Conditions for termination of the contract unilaterally. How to terminate the contract Unilateral termination of the contract of the Civil Code of the Russian Federation

New edition Art. 450 of the Civil Code of the Russian Federation

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 the majority 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 changed or terminated by a court decision only:

1) in case of a material breach of the contract by the other party;

2) in other cases provided for by this Code, other laws or an agreement.

Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.

4. A party to which this Code, other laws or an agreement has been granted the right to unilaterally change the agreement must, when 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

The commented article provides an exhaustive list of grounds for termination or amendment of the contract. The most natural for private legal regulation is a change or termination of the contract by agreement of the parties. Such an agreement is one of the manifestations of the freedom of contract as the main principle of civil law.

Termination or modification of the contract at the request of one of the parties is an exceptional (and sometimes highly undesirable) "development" of the contract. Contracts, in principle, must be executed by the parties, in connection with this, the norm under consideration establishes really significant and fundamental grounds for court intervention in the relations of the parties to the contract.

Changing the contract in the sense given to it in ch. 29 of the Civil Code, has strictly defined boundaries. In such cases, the specific terms of the contract change, but not its model.

M.I. Braginsky

Arbitrage practice.

Given that the exclusion of a participant from a limited liability company or an additional liability company is in fact a change in the conditions of the relevant memorandum of association(by terminating it in relation to this participant), this can be done only in cases provided for by law or founding documents of the company, as well as in case of a significant violation by the relevant participant of the company of the terms of the memorandum of association (Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8).

Another commentary on Art. 450 of the Civil Code of the Russian Federation

1. In paragraph 1 of the commented article 450 of the Civil Code of the Russian Federation, it is established general rule that the concluded agreement can be changed and terminated by agreement of the parties that concluded the agreement.

Such an agreement is also a contract and comes into force according to the general rules for concluding contracts (Chapter 28 of the Civil Code of the Russian Federation). No special approval or formalization is required; in particular, such an agreement may enter into force without the need for a court decision on this issue (unless the agreement itself provides otherwise).

The agreement of the parties to amend and terminate the contract may follow both in the cases provided for in Ch. 26, and in other cases.

In paragraph 1 of Art. 450 reservation made to general rule on the possibility of changing or terminating the contract by agreement of the parties. It lies in the fact that otherwise may be "provided for by this Code, other laws or an agreement." Thus, the Civil Code, another law or an agreement may establish that the agreement cannot be changed or terminated by agreement of the parties. This clause has no other or additional meaning.

Civil Code provides for several cases in which this clause applies. These are cases where rights for third parties arose from the contract: in these cases.

Separate restrictions regarding the freedom to change or terminate the contract by agreement of the parties are contained in relation to insurance contracts (Article ,).

At the same time, a clause excluding the possibility of changing or terminating the contract by agreement of the parties, as stated in paragraph 1 of Art. 450, can be established by the treaty itself. Consequently, the Civil Code recognizes the admissibility and legality of including in the contract the condition that the parties will not be entitled to change or terminate the concluded contract by their agreement.

Commentators leave this rule aside, probably due to its illogicality. After all, if such a condition is in the contract, it should not have legal force as limiting civil capacity. Thus, we believe that the words "or by agreement" are included in paragraph 1 erroneously.

2. Paragraph 2 provides for cases of amendment and termination of the contract at the request of one party. In these cases, the change and termination of the contract is carried out only by a court decision and only if:

1) one of the parties materially violates the terms of the contract; or

2) such a change or termination of the contract is provided for by the Civil Code of another law or the contract itself.

In para. Paragraph 4, paragraph 2, explains what constitutes a "substantial breach of the contract by one of the parties": this is a breach that causes such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract. The party that refers to the fact that the violation of the contract entails such damage for it is obliged to prove its existence, i.e. the plaintiff must provide evidence of what benefits he expected to receive from the contract, as well as what losses arise for him as a result of the breach of the contract by the defendant. In other words, the term used here and "harm" (v. , ).

It must be taken into account that under par. 2 p. 2 art. 450 are subject only to those cases specified in the Civil Code or other law, which refers to the possibility of one of the parties presenting a demand to amend or terminate the contract; only in these cases should the judicial procedure for changing or terminating the contract be applied. If the Civil Code or other law does not speak of such a requirement, but of the possibility of changing or terminating (termination) of the contract, then these cases fall under the norm of paragraph 3 of Art. 450 and renderings judgment not required (see paragraph 3 of this comment).

Examples of cases covered by the norm of paragraph 2 of Art. 450, are the cases specified in paragraph , art. and .

In addition, "privatization transactions are invalidated, in particular, in cases where the buyer refused to make a payment for the privatization object acquired by him, as well as in case of violation of the conditions under which the privatization object was acquired through a tender. Considering that these circumstances, in accordance with paragraph 2 of article 450 of the Code cannot be considered as grounds for declaring a transaction invalid, since they could not have taken place during its completion, these circumstances should be recognized as grounds for terminating the contract for the sale of a privatized object by the court at the request of one of the parties "( 59 of the Decree of the Plenums of the RF Armed Forces and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8).

If the law or the agreement of the parties allows for a unilateral refusal to execute the contract in whole or in part, but the dispute over the change or termination of the contract is transferred by the parties to the court, then the court makes a decision regarding the termination or change of the contract, guided by the norm of paragraph 3, and not paragraph 2 of Art. . 450.

3. Clause 3 applies to those cases where the law or the agreement of the parties allows a unilateral refusal to perform the contract in whole or in part. In these cases, if one of the parties to the contract has declared such a refusal, the contract is considered to be terminated or amended accordingly (i.e., in case of a complete refusal to execute the contract, the contract is considered terminated, and in case of partial refusal - changed).

Paragraph 3 does not mention the need for a court to decide to terminate or amend the contract in the cases under consideration. This means that the termination or amendment of the contract occurs regardless of the decision of the court and without its decision. This is the fundamental difference between the norm of item 3 and the norm of item 3. 2, paragraph 2: the latter also refers to the change and termination of the contract at the request of one of the parties to the contract in cases provided for by law or the contract, but only by a court decision.

Paragraph 3 does not say anything about the moment at which the refusal to perform the contract comes into force. It should be considered, unless otherwise provided by law or contract, that it comes into force from the moment it is received by the other party.

Clause 3 refers to the admissibility of establishing by law or by agreement of the parties the possibility of unilateral refusal to execute the contract, without limiting this possibility by any conditions. In other words, it is not clear from paragraph 3 under what conditions such a refusal may follow.

