1. Change and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.
A multilateral agreement, the execution of which is associated with the implementation of entrepreneurial activities by all its parties, may provide for the possibility of changing or terminating such an agreement by agreement of both all and most of the persons participating in the specified agreement unless otherwise provided by law. The agreement referred to in this paragraph may provide for the procedure for determining such a majority.
2. At the request of one of the parties, the contract may be amended or terminated by a court decision only:
1) in case of a significant violation of the contract by the other party;
2) in other cases provided for by this Code, other laws or contract.
A violation of the contract by one of the parties is recognized as significant, which entails for the other party such damage that it is largely deprived of what it had the right to count on when concluding the contract.
3. Abolished from June 1, 2015. - Federal Law of 08.03.2015 N 42-FZ.
4. A party to which this Code, other laws or an agreement has been granted the right to unilaterally amend the agreement must, while exercising this right, act in good faith and reasonably within the limits provided for by this Code, other laws or the agreement.
Commentary on Art. 450 of the Civil Code of the Russian Federation
1. Termination (termination) of the contract entails the termination of unfulfilled contractual obligations. Components of the content of these obligations subjective rights and responsibilities disappear. Changes to the terms of the contract result in incomplete and unconditional termination legal connection between its participants, but only a change in the content of contractual obligations, supplementing it with new rights and obligations.
The commented article establishes three ways of changing (terminating) the contract: 1) by agreement of the parties; 2) on the initiative of one of them (unilateral refusal to perform the contract); 3) by a court decision.
2. The possibility of changing or terminating a contract by agreement of the parties is based on the principles of contractual freedom (see Articles 1, 421 of the Civil Code and comments to them). Those who have the right to enter into a contract of their own free will should, in principle, be equally free to terminate it or change certain contractual terms. The fundamental admissibility of changing (terminating) the contract in this way is the reason that the Civil Code does not even contain an approximate list of its possible grounds. Any restrictions on the right to amend (terminate) a contract by agreement of the parties, being exemptions from the principle of freedom of contract, can only be established by law or contract (clause 1 of the commented article). An example of such a limitation is, in particular, paragraph 2 of Art. 430 of the Civil Code, stipulating that from the moment a third party expresses its intention to use the rights under an agreement concluded in its favor, amendment or termination of such an agreement is allowed only with the consent of this person.
3. Agreement of the parties to amend (terminate) the contract according to their legal nature is itself a contract. Because of this, it obeys general rules ch. 9 and 27 - 29 of the Civil Code on the conditions of validity and the procedure for conclusion, as well as special rules clause 1 of Art. 452 of the Civil Code (see the commentary to it) regarding the form of its commission.
4. At the request of one of the parties, the contract may be amended or terminated by a court decision only in cases where provided by law or by agreement. As one of the grounds for terminating the contract by a court decision, clause 2 of the commented article calls a significant violation of the contract by the counterparty. The prototype of this norm was the provisions of Art. 25 Vienna Convention 1980. In many ways, similar rules are contained in Art. 7.3.1 Principles of international commercial contracts UNIDROIT and Art. 8: 103 Principles of European Contract Law.
A violation is recognized as significant if it entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract. This concept, as well as its qualifying characteristics, is disclosed by the legislator using evaluation categories. In each specific case, the question of the materiality of the violation should be resolved taking into account all relevant circumstances (for more details see: A.G. Karapetov, Termination of a violated contract in Russian and foreign law... M., 2007.S. 318 - 375).
The term "damage" used by the legislator should not be interpreted separately from other provisions of clause 2 of the commented article and taken as the main criterion for the materiality of the violation (see: Civil law: Textbook. T. 1 / Ed. A.P. Sergeeva. P. 872; Voinik E.D. Significant violation of the contract in the civil legislation of Russia // Arbitration disputes. 2006. N 2.P. 101 - 103). Losses may be absent or negligible, but at the same time the creditor will largely lose what he had the right to count on under the contract. Therefore, damage in this case should be understood as any Negative consequences arising in connection with the violation of the contract, including not only property losses, but also infringement of the non-property interests of the victim.
5. In some cases, the law may provide for criteria other than those specified in clause 2 of the commented article, the materiality of the violation (see, for example, clause 2 of article 475 of the Civil Code).
6. The burden of proof of the material nature of the violation lies with the plaintiff.
7. In some cases, by law or by agreement of the parties, this or that violation may be declared material in advance (see, for example, clauses 2, 3 of article 523 of the Civil Code). This should be seen as a way to redistribute the burden of proof. Accordingly, in this situation, the defendant must already prove the absence in the admitted violation of the signs established in paragraph 2 of the commented article.
8. Judicial practice often associates the possibility of terminating the contract not with the fact of a significant violation of the contract by the counterparty, but with its failure to eliminate it (clause 8 of the letter of the Supreme Arbitration Court No. 14) (for more details, see: Application practice Civil Code Russian Federation, part one / Ed. V.A. Belova. M., 2008.S. 1141 - 1143 (author of the commentary - R.A.Bevzenko)).
9. A material breach of contract is common ground to terminate any contract. The rules of the commented article always remain "outside the brackets" and can be used regardless of the arsenal of methods of protection provided for by law or agreement regarding a specific violation (see paragraph 9 of the letter of the Supreme Arbitration Court No. 21).
10. It should be borne in mind that termination of the contract does not act as a measure of responsibility. Therefore, the exercise of the right to terminate the contract due to its significant violation does not depend on the subjective attitude of the violator to the violation. The contract may be terminated both in cases where non-performance or improper performance entails the application of appropriate measures of liability to the debtor, and in cases of release from liability. In the first of these situations, the termination of the contract may be accompanied by the recovery of damages. In this case, the injured party has the right to demand compensation for losses, as caused by non-performance (improper performance) contractual obligation(see clause 1 of Art. 393 of the Civil Code and comments. to it) and caused by termination of the contract (see clause 5 of Art. 453 of the Civil Code and comments to it).
