Art. 421 of the Civil Code. Freedom of contract. Comments
Conclusion of an agreement on the Civil Code of the Russian Federation (Article 421) is carried out without any coercion. Exceptions are cases directly established by the Code, other regulatory enactment or obligation taken voluntarily. Consider furtherprinciples of freedom of contract.
Art. 421 of the Civil Code
The participants of legal relations can draw up an agreement, stipulated or not stipulated by the legislation, other regulatory documents. In the latter case, according toSection 2, Art. 421 of the Civil Code, rules on certain types of transactions are not applicable. At the same time, agreements should not have the features contained in clause three of this norm. However, this does not exclude the possibility of applying the analogy of law to individual relations of participants.
Freedom of contractAccording to the law, applies to mixed agreements. They are documents in which there are elements of different transactions provided by law or other regulations.At the same time, the rules of agreements, clauses of which are contained in a mixed act, are applied to the relations of the participants, unless otherwise provided by the parties themselves or follows from the essence of legal relations.
The concept of freedom of contractassumes that the parties independently determine its content. An exception is provided for cases where the essence of a particular condition is prescribed in a law or other regulatory act. However, if the content of the clause is set by the legal provision applicable to the extent that the participants have not documented otherwise, the parties may exclude its use. They also have the right to establish a condition different from the one that defines such a rule. In the absence of an appropriate agreement, the essence of the provisions of the contract will be provided for by the legal act. If the condition is not defined by either the norm or the agreement of the participants, it is established in accordance with the customs that apply to the relationship.
Art. 421 of the Civil Code with comments
Civil law relations of the subjects are based on their mutual legal equality.It excludes the imperious subordination of one member to another.Freedom of contractThus, it is expressed in the fact that the definition of its conditions is voluntary, based on the consent of the parties, consistent with their private interests. This provision serves as the foundation of private law regulation. In terms of socio-economic role, this principle ranks with the recognition and inviolability of private property.
According toClause 1, Article. 421 of the Civil Code, the participants' voluntariness is manifested in the absence of coercion when making a deal. This means that the subjects independently decide whether or not to enter into a legal relationship. None of the parties is obliged to participate in a transaction against their will. Meanwhile, legislation provides for cases in which nofreedom of contract. Civil Code of the Russian Federationpermits forced entry into public transactions (Article 426, paragraph 3). Subjects are also instructed to draw up an agreement if they have previously voluntarily assumed the corresponding obligation. An example is a preliminary contract governed by Article 429 of the Code.
It should be noted that the provisionsst. 421 of the Civil Codeexclude the obligation to enter into legal relations on the basis of administrative and administrative acts, as was common before in socialist society. Due to the introduction of this norm in the legislation, economic agreements have lost their legal base. Legal entities previously prepared such documents under pressure from administrative coercion, and not on their own.
Nature of relationship
ATst. 421 of the Civil Codeit is fixed that the participants in the transaction independently decide which agreement they will draw up. According to the norm, they can enter into relations both provided for and not stipulated by legislation and other legal documents. Of course, in the latter case the contract should not contradict the prescriptions of the norms, the general principles and essence of civil law.
It is worth saying that the legislation does not provide for an exhaustive list of agreements. There are no regulations in the norms on the need to "fit" the contract under the established types. This circumstance is of particular importance in the framework of emerging market interactions, when legal consolidation often lags behind existing economic needs.So, for different transactions that are made today on the stock exchanges (currency and stock), it is far from always the prototypes provided by law. The right to conclude unnamed contracts allows the parties to independently eliminate the gaps in the norms that objectively arise in connection with the constant increase in the complexity of the property turnover.
They contain elements of statutory contracts. To one or another part of such an agreement, according tost. 421 of the Civil Code, the relevant rules apply. For example, Article 501 permits the execution of a hiring agreement. According to the conditions fixed in it, the acquirer of the object first acts as its tenant. Accordingly, before the sale to the relationship of the provisions on the property rental. After the change of ownership, the rules on the sale. Also mixed will be the agreement on crediting a bank account. Sometimes it is called overdraft. According to this agreement, the bank pays the claims that the lenders make to its client, within or above the agreed limit, even in the absence of the required amount of funds on the settlement account of the borrower.In arbitration practice, a contract for the exchange of goods for services equivalent in price is also considered to be mixed. This position is explained by the fact that in this agreement there are elements of transactions for the sale and paid service.
