1. In cases where, in accordance with this Code or other laws, it is obligatory for the party to which an offer (draft contract) is sent to conclude a contract, this party must send a notice of acceptance to the other party, or a notice of refusal of acceptance, or acceptance of an offer on other conditions (minutes of disagreement to the draft contract) within thirty days from the date of receipt of the offer.
The party that sent the offer and received from the party for which the conclusion of the contract is obligatory, a notice of its acceptance on other terms (the protocol of disagreements to the draft contract), has the right to transfer the disagreements that arose during the conclusion of the contract to the court within thirty days from the date of receipt of such notice or expiration of the acceptance period.
2. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged within thirty days from the date receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its wording or the rejection of the protocol of disagreements.
If the protocol of disagreements is rejected or the notice of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.
3. Rules on time limits provided for in paragraphs 1 and 2 this article, apply, unless other terms are established by law, other legal acts or not agreed by the parties.
4. If a party, for whom, in accordance with this Code or other laws, the conclusion of a contract is obligatory, evades its conclusion, the other party shall have the right to apply to the court with a demand to compel the conclusion of the contract. In this case, the contract is considered concluded on the terms specified in the court decision from the moment the relevant court decision enters into legal force.
A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.
Commentary on Article 445 of the Civil Code of the Russian Federation
1. The commented article contains norms regulating relations on the conclusion of the so-called binding contract, which is an exception to the most important civil law principle of freedom of contract and is possible only in exceptional cases provided by the Civil Code or other federal laws.
The conclusion of an agreement may be binding on one or both parties, although the second option is less typical. An example of an agreement, the conclusion of which is binding on both parties, is the main agreement concluded on the basis of a preliminary agreement.
2. By general rule the received offer does not oblige to anything and does not bind its addressee in any way. But if we are talking on the conclusion of a binding contract, the situation is different. Within 30 days from the date of receipt of the offer, the addressee, for whom the conclusion of the contract is mandatory, must take one of the following three actions: notify the offeror of acceptance, refusal to accept, or submit a protocol of disagreements to the offer. If the offer is accepted, then the contract is considered concluded at the moment determined by the rules of Art. 433 GK. In the event that the offeror receives a protocol of disagreements or refuses to accept, as well as in case of non-receipt by the offeror in set time of any notice, the offeror has the right to apply to the court with demands to resolve the dispute that has arisen and to compel the obligated counterparty to conclude an agreement. At the same time, the obligated party that received the offer, evading the conclusion of the contract, must compensate for the losses caused to the other party, if the corresponding demand is stated and justified by the offeror.
3. The receipt by the offeror instead of acceptance of a counter offer, as a general rule, does not oblige him to anything. However, if the conclusion of the contract is obligatory for the person who sent the offer, and this person receives a protocol of disagreements within 30 days from the date of receipt of the offer by the addressee, he is obliged to notify the other party within 30 days of agreeing with the counter offer or rejecting the counter offer. If the original offeror rejects the counter-offer or does not react to it in any way within the established time period, the party that sent the counter-offer has the right to apply to the court with demands to resolve the differences and to compel the conclusion of the contract. At the same time, the offeror, who is obliged to conclude the contract, must compensate the losses caused to the other party, unless, of course, the corresponding demand is declared and justified by him.
4. The requirement to consider the disagreements that have arisen in relation to the conclusion of the contract may be stated within 30 days from the date of receipt by the party of the protocol of disagreements or within the period established for acceptance, if it is established by the offeror.
With regard to the requirement to compel the conclusion of a contract, the commented article does not contain any special rules, in connection with which it can be presented and satisfied within a total three-year period. limitation period(Article 196 of the Civil Code).
Paragraph 3 of the commented article emphasizes that the norms of paragraphs 1 and 2 of the commented article, which establish the time limits for applying to the court for resolving pre-contractual disagreements, are dispositive and can be changed not only special rule federal law, a decree of the Government of the Russian Federation or a decree of the President of the Russian Federation, but also by agreement of the parties.
