Change and termination of the contract. Change and termination in connection with a material breach of obligations of one of the parties From the parties which entails for

09.12.2021Heading: Finishing

1. Change and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

A multilateral agreement, the execution of which is associated with the implementation of entrepreneurial activities by all its parties, may provide for the possibility of changing or terminating such an agreement by agreement of both all and the majority of the persons participating in the specified agreement, unless otherwise provided by law. The agreement referred to in this paragraph may provide for the procedure for determining such a majority.

2. At the request of one of the parties, the contract may be changed or terminated by a court decision only:

1) in case of a material breach of the contract by the other party;

2) in other cases provided for by this Code, other laws or an agreement.

Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.

4. A party to which this Code, other laws or an agreement has been granted the right to unilaterally change the agreement must, when exercising this right, act in good faith and reasonably within the limits provided for by this Code, other laws or the agreement.

Commentary on Art. 450 of the Civil Code of the Russian Federation

1. The commented article defines only three grounds for changing and terminating the contract. These grounds include: 1) agreement of the parties; 2) a court decision adopted at the request of one of the parties to the contract; 3) unilateral refusal to perform the contract. At the same time, the agreement of the parties acts as a general rule that determines the possibility of changing and terminating the contract. The other two grounds for changing and terminating the contract are applicable only in the absence of consensus among the parties to the contract. The limitation of cases for changing and terminating the contract in the absence of mutual consent of the parties is aimed at ensuring the stability of the execution of the contract in accordance with the conditions specified in it at the time of its conclusion and, as a result, the stability of civil circulation.

2. Paragraph 1 of the commented article 450 of the Civil Code of the Russian Federation, in full accordance with the principle of freedom of contract, provides the parties to the contract with the opportunity to modify the concluded contract or agree on its termination. Amendment and termination of the contract is permissible only at the will of the parties to the contract and only in the absence of any mutual objections. As M.I. Braginsky, “giving the parties such a wide opportunity to determine the fate of the contract is one of the direct expressions of contractual freedom: those who have the right to conclude a contract of their own free will should, in principle, be just as free to terminate it or change individual contractual terms” . By mutual agreement of the parties, the contract concluded by them may be revised by introducing amendments to it, providing for both expansion and narrowing of the conditions for its execution. In this case, there is no replacement of the contract. As K.P. Pobedonostsev, “it can happen that an obligation that has arisen, established, without being destroyed, undergoes a change, so that the obligation that was before takes on a new direction, a new content, a new meaning, different from those that it had at its initial origin. This happens primarily by the will of the persons participating in the obligation; it may please them to make a change, an increase in the obligation, so that it is not a new, special obligation that comes out of this, but only expands, is constrained, otherwise the content of the former is determined.

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ConsultantPlus: note.

Monograph M.I. Braginsky, V.V. Vitryansky “Contract law. General Provisions” (book 1) is included in the information bank according to the publication - Statute, 2001 (3rd edition, stereotypical).

Braginsky M.I., Vitryansky V.V. Contract law. 2nd ed., rev. M.: Statute, 2000. Book one: General provisions. S. 434.

Pobedonostsev K.P. Civil law course: In 3 volumes / Ed. V.A. Tomsinov. M.: Zertsalo, 2003. T. 3. S. 134.

3. The freedom of action of the parties to the contract to change or terminate it may be limited by law or by the contract itself. According to, if, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties, other than those that were in force at the conclusion of the contract, the terms of the concluded contract shall remain in force, unless the law establishes that its effect applies to relations arising from earlier concluded contracts. As can be seen, this rule is also aimed at ensuring the stability of the operation of contracts concluded in accordance with the previously existing rules. Such contracts are not subject to change, unless the law itself indicates the need to bring them into line with the new rules.

It should be noted that the legislator rarely adopts laws that entail for the participants in civil circulation the need to amend the contracts concluded in accordance with the previously existing rules or terminate them. As an example, when the law applies to relations that arose before its entry into force, we can note the provisions of Part 1 of Art. 24 of the Federal Law of December 30, 2006 N 271-FZ "On retail markets and on amendments to the Labor Code of the Russian Federation", which provided that the organization of the retail market, the organization and implementation of activities for the sale of goods (performance of work, provision of services ) in the retail market shall be subject to conformity with the provisions of this Law. Although the above provisions of the Law do not directly provide for the need to amend or terminate, in particular, previously concluded agreements on the provision of trading places, the established imperative rule on the implementation of trading activities in accordance with the new requirements of the law, of course, entails the need to amend these agreements. As an example, when the law expressly provides for bringing previously concluded contracts into line with the new rules, one can note the provisions of Part 2 of Art. 3 of the Federal Law of December 29, 2006 N 260-FZ “On Amendments to the Federal Law “On Fishing and the Conservation of Aquatic Biological Resources” and the Land Code of the Russian Federation, which provide that an agreement on the basis of which a citizen or legal entity, in accordance with the previously established rules (in accordance with the procedure established by Article 39 of the Federal Law of December 20, 2004 N 166-FZ "On Fishing and the Conservation of Aquatic Biological Resources"), a fishing site was provided, is subject to alignment with the new requirements of this Law, in particular with changes included in Art. 18 of the said Law.

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Collection of legislation of the Russian Federation. 2007. N 1 (part 1). Art. 34.

Collection of legislation of the Russian Federation. 2004. N 52 (part 1). Art. 5270.

With regard to individual legal relations, the law may also establish special rules that provide one of the parties to the contract with additional grounds for amending or terminating the contract. So, according to part 1 of Art. 70 of the Housing Code of the Russian Federation, the tenant has the right to move other persons into the residential premises occupied by him under a social tenancy agreement, which entails a change in the relevant social tenancy agreement, or, for example, in accordance with Part 2 of Art. 83 of the Housing Code of the Russian Federation, a tenant of a dwelling under a social tenancy agreement, with the consent in writing of the members of his family living together with him, at any time has the right to terminate the social tenancy agreement. With regard to legal relations based on a lease agreement, the tenant of a dwelling has the right, with the consent of other citizens permanently residing with him, at any time.

4. In cases where no agreement has been reached on changing or terminating the contract, one of the parties has the right to demand a change or termination of the contract in a judicial proceeding. At the same time, according to paragraph 2 of the commented article, going to court with a request to change or terminate the contract is possible only in strictly limited cases.

First, one of the parties has the right to apply to the court with the specified requirement in case of a material breach of the contract by the other party. According to the commented article 450 of the Civil Code of the Russian Federation, a violation committed by one of the parties is recognized as a material breach of the contract, which entails for the other party, as it seems, not any, but only significant damage. The weight of the damage must be confirmed by the fact that the relevant party to the contract, as a result of the execution of the contract by the other party, is largely deprived of what it would have been entitled to count on when concluding the contract. A material breach of the contract may be expressed in the actions of one of the parties to the contract, when these actions, in accordance with the law, are directly related to such violations. In particular, according to the essential violations of the requirements for the quality of goods, discovered irreparable shortcomings, shortcomings that cannot be eliminated without disproportionate costs or time, or that have been identified repeatedly, or that have reappeared after their elimination, and other similar shortcomings, are classified. These material violations of the contract of sale allow the buyer to refuse to fulfill the contract of sale and demand the return of the amount of money paid for the goods or the replacement of goods of inadequate quality with goods corresponding to the contract. With regard to the supply contract, the following are recognized as material violations of such an agreement: on the part of the supplier - the supply of goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer, and on the part of the buyer - repeated violation of the terms of payment for goods or repeated non-selection of goods.

The party suing the court must provide evidence of material breaches of the contract. At the same time, the requirements for termination of the contract are not subject to satisfaction if the violations that served as the basis for applying to the arbitration court are eliminated within a reasonable time. Violation of the terms or cost (price) established by the contract may serve as a basis for termination of the contract. In particular, attention is drawn to these circumstances in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 5, 1997 N 14 “Review of the practice of resolving disputes related to the conclusion, amendment and termination of contracts”.

Secondly, one of the parties to the contract is also entitled to apply to the court with a request to amend or terminate the contract, if the corresponding grounds are provided for by law or by the contract itself. For example, according to Part 4 of Art. 83 of the Housing Code of the Russian Federation, the landlord has the right to file a claim for termination of the social contract of employment with the court on the following grounds:

- non-payment by the tenant of the payment for the residential premises and (or) public Utilities for more than six months;

- destruction or damage to the dwelling by the tenant or other citizens for whose actions he is responsible;

- systematic violation of the rights and legitimate interests of neighbors, which makes it impossible to live together in the same residential area;

- use of premises for other purposes.

5. Paragraph 3 of the commented article allows one of the parties to the contract, without reaching agreement with the other party to the contract and out of court, to refuse to perform the contract in whole or in part. It should be noted that a unilateral refusal is allowed, unless it is directly stated in the contract itself, or a unilateral refusal is allowed by law. In this case, we are not talking about the possibility of one of the parties to the contract presenting a demand for its change or termination, but directly about the refusal, the fact of the presentation of which entails a change or termination of the contract. Accordingly, if one of the parties to the agreement does not agree with the refusal to perform presented by the other party to the agreement, the first of these parties has the right to apply to the court for protection of the rights violated by such a refusal. It should also be noted that, in contrast to the possibilities provided for in paragraphs 1 and 2 of the commented article on changing the contract in the manner of partial refusal to perform the contract, there is no change in one of the agreed terms of the contract to others, the change will be made only in that part of the contract, from the execution refused by the party to the contract.

It should be noted again that if the parties fix in the contract the possibility and conditions for extrajudicial unilateral refusal to perform the contract, then all the stipulated criteria for refusal should not be ambiguous in terms of their correlation with the rules of clause 2 of the commented article 450 of the Civil Code of Russia , i.e. rules on the exclusively judicial procedure for changing and terminating the contract. This is evidenced by arbitrage practice.

In particular, the court of first instance satisfied the plaintiff's claims for the return of the leased asset on the basis that clause 6.3 of the supplementary agreement dated February 10, 2004 N 1 to the subleasing agreement dated July 16, 2003 N 24 provides for the right of the sublessor to unilaterally terminate agreement, if the sub-lessee allows a delay in lease payments for a period of more than 60 calendar days. Based on the provisions of paragraph 3 of the commented article, the court of first instance came to the conclusion that the subleasing agreement of July 16, 2003 N 246 was terminated out of court.

