Compulsion to conclude an agreement is possible. Disputes related to compulsion to conclude contracts

According to Art. 1 of the Civil Code of the Russian Federation, civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.

It should be noted that all of these principles are of equal importance and are interconnected. At the same time, when considering problems of contract law, the principle of freedom of contract is of particular importance. As a general rule, coercion to enter into an agreement is not permitted. At the same time, the legislator in some cases provides for the grounds for using compulsion to conclude an agreement. Yes, Art. 426 of the Civil Code of the Russian Federation establishes the mandatory conclusion of a public agreement by a commercial organization; clause 5 art. 429 of the Civil Code of the Russian Federation contains a rule on the obligatory conclusion of the main agreement for the parties who have entered into a preliminary agreement. If certain conditions exist, it is mandatory to conclude a state contract for the supply of goods for state needs (Article 527 of the Civil Code of the Russian Federation); state contract for contract work for state needs (Article 765 of the Civil Code of the Russian Federation); a supplier occupying a dominant position in the commodity market, as well as enterprises in whose production volume the state defense order exceeds 70%, does not have the right to refuse to conclude government contracts for the supply of material assets to the state reserve (clause 4 of article 9 of the Federal Law of December 29 1994 “On the State Material Reserve” (as amended on December 23, 2003); subjects of natural monopolies in certain cases do not have the right to refuse to enter into contracts with individual consumers (Clause 1, Article 8 of the Federal Law of August 17, 1995 "On natural monopolies"); suppliers holding a dominant position in the market for certain types of products do not have the right to refuse to enter into a government contract if placing an order does not entail losses from its production (clause 2 of article 5 of the Federal Law of December 13 1994 “On the supply of products for federal state needs” (as amended on May 6, 1999); in the event that there are no applicants for participation in the competition for the placement of a defense order, as well as in the event that, based on the results of the said competition, the main contractor has not been determined, the defense order is mandatory for acceptance by state unitary enterprises, as well as other organizations that occupy a dominant position in the product market or have a monopoly on the production of products (works, services) under the defense order, provided that the defense order is provided by the one established by the Government of the Russian Federation level of profitability of production of these types of products (works, services) (p. 4 tbsp. 3 of the Federal Law of December 27, 1995 No. 213-FZ “On State Defense Order”).

Of primary importance in determining the consequences of failure to fulfill the established obligation to conclude an agreement is, in my opinion, paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, according to which, if a party for whom, in accordance with the Civil Code or other laws, the conclusion of an agreement is mandatory, evades its conclusion, then the other party has the right to apply to the court with a demand to compel the conclusion of an agreement.

Thus, based on the provisions of paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, we can conclude that the requirement to compel the conclusion of an agreement can be stated and considered only in court. Other forms of protection do not apply in this case. At the same time, a party has the right to implement the requirement to compel the conclusion of an agreement if the conclusion of this agreement is mandatory for the counterparty by virtue of the law or a voluntarily assumed obligation.

In this regard, the following case is of interest. A supply and sales organization that ships products to the Far North and similar areas filed a claim with the arbitration court to force the supplier to enter into an agreement on the basis of existing economic ties. The arbitration court refused to consider the claim, citing the fact that the dispute was not subject to consideration by arbitration courts. With regard to this category, the Plenum of the Supreme Arbitration Court of the Russian Federation in Resolution No. 5 of April 15, 1992 explained, referring to the Resolution of the Supreme Council of the Russian Federation dated April 4, 1992 No. 2661-1 “On measures to ensure the supply of products (goods) to the regions of the Extreme North and equivalent areas”, that claims of buyers located in the Far North and equivalent areas to force suppliers to enter into contracts on the basis of existing economic ties are subject to consideration by an arbitration court. These agreements are concluded in the manner established by clauses 1-3 of the said resolution of the Supreme Council of the Russian Federation dated April 4, 1992. Appendix to the letter of the Supreme Arbitration Court of the Russian Federation dated January 19, 1993 “On certain clarifications of the Supreme Arbitration Court” [Text] // Bulletin of the Supreme Arbitration Court of the Russian Federation . - 1994. - No. 8. Thus, the economic ties that have developed between the parties are the basis for compelling the conclusion of a supply agreement in the regions of the Far North and equivalent areas. In my opinion, this situation is due to the need to take into account public interest and the special significance of the delivery areas. The corresponding regulatory act concerns only the implementation of supplies to the regions of the Far North and equivalent areas, i.e. it does not apply to the rest of the territory of Russia, and the economic ties that have developed between counterparties are not the basis for forcing the conclusion of an agreement.

Compulsion to conclude a contract is a way of protecting the public interest.

So, in accordance with paragraph 2 of Art. 7 of the Federal Law of March 26, 2003 No. 35-FZ “On Electric Power Industry” in order to ensure the security of the Russian Federation, protect the rights and legitimate interests of legal entities and individuals, ensure the unity of the economic space in the sphere of circulation of electrical energy, owners or other legal owners of electric grid facilities households included in the unified national (all-Russian) electrical grid are limited in the exercise of their rights in terms of: the right to enter into contracts for the provision of services for the transmission of electrical energy using power grid facilities included in the unified national (all-Russian) electrical network, and determine the terms of these contracts Russian newspaper. - 2003. - N 6. April 1.. The stated norm indicates that the obligation of the listed entities to enter into agreements on the provision of electricity transmission services is aimed at ensuring the interests of society and the state, including ensuring the security of the Russian Federation.

Of course, as mentioned above, coercion to conclude an agreement is possible in cases provided for by law or a voluntarily accepted obligation. At the same time, the existence of such a requirement in itself significantly impedes the understanding of the contract as an agreement of the parties, because If a party for whom the conclusion of an agreement is obligatory evades its conclusion, the other party has the right to file a lawsuit to force the conclusion of an agreement (Clause 4 of Article 445 of the Civil Code of the Russian Federation). In turn, this norm does not explain the conditions under which this agreement will be concluded.

Based on the interpretation of paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, it should also be concluded that the court makes a decision forcing the party avoiding concluding an agreement to enter into an agreement. The terms of the contract are established by the parties by agreement, unless they are determined by law or other legal act. Thus, the court decision does not replace the contract and does not determine its content. Thus, a limited liability partnership filed a claim with the arbitration court against the municipal property management committee to force them to enter into a purchase and sale agreement for non-residential premises leased by the partnership at a price determined in accordance with clause 4.9 of the Basic Provisions of the State Program for the Privatization of State and Municipal Enterprises in the Russian Federation of July 1, 1994, approved by Decree of the President of the Russian Federation of July 22, 1994 No. 1535.

The defendant, in his response to the claim, indicated that he does not object to the purchase of the premises, but believes that the purchase price should be calculated in accordance with the methodology approved by the local government body.

The arbitration court of first instance made a decision that obliged the parties to enter into a purchase and sale agreement for the premises at the price offered by the seller.

By the decision of the appellate instance, the court decision was canceled and the claim was denied on the following grounds.

An application for the acquisition of ownership of non-residential premises was submitted by a limited liability partnership after the entry into force of the Federal Law of July 1, 1997 “On the privatization of state property and on the principles of privatization of municipal property in the Russian Federation”, and the court rightfully recognized the determination by the seller of the redemption price of non-residential premises as lawful related to municipal property, in accordance with the methodology approved by the local government, without taking into account the restrictions established by clause 4.9 of the Basic Provisions.