11. In addition to a material violation, the contract may be terminated in other cases stipulated by law or by agreement of the parties. At the same time, the grounds for such termination may not be related to any violation of contractual obligations by the counterparty (see paragraph 25 of the Letter of the Supreme Arbitration Court No. 66).
12. A unilateral refusal to execute it should be distinguished from termination of an agreement (clause 3 of the commented article). The latter is a non-jurisdictional way of terminating a contractual obligation and is carried out by the will of one of the parties.
Unilateral refusal to perform an agreement is a special case of unilateral refusal to fulfill an obligation (see Art. 310 of the Civil Code and comments to it). Therefore, the rules of clause 3 of the commented article should be applied taking into account the general provisions of Art. 310 Civil Code (for more details see: Somenkov S.A. Termination of the contract in civil circulation: theory and practice. 2nd ed. M., 2005. pp. 93 - 95; Braginsky M.I., Vitryanskiy V.V. right: general provisions... M., 1998.S. 349).
Among other things, this means that permissible cases of unilateral refusal to fulfill an entrepreneurial contract (both parties to which are entrepreneurs and this contract is related to business activities for them) can be established not only by law, but also by agreement of the parties (see Art. 310 of the Civil Code). In a general civil agreement, the grounds for unilateral refusal from it may be provided exclusively by law.
Judicial practice under article 450 of the Civil Code of the Russian Federation
Determination of the Supreme Court of the Russian Federation of 12.01.2018 N 305-ES17-20491 in case N A40-193493 / 2016
Denying satisfaction initial claim, the courts, guided by the provisions of Articles,,,,, Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), having examined and evaluated the evidence presented in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, proceeded from the fact that the lease agreement was terminated by the lessor in unilaterally in connection with the violation by the tenant of the terms of the lease agreement. Since the lease agreement does not provide for the return of the security deposit to the lessee in case of violation of the contractual conditions by the tenant, the courts refused to recover RUB 1,185,341 transferred by LLC Management Company RED & Co as a security payment.
Determination of the Supreme Court of the Russian Federation of January 16, 2018 N 306-ES17-20639 in case N A55-4284 / 2017
Refusing to satisfy the claim in part, the courts, having evaluated the evidence presented in the case materials in accordance with the requirements of Article 71 of the Arbitration Procedure Code of the Russian Federation, and guided by the provisions of Articles,,,, of the Civil Code of the Russian Federation, Federal Law of March 26, 2003 N 35-FZ "On the Electricity Industry", the Rules for Technological Connection of Power Receiving Devices of Electricity Consumers, Electricity Generation Facilities, and Facilities power grid facilities belonging to grid organizations and other persons to electric grids, approved by Decree of the Government of the Russian Federation of December 27, 2004 N, came to the conclusion that there are no legal grounds for amending the contract and recovering part of the debt, taking into account the installment plan agreed by the parties.
Determination of the Supreme Court of the Russian Federation dated 09.01.2018 N 306-ES17-19246 in case N A12-46546 / 2015
Refusing to satisfy the claim, the courts were guided by Articles,,,,,, of the Civil Code of the Russian Federation and proceeded from the Center's lack of obligations to provide the information requested by the Company in connection with their termination.
The judicial acts provide detailed reasons why the courts came to such a conclusion, indicating specific circumstances and evidence, examined and evaluated according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation.
Determination of the Supreme Court of the Russian Federation of 19.01.2018 N 305-ES17-20939 in case N A40-3133 / 2017
Refusing to satisfy the claim, the court of first instance, guided by the provisions of Articles,,,, Civil Code of the Russian Federation, Articles 13, 15, 17, 19 Federal law dated October 29, 1998 N 164-FZ "On financial lease (leasing)", having examined and evaluated the evidence presented in the case in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, taking into account the circumstances established in the consideration of case N A40-207317 / 15, proceeded from the fact that the lease agreement of 25.02.2014 N 2356/2014 was terminated at the initiative of the defendant due to the prolonged non-payment of the lease payments by the plaintiff. The court noted that the plaintiff's payment of lease payments after termination of the contract cannot be the basis for the emergence of ownership of the leased asset, since these payments were offset against payment for the actual use of the leased asset and as an insurance premium on the basis of clause 2.3.4 general conditions leasing.
Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated January 25, 2018 in case N 305-ES17-11486, A40-73410 / 2015
After evaluating the evidence presented in the case materials, including an expert opinion, the court of appeal established that the company had completed only a small part of the work and that the period for fulfilling its obligations under the state contract had expired. In this regard, by the decision of the court of appeal on the basis of paragraph 2 of article 405, subparagraph 1 of paragraph 2 of article, article and paragraph 2 of article of the Civil Code of the Russian Federation, the state contract was terminated.
Determination of the Supreme Court of the Russian Federation dated January 26, 2018 N 301-KG17-21208 in case N A43-34250 / 2016
Accepting the complained judicial acts, courts, guided by the provisions of Articles,,, Civil Code of the Russian Federation, Articles 2, 4, 16, 17, 20 of the Federal Law of the Russian Federation of 21.07.1997 N "O state registration rights to real estate and transactions with them ", the explanations contained in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 N" On the consequences of termination of the contract ", the resolution of the Plenum The Supreme Court Of the Russian Federation and the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 04/29/2010 N / 22 "On some issues arising in jurisprudence when resolving disputes related to the protection of property rights and other property rights", having established that the company had submitted to the registering authority all the documents necessary for state registration, they recognized the contested refusal of management unlawful.
