Drafting civil contracts is one of the activities of lawyers. Some of them practice only in this area. What should be considered for one who is faced with such a task?
Treaty and its meaning
The agreement is one of the basic sources of the emergence of the rights and obligations of citizens and organizations. It is present literally everywhere, and it is simply not customary to pay much attention to this.
The concept of a civil contract includes an agreement of two or more parties. He either changes the existing rights and obligations or establishes new ones.
The value of the contract is not only in the formalization of obligations between the parties, but also in the protection of their legal rights and interests. No wonder one of the grounds for declaring an agreement null and void is the enslavement of its conditions.
Practicing lawyers note that the contract is being prepared, first of all, in the event of a trial.
External implementation of the contract
The preparation of civil contracts means, first of all, the formation of a document that consistently sets out the items fixing the obligations of the parties.
Interestingly, the seemingly similar agreements in practice differ in many respects. This is due to both the specifics of the relationship between the parties and the volume of obligations. For example, the agreement on the construction of an individual house is different from the agreement on the construction of high-rise buildings. The first is placed on two or even one sheet, the second is a multi-page document with voluminous applications.
Entrepreneurs and heads of organizations often have a negative attitude towards the preparation of contracts, considering them a mere formality or even an obstacle to doing business.
Civil contracts from several sheets are sewn together before state registration, and the full name is written on the attached tag and the signatures of the parties are put. More complicated is the case with notarized agreements. They are formed on forms and are certified by the seal and signature of a notary.
Agreement form
In total, three forms of civil contract are provided:
- oral;
- written;
- notarial.
Oral is used in small transactions. A striking example is the purchase of bread or other things of little value. The fact of the acquisition is confirmed by a receipt or bank statement. For obvious reasons, standard writing does not apply.
The written form is most widespread, and is used both by citizens who are not related to business, and by entrepreneurs. In some companies, individual legal officers work exclusively with contracts.
The notarial form is a type of writing, but all transaction support is provided by a notary. Appeal to him is either an obligation by virtue of the law or a condition of a party that refuses to enter into an agreement without the participation of a notary.
A few words about registration. It does not apply to the form of the contract, but is an integral part of the transfer of rights. Without it, the transaction is not considered to be completely concluded, and the process of transfer of rights is not completed.
Subtleties of design
You will be able to protect your rights only by fixing the terms of the contract on paper. In order to avoid difficulties in future litigations, the legislator established that the transaction was priced from 10 thousand rubles. is in writing.When buying things in stores, the usual document is replaced by bills, receipts and other papers issued to consumers. So formally the law is fully respected.
If the contract does not have a full written form, then its conditions are determined by the court from the correspondence of the parties and other related documents. The parties have the right to give explanations in court to their account, however, the parties' explanations and testimonies of witnesses cannot serve as an independent source of information about the contents of the contract. An exception is provided only for contracts with citizens-consumers.
Because of this, it is better to spend time drawing up a full-fledged civil law contract than to sue later.
Thus, non-compliance with the rules on the form of agreement leads to serious consequences. In some cases, the contract is automatically invalidated, for example, a loan issue transaction.
Essential conditions
All contracts, without exception, consist of conditions. But to write only a list of them is not a sufficient step; the parties must take into account a lot. There is a category of clauses without which the contract is not valid - essential conditions.
They include: conditions on the subject of the contract, other conditions called essential law, as well as those without which the agreement is not considered concluded at the will of the parties.
They are indicated directly in the text of the law or highlighted by interpretation. A significant role is played by the judicial practice of concluding civil law contracts.
Typically, the entire set is contained in the paragraph of the law on the explanation of what is, for example, a lease or loan. The presence of other material conditions, if necessary, is further discussed in the text of the law.
In addition to laws, mandatory conditions are established by regulatory acts of executive authorities. Such a right is granted exclusively by law, otherwise the publication of an act approving a model contract is considered an excess of authority.
Document structure
All contracts are built according to the scheme:
- name of the contract;
- date and place of signature (city or other locality);
- reference or preamble;
- rights and obligations;
- price and settlement procedure;
- terms of liability.
The items listed are usually sections. For example, rights and obligations can be divided into two sections, each of which is dedicated to one side.
