The current legislation of Russia provides for the main provisions that must be observed when concluding a bilateral or multilateral transaction, in particular, such requirements are presented in Art. 432 of the Civil Code of the Russian Federation. An agreement concluded without observing the basic requirements may be declared invalid.
Essential conditions
In fact, in order for the contract to meet all the requirements of the law, its participants must reach an agreement on absolutely all its essential conditions. Part 1 of Art. 432 of the Civil Code of the Russian Federation, which also defines the concept of material conditions. So, the indispensable attributes of such a transaction will be considered the data on the subject of the contract, as well as those provisions that are considered essential regulatory documents or other legislative acts for transactions of a certain type. In addition, the legislator attributed to essential conditions all that which, at the request of a party to the contract, is required to be included in the document after a preliminary agreement. In other words, if one of the parties to the agreement considers that the parties involved are required to come to an agreement on any issue, then this issue will be an essential condition of the agreement.
What is an agreement?
Russian legislation provides that the agreement is the interaction of participants in a bilateral or multilateral transaction, which pursues the sole purpose of obtaining the same legal result. It is well known that a contract is a transaction concluded between two or more parties. Since this is so, it is necessary that all participants in this legal relationship agree on all necessary essential conditions. In the absence of such an agreement, the contract will undoubtedly be concluded. At the same time, agreement must be reached by all participants. For example, if more than two people participate in the transaction, then in the absence of coordination of at least one of them, the contract will not be valid.
Contract form
Also, the article under discussion determines that the contract must be concluded in the form required in certain cases. If this requirement is met, then, accordingly, the contract will be concluded. Conversely, if this requirement is not observed, the recognition of contractual legal relations may be invalid. That is, if the form established by law or the parties is not followed, the contract is not concluded. Therefore, if it is recognized as not concluded, then the consequences of invalid transactions occur .
For various contracts
As art. 432 of the Civil Code of the Russian Federation, the essential terms of the contract can be determined by law, so the question of what these terms are in a particular contract concluded between the parties should be considered from the perspective of the fact that depending on the type of contract it has its own specifics. So, if the parties intend to conclude a gift agreement, then this type of transaction will have its own essential conditions, which have already become traditional over time. These conditions will no longer be significant for other agreements, for example, for a savings account agreement or trust management agreement. Accordingly, the essential conditions for the contracts of delivery, order, cashless payments, storage, contract and others will vary.
In the event of such situations, an attentive study of special rules governing one or another civil legal relationship is required. For example, when concluding an agreement on non-cash payments, you need to be guided by the relevant chapter of the Civil Code, as well as the Regulation on non-cash payments. Another example is a custody agreement. You can find out what significant conditions he has by studying the Regulation on Depository Activities. Consequently, legislation for each type of agreement may establish its own material conditions that will not be such for other transactions involving at least two persons.
The nature of the contract
The civil law basis determines that the essential conditions, and, in other words, the necessary, must recognize the conditions that definitely express the nature of the contract concluded between the parties. That is why the failure to include at least one of these conditions in the agreement will have the force of an insurmountable obstacle, and the agreement reached between its participants will not be able to give their legal relations the qualities needed to turn these relations into obligations of a certain and required kind.
Terms of reference for approval
Part one of the considered norm of the Civil Code, as already mentioned above, indicates that in order to establish the presence or absence of essential conditions in any contract, it is necessary first of all to be guided by the requirements of the legislation expressed in regulatory acts, laws, codes that govern the assigned variety civil matters. However, in addition to this, it is also required to determine the presence in the concluded document of an indication of the subject of the contract. It must be specific and understandable to the participants. Of course, in addition to this, the contract should be considered from the point of view of determining by the parties the whole range of issues that are requested for inclusion in the document by any party, and, possibly, by all. All these issues must necessarily be agreed upon, and this is precisely the meaning of art. 432 of the Civil Code of the Russian Federation with comments on it.
Example
For the sample, it is possible to give an agreement, which is concluded with the aim of maintaining a register of owners of registered securities. To determine the essential conditions of this agreement should refer to the regulatory act governing this area. In the case under consideration, such an act will be the relevant Regulation approved by the Decree of the Federal Securities Commission No. 27 of October 2, 1997. Based on this Regulation, the parties must agree on the following conditions:
- guaranteeing the safety and confidentiality of information;
- the implementation of the register of all securities of the issuer;
- transfer on the basis of a request in hard copy of the issuer of a list of persons entitled to gain profit on securities;
- execution of all types of actions on time;
- transfer on the basis of a request in hard copy of the issuer a list of persons eligible for membership in the general meeting of shareholders;
- the provision of services predefined by the registry management agreement, based on the accounting method established by the registrar and the software used by it;
- ensuring the safety of the registry, covering all documents on the basis of which actions were performed in the registry.
If no instructions
There are situations when, by legislative acts, the essential conditions of a contract are not established. In such cases, the parties intending to reach an agreement will have to be guided by established features for such an agreement.
By tradition, it is required to achieve agreement between the parties on such conditions as the subject of the contract, its price and deadline. However, these key points may not apply to all bilateral and multilateral transactions. There are many different contracts, so the inclusion of a particular condition may not be required everywhere. So, for example, there is no need to agree on price conditions in gratuitous agreements (gratuitous use of property, gratuitous loan, etc.). On the other hand, any condition of the contract may be given the status of material at the insistence of any party.
Stage of conclusion of the contract
The article under consideration defines the stages at which the contract should be concluded. The legislation distinguishes at least two such stages. The first is a proposal sent to the counterparty to conclude a transaction. The second is the consent of this counterparty to conclude a contract and, accordingly, the adoption of this proposal. As can be seen from such a legal relationship scheme, at least one of the parties should take the initiative to apply to the other side with an appropriate proposal. If such an initiative does not take place, then the opponent will have nothing to accept. The invitation to conclude a transaction, which the initiator sent to his opponent, is called an offer an legislation, and its acceptance is an acceptance.
Referral methods
Part 2, paragraph 1 of article 432 of the Civil Code of the Russian Federation establishes the first method that a person can use to send an offer. It consists in the proposal to perform a certain action, and in return from the counterparty to obtain an obligation. Thus, transactions are made for the sale of goods, as well as for the provision of services. If the acceptor accepts the offer, then an obligation is imposed on him, according to which it is necessary to pay for the received.
The second method is defined by the same part, but paragraph 2 of Art. 432 of the Civil Code of the Russian Federation. Following the instructions of this paragraph, a person who wishes to send an offer to conclude an agreement needs to offer his counterparty any obligation. In exchange for this obligation, he has the right to demand from the other side to take some action or, on the contrary, to restrain from taking them. After the necessary action has been taken by one party, the other will be obliged to fulfill the obligation.
The last paragraph of Article 3 432 of the Civil Code of the Russian Federation establishes the way in which an offer of an obligation occurs in exchange for another obligation. Such an agreement will consist of unfulfilled obligations of all parties, and it is applied in cases where the offer is accepted by the party, which also gives an obligation.
Conclusion
Thus, to complete the contract in a rigorous manner, it is necessary to comply with all its essential conditions. Moreover, these conditions may be different, it all depends on the type of agreement being concluded, on the scope in which it is used. The offer and acceptance are integral elements for the conclusion of any transaction with the participation of at least two persons. These two elements create certain obligations for the parties committing them. Observing all legislative requirements, as well as coordinating among themselves all the details and moments, the parties thereby ensure the strength and validity of the contract.