Preparation of the contract. Conclusion and amendment
What is a contract?
A contract is a legal document (an agreement between two or more parties) in which they establish, change or terminate for themselves their civil rights and obligations towards each other.
A civil law contract must be understandable to the parties and third parties and its provisions must actually be workable, not formal.
All basic types of contracts are contained in the Civil Code of the Russian Federation.
Sections of the contract
It is desirable that the contract should contain the following sections:
- Preamble (or introductory part).
- Subject of the contract.
- Duties and rights of the party to the agreement.
- The price of the contract.
- Order of payment.
- Warranty obligations.
- Liability of the parties.
- Procedure for concluding or amending the contract. Unilateral refusal from the contract.
- Procedure for settling disputes.
Each party to a contract must clearly understand why it needs a particular contract, what the party's goal is, and whether it is possible to achieve it in a particular contract or in a proposed draft contract. Usually the draft is drawn up by the party who is more interested in the relationship.
Easy and erroneous reasoning that is enough to download any draft contract on the Internet and adjust it for yourself leads to the fact that, first, the contract may contradict the requirements of the law, and secondly, to the fact that your position on such a contract will be very weak. Conclusion - trust the performance of the contract only to professional lawyers and work with proven counterparties.
Powers of attorney of persons authorized to sign by the parties to a contract
It is important to check the credentials of persons who have the right to sign contracts. For example for LLC by virtue of the law it is the sole executive body (director / general director), although this right may be limited by the founders in the charter of the company.
For example, restrictions may apply to the amount of transactions to be concluded.
The powers of the representative must be specified in the power of attorney, which also has requirements.
Preparation of the contract. Essential conditions of the contract
After defining the type of contract, we proceed to defining the essential conditions of the contract. These are the following conditions:
- The subject of the contract is the obligation that follows from the contract, in other words, it is the action or inaction that the party obligated to the other party must perform in the performance of the contract;
For example, for the contract of supply the subject matter of the contract are goods that the supplier itself produces or procures, and the buyer buys them for further use in the business and other purposes that are in no way connected with personal, family and other similar uses. The subject matter of the contract is formulated in the articles of the Civil Code, which disclose the specific type of contract.
- Which are explicitly mentioned in the law;
- Any condition for one party that must be agreed upon. Only then a contract can be considered concluded when an agreement is reached between the parties in all material terms. All these points must be agreed upon before signing, i.e. at the draft stage of the contract.
Negotiating before entering into a contract
The subjects of a contractual relationship are free to negotiate and must act in good faith at all stages of the negotiation process.
At what point can a contract be considered concluded?
This is when your offer to conclude a contract is answered (accepted) positively.
This can be as a single document signed by both parties or through the exchange of electronic documents, letters, etc. However, if your draft was responded to by drawing up a protocol of disagreement - it is considered a new proposal (offer).
The terms of the contract are to be understood literally as they are. Consequently, the words and expressions of the contract must not be ambiguous.
Here, the meaning of the name is clear. Under such a contract, the parties agree on the conditions and undertake in the future to conclude a main contract, for example, on the provision of services or the transfer of property under the terms of the preliminary contract. It must necessarily indicate a specific term for the conclusion of the main contract.
Changing the terms of the contract, termination of the contract
The contract may be amended and terminated by agreement of the parties, if the law and the contract allow it.
1. By agreement of the parties - if the contract provides for situations in which the contract may be amended or terminated by agreement of the parties, then when such an event occurs, it will be enough for one party to send an agreement to change or terminate the contract with the other party and after signing such agreement or for example after receiving notice that the other party received it - the contract will be considered to be amended or terminated.
2. At the request of one of the parties, the contract can be amended or terminated by court decision only:
- in case of a material breach of the contract by your counterparty;
- In other cases stipulated by the Civil Code of the Russian Federation, other laws or the contract.
3. In case of a substantial change of the circumstances, from which the parties proceeded at the conclusion of the contract.
Our company has extensive experience in the preparation and legal assessment of the following types of civil law contracts: sale and purchase, supply, lease, workmanship, services, assignment of rights of demand and others.
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The cost of preparing and checking the contract depends on the type of contract. From 2000 rub.