Oral agreement: procedure for conclusion, requirements for participants, consequences of violating the law

In what form should the contract be concluded?

If the manager has found an employee for a specific position who meets the stated requirements, and the citizen is ready to begin fulfilling his duties, a formal employment relationship has arisen between the parties.

Officially, these legal relations can begin either at the end of the interview or on the day the person starts work.

According to Article 67 of the Labor Code of the Russian Federation, on the territory of the Russian Federation the written form of an employment contract has legal significance. The legislation does not establish a single template, but does impose certain requirements for its content.

An employment contract is an agreement drawn up between a manager and an employee, reflecting the personal data of both parties and information about the work that the citizen needs to perform.

Experts recommend that companies develop a unified form of such an agreement in order to hire personnel as quickly as possible without violating labor laws.

Decree of the Government of the Russian Federation No. 858 of August 27, 2016 approved the standard form of the contract concluded when hiring personnel by representatives of small businesses.

Employment contracts are divided into the following types:

prisoners in the main workplace;
registered part-time;
about the person’s permanent placement;
establishing the ability to work remotely (for example, from home);
about placing a person on a temporary basis (up to 2 months inclusive);
contract on the entry of a citizen into military service.

In addition, based on Article 58 of the Labor Code of the Russian Federation, fixed-term contracts (issued for 5 years inclusive) and concluded for an indefinite period are distinguished.

The manager can choose a simple form of agreement or a notarized one, but in most cases, certification of the document is not required.

Civil Code of the Russian Federation Part 1

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Section I. GENERAL PROVISIONS Subsection 4. TRANSACTIONS AND REPRESENTATION

Chapter 9. TRANSACTIONS

Concept, types and form of transactions

Article 153. Concept of a transaction

Transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

Article 154. Contracts and unilateral transactions

1. Transactions can be bilateral or multilateral (agreements) and unilateral.

2. A transaction is considered unilateral, for the completion of which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party.

3. To conclude an agreement, it is necessary to express the agreed will of two parties (bilateral transaction) or three or more parties (multilateral transaction).

Article 155. Obligations under a unilateral transaction

A unilateral transaction creates obligations for the person who made the transaction. It can create obligations for other persons only in cases established by law or by agreement with these persons.

Article 156. Legal regulation of unilateral transactions

The general provisions on obligations and contracts are accordingly applied to unilateral transactions, since this does not contradict the law, the unilateral nature and essence of the transaction. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 157. Transactions made under conditions

1. A transaction is considered completed under a suspensive condition if the parties have made the emergence of rights and obligations dependent on a circumstance for which it is unknown whether it will occur or not.

2. A transaction is considered completed under a severable condition if the parties have made the termination of rights and obligations dependent on a circumstance regarding which it is unknown whether it will occur or not.

3. If the occurrence of a condition was prevented in bad faith by a party for whom the occurrence of the condition is unfavorable, then the condition is recognized as having occurred.

If the occurrence of a condition was facilitated in bad faith by a party to whom the occurrence of the condition is beneficial, then the condition is recognized as not having occurred.

Article 157.1. Consent to make a transaction

(introduced by Federal Law No. 100-FZ dated May 7, 2013)
1. The rules of this article apply unless otherwise provided by law or other legal act.

2. If the consent of a third party, a body of a legal entity or a state body or a local government body is required to complete a transaction by force of law, the third party or the relevant body shall inform the person who requested the consent or another interested person about its consent or refusal within a reasonable time. period after receiving the application of the person requesting consent.

3. The preliminary consent to carry out a transaction must define the subject of the transaction to which consent is given.

Upon subsequent consent (approval), the transaction to which consent has been given must be indicated.

4. Silence is not considered consent to complete a transaction, except in cases established by law.

Article 158. Form of transactions

1. Transactions are made orally or in writing (simple or notarial).

2. A transaction that can be concluded orally is considered to be the will to complete the transaction.

3. Silence is recognized as an expression of the will to complete a transaction in cases provided for by law or agreement of the parties.

Article 159. Oral transactions

1. A transaction for which a written (simple or notarial) form is not established by law or agreement of the parties may be concluded orally.

2. Unless otherwise established by agreement of the parties, all transactions executed upon their very completion may be made orally, with the exception of transactions for which a notarial form has been established, and transactions, failure to comply with the simple written form of which entails their invalidity.

