The preamble to the contract, or, as it is easier to call it in business use, the “cap”, is a fairly primitive and standardized element of any agreement, but you must be serious about it. Indeed, quite often certain errors in this contract can radically change its meaning, and in the future, various difficulties may arise in its implementation.
Despite the fact that the preamble of the contract is extremely simple, experts give some advice on how it should be properly drawn up.
Name
First of all, the name should be noted. Of course, the preamble to the contract can simply be entitled “contract”, because its number does not constitute a strictly mandatory requisite, and in the predominant majority of cases they are used only when the company has entered into a very large number of such contracts and decided that it is much easier for her identify them by numbers, not by counterparties.
At the same time, other people prefer to identify and systematize contracts exclusively by counterparties. After all, if we are talking about numbering, then in this case a unified registration system is used, in which the chronology is followed, as well as a number of other subtleties, but it’s not so easy to encode the name of the company in the room in an easily readable way or remember in the head the numbers of the contracts for each individual counterparty . In this case, if there is any problem, the desired can be requested directly from the counterparty, but from the number to do this will not work.
If the solution to the question of how the preamble of the contract should be entitled lies solely in the area of your convenience, then in the name of the type of contract the statement has a deep tax and civil meaning, which is most clearly explained on the various tax consequences of intermediary transactions.
Mediation Agreements
Intermediary agreements, just like agreements regarding the provision of elusive services, in principle, are objects of close attention from the tax authorities for the reason that they are often preferred to be used in order to obtain unjustified tax benefits. Indeed, under various intermediary agreements, as an object of taxation, the intermediary will indicate only his remuneration, which will make up for literate people a small percentage of the total amount received in other people's transactions, even if he takes part in settlements between both parties, and through his personal account the money will be cross a large stream.
What to consider?
However, for this the contract is concluded of an intermediary type, and in full, starting from the name itself, as well as the name of the subject and parties, and ending with obligations, rights, and other significant conditions so that the tax services are not misled and thoughtful. Indeed, from their point of view, it may seem that from such large turns the budget is too little dripping, and the contract is incorrectly drawn up, and it would be nice to re-qualify it in order to cover it in full. However, a change to the preamble of the contract or any other parts of it is no longer provided.
And after all, they really can completely re-qualify the drawn up contract, and impose it as much as possible if an illiterate specialist was involved in its preparation. In other words, the tax authorities will simply decide that no mediation not here, only visibility, and a purchase was made for resale, which is taxed in a completely different way. Thus, to your insignificant remuneration will be added an additional turnovers of others, in which you took exclusively mediation, and it will be difficult to prove anything.
How to draw up correctly?
In particular, this situation is unpleasant for the "simplistic", because the only movement the tax authorities can significantly increase your sales, as a result of which the profit will go towards satisfying the general taxation system. For this reason, when the preamble of the contract is drawn up (sample or original), two basic rules should be followed:
- Be sure to indicate the type of contract in its name.
- Freedom of contract, which is spelled out in article 421 of the Civil Code, must be used with great care and not to enter into any contracts that are not provided for by the Civil Code or unite several types in one, without the most urgent need.
Place of detention
In the overwhelming majority of cases, when the preamble of the power of attorney agreement is concluded, an indication of the city or any other settlement does not play such an important role. For example, if determining the exact place of sale is significant for tax purposes or justifying business trips required to conclude a specific contract. If we are talking about the simplest contracts between two domestic companies, in the overwhelming majority of cases, you can write as it is, without much thought.
date
The date must be spelled out correctly, however, in some situations, by mutual agreement, you can set the "yesterday" date so that the work already done is not left outside the scope of the contract. You must understand that in this case, amending the preamble of the contract is unacceptable, and everything must be spelled out correctly.
The main thing is not to forget that if, in addition to the date, the preamble also provides an indication of the dates on which the contract was signed by each of the parties, then in this case the date indicated in the header will have absolutely no significance, because the date of conclusion of the contract is when the contract was signed by the last party. That is why you should not put down the date of signing the contract by each party, because you can just get confused. Any preamble to an employment contract or any other already has a date, so it’s better to stick to it.
Names of Parties
It will be most optimal to indicate the full name of each party, but you can also use a short one, because the main thing in this case is to do everything correctly, in full accordance with various constituent documents, because today, when a huge number of a wide variety of companies with similar names have appeared , you can get so confused that then it will be completely unclear what you need to demand, and is there such a company in principle.
The conventional name of the parties in this case is used solely for convenience, and it can be indicated by anyone, but for the above reasons, it will be most optimal to use those conventional names that are provided for in accordance with the Civil Code.
Indication of persons and documents on the basis of which they act
Particular attention should be paid to this element, because any errors in this matter may ultimately lead to the fact that it will take a very long time to sort out the courts if any questions arise.
This is far from intimidation, but simply a warning, which is entirely based on current legislation.
Features of the law
For example, in accordance with article 183 of the Civil Code, in the event that there is no authority to act on behalf of other persons or, if such authority is exceeded, the concluded transaction will be executed on behalf of, as well as in the interests of the person who committed it, if only another represented the person does not directly approve the perfect agreement over time.
Thus, if on behalf of a certain legal entity a citizen made a contract with you who was not granted a formal right to such actions, and, in principle, the company was not going to have any business with you, then in this case he will be directly responsible for this contract the citizen himself, and the company will remain aloof.
Also, article 174 of the Civil Code stipulates that if the person’s authority to complete this transaction is limited in accordance with the contract or if the authority of the legal entity’s body is limited by its constituent documents in comparison with how they are defined in the drawn up agreement, legislation or what they are considered obvious from the situation of the transaction, and upon conclusion of this agreement the person or body went beyond these restrictions, in this case the court may invalidate the transaction at the suit of the person in whose interests these restrictions were determined only in those cases when it will be possible to prove that the other party signing the transaction knew or should have known about such restrictions.
Some people even engage in fraud, knowingly using these features of the current legislation. That is why you should already decide for yourself what is more reasonable for you - to take the risk or just be careful to ensure that all parts of the contract (preamble, additional conditions and the rest) are drawn up as competently and in detail.
Conclusion
If you want to conclude a serious contract, you should initially find out in detail from the counterparty the details. In particular, you need to ask him for certified copies of documents, determine which tax system they use, and also require and print an extract from the register. It would also be nice to look into the passport of the person who is going to sign an agreement with you, and despite the fact that many do not have the courage to take such a step, this is an important element. All information should be studied very carefully, and only if there are no questions, the preamble of an international treaty or any other can be completely filled.