However, the subject of the dispute was not simply forcing the seller to enter into an agreement, but forcing the seller to enter into an agreement at the price offered by the buyer.

Since the defendant did not refuse the plaintiff to enter into a purchase and sale agreement, and the subject of the claim was the plaintiff’s unreasonable demand to conclude an agreement at the price proposed by him, there were no grounds for satisfying this claim. Appendix to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 21, 2001 No. 60 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2001. - N 5..

Because of this, in my opinion, the requirement to compel the conclusion of a contract is, by its nature, a requirement for the recognition of law. The court in its decision does not establish the rights and obligations of the parties to this agreement, but only confirms the right of one party to demand the conclusion of an agreement with it. Moreover, an agreement concluded on the basis of a court decision leads to the emergence of not only rights, but also obligations, including for the party who demanded the forced conclusion of the agreement.

In this regard, the question arises: what to do if the party that is forced to enter into an agreement offers the other party a deal on onerous and unfavorable terms for it. In this case, the provisions of Art. 445 of the Civil Code of the Russian Federation, regulating the specifics of concluding a contract without fail, in particular, the party requiring the conclusion of the contract has the right to send the other party a protocol of disagreements. According to paragraph 2 of this norm, if the protocol of disagreements is rejected or the notification of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the contract to the court. In this situation, the court, taking into account the interests of both parties to the contract, has the right to determine the terms of the contract that must be concluded without fail. “Thus, only the consumer party can go to court with disagreements, and not the party that is obliged to conclude an agreement.” Commentary on the Civil Code. Part 1 / Answer. ed. Sadikov O.N. - M., 1995. - P. 426. The same can be said about the presentation of a requirement to compel the conclusion of an agreement. This requirement can only be presented by the party in whose favor the specified right was provided, and not by the party obligated to conclude the contract. This situation is explained by the fact that coercion to conclude an agreement is often a way of protecting the interests of the “weak” party to the agreement.

Thus, JSC Kamchatvyazinform filed a claim with the arbitration court to force the All-Russian State Television and Radio Company (VGTRK) to enter into an agreement to provide the company with services for the use of communication means for the distribution of television and radio broadcasting programs for 2005. This dispute was considered by various courts. Finally, the Presidium of the Supreme Arbitration Court of the Russian Federation explained that JSC Kamchatvyazinform is a public network enterprise, which, in accordance with Art. 2 of the Law of the Russian Federation “On Communications” and Art. 426 of the Civil Code of the Russian Federation is obliged to enter into agreements with consumers for the provision of communication services for the distribution of television and radio broadcasting programs. Taking into account the load plan and volumes of television and radio broadcasting reported by VGTRK, the plaintiff on March 28, 2005 sent the defendant a draft contract for the provision of services. The agreement was not signed within the prescribed period and was not returned to the plaintiff, which served as the basis for his filing a lawsuit to force VGTRK to conclude the said agreement.

Meanwhile, according to paragraph 1 of Art. 421 of the Civil Code of the Russian Federation, coercion to conclude an agreement is not allowed, except in cases where the obligation to enter into an agreement is provided for by law or a voluntarily accepted obligation.

The grounds for submitting a dispute related to evasion of concluding a contract that is binding by force of law to an arbitration court are determined by Art. 445 of the Civil Code of the Russian Federation, from which it follows that the requirement to be forced to conclude a public contract can be stated by only one party - the consumer of services.

The obligation for VGTRK, which is a consumer of services, to conclude an agreement with an enterprise that provides services is not provided for by current legislation. The VGTRK telegram on the planned volumes of television and radio broadcasting was of an informational nature and did not contain all the essential terms of the contract for the provision of communication services to the consumer, therefore, according to Art. 429 of the Civil Code of the Russian Federation cannot be recognized as a preliminary agreement and is not evidence of the existence of a voluntary obligation of the defendant to conclude an agreement. In accordance with paragraph 2 of Art. 22 of the Arbitration Procedure Code of the Russian Federation, disputes related to disagreements under an agreement are subject to the jurisdiction of the court in cases where the conclusion of an agreement is provided for by law or the transfer of disagreements under an agreement to an arbitration court has been agreed upon by the parties. Taking into account the circumstances of the case, the dispute about forcing the defendant to enter into an agreement is not within the jurisdiction of the arbitration court and the proceedings in this case must be terminated Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 21, 2006 No. 394/06 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2006. - No. 8. - P.45..

The obligation to enter into a contract arises in accordance with the obligation voluntarily accepted by the party. According to paragraph 1 of Art. 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement. In cases where the party that entered into the preliminary agreement avoids concluding the main agreement, the other party has the right to go to court with a demand to compel the evading party to conclude the main agreement (clause 5 of Article 429 of the Civil Code of the Russian Federation). Regarding the limitation of the principle of freedom of contract in a preliminary agreement, some experts believe that a party is free to enter into or not enter into a preliminary agreement. Her obligation to a future agreement arises only from her will and is based on a voluntary act. One should agree with this opinion. In this case, the participant is not forced to enter into a preliminary agreement; he voluntarily assumes the obligation to conclude the main agreement on the terms developed in the preliminary agreement, and therefore must fulfill the obligation that has arisen.

A similar situation is provided for in Art. 552 of the Civil Code of the Russian Federation, according to which, under a contract for the sale of a building, structure or other real estate, the buyer, simultaneously with the transfer of ownership of such real estate, is transferred the rights to that part of the land plot that is occupied by this real estate and is necessary for its use. In accordance with paragraph 2 of this article, in the case where the seller is the owner of the land plot on which the property being sold is located, the buyer is transferred ownership or is given a lease right or other right to the corresponding part of the land plot provided for in the real estate sale agreement. Thus, if the contract for the sale of real estate determines that the lease right to the corresponding part of the land plot is transferred, then the seller, the owner of the land plot, is obliged to conclude a lease agreement with the buyer. It should be noted that Art. 552 of the Civil Code of the Russian Federation does not provide for sanctions for failure to fulfill this obligation. At the same time, taking into account the provisions of paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, the buyer of real estate has the right to go to court to force the seller to enter into a lease agreement.

Compulsion to conclude an agreement is a way of protecting the rights of interested parties whose interests are violated by their counterparties. The law provides freedom of contract, but it should not violate the rights and interests of others. Let us consider the peculiarities of the claim and its content.

Freedom of contract

The law prohibits forcing anyone to complete a transaction; violence or other illegal methods cannot be used. If this happens, there are grounds to contact law enforcement agencies.

The law gives the right to interested parties to file a lawsuit to compel the conclusion of an agreement. The grounds are regulations or previously concluded transactions, for example, a preliminary agreement.

Conclusion procedure

Companies or individual entrepreneurs providing relevant services offer to sign an agreement by submitting a project. The other party just has to sign it or send a response letter with comments regarding the conditions. Existing comments are documented in the protocol of disagreements.

If they are missing, the document is signed and returned with a signature.

The general period for response to a proposal is 30 days; legislative acts also offer other options.

Is written form required?

Transactions exceeding a certain price threshold are drawn up in writing - the law requires that the terms be set out on paper.

The Civil Code also assumes that the party that took the action to accept the service or product agreed to the contract, which means that it bears full rights and obligations. But filing an application to compel the conclusion of an agreement in the future is not excluded.

