Article 5 of the Civil Code of the Russian Federation: "Customs of business turnover"

Customs of business turnover art. определяет как устоявшиеся и широко используемые в той или иной сфере предпринимательской и прочей деятельности, не предусмотренные законодательством правила поведения, вне зависимости от их фиксации в документах. 5 of the Civil Code defines as established and widely used in this or that area of entrepreneurial and other activities, rules of conduct not provided for by law, regardless of their fixation in documents. Models that contradict the provisions of the treaty or the norms binding on the participants of the relationship are not applied in practice. Let's consider further art. . 5 of the Civil Code of the Russian Federation with comments .

General information

In paragraph 1 of Art. дается определение общепринятому правилу поведения субъектов. 5 of the Civil Code of the Russian Federation defines the generally accepted rule of behavior of subjects. It can be fixed in any documents or not. From the content of the norm comes the recognition of custom as one of the sources of civil law. Together with this, the legislation, as well as the international treaty, stand above its legal strength. It is necessary to note one nuance. The generally accepted rule defined in Art. , не применяется при наличии диспозитивных нормативных положений, регламентирующих соответствующие отношения. 5 ч. 1 ГК the Russian Federation , is not applied at presence dispositional standard provisions regulating corresponding attitudes. One important conclusion follows from this. A specific generally accepted rule applied to contractual relations of economic entities becomes an additional (subsidiary) source in the event that the parties to the agreement have not agreed any condition and it is not determined by a dispositive normative provision.

Features of terminology

The category defined in clause 1 of Art. , обладает специфическим характером. 5 of the Civil Code of the Russian Federation , has a specific character. It involves participation in specific relations of subjects who professionally carry out economic (entrepreneurial) activities. The concept of turnover is associated, first of all, with contractual and other obligatory interactions of persons. Moreover, it is not exhausted by them, but refers to any case of transfer of duties and rights from one subject to another, that is, to the manifestation of both full and partial succession. Simply put, the concept defined by Art. связано с динамикой правоотношений и не касается сфер, в которых используются иные правила. 5 of the Civil Code, is associated with the dynamics of legal relations and does not apply to areas in which other rules are used. For example, it may be the local tradition of acquiring certain publicly available things to collect things.

Scope

In view of the foregoing, it can be noted that the field of distribution of customs of turnover is in practice limited to binding (usually contractual) relations in which entrepreneurs participate. This is indicated by the possibility established in Article 427 of the Code to record such generally accepted rules in the form of approximate terms of the agreement, their subsequent use within the framework of a specific transaction, in the absence of a direct reference to these circumstances. In this sense, the rules of the sea port are included in the customs of the traffic. This is due to the fact that the latter also regulate the contractual relations in which entrepreneurs participate. Port customs are defined in the legislation as rules of conduct, established and widely used in the provision of services in seaports and not defined by Russian law.

Specificity

A generally accepted rule, considered in Art. , является сложившимся. 5 of the Civil Code , is established. That is, it is considered quite specific in its content. In this case, as indicated in Art. , оно довольно широко используется в той или иной предпринимательской сфере. 5 of the Civil Code , it is widely used in this or that entrepreneurial sphere. For example, it may be the tradition of fulfilling one or another of the contractual obligations. The customs of the turnover are part of a broader, but at the same time less definite category of "usually imposed requirements." This follows from Art. 309 of the Code and a number of special rules.

The requirements imposed usually include not only specific rules of conduct, but also regulatory requirements for the object of a contractual or other obligation. The first can be considered, for example, the conditions that in the absence of instructions in the compensated contract for the cost of performance, in accordance with Art. 424, item 3, pay at the price, which is usually charged in comparable circumstances for similar products, works or services. With regard to the requirements for the object, it can be standards for quality, standards for packaging and so on. As you can see, the usual regulations can be directly established in the legislation or in the contract. Meanwhile, neither the agreement nor the norms characterize the requirements, leaving their definition to the discretion of the parties in a particular situation.

Customs and customs

These two concepts should also be distinguished from each other. Ordinances are considered as a rule, formed in property relations, to which the parties to the transaction agreed to be guided. In this connection, it acquires its legal significance for these subjects. At its core, wont is an implicit condition of a specific contract, filling the gap in content. If there is no direct reference to it in the agreement, and the intention of the participants of the relationship to guide them is not proved, it loses its civil-law significance and is not taken into account. In this case, the custom of turnover will act directly in the absence of special instructions to it in the contract or law.

The established practice

The category considered in Art. необходимо отличать и от порядка, установленного участниками предпринимательского договора. 5 of the Civil Code of the Russian Federation, it is necessary to distinguish and from the order established by participants of the business agreement. The current practice also reflects certain implied terms of the transaction, which, not being directly fixed, were in fact observed by the participants in the previous relations and, thus, reflected their agreed will. In this regard, the established order has a certain priority over custom.

An Important Moment

In accordance with clause 2 of the commented article, the customs of turnover, which come into conflict with legislative norms or contractual terms, are not applicable. It follows that they can be used only in the absence of direct legal regulation of a particular relationship or the relevant regulatory conditions in the agreement. In this connection, the customs are inferior to the dispositive norm, and to custom, and to the established order (the established practice).

Along with this, the last two categories do not act as sources of law. This circumstance fundamentally distinguishes them from the customs of turnover, which, in turn, under the conditions indicated above, are applied to relations, regardless of the will of the participants. Port regulations should not contradict either international agreements or domestic legislation of the country. In addition, they must be consistent with the generally recognized principles of international law, but not be limited to the application of the terms of individual civil law contracts.