Determination of the Supreme Court of the Russian Federation of 23.01.2018 N 310-ES17-19044 in case N A83-682 / 2016
First and appellate instance after examining and evaluating the evidence presented in the case file according to the rules of Article 71 of the APC RF, analyzing the terms of the sale and purchase agreement, guided by articles of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), Articles 2, 17 of the Law of the Republic of Crimea of 08.08.2014 N 46 -ZRK "On management and disposal state property Of the Republic of Crimea ", parts 1 - 3, 5, 9 of article 27 of the Law of Ukraine dated 04.03.1992 N 2163-XII" On privatization of state property ", article 15 of the Law of Ukraine dated 14.09.2000 N 1953-III" On the peculiarities of privatization of objects of unfinished construction ", clauses 1.7, 5.1 of the Regulation on the Ministry, approved by decree Of the Council of Ministers of the Republic of Crimea of June 27, 2014 N 157 (as amended by the Resolution of the Council of Ministers of the Republic of Crimea of February 20, 2015 N 50), the explanations given in paragraph 60 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme arbitration court Of the Russian Federation dated 01.07.1996 N / 8 "On some issues related to the application of part of the first Civil Code of the Russian Federation", establishing the plaintiff's compliance with measures for pre-trial settlement dispute with the defendant, as well as the plant's failure to comply with the conditions for the privatization of the object of the unfinished construction of the Crimean NPP (environmental safety of the object is not ensured, security environment and observance of safety precautions during dismantling and construction, the premises are not used for their intended purpose, the operation of the enterprise has not started in accordance with the terms of the competition, the required number of jobs has not been created, land legal relations have not been formalized), came to the conclusion that there are those provided for in paragraph 2 of part 2 of article Of the Civil Code of the Russian Federation of grounds for terminating the purchase and sale agreement.
If the participant in the transaction understands that he cannot continue it, he has the right to propose termination to the counterparty by agreement of the parties on the basis of Article 450 of the Civil Code of the Russian Federation. How does the law regulate such termination of the transaction?
According to article 450 of the Civil Code of the Russian Federation, the contract can be changed or terminated by the mutual will of the counterparties.
Termination of the agreement by agreement of the parties is necessary when the parties to the agreement come to a unanimous opinion that this agreement and relations under it do not bring the expected effect and do not require continuation (clause 1 of article 450 of the Civil Code of the Russian Federation). Termination of the contract by agreement of the parties is a way to complete the fulfillment of obligations and terminate the rights by mutual agreement with minimal costs and losses, since all parties to the contract are interested in this.
Is the basic source legal regulations dedicated to this issue. The article contains rules that disclose the possibility of changing and terminating a transaction by agreement of the parties or at the request of one of them. The article also reveals the main restrictions and conditions of the procedure and provides links to related provisions of other regulatory legal acts.
Conditions and consequences of termination of the contract by agreement of the parties
The agreement may be amended or terminated when its parties have agreed on this, unless otherwise provided:
- other provisions of the Civil Code of the Russian Federation;
- other laws;
- by the agreement itself (clause 1 of Art. 450 of the Civil Code of the Russian Federation).
That is, there should be no legal circumstances preventing the termination of the contract by mutual agreement.
Termination of the contract should be made in writing, since the main form of contracts concluded by legal entities is a simple written form. Consequently, the termination agreement is also subject to the rules governing the main form of the agreement (clause 1 of article 452 of the Civil Code of the Russian Federation). In some cases, a notarial certification of the termination agreement or its state registration may be required.
In the event of subsequent disputes, the agreement between the parties to terminate the contract by mutual will will constitute evidence in court.
The consequences of applying the procedure are as follows:
- Termination of obligations (Article 453 of the Civil Code of the Russian Federation).
- Confirmation of the fact that there are no claims of the parties to the agreement to each other.
- Recording the fact of any obligations at the time of termination of the contract and determining the procedure for their implementation.
What does the procedure for terminating an agreement include by agreement of the parties?
When one of the counterparties decides to complete the transaction, he follows a certain procedure. Need to:
- Send the counterparty a written proposal to terminate the contract by mutual agreement.
- Appoint and negotiate the agreement on the terms of termination. During the negotiations, agree on the terms of termination and clarify how to complete the fulfillment of current obligations. Also at the meeting, they determine the presence or absence of debt of the parties to each other, approve the procedure for repaying the remaining obligations, distributing property, drawing up acceptance certificates, etc.
- Sign an agreement to terminate the transaction (including, if necessary, visiting a notary or going through state registration).
Dispute may arise in connection with the termination of the transaction
The Civil Code of the Russian Federation considers the termination of an agreement by agreement as one of the instruments for the “peaceful” resolution of disputes between the parties and the termination of relations. However, in practice, there are legal disputes arising in connection with this procedure and its consequences. Let's look at some interesting cases:
- Case No. А17-10110 / 2016 (). In this dispute, the counterparties entered into an agreement for the supply of goods. The customer sent the supplier a draft agreement on termination of the contract, where he indicated the amount of its partial execution, according to the remaining conditions, he offered to terminate the contract by agreement of the parties. The supplier declined this offer, claiming the costs incurred. Then the plaintiff (customer) informed the defendant about the absence of a need for the supplied goods and the impossibility of financing the remaining consumables and again proposed to terminate the contract. As a result, the parties began to present claims to each other about the presence of losses, to offer to pay fines. This led them to go to court.
- Case No. А56-4423 / 2015 (). The court considered the possibility of terminating the insurance contract, according to which the legislation contains special norms... The court stated that there are cases of early termination of the insurance contract regardless of the will of the parties. At the same time, the presence of such cases in civil law excludes the possibility of termination of the contract by agreement of the parties.
- Case No. A65-17712 / 2017 (). In this case, the defendant, who was charged with penalties in connection with the shortage of goods, stated that there was an agreement between the parties to terminate the main obligation, which entails the termination of the relevant security obligation. The court did not object to the fact that such a situation could take place in accordance with the legislation of the Russian Federation, however, it indicated that there was no agreement in the case file to terminate the controversial agreement in the manner prescribed by Art. 452 of the Civil Code of the Russian Federation.
Considered legal institution termination of civil law unilaterally, legislative regulation of this issue, grounds for termination, its procedure and consequences.
Termination of the contract unilaterally by the Civil Code of the Russian Federation
Any civil law on mutual rights and obligations. When concluding an agreement, each of the parties wants to extract the maximum benefit for itself from mutual legal relations at the lowest cost, guided by the freedom to choose the conditions for reaching an agreement.
What can be done if a situation arises when it becomes unprofitable for the participant to continue further contractual relations? In addition to refusal to fulfill the agreement, Russian legislation also provides for the possibility of unilateral termination of the agreement.
