The modern civilistic doctrine adheres to the traditional understanding of the contract in several aspects. In other words, the term "contract" can denote several phenomena of a legal nature that are different in nature: a legal fact or transaction, the legal relationship itself that arose on this basis, or the form of an action (a written document).
In the vast majority of cases, the contract is understood only in the first of the above meanings, that is, as a transaction.
The understanding of the contract as one of the main means for regulating relations between individuals remains generally recognized. At the same time, none of the above concepts reflects the regulatory nature of the contract. In such a concept, that is, as a regulator of the actions of two parties, the contract does not coincide with the concept of a transaction.
In the theory of law, in general, as in the theory of civil law, in particular, a transaction is understood as a kind of legal fact, which is understood as such a circumstance of reality, with which the norms of the law directly connect the emergence, change or termination of civil legal relations.
The concept of the subject of the contract
Definition 1
The subject of a civil contract is the result of a direct agreement between the parties, in which one can see the direction of the will of the parties to the contract on the object, in connection with which the parties have rights and obligations after the conclusion of the contract, as well as those actions that the parties undertake to perform in order to achieve the desired legal goal for the sake of which it became necessary to enter into a contractual relationship.
The subject of the contract should not be confused with the subject of the obligation. Since the time of Roman private law, the subject of an obligation has traditionally been considered the actions of the debtor, which are aimed at the object, in connection with which contractual rights and obligations have arisen. A legal fact occurs before an obligation arises, since the contract is first agreed upon and signed by the parties, and then the parties have rights and obligations that correspond to each other. The rights and obligations of the parties are not in themselves the subject of the contract.
Definition 2
The subject of the contract is such an essential condition of the contract, upon reaching an agreement on which it is considered concluded. The subject of a particular agreement may be strictly enshrined in law, or may follow from the general meaning of civil law or other similar agreements.
The subject of the contract must be clearly stated by the parties in the text of the document. So, when concluding a contract of sale, the contract must accurately describe the goods that the buyer purchases from the seller: its quantity, measure, weight.
Types of the subject of the contract
The classification of the types of objects of the contract directly depends on the classification of the contracts themselves, since the subject is that special essence of any contract, with the help of which its legal nature is determined. There is no need to bring the entire classification of contracts, we will indicate here only some examples:
In this case, the subject of the contract will be the result of the work.
- The subject of the loan agreement will be money or other things transferred to the debtor and determined by generic characteristics.
- The subject of the transaction in the assignment of a monetary claim will be the claim itself.
- The subject of the commission agreement will be understood as specific goods transferred to the commission agent.
- The subject of an agency agreement is the activity of an agent, which can be understood as the performance of a certain type of work or the provision of services.
The subject of the contract is one of the basic concepts of contract law. A written agreement of the parties has essential conditions - integral characteristics, without which it does not make sense. In their absence, the onset of legal consequences is impossible. As a rule, in the text of the law, in each case, the essential conditions are spelled out. But, according to the Civil Code, the subject of the contract is such, even if it is not expressly established by the article.
An essential condition inherent in any contract, for obvious reasons, formed the basis of one of the basic classifications of agreements. So, the subject of the supply contract is the extracted raw materials, means of production and fuel. This also includes the materials that were produced. The definition of this established by the Civil Code does not contain an indication of an essential condition. Therefore, it is that about which the agreement is concluded - the supplied materials.
The object, in turn, is money. The latter, however, are not represented by specific banknotes, but the reason is that credit institutions provide their customers with funds in non-cash form. Therefore, in fact, the contract establishes a change in the owner of the amount of money on certain conditions.
Thus, the subject of the contract is an individualized object, about which legal relations arise between the subjects. The ability to consider a specific type of contact as an independent and unique form of agreement depends on the accuracy and correctness of the definition of an essential condition.
An incorrectly formulated subject of the contract in this case can entail not only a change in the classification and study of the contract as a variety of an already existing type of transaction, but also practically significant consequences. The latter can be represented as an extension of the general characteristics of an agreement located higher in the hierarchy to a contract that is erroneously considered as its subspecies.
As a result, the transaction is endowed with legally significant qualities that were not originally related to it, the essence and legal consequences of the contract change. Civil circulation continues to need a unique contract, the subject of which was incorrectly individualized, and the legislation is replenished with another unclaimed norm, moreover, not provided with an effective implementation mechanism.