Typical cases

Public contracts. The entrepreneur or organization undertakes to enter into an agreement at the request of the consumer. The right of refusal arises only if it is impossible to provide a service or product. If there is evasion or refusal to sign the contract, the right to appeal to a judge arises.

A preliminary agreement obliges the parties to make a transaction in the future on pre-agreed conditions. The validity of such an agreement is limited to a one-year period. The parties have the right to refuse it by mutual agreement. It does not need to be based on regulations.

The number of claims for compulsion to conclude a contract in which the state becomes the defendant is increasing. Examples are refusal from privatization, from signing a social tenancy agreement, from signing a guardianship agreement, etc.

Who has the right to apply

The law does not restrict the right of the other party to the relationship to go to court. Entrepreneurs and organizations have the same right to file a lawsuit. The condition of the appeal is a violation of the rights and interests of the plaintiff, as well as third parties.

If the entrepreneur is obliged to make a transaction, but the consumer does not have such an obligation, the consumer has the right to go to court. Commercial organizations and entrepreneurs do not have such a right in this case.

Preparing for a lawsuit

The judge, considering the statement of claim and its compliance with the law, finds out whether there were attempts to resolve the issue peacefully, without his participation. Was the draft agreement or a corresponding request sent to the other party?

The use of a finished project in relations between the parties is used in relations between commercial structures or entrepreneurs. Citizens only need to provide evidence of their application or request. Without this, compulsion to conclude an agreement in court is impossible.

The judge, without evidence of communication between the plaintiff and the defendant, will not accept the claim or deny it.

Features of the pre-trial procedure

In one of the court cases, the court concluded that the plaintiff did not take all measures to discuss the possibility of concluding such an agreement. This approach excludes a purely formal approach in relations with a potential partner.

The parties to the preliminary agreement have the right to go to court if a draft agreement is sent within the scope of the main agreement.

Which court should I go to?

Economic disputes are considered in arbitration courts, civil cases involving ordinary citizens - in district or magistrate courts at the place of residence or location of the defendant. When the amount of semi-annual payments in a civil case reaches 50 thousand rubles. the claim for compulsion to conclude an agreement is transferred to the district court.

A little about the timing

The peculiarity of such processes lies in the moment when the right of judicial protection arises. Until the time allotted for response has expired, the plaintiff formally has no rights. If the proposal is sent by letter or mail, you should wait until the service issues the papers to the sender.

Features of the application

It is necessary to indicate:

• name of the court;
• information about the plaintiff (full full name or name of the organization according to the constituent documents);
• information about the defendant (full full name or name of the organization according to the constituent documents);
• circumstances of the case;
• request to oblige to conclude an agreement;
• list of attached documents;
• applicant's signature and date of submission.

Describing the circumstances of the case, the plaintiff is obliged to justify his right to demand the conclusion of an agreement by referring to regulations or previously reached agreements. How to prove this is described above.

The statement of claim for compulsion to conclude an agreement is drawn up in several copies - one for the court, the second for the defendant.

Government duty

A citizen will pay 300 rubles for consideration of a claim, an organization will pay 6,000 rubles. in a district or magistrate court. In an arbitration court, a claim for citizens and organizations will cost 6,000 rubles.

Features of disputes in real estate transactions

Compulsion to conclude a purchase and sale agreement is carried out if there were previously duly formalized agreements.

Another option is an indication in regulations, for example, the sale of electricity.

The claim lists the essential conditions and one of the demands to oblige the defendant to enter into an agreement on the terms determined by the preliminary agreement or the draft agreement as amended (indicating the date), if negotiations were previously conducted.

Compulsion to conclude a lease agreement

The courts make decisions in favor of the plaintiffs, subject to the presence of an order from the authorities, which is not carried out.

Extending the lease of land plots is more promising if they contain real estate owned or leased by the plaintiff.

Tenants are denied renewal of lease agreements for buildings or buildings in court, citing the right to request an extension or renegotiation. The decisions note that the plaintiff has no right of claim and the defendant has no obligation.

Standard contracts

A significant number of agreements are concluded on the basis of standard forms approved by the authorities. The lawsuit asks either to compel a conclusion on the project proposed earlier, or on the basis of such a form.

The second party has the right to challenge the terms of the project if it does not comply with the legislative form. And companies that are required to use a standard form tend to make changes to them, which then turn out to be quite noticeable.

In the case of public services, if the proposed text deviates from the standard form, the standard form is automatically applied. It is also easier for a consumer to challenge a proposal to conclude a transaction if the text conflicts with the law.

And the court, having taken into account the requirements of the claim, can agree with it, establishing the conditions prescribed by regulations.

Judicial practice on compulsion to conclude a contract

Almost all cases are considered by arbitration courts. Disputes with citizens rarely arise. The reason is the way contracts are concluded - the acceptance of goods or services in exchange for payment.

Whether an agreement can be reached or not is determined by the prevailing approach of the courts in a particular region. The RF Armed Forces do not always adhere to its own position, and its decision is impossible to predict.

The chances are higher for plaintiffs who base their position on regulations. A preliminary agreement is accepted as a basis provided that the wording is clear and sufficient. The text must set out all the essential terms of the future transaction.

Information on essential conditions may be contained in the proposal to conclude a transaction and in the response of the second party, as well as documents reflecting their negotiations. If essential conditions cannot be formulated from the materials provided, the court will consider the claim unfounded.

Even during the existence of the SAC, a position was developed that it does not matter what form of evasion the refusal takes: it is documented or there is evasion.

Use of readings

Procedural codes list witness testimony among the means of proof. How realistic are they to use? In arbitration cases, documentary evidence is primarily accepted. The words of witnesses serve as additions to fill in the gaps. They are not a substitute for paper. The same principle applies in civil cases. Its mitigation is observed in disputes between consumers and merchants; exceptions are directly indicated in regulations.

Finally

The law allows for a transaction to be forced only within the framework of a judicial procedure. All other actions are considered illegal. The plaintiff substantiates his request to the court using regulations or the provisions of previous agreements.

Lack of agreement on terms in correspondence or negotiations gives the court the right to refuse the claim.

Claims of this kind are associated with many nuances, and studying judicial practice will serve as an excellent support in preparing for the process.

Currently, there are many legal ways to force a person to enter into a contract.

A contract is an agreement between two or more persons on the emergence, change or termination of civil legal relations, the purpose of which is that it serves as an independent basis for the emergence of obligations.

Article 1 of the Civil Code of the Russian Federation includes freedom of contract as one of the main principles of civil legislation. Article 421 of the said Code, which regulates freedom of contract, provides that citizens and legal entities are free to enter into an agreement; coercion to enter into an agreement is not allowed, except in cases where the obligation to enter into an agreement is provided for by this Code, the law or a voluntarily accepted obligation.

In particular, a public contract is concluded in the following cases:

• with a private entrepreneur or legal entity that wins the auction;
• with the bank when opening a current account;
• with the person who signed the preliminary agreement;
• with a state fund during the purchase and sale of privatization property, if the person entering into the contract became the winner in the relevant competition;
• with a monopolist company producing certain types of products, when organizing food supplies for federal needs.