The law does not establish any prohibitions for the execution of agreements containing elements of transactions and known, and not provided by law. Such documents are not considered mixedst. 421 of the Civil Code. However, rules on known transactions will be applied to them in relevant parts, and unnamed (unforeseen by law) points will be assessed in terms of compliance with the provisions of the first paragraph 8 of the Article of the Code.
It is necessary to differentiate between mixed and complex agreements. The latter are presented as a set of several independent contracts, the content of which is recorded in one document. An example would be a supply agreement. It may include provisions for product insurance, storage, transportation, and so on. The inclusion of these provisions does not require the preparation of various documents, but does not imply the formulation of a single contract.
The freedom of contract is that the participants independently of their own free will determine the content of the document, establish specific conditions. Exceptions are reserved for cases when certain provisions are imperatively enshrined in legislation. For example, the condition relating to the cost of purchased products, as a rule, is consistent between counterparties. Only in certain situations the value of the goods is determined in accordance with the tariffs established by the state. As a rule, this exception applies to natural monopolies.
They are widely used in the legal regulation of transactions. Such rules are valid only when the parties to the relationship have not settled a particular issue by agreement or did not exclude the extension of the provision to their relationship. A key feature of the dispositive rules is the possibility of deviation from them. Accordingly, the application of these provisions can be called a form of freedom of contract. Dispositive rules, for example, include various rules governing the repayment of obligations (execution in parts, the possibility of early payment, etc.).In fact, in such provisions there are certain clues for the participants regarding what other conditions it is advisable for them to agree (although they have the right not to do it). The right to the use of dispositive norms ensures the completion of the absent will of the parties. The proposed rules are based on the long-term practice of relations and are the best option for the corresponding condition.
Customs of turnover
The possibility of their use is provided for in the fifth paragraph of Art. 421 of the Civil Code. The customs of turnover are used in cases where a particular condition is not established by law and is not provided for by the parties to the transaction. The article states that the rules that have been established independently and are applied in a particular business sphere can be put into effect. The specific custom used in the framework of a relationship becomes an additional (subsidiary) source of law. For example, in Russia, the international rules on the interpretation of the trade concepts of Incoterms 2000 are considered as a contractual condition. They are applicable to relevant business agreements,if their conditions for the transportation of products and the distribution of risks arising from this are not established by the parties to the transaction and are not provided for by domestic regulations. It is necessary to differentiate the customs of circulation and the established order (established practice).
They are inevitably established within the framework of a contractual relationship. First of all, the essence of the agreement must comply with the mandatory rules fixed by law. If this requirement is not respected, the transaction may be deemed void. In some cases, restrictions are caused by the development of market relations, which can not normally develop with unconditional freedom. For example, certain regulations apply to exclusive producers. They cannot, for example, impose conditions on counterparties, using their advantageous position in the market and the inability of the consumer to turn to other enterprises. The bodies regulating the activities of natural monopolies may establish a list of entities whose services should be carried out on a mandatory basis.In addition, authorized structures can determine tariffs or price thresholds for the products of such manufacturers. Imposing unprofitable conditions, evading the execution of agreements will be considered violations of the provisionsst. 421 of the Civil Code. ChangesThe content of the transaction can be made strictly in accordance with the law. Special protection measures are provided for citizens of consumers. They are obviously considered to be the weaker side of relations with professional market participants.
Domestic legislation does not allow abuse of the right. Freedom of contract should be exercised in the framework of common sense, properly, so that the actions of one party does not violate the interests of another. The prohibition of abuse of rights is justified, for example, in the case when a banking organization, acting as a party to a credit agreement, imposes a disproportionate delay on the recipient client of the amount of the penalty, and then requires its enforcement.