In the history of domestic private law, the contract has passed an impressive path of development - from personal hiring and mixing with purchase and sale, to separation in a completely independent form. Initially, Russian legislation did not see much difference between the listed types. The modern form of the contract has been formed relatively recently.
How the concept was formed
We invite you to take a short excursion into civil law and find out what was meant by contract at different stages of the development of domestic law.
The code of civil laws of the Russian Empire, adopted in 1832, already contained such a thing as a supply or contract agreement. In its meaning, one of the parties assumed the obligation to fulfill the enterprise, or to deliver any certain things, and the other to make a payment for it. There is clearly a mixture of the true form of the contract with the sale. Their separation occurred much later.
The draft Civil Code of the Empire of 1905 established that the contractor, under a contract, was to perform any specific work for the contractor for a fee.
The wording of the regulatory act of Tsarist Russia almost unchanged migrated to the Civil Code of the RSFSR, adopted in 1922. According to article 220, under a contract, one party (it was called a contractor) at its own risk pledged to perform specific work on the instructions of the second party (customer), the latter was supposed to pay a fee for this. The wording almost 100% reflects the modern text.
A work contract (Civil Code, Article 702) is actually the result of the evolution of a personal contract. Currently, it is one of the most popular, second only to the sale. The scope of its application is very wide, it can mediate the most diverse relationships and provides a variety of needs: from shoe repair, to the construction of nuclear power plants.
The concept of a contract
Turning to the text of the norm, we see that modern civil law determines that, under a contract, the first party, called the contractor, is obliged, on the instructions of the second party, called the customer, to do some work and give it the result. The customer agrees to accept it and pay in time.
This type of contract is onerous, bilateral and consensual. It has the varieties specified by the legislator. So, in a row there can be construction, household, to carry out survey and design work, work for state needs. The general provisions on this type of contract, reflected in the first paragraph of Chapter 37 of the Civil Code of the Russian Federation, apply to them only if the rules of the code do not establish otherwise specifically for them.
The parties to the contract are the contractor and the customer. The Civil Code of the Russian Federation does not contain any restrictions on participation in these relations for individual entities. For the contractor and the customer, the general rules apply.
Among all contracts regulated by the civil legislation of the Russian Federation, in a row stands out on the subject. Its quality is the performance of certain works and the transfer of the result to the customer. It is on this basis that a contract is demarcated from the sale of goods and the provision of paid services.In this regard, in the legal literature, one can traditionally find a discussion on the separation of the concepts of “services” and “work”.
What are services and what are works?
The question of delimiting services from work only at first glance may seem idle. However, in reality it has a purely practical orientation. You can understand the importance of distinguishing one concept from another using a simple example. Try to retrain the contract for the provision of educational services in a row. As a result, it turns out that any student who does not receive an honors diploma at the end of the educational institution can declare that the “work” was performed inappropriately, and the final “product” does not possess the quality characteristics that it could with due diligence of the contractor .
We observe a similar situation in relation to all other types of services: medical (all patients must become healthy), lawyer or legal (all criminals are acquitted), etc. All this emphasizes a special sign of the contract - it implies the performance of work with the final result .
From a scientific and legislative point of view, separation of one from another is carried out proceeding, first of all, from each specific situation. The relations of the parties under a specific agreement are analyzed.
General contract
The general rules establish that if the contract refers to any simple technical work of a small volume, they are performed by the contractor individually. However, in practice, quite often you can encounter a situation when there is a complex set of works, especially typical for the construction industry. In this case, the principle called the general contract is applied.
In accordance with Art. 706 of the Civil Code, if from the text of the contract or from the law does not imply the obligation to perform all the provided work by the contractor in person, he may well involve third parties in the fulfillment of his obligations. For example, one company may be engaged in electrification, the second - with internal or external finishing work, the third - with heating, etc. In this case, the contractor himself will act as the general, and the rest of the persons involved will be the subcontractor.
If the terms of the contract or legislation do not provide for this possibility, then the involvement of third parties becomes impossible. For violation of these requirements, liability is provided.
