Art. 421 Civil Code of the Russian Federation with comments

Foreseen in Art. 421 of the Civil Code of the RF the freedom of the contract applies to all organizations and citizens. The norm does not permit coercion to execute transactions, except when such obligation is imputed to a subject in accordance with the legislation or voluntary expression of will expressed earlier. Let's consider in detail art. 421 Civil Code of the Russian Federation (with comments).

Specificity of legal relations

In accordance with paragraph 2 of Art. 421 of the Civil Code, individuals can enter into an agreement provided for or not provided for by legislative and other regulatory enactments. The rules on certain types of contracts established in legal documents are not applied to the latter. This provision applies to agreements in which there are no signs defined by cl. 3 of Art. 421 Civil Code of the Russian Federation. This rule, however, does not exclude the possibility of applying the analogy of the law to individual relations of participants in the transaction. The parties can draw up an agreement, which contains elements of different contracts provided for in the law or other acts (mixed contract). To legal relations arising in such cases, the rules established for agreements whose elements were used, unless the other does not proceed from the substance of the transaction or are not established by the participants themselves, are applied.

Features of the conditions

They are defined in art. 421, 422 of the Civil Code of the Russian Federation. In accordance with the first rule, the conditions are established by agreement of the parties to the transaction. The exception is cases where the essence of a contract item is prescribed by law or other legal act. This provision is established art. 422. If the condition of the transaction is provided in the norm, the application of which is allowed insofar as the participants do not determine the other, they can exclude its use. The parties have the right to formulate and other circumstance, different from those present in it. If there is no such agreement, according to cl. 4, Art. 421 of the Civil Code of the Russian Federation, the transaction condition is established by the dispositive rate. If circumstances are not determined by it or by the parties, they are provided in accordance with the customs applicable to these relations.

Art. 421 Civil Code (with comments)

The relations of participants in civil turnover are based on their mutual legal equality. Part 1 of Art. 421 of the Civil Code directly indicates this. In the relationship of subjects, authoritarian submission to each other is excluded. This, in turn, means that the conclusion of an agreement and the definition of its terms are only voluntary and are based on the interests of the parties. The principle of freedom of contractual relations, thus, forms one of the principles of regulating the sphere of private law. It is in its social and economic significance in line with the recognition of the inviolability of individual property.

Practical manifestations of the provisions

According to the rules of Section 1, Art. 421 of the Civil Code of the Russian Federation, the subjects entering into the transaction are entitled to independently determine:

1. The need to conclude a transaction. Their will must be exclusively voluntary without any coercion.
2. The legal nature of the agreement. Participants themselves in accordance with their needs determine the nature of business relations.
3. The contents of the contract. The parties agree mutually beneficial terms of cooperation.

In addition, freedom of contract can also be manifested in other aspects. For example, in accordance with the general rule, participants can terminate the transaction by mutual consent.

Exclusion of compulsion

In accordance with Art. 421 of the Civil Code of the Russian Federation, participants in the turnover independently decide whether to enter into a relationship or abstain from doing so. None of the parties is obliged to accept certain conditions against their own will. Legislation allows a compulsory conclusion of an agreement, but only as an exception to the rule. This is the case, for example, if the corresponding obligation is provided for in regulations or on a condition voluntarily accepted earlier. Art. 421 of the Civil Code of the Russian Federation indicates the cessation of the socialist practice adopted at the time. During the Soviet era, the obligation to conclude agreements on the basis of various planned and other administrative acts was extended. Accordingly, the basis for the existence of such a category as economic contracts has disappeared.

Determining the nature of relations

Art. 421 of the Civil Code of the Russian Federation establishes the right of subjects to choose independently which agreement they should enter into. They can sign the contract as stipulated, and not defined by the law and other norms. The latter is called an "unnamed contract." In this case, of course, such an agreement should not conflict with the provisions of existing legislation and comply with the fundamental principles of civil turnover. Modern law does not establish a specific and exhaustive list of agreements. Subjects are also not required to customize the terms of the transaction for one of the varieties known to the norms.