It develops, forcing the right to adapt, and the legislator develops (or borrows) new forms of legitimation of economic relations. Of course, practice presents situations that need an individual approach and regulation. But the analysis of civil law practice allows us to conclude that the current state corresponds to the basic needs of economic entities. At the same time, the correct solution of topical issues of this sub-sector (institution?) of legislation will allow economic activity to develop at an even more impressive pace.
In accordance with paragraph 1 of Art. 702, paragraph 1 of Art. 703, Art. 726 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the subject of a work contract is recognized work and results. The work to be done is defined through its content and volume. These concepts are contained only in the rules on construction contracts, but are also used when agreeing on the subject of a contract for the performance of other types of work.
If the subject of the contract is not agreed the contract may be recognized as not concluded (clause 1 of article 432 of the Civil Code of the Russian Federation).
However, if the customer fully or partially accepted the performance under the contract or otherwise confirmed its validity, he is not entitled to demand that the contract be recognized as not concluded, as this may be contrary to the principle of good faith (clause 3 of article 432 of the Civil Code of the Russian Federation).
The content of the work under the contract
This condition determines what kind of work is to be performed under the work contract and what actions within the framework of this work the contractor must perform.
- making things from the contractor's own materials;
- production of a thing by processing a thing (material) of the customer;
- processing of a thing provided by the customer;
- performance of other work that has a tangible (materially expressed) result that is transferred to the customer, for example, installation, assembly or disassembly of a thing provided by the customer.
In this regard, when agreeing on the content, it is also necessary to determine the result of the work.
To agree on the content of the work, the parties are recommended to determine the following in the contract:
- list of works to be performed and their composition;
- the thing transferred to the contractor (in the case of the conclusion of a contract for the processing of the thing).
If the parties do not agree on the terms of the content of the work, then the subject of the contract may be recognized as inconsistent.
Scope of work under the contract
It is a quantitative characteristic of the actions performed by the contractor and their result. To agree on the scope of work, the parties must provide information such as:
- the number of things of the customer to be processed, processed, destroyed (for example, the volume of processed raw materials, the number of trees to be cut down, parts to be painted or furniture to be repaired);
- the number of actions that must be performed by the contractor when performing work (for example, double painting parts);
- dimensions (area, size, thickness, etc.) of things to be processed, destroyed, processed;
- the quantity of new products to be manufactured or obtained as a result of processing.
The parties may agree on the scope of work in the contract, in its annexes (estimate, calendar plan) or provide in the contract for the procedure for determining the scope.
Again, if the parties have not indicated the scope to be fulfilled, they risk that the court will recognize the contract as not concluded.
Outcome of the contract
It is recognized as an integral part of the subject of the contract and is subject to agreement along with the content and scope of work. Otherwise, the subject matter of the contract may be inconsistent.
Coordination of the result of the work is necessary for the parties, among other things, to properly determine the content of the work performed, as well as its volume.
In order to properly agree on the result of the work, the parties are recommended to:
- take into account the requirements for the presence and nature of the result of the work;
- determine the name and characteristics of the result of the work;
- indicate additional concretizing features of the result of the work.
Order of the customer for the execution of the contract
It is not an independent condition of the contract, different from its subject. Therefore, it is considered agreed if the parties have determined in the contract the content, scope and result of the work.
The task can be developed by one of the parties before the conclusion of the contract and then included in the draft contract. In this case, the task will be agreed at the moment the other party accepts the terms of this project, i.e. when concluding a contract.
If the task is voluminous, contains diagrams or tables, it can be described in an annex to the contract. The application can be named differently (“task”, “technical task”) or not have a name at all. In addition to the customer's task, it may contain other conditions: the timing of the work, quality requirements, etc. It is necessary that the application contains a link to the contract and be signed by the parties.
It is recommended to establish in the contract the procedure for transferring the developed task. For example, it is in the interests of the contractor to agree on a condition for the transfer of a task under a bilateral act, so that in the event of a dispute, have proper evidence of the work being done.
Conclusion
Thus, in order to agree on the terms on the subject of the contract, it is necessary to determine content, scope and result work performed by the contractor. In addition, the contract should fix the main obligations of the parties in accordance with Art. 702 of the Civil Code of the Russian Federation: the obligation of the contractor to perform certain work on the instructions of the customer and hand over its result to the customer and the obligation of the customer to accept and pay for the result of the work.