The Court of Appeal did not agree with this conclusion and overturned the decision taken in the case. The second instance came to the conclusion that, based on the provisions of paragraphs 2, 3 of Art. 450, the contract could not be terminated by the sub-lessor unilaterally, since the terms of the contract and the additional agreement to it, which provide for the procedure and grounds for early termination of the contract, do not indicate the right of the sub-lessor to cancel the sub-leasing contract out of court. The court of appeal gave an interpretation and found that the out-of-court procedure for terminating the contract by the parties had not been agreed upon.

The court of cassation upheld the decision of the appellate instance, noting that the appellate instance rightfully pointed out that paragraph 6.3 of the additional agreement in its content corresponds to the rule on termination of the contract set out in paragraph 3 of Art. 619 of the Civil Code of the Russian Federation, and does not exclude the need to go to court with a request to terminate it. According to Art. 619 of the Civil Code of the Russian Federation, at the request of the lessor, the lease agreement may be prematurely terminated by the court in cases where the tenant uses the property with a material violation of the terms of the agreement or the purpose of the property, or with repeated violations. The lease agreement may also establish other grounds for early termination of the agreement at the request of the lessor in accordance with clause 2 of the commented article.

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Decree of the Federal Antimonopoly Service of the Central District of March 10, 2009 N F10-498 / 09 in case N A35-3236 / 08-C13 and the Determination of the Supreme Arbitration Court of the Russian Federation of May 15, 2009 N VAC-5637 / 09.

6. The commented article 450 of the Civil Code does not regulate the procedure for presenting a unilateral refusal, and also does not establish criteria for determining the moment when such a refusal comes into force. It seems that in cases where the grounds for a unilateral refusal are established in the contract, respectively, and the procedure for implementing such a refusal should also be determined in the contract. In this case, the parties are not limited in determining the procedure for exercising a unilateral refusal, they can establish both the form of a statement of refusal and the period for presenting a notice, after which the contract will be considered terminated or amended in its corresponding part.

The question of the moment of entry into force of a unilateral refusal, as well as the procedure for its implementation, may also arise in cases where such a refusal is permitted by law. With regard to individual agreements, the law establishes a specific period, no later than which the relevant party to the agreement must be notified of the unilateral refusal. It seems that with the expiration of the statutory period for sending a notice of unilateral refusal to perform the contract by one of the parties to the contract, such an contract should be considered terminated or amended accordingly. In particular, the mandatory period for advance notice of a unilateral refusal to perform the contract is established in).

1. Change and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

2. At the request of one of the parties, the contract may be changed or terminated by a court decision only:

1) in case of a material breach of the contract by the other party;

2) in other cases provided for by this Code, other laws or an agreement.

Expert comment:

The Civil Code of the Russian Federation gives the participants of civil legal circulation quite a lot of opportunities in shaping the conditions of contractual relations (Article 1, 421 of the Civil Code of the Russian Federation). This implies that the parties may use conditions that will differ from those prescribed by the rules of various articles of the Civil Code of the Russian Federation.

Comments to Art. 450 of the Civil Code of the Russian Federation

1. The rule provided for in clause 1 of the commented article corresponds to the fundamental principle of Russian civil law on freedom of contract (see art. 1, 421 and comments to them).

The Civil Code provides for ways in which the parties may, by agreement between themselves, terminate or amend the contract. For example, by novation (see Art. 414 and commentary to it), by providing compensation in return for execution (see Art. 409 and commentary to it). However, under contracts in favor of a third party, the parties cannot terminate or change the contract they have concluded without the consent of the third party from the moment of his consent to exercise his right under the contract (see Article 430 and commentary to it). The current procedural rules (part 2, article 34 of the Code of Civil Procedure and paragraph 4 of article 37 of the APC) prohibit courts of general jurisdiction and arbitration courts from approving settlement agreements of the parties (including those entailing a change or termination of the contract) if they violate the rights and legally protected interests of third parties. Although the law does not forbid the parties to change the obligation secured by the surety, however, as soon as such changes entail an increase in liability or other adverse consequences for the surety, and he did not give consent to this, the surety is terminated (see Article 367 and commentary to it) .

2. To change or terminate the contract, if an agreement on this is not reached, it is possible at the request of the interested party, and only in court and only if there are certain grounds (clause 2 of the commentary article).

The grounds for amending or terminating the contract (its material breach) directly established in the commented article should be interpreted in accordance with the meaning of the provisions of the law. And it consists in the fact that such a violation should be recognized as significant, which entails for the other party the impossibility of achieving the purpose of the contract. In this regard, the term "damage" should not be interpreted restrictively. In addition to possible high additional costs, non-receipt of income, it includes other consequences that significantly affect the interests of the party. This approach of the legislator is clearly seen in the analysis of certain provisions of the Civil Code. For example, under a life annuity agreement (Article 599), the very fact of its non-payment on time entitles the recipient of the annuity to demand termination of the agreement. In particular, the transfer of goods with irreparable shortcomings, with shortcomings that are identified repeatedly or appear again after their elimination is recognized as a significant violation of the contract of sale, in particular, (paragraph 2 of article 475). When applying this rule, one should take into account the arbitration practice, which, in particular, is reflected in the information letter of the Supreme Arbitration Court of the Russian Federation dated May 5, 1997 N 14 "Overview of the practice of resolving disputes related to the conclusion, amendment and termination of the contract" (see Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. No. 7. S. 108, 109). First of all, the party citing a fundamental breach of contract must provide the court with appropriate evidence of its existence. The very fact of the existence of such a violation does not serve as a basis for termination of the contract if the violation is eliminated within a reasonable time. When a party had the right, by virtue of the norms of the Civil Code, to demand a change in the contract, but did not use it, the court, at the request of the other party, reasonably decided to terminate the contract, recognizing the violations as significant.

The second group of grounds that give the right to demand to change or terminate the contract include both those established by the Code and other laws, and those provided for by the contract. For example, under an accession agreement, such a right, under certain conditions, is granted to the acceding party (see paragraph 2 of article 428 and comments to it). The grounds for terminating transactions of privatization of state or municipal property are provided for by the Law on Privatization (see paragraph 7 of article 21 and paragraph 1 of article 29).

3. A clear distinction must be made between the right to demand the rescission of a contract (in whole or in part) and the right to unilaterally waive (in whole or in part) its performance. A unilateral refusal to execute the contract is made without going to court and, accordingly, by virtue of the very fact of its implementation, the contract is considered terminated, and in case of partial refusal - changed. This does not exclude the possibility of challenging in court the validity of a unilateral refusal on the basis of the general provisions of the Civil Code (see Article 11 and comments to it).

When applying paragraph 3 of the commented article, it is necessary to specifically clarify the question of the moment such a refusal comes into force. First of all, it should be borne in mind that, in relation to certain types of contracts, the Civil Code establishes the obligation to give advance notice of the termination of the contract. See, for example, paragraph 1 of Art. 699 (in relation to a perpetual contract for gratuitous use); paragraph 3 of Art. 977 (in relation to the agency contract); paragraph 2 of Art. 1003 (in relation to the commission agreement); paragraph 2 of Art. 1024 (in relation to the contract trust management property); paragraph 1 of Art. 1037 (in relation to a commercial concession agreement); Art. 1051 (in relation to an open-ended simple partnership agreement). In addition, the question of whether the refusal comes into force from the moment it is declared or from the moment it is received by the other party is not indisputable, if the refusal itself does not provide for a later date for its entry into force or this does not follow from the nature of the contract and the refusal. In this regard, it is necessary to pay attention to the fact that in relation to the supply contract (clause 4 of article 523), the law establishes that the contract is considered amended or terminated from the moment the party receives the notification of the counterparty, unless another period is provided in the notification and is not determined by agreement of the parties .

According to Art. 310 (see commentary to it) unilateral refusal to fulfill an obligation and unilateral change in its conditions is allowed only in cases provided for by law. At the same time, in relation to obligations related to the implementation of entrepreneurial activities, they are also allowed by agreement of the parties in cases provided for by the contract, unless otherwise follows from the nature of the obligation. With regard to contractual obligations, paragraph 3 of the commented article does not contain a restriction similar to the prescription of Art. 310. It follows from this that the law allows the inclusion of a condition on the right to unilateral withdrawal (unilateral change) also in contracts not related to entrepreneurial activity, unless otherwise follows from the law or the nature of the obligation. The basis for such a conclusion is paragraph 3 of Art. 420 (see commentary to this article), according to which the general provisions of the Civil Code on the contract and the rules on certain types of contracts are given priority over the general provisions on obligations (which include Article 310).

4. Part one of the Civil Code provides for some general provisions that give the party the right to unilaterally refuse to perform the contract. This right belongs to the party in respect of which the counter obligation has not been fulfilled or circumstances clearly indicate that it will not be fulfilled within the prescribed period (see Article 328 and commentary to it). The creditor can also use it in case of delay of the debtor, if in connection with this the performance has lost interest for him (see Article 405 and commentary to it).

A significant number of rules that give the parties the right to unilaterally refuse to perform the contract are contained in the second part of the Civil Code. They can be divided into two groups. The first group includes rules on contracts, the essence of which predetermines the provision of the parties (or one party) with the right to withdraw from the contract at their discretion. For example, under a gratuitous use agreement - to both parties (Article 699), under an assignment agreement - to both parties (Article 977), under a commission agreement - to the principal (Article 1003), under a storage agreement - to the bailor (Article 904), according to under a bank account agreement - to the client (Article 859), under a commercial concession agreement - to both parties (Article 1037), under a transport expedition agreement - to both parties (Article 806), under a rental agreement - to the tenant (clause 3 of Article 627) , under a contract for the provision of services for a fee - to both parties (Article 782), under a gift agreement - to the donee (Article 573). The second group includes rules providing for such a right of a party in cases where the other party has violated its obligations. For example, under a contract of sale (clause 1 of article 463, part 2 of article 464, clause 2 of article 467, clause 2 of article 475, clause 2 of article 480, clause 3 of article 484, 4, article 486, cl. 2, article 489, part 2, article 490), under a retail sale contract (clause 3, article 495, clause 3, article 503), under a supply contract (clause 3 article 509, paragraph 2 article 515, paragraph 1 and 2 article 523), under a work contract (paragraph 3 article 715, paragraph 3 article 716, article 717, paragraph 2 article 719, paragraph 3 of article 723), under a construction contract (paragraph 3 of article 745), under a passenger carriage agreement (paragraph 2 of article 795).