Legal justification for such termination
The institution of termination of the contract, in particular on the initiative of one of the parties, is enshrined in the Civil Code of the Russian Federation (hereinafter - the Code). Article 450 of the Code establishes the unilateral right of a party to an agreement to amend or terminate it in judicial procedure... In this case, the participant in the contractual relationship must use the granted right reasonably and act in accordance with legal acts and the content of the contract.
The grounds, procedure and consequences of the termination of contractual relations, including unilaterally, are regulated by Articles 451-453 of the Code.
The Plenum of the Supreme Arbitration Court of the Russian Federation also drew attention to the interest in this issue, which in 2014 issued a resolution "On the consequences of terminating the contract." It addresses legal grounds for unilateral treatment with the aim of terminating the contractual relationship and refusal, on the initiative of one party, to execute it.
Differences between unilateral termination of an agreement and refusal to fulfill obligations
In practice, quite often there are misconceptions about the similarity of unilateral termination of an agreement and refusal to fulfill it. This is due to the fact that the Code provides for two types of termination of the agreement (unilateral refusal and termination at the request of the party), using for the second type general concept"Termination".
The above methods of termination of the agreement are considered in Articles 450-453 of the Code and differ in the order of termination. The termination of the contractual relationship in case of refusal occurs without litigation, and unilateral termination is possible only by decision judicial instance... In addition, these types of agreements have different legal implications.
The clauses of refusal to fulfill a contractual agreement are also regulated by Article 310 of the Code, which contains a mandatory rule that unilateral refusal can be carried out only in cases provided for by law.
It is important to remember these differences, because if the party misunderstands the terms of termination, it may choose the wrong way to protect its rights, react incorrectly to the actions of the initiator of the termination of agreements, or independently choose the wrong option for terminating obligations.
These errors can lead not only to a loss of time, but also to material consequences if one of the parties to the relationship falsely considers the agreement terminated, and the other subsequently goes to court for a fine or penalty.
In order to avoid confusion in contracts, they often resort to using in the content the possibility of unilateral refusal to fulfill obligations, thereby providing for an out-of-court termination procedure, for example, through written notification to the other party.
Reasons for unilateral termination of the contract
As the reasons for the termination of agreements on the initiative of one party, the Code indicates significant violations of the terms of the agreement by the other party and other cases established by law or agreement. If the content of the agreement specifies the method of unilateral termination of relations, then the document will be considered terminated after the use of such a right by one of the parties.
In accordance with the law, material violations are circumstances in which a party to a transaction may incur such losses and losses that will lead to the loss of all the benefits that can be derived from the implementation of the agreement.
Another reason for a break can be a significant change in circumstances - the occurrence of such conditions, knowing about the occurrence of which, the parties would not formalize contractual relations at all or conclude a deal on other conditions. The courts apply this basis for a positive decision on the consideration of applications for unilateral termination, subject to the following conditions: 
- during the execution of the transaction, the parties were convinced that the circumstances in general would not change in the future;
- the change of circumstances occurred as a result of conditions that cannot be eliminated by the party in the performance of actions and obligations that are required of it in such a situation by agreement;
- the subsequent performance of the contract will entail losses for the party, in fact, greater than the benefit;
- it is not clear from the content of the agreement that the party should bear the risk in the event of a change of circumstances.
Procedure, terms and conditions
There are two options for unilateral termination of contractual relations: in a judicial and extrajudicial order.
For the first method, you should choose a reason for termination and write a notification about it. V general order it must be forwarded to the party to the obligation. The compiler of the notice must wait for a response from the party within the period specified by the agreement or 30 days from the date of sending.
If a response to the notification is received, and the counterparty agrees to break the agreement, then it is necessary to issue an appropriate one. Civil law stipulates that such an agreement must be drawn up in the form in which the contract is drawn up. Others mandatory provisions regarding its content, the legislator did not indicate, from which it follows that the document is in any form.
The second method provides for a judicial termination of obligations. It will have to be resorted to if the notification was sent to the party, but the response was not received on time.
If you analyze the above, you can come to the conclusion that under unilateral termination in fact, the initiative of one of the parties is understood, which is "approved" by the counterparty or a court decision.
Why do you need a notice of termination of the contract?
Most often civil contracts are drawn up in writing, and in this case, it is also necessary to report the notification about the termination of the agreement in writing.
Notification is needed in order to convey to the counterparty the intentions to unilaterally terminate the performance of obligations, as a result of which the other party will have the right to apply for compensation for damage in court. Also, upon receipt of a notice of termination of the agreement, the counterparty can take actions to eliminate violations or stop non-compliance with the terms of the transaction.
Types of notifications, rules and examples of their preparation
There are various types of agreements, the termination of which is possible unilaterally. Regardless of the type, the notification should provide for a break-up procedure and legal fact, after which the agreement ceases to be valid. The content often provides for a period of time after which the agreement will automatically expire.
Written notification is also necessary in order for both parties to stop fulfilling their obligations in order to avoid situations in which one of the parties will continue to follow the terms of the transaction and subsequently require reimbursement of costs.
The notice must contain the following information:
- personal data about the parties to the transaction;
- details of the contract (number, type and time of conclusion);
- the reasons for the termination of the contractual relationship;
- a list of actions and steps that counterparties must complete before the breakup;
- the time allotted for terminating the agreement and sending a response to this notification;
- procedures for the settlement of financial issues;
- other important information that should be conveyed to the party.
The notification should be sent in a way that will track its receipt by the counterparty. If the document is sent by e-mail or fax, then you should also use postal services to send the document with acknowledgment of receipt.
Legal consequences of termination of the contract
After the termination of the contractual relationship on the initiative of one party, the agreement ceases to be valid. However, there are exceptions for ongoing duties. The agreement will expire from the moment of signing the agreement on termination of the contractual relationship without legal proceedings or after the entry into force of the court decision.
If, under the terms of the transaction, one of the parties became the owner of the property of the other party and guaranteed for this the fulfillment of certain obligations, then after termination the property is subject to return. If this is not done, then the party will be liable for unjust enrichment.