The meaning of the general contract is that the general contractor is responsible to the customer for all his subcontractors, as well as for their non-fulfillment (in general or in the proper manner) of their obligations. Note that the inverse relationship is also observed. For improper or complete non-fulfillment by the customer of his obligations, the general contractor bears responsibility before the involved subcontractors (third parties).
Contract and property transfer agreement: differences
It should be recognized that a contract agreement (Civil Code, Article 702), unlike onerous agreements on the transfer of ownership of property, regulates the process of producing something. So, on the one hand, according to Article 703 of the Civil Code, it consists in processing (processing) or manufacturing of a thing, or performing other work. Conclusion: the customer is interested in acquiring a new item or improving the consumer qualities of an existing one.
On the other hand, the processing (processing) or production of a thing or the execution of work must be accompanied by the transfer of its result to the customer. If the contract is concluded for the manufacture of a thing, the contractor transfers to the customer, in addition to the thing itself, the ownership right to it. In other situations, this may be the result of the work done, it is not expressed in any particular subject, but, nevertheless, is material.Thus, the result transmitted to the customer is not always a movable or immovable thing.
Contract and contract for the provision of paid services
There is one main feature of a work contract that distinguishes it from the provision of services for a fee. Although for some types of the latter, according to the situation, legal norms relating to the performance of work can be applied in a subsidiary manner. The main difference between a contract is the result. It must have a materialized form. Under service agreements, the result does not have material content and is inseparable from the identity of the contractor. For example, the performance of a musician, shipping, the activities of a proxy, etc.
Contract and employment contract
The contract is very variable in its manifestations, therefore, its similarity with other types of contracts is observed. Sometimes this leads to confusion. If we analyze the content of the labor contract and the contract more deeply, their significant differences will become noticeable.
The contractor executes the contract at his own risk and at his own expense (i.e., on his own, from his material, funds), unless otherwise provided by the terms of the contract. By concluding an employment contract, the employee enters the staff of the enterprise and is subject to the internal rules established there, as well as the instructions of the employer. This is the main sign of the contract, distinguishing it from labor relations.
However, it is not as straightforward as it may seem. For example, homeworkers are involved in a specific order and work on their own schedule. A similar situation can be observed among individual entrepreneurs.
Currently, the criterion for distinguishing is, firstly, the employee performing a predetermined labor function, i.e., the activities normalized by the legislator, and, secondly, extending to him a system of benefits related to working conditions, its volume and payment, as well as social insurance.
Contract with an individual
The services, work provided and performed by an individual are often paid attention to by tax authorities, as well as the prosecutor's office and labor inspectorate. In case of incorrect execution of the contract, it can be recognized as labor. For the employer, this will result in a fine and reimbursement to the employee of all payments due to him. In order not to get into trouble, we recommend that you pay attention to the comparison table below.
| Differences | Work agreement | Employment contract |
| purpose | Achievement of a specific result specified in the contract and its transfer to the customer. | Performance of a specific labor function corresponding to the position held |
| Subordination | Self-determination of how to do the work | Company rules |
| Payment | Upon completion of work | Monthly, regardless of the result |
| Property rights | Until the transfer of the thing made by the contractor to the customer, it belongs to the latter on the basis of property rights | The thing that the employee creates belongs to the employer. |
Subject of the contract
If you refer to the text of the contract, a sample of which can be seen below, you will certainly notice that its only essential condition is the subject. As follows from the norms of the Civil Code of the Russian Federation, both the work itself and its materialized result can play its role. If the contract does not contain information about the subject or the parties have not reached an agreement on it, then it shall be deemed not concluded.
The most important characteristic of the work and its materialized result is quality. The requirements for it are established by Art. 721. The quality of work performed by the contractor must first of all meet the conditions reflected in the contract. In practice, it often happens that they are not indicated in it or are not listed in full.In this case, there must be compliance with the requirements usually imposed on works of the corresponding kind. On its own initiative, the party to the contract that does the work may assume the obligation to fulfill them in a higher quality than the requirements established by the agreement.