3. Transactions in pursuance of an agreement concluded in writing may, by agreement of the parties, be made orally, if this does not contradict the law, other legal acts and the agreement.

Article 160. Written form of a transaction

1. A transaction in writing must be concluded by drawing up a document expressing its contents and signed by the person or persons entering into the transaction, or persons duly authorized by them.

Bilateral (multilateral) transactions can be carried out in the ways established by paragraphs 2 and 3 of Article 434 of this Code.

The law, other legal acts and agreement of the parties may establish additional requirements that the form of the transaction must comply with (execution on a certain form, sealed, etc.), and provide for the consequences of non-compliance with these requirements. If such consequences are not provided for, the consequences of failure to comply with the simple written form of the transaction are applied (clause 1 of Article 162).

2. When making transactions, the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic signature or another analogue of a handwritten signature is permitted in cases and in the manner provided for by law, other legal acts or agreement of the parties. (as amended by Federal Law dated 04/06/2011 N 65-FZ)

3. If a citizen, due to a physical disability, illness or illiteracy, cannot sign with his own hand, then, at his request, another citizen can sign the transaction. The signature of the latter must be certified by a notary or other official who has the right to perform such a notarial act, indicating the reasons why the person making the transaction could not sign it with his own hand.

However, when making transactions specified in paragraph 4 of Article 185.1 of this Code, and powers of attorney for their execution, the signature of the one who signs the transaction can also be certified by the organization where the citizen works, who cannot sign with his own hand, or by the administration of the inpatient medical institution in which he is undergoing treatment. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 161. Transactions made in simple written form

1. Must be made in simple written form, with the exception of transactions requiring notarization:

1) transactions of legal entities among themselves and with citizens;

2) transactions of citizens among themselves for an amount exceeding ten thousand rubles, and in cases provided for by law - regardless of the amount of the transaction. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

2. Compliance with a simple written form is not required for transactions that, in accordance with Article 159 of this Code, can be concluded orally.

Article 162. Consequences of failure to comply with the simple written form of the transaction

1. Failure to comply with the simple written form of a transaction deprives the parties of the right in the event of a dispute to refer to testimony in support of the transaction and its terms, but does not deprive them of the right to provide written and other evidence.

2. In cases directly specified in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.

3. Invalid as of September 1, 2013. — Federal Law of 05/07/2013 N 100-FZ.

Article 163. Notarization of a transaction

(as amended by Federal Law dated 05/07/2013 N 100-FZ)
1. Notarization of a transaction means checking the legality of the transaction, including whether each party has the right to complete it, and is carried out by a notary or an official who has the right to perform such notarial action, in the manner prescribed by the law on notaries and notarial activities. (Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. Notarization of transactions is mandatory:

1) in cases specified in the law;

2) in cases provided for by agreement of the parties, at least by law, this form was not required for transactions of this type.

3. If notarization of a transaction in accordance with paragraph 2 of this article is mandatory, failure to comply with the notarial form of the transaction entails its nullity. (Clause 3 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 164. State registration of transactions

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. In cases where the law provides for state registration of transactions, the legal consequences of the transaction occur after its registration.

2. A transaction providing for a change in the terms of a registered transaction is subject to state registration.

Article 165. Consequences of evading notarization or state registration of a transaction

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. If one of the parties has fully or partially executed a transaction requiring notarization, and the other party evades such certification of the transaction, the court, at the request of the party that executed the transaction, has the right to recognize the transaction as valid . In this case, subsequent notarization of the transaction is not required.

2. If a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court, at the request of the other party, has the right to make a decision to register the transaction. In this case, the transaction is registered in accordance with the court decision.

3. In the cases provided for in paragraphs 1 and 2 of this article, a party that unreasonably evades notarization or state registration of a transaction must compensate the other party for losses caused by the delay in completing or registering the transaction.

4. The limitation period for the claims specified in this article is one year.

Article 165.1. Legally Relevant Messages

(introduced by Federal Law No. 100-FZ dated 07.05.2013)
1. Statements, notifications, notices, demands or other legally significant messages with which the law or transaction associates civil consequences for another person, entail such consequences for that person from the moment delivery of the relevant message to him or his representative.

A message is also considered delivered in cases where it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it.

