The Russian Civil Code allows various business entities to conclude or offer accession agreements to their consumers. These contracts are characterized by a number of features, from the point of view of the formation of their structure, content, as well as application in various areas of legal relations. Agreement of accession - typical of commercial relations. However, it should be compiled taking into account the norms of the Civil Code of the Russian Federation, and also, which is very important, facts from law enforcement practice. What are the features of the accession agreements , in terms of their comparison with other types of contracts under the Civil Code of the Russian Federation? In what areas of business is it most often used?
What is the essence of the contract of accession?
In accordance with the provisions of Article 428 of the Civil Code of the Russian Federation, an accession agreement is an agreement between business entities, the terms of which are determined by one of them using forms or some standardized forms, while his partner can join the relevant agreement without offering any conditions on his part.
The party to the agreement that joins the contract may require its termination or adjustment if its provisions deprive the given business entity of the rights that are usual for agreements of this type, or exclude the partner’s liability for violation of certain obligations.
What might an accession agreement look like? A sample of this document is below in the picture.
In this case, an example of a contract for the provision of air transportation services is considered.
There are certain subtleties in the interpretation of the agreement in question. The term “contract of accession” can be interpreted in different ways. In principle, in all cases it is in the jurisdiction of the Civil Code. But the varieties of this agreement can be quite a lot.
There is, in particular, a contract for connection to electric networks - as a contract between an electricity supplier and its consumer (usually in the status of a legal entity). But there are a number of common features for all contracts of the corresponding type. We will study them.
Signs of an accession agreement
How can it be determined that an agreement should be classified as the agreement in question?
A prerequisite under which the agreement will be classified as an accession agreement is its compliance with the criteria specified in the provisions of Art. 428 of the Civil Code of the Russian Federation.
So, if an enterprise supplying goods or providing services offers its partners to conclude an agreement, which does not imply any adjustments, then the first criterion for classifying the contract as being considered is met. In many cases, the signing of the relevant agreement involves familiarization with the form of the contract of accession, which only needs to be entered the necessary identification information about the subject of legal relations.
Another important criterion is the presence of internal corporate standards for the preparation of the contracts in question in the company's management system, in accordance with which the partners sign these documents. One of the possible criteria for a company to have such standards is the content of such agreements, which are proposed to be concluded by other partners. If one company finds out that its supplier has signed a merger agreement on other conditions, then in case of difficulties in the course of legal relations, it will be able to count on the termination of the contract as violating its rights.
The accession contract can be presented in a fairly wide range of varieties. But all contracts of the corresponding type share a number of common features. We summarize them again:
- it is permissible to determine the terms of the transaction by only one of its participants;
- standardization or application of forms is required when concluding the contracts in question;
- it is permissible to consider the contract concluded only if it is signed by both parties to the transaction.
The procedure for concluding accession contracts
Based on the features of legal regulation of the status of accession contracts, it is possible to determine a number of key nuances that characterize the procedure for their conclusion.
So, an accession agreement is a document that:
- Signed by standards, often using forms
- does not violate the rights of the party that agrees to sign the corresponding document;
- involves the complete adoption by a third-party business entity of the conditions originally proposed by the company that issued the contract and published it (or sent it to the partner privately).
Thus, the procedure for its conclusion implies that the parties follow the legal relationship with the noted criteria in the preparation and signing of the document.
Note that in the course of law enforcement practice, the considered criteria can be supplemented.
As we already know, a consumer of goods and services sold under a merger agreement may require adjustment or cancellation of the agreement if his rights are violated. In some cases, a transaction is declared invalid by virtue of the provisions of the law. This is possible if, for example, the contract does not spell out the obligations of the supplier to the consumer. In this sense, the procedure for concluding an accession contract is determined on the basis of the general requirements of Art. 428 of the Civil Code of the Russian Federation.
Accession history
The accession agreement is an agreement quite new for the legal system of the Russian Federation. It was enshrined in the Civil Code in 1994. But in the history of world jurisprudence, facts are known about the application of treaties of accession in the 19th century. This was due, according to experts, with the formation of a separate category of law - formal.
