Preparation of a draft agreement
It is advisable for the draft of the upcoming contract to be developed by the interested party itself, and not receive it from the counterparty.
The person who draws up the project has the advantage of including conditions favorable to him in the contract. In the future, during the negotiation process, the other party will change and challenge the conditions already included in the project. It is known that one or another wording of the same proposal can have different meanings, and this is also an advantage for the party drafting the contract. In addition, you can avoid any surprises that may come from your counterparty, and based on his comments, you can trace exactly what his interests are and prevent the inclusion of undesirable conditions in the contract.
Contract structure
| Chapter | Description |
| Preamble | This section is also called the header; it indicates such details of the contract as name, number, place and date of conclusion. It should be clear from the preamble who exactly enters into the agreement, and on the basis of what documents the representatives of the parties act. |
| Subject of the agreement | Indication of the subject of the contract refers to the essential conditions, therefore in this section it is necessary to clearly state what action or obligation must be performed by the parties. |
| Rights and obligations of the parties | Here they indicate in detail how exactly the parties must fulfill their obligations, and what they have the right to within the framework of the concluded agreement. All these conditions must comply with the requirements established by law for a certain type of contract and not contradict mandatory norms. |
| Price and payment procedure | It is best to immediately write down the total amount of the contract in the contract, highlighting VAT as a separate figure. If at the time of concluding the contract it is impossible to determine the exact price, then a procedure for calculating the price must be provided. It is also necessary to indicate the type of payment (non-cash or cash), but one must remember that cash payments are limited to 100 thousand rubles within the framework of one agreement. Here you can provide the possibility of partial payment, installments, payment by installments, etc. |
| Responsibility of the parties | Measures to protect the interests of a party in case of violation of its rights by the other party include: compensation for losses, penalties, payment of interest for the use of other people’s money, reduction in the price of low-quality goods, replacement of goods, refusal to fulfill the contract, etc. |
| Other or final conditions | This section may contain several different provisions: the duration of the contract, the procedure for its amendment and termination; force majeure; pre-trial procedure for disputes and jurisdiction; an indication of the annexes to the agreement, etc. Sometimes, if these provisions are voluminous, they are written in different sections. |
| Details and signatures | In addition to the name of the party and its representative, the details must include complete and accurate contact information and bank details. You should not allow a situation where the last page of the agreement contains only details without reference to the text of the agreement. It is better to bind multi-page contracts and endorse each page with your signature. This will not allow an unscrupulous partner to change the terms of the agreement. |
Negotiation of contract terms. Protocol of disagreements
When conducting negotiations to agree on the terms of an agreement, it is recommended to keep a protocol of such negotiations indicating the relevant details (full names of the participants in the negotiations, their representatives, date, place of drawing up the protocol, signatures of the parties). It should be especially emphasized that the contract should not contain conditions that can be interpreted ambiguously, imprecise conditions, or general phrases.
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In case of disagreement on certain terms of the contract, it is recommended to draw up a protocol of disagreements. The protocol of disagreements may also be accompanied by expert opinions (lawyers, economists, managers, auditors), about which it is necessary to make appropriate notes in the protocol.
The protocol must contain details similar to those of the negotiation protocol. If there is a protocol of disagreements, a clause about this is usually made in the contract. The contract may also contain a clause stating that all pre-contractual documents lose all significance for the relations of the parties under the relevant contract.
If for one of the parties the conclusion of an agreement is mandatory, and also by agreement, the parties may submit disagreements regarding the concluded agreement to the court.
It is important to know that until the parties have documented the fulfillment of their obligations towards each other, in the legal sense they remain debtors, even if the terms of the contract have actually already been fulfilled. Such documents may be:
- acts of acceptance and transfer of goods, works, services;
- payment orders for payment for goods, works, services;
- receipts for shipment of goods to the consignee;
- warehouse receipts for delivery and acceptance of goods, etc.;
Reception of goods is accompanied by such accompanying documents as invoices, inventories, invoices, specifications, etc. The quality of products can be confirmed by technical passports, certificates or quality certificates and other documents. If product shortages or quality defects are discovered, then in cases provided for by regulatory rules or agreement, the recipient may call a representative of the counterparty to draw up a report.