2. The rules of paragraph 1 of this article apply unless otherwise provided by law or the terms of the transaction or follows from custom or practice established in the relationship of the parties.

Invalidity of transactions

Article 166. Voidable and void transactions

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. A transaction is invalid on the grounds established by law, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction).

2. A demand to recognize a voidable transaction as invalid may be submitted by a party to the transaction or by another person specified in the law.

A contestable transaction may be declared invalid if it violates the rights or legally protected interests of the person challenging the transaction, including if it entails unfavorable consequences for him.

In cases where, in accordance with the law, a transaction is contested in the interests of third parties, it may be declared invalid if it violates the rights or legally protected interests of such third parties.

A party whose behavior makes clear its will to maintain the validity of the transaction does not have the right to challenge the transaction on grounds that this party knew or should have known about when its will was expressed.

3. A party to the transaction, and in cases provided for by law, also another person, has the right to submit a demand for the application of the consequences of the invalidity of a void transaction.

The requirement to recognize a void transaction as invalid, regardless of the application of the consequences of its invalidity, can be satisfied if the person making such a demand has a legally protected interest in recognizing this transaction as invalid.

4. The court has the right to apply the consequences of the invalidity of a void transaction on its own initiative, if this is necessary to protect public interests, and in other cases provided for by law.

5. A statement about the invalidity of a transaction has no legal significance if the person referring to the invalidity of the transaction acts in bad faith, in particular if his behavior after the conclusion of the transaction gave grounds for other persons to rely on the validity of the transaction.

Article 167. General provisions on the consequences of invalidity of a transaction

1. An invalid transaction does not entail legal consequences, except for those related to its invalidity, and is invalid from the moment of its completion.

A person who knew or should have known about the grounds for the invalidity of a contested transaction, after the recognition of this transaction as invalid, is not considered to have acted in good faith. (paragraph introduced by Federal Law dated 05/07/2013 N 100-FZ)

2. If the transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided), reimburse its cost, if other consequences The invalidity of a transaction is not provided for by law. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

3. If it follows from the essence of a voidable transaction that it can only be terminated for the future, the court, declaring the transaction invalid, terminates its validity for the future. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

4. The court has the right not to apply the consequences of invalidity of a transaction (clause 2 of this article) if their application would contradict the fundamentals of legal order or morality. (Clause 4 introduced by Federal Law dated 05/07/2013 N 100-FZ)

Article 168. Invalidity of a transaction that violates the requirements of the law or other legal act

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. Except for the cases provided for in paragraph 2 of this article or other law, a transaction that violates the requirements of a law or other legal act is voidable, unless it follows from the law that other consequences of the violation not related to the invalidity of the transaction must be applied.

2. A transaction that violates the requirements of a law or other legal act and at the same time encroaches on public interests or the rights and interests protected by law of third parties is void, unless it follows from the law that such a transaction is contestable or other consequences of the violation not related to invalidity must be applied transactions.

Article 169. Invalidity of a transaction made for a purpose contrary to the foundations of law and order and morality

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
A transaction made for a purpose that is obviously contrary to the foundations of law and order or morality is void and entails the consequences established by Article 167 of this Code. In cases provided for by law, the court may recover to the income of the Russian Federation everything received under such a transaction by the parties who acted intentionally, or apply other consequences established by law.

Article 170. Invalidity of imaginary and feigned transactions

1. An imaginary transaction, that is, a transaction made only for show, without the intention of creating legal consequences corresponding to it, is void.

2. A sham transaction, that is, a transaction that was made to cover up another transaction, including a transaction on different terms, is void. To a transaction that the parties actually intended, taking into account the essence and content of the transaction, the rules relating to it are applied. (Clause 2 as amended by Federal Law dated 05/07/2013 N 100-FZ)

Article 171. Invalidity of a transaction made by a citizen declared incompetent

1. A transaction made by a citizen declared incompetent due to a mental disorder is void.

Each party to such a transaction is obliged to return to the other everything received in kind, and if it is impossible to return what was received in kind, to reimburse its cost. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

The capable party is obliged, in addition, to compensate the other party for the actual damage it has suffered if the capable party knew or should have known about the incapacity of the other party.

2. In the interests of a citizen declared incompetent due to a mental disorder, a transaction made by him may, at the request of his guardian, be recognized by the court as valid if it was made for the benefit of this citizen.