With regard to the supply contract, two points should be especially noted. Firstly, such a right is granted in case of a material breach of the contract (determined in accordance with the provisions of paragraph 2 of the commentary article). Secondly, the law (clauses 2 and 3 of article 523) establishes a presumption of what kind of violations are considered significant: on the part of the supplier - the supply of goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer, and repeated violation of delivery terms; on the part of the buyer - repeated violation of the terms of payment and repeated non-selection of goods.

This week I am posting for public discussion a commentary to Articles 450-450.1 of the Civil Code, written in the summer, from an article-by-article commentary on the general part of the law of obligations and contract law of the Civil Code, which is being prepared in collaboration with a number of colleagues. The text is not final. I hope to improve it further, including taking into account your comments, criticism and suggestions. So I would appreciate any feedback.

Write, in particular, what other questions, in your opinion, would be reasonable to add to the comment. I must say right away that the commentary on the norms of Articles 451-453 of the Civil Code has also been written, I will post it later (maybe next week).

Article 450

1. Change and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

2. At the request of one of the parties, the contract may be changed or terminated by a court decision only:

1) in case of a material breach of the contract by the other party;

2) in other cases provided for by this Code, other laws or an agreement.

A comment:

1. According to clause 1 of article 450 of the Civil Code, the parties to the contract have the right to terminate or change the contract by their agreement, unless otherwise provided by law or the contract. Termination or amendment of the contract entails the termination or change for the future of the obligations arising from the contract (clause 1-2 of article 453 of the Civil Code).

At the same time, the indication in this rule that the change and termination of the contract by agreement of the parties can be blocked by the contract itself raises certain doubts. After all, the condition on the inadmissibility of terminating or changing the contract by agreement of the parties can be excluded from the contract by the same agreement that changes other conditions or entails termination. Thus, the parties cannot limit their will to terminate the contract or modify it by agreement.

1.1. According to paragraph 2 of clause 1 of article 450 of the Civil Code, in a multilateral agreement, all parties to which are persons engaged in entrepreneurial activities, it may be provided that its termination or amendment is allowed at the will of the majority of its parties. It follows from this that, as a general rule, the consent of all its parties is required for the termination or amendment of a multilateral treaty.

In cases where a multilateral treaty allows its termination/modification by the consent of the majority, as a general rule, the majority should be determined in a standard way on the principle of "one party - one vote". But the treaty may provide for other principles for determining the majority. For example, a shareholder agreement or an agreement between the participants in an LLC may provide that the majority will be determined by the number of shares owned by the participants in such an agreement. There is no need to question such a manifestation of freedom of contract in conditions when, in such commercial contracts, the parties can agree in principle on the right to unilateral refusal (clause 2 of article 310, article 450.1 of the Civil Code). As you know, when interpreting legal norms, one should proceed from the a fortiori principle: if more is allowed, then, all the more, less is allowed.

2. According to clause 2 of article 450 of the Civil Code, termination or amendment of the contract at the request of one of the parties in a judicial proceeding is possible in cases provided for in the law or the contract, as well as in case of a material breach of the contract by the other party.

2.1. An indication in the contract of the right to demand termination or amendment of the contract without a direct reference to the judicial procedure for such termination or amendment should be interpreted by the court as an indication of the need to comply with the judicial procedure for termination / amendment (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2011 N 9615/11).

2.2. The mention in paragraph 2 of Article 450 of the Civil Code of the right of the creditor to demand a change in the contract in the event of its material violation by the debtor requires some clarification. The creditor is not entitled to demand an arbitrary change of certain contractual terms in response to a breach of the contract by the debtor. The right to demand a change in the contract arises in strictly limited cases, when such a change corresponds to the nature of the relationship. And even in such cases, it is customary to talk more about termination. In fact, there are only two cases.

Firstly, when the debtor fulfills only part of his obligations, the creditor has the right to raise the question of the termination of obligations in the unfulfilled part before the court. In such a situation, the unfulfilled part of the obligations is terminated (i.e., there is a partial termination), but in relation to the entire amount of performance under the contract, an actual change occurs. In other words, in such a situation, one can speak of both the termination of the contract in part and the amendment of the contract. Usually in practice the first designation is used.

Secondly, in case of violation of its obligations by a person who received property under a loan, credit, deposit, lease or loan agreement and is obliged to return it after the expiration of the contract, the other party usually wants to demand early return of this property. Such a claim is essentially aimed at changing the terms of the contract on the term of use of the received property. But even here, in the law and turnover, it is customary to talk more about the termination of the contract and its consequences (for example, termination of the lease agreement under Article 619 of the Civil Code). For more details, see the commentary to Article 453 of the Civil Code.

2.3. Paragraph 2 of Article 450 of the Civil Code also defines the concept of a material violation. This definition indicates that not every violation of the contract gives the injured party the right to demand its termination or amendment; the violation must be serious enough to justify, from the point of view of the principle of proportionality, such a sanction as termination/modification of the contract. When assessing the materiality of the violation, the court must evaluate the whole complex of circumstances, trying to measure such a sanction as termination of the contract with the consequences of the violation and find the most fair solution. The court, in particular, may take into account the amount of damage that the violation causes to the creditor; loss of confidence in the debtor and in his ability to perform the contract in the future; objective loss of interest in the actual performance of the contract; unfair and intentional nature of the breach of contract; those losses that the termination of the contract may cause to the violator; the fault of the creditor in breach of contract, etc. For an analysis of some factors that, among other things, should be taken into account when assessing the significance of a violation, see: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 12, 2011 N 12363/10. Factors that the courts should take into account when assessing the materiality of the violation are also given in paragraph 2 of Article 7.3.1 of the UNIDROIT Principles.

At the same time, it should be borne in mind that there is no connection between the essential terms of the contract and its material breach. These are completely different legal institutions that perform different functions. The materiality of the breach assesses the very nature of the breach, its consequences and the proportionality of termination in response to such breach. The doctrine of essential conditions serves to resolve the issue of the conclusion of the contract and its sufficient completeness. Accordingly, an essential condition may be violated insignificantly, and an insignificant condition may be violated significantly.

2.4. Termination of the contract is not a measure of liability. Therefore, the grounds for exemption from liability are not applicable here (Article 401 of the Civil Code). The creditor has the right to demand termination of the contract even when the debtor is released from liability due to the absence of fault or the presence of force majeure circumstances. Non-application to the termination of the contract of the grounds for exemption from liability is widely recognized in foreign law (clause 4, article 7.1.7 of the UNIDROIT Principles, clause 2 of article III.-3: 101 of the Model Rules of European Private Law, clause 5 of article 79 of the Vienna Convention on Contracts for the International Sale of Goods, 1980). At the same time, the factor of the debtor's release from liability for the violation may be assessed, among other circumstances, when determining the materiality of the violation. At the same time, if a breach of the contract causes losses to the creditor, the factor of releasing the debtor from liability rather testifies in favor of the materiality of the breach, since keeping the contract in force will provoke the occurrence of more and more losses for the creditor, which he will not be able to compensate at the expense of the debtor exempted from liability. .

2.5. The concept of a fundamental breach given in paragraph 2 of Article 450 of the Civil Code is an incomplete copy of the definition of a fundamental violation, which is given in Article 25 of the Vienna Convention on Contracts for the International Sale of Goods of 1980. The difference is that, according to the Vienna Convention, the destructive consequences of a breach of contract must be foreseeable by the debtor. At the same time, the Civil Code of the Russian Federation does not provide for the foreseeability criterion. If the damage caused by the breach of the contract to the creditor, and the loss by him to a large extent of what he was entitled to count on when concluding the contract, could not be foreseen by the debtor, Russian law still gives the creditor the right to demand termination or amendment of the contract. At the same time, it seems that the factor of the debtor's unforeseen occurrence of the negative consequences of the violation by the creditor (for example, the occurrence of significant losses or the loss of interest in the performance of the contract) can be assessed by the court along with other circumstances when determining the materiality of the violation.

2.6. The norm of clause 2 of Article 450 of the Civil Code does not exclude the right of the parties by their agreement to clarify the criteria for the materiality of the violation (for example, by establishing how long the delay is considered as a material violation). Also, the parties have the right to exclude this criterion altogether, establishing the right to demand termination in the event of the slightest violation of the contract (apparently, with the exception of the case when such a condition is included in favor of the entrepreneur in the contract with the non-entrepreneur). This conclusion follows from the fact that the law (Article 310 of the Civil Code) allows the parties to agree on the possibility of completely unmotivated cancellation of the contract (with the exception of the inclusion in the contract of a condition on the right to unmotivated refusal of the entrepreneur in the contract with the non-entrepreneur). In such circumstances, in the context of a purely commercial contract, it is impossible to question the much less stringent condition on the right to termination (judicial or in the form of a unilateral refusal) in the event of the slightest violation of the contract (for example, any delay in duration).

2.7. The parties cannot completely exclude in the contract the right of the creditor to terminate the contract in case of an objectively significant violation. Such a condition of the contract would grossly violate the fair balance of interests of the parties and would be absolutely anomalous, since it would force the creditor to wait forever for proper performance.

2.8. In some cases, special provisions of the law establish as a basis for termination the requirement to provide the debtor with an additional reasonable period. For example, paragraph 2 of Article 480 or Article 619 indicate the need for the violator of the contract to demand that the breach of contract be eliminated within a reasonable time before the creditor wants to terminate the contract. Without following this formal procedure, the creditor in these cases will not be able to terminate the contract. In a number of other cases, the presentation by the creditor of the requirement to eliminate the violation within an additional reasonable period, by virtue of the provisions of the law, may act as an alternative to the criterion of materiality of the violation (clause 3 of article 723 of the Civil Code). Here, the creditor has the right to terminate the contract either if the violation as such is significant, or if the debtor fails to eliminate the violation within an additional reasonable period provided to him by the creditor.

Providing the debtor with an additional period to eliminate the violation does not change the terms for fulfilling the obligation, does not cancel the fact of the debtor's violation of the contract and does not relieve him of liability. This is indicated in particular by paragraph 2 of Article 47 and paragraph 2 of Article 63 of the Vienna Convention on Contracts for the International Sale of Goods of 1980. Moreover, this conclusion is relevant both for cases where the establishment of an additional period is prescribed by law, and for other cases when a creditor who has encountered a violation provides the violator with an additional reasonable period to eliminate the violation. As an example of a dispute arising in relation to this issue of the significance of such creditor claims in Russian courts, see Resolution of the Presidium of the Supreme Arbitration Court dated December 17, 2013 N 12945/13.