How to conclude an employment contract correctly
Anna Fedorova, HR expert, candidate of psychological sciences, author of the project “HR partner of small businesses”, employer.rf, about all the nuances of concluding an employment contract between an individual entrepreneur and his employee.
Traditionally, a very large proportion of violations detected during Rostrud inspections are related to employment contracts: their conclusion, internal content, compliance with conditions, etc. In official statistics, these violations annually occupy a leading position, so it is important for entrepreneurs to know how to correctly conclude an employment contract in order to avoid negative consequences in the form of administrative fines, financial losses and legal disputes.
An employment contract is the main document between an employer and an employee, on the basis of which the employee has the obligation to perform the job function assigned to him and comply with all the rules of the employer, and the employer has the obligation to provide this same work, working conditions for its implementation, and pay wages.
So, you are an entrepreneur and have decided to hire someone else. The first step is to draw up an employment contract, which must include the following information (check it point by point!):
1
Last name, first name, patronymic of the employee and name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract.
2
Information about identification documents of the employee and the employer - an individual: series and number of the passport, by whom and when issued.
3
Employer's TIN.
4
Information about the employer’s representative who signed the employment contract and the basis on which he is vested with the appropriate powers.
5
Place of conclusion of the employment contract.
6
Date of conclusion of the employment contract.
7
Place of work.
For example: Romashka LLC, Moscow or Individual entrepreneur Olga Semenovna Romashkina, Moscow.
8
Labor function - work in a position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work assigned to the employee. Before concluding an employment contract, you must already have a staffing table approved with the vacant position for which you will hire this employee.
For example: Under this employment contract, the Employer provides the employee with Romashkina O.S. work as a manager.
9
Work start date.
10
Terms of remuneration - salary or tariff rate, constant payments (regional coefficient, percentage bonuses, additional payment for work in hazardous working conditions). Here you should also specify the procedure for paying wages (through the organization’s cash desk, through a bank at the employee’s request, etc.).
11
Regime of working time and rest time (if for a given employee it differs from the general rules of the employer, enshrined, for example, in the PVTR).
12
Working conditions in the workplace.
If a special assessment of working conditions has not yet been carried out, then indicate the workplace with what characteristics of lighting and equipment it is provided with.
13
Conditions on compulsory social insurance of the employee.
14
For a fixed-term employment contract, the following must be specified:
●
its validity period,
●
circumstances that served as the basis for concluding a fixed-term employment contract.
Note! If you are an employer - a small business entity (including individual entrepreneurs) and the number of your employees does not exceed 35 people (in the field of retail trade and consumer services - 20 people), then by agreement of the parties you can enter into a fixed-term employment contract with the persons hired to your place of work (Article 59 of the Labor Code of the Russian Federation).
In the employment contract you can provide additional conditions, for example, such as:
●
about the probationary period;
●
on the employee’s obligation to work after training for no less than the period established by the contract, if the training was carried out at the expense of the employer;
●
on non-disclosure of secrets (state, official, commercial and other);
●
on additional non-state pension provision for the employee;
●
about the types and conditions of additional employee insurance, etc.
Important! If you have the desire and need to include your own conditions in the employment contract, then they should not worsen the employee’s position in comparison with the current labor legislation and other legal acts. Otherwise, they will simply be considered illegitimate, and you will receive a fine.
At the second step, the employment contract must be printed in 2 copies and each signed by the employer and the employee.
One copy remains in the hands of the employee, the second - with you as the employer. In addition, on your copy you must obtain a signature from the employee indicating that he has received his copy of the employment contract.
On a note! If you forgot to indicate the start day of work in the employment contract, then the employee must begin work on the next working day after the contract comes into force (day of signing).
If the employee does not start work on the start date, the employer has the right to cancel the employment contract. A canceled employment contract in such a situation is considered not concluded.
If, when drawing up and concluding an employment contract, you completed all the points described in this article without missing a single one, then you can safely show it to the inspector of the supervisory authority!
