In the Russian legal system there are a large number of categories of contracts. So, among the most common are public contracts. What is their specificity? In what cases do Russian companies prefer to conclude just such agreements rather than others?
The essence of public contracts
A public contract is a legal construction that has a number of specific features. Firstly, one of the parties to the relevant contracts is a commercial entity. Secondly, the nature of the organization acting as the subject of legal relations should be expressed in the implementation of sales, the provision of services or the performance of certain works. Thirdly, the provisions in the contract must meet the following basic criteria:
- reflect the obligation of the company to enter into legal relations (to sell goods, provide services) with any applicants;
- reflect the obligation of the company to charge the same fee for the same goods or services supplied to different customers.
A company that has drawn up a public contract also assumes a number of statutory obligations. In particular, regarding the inadmissibility of refusal to provide services or supply of goods, if there are no objective reasons for this.
Also, some lawyers believe that companies whose main activity is somehow related to the systematic publication of the corresponding type of contracts should be recognized as a party to a public contract. That is, the company must sell or provide services stably, be a permanent player in the market. What might a public contract look like? A sample of the relevant document is below.
It can be noted that in this example the contract is called an offer. What is the specific use of this term?
Contract or public offer?
There is a discussion in the Russian legal environment regarding the assignment of a particular type of agreement to a contract or a public offer. There is a point of view according to which a public law contract in most cases can be equated to the corresponding type of offer. At the same time, this thesis cannot be considered the most common, if only because the two indicated legal categories are different. An offer, according to the law, is a source preceding a transaction, which may subsequently become an agreement.
In the event that its provisions do not substantially change by the time the contract is concluded in one or another legally significant way — by signing, by the fact of payment for the goods or services — it actually acts as a contract. This scenario in practice, as some lawyers have noted, is the most common. And therefore, many experts believe that the corresponding type of contract should be called precisely the “public offer contract”, that this is its most correct name. This is the essence of legal discussion.
It can be noted that specific types of public contracts are not classified in Russian law. That is, it can, in principle, be any agreement under civil law that meets the criteria outlined above.
The specifics of concluding a public contract
Let us consider in more detail what are the specifics of concluding public contracts. We noted above that the organization does not have the right to refuse to provide services or sell goods - actions that are expected under the contract, if it is possible to fulfill the relevant clause of the contract.An interesting fact from judicial practice can be noted. So, for example, the instructions of the Plenums of the Armed Forces of the Russian Federation contain provisions according to which a company, if a client or counterparty sues it, will itself have to prove that the provision of services or the sale of goods was difficult due to objective reasons.
We also noted that the selling price of the goods and other important conditions of the public contract should be the same for all contractors, customers and buyers. However, there is one interesting exception to this rule: a company may provide certain benefits or preferences for individual customers. True, there is some discussion among lawyers regarding the possible factors of recognizing a buyer’s right to a benefit. There are experts who believe that the supplier company has the right to focus only on those criteria that are specified in the current regulatory legal acts: for example, determining the fact that large families are entitled to such and such discounts.
In turn, other lawyers believe that the company has the right to independently determine to whom to give discounts and other preferences, and to whom not. Many analysts believe that companies are trying in this sense to practice compromise options - for example, in the form of discount cards. On the one hand, holders of these products can thus receive the same discount, on the other hand, they have the opportunity to buy goods cheaper than those customers who have not yet acquired cards.
Similar interpretations of legal norms are also characteristic of the provision according to which companies concluding public contracts are not entitled to give priority to any customers and counterparties in the sale of goods or the provision of services. That is, some lawyers believe that exceptions to this rule can be caused only at the level of official sources of law, for example, federal laws on support for war veterans, according to which people who fought for their country can be served as a priority in various organizations. Other experts believe that firms are entitled, for example, through the same customer cards, to determine who can get priority in receiving a particular service or buying a product.