The legal effect of granting an additional term is that for the creditor, compliance with this formality, from the point of view of the provisions of the law, in some cases can be a condition for the subsequent termination of the contract, and for the debtor, it gives him a guarantee that the creditor will not terminate the contract within the reasonable time allotted to the debtor. will and will be ready to accept performance from the debtor. Such a guarantee allows the debtor to calmly make efforts to eliminate the violation, without fear that the contract with him will be terminated at the moment when he spends significant means and forces trying to eliminate the violation. The loss by the creditor of the right to terminate the contract during the period additionally allotted to the debtor to eliminate the violation obviously follows from the principle of estoppel and Article 10 of the Civil Code, and is also reflected in paragraph 2 of Article 63 of the Vienna Convention on Contracts for the International Sale of Goods of 1980.

At the same time, the violator of the contract may himself request from the creditor an additional reasonable period to eliminate the violation. If the creditor agrees or sets a different time limit, the rules set out above shall apply. At the same time, Russian law does not know the rule established in paragraph 2 of Article 48 of the Vienna Convention on Contracts for the International Sale of Goods of 1980, according to which, if such a request is received from the debtor for an additional reasonable period, the silence of the creditor is regarded as consent to its establishment. Such a rule could be applied by Russian courts by analogy with the law, given that the Vienna Convention is part of Russian law.

Provisions somehow linking the right of the creditor to terminate the contract with providing the debtor with an additional reasonable period to eliminate the violation are often found in contracts (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 11, 2012 N 3378/12).

It remains only to note that in cases where neither the law nor the contract mention the mechanism for establishing an additional reasonable period for eliminating the violation in the context of the grounds for termination, the observance by the creditor of this procedure and the failure of the debtor to eliminate the violation within such a period (and even more so, the direct refusal of the violation eliminate) should be assessed by the court as one of the factors testifying in favor of the materiality of the violation and the justification for terminating the contract.

2.9. Despite the fact that paragraph 2 of Article 450 of the Civil Code as a general rule establishes a judicial procedure for terminating the contract in case of its violation, in reality, the creditor affected by the violation in most cases has the opportunity to unilaterally cancel the contract, since a number of general norms of the law (Clause 2, Article 328, Clause 2, Article 405 of the Civil Code, see the commentary to the relevant articles), as well as many special norms of the law (Articles 475, 523, 715, 723 of the Civil Code, etc.), and often and the treaty gives him that right. For more details, see the commentary to Article 450.1 of the Civil Code. At the same time, the approaches noted above to the interpretation of Article 450 of the Civil Code regarding the grounds for terminating the violated contract (in relation to a material violation and the significance of the requirement to eliminate the violation within an additional reasonable time) are fully applicable to the unilateral withdrawal from the contract when it is allowed by law or the contract .

2.10. In cases where special norms of the law establish a judicial procedure for terminating the contract and these norms are dispositive in nature, the parties have the right by their agreement to establish the right to unilaterally withdraw from the contract (Article 450.1 of the Civil Code). In particular, the parties to the lease agreement may establish the right of the landlord to withdraw from the agreement, thereby departing from the special rule of Article 619 of the Civil Code on the judicial termination procedure (Resolution of the Presidium of the Supreme Arbitration Court of September 9, 2008 N 5782/08, clause 7 of the Information Letter of the Presidium of the Supreme Arbitration Court RF dated January 11, 2002 N 66). If, however, the special rules on judicial termination are qualified by the courts as mandatory, derogation from these rules and agreement on a unilateral withdrawal from the contract should not be allowed.

2.11. The norms of paragraph 2 of Article 450 of the Civil Code do not exclude the right of the parties to indicate in the contract that upon the occurrence of certain circumstances (including in the event of a certain violation of the contract), the contract will be considered terminated automatically. In this case, in fact, the contract includes a resolutive condition, the occurrence of which terminates the contract (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 13, 2012 N 7454/12).

4. From paragraph 4 of Article 450 of the Civil Code, it follows that the law or the contract may provide the party to the contract with the right to unilaterally change the terms of the contract.

4.1. In particular, the provisions of the law (clause 2 of article 811, article 813, clause 2 of article 814 of the Civil Code) on the right of the lender (bank) to demand early repayment of the loan (credit) amount in case of violation by the borrower of their obligations actually provide the lender (bank) the right to change the terms of the loan (credit) repayment agreement. See: Ruling of the Supreme Court of the Russian Federation dated March 10, 2015 in case No. 20-KG14-18; Determination of the Supreme Court of the Russian Federation of November 8, 2011 N 46-B11-20; Clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of September 13, 2011 N 147

4.2. At the same time, one should not forget here that, by virtue of Article 310 of the Civil Code, a contract term granting such a right cannot be included in an agreement between a person engaged in entrepreneurial activity and a person not carrying out such activity, in favor of the first of such persons (p .13 Information letter of the Presidium of the Supreme Arbitration Court dated September 13, 2011 N 146).

4.3. According to clause 4 of article 450 of the Civil Code, in cases where, by virtue of law or an agreement, one of the parties has the right to unilaterally change the terms of the agreement, it must exercise this right reasonably and in good faith. This requirement follows in full from paragraph 3 of article 1 of the Civil Code and paragraph 3 of article 307 of the Civil Code. In particular, if the agreement gives the bank the right to unilaterally change the interest rate on the loan, it cannot exercise this right arbitrarily. An increase in the interest rate must have some kind of convincing economic justification (for example, be linked to changes in average interest rates on loans). See: clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147.

4.4. For more information about the right to unilaterally change the terms of the contract, see the commentary to Article 310 of the Civil Code.

Article 450.1. Cancellation of the contract (performance of the contract) or the exercise of rights under the contract

1. The right granted by this Code, other laws, other legal acts or the contract to unilaterally withdraw from the contract (performance of the contract) (Article 310) can be carried out by the authorized party by notifying the other party of the withdrawal from the contract (performance of the contract). The contract is terminated from the moment of receipt of this notice, unless otherwise provided by this Code, other laws, other legal acts or the contract.

2. In case of unilateral refusal of the contract (execution of the contract) in whole or in part, if such a refusal is allowed, the contract shall be considered terminated or amended.

3. If one of the parties to the agreement does not have a license to carry out activities or membership in a self-regulatory organization necessary to fulfill an obligation under the agreement, the other party has the right to refuse the agreement (execution of the agreement) and demand compensation for losses.

4. A party to which this Code, other laws, other legal acts or an agreement has been granted the right to withdraw from the agreement (execution of the agreement), shall, in exercising this right, act in good faith and reasonably within the limits provided for by this Code, other laws, other legal acts or contract.

5. In cases where, if there are grounds for refusal of the contract (performance of the contract), the party entitled to such refusal confirms the validity of the contract, including by accepting from the other party the latter's proposed performance of the obligation, subsequent refusal on the same grounds is not allowed .

6. Unless otherwise provided by this Code, other laws, other legal acts or an agreement, in cases where a party engaged in entrepreneurial activity, upon the occurrence of circumstances provided for by this Code, other laws, other legal acts or an agreement and serving as the basis for the implementation of certain rights under the contract, declares the refusal to exercise this right, in the subsequent exercise of this right on the same grounds is not allowed, except in cases where similar circumstances have occurred again.

7. In the cases established by this Code, other laws, other legal acts or an agreement, the rules of this article shall be applied in case of failure to exercise a certain right within the period provided for by this Code, other laws, other legal acts or an agreement.

A comment:

1. Clause 1 of Article 450.1 of the Civil Code, which entered into force on June 1, 2015, is devoted to the right to unilateral withdrawal from the contract. From the text of paragraph 1 of Article 450.1 of the Civil Code, it follows that such a right may be granted to a party by law or by agreement.

1.1. As for the law, there are three main types of such norms. Firstly, these are rules that give the party the right to withdraw from the contract in case of breach of the contract. There are a lot of them in the Special Part of the Civil Code (clause 1 of article 463, clause 2 of article 475, article 523, clause 2 of article 715, clause 3 of article 723 of the Civil Code, etc.). In cases where the law speaks of the right to withdraw from the contract (or performance of the contract) without mentioning the adjective “unilateral”, it aims to establish the right to unilateral, extrajudicial withdrawal from the contract (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 25, 2011 N 9382/11 and dated July 24, 2012 N 5761/12). In addition, the right, provided for in clause 2 of article 328, to refuse its counter performance in the event of failure to carry out the conditional performance by the debtor, as well as the right specified in clause 2 of article 405 of the Civil Code to refuse to accept performance in case of delay by the debtor, entailing the loss of interest by the creditor in performance agreements, also mean nothing more than the right to withdraw from the agreement (see commentary to clause 2 of article 328 and clause 2 of article 405 of the Civil Code). Taking into account the general nature of paragraph 2 of Article 328 and paragraph 2 of Article 405 of the Civil Code, in fact, this means that the general rule on the judicial procedure for terminating a violated contract, established in paragraph 2 of Article 450 of the Civil Code, is excluded in the vast majority of cases due to general and special rules on the right to withdraw from a contract. A creditor affected by a breach can almost always withdraw from the contract unilaterally out of court on the basis of the relevant general or special provisions of the law.

Secondly, these are the rules that establish the right to withdraw from the contract upon the occurrence of certain conditions that are not related to the breach of the contract (for example, the right to withdraw from the contract if the counterparty does not have a license or membership in the SRO in accordance with clause 3 of Article 450.1 of the Civil Code ).

Finally, thirdly, these are the rules on the right to an unmotivated, unconditional refusal of the contract (clause 2 of article 610, article 717, article 782 of the Civil Code).

1.2. In addition, from paragraph 1 of Article 450.1 of the Civil Code follows the legality of the conditions on the right to unilateral withdrawal from the contract, if any are included in the contract. The contract may provide for the right to withdraw from it in connection with a violation, the occurrence of other suspensive conditions, but also without any grounds at all, that is, unmotivated (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09.09.2008 N 5782/08). At the same time, one should not forget that, by virtue of clause 2 of article 310 of the Civil Code, such a condition cannot be pronounced in favor of a person engaged in entrepreneurial activity in an agreement with a person who does not carry out such activity.

If the parties indicate in the contract the right to “unilateral termination” of the contract, the courts, taking into account the principles of interpretation of the contract, must evaluate this condition as the right to extrajudicial unilateral withdrawal from the contract (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of February 16, 2010 No. 13057/09). Earlier in judicial practice there was a different approach, according to which such a condition of the contract was not considered evidence of the right to withdraw from the contract (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 1, 1999 No. 6759/98). This old position of the SAC ignored the fact that in circulation under unilateral termination, the parties, as a rule, understand precisely unilateral refusal.