All conditions governing the calculation and accrual of penalties and fines remain in effect until the actions provided for in the agreement are fulfilled.
Conclusion
When terminating the contract unilaterally, you should pay attention to the following:
- the conditions for termination specified in the agreement;
- the existence of grounds for terminating the contract;
- the ability to settle the issue without going to court;
- correct execution of the notification to the counterparty and adherence to the deadlines;
- taking into account the legal consequences of breaking contractual relationships.
In contact with
It is very good when both parties are ready to terminate their legal relationship under an agreement by agreement. Perhaps this is the case when the parties will be satisfied with each other and will not face law enforcement on the topic of discussion, but for the purposes of of this article this basis is of no interest. Go ahead.
NB! In order to avoid distorting the meaning of the law, further references to the norms of law and excerpts from them will be encountered. Anyone who wants to get from the article only a general mood about the importance of the issue and get acquainted with the recommendations, we suggest not to waste time and go straight to the seventh basis!
violation by the other party
Not every violation is significant, but only that which entails damage for the party, depriving it to a large extent of what it had the right to count on when concluding the contract.
For instance. You have been supplied with expensive equipment, adjusted it and put it into operation. However, after 2-3 days of work, it constantly broke down. The equipment was repaired under warranty, but the repair period took 1-2 weeks, and this was repeated over and over again. As a result, out of six months, it was repaired. Such a violation will be considered significant, which will entail the termination of the contract with the supplier in court (clause 2 of article 475 of the Civil Code of the Russian Federation).
Materiality criteria for breaches of contract may be established by law... Please note that such criteria can be fixed in the contract itself.
In the absence of criteria for a material violation in the law or in the contract, this issue will be determined by the court, taking into account all the circumstances of the case. And here you will have to use it to compete and prove that it is in your case that there is a significant violation on the part of the counterparty.
In court with a substantial changing circumstances
The meaning of this grounds for termination is as follows: the contract would never have been concluded in this form if the parties to this contract could reasonably foresee such a change in circumstances.
For instance. The company, having won the right to provide work / services under the contract at the auction, revealed the scope of work that was not taken into account in the auction documentation and offered the customer to introduce changes to the contract in terms of the price or to terminate the contract. Having received no response, the contract was terminated in court in court (Article 451 of the Civil Code of the Russian Federation).
At first glance, this is a very broad formulation. However, take your time.
In order to avoid arbitrary interpretation of this basis for termination, the law requires that the following conditions be observed in conjunction: changes in the circumstances of the party did not foresee, and their offensive could not overcome, at the same time from a contract or business turnover the risk of changing circumstances is not attributable to either party, and the subsequent execution would inflict on the side damage and would deprive her of property interest in this contract.
It is extremely difficult to withstand these conditions in practice. As a result, the enforcement of this ground of termination is minimized.
In court on the grounds provided by law for certain types of contracts
There are plenty of such grounds in the law. Here are some of them:
For any accession agreement (Article 428 of the Civil Code of the Russian Federation).
For instance. Having concluded a bank account agreement, the client discovered that the agreement does not provide for the possibility of returning the deposited money as such, or exempts the bank from liability for violations of the deadlines for the execution of money transfer orders. In both of the above cases, such an agreement will be terminated in court.
For a contract for the sale of an enterprise (clause 5 of article 565 of the Civil Code of the Russian Federation).
For instance. After the purchase of an enterprise for the production of milk cream with a declared capacity of 5 thousand liters per day, it turned out that the maximum capacity of this enterprise does not exceed 3.5 thousand liters. Such an agreement will be terminated in court.
For a trust management agreement (Article 1019 of the Civil Code of the Russian Federation).
For instance. The trustee, having received management cars for organizing a taxi, he was not warned about their encumbrance in the form of a pledge in favor of the bank. At the request of the trustee, the contract was terminated in court.
Unilateral refusal on the grounds and in the cases provided for by law
On the one hand, these are the rules in relation to contracts, the essence of which implies the right of the parties to withdraw from the contract at their discretion.
For example, under a contract gratuitous use(Article 699 of the Civil Code of the Russian Federation), the contract of order (977 of the Civil Code of the Russian Federation), the contract of trust management of property (1024 of the Civil Code of the Russian Federation) and a number of others, the right to unilateral refusal is provided for each of the parties to the contract.
On the other hand, these are the rules providing for the right of unilateral refusal in cases of violation of obligations by the other party.
For example, a violation by the buyer of the terms of sampling of goods gives the supplier the right to refuse to fulfill the contract (Article 515 of the Civil Code of the Russian Federation). Or if the contractor does not eliminate the identified deficiencies as a result of the work, the customer has the right to refuse to fulfill the contract (clause 3 of article 723 of the Civil Code of the Russian Federation)
By declaring a unilateral waiver, the party entitled to do so, effectively terminates the contract.
Unilateral refusal in cases and on the grounds provided treaty
Here it is already interesting. All of the reasons described above may simply not apply in your particular situation. The considered basis makes it possible to choose and agree on almost any design of interaction and exit from contractual relations.
Actually this is one of the tools that makes your contract a unique product that reflects your interests, and not a model, "standard contract".
However, often, counterparties disguise or impose the implementation of the right of unilateral refusal under a specific list of grounds provided for by the agreement. That is, they include the conditions for the right to refuse: You have the right to refuse if ... You can refuse if ... You refuse the contract, subject to compliance ...
For example, under a lease agreement, the parties may provide for the right of unilateral extrajudicial procedure for cancellation of the agreement by the lessor in the event of a one-time violation by the tenant of the rental payment deadline.
Unjustified unilateral refusal in cases stipulated by the contract
Perhaps this foundation is the crown of refusals, the bliss of a contract!
The law provides a universal means for terminating the contract, regardless of anything (clause 3 of article 450 of the Civil Code of the Russian Federation). Try not to "spoil" your right with the terms of its application.
