The difference between a service contract and a contract is based on their nature, terms of conclusion and other factors. The difference directly affects the rights and obligations of the parties to the agreement. For example, the right to withdraw from the agreement unilaterally.
Definition taken from the Civil Code
Differences between a service contract and a contract begin with terminology. Under the contract, the contractor agrees to perform the agreed work and transfer it to the customer, and the customer agrees to pay for the work. The results of the contract have a specific material embodiment. Either a new thing is created, or an existing one is processed.
An agreement on the provision of services implies the conduct of certain activities or actions. The customer is again obligated to pay for the services.
As examples, the code cites construction and household contracts, the provision of medical, information services, communication services, etc.
Features of tax legislation
The differences between the contract for the provision of services and the contract in the Tax Code are described more successfully. As the subject of the contract indicates the material subject, which can be implemented. In the case of services, this refers to activities that do not have a tangible result that is consumed during the period of this work.
Thus, the difference between the contract and the services lies in the subject matter of the agreement. Based on the goal set for the contractor, the type of contract is selected and its terms are formulated.
It should be noted that the terminology adopted in tax legislation applies only to tax legal relations; it does not apply to other areas of regulation.
What is the importance of making the right choice?
The difference between a service contract and a contract is in how the rights and obligations of the parties are presented by law. The Civil Code (CC) gives relative freedom: not all of its provisions can be replaced by reference to freedom of contract. Sometimes several options are offered to choose from or one that cannot be replaced.
In addition, liability for breach of contract is governed differently. Below we consider the difference in other aspects.
Third party engagement
The performance of work under a contract implies the right to attract outsiders to perform work. There are different approaches to the responsibility of subcontractors and customers: it is built directly or through the mediation of the main or general contractor.
The ban is valid only if it is in the text of the contract. The provision of services is organized in a different way: the contractor is obliged to personally fulfill his obligations if the agreement does not give him the right to attract someone else. As a result of an error, there is a risk of losing reward.
Right to refuse
The law makes it possible to unilaterally waive an agreement. But not everyone has it.
The customer in the contract is entitled to withdraw from the agreement before sending a notice of the work. The ban on refusal should be established directly by the text of the agreement. The contractor is deprived of such a right. The grounds for refusal are only violations by the customer.
In the service contract, everything is different: the customer has the right to withdraw from the agreement at any time and is only obliged to pay for the services actually provided. This is often found in the contract for the provision of services by an individual.Sometimes not entirely conscientious entrepreneurs indicate a ban on early or unilateral refusal by a client, which is illegal and is successfully disputed in court.
The Contractor is also not deprived of the right to withdraw from the agreement. He only has to pay the losses caused to the customer.
Paperwork
The fact of the performance of work is confirmed by the act of work performed. Its compilation is mandatory during the performance of work under a contract. In the service sector, this is not necessary, but often such acts continue to be drawn up. In addition, other documents in accordance with the law or clauses of the agreement can serve as confirmation.
What does an agreement with a contractor look like?
There are at least four forms of a contract: household, construction, design and survey work, and state or municipal order. The parties are entitled to conclude a contract agreement that does not fall into any of the above categories.
The structure of the document is approximately as follows:
- a preamble indicating the parties to the agreement and their data;
- an object or work under a contract that is required by the customer is one of the important conditions;
- terms (beginning and end of work is noted) - the second of the essential conditions;
- price;
- rights and obligations;
- responsibility of the parties to the agreement;
- requisites;
- signature and date of conclusion;
- applications in the form of technical documentation and other information.
There are agreements with a more complex structure. The parties select an option that is suitable for them. A finished sample of a work contract is sometimes processed. Working with ready-made text is not such a difficult process.
Rights and obligations of the contractor
Sample list of contractor responsibilities:
- performance of work at your own risk at the expense of the materials of the customer or your own
- the creation of a thing that meets the requirements of the customer or other standards (an integral part of the document is a technical task with a detailed description of the result);
- economical use of customer materials and reporting on their use;
- warning about the unsuitability of the material provided by the customer and the consequences of its use;
- a message about the undesirability of following instructions when doing work if their use has harmful consequences;
- ensuring the safety of equipment and materials provided by the customer.