Article 172. Invalidity of a transaction made by a minor under fourteen years of age

1. A transaction made by a minor under fourteen years of age (minor) is void. The rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code apply to such a transaction.

2. In the interests of a minor, a transaction made by him may, at the request of his parents, adoptive parents or guardian, be recognized by the court as valid if it was made for the benefit of the minor.

3. The rules of this article do not apply to small household and other transactions of minors, which they have the right to carry out independently in accordance with Article 28 of this Code.

Article 173. Invalidity of a transaction of a legal entity made in conflict with the goals of its activities

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
A transaction made by a legal entity in conflict with the goals of its activities, specifically limited in its constituent documents, may be declared invalid by the court at the claim of this legal entity, its founder (participant) or another person in whose interests the restriction is established, if it is proven that the other party to the transaction knew or should have known about such a restriction.

Article 173.1. Invalidity of a transaction made without the consent of a third party, a body of a legal entity or a state body or local government body required by law

(introduced by Federal Law No. 100-FZ of May 7, 2013)
1. A transaction made without the consent of a third party, a body of a legal entity or a state body or local government body, the need to obtain which is provided for by law, is voidable, unless it follows from the law that it is void or does not entail legal consequences for the person authorized to give consent in the absence of such consent. It may be declared invalid at the request of such a person or other persons specified in the law.

The law or, in the cases provided for by it, an agreement with the person whose consent is required to complete a transaction may establish other consequences of the absence of the necessary consent to complete a transaction than its invalidity.

2. Unless otherwise established by law, a voidable transaction made without the consent of a third party, a body of a legal entity or a state body or local government body required by law, may be declared invalid if it is proven that the other party to the transaction knew or should have known about absence at the time of the transaction of the necessary consent of such person or such body.

3. A person who has given the consent required by law to carry out a contestable transaction does not have the right to challenge it on grounds that this person knew or should have known at the time of expressing consent.

Article 174. Consequences of violation by a representative or body of a legal entity of the conditions for the exercise of powers or interests of the represented or interests of the legal entity

(as amended by Federal Law No. 100-FZ dated 05/07/2013)
1. If the powers of a person to complete a transaction are limited by an agreement or regulation on a branch or representative office of a legal entity or the powers of a body of a legal entity acting on behalf of a legal entity without a power of attorney are limited by the constituent documents of the legal entity or other documents regulating its activities in comparison with how they are defined in the power of attorney, in the law or as they may be considered obvious from the situation in which the transaction is made, and in its execution such person or such body has gone beyond the limits of these restrictions, the transaction may be declared invalid by the court at the request of the person in whose interests the restrictions are established only in cases where it is proven that the other party to the transaction knew or should have known about these restrictions.

2. A transaction made by a representative or acting on behalf of a legal entity without a power of attorney by a body of a legal entity to the detriment of the interests of the represented or the interests of the legal entity may be declared invalid by the court at the claim of the represented or at the claim of the legal entity, and in cases provided for by law, at the claim, brought in their interests by another person or other body, if the other party to the transaction knew or should have known about the obvious damage to the represented or to the legal entity or there were circumstances that indicated collusion or other joint actions of the representative or body of the legal entity and the other party transactions to the detriment of the interests of the represented person or the interests of the legal entity.

Article 174.1. Consequences of a transaction in relation to property, the disposal of which is prohibited or limited

(introduced by Federal Law No. 100-FZ dated 05/07/2013)
1. A transaction made in violation of the prohibition or restriction on the disposal of property arising from the law, in particular from the legislation on insolvency (bankruptcy), is void to the extent that it provides for the disposal such property (Article 180).

2. A transaction made in violation of a ban on the disposal of the debtor’s property, imposed in a judicial or other manner established by law in favor of his creditor or other authorized person, does not interfere with the exercise of the rights of the said creditor or other authorized person, which were ensured by the ban, except in cases where the purchaser of the property did not know and should not have known about the prohibition.

Article 175. Invalidity of a transaction made by a minor aged fourteen to eighteen years

1. A transaction made by a minor aged fourteen to eighteen years without the consent of his parents, adoptive parents or guardian in cases where such consent is required in accordance with Article 26 of this Code may be declared invalid by the court at the claim of the parents, adoptive parents or guardian.