The subject of the contract is the key conditions provided for by the Civil Code of the Russian Federation or not directly contradicting it, the fulfillment of which is directed by the agreement of the parties.
They can be expressed in:
- a legally significant action, for example, the performance of construction work;
- an obligation to refrain from certain actions, for example, the sale of an exclusive product in a certain territory.
Legal significance
The subject of the contract acts simultaneously:
- an essential condition of any agreement;
- a key feature, taking into account which the legislator classified and consistently displayed contractual structures in the Civil Code of the Russian Federation.
A number of terms of the contract can be set by default (Article 424 of the Civil Code also includes a price condition among them). If the parties did not regulate them by agreement, the provisions of civil law apply. The inconsistency of the subject of the contract, on the contrary, indicates the lack of content of the transaction. It can be recognized as not concluded in the action proceedings.
There are specific requirements for describing the subject matter of contracts of various types. According to Art. 607 of the Civil Code, an agreement on the lease of real estate must contain the address, area and other information that makes it possible to identify the property to be transferred to the tenant.
The subject of contractual structures of various types
For transactions on the transfer of property, the subject is things, less often - property rights. However, the subject of this group of agreements does not cover the conditions for the transfer of property regarding:
- paid (sale) or gratuitousness ();
- recurrence() or irreversibility();
- the presence of a counter provision (life maintenance) or its absence (donation).
The subject of service agreements are obligations to perform a series of consistent, systematic and regular actions. Examples: maintenance of a current account, provision of medical services. The subject of contracts of this type in the legal literature is often referred to as the subject of legal activity.
The subject matter of such agreements covers the conditions relating to:
- work process;
- the quality of their results.
The subject of organizational transactions are the mutual obligations of the parties aimed at streamlining their legal relations, organizing joint activities. This character is inherent in cooperation agreements, general and framework agreements, distribution and agency agreements, corporate agreements.
The subject of preliminary agreements are obligations to conclude a transaction on certain conditions in the future. creates legal grounds for compulsion to conclude the main contract.
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5. Requirements for determining the subject of the contract for the provision of services for compensation
Article 779 of the Civil Code of the Russian Federation, which contains the definition of a contract for the provision of services for a fee, only partially reveals the concept of "service". Services, according to this norm, are understood as the performance of certain actions or the implementation of certain activities. Therefore, in practice, the question arises: what should be determined in the subject of the contract for the provision of services for the court to recognize this condition as agreed?
5.1. Conclusion from judicial practice: On the issue of whether it is necessary to indicate in the contract for the provision of services specific actions that the contractor must perform for the customer, there are two positions of the courts.
Position 1. The contract must specify the type and scope of services, i.e. specific actions that the contractor is obliged to perform for the customer.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 28, 2009 in case N A43-19998 / 2009
"... As follows from the materials of the case, OJSC Zarya (executor) and LLC Khimprom-Volga (customer) signed an agreement for the provision of general business services dated 01.01.2007 N 25/07, under the terms of which the contractor undertook to provide the customer a range of general business services, as well as to carry out the necessary activities related to the provision of services, agreed by the parties in the list (Appendix N 1), which is an integral part of the contract.
In the information letter of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 N 48, it is explained that a contract for the provision of services for compensation can be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. When evaluating the contract and determining its subject matter, the court may also proceed from the negotiations and correspondence preceding the conclusion of the contract, the practice established in the relationship of the parties, business customs, the subsequent behavior of the parties, etc. (paragraph 1).
Consequently, the essential condition named in the law for the contract for the provision of services for compensation is its subject matter.
From the terms of paragraph 1.2 and Appendix No. 1 to the contract, it seems possible to establish what actions should be taken by Zarya OJSC for Khimprom-Volga LLC, which indicates that the parties have agreed on the subject of the contract ... "
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 21, 2009 in case N A29-6050 / 2008
"... The case materials do not contain annexes to the contract, and therefore it is impossible to establish the types and volumes of utility services to be provided by the Company for the Entrepreneur, which indicates a lack of agreement between the parties on the subject of the contract.
Thus, the courts of both instances rightfully recognized the contract for the provision of public services dated 01.01.2008 N 9 / A-2008 as not concluded in the manner prescribed by law and refused to satisfy the claim for the recovery of a penalty based on clause 5.3 of this contract ... "
Decree of the Federal Antimonopoly Service of the North Caucasus District dated November 26, 2003 N F08-4216 / 2003 in case N A53-17566 / 02-S4-10
"... The contract dated October 30, 2000 N 12/2 for the provision of legal services does not contain all the essential conditions provided for in accordance with Articles 779 - 781 of the Civil Code of the Russian Federation that are characteristic of a contract of this type.
