What you need to know when concluding a contract? What is it from the point of view of the law, what rights and obligations arise in connection with this?
What is a contract?
An agreement or agreement between several persons changes existing rights and obligations or becomes a source of new rights and obligations. What you need to know when concluding a contract? Its content and procedure for conclusion are regulated by applicable law.
What are the features of the contracts?
- are divided into mandatory and optional;
- the conditions are fully formulated by the parties or are strictly regulated by the state, most often a mixed version works;
- It is most often a document signed by all parties.
The proof of the conclusion in the absence of the usual form is the receipt and other documents.
Legislative regulation
What you need to know when concluding a contract? What regulations govern contractual relationships?
- civil Code;
- normative acts (rules, instructions, regulations, etc.) adopted by federal authorities (the Government of the Russian Federation and other central departments);
- clarifications, letters from the authorities regarding certain aspects of the application of the law;
- judicial practice (interpretation of the norms of legislation by the courts and its application in terms of contractual relations).
Studying the last point will help to predict problems in advance, and if not prevented, then mitigate them.
What you need to know when concluding an agreement with an employer?
The Labor Code regulates the area of relations between workers and employers, in particular, the conclusion of an employment agreement. The rules of civil law apply here insofar as. Although employers often try to transfer relations with employees beyond the scope of labor law.
Exemplary structure
The structure of the contract is built according to a single scheme:
- preamble (indication of whom to consider the parties);
- subject of the agreement (what services are provided, what thing is transferred);
- rights and obligations of each party;
- termination procedure (automatically on a specific date or until one of the parties declares this);
- information about the parties (name of organization, registration data, bank account number, passport details of an individual, location or residence);
- signatures, date of signing.
If necessary, there may be applications. For example, the service contract contains all sorts of technical details that are inconvenient to enter into the main text.
General conclusion procedure
As a rule, a citizen is offered a ready-made document in which the terms of the contract are set out on one or more pages. It is compiled in duplicate. On each are put signatures, stamps, data of the parties. From the moment of signing, all conditions are considered agreed upon, and the terms of the document begin.
If the proposal was received by mail, then the client must send the signed copy to the return address.
They resort to outside legal assistance when concluding an agreement when it comes to big money, and there is a need for a detailed study. Drawing up agreements on the model of difficulties does not cause.
The procedure for concluding a contract with organizations does not differ from a similar procedure with the participation of individuals.
General Termination Procedure
There are several options:
- automatic termination at the time specified by the contract;
- in a declarative manner by one party;
- by agreement between both parties.
The first way. The text indicates the date of validity of the document. The application procedure provides for the obligation to inform about the cancellation of the agreement in advance. The period during which you can refuse is limited. For example, the agreement was signed on December 12, and the party has the right to declare the refusal no later than November 12 of the following year. Tardiness entitles the other party not to accept the refusal. A refusal is made out in a simple letter, in order to have evidence, you need to send a letter. On their copy put a mark on receipt.
If the organization does not accept the refusal for far-fetched reasons, a letter is sent with an inventory and notification.
I must say that the law provides a single procedure for concluding and terminating the contract.
Mutual consent is drawn up in a single document in the required number of copies.
Model Agreements
In order to somehow protect citizens from the arbitrariness of entrepreneurs, model or model agreements are approved. They are required to use. It is allowed to make minor changes. A striking example of this is the service contract offered by the utility.
It is worth checking whether the proposed option is consistent with a model or model contract, how serious the deviations are.
What to look for
Legislation provides a list of rights and obligations. In contracts, especially concerning ordinary citizens, there is a desire to impose additional restrictions.
What you need to know when concluding a contract?
- a clear list of their rights and obligations, legislation;
- procedure for termination of the agreement;
- a responsibility.
Often, citizens try to impose additional duties that are not provided for by law. A vivid example, the obligation to obtain insurance in order to get a loan.
Consumers are entitled to refuse the service at any time; only the amount for the actually rendered service is charged from them. Organizations or entrepreneurs enter into the texts of the agreements a ban on refusing services or seriously restrict this right. For example, the obligation to send a letter of refusal for a certain period of time before the end of the agreement.
It is noticeable, especially in the banking sector, that there is an imbalance in the conditions of responsibility, consumers are clearly unequal and difficult.
Practical difficulties
Consumer citizens are invited to sign the contract in finished form. This is common in all commercial organizations and among entrepreneurs providing services on a long-term basis.
The law gives the right to offer its own options for conditions, but in reality it remains to fully agree with what was offered, or refuse the service or product.
In this regard, it is easier to deal with utilities or other monopolists who do not have the right to refuse to provide goods and services.
The main thing is not to sign the contract as soon as it was offered, but to refer to the desire to get acquainted with it in more detail at home. Disagreement with individual points is recorded in the protocol of disagreements. The counterparty’s refusal to agree can be appealed to the FAS or Rospotrebnadzor. Their requirements are binding. Without bringing the matter to court, you can achieve more acceptable conditions for yourself.
Employment contract
Unlike a civil contract, a person who has started to perform duties is considered to be hired regardless of the paperwork.
The law strictly regulates the list of conditions and the content of employment contracts. In particular, the list of posts involving liability is limited.
An agreement concluded with employees must comply with the model agreement. Its inconsistency or absence does not relieve the employer of liability for violation of the law.
It is enough to issue an order of acceptance to the post and make an entry in the work book. The entry in the book is replaced by the contract. It is also signed in 2 copies. The conditions for execution are generally similar to civil contracts.
The assistance of a lawyer in concluding a contract in the field of labor law is no less important, since it is more difficult for an employee to cancel or change unfair conditions. Ignoring this truth, workers are forced to eventually go to the lawyer for help, and then go to court.
Litigation
If for some reason, due to carelessness or haste, an unfavorable agreement is signed, or the company refuses to bring the proposed option into line with the law, the court remains.
A judge in a lawsuit, depending on arguments and requests, can do several things:
- invalidate the agreement in whole or in part;
- oblige to conclude an agreement as amended by the plaintiff;
- amend individual terms of the agreement;
- terminate the agreement.
The applicant is entitled to combine these requests based on his needs and circumstances.
The last paragraph obliges to prove the impossibility of further business with the counterparty.
Litigation is facilitated if consultations with a contract lawyer are held in advance and his recommendations are taken into account.
As for the defendant, he can file a counterclaim and challenge the proportionality of the amounts that the plaintiff imposes on him, proving the fact of abuse of rights by the opposite party.
Lawyer assistance
He provides assistance in the form of advice, participating in the process of developing documents, drawing up its conditions, as well as accompanying the trial. A lawsuit is drawn up and submitted to court. The lawyer also participates directly in meetings, in the study of arguments and evidence.
Clients engage specialists for full support or resort to individual services, depending on the circumstances and their own, in particular, psychological state.