In accordance with the Civil Code, the evading party is sent an offer - a draft official contract. Within 30 days, the person must review the proposed conditions and give an official response. If the party is completely satisfied with the clauses of the offer, the contract is signed without any changes, after which a corresponding notification is sent to the other party. From the moment of its receipt, the contract is recognized as officially concluded.

However, if the person who received the offer does not agree with the terms, he has the right not only to sign the agreement, but also to draw up a protocol of disagreements, sending it along with the agreement to the offeror. He, in turn, after receiving the documents, is obliged to conclude an updated agreement, or reject the protocol of disagreements within 30 days. In this case, the offeror must also notify the other party of the decision made in order to avoid further legal consequences. In particular, he may be released from the obligation to compensate for losses arising due to his evasion from fulfilling his obligations.

It is still possible to refuse to conclude a contract if there are significant reasons that current legislation interprets as serious grounds for refusal. For example, an enterprise has gone bankrupt and cannot provide the consumer with any product or service.

According to the provisions of Article 445 of the Civil Code of the Russian Federation, if a party for whom, in accordance with this Code or other laws, the conclusion of an agreement is mandatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement. However, the possibility of concluding coercive contracts is very limited. For example, Article 426 of the Civil Code of the Russian Federation establishes the mandatory conclusion of a public contract by a commercial organization. Article 429 of the Civil Code of the Russian Federation contains a rule on the obligatory conclusion of the main agreement for the parties who have entered into a preliminary agreement. The Civil Code of the Russian Federation has reserved for the tenant, who properly fulfills his duties, the pre-emptive right to conclude a lease agreement for a new term, however, the tenant can exercise his right only subject to written notification by which he notifies the lessor of his desire to conclude a new agreement before the expiration of the previous one. Article 615 of the Civil Code of the Russian Federation provides for granting the tenant the right, with the consent of the lessor, to sublease the leased property (sublease) and transfer its rights and obligations under the lease agreement to another person (release). When resolving disputes about compulsion to conclude contracts for the purchase and sale of land plots, the courts are guided by the provisions of Article 36 of the Land Code of the Russian Federation, according to which citizens and legal entities who are the owners of real estate objects are granted the exclusive right to privatize the land plots on which these objects are located, or acquisition of lease rights to these areas.

Consequences for a person evading the conclusion of a contract

In case of failure to comply with the deadline for consideration of the draft agreement or protocol of disagreements, the party that sent them has the right to apply to a judicial authority to resolve the controversial issue. As practice shows, with a correctly drafted claim, the court makes a decision forcing the evading party to enter into an agreement and compensate for losses that arose through its fault.

Legal consultations in Mytishchi - professional resolution of contractual and pre-contractual disputes

The law associates certain consequences for the parties with the conclusion of an agreement. Therefore, if you have a need to force a person to enter into an agreement, you can contact lawyer Ekaterina Mikhailovna Murzakova, who will help you skillfully and competently solve the problem that has arisen in a pre-trial manner, or during legal proceedings.

A contract is an agreement between two or more persons on the emergence, change or termination of civil legal relations, the purpose of which is that it serves as an independent basis for the emergence of obligations. Article 1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation, Code) includes freedom of contract as one of the basic principles of civil legislation. Article 421 of the said Code, which regulates the freedom of contract, provides that citizens and legal entities are free to conclude a contract; coercion to conclude a contract is not allowed, except in cases where the obligation to conclude a contract is provided for by this Code, the law or a voluntarily accepted obligation. According to the provisions of Article 445 of the Civil Code of the Russian Federation, if a party for whom, in accordance with this Code or other laws, the conclusion of an agreement is mandatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of an agreement. However, the possibility of concluding coercive contracts is very limited. Taking into account the urgent nature of rental obligations, the question of the tenant’s right to renew rental relations seems interesting in the area of ​​the problem under consideration.

Claims for the obligation to conclude a lease agreement for a new term

The entrepreneur filed a claim with the Arbitration Court of the Vologda Region against the consumer society for recognition of his preemptive right to conclude a lease agreement for non-residential premises and the obligation of the defendant to conclude a lease agreement with him for a new term. The claim was rejected by the decision, upheld by the appellate court. By the decision of the cassation instance, the judicial acts were left unchanged. At the same time, the cassation instance referred to the provisions of Article 621 of the Civil Code of the Russian Federation, which provides, other things being equal, that the tenant, who has properly performed his duties, has a preferential right to conclude a lease agreement for a new term, but does not establish the right to require the lessor to conclude such an agreement and the corresponding obligation the last one. The Court of Cassation pointed out that there was no evidence in the case file that the defendant had entered into or intended to enter into a lease agreement for the disputed premises with any other person and that the plaintiff’s preemptive right to conclude the agreement for a new term had been challenged by anyone. It was also recognized as justified by the court’s rejection of the entrepreneur’s reference to the decision of the general meeting of shareholders on the obligation of the chairman of the board of the consumer company to conclude a lease agreement for the disputed premises with the entrepreneur, since such a decision is not the basis according to which, according to Articles 421 and 445 of the Civil Code of the Russian Federation, the arbitration court has the right to force party to enter into an agreement (case No. A13-5245/00-13). The Committee for the Management of City Property of St. Petersburg (KUGI) filed a claim with the arbitration court against a public organization to recover non-residential premises from the defendant’s illegal possession by evicting the organization from the occupied premises. The defendant filed a counterclaim to force KUGI to enter into a lease agreement for the disputed premises. By a court decision, the organization was evicted from its premises, and the counterclaim was rejected. By the decision of the appellate instance, the court decision was canceled in terms of the refusal to satisfy the counterclaim, and the organization’s claim was left without consideration. The cassation court overturned the decision of the appellate court regarding the cancellation of the court decision and leaving the organization's claim without consideration. The court's decision regarding the refusal to satisfy the counterclaim was upheld. The rest of the decision and ruling of the appellate court were left unchanged. At the same time, the cassation instance referred to the validity of the conclusion of the court of first instance, which did not establish the necessary conditions for the tenant to exercise his preemptive right, that, by virtue of Article 621 of the Civil Code of the Russian Federation, the organization does not have the right to force KUGI to conclude an agreement, since there are no rules providing for such an obligation for the lessor established, and pointed out the unjustified application in this case of Article 445 of the Civil Code of the Russian Federation, which regulates the procedure for concluding an agreement when one of the parties has an obligation to conclude it (case No. A56-31521/02). The limited liability company filed a claim with the Arbitration Court of the Pskov Region against the Committee for Municipal Property Management (KUMI), taking into account the clarification of the claims, for the recognition of its right to conclude a lease agreement for non-residential premises, the obligation of the defendant to conclude a lease agreement with it for the above-mentioned premises for a new term on the terms of the agreement with the winning bidder, referring to the pre-emptive right to conclude a lease agreement for a new term in accordance with paragraph 1 of Article 621 of the Civil Code of the Russian Federation. The court decision rejected the claim. The cassation instance left the decision unchanged, citing Articles 421, 621 of the Civil Code of the Russian Federation and pointing out that the presence of the lessor’s obligation to conclude a lease agreement for a new term would limit the right granted to the owner by paragraph 2 of Article 209 of the said Code to dispose of the property belonging to him at his own discretion ( case No. A52/2936/2000/1).