The parties in the contract do not determine the scope of services to be rendered, the deadlines for performance, the procedure for transferring the result of services to the customer, the cost of specific types of services (activities of the contractor) ... "
Decree of the Federal Antimonopoly Service of the West Siberian District of April 26, 2007 N F04-2259 / 2007 (33444-A45-39) in case N A45-14171 / 2006-5 / 394
"... The legislator refers to the essential terms of the contract for the provision of services for a fee the subject of the contract, that is, the type (list) of services, those specific actions that, by virtue of Article 780 of the Civil Code of the Russian Federation, the contractor must perform for the customer.
In the absence of a list of services, the contract by virtue of Art. 432 of the Civil Code of the Russian Federation is considered not concluded ... "
Decree of the Federal Antimonopoly Service of the Moscow District dated December 1, 2009 N KG-A40 / 11809-09 in case N A40-4104 / 09-3-41
"... The court of cassation considers that the conclusion of the courts on the satisfaction of the claim in full cannot be recognized as justified, since when considering the case, the court did not fully clarify the circumstances that are essential for the correct resolution of the dispute and did not apply the norms of substantive law to be applied.
According to Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or perform certain activities), and the customer undertakes to pay for these services.
According to the subject of contract N 29/108-K dated October 29, 2008 for the provision of consulting services, the customer instructs, and the contractor undertakes to provide consulting services for the preparation of a package of documents for the customer's participation in tenders (auctions, tenders) held in the city of Moscow, specified in the application (competition card) of the Customer, accepted by the Contractor, in accordance with Appendix No. 1 to the Agreement.
Thus, from clause 1.1 of the agreement it is seen that the list and scope of services to be provided on the basis of agreement N 29/108-k dated 10/29/2008 should be indicated in Appendix N 1 to the agreement.
Meanwhile, Appendix N 1 to the contract is missing in the case file.
The question of whether the parties signed this Annex was not examined by the court.
In accordance with Art. 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties, in the form required in the relevant cases, on all essential terms of the agreement.
Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement should be reached.
Since, when resolving a dispute based on a contract for the provision of services for a fee, the court needs to establish the nature and types of services that the contractor is obliged to provide on the instructions of the customer, their volume, the court’s conclusion about the conclusion of the contract in the absence of Appendix No. 1 to the contract was made without examining the issue of coordination parties to the subject matter of the contract.
With the foregoing, the court of cassation finds the judicial acts adopted in the case regarding the satisfaction of the initial claim illegal and on the basis of Art. 288 of the Arbitration Procedure Code of the Russian Federation subject to cancellation, and the case in this part is sent for a new consideration to the court of first instance ... "
Decree of the Federal Antimonopoly Service of the Moscow District dated June 23, 2009 N KG-A41 / 5294-09 in case N A41-21672 / 08
"... The court applied the provisions of Article 779 of the Civil Code of the Russian Federation, according to which, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions), and the customer undertakes to pay for these services, and came to the conclusion that the parties agreed on essential the terms of the contract, in particular, determining its subject - the implementation by the contractor of activities for the operation of the heat and power equipment leased by the customer, intended for heat supply to consumers in the Pushkinsky district. services was the plaintiff's activity in providing the entire range of services aimed at operating the heat and power equipment of the Pushkinsky district, which is leased from the customer ... "
Decree of the FAS of the Moscow District dated 05.05.2006, 04.27.2006 N KG-A40 / 3433-06 in case N A40-36003 / 05-27-159
"... Within the meaning of Articles 779, 781 of the Civil Code of the Russian Federation, services can be expressed either in actions that do not have a material embodiment, or in actions that bring a certain result.
The subject of the contracts concluded by the parties are security services, which can be considered properly rendered only if the contractor ensures the safety, in this case, of the property at the customer's facilities..."
Decree of the Federal Antimonopoly Service of the North-Western District of November 24, 2009 in case N A66-803 / 2009
"... In accordance with paragraphs 1.1 and 3.2 of the Agreement, GeoLine LLC (executor) undertook to carry out field work and draw up a land survey for land surveying of land plots with an area of 3,085.6 hectares owned by the plaintiff on the right of permanent (perpetual) use, and an area 2,709 hectares owned by the plaintiff on the right of shared ownership, and Zarya LLC (customer) - to pay for these works on the basis of the price specified in paragraph 4.1 of the Agreement.