Also an interesting nuance regarding the conclusion of public contracts is the determination of the terms within which the organization must deliver the goods to the client or provide the service. The main source here is the Consumer Protection Act. In accordance with its provisions, the terms should be fixed either in the contract itself, or determined by third-party regulatory legal acts containing the rules for the performance of certain services or regulating the delivery of goods. Moreover, if the sources of law in question indicate only the recommended dates, and the parties to the legal relationship agreed that the services or goods will be delivered earlier - this fact, as many lawyers believe, must be recorded in the contract.
The value of public contracts
A public contract is, first of all, an instrument of legal protection of those entities which, due to their status, are subject to it as a matter of priority. This can be, for example, buyers in a store, who, in particular, should feel the right to purchase goods at the same price as other visitors to the outlet, reinforced by law.
A public contract is a tool to simplify the legal interaction between a supplier of goods or services and their consumer. Purchase and sale is a type of legal relationship. They can be legally consolidated in various ways, and, according to many experts, a public contract is one of the best tools in such cases.
Law Enforcement Aspects
According to a number of lawyers, the public type of agreement in question is intended, first of all, to protect the rights of consumers. However, to what extent is this priority confirmed in law enforcement practice? Regarding this issue in the expert environment there are several polar points of view. There is a thesis according to which legal norms that prescribe certain behavior models to suppliers of goods and services are accompanied by a shortage of law enforcement procedures characterized by quick response.
That is, for example, if a citizen arrived at the hotel, but they refused to check in, citing the lack of available rooms (although they, by all indications, were), then the only mechanism legitimate interests citizen - appeal to the court, which, of course, can take the side of the plaintiff, but only after a considerable time. A person needs to check into a hotel as quickly as possible - and such mechanisms, as Russian lawyers note, law enforcement practice related to such a legal category as a public law contract does not imply.
At the same time, there is another point of view, according to which the total set of obligations that the legislator assigns to suppliers of goods and services somehow compensates for possible shortcomings in the aspect of the law enforcement mechanism, which we mentioned above.
The legislator wants justice
It is, in particular, about obligations in the field of consumer protection regarding the quality of goods sold and services provided. In this sense, analysts believe that the client has a large number of opportunities to be the rightful party in legal relations. That is, according to lawyers, the legislator, without providing for operational mechanisms of law enforcement practice in relation to public contracts, observes a balance of interests in conditions when it is assumed that the customer or store or customer is in a preferred position to protect consumer rights. Thus, businesses receive a certain tool that allows, when possible, to adjust the balance of interests in their favor.
Features of accession agreements
A public contract is a legal category that is fairly close to some other types of contracts. Which, for example? First of all, lawyers among them note the accession agreement. Due to what signs do they become close to public contracts?
Firstly, in the accession agreements, the terms of the transaction are initiated and offered by one party, that is, the supplier of goods or services. The terms of a public contract are likewise unilaterally generated by suppliers.
Secondly, the other party to the legal relationship can participate in the conclusion of the transaction solely by joining the proposed contract.
Thirdly, within the framework of the type of contracts under consideration, it is assumed that the conditions should be fixed by means of standard documentary forms. That is, it means that the adjustment of the essential conditions in the general case is not required, although it is possible.
Legal relations that arise within the framework of accession agreements, at the same time, assume that the counterparty has the party that proposed to conclude the corresponding contract, the right to terminate the contract.
However, as many lawyers have noted, the laws of the Russian Federation do not spell out clear conditions under which termination of the relevant type of contract should occur. Also, legal acts regulating legal relations within the framework of accession agreements, as noted by lawyers, do not contain provisions that would stipulate the liability of the company that proposed the agreement for possible losses of the counterparty who joined the contract.
Differences between a public contract and an accession contract
Having examined some aspects of the similarities between a public contract and an accession contract, we will study the facts that indicate tangible differences between the two types of documents under consideration. In particular, in public contracts, as a rule, there are no scenarios providing for a significant adjustment of the conditions. In connection contracts, in turn, the option is possible when the consumer of services has the right to offer the provider to significantly change certain provisions in the document.
