How to draw up a contract is a topic that affects many citizens. A small example is the purchase of a car, more serious is the purchase of real estate. The law expressly refers to freedom in drafting clauses of the agreement. At the same time, there are nuances that affect the degree of legitimacy of the transaction.
general information
A contract is an agreement between at least two persons. Both parties have both rights and obligations. Some transactions (few of them) provide for the existence of rights only on one side.
The clauses of the agreement are aimed at regulating relations between partners. There is an opinion among lawyers that, first of all, a document is drawn up in case of litigation. How to draw up a contract?
The activities of the drafters of the contract are regulated by the norms of the Civil Code and other laws, in particular, on procurement for state or municipal needs.
In the field of housing and communal services, a whole list of regulatory acts has been adopted that describe the procedure for concluding a contract and its conditions. And there are many similar examples. In fact, in all spheres of life there is a mass of regulatory documents affecting the process of concluding an agreement and its conditions.
Conclusion procedure
How to draw up a contract is a question that does not affect all participants in transactions. Why? The Civil Code provides for the right of one of the parties to send a second finished draft. The second party has the right to agree with him by signing it, or send his comments with the document.
In some cases, the agreement is signed on the basis of the standard form, and the procedure is strictly regulated by law. For example, this applies to housing and communal services. And the contractor is not entitled to refuse the agreement. The client is left to agree with the proposed conditions. If they differ from the standard conditions, then the dispute is resolved in the future on the basis of a model contract.
Another option - the transaction is concluded after a decision by the authority or a special procedure (competitive selection, auction, etc.).
If the signing of the contract is not necessary at all by virtue of a law or other regulatory document, you can ignore the proposal.
If the conclusion of the contract is important for both parties and not necessary, then the procedure is delayed - until the negotiators achieve a result that would suit both and not violate the law.
How long does the conclusion process take?
The term for signing a contract cannot last indefinitely. In the majority of cases there are no restrictions in the legislation. In others, for example, if we touch on the sphere of public procurement, conducting auctions, they exist. For example, after the end of the auction, the proposed project must be signed by the winner no later than 10 days. Winners who have received a state or municipal contract are required to act according to the same scheme.
A similar situation occurs in the housing and utilities sector, where the process of negotiating conditions and signing a document is formulated in sufficient detail.
The period of time during which a signature is placed on a document can be specified both in law and in by-laws.
In addition, the Civil Code recently included rules on unfair negotiation. Their essence lies in the possibility of demanding compensation for their delay, as well as participation in them without the intention of reaching an agreement.
The terms of signing the contract can be specified in the preliminary contract.
In what form is the agreement signed
The usual form is paperwork. But gradually, participants in the business turn to the use of electronic technologies. How to draw up a contract in this case? The conditions are the same, the only feature is the use of digital signature. Only in this case, electronic documents fully acquire legal significance.
If the process is executed on paper, then two copies are signed and stamped.
Sometimes it is considered sufficient to sign on one side of the form or questionnaire, which indicates a minimum of information and contains a link to the rules of the organization (for example, insurance). This is practiced in some credit organizations, which is not entirely legal.
A transaction may be concluded by exchanging several documents without drawing up a full agreement between organizations. The evidence of the conclusion is the correspondence between the parties.
The system of contracts paid from the budgets obliges their participants to reflect all the information about the transaction and changes made to it. At the same time, the electronic platform involves the execution of documents on paper with signatures and seals.
Standard contracts
The activities of entrepreneurs and commercial organizations in some areas are regulated in sufficient detail. This also applies to relations with government bodies or organizations funded from the budget.
The agreements here are based on model contracts. What does it mean? The authority responsible for regulation in a particular area decides on the content of a transaction of a certain type. For example, there is a government decree on concluding a contract for state or municipal procurement. The same act adopted a model contract.
The situation is similar in the field of housing and communal services and other areas. A ready-made agreement is approved, in which it remains to enter information about the participants and other information (for example, the price of the contract).
Deviation from the conditions set forth in the mandatory form is undesirable, and is perceived as a violation. The legislative act may speak of the invalidity of going beyond the framework of the existing form and its conditions.