The courts of the first and appeal instances reasonably qualified the Agreement as a contract for the provision of services for compensation.
At the same time, the conclusion of the courts that the Treaty cannot be recognized as concluded is correct in connection with the following.
In addition, in accordance with clause 1.1 of the Agreement, its subject matter includes the performance of GeoLine LLC field work, however, their list and scope have not been agreed upon by the parties, in connection with which it should be recognized that the parties have not reached an agreement on the subject matter of the Agreement..."
Decree of the Federal Antimonopoly Service of the Ural District dated July 6, 2009 N F09-4665 / 09-C5 in case N A07-15278 / 2008-G-VEG
"... The Court of Appeal, having examined the contracts dated March 17, 2006 N 003 and N 004, presented in the case file, made a reasonable conclusion that these contracts are concluded, since the parties have agreed on the type of services provided by the defendant to the plaintiff, the cost and timeframe for their implementation .
Thus, the terms of the contract for the provision of services dated March 17, 2006 N 003 make it possible to determine the list of works for the care of cattle: care, feeding, cleaning of cowsheds, removal of manure, cleaning of the territory of cowsheds. The cost of the services provided is 400,162 rubles. 39 kop. (clause 3 of the agreement). The validity period of the agreement is determined by the parties from 03/17/2006 to 04/10/2006 (clause 10 of the agreement).
The list and cost of services performed by the defendant under the contract dated 17.03.2006 N 004 for cleaning (cleaning) the territory is determined by the parties in the appendix to this contract: cleaning the territory of the Zarya cooperative from garbage and cleaning roads from snow (case sheet 84) . The Contractor is obliged to start fulfilling obligations under this agreement on 03/17/2006, the completion date for cleaning up the territory is 03/17/2016 (clause 3 of the agreement).
Since the parties duly agreed on the terms and conditions of the service agreements No. 003 and No. 004 dated 17.03.2006, which are material for contracts of this type, there are no grounds for recognizing these contracts as not concluded. The appellate court dismissed the claim...
Decree of the Federal Antimonopoly Service of the Central District of September 24, 2009 N F10-3980/09 in case N A08-8122/2008-19
"... The law refers to the essential terms of the contract for the provision of services for a fee on the subject of the contract. The subject of the contract for the provision of services for compensation is the performance of certain actions or the implementation of certain activities.
The applicant's argument about the non-conclusion of the contract dated 03.10.2007 No. 9 due to the non-agreement by the parties of the essential terms of the contract has already been the subject of consideration by the courts and was rightfully rejected by them.
Based on the literal interpretation of the terms of the contract, the courts came to the conclusion that it is a contract for the provision of services for a fee and indicated that the parties agreed on the essential terms of the contract that determine its subject matter - harvesting 150 hectares of beet crops, i.e. in the contract, the parties agreed on a specific number of areas to be harvested, the cost of 1 hectare of sugar beets ... "
Decree of the Federal Antimonopoly Service of the Central District dated February 20, 2008 N F10-162/08 in case N A09-8404/06-14
“... Assessing the disputed contract for the presence of essential conditions in it, the court indicated that the subject of the contract for the provision of services for compensation within the meaning of Article 781 of the Civil Code of the Russian Federation is the type of service, the specific actions that the contractor must perform for the customer.
Meanwhile, it is not possible to establish from the content of the contract signed by the parties what kind of activities (or actions) the parties have undertaken to carry out in relation to each other and what is the procedure for providing services and paying for them, it is not possible ... "
Position 2. To determine the subject of the contract for the provision of services for a fee, it is sufficient to indicate in it a certain activity of the contractor without the scope of services.
Arbitrage practice:
Note: In the information letter below, the court indicates the possibility and procedure for determining the scope of services provided in the absence of a corresponding condition in the contract. Therefore, an agreement that does not define the scope of services provided can be considered concluded.
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 1999 N 48 "On some issues of judicial practice arising in the consideration of disputes related to contracts for the provision of legal services"
"... 1. In accordance with Article 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (to perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
When considering disputes, it is necessary to proceed from the fact that the specified contract can be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. In the event that the subject of the contract is indicated by an indication of a specific activity, the range of possible actions of the contractor can be determined on the basis of negotiations and correspondence preceding the conclusion of the contract, the practice established in the mutual relations of the parties, business customs, subsequent behavior of the parties, etc. (Article 431 of the Civil Code of the Russian Federation)..."