If the law for your contract does not provide for the possibility of withdrawing from it without reason, we strongly recommend that everyone have for themselves in the contract the wording that gives such a right. Actually, here is its uncomplicated content:
“Party 1 has the right to unilaterally and out of court refuse to execute this Agreement by notifying Party 2 in writing about this no later than 30 days before the day of termination of the agreement. In this case, the Agreement will be deemed terminated upon the expiration of 30 days from the date of receipt by Party 2 of the relevant notification of Party 1 ".
This formulation will allow you to get out of any contractual relationship as comfortably as possible, minimizing the need to involve a professional.
At the stage of registration of contractual relations with partners, discuss and prescribe "exit points" in advance. Remember, it is often more difficult to withdraw from a contract than to enter into it. If you are not sure of the legal grounds for termination of your particular agreement, provide in the agreement for a unilateral, groundless, out-of-court procedure for its termination.
And in conclusion. Remember one thing important circumstance.
For cases 2,3,4 of our conditional grounds for termination of the contract, it is necessary to observe the so-called pre-trial procedure. Article 452 of the Civil Code of the Russian Federation stipulates that a party may file a claim to the court to terminate an agreement only after the other party has received a refusal to offer to terminate the agreement, or if a response is not received in time.
"On Amendments to Part One of the Civil Code of the Russian Federation" (hereinafter - Law No. 42-FZ) of the Civil Code of the Russian Federation was supplemented by Art. 450.1 "Cancellation of the contract (performance of the contract) or the exercise of rights under the contract." With the introduction of this article, much of the legal issues related to the possibility of exercising the right to unilateral cancellation of the contract, methods of cancellation of the contract and the moment of termination of the contract as a result of the exercise of this right. Read more about the practice of applying this norm in the material "EZH".
In fact, Art. 450.1 of the Civil Code of the Russian Federation unifies the procedure and conditions for cancellation of the contract for those cases when such a cancellation is provided for by law or contract, and also establishes cases when cancellation of the contract is an unconditional right (for example, clause 3 of article 450.1 of the Civil Code of the Russian Federation) or is impossible (clause 5 and 6 of Art.450.1 of the Civil Code of the Russian Federation).
With the advent of Art. 450.1 of the Civil Code of the Russian Federation, a number of issues arose that are important for its practical application... To resolve them, clarifications from higher judiciary, with the help of which a certain law enforcement approach was formed, which in their practice can be guided by the lower courts.
How to send a cancellation notice
In paragraph 1 of Art. 450.1 of the Civil Code of the Russian Federation established that the right to unilateral withdrawal from the contract can be exercised by notifying the other party of such a withdrawal. In this case, the contract is terminated from the moment such notification is received, unless otherwise provided by law or contract.
In judicial practice, an approach has been formed that the exercise of the right to unilateral withdrawal from the contract can be carried out only in relation to the actually concluded and current contract... If the legal relationship under the contract between the parties is terminated (for example, by the performance or expiration of the contract), then the application of clause 1 of Art. 450.1 of the Civil Code of the Russian Federation is impossible.
Examples include the ruling of the Seventh Arbitration appellate court of 18.07.2016 No. 07AP-5506/2016 in case No. A45-1691 / 2016, of the Twelfth Arbitration Court of Appeal dated 12.05.2016 No. 12AP-3858/2016 in case No. A06-11543 / 2015, of the Eighteenth Arbitration Court of Appeal dated 05.05.2016 No. 18AP-1554/2016 in case No. A34-5767 / 2015. In addition, this approach is consistent with the legal position set forth by the Presidium of the Supreme Arbitration Court of the Russian Federation in the resolution of 12.22.98 No. 157/98, which, although related to the interpretation of paragraph 3 of Art. 450 of the Civil Code of the Russian Federation, but in its own way legal content applicable to the provisions of paragraph 1 of Art. 450.1 of the Civil Code of the Russian Federation.
Clause 1 of Art. 450.1 of the Civil Code of the Russian Federation does not establish the form of cancellation of the contract, however, due to the established practice, the cancellation must be made in such a way that later it would be possible to prove the fact of the statement of such a cancellation. As a rule, the refusal is made in writing by sending it by mail, since in this case the fact of sending the corresponding message can be confirmed by postal documents, which minimizes the obligation to prove.
To determine the methods of sending notifications of cancellation of the contract, it is advisable to refer to the explanations contained in the Resolution of the Plenum of the RF Armed Forces dated June 23, 2015 No. 25 "On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation" (hereinafter - Resolution No. 25). So, in paragraph 63 of this resolution, the Plenum of the RF Armed Forces indicated that a legal entity bears the risk of the consequences of not receiving legally significant messages delivered to the address registered in the Unified State Register of Legal Entities, or to the address indicated by the legal entity itself, as well as the risk of absence of its representative at the named addresses ... Messages delivered to the named addresses are deemed to have been received even if the person concerned is not actually located at that address. If a legally significant message contains information about a unilateral transaction, then if the message is not received due to circumstances depending on the addressee, it is considered that the content of the message was perceived by him, and the transaction entailed the corresponding consequences (for example, the contract is considered terminated due to a unilateral refusal to execute it).
The Plenum of the RF Armed Forces also pointed out that, unless otherwise established by law or agreement and follows from custom or practice established in the relationship of the parties, a legally significant message can be sent, including via e-mail, facsimile and other communications, in a different form , corresponding to the nature of the message and the relationship, information about which is contained in such a message, when it is possible to reliably establish from whom the message originated and to whom it was addressed (paragraph 65 of Resolution No. 25).
Thus, the notice of cancellation of the contract can be expressed in any form that allows one to unambiguously establish from whom such a notice originated, the content of the notice and that it was received by the addressee (for the specifics of sending legally significant messages via e-mail, see the material “E-mail: you can whether to use it as evidence in court? "," EJ ", 2016, No. 37). If the notification is not received by the addressee, then for the purposes of law enforcement it is considered received in cases where the addressee, by virtue of Art. 165.1 of the Civil Code of the Russian Federation is obliged to receive it.
Quoting the document
Statements, notices, notices, demands or other legally significant messages, with which the law or the transaction associates civil consequences for another person, entail such consequences for this person from the moment the corresponding message is delivered to him or his representative.
