The legislator establishes the need to conclude contracts when making various types of transactions. It should be noted that each of their species has a certain list of essential conditions that are of particular importance for both parties. Next, we consider a list of those for various types of contracts, as well as features of the essential conditions.
General concept
The legislator fixes a certain list of clauses of the contract and contract, which must be present in its content on a mandatory basis. Their use should be made repeatedly. It is on the basis of the type of conditions under consideration that court cases are reviewed that provide for the settlement of disputes.
It should be noted that the legislator does not contain in the provisions of their normative acts an exact definition of what the essential terms of the contract are. According to FZ-44, this is simply a list of conditions that must be present in the contract on a mandatory basis. Moreover, the normative act states that without such provisions in the contract, the document will be recognized as inappropriate to the accepted form, that is, invalid.
The concept under consideration is also disclosed in the provisions of the Civil Code of the Russian Federation. The content of his article 432 states that such is all the information in the body of the contract that relates to the conditions of its subject, as well as all the circumstances by which an agreement should be reached between the parties in the future.
Normative regulation
It should be noted that the regulatory provisions related to the regulation of the concept of essential conditions are broadly presented in the norms contained in FZ-44. This act was adopted in 2013.
Moreover, both the concept itself and some features, as well as the types of conditions under consideration, are considered in the provisions of the Civil Code of the Russian Federation, which regulates the procedure for concluding agreements of various types.
Item Condition
One of the essential essential conditions of the contract for FZ-44 is information regarding its main subject. It should be noted that in the preparation of various types of contracts, the essential conditions will not recognize the same information. So, for example, in the agreement on the sale of any property, the subject (and at the same time an essential condition) will be the goods referred to in the content of the agreement, and if a contract is concluded, then all types of work provided for in agreement.
The importance of this condition lies in the fact that in the absence of the subject matter specified in the contract with respect to which it is concluded, there is no exact definition of the contractual relationship that will arise after its signing.
General list of essential conditions
In their interpretation, many legal practitioners define a list of what constitutes the essential terms of the contract. According to FZ-44, you can determine a specific list of information that must be provided for by the contract. As for the interpretations provided by lawyers, many of them talk about the features and the correctness of their application in practice.
So, the essential terms of the contract under FZ-44 are information that relates to the subject of the contract, cost, parties, location, terms, responsibility, etc.Moreover, for each type of contract concluded a specific list of special conditions that are necessary is provided.
Further, we consider some essential conditions for the execution of contracts (according to Federal Law-44) of various types.
State contract
The essential conditions of the state contract (FZ-44) are data regarding the price, order and period of payment for the goods or services ordered, as well as the procedure for their reception.
In the event that a state contract is concluded for the execution of work worth more than 1 billion rubles, then in a number of essential conditions must be indicated data on all contractors who will be directly involved in its execution. If it is necessary to attract subcontractors, this condition should also be indicated in the content of the contract. In the event that they were not involved, although there was such a need, liability may be imposed on the guilty person, the amount of which must also be indicated in the content of the contract.
In accordance with FZ-44, the essential conditions of the state contract are changed solely on the basis of valid reasons and only by mutual agreement of each issue separately.
A feature of the state contract is that any of the parties has the full right to refuse to fulfill obligations unilaterally. The procedure for concluding certain types of state contracts is provided for by special regulatory acts in force within the Russian Federation.
Energy Service Contract
The procedure for concluding energy service contracts has some features. This procedure is regulated not only by the provisions presented in FZ-44, but also by a separate regulatory act.
A feature of the energy service contract is that this type of agreement can only be concluded separately from other agreements (delivery, sale of goods, resources, etc.). Its content should fully comply with the provisions of certain regulations governing the pricing policy for fuel oil, electricity, coal and other fuel cells.
The main conditions of this agreement are indicators such as price, volume of products provided, percentage of savings, customer and contractor obligations, as well as the responsibility of the parties in case of violation of the agreed conditions.