Thus, by virtue of Article 621 of the Civil Code of the Russian Federation, the tenant is not given the right to demand in court the conclusion of a lease agreement with him for a new term, since this norm, in the absence of certain circumstances, provides only the right of the tenant to demand the transfer of rights and obligations under the lease agreement or compensation losses.

Claims for the obligation to conclude an agreement on the basis of sublease

The joint-stock company (subtenant) filed a claim with the arbitration court against another joint-stock company for the obligation to conclude a lease agreement for the premises for the period from 05/31/2000 to 06/30/2000. In support of its claims, the plaintiff referred to the fact that the rental agreement for the premises, concluded for a period until June 30, 2000, between the defendant and the limited liability company (tenant), was terminated by mutual agreement of the parties. The decision, upheld by the appellate court, rejected the claim. By the decision of the cassation instance, the judicial acts were left unchanged. At the same time, the cassation instance indicated that the plaintiff could demand the conclusion of an agreement with him only for a period until 06/30/2000, since the sublease agreement is limited to the named date, and since the requirement to conclude a lease agreement for the period from 05/31/2000 to 06/30/2000 was made after the expiration the specified period, recognized as correct the court's conclusion that it rejected the claim for the defendant's obligation to conclude a lease agreement with the plaintiff within the remaining term of the sublease on terms corresponding to the terms of the terminated lease agreement. A limited liability company (“Art Hall”) filed a claim with the arbitration court against another limited liability company (Trading House) and the local government administration (Administration) to invalidate the lease agreement for non-residential premises in terms of determining the area leased by the Trading House from the Administration , and the obligation of the Administration to conclude a rental agreement with the Art Hall society for premises, including the area of ​​the trading floor for a period until December 27, 2002. The claim was satisfied by the decision of the court of first instance. The decision of the appellate court was overturned and the claim was rejected. From the case materials it is clear that the Administration (lessor) and the Trading House (tenant) entered into an agreement dated December 29, 2001 for the lease of municipal property - a non-residential building. According to the terms of the said agreement, the Trading House was given the right to independently sublease 50% of the rented space to third parties, on the basis of which the Trading House on January 27, 2002 entered into a sublease agreement for part of the premises with the Art Hall company for the period from January 27, 2002 to December 27, 2002. The Administration and the Trading House entered into a lease agreement for municipal property dated 02/11/02, according to which the Administration leased the mentioned non-residential building to the Trading House and signed an agreement on the same date to terminate the lease agreement dated 12/29/01 from the moment of state registration of the lease agreement dated 11 . 02.02 No. 40. This agreement (dated 02/11/02) was registered on 02/15/02 at the State Legal Entity “Center for State Registration of Real Estate and Transactions with It”, the premises were transferred to the Trading House under a transfer and acceptance certificate. Believing that the sublease agreement dated January 27, 2002, concluded between the Art Hall society and the Trading House, was terminated as of February 15, 2002, the plaintiff turned to the Administration with the mentioned requirement to conclude a lease agreement with him for the premises occupied by the plaintiff on the basis of a sublease agreement, within the remaining period. The Administration left this request unsatisfied. The court of first instance reasonably considered the plaintiff’s demand to conclude a lease agreement with him in court in accordance with the requirements of civil law to be satisfied, since in this case there was a violation of the plaintiff’s right granted by Article 618 of the Civil Code of the Russian Federation to conclude a lease agreement with the Administration for property located in his use in accordance with the sublease agreement, within the remaining term of the sublease, on conditions corresponding to the terms of the terminated agreement dated December 29, 2001. Agreement dated 02/11/02 regarding the lease of premises with an area of ​​277.9 sq. m. to the Trading House. m, occupied by the Art Hall society, was rightly recognized by the court of first instance as unlawful as contrary to the provisions of the same - 618 - article of the Civil Code of the Russian Federation. Taking into account the above, the cassation court upheld the decision of the court of first instance, canceling the decision of the appellate court as adopted with incorrect application of substantive law (case No. A26-4736/02-16). The law provides for the possibility of an interested party filing a claim in court to force the other party, obligated to enter into a lease agreement, to conclude a corresponding agreement within the remaining term of the sublease on terms corresponding to the terms of the terminated lease agreement.

Claims to force the conclusion of a land lease agreement

Thus, the joint-stock company filed a claim with the arbitration court against the Committee for the Management of City Property of St. Petersburg (KUGI) to force them to conclude a lease agreement for a land plot on the terms of the proposed draft agreement. In support of his claims, the plaintiff referred to his privatization of two hangars located on the disputed land plot, and indicated that in accordance with the legislation on privatization and Article 37 of the Land Code of the RSFSR, he has the right to demand the conclusion of a land lease agreement with him. The court decision satisfied the claims regarding the conclusion of the lease agreement. The cassation instance, canceling the appealed judicial act, proceeded from the plaintiff’s failure to prove that the mentioned hangars can be classified as real estate objects that meet the requirements of Article 130 of the Civil Code of the Russian Federation, pointing out that the plaintiff in this case must prove not only the fact that he privatized hangars, as well as their classification as real estate (case No. A56-17718/99). Article 35 of the currently valid Land Code of the Russian Federation of 2002 provides that when the ownership of a building, structure, structure located on someone else’s land plot is transferred to another person, he acquires the right to use the corresponding part of the land plot occupied by the property and necessary for their use, on the same terms and to the same extent as the previous owner. According to the studied practice, disputes resolved by the courts are currently considered taking into account this norm. The limited liability company filed a claim with the arbitration court against the City Property Management Committee of St. Petersburg (KUGI) to force them to enter into a land lease agreement on the terms of the draft agreement presented by the plaintiff. By the court's decision, upheld by the appellate court, the claims were satisfied. As can be seen from the case materials, the company owns real estate by right of ownership, which is confirmed by a certificate of state registration of rights to real estate dated July 31, 2002. The basis for the emergence of the right was the purchase and sale agreement dated July 23, 2002, concluded by the plaintiff with another legal entity (the Baltic Real Estate company). In the cassation appeal, KUGI referred to the existence of a dispute over the right to a property located on this land plot. Leaving the appealed judicial acts unchanged, the cassation instance pointed to the correctness of the court's conclusion that the plaintiff had the right to lease this land plot, citing the unfoundedness of the KUGI argument about the existence of a dispute about the ownership of the property located on the land plot, since the ownership of real estate owned by the Baltic Real Estate company was recognized by a court decision in case No. A56-9844/0210, purchase and sale agreement dated 23. 07.02 in accordance with the procedure established by law was not recognized as invalid, the plaintiff’s ownership of the property was registered in the manner prescribed by Article 2 of the Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to Real Estate and Transactions with It”, and was not challenged ( case No. A56-37658/0212). The limited liability company filed a claim with the arbitration court against the Leningrad Regional Committee for State Property Management (hereinafter referred to as Lenoblkomimushchestvo) and the Property Fund to force them to conclude a purchase and sale agreement for a land plot. The Leningrad Regional Committee for Land Resources and Land Management and the Housing and Maintenance Unit of the Vyborg Garrison of the Leningrad Military District were involved in the case as third parties. The decision rejected the claim. The North-West Branch of the Russian Federal Property Fund and the Russian Federal Property Fund were involved in the case as a third party. The decision of the appellate court upheld the decision. Since the court, on the basis of the case materials, established that the purchase and sale agreement of released military property concluded between the company and the Russian Federal Property Fund stipulated the procedure for using the land plot under the real estate object and provided for the conclusion of a lease agreement, the court reasonably rejected the plaintiff’s claim to compel the conclusion of a land purchase and sale agreement plot (case No. A56-17376/01).