1.3. Where the law or the contract grants one of the parties the right to withdraw from the contract in connection with a breach, without expressly stipulating that the breach must be substantial in order for such withdrawal to be legal, the requirement that the breach be material must still be met. This criterion is a universal limiter of the right to terminate the violated contract and its application should not depend on whether the contract is terminated in court or in the manner of unilateral withdrawal from the contract. In other words, the provision of clause 2 of article 450 of the Civil Code, which establishes the criterion for a significant violation in relation to the judicial procedure for termination, should be applied, by analogy with the law, to cases of unilateral refusal. This requires the application of the principles of good faith, reasonableness and fairness. Otherwise, taking into account the fact that the right to withdraw from the violated contract by virtue of clause 2 of article 328 and clause 2 of article 405 of the Civil Code, as well as many similar special norms of the law, is a de facto general rule and pushes the judicial termination procedure a second plan, a situation would result in which in most cases such a right could be exercised at the slightest violation. The latter clearly contradicts the principle of proportionality and what most counterparties have in mind when concluding a contract. In addition, the application of the material breach criterion to cases of unilateral failure is fully consistent with foreign experience. This criterion was invented in foreign law specifically to limit the right to withdraw from a contract (Art. 7.3.1 of the UNIDROIT Principles, Art. III.-3:502 of the Model Rules of European Private Law, Art. 25, 49, 64 of the Vienna Convention on Contracts for the International Purchase -sales of goods in 1980). It would be strange to assume that the Russian legislator copied this criterion almost verbatim from the sources of foreign law and for some reason decided not to apply it to cases of unilateral refusal. At the same time, the conclusions that were made on the basis of the interpretation of paragraph 2 of Article 450 of the Civil Code in the corresponding commentary to this paragraph on the possibility of the parties to specify the criterion of the materiality of the violation or (with a number of reservations) to exclude it altogether, as well as on the meaning setting an additional reasonable time limit.

1.4. According to clause 1 of article 450.1 of the Civil Code, in cases where the right to unilateral refusal is provided for in the law or the contract, this right is exercised by sending a notification to the other party. At the same time, according to this provision, the contract is terminated from the moment of receipt of this notice, unless otherwise follows from the law or the terms of the contract. Earlier, until June 1, 2015, this decision was derived in judicial practice (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 25, 2011 N 3318/11, paragraph 16 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation N 5/29 of March 26, 2009). This decision is quite logical and follows from general principles regulation of legally significant notifications and notices (Article 165.1 of the Civil Code). At the same time, the provision of Article 165.1 of the Civil Code is fully applicable here that in the case of delivery of a legally significant message to the addressee's address, the notification gives rise to legal consequences even if it is not received, if it was not received due to circumstances for which the addressee is responsible. Such a situation occurs, in particular, in cases where a letter that came to the addressee by mail was not claimed by him during the storage period, or when the addressee evaded the notification delivered to him in another way. This conclusion was enshrined in paragraph 67 of the Decree of the Plenum of the RF Armed Forces dated June 23, 2015 No. 25. Also, with regard to the notice of withdrawal from the contract, the provision of paragraph 3 of Article 54 of the Civil Code is fully applicable: “A legal entity bears the risk of the consequences of not receiving legally significant messages (Article 165.1) delivered to the address indicated in the unified state register of legal entities, as well as the risk of absence at the specified address of its body or representative. Messages delivered to the address specified in the Unified State Register of Legal Entities are considered received by the legal entity, even if it is not located at the specified address. With this in mind, it would be logical to interpret the provision of clause 1 of Article 450.1 of the Civil Code as follows: a statement of refusal acquires legal significance not at the moment the statement of refusal is actually received, but at the moment it is delivered to the addressee at the appropriate address.

The indication that a different moment of termination of the contract may follow from the contract means that the parties may stipulate, for example, that in case of withdrawal from the contract, it will be considered terminated from the first day of the month following the one during which the withdrawal was made.

Clause 1 of Article 450.1 of the Civil Code does not expressly state, but from the application of the general principles of civil law it follows that a person declaring a unilateral refusal of an agreement may delay the legal effect of his application (by indicating, for example, that the agreement will be considered terminated from a certain calendar date in the future), even if this possibility is not expressly stated in the contract. Accordingly, such a delay in the “termination effect” may follow not only from the contract, but also from the very declaration of withdrawal from the contract.

1.5. By virtue of the provisions of Article 327.1 of the Civil Code and Article 157 of the Civil Code, the right to refuse can be placed by the contract under a suspensive or resolutive condition: in this case, the right to refuse itself will arise upon the occurrence of a suspensive condition or terminate upon the occurrence of a resolutive condition.

1.6. A unilateral withdrawal from the contract is a unilateral transaction (clause 50 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 No. 25). Therefore, in particular, the withdrawing party may place the legal effect of his declaration under a suspensive condition. So, for example, the creditor may, in one letter to the debtor, combine the requirement to eliminate the violation within an additional reasonable period of time and the statement of withdrawal from the contract, which should come into force provided that the debtor does not eliminate the violation (clause 2, article III.-3: 507 of the Model Rules of the European private law). At the same time, due to the nature of the unilateral withdrawal from the contract as a unilateral transaction that terminates the relevant contractual rights, a declaration of withdrawal from the contract can hardly be placed under a resolutive condition.

In addition, by virtue of recognizing the withdrawal from the contract as a transaction, the declared unilateral withdrawal can be challenged on the basis of the rules on the recognition of transactions as invalid. So, for example, a unilateral withdrawal from a contract can be challenged according to the rules for contesting major transactions, transactions with interest, according to the rules of Article 174 of the Civil Code, or on the basis of defects of will (Articles 178-179 of the Civil Code). See: Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 28, 2013 N 17481/12, of October 25, 2011 N 9382/11, of September 11, 2012 N 3378/12.

1.7. If the party to the contract, by virtue of the norms of law or the terms of the contract, has the right to withdraw from the contract due to the occurrence of certain circumstances (for example, a breach of the contract), the exercise of the right to withdraw from the contract occurs at its own peril and risk. If subsequently the existence of grounds for refusal is called into question, there is a risk that the refusal of the contract will be recognized as unlawful, and the refusing party, mistakenly believing that the contract has been terminated and not fulfilling its obligations under it, is held liable.

At the same time, the unlawful refusal of the contract, that is, the refusal made in the absence of sufficient legal grounds, is null. In relation to such a refusal, clause 2 of Article 168 of the Civil Code in its broad interpretation is subject to application. According to the provisions of this paragraph, a transaction is void if it is contrary to the law and at the same time violates the rights of third parties. This wording is explicitly addressed primarily to bilateral transactions, since only in such a situation is a person not participating in the transaction a third party. In the case of a unilateral transaction, such person not participating in the transaction is the party to whom the application for withdrawal from the contract is addressed. The Supreme Court formulated de facto the same conclusion in paragraph 51 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 N 25, indicating that when a unilateral transaction is made in a situation where, by virtue of law or contract, it could not be made, as well as in case of non-compliance with the requirements for its completion, such a transaction does not entail the legal consequences for which it was directed. Accordingly, the unlawful refusal of the contract (for example, if the debtor's violation does not meet the materiality criterion) is void, regardless of whether the person concerned has filed any claim to this effect. A party to a contract that is faced with an unlawful termination of the contract by the other party is not required to file a claim to challenge the refusal in court and may refer to the illegality of such refusal in the form of an objection when considering any dispute from this contract.

1.8. In cases where the creditor has the right to withdraw from the contract by virtue of law or the contract, and such refusal is due to the occurrence of certain circumstances (for example, a fundamental breach), the person entitled to withdraw from the contract may, instead of exercising this right, apply to the court with a claim for termination of the contract. Such a decision by the authorized person is usually due to the fact that he is not fully sure that there are grounds for refusal and does not want to take risks. After all, if he renounces the contract, and subsequently his refusal is recognized as unlawful, such a person himself will be a violator of the contract and may be held accountable.

1.9. If, after the lawful unilateral refusal of the contract declared by one of the parties, the parties sign an agreement by which they confirm the preservation of the contract and cancel the termination that took place retrospectively, the contract is considered not terminated (Ruling of the Supreme Court of the Russian Federation of 02.07.2015 N 305-ES15-241).

1.10. If the law gives a party the right to unreasonably withdraw from the contract (for example, Article 782 of the Civil Code), but the contract for this party is public, the exercise of such a right, if it is technically possible to carry out the corresponding provision (for example, to provide services), is not allowed. After all, the next day after such a refusal, the other party may legitimately demand the conclusion of a new similar contract according to the rules on concluding a public contract (Article 426 of the Civil Code). This conclusion is enshrined in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 9548/09 dated November 24, 2009.

2. By virtue of clause 2 of article 450.1 of the Civil Code, a lawful unilateral refusal of the contract as a whole entails the termination of the contract. In those cases where the refusal of the contract in one part or another of it is allowed, the contract is considered to be amended. For example, paragraph 2 of clause 2 of Article 328 of the Civil Code speaks of the right to partial refusal of the contract (proportional refusal of counter performance in case of partial performance by the debtor of his obligations). Accordingly, unilateral withdrawal from the contract is a way of lawfully terminating or changing the contract, along with such methods as terminating/changing the contract by agreement of the parties or in court.

3. Paragraph 3 gives the obligee under an obligation the right to withdraw from the contract if the obligor does not have a license or membership in a self-regulatory organization necessary for the performance of the obligation. In such cases, there is a legal impossibility of performance (initially - if the license or membership in the SRO is absent at the time of the conclusion of the contract, or subsequent - if the license or membership in the SRO ceased after the conclusion of the contract), but this does not in itself affect the existence of the obligation. The obligation in such situations is terminated not automatically, but by means of a unilateral waiver. At the same time, by virtue of clause 3 of article 450.1 of the Civil Code, the creditor may, in addition to renouncing the contract, demand compensation for losses.

4. The requirement to exercise the right to withdraw from the contract, established in paragraph 4 of Article 450.1 of the Civil Code, in accordance with the principles of good faith and reasonableness, specifies the provisions of paragraph 3 of Article 1 of the Civil Code. If the creditor abuses the right to withdraw from the contract, the court has the right to recognize the withdrawal from the contract as unlawful. For example, as indicated in the commentary to clause 2 of Article 450 of the Civil Code, a declaration of refusal made by the creditor before the expiration of the additional reasonable period provided by him to the debtor to eliminate the violation should be recognized as an unfair attempt to cancel the contract.