The largest businesses of those years began to practice drafting contracts on the basis of standardized forms, using standard conditions of agreements between various business entities.
The appearance of these contracts was to some extent due to the active growth of the world economy and an increase in the intensity of economic relations between various enterprises. Business entities considered it necessary to reduce the time for drawing up agreements with partners in order to spend it on discussing business issues.
What is noteworthy, the legal form in question (accession agreement) actually had compliance in Soviet law. So, between many enterprises of the USSR, agreements were concluded with the use of standard forms in order to reduce time and reduce the cost of other resources in the preparation of such documents.
After the establishment of capitalist relations in Russia, a need arose for a significant change in civil law governing standard transactions. So there were norms of the Civil Code of the Russian Federation governing the signing of accession agreements.
Who most often signs accession agreements?
Which firms most often conclude the agreements in question? The legislation of the Russian Federation does not spell out criteria on which business entities should be guided in this case. In practice, accession agreements are most often concluded between suppliers of standard, bulk goods, services and works, and their consumers in the status of individuals. This is due to the fact that citizens usually use the corresponding goods and services at regular intervals, in which there is no particular reason to put forward to the seller their terms for the supply of a product or service.
Distribution agreements are widespread in the banking sector, in tourism, and insurance. The use of these agreements in the electric power industry is quite popular (but legal relations in this area are characterized by a number of features - we will consider them later in the article).
Accession and public agreements
What is the difference between a public contract and an accession contract? The relevant agreements have quite a lot in common. The fact is that both types of contract significantly limit the principle of freedom of citizen and organization from the point of view of participation in determining the terms of the contract. The public contract and the contract of accession are often concluded in the same areas - in mass sales of goods and services, when sending agreements to potential customers. But the difference between the respective contracts is very noticeable.
First of all, it is worth noting that a public contract is, in fact, a mechanism for determining the content of an agreement. In turn, the contract of accession is a legal mechanism for signing a document. Another difference between the sources in question is that the contract of accession is an agreement drawn up without taking into account the legal status of counterparties. In turn, a public contract should be concluded by a commercial company performing some public functions - their list is fixed in the Civil Code of the Russian Federation.
The accession contract does not imply its automatic conclusion if only the consumer of goods or services puts his signature under it. In turn, a public contract in many cases is considered as originally signed by the supplier of products or services. Therefore, if the consumer signs it, the agreement is considered concluded. It is assumed that the company, which proposed to its client to conclude a public contract, up to this point will work out the terms of the contract in sufficient detail. Subsequently, abandoning them will be problematic, and in this sense, the supplier under the relevant agreement may be less protected from a legal point of view.
One way or another, the contracts in question have a lot in common. The main criterion that unites them is that the determination of conditions within the framework of the agreements in question is always carried out by the supplier of goods and services. That is, it is legally incorrect to admit that the public contract is preliminary, the accession is similar. The consumer should not take part in the formation of conditions for the relevant contracts.
Challenging an accession agreement
So, we examined what constitutes an accession agreement, what are its features. It will also be useful to study what the economic entities may have grounds for challenging, and possibly terminating the relevant contract. The prospects for solving these problems may depend, first of all, on the purpose of joining the business entity to the agreement in question.
So, if a company wants to acquire certain resources under an agreement for the purpose of carrying out entrepreneurial activity - for example, by purchasing gas or electricity under an accession contract, then it can, in principle, challenge the contract, citing insufficient detail. Which, in turn, can be problematic to implement within the framework of a form or an internal corporate standard by which the agreements under consideration are drawn up.
If the contract - for connection to networks, highways, in one way or another violates the rights of an economic entity, then it can also be challenged, since this procedure is provided for by the provisions of the Civil Code of the Russian Federation. So, such cases are possible if, for example, the contract stipulates the conditions under which the purchaser of the goods or raw materials must ensure the quality of their acceptance - the corresponding clause should not be present in such an agreement.
The second option, in which the contract of accession of the Civil Code of the Russian Federation allows us to consider illegitimate, is the absence in the text of the agreement of a sufficient list of obligations of any of the parties. That is - comparable to her rights, which are established by the contract.