Anna Fedorova - employer.rf
What is freedom of contract?
Freedom of contract, provided for in Article 421 of the Civil Code of the Russian Federation, means that it is not allowed to force anyone to enter into a contract against his will, unless such an obligation is provided for by law or a voluntarily accepted obligation. As for the contractual terms themselves, the parties are only partially free.
Article 422 of the Civil Code of the Russian Federation indicates that the contract must comply with imperative norms, that is, those rules obligatory for the parties that are established by law or other legal acts. If any term of the contract contradicts a mandatory norm, then it is illegal and cannot be fulfilled by the parties. But another thing is also true - a mandatory norm not included in the text of the treaty must be fulfilled in any case.
https://www.youtube.com/watch?v=ytpolicyandsafetyru
The parties cannot change mandatory norms by agreement among themselves, but in addition to such strict norms, there are also dispositive ones. Such rules describe the terms of the contract in the form of a possible option or do not provide any option at all, but leave it to the discretion of the parties.
Thus, when concluding an agreement, it is necessary to clearly distinguish between imperative and dispositive norms. This is quite easy to do. Consider, for example, Art. 456 of the Civil Code of the Russian Federation. The imperative norm is indicated in paragraph 1 and reads as follows: “The seller is obliged to transfer to the buyer the goods provided for in the sales contract.”
General provisions
A contract is an agreement between the parties under which their rights and obligations arise, change or terminate. The contract is considered concluded if the parties have agreed on all the essential terms of the contract. Essential are the conditions regarding the subject of the contract.
The following main types of contracts are distinguished: purchase and sale, contract, rent and hire, loan and credit, storage, insurance, barter, donation, rent, bank deposit agreement. Each of these types has its own subtypes, the drafting of which has its own characteristics that must be taken into account when developing each type of contract.
Ignoring the specifics of drafting contracts may entail negative consequences for the parties as a whole or for one of the parties whose counterparty has the intent to improperly fulfill the terms of the contract.
Another peculiarity of the drafting of contracts is that a specific form may be provided for certain contracts.
Agreements between the parties can be concluded orally, but only if it is not concluded with a legal entity and has a small monetary value; in other cases, written form is required.
Thus, the legislation of the Russian Federation distinguishes the following forms of contracts:
- simple written form. It is drawn up and signed by the parties on paper or via electronic document management, if this is provided for by law and the terms of the agreement. Confirmation of the will of the parties in electronic document management is an electronic digital signature, which the parties can receive in the manner prescribed by law.
- notarized form of agreement. The obligation to carry out transactions in this form is established only for certain types of contracts. For example, notarization is provided for rent agreements, marriage contracts, etc.
Signing the contract
On the need to check the authority of the person signing the agreement (transaction), see Restriction of authority to complete a transaction.
In accordance with the legislation of the Russian Federation, an agreement must be signed by the parties, but the method of such signing is not regulated anywhere. For example, is an agreement considered signed if one of the parties puts a “tick” by hand in the signature area?
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This issue causes a lot of controversy. There is no answer to this in the legislation. A signature, as a form of recording a party’s consent to what is contained in a document, provides certain guarantees for the subsequent identification of its owner, which can be carried out with great accuracy during a handwriting examination.
Based on this, it is recommended, when signing documents, to affix a transcript of the signature, moreover, written by the person who signed the document. This is especially true if the counterparty, instead of a signature, puts down a simple squiggle, which will not be difficult to repeat after a short training for any other person (in such a situation, the above examination will not always help).
If the counterparty writes his first and last name next to the “tick”, there is no doubt about the validity of the signature. Thus, the signature that can perform the function of identifying its author will be considered valid, otherwise the contract can be challenged as signed by an improper person.
As for the certification of contracts with a seal, with a few exceptions, there is no requirement in the law that such certification is mandatory; there is only a rule that any transaction must be signed. Unlike a signature, a seal can be easily forged, so it can only serve as an additional guarantee of authenticity. The same is true for facsimiles.
