The conclusion of the contract is required by law. The rule is an exception to the general provision on freedom of contract and is aimed at maintaining a balance of rights and interests between some counterparties.
Normative regulation
The main provisions are contained in Art. 445 of the Civil Code of the Russian Federation. The paragraphs of the article remained almost unchanged throughout the years after the adoption of the law. Changes are minor.
Laws or by-laws establish rules specifying cases of compulsory conclusion of an agreement. Most often, we are talking about housing and public utilities organizations, areas where the interests of consumer citizens are affected and natural monopolies operate.
However, Art. 445 of the Civil Code of the Russian Federation can not be called purely reference, its paragraphs are applied directly. How? They are included in the relevant regulations.
Agreement and its meaning
A contract in civil law is an agreement aimed at the emergence, amendment and termination of civil rights. His conclusion is usually voluntary, the terms are also determined by the parties. Sometimes the choice is limited by the rule of law.
The essence of any agreement is to regulate the relations of the parties for some time. A certain exception to these rules is transactions for the transfer of rights to property forever (purchase and sale, barter).
A contract in civil law is a set of clauses or conditions about rights and obligations and liability for their violation. Partially they are rewritten from legislative acts, partly are the result of agreements between the parties.
Some have been developed by the authorities, this applies to sample contracts, the parties are obliged to apply them directly without making significant changes.
The chosen design of the binding contract is due to the fact that the regulation of property relations between formally equal parties by administrative means is prohibited. Budget legislation considers managers and subordinates through the prism of subordination, and property relations between them constitute a certain exception that falls outside the scope of civil law.
Cases of binding agreement
Indication of cases of conclusion of the contract is mandatory directly contained in the law, and the text should not be ambiguous. For example, a similar provision applies to preliminary contracts. Any party involved in the transaction has the right to sue.
Almost always, the initiative to conclude an agreement comes from the party consuming the services or goods (public contracts are binding on the party providing the services or goods). Consumers are classified as less protected participants in the relationship. Circumstances can limit their choice, and avoiding the provision of a service or selling a product does them significant harm.
There are opposite situations. For example, the LCD obliges the owner to participate in the agreement on the maintenance of common property.
Public contracts are a general category, and the task of the court is to find out whether the dispute relates to these rules of law or not.
Civil Code or regulations referred to in laws may directly indicate cases of mandatory conclusion of contracts. Uncertainty is missing.
For example, it is mandatory to conclude an agreement with a person who has won the tender or the right to a contract for the supply of goods or the provision of services for state or municipal needs.
How to send a proposal
The person, in whose opinion the contract should be concluded, transfers the draft agreement to another person. The second person must send a response no later than 30 days later.
The project is a full-fledged document with details and should include all essential conditions. That is, it only remains to put signatures and seals on it so that the contract is considered concluded. If the letter only makes a proposal to conclude an agreement without full execution, then this is the beginning of the negotiation process, and the provisions of Art. 445 CC are not covered. This is one of the features of concluding a contract without fail.
Acceptor Actions
In the law, an offer means an offer to sign an agreement, and acceptance means an agreement to conclude a transaction. The second party is obliged:
- send a notice of acceptance;
- rejection of the offer;
- consent to sign an agreement on amended conditions.
From the moment of receiving the offer, 30 days are given for one or another answer.
Of interest is the latter option, with the other two everything is quite clear.
What is the dispute protocol
The response to the proposal to conclude an agreement on its terms is made out as follows. The document with the details of the sender is called the protocol of disagreement.
It, with reference to regulations, indicates the reasons why the wording of the provisions of the proposed document does not seem to meet their interests.
It also offers its own edition of items that do not suit them. Thus, the document conditionally consists of two main parts.
The details of the sending party are required to be sure that there is no doubt who the paper was sent from. Depending on the circumstances, the adjustments may be insignificant or, conversely, make up dozens of pages, depending on the volume of the document proposed.
Consequences of sending a disagreement protocol to the obligated person
If the draft agreement has been sent to the obligated party, the sender, after receiving the protocol or in the absence of a response at the specified time, has the right to apply to the court. The right of the obligated party to apply to the court with claims regarding the proposed project is not provided. One should not miss the opportunity to substantiate one’s position in an objection to a lawsuit.
Direction of the project by the obligated person
Here the situation is somewhat different. The party to which the project was sent also has the right to make its comments and suggestions and draw them up in the form of a protocol. The result is a rejection of proposals for amendments to the text of the contract.
If the party to whom the project was sent did not receive a response to the protocol of disagreements, or if it was sent a direct refusal to agree with the arguments of the protocol, it has the right to appeal to the court. 30 minutes are given for consideration of the protocol.
Going to court
A claim for concluding a contract shall be filed with the court at the location of the defendant. A location is the place where the legal office is located. In a dispute where the parties are entrepreneurs or organizations, the application is filed with the arbitral tribunal. Where the participant is a simple citizen, the materials are examined by the district court.
How is the lawsuit formulated? The circumstances of the case, the reason for the appeal, references to regulatory acts are described. The request part requires the obligation to conclude a contract (name of the contract), then the text of the contract is fully stated, and the date of its revision is indicated.
Together with the decision, the contract comes into force, from that moment it is considered concluded, and the plaintiff with the defendant has the obligation to fulfill it.
A responsibility
The person who evaded the conclusion of the contract without fail also lays down the obligation to compensate for the damage. Citizens have the right to demand compensation for moral damage. Losses can occur, for example, due to lack of electricity in the enterprise.People go to court if they were not able to get a product or service in another place, from another person, which caused significant inconvenience for them. The fact and amount of damage is proved by the party that has applied to the court.