This circumstance is extremely important in the existing economic system, where legal registration often lags behind the economic needs of the subjects. So, for example, many transactions that are being made today on currency, stock exchanges, far from all cases have prototypes fixed in the legislation. The ability to execute unnamed agreements allows the subjects of civil turnover to independently eliminate existing gaps in the norms arising from the complication and continuous development of business relations.

Mixed contracts

They should be distinguished from unnamed contracts. Mixed contracts are called, in which elements of other agreements established in legislative and other normative documents are present. Accordingly, these rules are governed by rules governing contracts, the components of which were taken by the entities. For example, in Art. 501 of the Code establishes the possibility of registering a hiring-sale agreement. In accordance with it, the acquirer must first become an employer. Prior to the implementation of the object to the relations of the parties, the rules on leasing are applied. After the transfer to the tenant of the property rights, provisions for the sale and purchase will be used.

A loan agreement is considered a mixed bank account. It is envisaged in art. 850 of the Code. Such an agreement is also called an overdraft. Under the terms of such an agreement, the bank will repay the claims of the client's creditors within the established limit even in the absence of funds on the account or for a larger amount than there is on it.

Nuances

Legislation does not impose any obstacles to the conclusion of an agreement, in which elements will be present, both established and not established by norms. Despite the fact that it will not be considered mixed in the sense of part three of Art. 421 of the Civil Code of the Russian Federation, will be applied to it in the relevant parts of the rule on the named contract. Under the remaining conditions, the document will be evaluated for compliance with the first clause of Art. 8 of the Code.

A mixed agreement must be distinguished from an integrated one. The latter assumes the existence of a set of several independent contracts, the terms of which are established by a single document. For example, in a supply contract there may be points about cargo insurance, transportation, storage and so on. The existence of these conditions does not require the registration of different contracts, but does not lead to the emergence of a single act.

The meaning of dispositive norms

These provisions are often used in the process of regulation of contractual relations. Dispositive norms act as conditions only when the parties could not agree on a particular issue in another way or did not exclude their use within the framework of their transaction. Their key feature is their ability to determine the possibility of deviation from the rules contained in them. In this regard, the application of dispositive principles acts as one of the forms of freedom of contractual relations. These rules, for example, include the rules for the fulfillment of obligations (partial repayment, deferral, installment), compliance with deadlines, determining the place of performance, and so on.

In fact, in the dispositive provisions, some kind of clues are created for the bargain participants about the additional conditions. The possibility of using such norms compensates for the lack of will of the parties regarding a number of missing points of the agreement. The rules that are set out in the regulations represent the best option for a particular condition.

Application of customs

It is allowed in clause 5 of this article. The ability to use customs helps fill existing gaps in standards. In connection with the fact that the rule of conduct, which is not directly established in the law, but is developed independently and widely applied in a particular area of entrepreneurial activity, its implementation in practice is also considered a manifestation of freedom of contractual relations. Accordingly, a particular custom becomes an additional (subsidiary) source of law. It is regarded as a contractual condition when the participants in the transaction did not directly agree on a particular circumstance and it is not established in the dispositive provisions of the law.

Restrictions

They are inevitably established in the sphere of business relations between subjects. First of all, the content of any agreement should not contradict the imperative norms of legislation or other legal documents, otherwise the transaction will be recognized as null and void. In some cases, restrictions are due to the development of a market model that is not able to function normally in their absence. For example, they are set for monopolists who can not impose contract terms on contractors, using their dominant position and the inability of the end user to contact another producer, that is, in violation of the principle of competition.

The bodies regulating the activities of such economic entities may establish a circle of persons who are subject to compulsory servicing, determine tariffs or their limiting values for the output.

It would be illegal to impose deliberately disadvantageous conditions on counterparts, or an unjustified refusal / evasion from entering into an agreement. Such actions are regarded as a manifestation of unfair competition.

The contract prohibits the abuse of the right, including the freedom to conclude transactions. It can also be regarded as a restriction. The application of this prohibition is justified, for example, in cases when a banking institution, acting as a party to a loan agreement, imposes on the client a disproportionate amount of a penalty for delay and requires its enforcement, while referring to the freedom of the contract.