The contract of commission referred to in Art. 971 of the Civil Code of the Russian Federation, as well as the commission, trust management and agency services, refers to agreements on the conduct of business of an external entity. The subject of this agreement is mediation. Next, we consider the latest changes to Art. 971 of the Civil Code of the Russian Federation and the features of its application.
The content of the norm
In accordance with the contract of assignment, one entity called an attorney accepts the obligation to carry out, at the expense of and on behalf of another entity (principal), the agreed legal actions. At the same time, obligations and rights in transactions concluded by the attorney will arise with the principal. These provisions are secured by paragraph 1 of Art. 971 of the Civil Code of the Russian Federation.
According to the second paragraph of the norm, at the conclusion of the contract, instructions of the person may stipulate the period during which the attorney is vested with authority.
Art. 971 of the Civil Code of the Russian Federation with comments
According to general rules, a contract of commission is recognized as gratuitous, unless otherwise provided by law, another legal document or the agreement itself. In the framework of entrepreneurial activity, a different presumption is envisaged - the contract is considered to be onerous by default.
By legal nature, the agreement governed by Article 971 of the Civil Code of the Russian Federation is:
- Consensual.
- Two way.
- Personally trusting.
Features of the subject composition
As established by paragraph one of Art. 971 of the Civil Code of the Russian Federation, one party to the contract is an attorney, and the other is a principal. Moreover, the legislation does not fix special requirements for participants in the transaction. They can be any civil law entities. At the same time, a condition has been established for a commercial representation that attorneys may be a commercial organization or an individual entrepreneur.
Transaction subject
An essential clause of the contract, in accordance with the provisions of Art. 971 of the Civil Code, advocates the performance of legal actions by one party at the expense of and on behalf of the other participant. This expresses the main difference between the agreement in question and the commission. In it, the subject is the conclusion of one / several transactions by a commission agent. In Art. 971 of the Civil Code of the Russian Federation, the subject of the contract is defined more broadly.
Legal actions under the agreement will recognize not only transactions, but also other actions that entail legal consequences for entities. It is, in particular, about representation in court.
Principal's Responsibility
When concluding an agreement, the parties have certain obligations. The principal, in particular, must:
- To issue a power of attorney for an attorney. The authority to carry out the actions fixed by the agreement should be fixed in it.
- To compensate the attorney for expenses in connection with the performance of his obligations.
- Provide the second side with all the means required to carry out the assignment.
- Accept without any delay executed by the attorney.
- Pay remuneration to the other party if the agreement is onerous.
Attorney Responsibilities
This transaction participant must:
- Execute the order in person.
- Inform the principal (at his request) of the progress in fulfilling the obligation.
- Provide the principal without any delay all that was received from the transactions concluded by him.
- Upon completion of the execution of the order or upon termination of the contract, return the power of attorney and transmit a report to which the supporting documents are attached, if necessary by virtue of the agreement or the nature of the order.
Fulfillment of the terms of the contract
Within the meaning of Art. 971 of the Civil Code of the Russian Federation, the attorney must execute the order on the instructions of the principal. They, of course, must be legal, specific and enforceable.
The attorney is allowed to depart from the instructions received. This is allowed under a number of conditions:
- The retreat is caused by prevailing circumstances.
- Changes in the actions of the attorney are consistent with the interests of the principal.
- The attorney was not able to request the consent of the principal or he did not receive a response to his request within a reasonable time.
In this case, the contractor must notify the principal of the deviations made as soon as possible.
The situation is somewhat simpler in the field of entrepreneurial activity. An attorney acting as a commercial representative may be entitled to depart from the instructions in the interests of the principal without requesting consent.
If the performance is related to conducting business, the principal shall pay the contractor remuneration, unless otherwise provided in the agreement.
Entrusted
The attorney must comply with the order in person. In judicial practice under Art. 971 of the Civil Code of the Russian Federation, however, the possibility of execution of an order by third parties is recognized. This is possible only on the conditions and in the cases enshrined in Article 187 of the Code. The reassignment must be provided for by the main power of attorney or necessary by virtue of circumstances to protect the interests of the original principal.
According to general rules, a power of attorney drawn up in the order of transfer is subject to notarization.
If the contract does not provide for the right of the attorney to transfer the performance to a third party, the contractor is responsible for choosing a third party. A similar rule applies in the case where the agreement allows for the possibility of reassignment, but a specific substitute is not indicated in it. The principal has the right to challenge a third party selected by the attorney.
Termination of contract
The principal has the right to note the instruction, and the attorney, accordingly, refuse to perform at any time. As part of the commercial representation, a mandatory notice of termination of the contract is provided for 30 days. An agreement securing the waiver of this right shall be deemed null and void.
The cancellation of the order by the principal is usually not considered a basis for compensation for losses caused by the attorney.
The contract of assignment may also be terminated due to the death of the principal or attorney, recognition of any of them as having limited legal capacity, incompetent capacity, and missing person.
Nuances
If the contract is terminated before the full execution of the order, the principal must compensate the attorney for the execution costs, and also pay him a fee, if it was provided for by agreement.
If the attorney has died, his successors must notify the principal of the termination of the contract and take appropriate measures to protect the principal's property. They are obliged to save and subsequently transfer to him his documents and things. A similar obligation is imposed on the liquidator of a legal entity, if he acts as an attorney.
Acting in the interests of another person without commission
As a rule, they are aimed at ensuring the safety of property, preventing harm to the personality of the subject, the fulfillment of his obligations, as well as the implementation of other legitimate interests.
Actions (both legal and actual) without an order are included in the number of unilateral transactions. They entail the obligations of the subject in whose interests they were committed, to compensate for the losses incurred by the contractor, and in certain situations, to pay compensation.
Liabilities that have arisen continue until they are disapproved or approved. In the latter case, the rules on the contract of commission or other agreement corresponding to the nature of the actions taken will be applied to the legal relations of the parties. This rule also applies to cases of verbal approval.
The actions that were performed after the performer became aware of their disapproval do not entail obligations for the subject and third parties for the subject in whose interests they were carried out.
Important point
The rules of law governing obligations that arose as a result of acts committed in the interests of others without a mandate are not applicable to the actions of municipal and state bodies if they act as one of the goal of their activity. The law does not contain any other requirements for the legal status of participants in such legal relations. They can be any person with legal personality.
Additionally
An entity acting without an order in the interests of others should, at the earliest opportunity, notify the person concerned and wait for the latter's decision on disapproval or approval. A reasonable time should be set aside for a response . The contractor may not wait for time if the wait can entail substantial harm to the subject concerned. The latter, in turn, must compensate the person who committed the relevant actions, expenses and real damage even when the expected result from these actions was not received.