5. The commented article does not contain any special rules regarding the form of a binding contract. Consequently, all the rules on the form of the contract are fully applicable to the form of a binding contract (see comments to Article 434 of the Civil Code).
Civil Code The Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil law in Russian Federation. Norms civil law contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially went in parallel with work on Russian Constitution 1993 - consolidated law in four parts. In connection with the huge amount of material that required inclusion in the Civil Code, it was decided to accept it in parts.
The first part of the Civil Code of the Russian Federation, which entered into force on January 1, 1995 (with the exception of certain provisions), includes three of the seven sections of the code (section I "General provisions", section II "Property rights and other rights in rem», section III « a common part law of obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (on the subject and general principles of civil law, the status of its subjects (physical and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, limitation period, ownership, as well as the general principles of the law of obligations.
The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, was put into effect on March 1, 1996. It is completely devoted to section IV of the code " Separate types obligations." Based on the general principles of the new civil law of Russia, enshrined in the Constitution of 1993 and part one of the Civil Code, part two establishes a detailed system of norms on separate commitments and contracts, obligations from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of a new civil legislation of the Russian Federation.
The third part of the Civil Code of the Russian Federation includes section V " inheritance law” and Section VI “Private International Law”. In comparison with the legislation in force before the entry into force on March 01, 2002 of part three of the Civil Code of the Russian Federation, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the circle of objects that can be transferred in the order of hereditary succession; introduced detailed rules relating to the protection of the inheritance and its management. Section VI of the Civil Code on regulation civil law relations, complicated by a foreign element, is a codification of the norms of international private law. This section, in particular, contains norms on qualification legal concepts in determining applicable law, on the application of the law of the country with plurality legal systems, about reciprocity, return sending, establishing the content of the norms of foreign law.
The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to results intellectual activity and means of individualization. Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the norms used in the field intellectual property terminology. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.
The Civil Code of the Russian Federation has passed the test of time and extensive practice of application, however, economic offenses, often carried out under the guise of civil law norms, revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment of claims and transfer of debt, pledge, etc., which necessitated the introduction of The Civil Code of the Russian Federation has a number of changes of a systemic nature. As noted by one of the initiators of such changes, the President of the Russian Federation D.A. Medvedev, “The current system needs not to be reorganized, fundamentally changed, ... but to be improved, unlocking its potential and developing implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of ownership, as well as the rights and legitimate interests citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary ... "<1>.
On July 18, 2008, Decree of the President of the Russian Federation N 1108 "On the improvement of the Civil Code of the Russian Federation" was issued, which set the task of developing a concept for the development of the civil legislation of the Russian Federation. October 7, 2009 The concept was approved by the decision of the Council for Codification and Improvement Russian legislation and signed by the President of the Russian Federation.
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<1>See: Medvedev D.A. The Civil Code of Russia - its role in the development of a market economy and the creation rule of law// Bulletin of Civil Law. 2007. N 2. V.7.
1. In cases where, in accordance with this Code or other laws, it is mandatory for the party to which an offer (draft contract) is sent to conclude a contract, this party must send to the other party a notice of acceptance, or a refusal to accept, or an acceptance of an offer on other conditions (minutes of disagreement to the draft contract) within thirty days from the date of receipt of the offer.
The party that sent the offer and received from the party for which the conclusion of the contract is obligatory, a notice of its acceptance on other terms (the protocol of disagreements to the draft contract), has the right to transfer the disagreements that arose during the conclusion of the contract to the court within thirty days from the date of receipt of such notice or expiration of the acceptance period.
2. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged within thirty days from the date receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its wording or the rejection of the protocol of disagreements.
If the protocol of disagreements is rejected or the notice of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.
3. The rules on the terms provided for in paragraphs 1 and 2 of this article shall apply unless other terms are established by law, other legal acts or agreed by the parties.
4. If a party, for whom, in accordance with this Code or other laws, the conclusion of a contract is obligatory, evades its conclusion, the other party shall have the right to apply to the court with a demand to compel the conclusion of the contract. In this case, the contract is considered concluded on the terms specified in the court decision from the moment the relevant court decision enters into legal force.
