Art. 428 of the Civil Code mentions a new treaty in Russian civil law. It is considered one of the options for restricting freedom of contract on the basis of law. How much does the party agreeing to sign such a deal limit itself to?
Normative regulation
Art. 428 of the Civil Code describes the possibility of concluding transactions by agreeing to proposals whose terms do not change during negotiations between the parties. The provisions of the article were amended by two amendments in 2015.
Given the increasingly widespread use of standard forms of agreements by business entities, a significant amount of judicial practice has been gained by arbitration courts. Conclusions made in connection with this are periodically published in newsletters. The accession agreement has still been noted in the practice of the Constitutional Court of the Russian Federation.
The main features of the transaction
The contract may be qualified in accordance with Art. 428 of the Civil Code of the Russian Federation, if it meets simultaneously three conditions:
- conditions are offered exclusively by one party;
- a standard contract is proposed in the form of a form, which is filled in by the second party;
- the other party has the right only to refuse the proposed conditions or to agree with them.
If there has been a discussion and as a result, the original text has been changed, even one paragraph of it, it is no longer possible to say that the transaction was concluded on the terms of an accession agreement.
How to prove that the transaction was concluded in the usual way? The study of similar agreements concluded by the party to the case. And if there are discrepancies, then the provisions of Art. 428 Civil Code.
Conclusion options
A deal can be concluded in two ways:
- Signs a full-fledged document with details by filling in the form;
- a questionnaire is filled out or documents are submitted, which confirms acceptance of the conditions.
The agreement may not have the usual form, and the fact of conclusion is confirmed by correspondence of the parties and receipt of goods and services. In this regard, Art. 428 of the Civil Code does not establish any other procedure for concluding transactions.
The essence of the problem
The merger agreement is used by merchants because of the comfort of applying this rule. An opportunity is given to offer a potential partner a deal on their own terms. In relations with numerous consumers, this is a fairly convenient option. There is no need to waste energy concluding each contract. An example is insurance companies, banks offering a transaction on standard terms, entrepreneurs working under a contract.
The right to offer a deal of this kind creates the basis for abuse. If the potential participant in the transaction is a commercial organization, he will either refuse to conclude such an agreement or challenge the legality of his provisions in court, then with ordinary citizens this probability is reduced by several times.
Features of termination
Art. 428 of the Civil Code of the Russian Federation gives additional privileges to the second party regarding changes or termination of the contract. What are they?
In a normal situation, a change in a transaction unilaterally, refusal of it is impossible, unless otherwise provided by law or by the agreement itself. Termination or amendment of the agreement is possible subject to mutual agreement. Termination through the court is executed if there has been a serious violation on the part of the counterparty or it makes the contract valid in the future meaningless.
The party that developed the contract has the right to apply to the court, citing these reasons. The second party to the transaction is given preferences that simplify the termination of the transaction.
The action on clauses on the invalidity of the contract, on recognition of it as not concluded due to the absence of all essential conditions or their inaccurate statement is not canceled.
What are the preferences of the second side
Art. 428 of the Civil Code of the Russian Federation with commentary identifies several additional reasons giving the other party the right to request the termination of the contract:
- a party, having acceded to the contract, is deprived of the rights that the parties to such agreements usually have;
- the terms of the transaction limit or completely exclude the liability of the other party;
- the conditions for the second party are burdensome, and she could refuse them if she had the opportunity to discuss them with the counterparty.
The same grounds give the right to amend the contract in court, if the second party refuses to mutually amend the terms of the transaction.
Case studies
Now we will consider some examples illustrating the discussed provisions.
The deprivation of the rights enjoyed by all who have concluded such agreements is considered, for example, the requirement of the buyer's obligation to identify all the defects of the goods only at the stage of acceptance. The time period for submitting a claim for goods or services may be reduced in comparison with the norms of the law.
A decrease in the measure of responsibility takes place in the case of different formulas for calculating penalties or fines. And for the same violations, different sanctions are imposed on the parties.
A burdensome condition is the bank retaining the right to change the interest rate, tariffs for the provision of services unilaterally. Banks often prescribe in contracts that information about a change is considered to be posting information in a bank branch or on its website without the usual notification of a client by mail or by other means of communication. A client who misses the deadline for filing an objection is deemed to have agreed to the changes.
Amendments to the law
In the new edition of Art. 428 of the Civil Code of the Russian Federation contains the following provisions.
Firstly, the second party has the right to use additional grounds not only to terminate the agreement, but also to amend it.
If the court agrees with the claim for amendment or termination of the contract, then it shall be considered as amended or terminated, respectively, from the date of signing or conclusion. This is only possible for transactions deemed invalid.
Earlier, the law established the rule that the lawsuit should be denied if the second party should have known or knew about burdensome conditions or restrictions before signing the deal.
Interestingly, the preferences, in terms of termination described above, apply to other agreements that are not agreements of accession. The rule is valid if the second party did not have negotiation opportunities. We are talking about ordinary citizens, about cases with monopolists, etc.