Assignment of rights to the future transfer of rights and obligations in relation to standard contracts for the supply of an exchange commodity (option transactions);

Other transactions in relation to an exchange commodity, contracts or rights established in the rules of exchange trading.

If we group all exchange transactions, we can distinguish two main groups:

Transactions with real goods (or cash transactions or transactions for cash) are made with the aim of actually purchasing those goods, securities or foreign currencies that are traded on the exchange. In turn, transactions with real goods are divided into cash transactions (or “spot” transactions) and forward transactions.

A spot transaction is a transaction that is executed immediately or in the near future for cash. A “spot” transaction can be executed: immediately after the closing of the exchange, “for tomorrow”, i.e. on the next trading day (in a few days).

Forward transaction - a transaction for goods that are transferred by the seller organization to the ownership of the buyer organization on the terms of delivery and settlements agreed by the parties, within a certain period in the future established by the contract.

Transactions without a real commodity are those transactions that do not involve the subsequent provision of an exchange commodity in pursuance of the transaction (such transactions are otherwise called futures exchange transactions). As a rule, they include futures and options transactions.

futures deal represents a standard obligation in respect of a certain quantity of a certain product, delivered by the seller to the buyer at a certain time at a certain place.

An option transaction is the purchase or sale of an option contract for the purpose of subsequent resale at a higher price and profit from the difference between the price of the contract at the time of its conclusion and the price of the contract at the time of its sale.

Along with this, such types of exchange transactions as transactions with a pledge (both on the seller's side and on the buyer's side), credit transactions, barter transactions, transactions with a condition have become widespread in exchange trading.

A transaction with a pledge is a transaction in which, at the time of its conclusion, one counterparty pays to another counterparty the amount determined by the agreement between them as a guarantee of the fulfillment of its obligations. If the payer of the pledge is the buyer, the transaction will be with a pledge for the purchase, and if the seller - the transaction will be with a pledge for the sale.

A transaction with a loan is such a transaction, according to which a brokerage office, having received a loan from a bank for making exchange transactions, acquires the goods it needs on the exchange, with the subsequent sale of its goods also through exchange trading.

A barter transaction is a transaction in which the mutual exchange of products is carried out without monetary payment. In this case, the proportions of exchange are determined, as a rule, taking into account the ratio of prices for exchanged goods on the domestic or world market, the quality of products and the conditions of their supply.

A deal with a condition is a type of deal with a real product, in which this product is sold subject to the simultaneous purchase of another real product. The difference between these transactions and barter transactions is as follows: a conditional transaction is concluded in the operating room in the process of public public auction with the participation of a stockbroker and using an exchange information bank data

[:] List of normative legal acts and special literature [:]

1. Civil law. Under the editorship of Basin Yu.G., Suleimenov M.K., T. 1 (General part), Almaty, Zhety Zhargy. 2000.

2. Civil law. T.2. Rep. ed. M.K. Suleimenov, Yu.G. Basin. Almaty, Research Institute of Private Law of KazGUU, 2002.

3. Civil law. T. 1, P / r. A.P. Sergeeva, Yu.K. Tolstoy, M., 2000.

4. Civil law. Part 2. Law of Obligations: A Course of Lectures // Responsible. ed. O. N. Sadikov. M.: Publishing house "Beck", 1997.

5. Basin Yu.G. Selected works on civil law. / Comp. M.K. Suleimenov. - Almaty: VSHP "Adilet"; Research Institute of Private Law KazGUU, 2003.

6.Album of standard contracts: A practical guide on civil relations in the Republic of Kazakhstan. // Comp. IN AND. Rock. - Almaty: Lem, 2001.

7. Basin Yu.G. Transactions. - Almaty: "Adilet-Press", 1999.

8. Basin Yu.G. Legal entities under the civil legislation of the Republic of Kazakhstan: Concept and general characteristics: Tutorial. // Ed. 2nd, rev. and additional .- Almaty: VSHP "Adilet", 2000.

9. Civil law: Textbook. In 2 vols. Rep. ed. E.A. Sukhanov. 2nd ed., Reworked. and additional - M .: BEK, 2000.

10. Civil law: Textbook. // Under the total. ed. T.I. Illarionova, B.M. Gongalo, V.A. Pletneva.- M.: NORMA-INFRA-M, 1998.

11. Greshnikov I.P. Subjects of law. Part 1. Entity in law and legislation. - Almaty: Lem, 2001.

12. Doinikov I.V. Entrepreneurial Law, Textbook, "Prior", Moscow, 1998

13. Porokhov E.A. etc. Legal bases of entrepreneurship in the Republic of Kazakhstan. Almaty. 2001

14. Business law. Ed. N. I. Klein, M.; Legal Literature. 1993

APPROVED

at a meeting of the department

"jurisprudence and mp"

institutions "University "Turan"

Minutes No. __ dated "____" _______ 2013

Head of department