If, when concluding an agreement for the purchase and sale of real estate, the parties determined the legal fate of the land plot on which the property is located, the interested party has the right to demand the conclusion of an appropriate agreement with it regarding the use of the land plot on the basis of an existing agreement. When resolving disputes about compulsion to conclude contracts for the purchase and sale of land plots, the courts are guided by the provisions of Article 36 of the Land Code of the Russian Federation, according to which citizens and legal entities who are the owners of real estate objects are granted the exclusive right to privatize the land plots on which these objects are located, or acquisition of lease rights to these areas. However, in practice, the question arose about whom the interested party should sue to compel the conclusion of a contract for the sale and purchase of a land plot. In a number of cases, corresponding claims were brought against regional property funds and Russian federal property funds. At the same time, in accordance with the provisions of paragraph 1 of Article 217 of the Civil Code of the Russian Federation, property in state or municipal ownership may be transferred by its owner into the ownership of citizens and legal entities in the manner prescribed by laws on the privatization of state and municipal property. According to paragraph 3 of Article 28 of the Law of December 21, 2001 No. 178-FZ “On the privatization of state and municipal property,” the decision to sell land plots is made by the body that made the decision to privatize real estate located on these land plots. At the same time, the Law on Privatization does not contain provisions on property funds as sellers of state and municipal property, with the exception of the indication in paragraph 1 of Article 6 that the Government of the Russian Federation may entrust the implementation of the function of selling privatized federal property on its behalf to a specialized government agency.

In determining the Committee for the Management of City Property of St. Petersburg (the Committee) as the proper seller of the land plot on which the gas station was located, the owner of which was the Gatchina Oil Company company, the cassation instance proceeded from these provisions of the Law and upheld the decision of the court of first instance (if new consideration), by which the Committee, which approved the plan for the privatization of the state enterprise "Auto Service Plant", and therefore made the corresponding decision, is obliged to conclude a land purchase and sale agreement with the company on the terms of the project agreed upon by the parties. The court rejected the claim against the St. Petersburg Property Fund and the Russian Federal Property Fund, not considering them proper defendants in the case (case No. A56-36871/01). The limited liability company filed a claim with the arbitration court against the Municipal Property Management Committee (Committee) to force them to conclude a purchase and sale agreement for a land plot on the terms of the draft agreement presented by the plaintiff. By a court decision, a purchase and sale agreement for the specified land plot was concluded between the Committee and the Company. The decision was overturned by a ruling of the cassation court. The claim was denied. At the same time, the cassation court, having recognized the plaintiff’s right to purchase the said land plot, pointed out that the defendant did not make a decision to privatize the property located on the disputed land plot and owned by the plaintiff, but evidence that the ownership of the municipality for the disputed land plot is registered in the manner prescribed by law, the plaintiff is not represented (case No. A56-25106/02). In the next case, a closed joint stock company filed a claim with the arbitration court against the mayor's office and the Regional State Property Management Committee (Kugi) to oblige the proper defendant to enter into a purchase and sale agreement for four land plots. In support of his claims, the plaintiff referred to the fact that he owns gas stations located on the mentioned land plots. The court ordered the city administration to conclude a land purchase and sale agreement with the company on the terms of the project proposed by the plaintiff. By the decision of the Federal Arbitration Court of the North-Western District, the decision was overturned. The case was transferred for a new trial to the court of first instance. At the same time, the cassation court pointed out that the court of first instance did not check the competence of the mayor’s office to conclude purchase and sale agreements for disputed land plots, and did not investigate the question of whether gas stations located on disputed land plots were part of any privatized property and which body made the decision on the privatization of state (municipal) property. The court also indicated that the purchase price of land plots when considering a dispute about compulsion to conclude a purchase and sale agreement is determined not on the day the dispute arose, as the court of first instance indicated, but on the date of the decision, since the judicial act must comply with the rules of law in force at the time of its acceptance, and the court indicates the conditions under which the parties are obliged to enter into an agreement (case No. A21-2735/02-C2).

According to established practice, when determining the redemption price of a land plot, the court proceeds from the fact that the redemption price of the plot should be determined at the time the court makes a decision to conclude an agreement, that is, the procedure for calculating the redemption price established by the legislation in force at the time the court makes the decision is subject to application, and not on the date of application.

Pre-trial procedure for concluding contracts

The closed joint-stock company filed a claim with the arbitration court against KUGI for compulsion to conclude a lease agreement for non-residential premises, citing in support of its claims the evasion of concluding a lease agreement by KUGI, which, based on the decision of the city commission for the disposal of real estate, issued an order to provide the company with lease of non-residential premises . By the court's ruling, upheld by the appellate court, the claim was left without consideration due to the plaintiff's failure to comply with the pre-trial procedure for resolving the dispute. In the cassation appeal, KUGI asked to exclude the conclusion made on the merits from the reasoning part of the decision of the appellate instance. The cassation court upheld the complaint of the KUGI and excluded from the reasoning part of the appellate ruling the conclusion that “that the defendant assumed the obligation to conclude a lease agreement with the plaintiff.” At the same time, the cassation instance indicated that it is possible to establish whether KUGI has an obligation to conclude an agreement in this case only based on the results of an investigation of the circumstances and actions of the parties preceding the company’s filing of a claim in court, and that this issue is included in the circle of circumstances subject to proof when considering the case on essence.

A special category should include disputes regarding claims for compulsion to conclude energy supply contracts (these contracts, due to their specific nature, are of a public nature). Article 426 of the Civil Code of the Russian Federation refers to public contracts as contracts concluded by a commercial organization and establishing its obligations for the sale of goods, performance of work or provision of services, which such an organization, by the nature of its activities, must carry out in relation to everyone who applies to it (retail trade, transportation public use, communication services, energy supply, medical, hotel services, etc.). A commercial organization does not have the right to give preference to one person over another with regard to concluding a public contract, except in cases provided for by law and other legal acts. A commercial organization's refusal to conclude a public contract when it has the opportunity to provide the consumer with the relevant goods, services, or perform the relevant work for him is not allowed. If a commercial organization unjustifiably evades the conclusion of a public contract, the provisions provided for in paragraph 4 of Article 445 of the Civil Code of the Russian Federation are applied, according to which a party has the right to apply to an arbitration court with a corresponding claim against the other party, for whom the conclusion of the contract is mandatory. Article 539 of the said Code stipulates that an energy supply contract is concluded with a subscriber if he has a power receiving device that meets the established technical requirements, connected to the networks of the energy supplying organization, and other necessary equipment, as well as providing metering of energy consumption. The possibility of concluding an energy supply agreement is directly linked by the legislator with the presence of a subscriber with an appropriate power receiving device connected to the networks of the energy supply organization, as well as the ability to ensure metering of consumed energy.