Regarding the conclusion of an agreement through the use of fax, the following can be said. The legislation directly provides for such a possibility (see Written form of a transaction (agreement)), however, this method is associated with a certain risk, because The technological features of this type of communication do not allow us to accurately and reliably record the date, addressee, sender and content of the message. However, due to the widespread use of fax communication in practice, it is necessary to recommend the following:
- it is necessary to keep a log of incoming and outgoing messages (of course, such a log can be done at any time, and it does not have much significance, but it will be another piece of evidence in your favor in court);
- When sending important documents, you should always ask the recipient to make a copy of the received message, put his signature on it, and also indicate his position, full name, date, time of acceptance of the document and send such a copy back (a more effective way, because you will have a copy of your document with the autograph of the counterparty's employee);
- As soon as possible, draw up and sign a single document with the counterparty (better late than too late!).
The methods listed above, however, do not provide one hundred percent protection from unscrupulous counterparties. One of the most reliable ways to resolve the issues raised in this article is to conclude a special agreement between the parties, which would regulate the procedure for confirming contracts signed by facsimile, as well as transmitted by facsimile.
- priority of using a copy of one party or another in the event of a dispute (authenticity);
- distribution of the risk of technical errors in the passage of fax items;
- distribution of the risk of intervention by a third party acting under the guise of one of the counterparties;
- the procedure for exchanging documents by fax and other communications;
- procedure for using facsimiles.
Once these issues are resolved, the use of fax and facsimile will become safer.
It often becomes necessary to conclude an agreement between two organizations in which the general director is the same person, or it is necessary to conclude an agreement between the organization and its director. Are such transactions valid, and what to do in such situations? Many, fearing that the transaction will be declared invalid, on the one hand enter into an agreement by proxy, or even formally send the director of one of the two companies on vacation, and also enter into an agreement by proxy on behalf of one of the organizations. 0Let's consider both options.
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Features of the agreement
Today, from the point of view of jurisprudence, there are many types of contracts that relate to different areas of law - such as civil, labor, and so on.
In addition to the classification according to which they are divided into oral and written, there are others.
Thus, a contract may be gratuitous when both parties do not receive payment for its implementation.
If at least one of them must receive a reward for fulfilling obligations, such an agreement is called a remunerative contract.
A transaction can be concluded between two individuals or legal entities - such an agreement is called a bilateral contract. There can also be multiple parties - if one of them is represented by two or more persons, such a transaction in jurisprudence is called a multiple contract.
Any contract is concluded in three stages:
- offer and negotiations before concluding a transaction;
- resolving existing disagreements;
- direct conclusion of the contract with the signing of all necessary papers.
When creating a new business, an entrepreneur often thinks: what is better to open - an individual entrepreneur or an LLC? We will help you understand all the nuances of each form of entrepreneurial activity.
You can find out where it is better to open a current account for individual entrepreneurs here.
At this link https://businessmonster.ru/otkryitie-biznesa/biznes-planyi/primer-dlya-malogo-biznesa.html you will find a detailed example of drawing up a business plan for a small business. Key points and financial plan.
Is it possible to use standard contracts?
Unlike mandatory tax and accounting forms and forms, there are no contract templates that are required by law. Typically, standard contracts are understood as standard or frequently used terms and conditions that are characteristic of a certain type of contract. The Civil Code calls such conditions exemplary, and makes it possible to apply them “in the form of an exemplary agreement or other document containing these conditions” (Article 427 of the Civil Code of the Russian Federation).
Most often, such ready-made texts contain all the necessary provisions that allow the agreement to be considered legally significant, but it is still better to be on the safe side. You can have a lawyer check the draft agreement, or you can make sure for yourself that the agreement complies with the requirements of the law.
https://www.youtube.com/watch?v=ytpressru
The Civil Code of the Russian Federation, in chapters 30 to 55, spells out the requirements for specific types of contracts (there are 24 in total, and some are also divided into subtypes). It is also possible to conclude mixed contracts that contain elements of different types, but we recommend that only professionals undertake such creativity. By the way, this includes not only lawyers; good accountants are also well versed in contracts, because It is they who then prove to the tax authorities the validity of the contractual expenses.