In practice, the parties often provide for the possibility of unilateral refusal to perform the contract in the event of a certain violation of the terms of the contract by the other party. However, the parties may include in the contract a provision on the possibility of terminating the contract, regardless of the occurrence of certain conditions. Such a provision contained in the contract is covered by the norm of paragraph 3 and is quite legitimate.

The foregoing refers to the possibility of unilateral refusal to execute the contract by agreement of the parties.

Let us now turn to cases where unilateral refusal is permitted by law.

First of all, we note that in many cases the law allows unilateral withdrawal from the contract if the contractual partner violates his contractual obligations ( , , ).

In some of these cases, the refusal to perform the contract requires that the breach of the terms of the contract by the contractual partner be material, i.e. the one specified in paragraph 2 of Art. 450. This, for example, is directly stated in. In other cases, the law does not link the possibility of a unilateral refusal with the existence of materiality of the violation.

However, in both cases, the contract is terminated or changed without a court decision.

In other cases, the Civil Code allows for a unilateral refusal to perform the contract not in connection with a breach of the contract, but in connection with the essence contractual relations. So, for example, the possibility of unilateral refusal is allowed, moreover, by both parties, under the following agreements:,. Sometimes the law, taking into account the unequal position of the contractual partners in the performance of the contract and the essence of the contract, allows a unilateral refusal to perform the contract only for one of the parties (in the contract retail purchase and sale- for the buyer ( , ); in the rental agreement -; etc.).

At the same time, as noted by the Constitutional Court of the Russian Federation, granting the right to such a unilateral refusal to perform the contract (on the basis of the law) to only one party to the contract should not violate the principle of legal equality of the parties (Resolution of the Constitutional Court of the Russian Federation of June 6, 2000 N 9-P " In the case of checking the constitutionality of the provision of the third paragraph of paragraph 2 of Article 77 of the Federal Law "On Insolvency (Bankruptcy)" // Civil Code Russian Federation. With article-by-article application of practice materials Constitutional Court Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation / Comp. D.V. Murzin. 2nd ed., revised. and additional M., 2003. S. 552).

We believe that Art. 102 of the current Bankruptcy Law, which establishes the right for only one party to the contract to unilaterally refuse to perform the contract, does not violate the principle of legal equality of the parties, since this refusal is caused by the special circumstances in which the party declaring the refusal of the contract is located, and, in addition, the other the party has the right to recover damages caused to it by a unilateral refusal to perform the contract.

It seems that if the agreement of the parties contains a provision that only one of the parties has the right to refuse the contract without specifying reasons, such a provision is invalid if it violates the legal equality of the parties.

ConsultantPlus: note.

Updated 09/10/2019

2018-09-07T10:20:06+03:00

Termination of the contract by agreement of the parties is a kind of transaction, under the terms of which the parties agree on the termination of rights and obligations. How is the process of terminating the contract by agreement of the parties? The article contains a sample agreement and procedure for termination of contractual relations.

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If the agreement has lost its relevance, then the best option for all participants would be the signing by the parties of an agreement to terminate it. Such a document must be drawn up and signed in the same format as the main one. That is written contract is terminated by the same agreement, and if the main document was signed by a notary, then the agreement must be certified in a similar way.

Important! In the event that an agreement is terminated that has passed State registration, when concluding an agreement on its termination, this procedure is not required. Lawyers also recommend entering into a written agreement.

Termination of the contract by agreement of the parties

Analyzing legal practice, we can distinguish the following typical cases of termination of the contract by mutual agreement:

One of the parties no longer needed further cooperation. This may be due to the achievement of a specific goal or, conversely, the conviction that it is impossible to achieve it.
Circumstances have come when further cooperation does not make sense (flooding of the territory, demolition of a building, adoption of a prohibiting law, etc.).
One of the partners cannot fulfill its obligations on time and, without waiting for negative consequences, offers to terminate the contract.

How to terminate a transaction according to the norms of Art. 450 of the Civil Code of the Russian Federation

Termination of a transaction by agreement of the parties is relevant only for contracts in which a period of validity is established, as well as for those contracts that do not terminate with the fulfillment of obligations under them. For open-ended contracts, the legislator provides for the possibility of unilateral refusal to execute them with a notice to the other party, for example, a month in advance.

The agreement of the parties indicates that both parties do not object to the severance of relations. If one of the parties does not express its consent, then the contract is subject to termination only through the court. At the same time, this agreement is intended to regulate certain points early termination deals.

By signing the agreement, the parties can confirm that they have no mutual claims, or vice versa, indicate the fact that there is a debt under the obligation and it must be fulfilled within a certain period of time. In this case, one of the parties, signing the agreement, also recognizes itself as a debtor.

What does the law say?

Federal Law No. 44 2013/05/04 edition 2016/03/07

Resolution of the Plenum of the Supreme Arbitration Court No. 16 “On the freedom of contract and its limits” 2014/14/03

Resolution of the Plenum of the Supreme Court No. 54 2016/22/11

The freedom of contract is fixed by the Civil Code (art. 1, 421) and may be limited by an obligation assumed or by special legislative acts.

The freedom of the contract implies not only the exclusion of coercion at its conclusion, the legitimacy of the choice of form (CC Art. 434), partners, the designation of guarantees (CC Chapter 23), but also the admissibility of making changes up to its termination.

The termination of the contract should not be confused with the withdrawal contractual obligations unilaterally (CC Art. 450.1, 310). They are different in their essence, consequences, method of implementation. Cancellation of the contract is the same transaction as the contract, and therefore is carried out upon reaching a mutual agreement, which is secured by the adoption and signing of the relevant agreement.

A unilateral refusal cannot be a deal (obvious absence of the second party), and therefore is implemented only through the court in certain specified cases and if there are grounds (Federal Law No. 44, article 95, paragraphs 8, 9, 15). These grounds must be formulated and specified in the body of the main contract.

The imposed veto on the reverse demand of partially fulfilled obligations under the contract (CC Article 453, clause 4) can be circumvented by filing claims for unjust enrichment (CC Articles 1102, 1103).

It is also considered quite reasonable for the other party to demand the repayment of the debt formed at the time of the counterparty's refusal of obligations (Letters of the Presidium of the Supreme Arbitration Court No. 104 2005/21/12 p. 1 and No. 147 2011/13/09 p. 7).

Termination (change) of the current contract is the consent of the parties, which is reflected in a written agreement, the formation of which goes through the same stages as the original agreement (CC art. 432 p. 2, 434, 452 p. 1):

offer;
acceptance;
agreement/contract/agreement.

An appeal to the court must be preceded by an unsuccessful attempt to settle the case out of court (refusal or silence of the partner in the transaction).