It is also important to keep in mind such a feature as quality assurance. A law or other legal act may stipulate a period during which the result of work is required to comply with the terms of the contract. It is called a warranty. It can be legal and contractual. In the first case, the warranty period for a particular type of work is established by the custom of business turnover, laws or other regulations, in the second case, the parties stipulate it among themselves.
Contract price and payment
The next important element of the content of the contract is its price or, in other words, the estimate. It can have a solid expression or an approximate. During the execution of the latter, it is allowed to make some derogations (excesses). The estimate can be made by any of the parties, but, as a rule, a contractor who is a professional in his field is engaged in this.
The rules for determining the price of an agreement are established in Art. 709 Civil Code. It must be specified specifically, or methods of determining it are stipulated. The price consists of two components: the remuneration of the contractor and the compensation of its costs (for materials, etc.). The parties may also independently (the legislator does not limit them) agree on payment under a work contract and provide for advance payment or settlement in equal amounts in several stages, or after signing the work acceptance document.
Contract term
Another of the significant terms of the contract is its term. Certain rules apply to him. According to the requirements of Article 708 of the Civil Code, the contract must necessarily spell out the time when work will begin and its completion. By agreement of the parties, intermediate dates for the completion of individual stages may also be indicated. This is especially common in construction.
The parties to the contract (customer and contractor) can agree on their change. The reasons for this can be very diverse, including, for example, weather conditions. It is important to remember that changing the terms is possible only in those cases and in the order in which it was provided by the parties in the contract.
As a rule, the contractor bears responsibility for violation of this clause of the agreement. Other rules may be established by law or contract.
The lack of information on the timing of the work can be filled. To do this, use the 214 norm of the Civil Code. In accordance with it, obligations whose fulfillment term is not provided or is not possible to establish, must be fulfilled at a reasonable time after their occurrence.
Contract: performance of obligations
Article 702 of the Civil Code as the main obligation of the contractor establishes the performance of certain work on behalf of the customer and the subsequent delivery of its result. At the same time, the first one does it, which is called at your own risk. It is understood as the burden of possible accidental property losses. In this regard, the legislator specifically discussed the distribution of existing risks between the parties. They are generalized and suitable for various fields.
The risk of accidental damage or loss of property required to perform work under the contract includes:
- to the thing transferred for processing (processing);
- to equipment and materials with which the work is performed;
- to other property used in the process of execution of the contract.
According to the Civil Code, this risk is borne by the party that provided the property. Most often this is a contractor. Similarly, in case of risk of damage or accidental death of the subject of the contract.Before the customer receives the result of the work, the contractor shall bear it.
At the same time, the norm is dispositive, therefore, the rules apply in cases where otherwise is not provided for by other laws, civil code norms or the contract.
In accordance with the current general rules, the work is carried out by the contractor (i.e., at the expense of) the contractor, and he is responsible for the quality of the materials and equipment provided to him, including when they are encumbered with the rights of others. If they belong to the customer, then he is obliged to spend them economically and by calculation, with the provision of a further report. The contractor is responsible for the safety of the equipment provided under the contract (sample wording can be found in legal reference systems) of equipment, materials, items and other property. For all issues related to their unsuitability, poor quality, etc., he must immediately contact the customer.
The main responsibility of the customer is the acceptance of the result of the work performed and subsequent payment. Along with this, he can check the progress of its implementation, exert any influence in accordance with the existing task, but not interfere with the activities of the contractor.
The essence of the contract is that it is bilateral, and both parties bear responsibility for the failure to fulfill the obligations assumed. The contractor has the right to suspend the work or not to start it, if the customer’s evasion of obligations (failure to provide material, equipment, lack of payment) prevents this. Moreover, in the cases specified by law, he is entitled to demand compensation for losses incurred.
The Civil Code of the Russian Federation traditionally provides the customer with the right to refuse to fulfill the contract unilaterally. He can do this at any time before the results of the work are handed over to him, while paying the contractor an amount proportional to the part of the work performed (before receiving the notice).