At the same time, it is possible that the public contract is precisely the contract of accession. This is possible if, for example, a sales contract drawn up in the form of a form (that is, having the characteristics of an accession contract) involves the conclusion of transactions with an indefinite or unlimited number of persons. That is, in this case, the adjustment of its points is impossible or inappropriate - and this is a sign of the document, which is characterized by the rules for concluding public contracts. The only question is to which legal category the document belongs in the first place. Some experts believe that the primary characteristic that characterizes the contract belongs to public ones is primary. Others believe that this type of agreement is more consistent with the criteria specific to accession contracts.
It does not matter, lawyers believe, how exactly the supplier company will name the document in which the terms of delivery will be stated. The most important thing is the conformity of its actual content with the criteria that are specific to a public contract or an accession contract. Although, as many experts note, companies still try to formulate the names of the documents so that the counterparty or buyer understands what type of agreement is to be concluded.
What to choose: affiliation contract or public contract?
One way or another, but very many experts prefer not to identify the two types of agreements considered (although they recognize the possibility of drafting contracts that have the attributes of both). Thus, the organization, intending to publish a contract that has properties common to both types of agreements under consideration, for example, a one-sided origin of conditions, may face a choice: issue a document with an emphasis on the criteria specific to accession contracts, or compose it according to the principles that peculiar to public contracts?
We noted above that one of the key criteria for distinguishing an accession contract is the ability to adjust material items on the client side. The conclusion of a public contract, in turn, does not imply such an opportunity in the general case. The determining factor in setting priorities in this aspect, experts believe, is the particularities of the market in which the company operates, the specifics of its business segment, and the characteristics of the target group of customers.
Client defines the rules
The fact is that for some types of counterparties (buyers, customers), the lack of the ability to adjust the terms of the contract can be critical, for others not. Obviously, if we are talking about entrepreneurial activity in the B2B segment, when some legal entities provide services or sell goods to others, public contracts are a less desirable way to formalize relations. And this is logical: the counterparty may not agree with certain points of the contract, which is offered by the supplier company. And therefore, if the supply contract is public in the aspect of all the criteria specific to it, then counterparties can simply refuse to interact with the company. Therefore, in such cases, companies are more likely to offer their terms as part of merger contracts.
According to some lawyers, an individual public contract is a single price tag (or, at least, it is an essential part of the contract). The buyer of the store, perhaps, would like to change it in order to purchase goods cheaper. However, it is unlikely that the interests of the seller with such wishes coincide. Not every store can afford to discuss with each buyer the selling price of goods. And in this case, a public contract is optimal for the seller, and not an accession contract.
There is an interesting opinion regarding this type of document as a public offer agreement: that this is one of the examples of agreements through which a particular business clearly makes it clear to the counterparty that the proposed conditions related to the sale of goods or services are not subject to discussion.
It can be noted that the choice in favor of a contract may be due to the peculiarities of the formulation of its provisions. There are areas in which it is problematic to draft a public contract due to a lack of input data. And therefore, the company is forced to adapt in one way or another to this specificity, drawing up accession contracts as the only possible ones. For example, a public insurance contract is a legal category, which is quite rare, as some experts note. In order to determine the main part of its conditions, the company needs to examine the individual profile of the client, and only after that offer him certain terms of the contract.
Thus, one of the factors for choosing a particular type of contract is the supplier's priorities in terms of implementing interaction with the client. A public contract is an agreement with some bias in the area of interest of the customer. Another important factor is the specifics of the segment in which the company operates, especially the types of services it provides or the goods it sells. That is, if the characteristics of a particular market segment imply loyalty to the counterparty, expressed in readiness to discuss the terms of the agreement, an accession contract is drawn up. If not, then the company can work, interacting with customers under public contracts.