It should be borne in mind that the possibility of terminating the contract at the initiative of one partner with the explicit disagreement of the other does not at all mean that the court must adopt an approval opinion. The announcement of a suspension of duties is void in nature without a court order and does not automatically terminate the contract.

Contractually fixed rights and obligations of the parties to the transaction can only be canceled by a 2-party agreement or court order(GK ch.29).

The moment of termination of the contract is considered, respectively, the moment of signing the agreement to terminate the contract or the entry into force of a judicial document.

The procedure for terminating the contract by agreement of the parties

The law (the Civil Code of the Russian Federation) regulates only one important condition the procedure for terminating the contract by agreement of the parties - such an agreement is drawn up in the same way as the terminated contract was drawn up. This means that if the contract was in writing, then the agreement is drawn up in writing, notarial - in notarial form, etc. However, Art. 452 of the Civil Code of the Russian Federation defines the right of the parties to initially agree and change this condition. Other may be provided by law for transactions a certain kind or character. In some cases, business practices are taken into account.

Often, the procedure for terminating a contract is determined by the contract itself or by an additional agreement to it. Often, not only the procedure is prescribed, but also the grounds for termination, as well as the timing and consequences.

In practice, as a rule, the agreed termination of the contract occurs according to the following scheme:

One of the parties sends to the other party (or all others) an offer or notice of termination of the contract. The reasons and motives are indicated, as well as the desired course of action and other conditions.
Within the period specified in the proposal, the parties agree on the termination of the contract and prepare an appropriate agreement for signing.
An agreement is signed to terminate the contract.
The conditions and consequences of terminating the contract in accordance with the signed agreement are fulfilled, if any. Final settlements are being made.

If the parties have not provided for their own procedure for terminating the contract or there is no way to comply with it, then the rules established by the Civil Code of the Russian Federation come into effect. In this case, the party that wishes to terminate the transaction sends a request to the other party to do so, indicating the deadline for giving a response. If the period is not specified, it is 30 days. Refusal to terminate the contract or lack of response in set time- a reason for going to court, where the issue of terminating the transaction at the initiative of one of the parties will be decided.

For multilateral deals slightly different rules apply. General order and the requirements remain, but the law (the Civil Code of the Russian Federation) allows the possibility of terminating the contract by agreement not of all, but of the majority of the participants in the transaction. This rule applies only to parties and transactions related to entrepreneurial activity. In addition, it is implemented only if it is written in the contract to be terminated or provided for by law. When including such a condition in the contract, it is necessary to determine how many participants in the transaction must agree: all or a specific number of the majority.

Change or termination of the contract by agreement of the parties

Priority from the point of view of legislation is the change and termination of the contract by agreement of the parties. It requires minimal legal regulation. This type of termination may be formalized by an additional agreement.

Modification or termination of the contract unilaterally by court

At the request of one of the parties, the contract may be amended or terminated by a court decision only:

In the event of a material breach of the terms of the contract by the other party.
In other cases provided for by the Civil Code of the Russian Federation, other laws.

The rules that give the parties the right to unilaterally refuse to perform the contract can be divided into two groups. The first includes the provisions of the Civil Code of the Russian Federation in relation to contracts, the essence of which predetermines the provision of the parties (or one party) with the right to withdraw from the contract at their discretion, for example, under a contract of agency - to both parties (Article 977 of the Civil Code of the Russian Federation).

The second group includes rules providing for such a right of a party in cases where the other party has violated its obligations, for example, under a supply contract (clause 3 of article 495, clause 3 of article 503 of the Civil Code of the Russian Federation) or a work contract (clause 3 of article 715, paragraph 3 of article 716 of the Civil Code of the Russian Federation).

The mutual consent of the parties as a document must be drawn up in writing and in copies that are multiples of the number of parties (usually 2 pieces). After signing, one of them remains with the customer, the second - with the supplier. Both such agreements are completely identical for each of the parties and have equal legal effect.

At the legislative level, no mandatory requirements to such documents, but in practice some rules have nevertheless been developed.

The agreement states:

contact information for both parties;
fact of mutual agreement with reference to specific legislative acts(Article 450 of the Civil Code of the Russian Federation and 44-FZ);
the volume of obligations of each of the parties that were actually fulfilled, as well as their monetary equivalent;
the remaining amount within the framework of obligations that have been fulfilled;
the period during which it is necessary to return the funds that were previously paid as an advance payment (ensuring compliance with the terms of the state contract);
an indication of the fact that the parties do not have any claims against each other;
details of each of the participants in legal relations on the state contact, signatures of representatives.

ATTENTION! View the completed sample agreement on termination of the contract by agreement of the parties under 44-FZ:

Execution of obligations

Termination of the contract by agreement of the parties and termination of obligations under it does not mean that the return Money stipulated in the contract itself or in the termination agreement will not be made.

In the event that the party that took the initiative in terminating the contract fails to fulfill its obligations, its actions can be considered as unjust enrichment and lead to unpleasant consequences.

Placing information in the EIS

After the conclusion of the agreement and the fulfillment of all mutual obligations to each other, one of the parties (by agreement) must place information about this fact in the Unified information system(EIS).

The only exception is information containing state secret.

Within the next seven working days from the date of termination of the contract, contract performance report.

Legal Consequences

It is important to know that in the absence of an agreement Negative consequences for both parties will not keep themselves waiting long.

In addition, neglecting the issues of peaceful settlement of urgent problems can result in a protracted trial, and then the agreement will have to be concluded in a higher authority.

However, in most cases, the termination of the contract has favorable outcome for both sides.

What obligations do not terminate after termination

According to paragraph 2 of Art. 453 of the Civil Code of the Russian Federation, the obligations of partners terminate after they sign an agreement to terminate the contract, unless otherwise provided by the law. But there are obligations that do not stop regardless of the fact of termination. It could be:

collection under the contract of debt that arose before its termination or after, until the moment when the actions of the parties were actually terminated (decision on case No. A36-5038 / 2014, adopted on 06/24/2015 by the cassation instance);
filing claims for violation of obligations to collect penalties and fines, which must be accrued before the date of termination of the contract (determination of the Supreme Arbitration Court of the Russian Federation No. VAS-9825/11 of 09/07/2011);
acceptance by one of the partners of performance under the contract from the other partner and failure to fulfill the obligations assumed. The counterparty has the right to submit claims for the return of the fulfilled obligation on the basis of illicit enrichment. This provision contains clause 4, par. 2 tbsp. 453 of the Civil Code of the Russian Federation (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 35 of 06/06/2014);
an indication in the contract of other, different from the above, consequences resulting from its termination. In this case, the court decision is made taking into account the legal relations provided for by the parties in the contract (determination of the Supreme Court of the Russian Federation in case No. A68-2906 / 2014 dated 06.10.2015).