The cooperative filed a claim with the arbitration court against the joint-stock company for the obligation to conclude an energy supply agreement. The court decision satisfied the claim. The decision of the appellate court upheld the decision. By the decision of the Federal Arbitration Court of the North-Western District, these judicial acts were canceled. The case was transferred for a new trial to the court of first instance. Upon reconsideration, the court satisfied the claims. By the decision of the appellate court, the decision was canceled and the Cooperative was denied satisfaction of the claims. By the decision of the Federal Arbitration Court of the North-Western District, the decision of the appellate instance was canceled. The decision is upheld. At the same time, the cassation instance proceeded from the presence of appropriate energy-receiving devices at the cooperative, as well as facilities that consume electricity, and from the provisions of Article 539 of the Civil Code of the Russian Federation (case No. 2762/1457/3414). The joint-stock company appealed to the arbitration court to Petersburgregiongaz LLC to force it to renew the contract for the supply of natural gas. Before the court made a decision in the case, the plaintiff filed a motion to change the claims and asked to force Peterburgregiongaz LLC to enter into an agreement with him for the supply of natural gas. The court granted the plaintiff's request to take measures to secure the claim by prohibiting Petersburgregiongaz LLC from taking actions to cut off and suspend gas supplies and transportation for the joint-stock company and brought a limited liability company (of the same name) to participate in the case as a third party. The court decision satisfied the claim. The decision of the appellate court upheld the decision. As follows from the case materials, the bailiff, as part of the consolidated enforcement proceedings, seized the property of the limited liability company. The enforcement proceedings by the bailiff have been completed due to the fulfillment of the requirements contained in the writ of execution. Based on the writ of execution of the Vyborg City Court of the Leningrad Region, at the claim of an individual, the bailiff issued a resolution to initiate enforcement proceedings. The property, inventory and equipment of the limited liability company, which were seized, were seized and transferred to safekeeping. This enforcement proceeding has also been completed due to the fulfillment of the requirements contained in the writ of execution. An agreement was concluded between the responsible custodian of property, inventory and equipment of a limited liability company, individual A.K. Karagapolov, and the joint-stock company, according to which the custodian transferred the property for temporary use to conduct production activities with the right to independently conclude contracts, conduct commercial activities, operate equipment and sales of finished products. The joint-stock company sent a letter to Petersburgregiongaz LLC with a proposal to conclude an agreement for the supply of gas. The refusal of Petersburgregiongaz LLC to conclude the said agreement served as the basis for filing this claim. Leaving the appealed judicial acts unchanged, the cassation instance pointed to the validity of the court’s conclusion, which forced the plaintiff to enter into an agreement for the supply of gas with the defendant, and referred to the fact that the materials confirmed the fact of the transfer to the plaintiff of gas receiving equipment and equipment to ensure metering of the consumption of the supplied gas, as well as the fact that the actual consumer of the gas supplied by the defendant through the disputed equipment is currently a joint-stock company, which makes payment for the supplied gas, and the law does not connect the possibility of concluding an energy supply agreement with the subscriber having the right of ownership of energy receiving devices (clause 2 of Article 539 Civil Code of the Russian Federation), while turning off gas will lead to economic and social problems (case No. A56-30700/02).

The obligation to conclude an energy supply agreement can be assigned directly only to the energy supply organization.

The housing cooperative filed a claim in the arbitration court against the State Unitary Enterprise “Fuel and Energy Complex” to force them to conclude a heat supply agreement. In support of his claims, the plaintiff referred to the defendant’s refusal to conclude a hot water supply agreement with him on the terms of the sent draft agreement. JSC Lenenergo was involved in the case as a third party. The court decision rejected the claim. By the decision of the Federal Arbitration Court of the North-Western District, the decision was overturned. The case was sent for a new trial to the court of first instance. Upon reconsideration, the court rejected the claim. In the cassation appeal, the housing cooperative asks to cancel the decision and force the State Unitary Enterprise “Fuel and Energy Complex” to conclude a heat supply agreement with it. According to the complainant, the court’s conclusion that the energy supply organization in relation to the housing cooperative is JSC Lenenergo, and not the State Unitary Enterprise Fuel and Energy Complex, contradicts Articles 426 and 539 of the Civil Code of the Russian Federation and does not correspond to the actual circumstances of the case. The decision of the Federal Arbitration Court of the North-Western District was left unchanged. The cassation court proceeded from the provisions of Article 539 of the Civil Code of the Russian Federation, which provides for the obligation of the energy supplying organization to supply energy to the subscriber (consumer) through the connected network, the provisions of Article 1 of the Federal Law of April 14, 1995 No. 41-FZ “On state regulation of tariffs for electrical and thermal energy in the Russian Federation”. Federation", according to which an energy supplying organization is recognized as a commercial organization, regardless of its organizational and legal form, that sells produced or purchased electrical and (or) thermal energy to consumers, and established that in the section of the heating network to which the plaintiff’s power receiving device is connected, the production of thermal energy carried out by JSC Lenenergo, to which the defendant, on the basis of an agreement, provides services for the transfer of thermal energy to consumers through its network. It was also established that the defendant does not have the opportunity to purchase thermal energy from other enterprises to supply to the plaintiff. The court came to the conclusion that the denial of the plaintiff’s claim was justified due to the lack of an obligation on the defendant, who is not an energy supply organization, to conclude a heat supply agreement with the plaintiff. Judicial practice proceeds from the fact that since the subscriber has the right to transfer, with the consent of the energy supplying organization, the received energy to another person, then in relation to the sub-subscriber he is also an energy supplying organization, and the relationship between them, taking into account the analogy of the law, by virtue of Article 6 of the Civil Code of the Russian Federation, must be regulated by an energy supply agreement and provide for the possibility of a subsubscriber filing a claim to force him to enter into an energy supply agreement. A group of individual developers (KIZ) filed a claim with the Arbitration Court against the City Hall and the Plant for the obligation of one of the defendants to conclude an agreement on the supply of thermal energy (hot water) to a residential building. By a court decision, the proceedings in the case against the Plant were terminated due to the court's acceptance of KIZ's refusal of the claim against this defendant. The court ordered the City Hall, within a month after the decision entered into legal force, to conclude an energy supply agreement with KIZ in the wording proposed by the plaintiff. The decision of the appellate court upheld the decision. In the cassation appeal, the City Hall asked to cancel the judicial acts adopted in the case and transfer the case for a new trial. According to the complainant, the City Hall, by virtue of the law, cannot be an energy supply organization, therefore the plaintiff has no right to demand that the City Hall conclude a public contract. The mayor's office believes that KIZ should be a subscriber of the Plant. The mayor's office also indicated that the Plant, as an energy supply organization, did not give consent to the mayor's office as a subscriber to conclude energy supply agreements with the sub-subscriber - KIZ. By the decision of the Federal Arbitration Court of the Northwestern District, the judicial acts were left unchanged. At the same time, the cassation instance, citing the provisions of Articles 445, 539, 545 of the Civil Code of the Russian Federation (providing for the need for the consent of the energy supplying organization for the transfer of energy from subscriber to sub-subscriber), indicated that since the City Hall, being the only possible supplier of heat energy for the KIZ, due to the fact that the energy receiving device , owned by the plaintiff, is connected to the heat network of the City Hall and does not have a common border with the networks of the Plant, has the ability to supply the plaintiff with thermal energy (hot water), and the plaintiff has the opportunity to receive it. In the case materials, there is evidence of the Plant’s consent to connect the disputed residential building to the City Hall’s heating networks and to transfer energy from the City Hall (subscriber) to KIZ (subsubscriber), therefore, the plaintiff’s demand for the City Hall’s obligation to conclude an energy supply agreement with him is justified, and the conclusion is court on satisfaction of the requirements stated by the KIZ - lawful (case No. A05-1936/03-72/24). The Foundation for Scientific and Technical Research and Support of Social Initiatives (the Foundation) filed a claim with the Arbitration Court against the Housing Agency for the obligation to conclude an agreement on the supply of thermal energy (hot water) to a residential building. In rejecting the claim, the court proceeded from the fact that the Housing Agency is not an energy supply organization. JSC Lenenergo and State Unitary Enterprise FEC SPb were involved in the case as third parties. The appeal court overturned the court's decision and ordered the Housing Agency to enter into a heat supply agreement with the Fund within thirty days from the date the decision entered into legal force. The cassation instance, leaving the decision of the appellate instance unchanged, in addition to the justifications given in the previous example, also indicated that the Housing Agency is an organization that operates and repairs heating networks, that the heating networks through which the plaintiff receives thermal energy (hot water) are located on the balance sheet of the defendant, while JSC Lenenergo and State Unitary Enterprise TEK SPb do not have any rights to the specified networks through which heat is supplied to the disputed residential building, and recognized as lawful the conclusion of the appellate court that in this case it is inadmissible to refuse to conclude a public contract (case No. A56-2074/02).