A message is considered delivered even if it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it. Clause 1 of Art. 165.1 of the Civil Code of the Russian Federation
Contents of clause 2 of Art. 450.1 of the Civil Code of the Russian Federation on the possibility of withdrawing from the contract in whole or in part does not cause controversy in interpretation. So, the exercise of the right to partial refusal from the contract is possible in cases where the debtor has fulfilled only part of the obligations and the creditor has decided to abandon the proportional part of the counter obligations. In fact, clause 2 of Art. 450.1 of the Civil Code of the Russian Federation reproduces the provisions of paragraph 3 of Art. 450 of the Civil Code of the Russian Federation, the application of which does not need additional interpretation due to the large volume of existing law enforcement practice.
For your information
As follows from the explanatory note to the draft Law No. 42-FZ, which supplemented the Civil Code of the Russian Federation, Art. 450.1 (project No. 47538-6 / 9), the inclusion of this article in the Code is aimed at ensuring the stability of the contracts concluded. The initiators of the bill proposed to combine in one article legal regulation termination of the contract by unilateral refusal to execute it.
Previously, the prerequisites for the addition of the Civil Code of the Russian Federation Art. 450.1 of the Civil Code of the Russian Federation were contained in clause 3 of Art. 450 of the Civil Code of the Russian Federation, which has now lost its effect. In particular, by virtue of paragraph 3 of Art. 450 (as amended before the adoption of Law No. 42-FZ) in the event of a unilateral refusal to perform 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 amended.
Changes in the Civil Code of the Russian Federation were made as part of the implementation of the Development Concept civil law Russia. Thus, clause 9.1 of Section V of the Concept states that the Civil Code of the Russian Federation (as amended before the adoption of Law No. 42-FZ) provides for three different ways of changing and terminating an agreement:
by agreement of the parties (clause 1 of article 450);
at the request of one of the parties in court (paragraph 2 of Art. 450);
by unilateral refusal to fulfill the contract (clause 3 of article 450).
At the same time, as follows from the Concept, the legal regulation of termination (amendment) of an agreement by unilateral refusal to execute it suffers from significant shortcomings. In particular, in paragraph 3 of Art. 450 of the Civil Code of the Russian Federation did not provide for a specific procedure for terminating the contract, the moment of its termination was not determined, but unilateral withdrawal from the contract is allowed in the absence of any serious grounds, including by virtue of the agreement of the parties.
The developers of the Concept came to the conclusion that the grounds for unilateral refusal should be directly provided for by the Civil Code of the Russian Federation, while it is necessary to establish a procedure for refusing the contract, as well as to provide for the impossibility of refusing the contract when the party entitled to do so confirms its validity by its conclusive actions.
If the performer does not have a license
In paragraph 3 of Art. 450.1 of the Civil Code of the Russian Federation enshrines the possibility of canceling the contract in cases where one of the parties to the contract does not have a license to carry out activities or membership in self-regulatory organization necessary for the fulfillment of obligations under the contract. In this case, the party rejecting the contract is also granted the right to compensation for losses at the expense of the counterparty.
Fixed in paragraph 3 of Art. 450.1 of the Civil Code of the Russian Federation, the law corresponds to clause 1 of Art. 431.2 of the Civil Code of the Russian Federation, by virtue of which the party, which at the conclusion of the contract or before or after its conclusion, gave the other party inaccurate assurances about the circumstances that are important for the conclusion of the contract, its execution or termination (including those related to the subject of the contract, the powers to conclude it , the compliance of the contract with the law applicable to it, the availability of the necessary licenses and permits, its financial condition or relating to a third party), is obliged to compensate the other party at its request for losses caused by the inaccuracy of such assurances, or pay the forfeit stipulated by the contract.
At the same time, the legislator proceeded from the fact that the presence of a license, other permits, including membership in an SRO, may be essential in fulfilling obligations. This approach is quite justified, since certain types activities require special professional skills, knowledge, equipment, the presence of which can be reliably confirmed by a license or other document indicating compliance with such criteria.
The lack of special permits, as a result, is considered by the legislator as a possible reason for the occurrence of risk in the future, including the reason for non-compliance or improper performance obligations. This rule can also be considered as an indirect measure to restrict rights related to the violation of public law requirements.
Legal relationship of the parties civil turnover are based on the principles of reasonableness and good faith, therefore, when concluding an agreement, the party proceeds from the fact that the counterparty must have the appropriate permission (license, access to the SRO, etc.). This conclusion is consistent with paragraph 2 of Art. 431.2 of the Civil Code of the Russian Federation, according to which a party relying on unreliable assurances of a counterparty that are of material importance to it, along with a claim for compensation for losses or collection of a forfeit, also has the right to withdraw from the contract, unless otherwise provided by agreement of the parties.
It should be noted that the absence of the necessary permission in itself does not entail automatic recognition of the transaction as invalid, but only gives the corresponding right to the other party to withdraw from the contract. This conclusion is also confirmed by paragraph 89 of Resolution No. 25, in which the court clarified that, unless the law expressly establishes otherwise, the conclusion of a transaction by a person who does not have a license to engage in the relevant activity does not entail its invalidity. In this case, the other party to the transaction has the right to withdraw from the contract and demand compensation for the losses caused (Article 15, Clause 3, Article 450.1 of the Civil Code of the Russian Federation).
The courts also indicate that carrying out activities without a license may be the basis for attracting it to administrative responsibility, however, does not affect the civil obligation to pay for services rendered (see, for example, Determination of the Supreme Arbitration Court of the Russian Federation dated 05.12.2012 No. VAS-15950/12 in case No. 2015 No. F02-2720 / 2015 in case No. A33-20843 / 2014, FAS Central District dated 22.06.2010 No. F10-2500 / 10 in case No. A68-9150 / 09, West Siberian District dated 20.05.2010 in case No. A75-12797 / 2009, Thirteenth Arbitration Court of Appeal dated 18.05.2015 No. 13AP-6360/2015 in case No. A21-9904 / 2014).