To protect your interests in court, it is better to use the help of our lawyers, from whom you can get a sample of termination of the contract by agreement of the parties, as well as consult on all issues related to the drafting of the agreement. To provide legal services you need to fill out an online application or call the numbers that are on our website.

Existing reasons for termination of cooperation

It is currently impossible to formulate full list reasons according to which the cooperation agreement can be terminated. Each cooperation agreement is individual, it can prescribe completely original and unique conditions, due to non-compliance with which the agreement may be terminated.

Accordingly, determining specific reasons for terminating a cooperation agreement is a rather problematic action. However, it is still real to single out a certain standard range of reasons why the parties refuse to interact with each other. Let's look at the main common reasons for the refusal of enterprises to cooperate.

most common cause for termination of cooperation is a failure to comply with the obligations stipulated by the previously concluded agreement. In 75% of cases, contracts are terminated precisely because of this reason. Further, bilaterally, the agreement is most often terminated due to the fact that cooperation no longer brings benefits to the parties. In this case, the agreement is terminated quite easily, without problems and conflicts, since both parties are interested in such termination. Termination of the cooperation agreement is much more difficult when only one of the parties loses the benefit.

Well, the third weighty and common reason for the termination of cooperation between organizations are violations in the performance of their obligations, as well as the incomplete performance of the prescribed functions of either party or both at once. Most often, due to such reasons, the termination of the cooperation agreement ends only with litigation, since such a reason implies the payment of compensation by one of the parties in favor of the other, even if this is not regulated by the agreement.

Consequences of signing an agreement to terminate the contract

P. 2 Art. 453 of the Civil Code of the Russian Federation provides that, as a general rule, the termination of a contract terminates the obligations of counterparties. However, when signing an agreement to terminate the contract, one must keep in mind the possible occurrence of such consequences as:

Recovery of damages from the guilty partner (clause 5 of article 453 of the Civil Code of the Russian Federation). Thus, the courts recognized the right to recover from the debtor real damage, expressed in the difference between the advance payment transferred and the actual cost of the work (decree of the Arbitration Court of the Volga-Vyatka District dated October 7, 2016 in case No. A82-15993 / 2014).
collection unjust enrichment when transferring more to a partner than received from him (paragraph 2, clause 4, article 453 of the Civil Code of the Russian Federation). An example can be found in the definition Supreme Court RF dated July 5, 2016 No. 305-ES16-2157 in case No. A40-179908/2014.
Preservation of the terms of the contract, the nature of which provides for their application even after the termination of the contract itself. An example is the preservation of the contractor's warranty obligations for the work performed (clause 3 of the resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated 06/06/2014 No. 35) or contractual jurisdiction (resolution of the Arbitration Court of the Moscow District dated 11/11/2016 in case No. A40-164626 / 2015).

Thus, the termination of the relationship between the parties is possible by signing an agreement to terminate the contract, which must contain all the details specified above. When using such an instrument of termination of obligations, partners must ensure that the form of the agreement is strictly observed. You also need to remember the consequences that may occur after signing such a document.

By Art. 451 of the Civil Code of the Russian Federation, termination of contracts is allowed with a significant change in the situation and circumstances on which the participants were based when concluding them, unless otherwise follows from the essence of the transaction or is not provided for in the agreements themselves. There are many difficulties in applying this rule. Consider in detail Art. 451 of the Civil Code of the Russian Federation with comments 2016.

Specificity

In the first part 451 Art. Civil Code of the Russian Federation there is an indication of the materiality of changes in the circumstances that caused the termination of legal relations. These are situations in which the parties, if they could reasonably foresee the events, would not have entered into an agreement at all or would have executed a deal on different terms. With such a change in circumstances, the participants should come to a consensus on how to proceed with the relationship.

Terms

If the parties could not reach an agreement on bringing the terms of the transaction in line with the changed initial situation or on terminating the relationship, termination of the contract is allowed. If there are grounds enshrined in paragraph 4 of the norm under consideration, it can be changed at the claim of the interested participant. However, for this to happen, the following conditions must be met at the same time:

Additionally

In the event of termination of the contractual relationship due to significantly changed initial circumstances tribunal at the request of any participant establishes the consequences of this action. At the same time, the body proceeds from the need to fairly distribute among the persons the expenses incurred by them in the current situation. Adjustment of the agreement in connection with a change in circumstances is allowed by the court in exceptional cases. This is allowed if its termination is not consistent with public interest or cause damage to the participants, significantly exceeding the costs necessary to implement the transaction on the new terms.

Art. 451 of the Civil Code of the Russian Federation with comments

The Civil Code contains provisions that allow termination of a transaction. In Art. 450, 451 of the Civil Code of the Russian Federation provides for the possibility of establishing additional grounds for this. As one of them is significant change the circumstances from which the participants proceeded when concluding the transaction. Guided 451 Art. Civil Code of the Russian Federation, The parties can settle their own relationship. The norm also allows the interested participant to file a claim if the fulfillment of the obligations assumed when signing the document becomes extremely burdensome due to the events that have occurred. The peculiarity of the situation lies in the fact that foreseeing changes in circumstances would completely exclude the conclusion of a transaction or the parties would sign an agreement on completely different conditions.

Nuances

A change in circumstances can be recognized as significant with the simultaneous fulfillment of the conditions present in the second paragraph of Art. 451 of the Civil Code of the Russian Federation. Arbitrage practice proceeds from the fact that not in all situations the economic unprofitability of the implementation of the terms of the transaction will be the basis for the termination of legal relations in the framework of action proceedings. The conditions, the closed list of which is established by the norm under consideration, indicates the priority of stability in the fulfillment of obligations. The inability to implement the terms of the transaction must be objective.

Exceptional Cases

Conditions given in the second paragraph 451 Art. Civil Code of the Russian Federation, predetermine the priority in resolving the issue in favor of terminating the relationship. The agreement, meanwhile, can be saved. This situation is possible in the event of a change in conditions in accordance with the circumstances that have arisen. Amendments to the agreement are allowed in exceptional cases. As a rule, these are situations in which termination of the contract is impossible even if all the conditions established by law are met. Exclusivity is justified by the fact that the termination of relations is not consistent with the public interest or will entail damage to the participants that is disproportionate to the costs necessary to fulfill the obligations in a modified form. Otherwise, other provisions apply. Art. 451 of the Civil Code of the Russian Federation. Termination of loan agreements often entail disproportionate damage to the participants. The need to revise the terms of such transactions arises, as a rule, when a delay occurs. It is unprofitable for the debtor and the bank to terminate the contract. It is most advisable to revise the terms of payments, that is, change the agreement. However, not always the interested party will be able to get satisfaction of their claims in court.