Transaction Points
The number of points the agreement consists of, how detailed they are, is determined by the needs of the parties. If the application of the required form is required, the choice is practically absent. However, the main sections of the contract are still designated:
- name of the contract (contract, sale, etc.);
- date and place of signing;
- preamble (which persons act as which party);
- subject of agreement;
- rights and obligations of parties to the agreement (a separate section may be allocated for each participant);
- time period for the performance of the contract;
- contract price and settlement procedure between the parties;
- liability clauses;
- addition to the provisions of the law on force majeure;
- conditions for amendments and early termination of the transaction;
- other conditions binding by law or by agreement of the parties;
- addresses and details.
Relation of law and conditions
The law provides for freedom of parties to the agreement. If a clause is not specified, legislation will fill in the gap. Direct references are made to the Civil Code, how this or that condition is regulated, if the parties did not formulate their own at the time of signing.
Set of conditions
The law distinguishes two groups of clauses of the agreement:
- essential conditions;
- optional conditions.
The first group includes items that are required. Their absence or insufficiently clear formulations lead to the recognition of the transaction as not concluded - which is not significant from a legal point of view. For example, such a condition is the subject of the transaction. Where are they formulated? In laws and government regulations.
Without the second group of conditions, the agreement is not formally recognized as not concluded, but its implementation, understanding of the rights and obligations of the parties will raise questions.
Transaction price
The cost of goods or services rendered is expressed in rubles. If settlements are made in foreign currency, the equivalent amount in rubles is specified in the contract.
The price depends, first of all, on the agreements of the participants. In some cases, the state affects the transaction amount - indirectly or directly.
For example, the sale of property cannot be carried out otherwise than on market conditions. Some exceptions are provided for by land law. Violation entails a number of negative consequences, in particular, in the form of additional taxes and mandatory payments in favor of the state treasury.
The firm price of a contract is set in state or municipal contracts, it only changes downward.
Another form of influence on prices is the setting of tariffs for the volumes of services or goods consumed (in the housing and communal services sector).
Organizing Text
One of the points of how to draw up a contract is the correct division of the text of the contract into sections, paragraphs and paragraphs. It should be logical and provide a comfortable reading. Part of the information, in particular of a technical nature, can be made out in the form of annexes under numbers (acts, application forms, technical documentation, etc.).
In what order to arrange the terms of the contract, it remains at the discretion of the party, with the exception of prisoners on the basis of the standard form.
So, for example, a description of the rights and obligations of both parties is placed in one section or allocated in a section on each side, or in four sections (two for each participant).
The numbering of articles or sections is also at the discretion of the parties to the agreement. A similar approach is characteristic when compiling lengthy documents tens of pages long.
Classification of contracts
What is there to tell about the main types of contracts? The basic division is provided for by the civil code:
- purchase and sale, exchange and gift of property;
- property rental;
- housing rent;
- gratuitous use;
- varieties of the contract;
- carrying out research and design work;
- transport services;
- loan, credit and settlement obligations;
- storage;
- insurance;
- commission and action without commission;
- agreement on commission, agency services;
- trust management of real estate;
- concession agreement ;
- simple partnership agreement.
At the same time, other laws and even by-laws provide for the conclusion of transactions not directly registered in the Civil Code among the main practiced obligations. A number of contracts, for example, are mandatory for conclusion in the field of electric power. The contract for the supply of goods takes on completely different forms.
Delivery Features
An agreement is concluded for the purchase of goods not for own consumption, for business purposes or under state and municipal contracts.
The contract for the supply of goods is carried out on schedule or at a time. What sections can be prescribed in the agreement?
- subject of agreement;
- the price of the product;
- schedules or delivery times;
- processing payments;
- quality of goods;
- packaging, labeling;
- order of shipment, reception;
- responsibility;
- other conditions;
- details of the parties.
A sample contract can be built in a different way. It is a mistake to sign the proposed contract without prior study or careful study. Then his conditions can suddenly be burdensome.
Compilation Recommendations
How to write a contract? Lawyers usually take a sample contract, proposed by a second party or found by himself, and process it to the needs of a particular situation.
The norms of laws and by-laws are taken into account, in particular, where agreements are concluded on the basis of standard forms.
Another source of knowledge about the correct preparation of the document is judicial practice; it is advisable to investigate the approaches that have developed in your region.
Instead of a conclusion
The rules for drafting contracts are a whole system of approaches affecting both their content and the procedure for registration and conclusion. The difficulty lies in developing the terms of the contract in such a way as to balance the interests of the parties. The law, the judicial practice, and the boundaries of permitted behavior play their roles.