If such a transaction is declared invalid, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

2. The rules of this article do not apply to transactions of minors who have become fully capable.

Article 176. Invalidity of a transaction made by a citizen whose legal capacity has been limited by a court

1. A transaction to dispose of property made without the consent of the trustee by a citizen whose legal capacity is limited by the court (Article 30) may be declared invalid by the court at the suit of the trustee. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

If such a transaction is declared invalid, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

2. The rules of this article do not apply to transactions that a citizen limited in legal capacity has the right to carry out independently in accordance with Article 30 of this Code. (as amended by Federal Law dated May 7, 2013 N 100-FZ)

Article 177. Invalidity of a transaction made by a citizen incapable of understanding the meaning of his actions or managing them

1. A transaction made by a citizen, although legally capable, was at the time of its completion in such a state where he was not able to understand the meaning of his actions or manage them, may be declared invalid by the court at the claim of this citizen or other persons whose rights or interests protected by law are violated as a result of its commission.

2. A transaction made by a citizen who was subsequently declared incompetent may be declared invalid by the court at the request of his guardian if it is proven that at the time of the transaction the citizen was not able to understand the meaning of his actions or manage them.

3. If a transaction is declared invalid on the basis of this article, the rules provided for in paragraphs two and three of paragraph 1 of Article 171 of this Code are applied accordingly.

Article 178. Invalidity of a transaction made under the influence of a material misconception

(as amended by Federal Law No. 100-FZ dated 07.05.2013)
1. A transaction made under the influence of a mistake may be declared invalid by the court at the claim of the party acting under the influence of the mistake, if the mistake was so significant that this party, reasonably and objectively assessing the situation, she would not have made the transaction if she had known about the actual state of affairs.

2. If the conditions provided for in paragraph 1 of this article are met, the error is assumed to be sufficiently significant, in particular if:

1) the party made an obvious reservation, typo, typo, etc.;

2) the party is mistaken regarding the subject of the transaction, in particular those of its qualities that are considered essential in circulation;

3) the party is mistaken regarding the nature of the transaction;

4) the party is mistaken regarding the person with whom he enters into a transaction or a person associated with the transaction;

5) a party is mistaken regarding a circumstance that it mentions in its expression of will or from the presence of which it is obvious to the other party when making a transaction.

3. Misconception regarding the motives of the transaction is not significant enough to invalidate the transaction.

4. A transaction cannot be declared invalid on the grounds provided for in this article if the other party agrees to maintain the validity of the transaction on the conditions that the party acting under the influence of a mistake assumed. In this case, the court, refusing to recognize the transaction as invalid, indicates these terms of the transaction in its decision.

5. The court may refuse to recognize a transaction as invalid if the error under the influence of which a party to the transaction acted was such that it could not be recognized by a person acting with ordinary prudence and taking into account the content of the transaction, accompanying circumstances and characteristics of the parties.

6. If a transaction is declared invalid as made under the influence of a mistake, the rules provided for in Article 167 of this Code are applied to it.

The party on whose claim the transaction is declared invalid is obliged to compensate the other party for the actual damage caused to it as a result, except for cases where the other party knew or should have known about the existence of a mistake, including if the mistake arose as a result of circumstances depending on it.

The party on whose claim the transaction is declared invalid has the right to demand from the other party compensation for losses caused to it if it proves that the error arose as a result of circumstances for which the other party is responsible.

Article 179. Invalidity of a transaction made under the influence of deception, violence, threat or unfavorable circumstances

(as amended by Federal Law No. 100-FZ dated May 7, 2013)
1. A transaction made under the influence of violence or threat may be declared invalid by the court at the request of the victim.

2. A transaction made under the influence of deception may be declared invalid by the court at the request of the victim.

Deliberate silence about circumstances that a person should have reported with the conscientiousness required of him under the terms of the transaction is also considered deception.

A transaction made under the influence of deception of the victim by a third party may be declared invalid at the request of the victim, provided that the other party or the person to whom the unilateral transaction was addressed knew or should have known about the deception. It is considered, in particular, that a party knew about the deception if the third party guilty of deception was its representative or employee or assisted it in completing the transaction.

3. A transaction on extremely unfavorable terms, which a person was forced to make as a result of a confluence of difficult circumstances, which the other party took advantage of (a enslaving transaction), may be declared invalid by the court at the request of the victim.