A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.
Return to document table of contents: Civil Code of the Russian Federation Part 1 in the current edition
Comments on Article 445 of the Civil Code of the Russian Federation, judicial practice of application
Cases of the obligation to conclude an agreement under the Civil Code of the Russian Federation
Articles of the Civil Code of the Russian Federation, which provide for cases when the conclusion of an agreement is mandatory for the party to whom an offer (draft agreement) is sent:
- . Freedom of contract
- . public contract
- . Preliminary agreement
- . Organization and procedure for bidding
Conclusion of an agreement in judicial order with absence the defendant has an obligation to conclude a contract. The need for the consent of the respondent
If the defendant has no obligation to conclude an agreement or there is no agreement on the submission of disagreements to the court in acceptance statement of claim on coercion to conclude an agreement (on the settlement of differences) cannot be refused. In this case, the court considers the case on the merits and dismisses the claim, if in the course of the process the parties did not agree to refer the differences to the court for consideration.
The court has the right to decide on the revision of the terms of the contract, different from those proposed by the parties
If, when considering a statement of claim for coercion to conclude an agreement or for the settlement of disagreements under the terms of the agreement, the court establishes that the parties did not refer to the need to agree on any essential condition and there is no agreement between the parties on it, the question of such a condition is submitted by the court for discussion by the parties (,). Similarly, if there is no dispute between the parties regarding the conditions, the court may bring for discussion by the parties the question of the relationship between such conditions and the disputed conditions. Based on the results of the discussion, the court, taking into account, in particular, the opinions of the parties on these issues, the usual contractual practice, the specifics of a particular contract and other circumstances of the case, decides on the wording of the terms of the contract, including those different from those proposed by the parties (paragraph 4 of Article 445, paragraph 1 Article 446 of the Civil Code of the Russian Federation).
The court has the right to approve the terms of the contract in a wording other than dispositive norm
If there are objections from the party regarding the definition of the terms of the contract by a dispositive norm, expressed, for example, in the presentation of a different wording of the term, the court may approve the term in a wording different from the dispositive norm, indicating the reasons for making such a decision, in particular, the special circumstances of the dispute under consideration (paragraph two of clause 4 article 421 of the Civil Code of the Russian Federation).
Missing the 30-day deadline for transferring the protocol of disagreements to the court - refusal of the claim only upon application for this
If the authorized party misses the thirty-day period established by Article 445 of the Civil Code of the Russian Federation for submitting the protocol of disagreements for consideration by the court, the court refuses to satisfy such a requirement only if there is a corresponding application from the other party.
Missing the 6-month deadline for submitting disputes to the court - dismissal of the claim only if the defendant does not agree to the consideration of the dispute
1. If the shortcomings of the goods were not specified by the seller, the buyer, to whom the goods of inadequate quality were transferred, has the right, at his choice, to demand from the seller:
1) a proportional reduction in the purchase price;
2) gratuitous elimination of defects in the goods within a reasonable time;
3) reimbursement of their expenses for the elimination of defects in the goods.
2. In the event of a significant violation of the requirements for the quality of the goods (detection of irreparable defects, defects that cannot be eliminated without disproportionate costs or time, or are detected repeatedly or appear again after their elimination, and other similar defects), the buyer has the right at his choice:
1) refuse to fulfill the contract of sale and demand the return of the amount of money paid for the goods;
2) demand the replacement of goods of inadequate quality with goods that comply with the contract.
3. Claims for the elimination of defects or replacement of goods specified in paragraphs 1 and 2 of this article may be presented by the buyer, unless otherwise follows from the nature of the goods or the nature of the obligation.
4. In the event of inadequate quality of a part of the goods included in the set (Article 449), the buyer has the right to exercise the rights in relation to these goods, provided for in paragraphs 1 and 2 of this article.
5. The rules provided for by this article shall apply, unless otherwise provided by this Code and other acts of legislation.