Features of claim proceedings

It should be noted that the requirements associated with changing the terms of agreements or termination of relations in accordance with Art. 451 of the Civil Code of the Russian Federation. Even such circumstances that are caused by the economic crisis, deterioration of market conditions, price increases, inflation, etc., are not recognized as significant. For example, according to one of the FAS Resolutions, the validity of the refusal to satisfy the appeal against the decision on the claim to change the investment loan agreement was confirmed. The instance pointed out that a sharp increase in the exchange rate in Russia cannot be considered as an independent significant change in the situation, which entailed the consequences enshrined in Art. 451 of the Civil Code of the Russian Federation. There are other similar precedents. For example, the execution of a loan agreement in dollars provides for imposing on the debtor the risk of changes in the foreign exchange rate against the ruble. Accordingly, its increase cannot be the basis for the application of the norm in question.

Other reasons for rejection

It is not regarded as a significant change in the situation and adjustment of the interest rate on loans. The corresponding indication is present in the Resolution of the Arbitration Court of the Ural Region. N Ф09-9064/09-С5. The situation is similar with the refinancing rate. Its adjustment is not recognized by the courts as a significant change in the situation.

Security threat as a material circumstance

In judicial practice, there are also positive results of the consideration of cases under Article 451. Civil Code of the Russian Federation. So, for example, the plaintiff filed a demand to terminate the legal relations for renting a bathhouse, since their continuation threatens the safety of people. The court found that the building was in disrepair, moreover, it is a cultural and historical monument. Its use for the purposes established by the lease agreement is unacceptable. Meanwhile, the presence of a threat to the security of citizens is not always considered as significant circumstances. For example, a request to terminate the lease on a tunnel passage used for trade was denied. The plaintiff motivated the claims by the fact that, in accordance with the decision of the anti-terrorist commissions of the region and the city, the pavilions were moved. This, in his opinion, is a significant change in the original circumstances. Meanwhile Judicial authority, motivating his decision, indicated that the applicant, concluding the agreement, knew about the features of the object that he rented. Accordingly, he could foresee the consequences and prevent them without entering into legal relations at all. Moreover, the plaintiff did not prove that the implementation of the agreement on the original terms would violate the balance of economic interests of the parties to such an extent that it could suffer losses similar to those that would arise if the defendant violated his obligations.

In other words, in the present case, the applicant did not substantially lose what he had hoped for when concluding the transaction. Eventually court of cassation recognized the refusal to satisfy the claims of the plaintiff first and appellate courts lawful due to the absence in the disputed legal relationship of all four conditions established by Art. 451.

Both 44-FZ and 223-FZ establish that the norms of the Civil Code of the Russian Federation 1 must be observed when making purchases. Among other things, the norms of civil legislation also regulate issues related to the unilateral termination of an agreement (contract) 3 . And if in the "scrutiny-procedural" 44-FZ there are separate provisions regarding the unilateral termination of the contract 2, then in the "framework" 223-FZ there are no such provisions. Therefore, with regard to the unilateral termination of contracts concluded under 223-FZ, the only legal regulatory document is the Civil Code of the Russian Federation. We note that the content of the provisions on the procurement of specific customers under 223-FZ, associated with the unilateral termination of contracts, should also not contradict the norms of civil law 4 . Let's take a look at these rules.

Unilateral refusal of a party under the contract to fulfill its obligations is allowed only in cases provided for by the Civil Code itself, other laws or other regulations 5 .

For example, in relation to a contract of sale, civil law provides for the buyer's right to refuse to perform such a contract if the seller refuses to transfer the sold goods to the buyer 6 . Another example from the Civil Code - in relation to a rental agreement, the tenant has the right to withdraw from the agreement at any time by notifying the landlord in writing of his intention at least 10 days in advance 7 .

Also, in accordance with the Civil Code, a unilateral refusal to perform the contract is possible in relation to the supply contract and the contract paid provision services. In the first case, the buyer has the right to refuse to fulfill the contract if the supplier delivered goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer, or repeatedly (that is, more than 1 time) violated the delivery time of goods. The supplier has the same right if the buyer repeatedly violated the deadline for payment for goods or allowed repeated non-selection of goods. In this case, the contract will be automatically considered terminated from the moment one party receives notification from the other party about unilateral refusal from the performance of the contract, unless another term for termination or amendment of the contract is provided in the notice or is not determined by agreement of the parties 8 .

In the second case, the customer has the right to refuse to fulfill the contract for the provision of services for a fee, subject to payment to the contractor of the expenses actually incurred by him, and the contractor has the right to refuse to fulfill obligations under the contract, provided full refund loss to the customer 9 .

In addition, in relation to the work contract, the Civil Code of the Russian Federation has a rule according to which, unless otherwise provided by the contract, the customer at any time before the delivery of the result of work to him has the right to refuse to perform the contract by paying the contractor a part of the established price in proportion to the part of the work performed before receiving the notice on the customer's refusal to perform the contract, while the customer is also obliged to compensate the contractor for losses caused by the termination of the contract, within the difference between the price determined for the entire work and part of the price paid for the work performed 10 .

Finally, civil law also establishes that if one of the parties to the contract does not have a license to carry out activities or membership in a self-regulatory organization necessary to fulfill an obligation under the contract, the other party has the right to refuse the contract (performance of the contract) and demand compensation for losses 11 .

As for the cases established in “other laws”, as an example, we can cite the situation with the provision of communication services, when the service user violates the requirements of the contract and does not eliminate this violation within 6 months after receiving a written warning from the communication service operator, - in this In this case, the operator has the right to unilaterally terminate the contract 12 .

A complete list of such established cases can be found at the links to Part 1 of Art. 310 of the Civil Code of the Russian Federation in legal reference systems(for example, "Consultant Plus").

Note that these cases also include purchases under 44-FZ, according to which the customer has the right to decide on a unilateral refusal to fulfill the contract on the grounds provided for by the Civil Code of the Russian Federation for unilateral refusal to fulfill certain types of obligations (see above), if provided that it was stipulated by the contract 13 . Moreover, in certain cases it is even his responsibility - for example, if during the execution of the contract it turns out that the supplier (contractor, performer) and (or) the goods supplied do not comply with the established procurement notice and (or) procurement documentation requirements for procurement participants and (or) the supplied goods or provided false information about its compliance and (or) compliance of the supplied goods with such requirements, which allowed him to become the winner in determining the supplier (contractor, performer) 14 . But if the contract provided for the right of the customer to decide on a unilateral refusal to perform the contract, then a similar right (again, on the grounds provided for by the Civil Code - see above) is provided for by the supplier (contractor, performer) 15 . In this case, if such a decision is made by the customer or supplier (contractor, performer), it comes into force and the contract is considered terminated 10 days from the date of due notice one party of the other party about unilateral refusal to perform the contract; these 10 days are given, relatively speaking, to "correct violations" - if they are corrected, then the party that made the decision must cancel it and the contract will continue to be executed 16 .