4. If a transaction is declared invalid on one of the grounds specified in paragraphs 1 - 3 of this article, the consequences of invalidity of the transaction established by Article 167 of this Code shall apply. In addition, losses caused to the victim are compensated by the other party. The risk of accidental destruction of the subject of the transaction is borne by the other party to the transaction.

Article 180. Consequences of invalidity of part of the transaction

The invalidity of a part of a transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without the inclusion of its invalid part.

Article 181. Limitation periods for invalid transactions

(Article 181 as amended by Federal Law No. 109-FZ of July 21, 2005)(*)

1. The limitation period for claims to apply the consequences of the invalidity of a void transaction and to recognize such a transaction as invalid (clause 3 of Article 166) is three years. The limitation period for these claims begins from the day when the execution of a void transaction began, and in the event of a claim being brought by a person who is not a party to the transaction, from the day when this person learned or should have known about the beginning of its execution. In this case, the limitation period for a person who is not a party to the transaction, in any case, cannot exceed ten years from the date of commencement of execution of the transaction. (Clause 1 as amended by Federal Law dated 05/07/2013 N 100-FZ)

2. The limitation period for a claim to declare a voidable transaction invalid and to apply the consequences of its invalidity is one year. The limitation period for the said claim begins from the day the violence or threat under the influence of which the transaction was concluded ceases (clause 1 of Article 179), or from the day when the plaintiff learned or should have learned about other circumstances that are the basis for declaring the transaction invalid. ______________ (*) Established by Article 181.. . ...the limitation period for a claim to apply the consequences of the invalidity of a void transaction also applies to claims for which the deadline for presentation previously established by the Civil Code of the Russian Federation has not expired before the day this Federal Law comes into force. (Article 2 of the Federal Law of July 21, 2005 N 109-FZ)

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What to do if the manager refuses to enter into a written agreement?

First of all, experts recommend notifying the management of the enterprise or individual entrepreneur about the need to conclude a written agreement.

In the appeal, it is important to indicate a reference to Article 67 of the Labor Code of the Russian Federation, which establishes the need for timely registration of an employee on staff in an appropriate manner. Management should also be notified in writing.

The manager, in accordance with Articles 66 and 68 of the Labor Code of the Russian Federation, is obliged to issue an order (otherwise a decree) to hire a citizen for a position, and then make a corresponding entry in the employee’s work book.

In its absence, management (personnel officer by order of management) is required to create a new document.

If necessary, in the notification, indicate a link to Part 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation, reflecting the liability of an employer who evades concluding a written contract with hired personnel.

If the manager still does not want to register a citizen as a member of the state, he has the right to contact the following authorities:

labor inspectorate;
the prosecutor's office;
court.

In the latter case, the citizen has 3 months from the moment of discovery of the fact of violation of his rights to file a claim in court (that is, the countdown begins 3 days after the person started work).

Attempts to resolve a dispute with the labor inspectorate or prosecutor's office are not considered grounds for extending this period.

To contact the listed authorities, it is important to have on hand papers that can prove the fact of work in the company or with an individual entrepreneur.

If you do not have documentary evidence (for example, orders issued by superiors, work reports, certificates of the amount of income received, etc.), audio and video materials, testimony of colleagues, etc. can be used for this purpose.

Confirmation of hiring will also be the presence of a special uniform, a pass to the enterprise, and access to the organization’s e-mail.

If you are not sure that you can cope with such a situation on your own, enlist the support of a specialist. A qualified lawyer will not only provide you with detailed advice, but will also accompany the conflict resolution process until its end.

The employment relationship between employer and employee is confirmed by an employment contract.

The legislation of the Russian Federation does not provide for a unified form of employment contract for enterprises and organizations of the country.

Since there is no single form of employment contract in our country, when concluding an employment relationship, the employee and the employer can draw up an employment contract at their own discretion.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique. If you want to find out how to solve your particular problem, please contact the online consultant form on the right! It's fast and free!

M.A. Rozhkova, Doctor of Law, Professor of the Department of Intellectual Rights of the Moscow State Law University named after. O.E. Kutafina (MSAL)

S.V. Mikhailov, Candidate of Legal Sciences, Advisor to the Chairman of the Court for Intellectual Rights

"Journal of the Intellectual Rights Court", No. 9, September 2020, p. 38-44

Quite often one has to face the fact that not only students, but also practicing lawyers do not delve too deeply into the essence of the ability established by Part 4 of the Civil Code of the Russian Federation to permit or prohibit the use of an object of intellectual property. How should we understand this possibility? This article is devoted to consideration of this issue.