Service agreement
It should be noted that a striking example of this type of contract is a contract, the subject of which is the provision of certain communication services. As a rule, the main purpose of such an agreement is to use communications in order to ensure the security of the state, its defense, as well as the rule of law.
In accordance with the provisions of FZ-44, the essential conditions of a municipal contract of this type are the price, data of the parties to the agreement (mobile operator and state), the subject of the agreement, as well as the main obligations of the parties and the procedure for the provision of services and their reception.
This type of contract can be concluded only if there is tender documentation, as well as a notice indicating the preliminary holding of quotations. As for the party to the contractor, the telecom operator, which acts in its role, has no right to refuse to provide services.
About public procurement
At the state level, contracts are often concluded for public procurement of various goods. So, this applies to orders for goods necessary to ensure proper defense of the country and the acquisition of material assets for the budget reserve.
As for the main essential condition of this type of contract - its subject matter, then only those services, goods, and also objects that are indicated among those necessary for making a state order can act as such. It should be noted that the seller of these goods does not have the right to refuse to conclude a transaction. As for the second main condition of this type of contract - the price, then it should be set exclusively in the amounts that are allowed by law for a specific group of goods or services.
As for contracts related to the supply of material values, such suppliers who occupy a dominant position in the national market cannot refuse to conclude a contract on this subject.
Procurement Based on Government Decision
According to FZ-44, the essential terms of the contract are information regarding the parties, subject, price, volumes, terms, obligations, rights and responsibilities of the parties to the agreement. It should be noted that, subject to the conclusion of contracts on the basis of individual government decisions, the main values of these conditions are indicated by the state body itself. Practice shows that under such conditions, the state side provides for itself a maximum of both economic and technological advantages. Within the framework of such an agreement, certain additional advantages may be determined that do not always relate directly to the subject of the contract.
As for the procurement procedure itself, it is also determined by the government.
Changes to the material terms of the contract (according to Federal Law-44)
Is it possible to change the basic conditions of a previously concluded agreement between the parties? Yes, such a procedure is possible, but only with respect to some data. So, in accordance with the provisions of FZ-44, a change in the essential terms of the contract is possible if it is necessary to reduce the cost indicators, but without changing the quantity of the goods.
In the event that a decrease in the volume of work, the quantity of goods or the price is required, but not more than by 10%, the introduction of such changes is also permitted by the legislator.
Is it possible to change the essential terms of the contract (according to FZ-44) if the reason for this is the improvement of any characteristics of the goods representing the subject of the contract? Yes, it is possible, but only by prior agreement of the parties.
Special attention should be paid to the fact that when concluding a contract for the treatment of a citizen of the Russian Federation outside its territorial limits, some changes can also be made. These may relate to a review of the list of medical services. The main reason for this is a change in the patient’s state of health, requiring a review of the course previously prescribed and prescribed by the contract.
Moreover, a revision of the terms of the contract is also possible if there are good reasons for this. All circumstances are considered as such, upon the occurrence of which the previously agreed procedure for the fulfillment of contractual obligations seems unrealistic for at least one of the parties to the agreement.
A responsibility
Violation of the essential terms of the contract (according to FZ-44) entails administrative responsibility. All of its options should be provided for in one of the sections of the draft agreement. In the event that they were not indicated, the offender will be punished on the basis of the provisions presented in the Code of Administrative Offenses of the Russian Federation. The amount of fines for non-fulfillment of obligations may vary from 10 to 500 thousand rubles, depending on what type of violation was committed. Moreover, in addition to the fine, the violator may additionally be assigned the responsibility prescribed by the contract itself.
Complaint
Based on the provisions presented in FZ-44, the essential terms of the contract are certain structural components of the agreement that must be executed by the parties in an appropriate volume and form. In the event that one of the parties does not comply with the prescribed requirements, the second has the right to file a complaint in court to appeal against the action or inaction of the partner. In some cases, written complaints may be filed with local executive authorities or local governments. An important point in this is that the specified body should exercise direct control in the field of procurement or the provision of services.
It should be noted that the filing of such a complaint is possible in the period before the expiration of the contract.