5. Paragraph 5 of Article 450.1 of the Civil Code establishes the principle of estoppel (prohibition of contradictory behavior of an authorized person) in relation to the right to withdraw from the contract and, in fact, specifies the application of the principle of good faith in relation to withdrawal from the contract (paragraph 4 of Article 450.1 of the Civil Code). If a party has the right to withdraw from the contract, but by its behavior (including acceptance of the proposed performance) confirms the preservation of the contract, that party subsequently loses the opportunity to declare withdrawal from the contract on the same grounds.

5.1. This provision suffers from the same defect as many other attempts to codify the principle of estoppel as applied in the form of some rigid rules without mentioning the principle of good faith. The fact is that the very idea enshrined in the norm about the loss of the right to withdraw from the contract is quite reasonable in many situations, since it follows from the principle of good faith. But it follows from the latter principle that in a number of other situations, the loss of the right to withdraw from the contract as a result of the behavior of an authorized person confirming the operation of the contract should not occur. Accordingly, in such cases, the courts are required to give a restrictive teleological interpretation of this provision of the law.

So, for example, it is not directly stated in the norm, but from the essence of the relationship it follows that this provision does not apply to cases where the refusal of the contract is a reaction to the current delay of the debtor. If the debtor fails to perform his obligation, any behavior of the creditor, from which his desire to consider the contract as valid, can in no way limit the right of the creditor, who has lost hope of waiting for performance, to subsequently renounce the contract. Otherwise, the law would encourage the creditor not to meet the debtor and immediately renounce the contract for fear that any of his behavior, indicating the preservation of interest in the contract, could subsequently be used against him as a basis for blocking the right to subsequently renounce the contract.

Or let's take another example. The rule specified in paragraph 5 of article 450.1 of the Civil Code is of greatest importance in cases where the debtor has performed improper performance, and the creditor has the right to withdraw from the contract in connection with this. In such a situation, the debtor finds himself in a position of waiting for the creditor's response, and the law should not encourage the creditor's inconsistent behavior. If the creditor, having learned about the improper nature of the performance, behaved in such a way that this indicates his desire to keep the contract, his attempt subsequently, having changed his mind, to refuse the contract on the basis of this improper performance should be blocked on the basis of this provision of the law. But if the circumstances of the case show that the creditor cannot be accused of dishonest controversial behavior, the effect of the loss of the right to withdraw from the contract should not occur. So, for example, if a creditor who has received improper performance gives the debtor an additional period to eliminate the violation, and within this period, hoping for the violation to be eliminated, performs actions indicating the preservation of his interest in the contract, the creditor’s right to subsequently withdraw from the contract if the violation will not be eliminated, should not be blocked.

5.2. Confirmation of the contract can be expressed in active actions, but confirmation of the contract can also be carried out through inaction. If there is a current delay, the inaction of the creditor does not entail the loss of the right to refuse, since the creditor has every right to expect real performance for as long as he sees fit, and subsequently, tired of waiting, has the right to withdraw from the contract. But the failure by the creditor to exercise the right to withdraw from the contract within a reasonable period after he has revealed or should have revealed the improper nature of the performance received, indeed, should block his attempt to subsequently withdraw from the contract, since such behavior of the creditor is clearly in bad faith.

5.3. From these principles, in relation to the case of improper performance by the debtor, the following follows in particular.

Firstly, the creditor loses the right to withdraw from the contract in connection with the performance of the performance with a delay or defective nature of the performance, if these grounds for refusal were already present when the performance was accepted, but the creditor, despite this, consciously in the form of one or another act of will ( on the waybill, the acceptance certificate, etc.) accepted such overdue or defective performance without any reservations. In this case, the obligee loses the right to withdraw from the contract in respect of such knowingly obtained performance, but does not lose the right to withdraw from the contract within a reasonable time in respect of future stages of performance, if the contract is of a continuing nature.

Secondly, if the creditor could not but accept the overdue performance (for example, when crediting Money to his account), the obligee loses the right to refuse on these grounds if he does not make the refusal within a reasonable time after receiving the performance. This conclusion about the loss of the right to terminate (albeit in relation to the right to file a claim for termination) in the event that this right is not exercised within a reasonable period after receipt of overdue payments is enshrined in clause 23 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 17, 2011 N 73.

Thirdly, the creditor loses the right to withdraw from the contract in response to a performance received with latent defects if he does not exercise this right within a reasonable time after he learned or should have known about the improper nature of the performance. For example, it would be manifestly unfair on the part of the buyer to keep the supplier uncertain about the prospects of withdrawing from the contract due to latent defects found in the delivered goods for several years after they were discovered.

Fourth, if the creditor submits a claim to eliminate the violation within an additional reasonable period, the calculation of a reasonable period for exercising the right to withdraw from the violated contract should be carried out from the moment the established period for eliminating the violation or the debtor’s direct refusal to eliminate the violation expires. Moreover, the actions of the creditor, confirming the maintenance of the contract in force during the period of additional period granted by him to the debtor to eliminate the violation, should not prevent him from withdrawing from the contract within a reasonable time after this additional period has expired, or he will receive an answer from the debtor with a direct refusal. remedy the violation.

Fifthly, similar rules on a reasonable time for exercising the right to terminate in case of improper performance apply to those cases where the creditor intends to terminate the contract not by unilateral refusal, but by filing a claim for termination. In other words, the right to make such a claim is blocked if it is not exercised within a reasonable time.

These or similar rules on the loss by a creditor who has encountered improper performance of the right to withdraw from the contract in the event of failure to exercise this right within a reasonable time or other behavior of the creditor confirming the validity of the contract are well known to foreign law (Article 7.3.2 of the UNIDROIT Principles, Art. III.-3:508 of the Model Rules of European Private Law, paragraph 2 of Article 49 and paragraph 2 of Article 64 of the 1980 Vienna Convention on Contracts for the International Sale of Goods). These provisions of the sources of international unification of contract law are much more accurate than the rather rough decision enshrined in paragraph 5 of Article 450.1 of the Civil Code.

5.4. The rules of clause 5 of article 450.1 of the Civil Code in the interpretation set forth here should, by analogy with the law, also apply to cases of termination of the contract in response to a violation in court.

6. Paragraph 6 of Article 450.1 of the Civil Code establishes the possibility of a person engaged in entrepreneurial activity to refuse to exercise his right under the contract after the circumstances that serve as the basis for its implementation have arisen. Other may be provided in the law, other legal act or contract. The statement of waiver of one's right blocks the possibility of subsequently exercising this right on the same grounds, except when such circumstances arise again in the future.

6.1. The relevance of this norm follows from the fact that, as a general rule, by virtue of paragraph 2 of Article 9 of the Civil Code, the refusal to exercise the right does not terminate this right. Clause 6 of Article 450.1 of the Civil Code actually clarifies that in cases where the right arises from the contract and, accordingly, is generated by the will of the parties, the implementation this right can be blocked by an act of will of an authorized person (refusal to exercise the right). At the same time, clause 6 of Article 450.1 of the Civil Code applies only to contractual rights and, at a minimum, does not directly affect the rights arising from corporate, inheritance, family or other private law relations.

6.2. A waiver of a contractual right is a one-sided transaction. Accordingly, the rules on dealings may apply to such a waiver. In particular, such a refusal may be subject to a suspensive condition (Article 157 of the Civil Code). For example, the bank may declare to the borrower that it waives the right to demand early repayment of the loan due to the occurrence of the relevant circumstances specified in the contract that give the bank such a right (in particular, the deterioration of the financial performance of the borrower), but put the effect of such a statement under the condition that the borrower eliminates the arisen circumstances for a certain period of time. In the described situation, if the borrower restores its solvency within the specified period, the conditional refusal of the bank to exercise its right to early demand for a loan will not come into force.

At the same time, due to the administrative nature of the refusal to exercise the contractual right, it is hardly possible to put it under a resolutive condition.

6.3. Since the waiver of the exercise of a contractual right is a one-sided transaction, its exercise takes place in the form of sending a corresponding notice to the other party. Such a refusal gives rise to legal consequences from the moment the said notification is delivered to the addressee (Article 165.1 of the Civil Code).

6.4. At the same time, this rule should apply to the so-called second rights, that is, the rights that are exercised by one of the parties through one or another unilateral decision, as well as other similar powers (the right to set off, unilateral withdrawal from the contract, initiation of a claim for termination of the contract in response for a violation or a significant change in circumstances, a unilateral change in the contract, early reclaiming of a loan, etc.). Blocking the exercise of such a right means the loss of the opportunity to impose one or another legal effect on the other party by one's unilateral will or initiation of a corresponding claim.

At the same time, the provisions of this norm do not apply to the creditor's right to demand the performance of an obligation. If the creditor wishes to waive his right to claim, he must use the special institution of debt forgiveness (Article 415 of the Civil Code). Accordingly, in cases where, for example, the creditor declares to the debtor that he waives his right to demand payment of the accrued penalty, the rules on debt forgiveness should be applied: the corresponding claim is considered terminated if the debtor does not object within a reasonable time after receiving the relevant notification.

6.5. By virtue of a direct indication in paragraph 6 of Article 450.1 of the Civil Code, the refusal to exercise the right must be declared after the grounds for such a refusal have arisen. In cases where the parties wish to cancel a certain right of one of the parties in advance, they should sign an agreement to amend the contract. At the same time, there are no fundamental objections to the fact that a person, in anticipation of the emergence of grounds for exercising a certain right under the contract, could refuse to exercise such a right in advance, placing such a refusal under the condition that such grounds arise. This conclusion follows from the fact that the refusal to exercise the right is a unilateral transaction and, like any transaction, can be subject to a condition (Article 157 of the Civil Code).

At the same time, it seems that a pre-executed refusal to exercise the right assigned to one of the parties to the contract by the imperative norm of the law is impossible. The imperative nature of a norm that grants one of the parties a particular right means that the law does not allow the parties to agree on the deprivation of this right from this party. If this right cannot be taken away in advance by agreement of the parties, then it would hardly be logical if this right could also be blocked in advance by the unilateral will of the entitled party. At the same time, the subsequent renunciation of the relevant right granted to the party by the imperative norm of the law must be recognized by the courts, unless it is proved that the renouncing party did not know and should not have known about the emergence of the corresponding right at the time of the refusal. This approach, in particular, is reflected in Article II.-1:102 of the Model Rules of European Private Law, according to which the fact that the parties cannot derogate from the peremptory norm in the contract, which establishes this or that right of one of the parties, does not prevent the authorized party to refuse to exercise this right after it has arisen and this party has learned of its occurrence.