Note that this is a purely “additional” norm of 44-FZ regarding the procedure and conditions for unilateral termination of the contract, however, it will no longer work in the event repeated violation supplier (contractor, executor) of the contract, which became the basis for the unilateral refusal of the customer to perform the contract 17 . In addition, it is important to take into account that information about the supplier (contractor, performer), with whom the contract was terminated due to the unilateral refusal of the customer to fulfill the contract, is included in the register unscrupulous suppliers(contractors, performers) 18 .

If only one of the parties insists on terminating the contract, and the other does not agree with this, in this case the contract can be terminated by a court decision only in case of a material breach of the contract by the other party, as well as in other cases, prescribed by law or by the contract itself; at the same time, a violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract 19 .

Based on this provision, a party under an agreement cannot terminate the concluded agreement only on own initiative without a court order. However, it should be noted that this norm of the Civil Code somewhat contradicts both other norms of the same civil legislation, which establish cases of “out-of-court” unilateral termination of the contract (for example, see above the case with unilateral refusal to perform and termination of the supply contract), and the corresponding norms in other federal laws, including 44-FZ.

In practice, the question often arises, what should be guided by the unilateral refusal to execute and terminate contracts under 44-FZ - the Civil Code of the Russian Federation or 44-FZ?

To answer it, you should carefully read Part 1 of Art. 2 of Law 44-FZ - it states that the rules of law contained in other federal laws and governing procurement, including the specifics of the execution of contracts, must comply with 44-FZ. Therefore, if, according to the Civil Code of the Russian Federation, the contract should be terminated unilaterally through the court, and 44-FZ provides for such termination without going to court, then the norm 44-FZ prevails. But such a conclusion can only apply to parties under agreements concluded under 44-FZ. As for the parties under agreements concluded under 223-FZ, they should adhere exclusively to the norms contained in the Civil Code of the Russian Federation itself (44-FZ no longer applies to their relations).

It turns out that, on the one hand, in accordance with civil law such counterparty may unilaterally and without going to court terminate only the supply contract 20 , and in all other cases, where only in question on a unilateral refusal to fulfill the contract (for example, in the case of a contract for the provision of services), he can only refuse to fulfill his obligations under this contract, but he will have to terminate the contract if it is impossible to do this by agreement of the parties through the court. In principle, it will not be difficult to achieve the necessary court decision if the refusal to fulfill the contract has already occurred in accordance with the cases established by law, but it will still take extra time and other resources.

On the other hand, there is a separate provision in the Civil Code of the Russian Federation, according to which, in the event of a unilateral refusal of the contract (performance of the contract) in whole or in part, if such a refusal is allowed, the contract is considered terminated or amended 21 . Although this rule is again somewhat inconsistent with the provision under consideration that, without the consent of one of the parties, the contract can be terminated only by a court decision, it can be relied on in the case when, unilaterally refusing to execute the contract in permitted cases , the refusing party considers that by doing so it terminated the contract at the same time. Courts 22 may also adhere to this position with respect to procurement under 223-FZ.

In addition, we note that the requirement to terminate the contract can be filed by a party to the court only after receiving the refusal of the other party to the proposal to terminate the contract by agreement of the parties or failure to receive a response within the time period specified in the proposal or established by law or the contract, and in its absence - within 30 day time 23 . We also note that in practice the degree of significance of damage is determined by the courts in each specific case.

A party to the contract may take the initiative to terminate the contract in the event of a so-called significant change in circumstances - so significant that if the parties could reasonably foresee it, then the contract would not have been concluded by them at all or would have been concluded on significantly different terms 24 .

If in this situation the parties failed to terminate the contract by agreement of the parties, then the decision is made by the court at the request of the initiator of such termination. Note that mainly arbitrage practice applied to this provision The Civil Code of the Russian Federation concerns the termination of loan agreements, lease agreements, purchase and sale agreements, donation of real estate.

But an example can also be given from the sphere public procurement 25 . In 2014, the state-owned institution “Department of Private Security of the Main Directorate of the Ministry of Internal Affairs of the Russian Federation for the Irkutsk Region” filed a lawsuit with a lawsuit to terminate the state contract with the Interdistrict Inspectorate of the Federal tax service No. 19 for the Irkutsk region, concluded on the last day of 2013. The reason for this appeal was that at the time of the conclusion of the contract administrative buildings territorial bodies tax authorities were included in the list of objects subject to mandatory protection by the police 26 , but already from 01/01/2014 (that is, from the next day after the conclusion of the contract) they were excluded from this list 27 . In connection with this circumstance, the service provider itself (an institution of private security) offered the customer to terminate the concluded contract, but the customer did not agree.

Probably, this position of the supplier was due to the fact that he was not very financially interested in the execution of this contract and, rather, was forced to conclude it in connection with the obligation to ensure the protection of buildings by the police tax authorities, and when this obligation was canceled, he tried to "get rid" of the contract. However, the various courts held that this case the service provider could have foreseen a “significant change in circumstances” before or at the time of the conclusion of the contract, since the regulatory legal act excluding the buildings of the tax authorities from the list of objects subject to mandatory protection by the police was published on 12.12.2013 on the official Internet portal legal information www.pravo.gov.ru and 12/16/2013 in the collection "Collection of Legislation of the Russian Federation" No. 50 (Article 6658), that is, 2 weeks before the date of conclusion of the contract. Evidence that the contract was actually concluded earlier than the date of publication of the specified regulatory legal act, the plaintiff could not present to the courts.

If the basis for terminating the contract was a material breach of the contract by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract 28 .

Compensation for damages can be made up to judicial order however, if this proves impossible, the injured party may apply to the court. Consider example 29 .