Note: The definition of a specific activity by the court, apparently, means an indication in the contract of only the type of activity of the performer.
Decree of the Federal Antimonopoly Service of the North-Western District of August 31, 2009 in case N A26-5090 / 2008
"... Within the meaning of the provisions of paragraph 1 of Article 779 of the Civil Code of the Russian Federation and paragraph 1 of Article 781 of the Civil Code of the Russian Federation, a contract for the provision of services for compensation can be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. In the event that the subject of the contract is indicated by an indication of a specific activity, the range of possible actions of the contractor can be determined on the basis of negotiations and correspondence preceding the conclusion of the contract, the practice established in the mutual relations of the parties, business customs, and subsequent behavior of the parties (Article 431 of the Civil Code of the Russian Federation) .
The agreement defines the services that the plaintiff undertook to provide (provision of construction equipment) and on payment for which he insisted, which does not allow us to conclude that the Agreement was not concluded ... "
5.2. Conclusion from judicial practice: If in the contract or act of acceptance and transfer the parties indicated a too general definition of services (it is not clear what specific actions or what activities the customer undertakes to perform), then the condition on the subject is inconsistent.
Arbitrage practice:
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 23, 2009 in case N A11-1174 / 2009
"... As can be seen from the case materials and the court established, an agreement was concluded between the Entrepreneur and the Company for the provision of services for the conclusion of a contract for the sale of real estate dated 06/20/2008. Under the terms of this agreement, the intermediary (Entrepreneur) on behalf of the customer (Company) provide information and intermediary services for the purpose of the legal acquisition by the customer of real estate - a two-room apartment located at the address: Vladimir, Diktor Levitan street, 55, apartment 51, worth 2,000,000 rubles, and the customer undertakes to .2008 purchase real estate at the price and under the terms of the contract from the person specified by the intermediary and pay for the services of the intermediary in the amount of 200,000 rubles.
An analysis of the disputed contract shows that the agreement relates to a paid services contract, which is regulated in accordance with Chapter 39 of the Code.
In accordance with Articles 779 and 781 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for them within the time and in the manner specified in the agreement. It follows from the content of these norms that the essential condition named in the law for this contract is its subject matter.
Due to the lack of agreement between the parties on the subject of the contract for the provision of services for a fee, the courts of first and appeal instances made the correct conclusion about its non-conclusion.
The rule on the mandatory approval of the subject of the contract for the provision of services for compensation, that is, the list of actions necessary and sufficient for the provision of intermediary services, is imperative.
Thus, the contested judicial acts correspond to the substantive law, the conclusions set out in them - to the factual circumstances established in the case and the evidence available in the case. Violations of the norms of procedural law, which, in accordance with Part 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation, are grounds for canceling judicial acts in any case, the district court has not established. The cassation appeal of an individual Entrepreneur is not subject to satisfaction ... "
Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated 06/25/2009 in case N A17-6129 / 2008
"... Satisfying the claims, the arbitration court qualified the contract of 07.06.2007 N 42 as a contract for the provision of services for a fee and proceeded from the non-conclusion of the said contract due to the inconsistency of the essential condition on the subject of the contract, as well as from the defendant's failure to prove the fact of rendering services to the presented and amount supported by relevant evidence.
The contract dated 07.06.2007 N 42 does not contain data that allow to determine the content and scope of consulting services and services for conducting a sociological survey by the performer, and there is also no proper documentary evidence of the provision of such services ... "
Decree of the Federal Antimonopoly Service of the Moscow District dated 08/07/2009 N KG-A40 / 6883-09 in case N A40-53905 / 08-9-608
"... In resolving the dispute, the courts found that between the defendant (executor) and the plaintiff (customer) an agreement N МШЗМ-239/07 dated December 21, 2007 was concluded, with additional agreements, in accordance with which the contractor undertook to waive the right to lease and provide services to assist in the re-registration of the sublease agreement dated October 31, 2003, concluded between OJSC Moscow Tire Plant and CJSC Moscow Tire Plant Continental, into a lease agreement for a land plot under the production building "A", and the plaintiff undertook to accept and pay the above services.