For example, it is not uncommon for the mandatory norms of the law to secure the right of a creditor who has suffered from a breach (in particular, improper performance) to withdraw from the breached contract. It is impossible to exclude such a right by contract, and equally, this right will not be blocked if the creditor declares that it is waived even before the violation has occurred. At the same time, if the creditor, already after the violation, declares to the violator that he refuses to exercise his right to withdraw from the contract in response to this violation, an attempt to exercise this right contrary to this statement should be stopped.

6.6. A serious question may arise in practice when distinguishing between the doctrine of waiver of contract law and the doctrine of estoppel. The principle of estoppel follows from the general prohibition on abuse of the right (Article 10 of the Civil Code) and the principle of good faith (clause 3 of Article 1 of the Civil Code). The essence of the operation of the estoppel rule is that a person loses a certain right belonging to him if, after the emergence of this right, this person, although he does not waive the right directly, behaves in such a way that creates reasonable expectations among other persons regarding that that this right will not be exercised. Inconsistent and contradictory behavior, taking into account specific circumstances, may be considered dishonest. In the European civilistic tradition, this principle is commonly referred to as venire contra factum proprium. The principle of estoppel is enshrined in Art. I.-1:103 of the Model Rules of European Private Law (“Conduct contrary to good faith and fair dealing is, in particular, conduct that is inconsistent with the prior statements or conduct of a party, provided that the other party, acting to its own detriment, reasonably relied on them”), as well as in Article 1.8 of the UNIDROIT Principles (“A party cannot act inconsistently with a certain understanding that has arisen for reasons within its control on the other side and bearing in mind which this other side, reasonably relying on him, committed an action to her own detriment. In Russian judicial practice in recent years, the principle of estoppel has been actively applied, including with its direct mention in the text of decisions (Determination of the Supreme Court of the Russian Federation of October 9, 2014 No. 303-ES14-31, Resolutions of the Presidium of the Supreme Arbitration Court of June 24, 2014 No. , dated April 23, 2012 No. 1649/13, dated March 22, 2011 No. 13903/10). Moreover, a number of new norms of the Civil Code of the Russian Federation introduced certain manifestations of this principle (clause 2 of article 166 of the Civil Code, clause 5 of article 166 of the Civil Code, clause 2 of article 431.1, clause 3 of article 432, clause 5 of article .450.1).

The issue of distinguishing between the waiver of contractual law in accordance with paragraph 6 of Article 450.1 of the Civil Code and the loss of the right in connection with the application of the estoppel rule requires serious scientific analysis. At the moment, one of the obvious differences is that the waiver of the contractual right is carried out in the form of a directly expressed will, while the loss of the right under the estoppel rule is derived from the conclusive behavior of the authorized person and a set of specific circumstances; at the same time, if the entitled person did not really want to lose the corresponding right, this does not prevent the application of the estoppel rule, since the latter rule primarily protects the reasonable expectations of other persons.

Legal science and judicial practice will have to highlight other differences, which at the moment do not appear quite clearly. For example, in foreign law, as one of the conditions for applying the estoppel doctrine, proof is often singled out that the relevant behavior of the authorized person not only created appropriate reasonable expectations in another person, but provoked this other person to rely on these expectations and take certain actions or refrain from them on the basis that the relevant right will not be exercised. Accordingly, in order to apply the doctrine of estoppel or its European counterparts, it is often necessary to prove that the exercise of a right will not only undermine reasonable expectations, but will also cause damage to another person who relied on these expectations and built his behavior on the basis of non-exercise of the specified right. If this criterion for the application of the estoppel principle finds support in Russian law, then there will be another difference between this principle and the waiver of contractual rights, since in order to waive contractual law it is quite enough that the authorized person clearly and clearly expresses his will, and the criterion of damage is not matter.

7. According to clause 7 of article 450.1 of the Civil Code, a law, other legal act or agreement may provide that the refusal to exercise the right will be considered to have occurred automatically if such right is not exercised within the period specified in the law, other legal act or agreement. As already noted, the provisions of clause 6 of Article 450.1 of the Civil Code on the waiver of contractual rights do not apply to the creditor's right to claim for an obligation, since the waiver of the right to claim is carried out according to the rules of the Civil Code on debt forgiveness. Accordingly, the provision of clause 7 of Article 450.1 of the Civil Code on “tacit waiver of the right” is not applicable to the right of claim under an obligation. At the same time, it seems that it is impossible to agree in the contract that the creditor's failure to file a claim for the performance of an obligation within a certain period will be regarded as debt forgiveness. The explanation here is based on a systematic interpretation of the legislation: according to Article 198 of the Civil Code, the parties to the contract cannot change the terms by their agreement limitation period. In itself, this provision is quite debatable, but it is clearly enshrined in the law. Of course, blocking the exercise of the right to claim under an obligation is not exactly identical in consequences to the expiration of the limitation period, but in fact aims at the same result. Accordingly, the condition of the agreement that the failure of the creditor to file a claim with the court within the period specified in the agreement blocks the possibility of judicial protection of this right cannot be used to actually circumvent this imperative prohibition of the law.

The global financial crisis from the banking sector slowly came close to entrepreneurs. The payment crisis forced some companies to reconsider the terms of their contracts. Some agree to more or less loyal measures to postpone or novate existing obligations, while others take tough measures to terminate contracts. Arbitration and judicial practice helps to properly formalize a change or break in a relationship.

The rules that give the parties the right to unilaterally refuse to perform the contract are contained in the relevant sections of the Civil Code of the Russian Federation, dedicated to certain types of contracts. The rules for contracts of sale, supply, energy supply and contract are presented in the table.

Disputes arising from the unilateral termination of contracts, the courts decide in different ways.

Termination rule in the contract

According to the materials of the case, the company (executor) applied to the arbitration court with an application to invalidate the decision of the prefecture of the city of Moscow to hold a repeated tender for design work on the construction and laying of engineering communications. Having dismissed the claim, the court proceeded from the fact that, by agreement of the parties, the contracts concluded by the State Unitary Enterprise (customer) with LLC were terminated. Since the possibility of terminating contracts unilaterally due to non-execution of the order by the contractor (which was the company), the parties provided for when they were concluded.

Since the possibility of unilateral termination of contracts was agreed upon by the parties in the contracts themselves, the courts of all instances came to the conclusion that the unilateral termination of contracts that took place complies with the provisions of the current legislation.

The same fate befell the license agreement, under the terms of which each of the parties had the right to terminate it by warning the other party 6 months before the termination of the agreement (Determination of the Supreme Arbitration Court of the Russian Federation dated 11.07.2008 No. 9085/08).

On the basis of the specified paragraph, the license agreement was declared terminated, and the defendant was declared obliged to stop using the invention protected by the patent of the Russian Federation.

Instead of money - loss of a client

This is exactly the result of economic activity received by one extremely short-sighted insurer (Determination of the Supreme Arbitration Court of the Russian Federation of September 15, 2008 No. 11062/08).

According to the terms of the vehicle insurance contract concluded by him, the insurance premium was paid in four installments. Due to the fact that time passed, and the client paid only one installment, the insurer went to court with a claim to recover the resulting debt, where he was surprised to find that there was actually no contract.

And the reason is that, in accordance with the Insurance Rules, which are an annex to the contract, the defendant's failure to pay insurance premiums was recognized as the basis for terminating the contract. So at the very first delay in paying insurance premiums by the client, the insurance contract ordered a long life.

As noted by the court, according to paragraph 3 of Art. 954 of the Civil Code of the Russian Federation, if the insurance contract provides for the payment of an insurance premium in installments, the contract may determine the consequences of non-payment of regular insurance premiums on time. In accordance with the terms of the contract, its effect after the failure to pay the next insurance premium ceased, from the same time the insurer's obligation to bear the risk of liability, which is provided by insurance premiums, ceased, therefore, the basis for their payment was eliminated.

So everything is natural. True, the question remains: did the insurance organization achieve this goal by signing the insurance contract?

Pre-trial rental disputes

Non-payment of lease payments is an unconditional basis for unilateral termination of the lease agreement. So decided the Supreme Arbitration Court of the Russian Federation in the Definition of September 10, 2008 No. 11484/08. At the same time, one should not forget about the rules for observing the pre-trial procedure for resolving a dispute in the form of sending notifications to the “guilty” party about the need to repay the debt within a reasonable time (part 3 of article 619 of the Civil Code of the Russian Federation). Moreover, the conditions for terminating the lease at the request of the lessor are exhaustively defined in Art. 619 of the Civil Code of the Russian Federation.

LETTER OF THE LAW

Article 619 of the Civil Code of the Russian Federation

At the request of the lessor, the lease agreement may be prematurely terminated by the court in cases where the lessee:

1) uses the property with a material breach of the terms of the contract or assignment of the property, or with repeated violations;

2) significantly deteriorates the property;

3) fails to pay the rent more than twice in a row after the expiration of the payment term specified in the agreement;

4) does not produce overhaul property within the terms established by the lease agreement, and in the absence of them in the agreement within a reasonable time in those cases when, in accordance with the law, other legal acts or the agreement, capital repairs are the responsibility of the tenant.

Strength in proof

However, we should not forget that in any case it will be necessary to prove in court the validity of a unilateral change (termination) of the contract.

Thus, the bank's right to change tariffs unilaterally remained unchanged.

This judicial precedent takes on a special meaning now, when, due to the financial crisis, many lending institutions are rushing to take advantage of such unilateral rights, which are included in advance in loan and other banking agreements.

Lack of real opportunities

The impossibility of performing work according to the terms of reference agreed by the parties may also become grounds for termination of the contract. This conclusion was reached by the Federal Antimonopoly Service of the North-Western District in its Resolution dated 01.09.2008 in case No. A56-4593/2007, considering the claim for termination of the contract for development and technological work. In this case, an agreement was concluded between the companies, according to which the contractor undertook to develop working design documentation for the customer for the project of power plant modernization using specific domestic equipment. In addition to the development, the functions of the contractor include the coordination of documentation in the regulatory authorities.

After receiving the prepayment amount, in the course of fulfilling obligations, the contractor came to the conclusion that it was impossible to perform work using the equipment selected by the customer, and other equipment options were proposed. The customer refused to replace the equipment due to the increase in the cost of the results of the modernization and considered it inappropriate to continue the work, sending a notice to the contractor about the termination of the contract and the return of the advance payment. The contractor refused to return the prepayment received, in connection with which the dispute was referred to the court.