In 2014, the federal state healthcare institution "Sanatorium-preventorium" Solnechny " internal troops of the Ministry of Internal Affairs of the Russian Federation” concluded within the framework of 44-FZ government contract with LLC "StroyLider" to perform work on overhaul in the amount of 3.5 million rubles. As a result of the execution of the contract, the contractor committed violations of its conditions - did not fully and poorly performed the work stipulated by the contract, did not eliminate the identified shortcomings, did not free the work site from construction debris, etc. Based on this, the customer unilaterally refused to perform it, while to confirm violations of the terms of the contract and the grounds for unilateral refusal to execute it, the customer conducted an examination. After that, the customer filed a lawsuit to recover from the contractor compensation for his losses related to the elimination of deficiencies in poor-quality work, costs associated with the fulfillment of his contractual obligations for the contractor (removal of construction debris) and with the examination. Eventually litigation during which an additional forensic examination violations committed by the contractor, it was decided to recover in favor of the customer from the contractor the amount of losses in the amount of 1.9 million rubles.

1 Ch. 1 Art. 2 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to ensure public and municipal needs", Part 1, Art. 2 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services certain types legal entities".

3 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

4 See Letter No. OG-D28-2482 of February 24, 2015 from the Ministry of Economic Development of the Russian Federation

5 Art. 310 of the Civil Code of the Russian Federation.

6 Ch. 1 Art. 463 of the Civil Code of the Russian Federation.

7 Ch. 3 Art. 627 of the Civil Code of the Russian Federation.

8 Art. 523 of the Civil Code of the Russian Federation.

9 Art. 782 of the Civil Code of the Russian Federation.

10 Art. 717 of the Civil Code of the Russian Federation.

11 Ch. 3 Art. 450.1 of the Civil Code of the Russian Federation.

12 Ch. 3 Art. 44 of the Federal Law of July 7, 2003 No. 126-FZ "On Communications".

13 Ch. 9 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

14 Ch. 15 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

15 Ch. 19 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

16 Art. 13-14, 21-22 st. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

17 Ch. 14 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

18 Ch. 16 Art. 95 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

19 Ch. 2 Art. 450 of the Civil Code of the Russian Federation.

20 In accordance with Part 4 of Art. 523 of the Civil Code of the Russian Federation.

21 Ch. 2 Art. 450.1 of the Civil Code of the Russian Federation.

22 See, for example, Decree Arbitration Court Volga-Vyatka District dated 06/09/2016 N F01-1936 / 2016 in case N A79-9006 / 2015.

23 Ch. 2 Art. 452 of the Civil Code of the Russian Federation.

24 Art. 451 of the Civil Code of the Russian Federation.

25 Ruling of the Arbitration Court of the East Siberian District dated September 25, 2014 in case N A19-2397/2014.

26 Decree of the Government of the Russian Federation dated 02.11.2009 No. 1629-r “On the list of objects subject to mandatory protection by the police”.

Unilateral termination of a contract is almost always a conflict. The customer has the right to terminate the contract unilaterally. Is it possible to abuse the customer?

According to part 8 of Art. 95 No. 44-FZ, termination of the contract is allowed by agreement of the parties, by a court decision, in the event of a unilateral refusal of the contract party to perform the contract in accordance with civil law. The customer has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation, provided that this was provided for by the contract (part 9 of article 95 No. 44-FZ).

Law No. 44-FZ establishes the mandatory stages of unilateral termination (parts 12-22, article 95 No. 44-FZ):

Obligatory notification of the second party.
Cancellation of the decision on unilateral termination if, within ten days from the date of notification, the second party has eliminated the violation of the terms of the contract.

The customer has the right to unilateral termination of the contract. What about a participant?

If the customer has provided for the possibility of unilateral termination of the contract, the supplier also has the right to unilaterally refuse to execute the contract 44-FZ.

Upon termination of the contract in connection with a unilateral refusal to perform the contract, the other party has the right to demand compensation for only the damage actually incurred (part 23, article 95 No. 44-FZ).

The question arises: If the contractor completed the work on time and with high quality, and the customer evades signing the KS forms and payment, then the customer will be able to terminate the contract and not pay for the work performed?

No, this is not possible under the law. The customer cannot terminate the contract without a good reason and cannot fail to pay for the work performed, even if the contract is terminated.

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Unilateral refusal to execute the contract 44-FZ: reasons and conditions

The reason for unilateral termination can only be “a fundamental breach of the contract by the other party”, and the essential one is “the breach of the contract by one of the parties, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract” ( Part 2, Article 450 of the Civil Code of the Russian Federation), as well as specific reasons specified in the text of the contract.
The contract must necessarily specify the terms of the responsibility of the customer and the supplier for non-performance or improper performance contract (part 4, art. 34 No. 44-FZ). Penalties and fines for violation of payment terms must also be specified in the contract (part 5, article 34 No. 44-FZ).

In accordance with these clauses, the supplier will be able to claim damages.

And yet, when executing and terminating a contract, should one be guided by Law No. 44-FZ “On the contract system”, and not by the Civil Code?

Law No. 44-FZ says that termination of a contract is possible by agreement of the parties, by a court decision and unilaterally in accordance with civil law. This means that if some conditions and obligations upon termination of the contract are not described in the procurement law, the Civil Code and other Federal laws apply to the extent that they do not contradict Law No. 44-FZ. “The rules of law contained in other federal laws and governing these relations must comply with this federal law"(Part 1, Art. 2, No. 44-FZ).

Termination of the state contract under 44-FZ. What does the public procurement law say?

The customer can conduct an examination of the delivered goods, work performed, services rendered. If violations are found on the part of the supplier, then the customer has the right to terminate the contract unilaterally (parts 10, 11 of article 95).

Within three working days from the date of the decision to unilaterally terminate the contract, the customer places it in the EIS and sends it to the supplier by registered mail with acknowledgment of receipt. There are other ways to notify the supplier, such as via email. The main thing is that such methods ensure that the notification is recorded and the customer receives confirmation of its delivery to the supplier (part 12 of article 95).

The customer's decision to unilaterally refuse to perform the contract enters into force and the contract is considered terminated ten days from the date the customer duly notified the supplier of the unilateral refusal to perform the contract (part 13 of article 95).

Information about the supplier with whom the contract was terminated is included in the RNP (part 16 of article 95). If within these ten days the supplier, contractor or performer manages to correct the violations, then the customer is obliged to cancel the decision on the unilateral refusal to perform the contract that has not entered into force (part 14 of article 95). Be careful! The supplier has the right to one single mistake. The customer will not revoke his decision in the event of a repeated violation.

The supplier, contractor or performer, for their part, is also entitled to decide on a unilateral refusal to perform the contract if the contract provided for such a right of the customer (part 19 of article 95). The procedure for sending notice to the customer of the decision to terminate the contract is similar to the procedure for sending such a decision from the customer to the supplier described above. The parties have the right to demand compensation for damage under the conditions specified in Part 23 of Art. 95.