At the same time, from the provisions of paragraph 3 of Art. 450.1 of the Civil Code of the Russian Federation, it is impossible to draw a conclusion about legal implications for an agreement in which one party that had a license at the time of the conclusion of the agreement subsequently lost this license (expired, the license was revoked, canceled, etc.). Law enforcement practice on this issue has not yet developed. However, according to the legal meaning of this norm, it can be assumed that the right to unilateral refusal is preserved regardless of the moment of occurrence of the circumstances specified in paragraph 3 of Art. 450.1 of the Civil Code of the Russian Federation.
The legislator's approach aimed at including paragraph 4 of Art. 450.1 of the Civil Code of the Russian Federation, by virtue of which the party must act in good faith and reasonably within the limits stipulated by law or contract. This paragraph is actually duplicated general principles civil legislation, enshrined in paragraph 3 of Art. 1, p. 2, Art. 6, paragraph 5 of Art. 10 of the Civil Code of the Russian Federation (principle of good faith, principle of rationality, principle of justice). Apparently, the legislator wanted to additionally emphasize that a refusal in any case cannot be declared without observing the basic principles of civil legislation, enshrined in Chapter 1 of the Civil Code of the Russian Federation.
You must be consistent when withdrawing from a contract.
Particularly noteworthy is paragraph 5 of Art. 450.1 of the Civil Code of the Russian Federation. From its content, it follows that the party entitled to withdraw from the contract, which confirms the validity of the contract, including by accepting from the other party the proposed last performance of the obligation, loses the right to withdraw on the same grounds in the future.
This rule is aimed at preventing the possibility of cancellation of the contract on formal grounds, when one of the parties uses the right to refuse without observing the principles of reasonableness, good faith, and justice.
For example, in one case (ruling of the Second Arbitration Court of Appeal dated May 13, 2016 No. 02AP-2399/2016 in case No. termination of the contractual relationship, since the parties to the contract committed actions indicating the continuation of the lease relationship, after referral in accordance with Art. 610 of the Civil Code of the Russian Federation of a notice of termination of a lease extended for an indefinite period characterizes the lease as valid.
A similar approach was followed earlier. For example, in clause 23 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 No. 73 "On certain issues of the practice of applying the rules of the Civil Code of the Russian Federation on a lease agreement", the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that, according to Art. 619 of the Civil Code of the Russian Federation, if the lessee does not pay the rent more than two times in a row after the expiry of the payment term established by the agreement, the lessor has the right to demand early termination of the lease agreement in court. Moreover, the lessor has the right to bring a claim to terminate the contract even after payment of the debt, but in reasonable time... At the same time, it was especially noted that failure to present such a demand within a reasonable time from the date of payment by the tenant of the debt deprives the lessor of the right to demand termination of the contract in connection with this violation.
Thus, if a party has not exercised the right to withdraw within a reasonable time, then it loses the right to exercise the possibility of withdrawing from the contract. Of course, the degree and criteria of reasonableness in each case will be determined by the courts.
In other words, by virtue of paragraph 5 of Art. 450.1 of the Civil Code of the Russian Federation, the parties to the dispute are deprived of the right to refer to any facts, to dispute or deny them in view of their earlier statements to the contrary to the detriment of the opposite party. In this case, the application of a general legal principle called estoppel is traced. Other examples of estoppel in Russian legislation are the norms of clause 5 of Art. 166 and clause 3 of Art. 432 of the Civil Code of the Russian Federation.
Quoting the document
The declaration of invalidity of the transaction does not have legal significance if the person invoking the invalidity of the transaction acts in bad faith, in particular if his behavior after the conclusion of the transaction gave other persons a reason to rely on the validity of the transaction.
Clause 5 of Art. 166 of the Civil Code of the Russian Federation
A party that has accepted from the other party full or partial performance under the contract or otherwise confirmed the validity of the contract is not entitled to demand that this contract be recognized as not concluded if the statement of such a demand, taking into account specific circumstances, would contradict the principle of good faith.
Clause 3 of Art. 432 of the Civil Code of the Russian Federation
A party may waive a specific right
In paragraph 6 of Art. 450.1 of the Civil Code of the Russian Federation formulated discretionary rule, which applies to persons carrying out entrepreneurial activity... By virtue of this rule, when a person, upon the occurrence of circumstances that serve as the basis for the exercise of a certain right under a contract, declares a refusal to exercise this right, subsequently he cannot exercise this right on the same grounds, except for cases when similar circumstances have occurred again.
Thus, paragraph 6 of Art. 450.1 of the Civil Code of the Russian Federation is an exception to the general rule enshrined in clause 2 of Art. 9 of the Civil Code of the Russian Federation, by virtue of which the refusal of citizens and legal entities from the exercise of their rights does not entail the termination of these rights.
As an example, we can cite a situation when the creditor refused to collect from the debtor the forfeit stipulated by the contract - subsequently, the creditor will not be able to collect the forfeit, from which he refused, even if he changes his mind.
In general, the analysis of Art. 450.1 of the Civil Code of the Russian Federation and the practice of its application shows that most of its provisions unify the approaches previously established in judicial practice and are aimed at establishing a unified regulation of relations associated with cancellation of the contract.
For your information
The provisions of Art. 450.1 of the Civil Code of the Russian Federation largely duplicate in their legal content the provisions of the Principles of International Commercial Agreements (UNIDROIT Principles, 1994). So, for example, in the explanatory note to the draft Law No. 42-FZ (draft No. 47538-6 / 9) it is indicated that in cases where, if there are grounds for withdrawal from the contract, the party entitled to such withdrawal confirms the validity of the contract, in including by accepting from the other party the last proposed performance of the obligation, subsequent cancellation of the contract on the same grounds is not allowed. This novel corresponds to paragraphs 3.12 and 3.13 of the UNIDROIT Principles. In particular, from clause 3.12 it follows that if the party who has the right to withdraw from the contract directly or in an implied form confirms the contract after the period of time for notification of cancellation has begun to run, withdrawal from the contract is not allowed.