Another option in which the contract can be recognized illegitimate is the presence in it of conditions that significantly burden any of the parties. For example - the existence of a clause in the contract on the possibility of reviewing certain conditions unilaterally by any of the business entities that enter into legal relations enshrined in the contract of accession.
We noted above that the contract of accession is, in particular, the contract under which electricity is supplied. This type of agreement is specific. We will study it.
Electricity Supply Contracts: Nuances
The peculiarity of the contract in question is that, on the one hand, it can in principle be drawn up in accordance with the criteria of Art. 428 of the Tax Code of the Russian Federation, on the other hand, it can hardly be formed without making changes to the proposed agreement, which the parties to the legal relationship have been able to agree on.
The fact is that the majority of electricity suppliers in Russia are natural monopolies that conduct commercial activities with virtually no competition. Therefore, a potential user of electricity under a contract practically cannot choose a supplier on the market from several in order to find optimal conditions for using the corresponding resources for themselves. At the same time, the merger agreement is an agreement assuming that in cases where a potential buyer is dissatisfied with the proposed conditions, he has the opportunity to choose an alternative option on the market. Which, speaking of the Russian market, is in many cases absent. In this case, the consumer has the only alternative - to generate electricity on their own, which is not always technically possible and also problematic from the point of view of legal mechanisms (a license and other permits may be required, which are drawn up with great difficulty).
Therefore, in practice, connection contracts proposed by electricity suppliers are often adjusted, and therefore, strictly speaking, do not fully comply with the provisions of Art. 428 of the Civil Code of the Russian Federation. In turn, the use of standard provisions in the contract of accession between the supplier and its consumers is contrary to the norms of the Civil Code of the Russian Federation, which regulates the preparation of energy supply contracts. In particular, in accordance with these provisions, the volume, quality, mode of supply of energy, as well as the payment procedure for it, should not be established unilaterally, but by agreement of the parties. While - and we have determined it above, the contract of accession of the Civil Code of the Russian Federation prescribes to make it so that the conditions proposed by one side are not consistent with the other.
Given the rather contradictory rules of law governing the conclusion of contracts for the connection of citizens and organizations with electricity suppliers, law enforcement practice shows that such agreements:
- should, from the point of view of the provisions of the Civil Code of the Russian Federation, be drawn up taking into account the views of both sides of the legal relationship - the supplier and the consumer, and from this point of view, they do not meet the criteria of Art. 428 of the Civil Code of the Russian Federation;
- nevertheless, they are compiled on monopoly terms of the supplier, and therefore, in fact, comply with the provisions of Art. 428 of the Civil Code of the Russian Federation and are, therefore, from a legal point of view, accession agreements.
Therefore, in practice, users of electricity, concluding a contract with a supplier on the terms of connection, in many cases get the opportunity to challenge the conditions provided for by the relevant agreement in court.
Having considered how the conclusion of the contract of accession in legal relations is carried out within the framework of electricity supplies, we will study some of the features of signing these agreements in other areas of the economy. Among the segments in which these contracts are distributed are insurance.
Insurance Contracts: Nuances
These contracts in many cases are concluded on the terms that are proposed unilaterally by the insurer. Note that this mechanism is also provided for by the Civil Code. An accession agreement is an agreement, as we already know, which is formed unilaterally by the supplier of certain goods and services, and this agreement is satisfied by the agreements in question - between the insurer and its clients.
At the same time, the parties to legal relations in the insurance market may also agree on the adjustment of certain provisions of the contract. In this case, it will not meet the criteria for recognition as an accession contract - in accordance with the provisions of Art. 428 of the Civil Code of the Russian Federation.
Summary
So, we examined what constitutes an accession agreement, its differences from public agreements.This contract assumes that one side of the legal relationship - most often, it is the supplier of a product or service, will offer the conditions under which the agreement will be signed by another business entity, the consumer. Any changes proposed by the counterparty will predetermine a change in the status of the contract to normal - one that involves the establishment of conditions by both parties.
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