The terms of a civil contract may not contain specific rules, but refer to annexes to the agreement. For example, the description of the stages of work, the scheme and the main text are not affected, which saves the parties from many problems.
A reference to applicable law applies. If in the field of energy or state contracts such a move makes sense, then in others it doesn’t. The legislator has given a certain freedom, and it must be used. The more specific the clauses of the contract, the easier it is then to defend your rights in court.
Perhaps in the contracts only the preamble is repeated. It fully indicates the full name or name of the organization, together with the legal form (LLC, JSC, etc.). Further, this person is indicated as a party, which reduces the amount of text to a minimum.
Model or model contracts
The legislation obliges to conclude some contracts on the basis of model or model contracts. For example, the provision of housing and communal services is provided on the basis of such agreements (water supply, electricity supply, etc.). The rules also describe the strict procedure for their conclusion.
The parties to a civil contract have the right, within a reasonable framework, to adjust the texts of sample contracts, and if we compare the options offered by different service providers, there really are differences. Often, citizens and organizations have to go to court to achieve the signing of an acceptable agreement, the terms of which are in accordance with the law.
Freedom of contract
What is the degree of freedom of the parties when concluding contracts in civil law? The practice of drafting contracts offers several options:
- the terms of the agreement are fully consistent with those prescribed by law;
- the parties are entitled to formulate conditions in their own way, if this is not prohibited by law;
- Parties have the right to choose one of the proposed options or formulate a condition at their discretion.
Legislation has established frameworks and restrictions that should not be exceeded.
The second party has the right to ask the court to recognize the agreement partially or completely illegal. The authorities for filing such claims are also state bodies, in particular, the tax service. Because of this, the preparation of civil contracts turns into a time-consuming process.
Parties to the contract
Formally, all parties to the agreements have an equal position before the law. But still, some exceptions are provided. For example, the state, when ordering services and goods as part of a system of state or municipal contracts, establishes a rigid framework. Other participants are left to either agree or refuse the proposed conditions.
The state is not a party to the contract directly; it is represented by state or municipal bodies. At the same time, a single customer system works. One organization places orders in favor of other persons, not being a direct acquirer.
Preferences are enjoyed by citizens acting as purchasers for their personal needs, having consumer status.
Legal entities not related to the state have the same scope of rights as other participants in the civil turnover.
Conclusion procedure
The conclusion of a civil contract is the coordination of its conditions, and not its signing. The signing procedure is the end result of negotiations and formalizing the will of the parties.
An agreement is considered concluded if the parties have signed a single document in several copies according to their number. By the way, the acceptance of a product or service is considered a fact confirming the conclusion of an agreement.
The way to conclude a contract is to send a proposal and accept it with or without reservations. Evidence of disagreement when it is impossible to refuse to conclude an agreement - a timely protocol on disagreements with proposals for changes.
Nuance - a transaction is considered to be concluded if, after signing, it was registered with the authorities of the Rosreestr or another body registering rights (STSI).
In some cases, it is allowed to file a lawsuit in order to oblige the other party to conclude an agreement. The peculiarity of the process is that the document is approved as amended, as a rule, proposed by the plaintiff.
Often, an amicable agreement is concluded, where the parties undertake to conclude an agreement on agreed conditions without court intervention.
Types of contracts
The classification of a civil contract is a category of a more scientific nature than a practical one. Directions of classification are determined by different criteria, as well as by the goal set by its author.
For example, its own gradation is laid down in the civil code, the basic classification criterion is the subject of the agreement.
Another criterion is the moment of conclusion: real and consensual agreements.
The former are considered prisoners from the moment of transfer of the goods, performance of work or the provision of services.
Paid and gratuitous transactions. In the first, there are counter actions of a property nature (transfer of money, performance of work, offsetting, etc.). Gratuitous are characterized by the fact that one party acts as an acquirer (gift agreement). The second receives nothing (gift).
Conclusion
The process of drafting a civil contract includes the work of the parties on its terms, even where the calculation is made on the consent of the client without contesting the conditions, it is possible to offer their own terms.
It is preferable to invite a lawyer, rather than deal with documents yourself. Its task is to translate on paper the decision of the parties to the transaction, taking into account the scope of legislation and judicial practice, reflecting a practical understanding of the rule of law.