The main rights of the contractor:
- providing a place or creating conditions for work;
- right to pay;
- the right to payment in proportion to the work performed, if the completion of the project is impossible for objective reasons.
A sample contract for the execution of work is selected taking into account the scope.
Responsibilities and rights of the customer
The main list includes:
- acceptance and payment of work;
- inspection of the result is carried out in the terms indicated by the agreement;
- a statement on the identification of deficiencies is made immediately without delay;
- payment is made in stages or after completion of work;
The main rights of the customer:
- checking the progress and quality of work performed at any convenient time;
- refusal of the agreement, if there is reason to believe that it will not be executed by the second party in principle;
- refusal of the agreement, if the second party hesitated with the fulfillment of duties, and the customer already provided additional time for the performance of work.
Service Agreement
Legislation provides for a wide range of service contracts. Some of them are indicated in the Civil Code, some in other laws, in particular, on tourism, the provision of utilities and other services.
According to the Civil Code of the Russian Federation, agreements on the provision of services in some cases must comply with the standard form approved by the Government of the Russian Federation. For example, this is provided for in the field of housing and communal services and telecommunications.
The list of conditions can be approved directly by laws governing the provision of services in various fields (tourism, education, medicine, etc.). Therefore, contracts of this category differ significantly not only from contractual agreements, but also among themselves. The contract for the provision of paid services has been carefully worked out by the authorities. Gratuitous services are less common and the degree of their regulation is less.
Duties and rights of the contractor
The list of rights and obligations in the service contract in the Civil Code of the Russian Federation:
- performance of duties in accordance with the terms of a contract or law;
- the provision of services is ensured by personal participation;
- receiving payment for the services provided and reimbursement of additional expenses;
- compensation for losses.
Responsibilities and rights of the customer
The list of the main responsibilities of the customer:
- pay for services after the execution of the order, as well as expenses incurred by the second party during the execution;
- pay for services, even if they were not provided, but due to the fault of the customer;
If the impossibility arose not through the fault of one of the parties, payment shall be made in proportion to the executed part of the contract.
The list of basic rights of the customer, including the contract for the provision of services by an individual:
- cancellation of the contract subject to payment in proportion to the part of the contract;
- claim for damages in case of unreasonable refusal of the second party to the agreement.
Differences in conditions
The structure of the agreements is similar. The wording of the terms is different. For example, the contract gives importance to the terms: their non-fulfillment affects the amount of payment and even the fate of the agreement.
The service agreement describes the list of actions or activities of the contractor. There is no such thing in the contract.
Form of service and contract
Both verbal and written agreements apply. The rule applies equally to both forms of contract.
The oral form is convenient if the provision of the service or implementation does not take a lot of time and the payment is low. For example, a one-time consultation was given or shoe repair was performed. Where significant amounts are involved, a written form is required.
If the standard form of a contract for the provision of a service or execution of a contract is mandatory, then the signing of a document executed in accordance with all the rules is inevitable. The conditions from the model document always apply.
Mixed Agreements
Mixed contracts are transactions in which there are simultaneously conditions relating to at least two contracts. Combinations are very different.
What, for example, is the peculiarity of a mixed contract and service provision? A company or an entrepreneur, for example, suggests first installing equipment (working with a specific result), and then servicing it.
The contract describes the stages of the work and the list of services provided. The price is taken respectively for both.
If the amount for the services is significant, then the company or individual entrepreneur can offer installments, which is an element of the contract of sale. To what extent to combine the conditions, the parties decide. It is not necessary that all the elements are present, in this case both the work contract and the service contract.
Features of transactions involving IP
The contract with the IP for the provision of services is concluded in a general manner. A draft document is proposed and the client puts his signature under it, having previously entered the data from the passport.
The text of the agreement must comply with the whole list of normative acts. After the Civil Code is the law on consumer protection. It provides additional guarantees to consumers of services. In particular, it is forbidden to put customers at a clearly disadvantageous position. It is required to inform them in full, without creating a false impression.
If the provision of work or the performance of work is provided on a systematic basis, then the terms of the contracts must be identical for all customers.