LETTER OF THE LAW

If in the course of research work it is discovered that it is impossible to achieve results due to circumstances beyond the control of the contractor, the customer is obliged to pay the cost of work carried out before it was discovered that it was impossible to obtain the results provided for in the contract for the performance of research work, but not more than the corresponding part of the price of work specified in contract.

The court found that the performance of work in accordance with the terms of reference agreed with the customer and the transfer of their results to the customer turned out to be really impossible. The court concluded that there were circumstances that are provided for in paragraph 2 of Art. 451 of the Civil Code of the Russian Federation, allowing the party to the contract to judicially change or terminate the contract unilaterally.

LETTER OF THE LAW

If the parties have not reached an agreement on bringing the contract in line with the significantly changed circumstances or on its termination, the contract may be amended or terminated by the court at the request of the interested party, if the following conditions are simultaneously present:

at the time of the conclusion of the contract, the parties proceeded from the fact that such a change in circumstances would not occur;
the change in circumstances is caused by reasons that the interested party could not overcome after they arose with the degree of care and diligence that was required of it by the nature of the contract and the conditions of turnover;
the execution of the contract without changing its terms would so violate the balance of property interests of the parties corresponding to the contract and would cause such damage to the interested party that it would largely lose what it had the right to count on when concluding the contract;
it does not follow from the customs of business transactions or the essence of the contract that the risk of a change in circumstances is borne by the interested party.

Inflationary processes

We must not forget that, at the request of one of the parties, the contract may be amended or terminated by a court decision and in other cases expressly provided for by the relevant laws (subclause 2, clause 2, article 450 of the Civil Code of the Russian Federation).

Having established that the relevant certificate for the implementation of airport activities was canceled from the tenant, the court established the impossibility of the tenant fulfilling the obligation to provide airfield services.

Thus, a clause of the investment agreement established that in case of untimely fulfillment by the parties of the obligations stipulated by the specified agreement in terms of the terms of the investment project, the terms for the implementation of the stages were proportionally changed “provided that the parties accept the reasons for the failure to meet deadlines, eliminate these reasons and set new deadlines agreed parties to the supplementary agreement.

Despite the failure to meet the deadlines for the implementation of the investment project, the parties to the investment agreement did not change the deadlines for the implementation of the stages in a commensurate way, new deadlines were also not assigned, and an additional agreement was not signed. In this connection, on the basis of paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, the contract was terminated by the court at the claim of one of the parties.

GROUNDS FOR UNILATERAL REFUSAL TO PERFORM CERTAIN CONTRACTS

Contract of sale

For the seller

For the buyer

Refusal of the buyer to accept and pay for the goods (clause 4 of article 486 of the Civil Code of the Russian Federation)

Delay in payment by the buyer of the next payment for goods purchased by installments (clause 2 of article 489 of the Civil Code of the Russian Federation)

The seller's refusal to transfer to the buyer the sold goods, accessories and documents related to the goods (Articles 463, 464)

If the contractor does not start the execution of the work contract in a timely manner or performs the work so slowly that it becomes clearly impossible to complete it by the deadline (Clause 2, Article 715 of the Civil Code of the Russian Federation)

If during the performance of the work it becomes obvious that it will not be performed properly, the customer has the right to set a reasonable time for the contractor to eliminate the deficiencies (clause 3 of article 715 of the Civil Code of the Russian Federation)

Unless otherwise provided by the work contract, the customer may at any time prior to the delivery of the result of work to him refuse to perform the contract by paying the contractor a part of the established price in proportion to the part of the work performed before receiving notice of the customer's refusal to perform the contract (Article 717 of the Civil Code of the Russian Federation)

If deviations in work from the terms of the work contract or other shortcomings in the result of work have not been eliminated within the reasonable time period set by the customer or are significant and irremovable (clause 3 of article 723 of the Civil Code of the Russian Federation)

Refusal of the customer to increase the price of work established in the contract with a significant increase in the cost of materials and equipment provided by the contractor, as well as services provided to him by third parties that could not be foreseen at the conclusion of the contract (Article 451, clause 6 of Article 709 of the Civil Code of the Russian Federation)

In cases where the breach by the customer of his obligations under the work contract, in particular the failure to provide material, equipment, technical documentation or a thing subject to processing (processing), prevents the contractor from fulfilling the contract, as well as in the presence of circumstances that clearly indicate that the performance of these obligations is not will be made within the prescribed time (Article 328, paragraph 1 of Article 719 of the Civil Code of the Russian Federation)

In the event of the impossibility of using the materials or equipment provided by the customer without deteriorating the quality of the work performed and the customer refusing to replace them (clause 3 of article 745 of the Civil Code of the Russian Federation)

As we have already noted, at the request of one of the parties, the contract may be amended or terminated by a court decision in case of a material breach of the contract by the other party.

The concept of definition material breach is formulated in paragraph 2, clause 2, article 450 of the Civil Code of the Russian Federation: A violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract.

At first glance, this concept is a sufficient criterion for changing (or terminating) the contract, meanwhile, despite the clarity of the legislative wording, in practice, reasonable questions arise: who is responsible for proving a “material breach of obligation” and, as a consequence, the occurrence of damage in the future? Should the harm already occur or can the party "foresee" the occurrence of harm in the future?

Let us first of all conduct an in-depth analysis of the “material breach”.

So, a significant breach of the contract by one party should entail damage to the counterparty, while the legislator names the conditions when the counterparty “is largely deprived of what he expected when concluding the contract” as a criterion for the “amount of damage”.

Thus, the following conditions must be present:

- violation of the terms of the obligation (norms of the contract or law), the fault of the counterparty;

- damage (the occurrence of damage or the possibility of its occurrence);

- the presence of a causal relationship between the violation and the occurrence of damage (the threat of damage).

The materiality of the breach of contract is determined on the basis of the terms of the contract. Meanwhile, there may be cases when a “substantial breach of contract” is predetermined by law. So, for example, in accordance with Article 523 of the Civil Code of the Russian Federation, repeated violation of the terms of payment for goods under a supply contract is a material breach of the contract.

Violation of a contractual obligation, as a consequence, should entail the onset of damage. Damage may be already done, or there may be conditions for possible damage other side.

We disagree M.S. Kamenetskaya noting that "the fact of damage must already be present." It seems the correct point of view of Professor A.Yu.Kabalkin, who believes that "the party ... must prove that it may suffer damage if the contract continues." In our opinion, if the legislator meant only “the fact of the occurrence of damage”, thereby making the bona fide party to the contract dependent on the occurrence of damage, which is not a criterion for efficient operation and a healthy economy; would deprive the conscientious party to the treaty of the means of protecting his interests. So, for example, the concept of the materiality of a breach of contract may also be associated with the infliction of non-property damage, for example, in gratuitous contracts.

The next issue that needs to be addressed is the amount of damage. As noted by the authors of one of the comments to the Civil Code of the Russian Federation T.E. A bova, A.Yu. Kabalkin: “The concept of the materiality of a breach of contract is based primarily on the application economic criterion". . When assessing damages, the legislator speaks of the occurrence of consequences, as a result of which the party "is largely deprived of what it had the right to count on when concluding the contract." Thus, the criterion is what the interests of the parties were directed to when concluding the contract - otherwise the subject of the contract (price, end result, etc.).

However, the term "damage" should not be construed restrictively. In addition to possible high additional costs, non-receipt of income, it includes other consequences that significantly affect the interests of the party. This approach of the legislator is clearly seen in the analysis of certain provisions of the Civil Code of the Russian Federation. For example, under a life annuity agreement (Article 599 of the Civil Code of the Russian Federation), the very fact of its non-payment on time entitles the recipient of the annuity to demand termination of the agreement. In particular, the transfer of goods with irreparable shortcomings, with shortcomings that are detected repeatedly or appear again after their elimination is recognized as a significant violation of the contract of sale, in particular, (clause 2 of article 475 of the Civil Code of the Russian Federation).

Determining the expediency of terminating the contract, the courts evaluate the relations that have developed between the parties and take into account the economic goal of the state - maintaining the stability of civil circulation. A party alleging a fundamental breach of contract must provide the court with appropriate evidence of its existence.

Often, demands for termination of the contract are made lawfully and reasonably, but during the proceedings, the defendant eliminates the violations committed by him, which served as the basis for termination. Are such requirements subject to satisfaction? And the analysis of practice shows that, as a rule, courts refuse plaintiffs. So, for example, the court dismissed the claim for termination of the lease due to non-payment of rent payments, since the tenant paid the debt for the period specified in the claim. At the same time, the court referred to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 5, 1997 No. 14 “Review of the practice of resolving disputes related to the conclusion, amendment and termination of contracts”, namely clause 8, establishing that t the request to terminate the contract is not subject to satisfaction if the violations that served as the basis for applying to the arbitration court are eliminated within a reasonable time.

In judicial practice, there is no generally accepted approach to this issue. It seems that when analyzing the termination (change) of the contract under the condition under consideration, the key criterion should be “damage” or “possibility of damage in the future”. So, for example, if, under a non-residential premises lease agreement, the defendant allowed the condition of the non-residential premises to deteriorate, but did not eliminate these circumstances (did not repair the premises), this is a criterion for terminating the agreement due to its material violation. If, by the time of applying to the court, the premises had been repaired, the circumstances for terminating the contract had disappeared. Moreover, such violations must be eliminated within a reasonable time.

Once again, we emphasize that the judicial practice on this issue is contradictory, in this regard, it seems necessary to develop an appropriate position by the supreme courts of the Russian Federation in an appropriate review of practice or an information letter.

Thus, a violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract. The party that filed a claim in court to amend or terminate the contract must prove that if the contract continues, it may suffer damage in the form of lost profits and those costs that arose in the process of fulfilling the contract. The very fact of the existence of such a violation does not serve as a basis for termination of the contract if the violation is eliminated within a reasonable time.

The party that has declared a unilateral refusal in connection with a material breach of the terms of the contract by the counterparty has the right to present him with claims for compensation for losses caused by the termination or amendment of the contract (clause 5, article 453 of the Civil Code of the Russian Federation).

Often, in practice, both parties to the contract insist on its termination (change) in view of a material breach, in this regard, it is important to emphasize that the court must find out who really materially violated contractual obligations. Clarification of this circumstance is essential insofar as losses are subject to compensation in case of illegal behavior of the counterparty (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 30, 2000 No. 5323/97) .