Official text:
Article 445 without fail
1. In cases where, in accordance with this Code or other laws, it is obligatory for the party to which an offer (draft contract) is sent to conclude a contract, this party must send a notice of acceptance to the other party, or a notice of refusal of acceptance, or acceptance of an offer on other conditions (minutes of disagreement to the draft contract) within thirty days from the date of receipt of the offer.
The party that sent the offer and received from the party for which the conclusion of the contract is obligatory, a notice of its acceptance on other terms (the protocol of disagreements to the draft contract), has the right to transfer the disagreements that arose during the conclusion of the contract to the court within thirty days from the date of receipt of such notice or expiration of the acceptance period.
2. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged within thirty days from the date receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its wording or the rejection of the protocol of disagreements.
If the protocol of disagreements is rejected or the notice of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.
3. The rules on the terms provided for in paragraphs 1 and 2 of this article shall apply unless other terms are established by law, other legal acts or agreed by the parties.
4. If a party, for whom, in accordance with this Code or other laws, the conclusion of a contract is obligatory, evades its conclusion, the other party shall have the right to apply to the court with a demand to compel the conclusion of the contract. In this case, the contract is considered concluded on the terms specified in the court decision from the moment the relevant court decision enters into legal force.
A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.
Lawyer's comment:
The conclusion of the contract in the manner obligatory for one party provides for two cases:
1) when the conclusion of the contract is obligatory for the party to whom the offer is sent;
2) when the conclusion of the contract is obligatory for the party that sent the offer.
So, unreasonable refusal of the conclusion is not allowed. public contract(), as well as from the conclusion of the main contract on the terms stipulated by the preliminary contract, which creates an obligation for its participants after a certain time to conclude a new contract provided for by it.
This article is a completely reasonable deviation from the general principle of freedom of contract, declared by Article 421 of the Civil Code of the Russian Federation, and corresponds to the latter's provision that compulsion to conclude a contract is not allowed unless the obligation to conclude a contract is provided for by the Civil Code of the Russian Federation, by law or voluntarily accepted obligation.
Paragraph 1 of Art. 445 of the Civil Code of the Russian Federation regulates the case when the conclusion of an agreement is obligatory for the party that received the offer (draft agreement). This party must send to the other party a notice of acceptance, or refusal of acceptance, or acceptance of the offer on other terms (minutes of disagreement to the draft contract) within 30 days from the date of receipt of the offer. AT this case the deadline for acceptance is established by law, however, consideration of the proposed terms of the contract and the preparation of a response is not a right (as a general rule), but an obligation of the acceptor.
By virtue of paragraph 1 of Article 445, the party that sent the offer and received from the party for which the conclusion of the contract is obligatory, a notice of acceptance on other terms (a protocol of disagreements to the draft contract), is not obliged, contrary to the rule of Article 443 of the Civil Code of the Russian Federation, to recognize it as a refusal from acceptance and a new offer, but has the right to refer the disagreements that arose during the conclusion of the contract to the court within 30 days from the date of receipt of such notice or the expiration of the period for acceptance.
Paragraph 2 of Article 445 regulates the procedure for concluding an agreement in cases where it is binding on the party that sent the offer. The procedure for accepting or rejecting the protocol of disagreements to the draft agreement provides for the following sequence of actions. The protocol of disagreements must be sent within 30 days for consideration to the party that is the offeror. The latter is obliged, within 30 days from the date of receipt of the protocol of disagreements, to notify the other party of the acceptance of the contract in its version or of the rejection of the contract. The party that sent the protocol of disagreements, in case of rejection of the protocol or failure to receive notification of the results of its consideration within the specified period, has the right to refer the disagreements that arose during the conclusion of the contract to the court for consideration.
Clause 4 of Article 445 provides for the possibility for an interested party to achieve a forced conclusion of an agreement if the party, for whom the conclusion of an agreement is mandatory in accordance with the Civil Code of the Russian Federation or other laws, evades its conclusion. In this case, the other party has the right to apply to the court with a demand to compel the conclusion of the contract. A party that unreasonably avoids concluding a contract must compensate the other party for the losses caused by this.
The rules for damages are provided