Not satisfied with the quality of services - the customer terminates the contract? Not always

Under the terms of the contract, the supplier assumed the obligation to provide security services at protected facilities, the list of which is approved in the annex to the contract (the presence of one post, one security guard per shift, round-the-clock service).

The customer conducted an audit of the provision of services, as a result of which he came to the conclusion that the quality of the provision of services does not meet the requirements of the state contract.

Based on the results of the audit, the customer issued an order for a unilateral refusal to perform the contract, the decision was sent to the supplier and received by him.

The supplier sent a letter to the customer, in which he reported on the elimination of the identified violations, and also indicated that the customer violated the procedure - a unilateral refusal to fulfill the contract is not provided for by the terms of the contract, and therefore termination of the contract is possible only in court. According to clause 10.3, the contract may be terminated ahead of schedule by agreement of the parties. The supplier believes that the customer unlawfully refused to fulfill the state contract.

The court found that the terms of the contract do not provide for the right of the defendant to terminate the contract unilaterally without going to court, therefore the defendant's refusal to execute the contract unilaterally is illegal (Resolution of the Arbitration Court of the Volga District dated November 19, 2014 No. F06-16631 / 2013 in the case No. А49-2126/2014).

The supplier refused to fulfill the contract. What should the customer do?

The supplier sent a letter to the customer to suspend the execution of the contract, but did not indicate the grounds for such suspension.

When considering the case, the court found that the supplier had not actually started to fulfill its obligations under the contract. By virtue of Art. 715 of the Civil Code of the Russian Federation provides that if the contractor does not start the execution of the work contract in a timely manner or performs the work so slowly that it becomes clearly impossible to complete it by the deadline, the customer has the right to refuse to perform the contract and demand compensation for losses.

Due to the fact that the supplier did not actually start fulfilling his obligations, the customer rightfully considered this letter as a unilateral refusal to perform the contract, which was provided for by the contract, and sent in response his decision that he was also unilaterally ready to terminate the contract .

In accordance with Part 14 of Art. 95 No. 44-FZ, the customer is obliged to cancel the decision on the unilateral refusal to perform the contract that has not entered into force if, within 10 days from the date of proper notification of the supplier of decision on the unilateral refusal to perform the contract, the violation that served as the basis for the said decision was eliminated. But within the period specified in the law, the provider did not start providing services and did not eliminate the violations that served as the basis for making this decision.

Therefore, the court recognized the termination of the contract as lawful (Decree of the Arbitration Court Northwestern District dated February 17, 2015 in case No. А56-6651/2014).

The contractor missed the deadline

The contract provides for the performance by the contractor of design and survey and construction and installation works and their sequence in accordance with terms of reference. The start date of work is set from 06/18/2012, completion - no later than 19 months from the date of conclusion of the contract, including the preparation of working and budget documentation, construction and commissioning of residential buildings.

According to clause 4.2.2 of the contract, the contractor undertook to complete the working documentation to the extent necessary to obtain a construction permit, coordinate it with the customer and the competent authorities and transfer it to the customer.

In connection with the defendant's failure to fulfill obligations within the time limits specified by the contract, the plaintiff applied to the arbitration court with a request to terminate the contract on the basis of clause 1, part 2, art. 450 of the Civil Code of the Russian Federation.

Applied to municipal contract for the performance of contract work, a significant violation of its conditions is a violation of the deadlines for the performance of work. As established by the court, based on the dates of execution of documents for the transfer of part of the working documentation, these works on the preparation of working and estimate documentation were performed by the contractor in violation of the deadline established by the contract.

At the same time, the working documentation was not prepared by the contractor in full at the time the dispute was considered in court.

Thus, the court came to a reasonable conclusion that the defendant violated the terms of production specified documentation, that is, a material breach of the terms of the contract (Resolution of the Arbitration Court of the Urals District dated January 16, 2015 No. F09-9280/14 in case No. A60-10485/2014).

It was also found that the customer complied with pre-trial procedure- the defendant was asked to terminate the above contract. The request to terminate the contract was granted.

Refusal of acceptance

According to the contract, the supplier undertook to supply the customer with consumables for copiers in accordance with the specification, with the necessary documentation (invoice, invoice, consignment note TORG-12, act of acceptance and transfer of goods).

According to clause 3.3, the goods are delivered in packaging that ensures safety during transportation and reloading and is marked: index, quantity, weight, country and name of the manufacturer, model of the device for which the goods are delivered.

According to clause 9.1 of the contract, the delivery of goods is carried out within five working days after the signing of the contract, that is, before 11.04.2014.

As follows from the evidence presented, the goods were initially offered for acceptance on April 10, 2014, in which the supplier was refused due to the short delivery of the goods, incorrect indication of the quantity of goods in the shipping documents, incorrect indication of the name of the goods supplied, the absence of transfer deeds serial numbers goods and information about the date of manufacture of the goods.

Subsequently, the supplier supplied the missing quantity of goods, but did not bring the shipping documents in line with the terms of the contract.

The customer demanded payment of a penalty for late delivery in full and unilaterally terminated the contract, citing incorrect paperwork as the reason. Part 1 Art. 520 of the Civil Code of the Russian Federation establishes: if the supplier has not delivered the quantity of goods stipulated by the supply agreement within the prescribed period, the buyer has the right to demand that the necessary amount of goods be delivered.

The norms of the Civil Code of the Russian Federation and the provisions of the contract in case of underdelivery do not give the buyer the right to refuse to accept the goods.

The court rightly pointed out that, as part of the acceptance of the goods by the customer, no violations by the supplier of the requirements for the quality of the goods were established, which additionally testifies to the unlawful refusal of the customer to accept.

Incorrect indication of information about the goods in the shipping documents is also not a circumstance preventing the acceptance of the goods under the terms of the contract, and even more so the basis for unilateral termination of the contract.

The claims for the recovery of the penalty were partially satisfied, since the supplier violated the terms of delivery of the goods to the customer, however, the recoverable penalty was reduced on the basis of Art. 333 of the Civil Code of the Russian Federation, as part of the delivery was completed on time. The requirements of the supplier to invalidate the unilateral termination of the contract are satisfied (Resolution of the Ninth Arbitration Court of Appeal dated December 23, 2014 No. 09AP-51223/2014 in case No. А40-94139/2014). They were recognized as legitimate, since the customer terminated the contract on a basis that is not provided for either in the law or in the contract.

Conclusion

The state contract can be terminated unilaterally. The main thing is to follow the laws and regulations. Attempts to evade the execution of the contract through unlawful termination unilaterally are easily detected during arbitration process. Therefore, it is better for both suppliers and customers to initially conscientiously approach the fulfillment of their obligations.

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