In accordance with paragraph 2 of Article 445 of the Civil Code of the Russian Federation, in cases where, in accordance with this Code or other laws, the conclusion of an agreement is mandatory for the party that sent the offer (draft agreement), and within thirty days a draft of disagreements to the draft agreement will be sent to it, this party is obliged, within thirty days from the date of receipt of the protocol of disagreements, to notify the other party of the acceptance of the agreement in its wording or of the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or notification of the results of its consideration is not received within the specified period, the party that sent the protocol of disagreements has the right to submit the disagreements that arose during the conclusion of the agreement to the court. From the above norm we can conclude that the energy supply organization that has sent the draft contract to the energy consumer does not have the right to file a lawsuit to force the energy consumer to enter into the relevant contract. However, in the absence of contractual relations, the energy supplying organization is not deprived of the right to demand from the consumer, whose energy-consuming installations are connected to the networks of the energy supplying organization, reimbursement of the cost of energy supplied to the consumer.

Afterword

Freedom of contract is one of the fundamental principles of civil legal relations. No one can be forced into an agreement; no one can be forced to agree to the terms of a deal without their consent. This is the foundation on which the entire structure of contractual law of free economic entities stands. But this principle also has exceptions. Compulsion to conclude a contract, which is not usually allowed, is possible in a number of cases.

Conclusion of an agreement: from general to specific.

The definition of “agreement” is contained in the Civil Code (Article 420) and looks like “an agreement to establish obligations and rights.” And if you remember Article 1 of this code, it talks about “freedom of contract”. This term means the following: each party has the right to decide how much it needs to participate in this agreement, and if it does not want to, refuse. Article 421 has the same content, but here a “fork” already appears in paragraph 1, where the possibility of coercion is allowed. The list of situations when this is possible is varied: from opening a current account to extending the lease at the initiative of the tenant. Compulsion to conclude an agreement is permitted on the basis of:

• current laws (the obligation to formalize the contract follows from the law). Here we can recall the category of “public contracts” (retail trade, various types of energy supply, services of medical organizations, hotels, transportation, etc.) when it is impossible to refuse to provide a “service” or sell a product to a consumer.
• accepted obligations (when such an obligation is accepted on the basis of an agreement). Such cases are also not uncommon. Thus, the parties often enter into preliminary agreements, the function of which is precisely to ensure the execution of the agreement on the agreed terms in the future.

Procedure for forcing someone to sign an agreement.

Coercion is applicable only if one of the parties has an obligation to conclude a contract. The course of action depends on the agreement or refusal to accept the proposed conditions by the evading counterparty. If there are no controversial issues, the process takes place in three stages:

1. An agreement (offer) is sent to the party. A thirty-day period is allotted for consideration of the proposed conditions, during which an official response must be given.
2. If there are no controversial points (that is, acceptance of the terms of the offer), the document is signed (acceptance).
3. An acceptance message is sent. In practice, a signed copy of the contract is sent to the counterparty.

If there are controversial issues, that is, the terms of the contract are not suitable, then the order of actions is different.

1. The contract is sent to the party for review. And within the thirty-day period specified by law, a response must be prepared.
2. If there are any controversial issues, it is drawn up and sent to the counterparty.
3. Within thirty days, disagreements are accepted or a new offer is drawn up. All this is being formalized.
4. If the disagreements are not resolved, then the dispute is referred to the arbitrators, who will make a “Solomon decision”.

In these procedures, the obligated party can be both the offeror (the person who proposed to conclude the contract) and the person to whom the offer is sent. In any case, if the obligated party does not perform the established actions within the specified time frame, such behavior is regarded as evasion, which gives the right to demand that the obligated person be forced to enter into an agreement.

The specified period (30 days) can be applied only in cases where other time frames are not specified in the agreement or in other laws (Article 445 of the Civil Code). It is worth considering that the emergence of disagreements does not mean evasion. In such a situation, the subject of the claim will be different, namely a claim to resolve the disagreements that have arisen.

What are the consequences for evading parties?

Failure to comply with the deadlines allocated for consideration of the offer may lead to legal proceedings. The party that sent the contract has the right to apply to a judicial authority to resolve the dispute. At this stage, it is important to draw up a claim correctly or use the help of a lawyer to get the document signed, as well as compensation for losses caused by the delay. The latter is specified in article 445.

Peculiarities of concluding some “binding” contracts.

As previously noted, compulsion to enter into an agreement is feasible only in situations that are provided for by law, or in the presence of a voluntarily accepted obligation. If the “obligated” party evades, the counterparty goes to court. Often, coercion is the only way to protect one's interests.

Lease contract

Provided that the tenant has completed what he himself should have done, he can count on an extension on the basis of the pre-emptive right that is reserved for him in the Civil Code. The procedure involves informing the lessor in writing of such intention before the end of the current term. After which the process follows the general scheme with agreement on conditions within the allotted (30-day) period. Proper notice becomes decisive in a situation where the landlord intends to enter into an agreement with another person and refuses to renew the tenant (thereby violating his right).

Real estate purchase and sale agreement

In practice, it is often compiled. In it, the parties agree on “future” conditions, which leads to the acceptance of corresponding obligations. Their essence is the obligation to sign an agreement on the agreed terms. In this situation, coercion to conclude an agreement does not contradict the principle of freedom specified in Article 1 of the Civil Code. But it is necessary to take into account that the preliminary agreement must specify essential conditions. When registering a sale and purchase, these are: the price and the subject of the contract. Moreover, you need to indicate everything in detail - floor, cadastral number, footage, living space. A request for compulsion may be refused in the absence of an agreed subject matter of the contract. You should carefully check the basic data and clearly formulate the necessary points.

If the property is located on land, then the interested party has grounds for demanding registration of the right to use the land. When resolving such disputes, the rules of the Land Code are taken into account, namely Art. 36.

Coercion presupposes the existence of legal grounds that must arise from the nature of legal relations or concluded agreements. Violation of deadlines when considering an offer and delays in signing documents can ultimately lead to the payment of compensation by the evading party.

Anton Ivanov on contractual coercion and freedom of contract.