The courts determined the legal nature of the contract as a contract for the provision of services for compensation and recognized the contract as concluded. The courts qualified the contract concluded between the plaintiff and the defendant as a contract for the provision of services for compensation, the legal regulation of which is provided for by Chapter 39 of the Civil Code of the Russian Federation.
As indicated in the judicial acts, the list of services that are the subject of the disputed contract is contained in clause 1.1 of the contract, while the list itself is not set out by the courts, but, as noted in the decision, this list does not contain a detailed description of the actions that the defendant must take in order to fulfill the accepted obligations.
The courts point out that section 2 of the agreement, as amended by the supplementary agreement dated January 31, 2008, defines a list of documents that must be received by the plaintiff as a result of the defendant's activities ...
According to the Court of Appeal, in this section of the agreement, the parties specified those legally significant actions that the defendant must take in order to achieve a beneficial effect for the plaintiff, which has consumer value and is expressed in the provision of documents.
The specifics of the contract for the provision of legal services for compensation, in particular, is that, in accordance with this contract, "committing certain actions or carrying out certain activities" is aimed at defending the interests of the service recipient in courts and other state (jurisdictional) bodies, which are usually obliged to make a decision regarding the stated claim. Therefore, the interests of the customer, often not limited to the provision of proper legal services by the contractor, are to achieve a positive result of his activities (satisfaction of a claim, complaint, obtaining another favorable decision), which is beyond the subject of regulation under the contract.
In view of the foregoing, the court of cassation considers that the conclusion of the courts on the agreement by the parties of the subject of the contract and on the conclusion of the contract for the provision of services for compensation without establishing, by interpreting the contract in accordance with the rules of Article 431 of the Civil Code of the Russian Federation, those specific actions (activities) that the contractor was instructed to carry out, is unreasonable. ."
Decree of the Federal Antimonopoly Service of the Volga District dated April 2, 2008 in case N A57-9341 / 07-20
"... As can be seen from the materials of the case, on March 1, 2006, an agreement N 51/06 was concluded between MUE "ERCC of Saratov" and MOF "Ideology", in accordance with paragraph 1.1 of which the MOF "Ideology" (Contractor) assumes the obligation provide on the instructions of MUP "ERCC Saratov" (Customer) consulting services in the field of management and information support in accordance with the needs and requests of the Customer.
For the period from March to November 2006, acceptance certificates were signed under contract No. 51/06 dated 01.03.2006 for the amount of 649,900 rubles, which was paid by the plaintiff to the defendant, which is confirmed by payment orders.
Having assessed the content of the contract dated 01.03.2006 N 51/06, the courts found that it did not define a specific list of services and works. The acceptance certificates for the work performed, which the Ideology International Foundation refers to as evidence of confirmation of the fact that the work has been completed, do not allow us to determine what kind of work, services were provided by the defendant; it is impossible to draw a conclusion about the implementation of specific types and volumes of work.
In view of the foregoing, the courts came to a reasonable conclusion that the contract of 01.03.2006 N 51/06 is not concluded ... "
Decree of the FAS of the Ural District of 04.04.2006 N F09-2309 / 06-C5 in case N A60-21568 / 05
"... November 21, 2003, the parties signed agreement No. 127, in accordance with the terms of which Teploizolyatsiya OJSC instructs Aktis LLC to carry out work to pay off debts with enterprises in accordance with the appendix during November - December 2003.
According to paragraph 1 of Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services within the time and in the manner specified in the contract (clause 1 of Art. 781 of the Civil Code of the Russian Federation).
It is not possible to determine from the content of the contract and its appendix what is the subject of the contract dated November 21, 2003 N 127, what specific actions or activities the contractor must perform on the instructions of the customer. Consequently, the parties did not reach an agreement on the subject of the contract, in connection with which the contract dated November 21, 2003 N 127 cannot be recognized as concluded, the courts had no grounds for collecting debt and penalties under the said contract ... "
Decree of the Federal Antimonopoly Service of the Urals District of 19.01.2006 N Ф09-4457 / 05-С6
"... As established by the court, the contract signed between the parties is a contract for the provision of services for a fee.
According to the materials of the case, the subject of the disputed contract is the performance of work on checking the debts of the "defendant" for the period from 08/01/2002 to 12/31/2004. The name of the "respondent" in the contract is not indicated, the specific actions or activities that the contractor must perform on the instructions of the customer are not defined by the parties, thus, the parties have not reached an agreement on the subject of the contract. Therefore, the contract dated 09.12.2004 N 99 is not concluded ... "
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