The grounds and rules for terminating transactions and changing their conditions are regulated by Art. 450, 452 of the Civil Code of the Russian Federation. In most cases, termination of legal relations or adjustment of the terms of the transaction are carried out by agreement of the participants.
Change and termination of contracts: Art. 452 of the Civil Code
An agreement on the termination of legal relations or on the adjustment of the terms of the transaction should be made in the same form in which the contract was concluded. The corresponding provision is secured by paragraph 1 of Art. 452 of the Civil Code of the Russian Federation. This rule shall apply, unless otherwise provided by legislative or other regulatory acts, customs or contract.
Under paragraph 2 of Art. 452 of the Civil Code of the Russian Federation, a request to a court to terminate legal relations or adjust the terms of a transaction can be made only after the other party refuses to offer it. A person may also file a claim if another participant does not respond to the proposal within the time period specified in it, the contract or the law, and if there is no corresponding instruction, within 30 days.
Art. 452 of the Civil Code of the Russian Federation with comments
The rule on the form for concluding an agreement to terminate a transaction is optional. This means that the terms of the transaction may provide for a different procedure. For example, the parties may establish that all amendments to the contract must be notarized. Participants are also entitled to identify some corrections orally.
Agreement, according to Art. 452 of the Civil Code of the Russian Federation, may be committed in the manner prescribed by law or by customs of circulation. For example, the consumer has the right to refuse to comply with the terms of the purchase and sale transaction, when the seller refuses to transfer the purchased goods to him, has not provided documents or accessories related to the item, has issued a smaller quantity of products than provided for by the transaction, or has not complied with the acquirer's requirement for understaffing or transferred low-quality product.
Related actions
They should be understood as actions that express directly the intentions of the person. In some cases, they can be regarded as a form of agreement on the adjustment of the terms of the transaction or its termination. This provision is also confirmed by the Presidium of the Supreme Arbitration Court in an information letter No. 14 of 1997. The Court clarified that specific actions in certain circumstances can be regarded as consent to amend the terms of a contract concluded in writing. For example, non-payment by the purchaser of goods in a timely manner will be recognized as a refusal to perform if the transaction involves an advance payment.
Consequential actions may also take place within the framework of legal relations related to the management of apartment buildings. Article 162 of the LCD stipulates that the agreement on the management of the MKD be executed in writing. Moreover, he must conclude with each owner separately on the conditions established by the general meeting. At the same time, the management company must begin to fulfill the terms of the agreement, regardless of whether it is concluded with all or only some owners. On the part of the organization, there will be contingent action. The organization in the interests of owners of premises in the MKD began to provide services.
Controversial issues
Relations within the framework of which the relevant actions are performed may qualify as contractual regardless of the fact of conclusion of the contract. This means that if a dispute arises, the applicant cannot invoke the absence of a written agreement.
For example, in the practice of courts, there are cases when the requirements of energy supplying enterprises to recover debts from the subscribers for the supplied energy in case of an agreement not concluded are recognized as legitimate. The reference to the lack of agreement by the courts is rejected. The authorities explain their decisions by saying that the actual energy consumption, in accordance with the provisions of paragraph 3 of paragraph 438 of the Civil Code, is regarded as acceptance of the offer (acceptance of the offer). If the residential buildings are connected to the main and intra-quarter networks of the applicant, are equipped with energy-receiving equipment, a contractual relationship develops between the parties.
Pre-trial Order
In paragraph 2 of Art. 452 of the Civil Code of the Russian Federation, cases are fixed where a party can send a claim to the court to terminate legal relations or change the terms of the transaction. Such an action is allowed if the parties failed to resolve the conflict in a complaints procedure.
When implementing the provisions of Article 452 of the Civil Code of the Russian Federation, the applicant must provide the court with documents confirming the measures taken by him. This may be a written refusal of the party to the transaction, a notice of receipt of the proposal, etc.
The timing
Based on the provisions of Article 452 of the Civil Code of the Russian Federation, the time to receive a response to a proposal to terminate or amend a contract can be established directly in the appeal itself or in the legislation. If there is no such indication in the proposal or in the norms, it is assumed that the period is 30 days. After this period, it is believed that the party has taken all necessary measures for pre-trial settlement.
Important point
It should be emphasized that the courts require evidence that the party has taken all appropriate actions aimed at the pre-trial settlement, and not only confirmation of the fact of proper notification of the participant. This provision is also confirmed by the explanations of the Plenum of the Armed Forces. In a decision No. 6 of 1996, the Court indicated that disputes about termination or amendment of contracts can be examined on the merits only if the plaintiff submits evidence confirming that he has committed actions aimed at resolving the dispute and provided for in paragraph 2 of Article 452.
So, for example, in one of the cases, the lessor was denied satisfaction of the requirements for early termination of the contract. The court indicated that the applicant had not committed any actions as part of the pre-trial settlement. In accordance with the provisions of paragraph 2 of article 452 and part 3 of 619 of the Civil Code, the landlord must apply to the court to warn the tenant about the need to fulfill the obligation within a reasonable time and offer to terminate the transaction. However, this notice must be in writing. The plaintiff must send it in such a way that it will have reliable evidence of a warning by the defendant.
If it is established that the applicant has sent the other party only a proposal to terminate the legal relationship, without indicating the need to fulfill the obligations undertaken, the request to terminate the contract in court may not be satisfied. To make a decision in favor of the plaintiff, he must provide evidence of a warning to the defendant. Only in this case the pre-trial order will be recognized as observed.
Conclusion
Quite often, within the framework of civil turnover, situations arise when it is necessary to amend or terminate the contract. In most of these cases, the law provides for pre-trial settlement of the conflict. Its observance is mandatory for the parties, even if the relevant provisions are not fixed by the contract.
Proceedings in court are allowed only if the plaintiff provides evidence of the fact of the commission of actions for pre-trial settlement. These include not only the offer to terminate or amend the agreement, but also a warning about the need for the other party to fulfill its obligations.