Agreement

Distinguishing between consent and agreement, M.I. Braginsky wrote: “Consent, unlike an agreement, in itself does not give rise to the usual consequences for a legal fact: the emergence, change or termination of rights and obligations. His role is much more modest. It manifested itself only in cases where there is a direct indication in this regard in the Civil Code, in another law or in another legal act or agreement, and comes down to what constitutes an indispensable condition under which the will of a person (for one party) or a coinciding counter the expression of the will of other persons (for contracts) can create a legal relationship... the transaction is made by one, and consent is given by the other (other persons). Thus, the consent of a third party is a legal fact that serves only as a condition under which the law provides a certain person with the opportunity to complete a transaction (conclude an agreement). Moreover, consent, unlike an agreement (contract), is always considered as a unilateral action with all the ensuing consequences... Thus, consent, unlike an agreement, can only be an element of the legal composition.”

Identified M.I. Braginsky the role of consent is very clearly visible, for example, in the provision of paragraph 1 of Art. 1238 of the Civil Code of the Russian Federation: “With the written consent of the licensor, the licensee may, under an agreement, grant the right to use the result of intellectual activity or a means of individualization to another person (sublicense agreement).” By virtue of this rule, in order to conclude a sublicense agreement for the right to use an object of intellectual rights, i.e. to complete a transaction between a licensee and a sublicensee, the consent of the copyright holder – the licensor – is required. Such consent is usually one of the conditions of the license agreement concluded by the licensor and the licensee, but can also be drawn up in a separate document (clause 3 of Article 1232 of the Civil Code of the Russian Federation).

A different construction of consent is enshrined in paragraph. 5 paragraph 6 art. 1483 of the Civil Code of the Russian Federation: “Registration as a trademark in relation to homogeneous goods of a designation that is confusingly similar to any of the trademarks specified in subparagraphs 1 subparagraph. 1 and 2 of this paragraph is permitted with the consent of the copyright holder, provided that such registration cannot cause misleading of the consumer. Consent cannot be revoked by the copyright holder.” Unlike the previous case, the consent of the copyright holder here is characterized in a completely different way, which requires a more detailed analysis.

The case falling under the regulation of the specified paragraph of the said article involves not direct (direct – as in the first example), but indirect use of an object of intellectual property. Indeed, a “junior” trademark applied for registration is confusingly similar to an already existing (“senior”) mark, the copyright holder of which is another person (hereinafter referred to as the copyright holder of the “senior” mark). By giving consent to the registration of a “junior” trademark in relation to similar goods, the copyright holder of the “senior” mark, in fact, voluntarily agrees to some “parasitism” on his trademark, which, according to the general rule of paragraph 6 of Art. 1483 of the Civil Code of the Russian Federation is prohibited.

The consent of the copyright holder in this case represents the condition under which it becomes permissible to establish legal protection of a trademark that is confusingly similar to an already existing “senior” mark (and in relation to similar goods). Thus, the consent of the copyright holder of the “senior” mark is a mandatory element of the legal structure, which can lead to the emergence of intellectual rights to the “junior” trademark by the applicant (hereinafter referred to as the applicant of the “junior” mark). In the previous case, consent was necessary to grant a third party the right to use an object of intellectual property on a sublicense basis, which would not entail the emergence of intellectual rights for that person.

It is important to note that consent itself is sought in the case considered here for the purposes of state registration of a “junior” trademark (establishing legal protection), whereas in the previous case this consent was required to conclude a transaction. Moreover, unlike the first example, where consent to the transaction was given by a person already in a contractual relationship with one of the parties to the future transaction, in this example one should proceed from the usual absence of contractual ties between the applicant of the “junior” mark and the copyright holder of the “senior” mark.

Taking into account the above, the construction of consent provided for in paragraph. 5 paragraph 6 art. 1483 of the Civil Code of the Russian Federation, apparently, should include: firstly, the completion of a transaction (conclusion of an agreement) by the applicant of the “junior” mark and the copyright holder of the “senior” mark, on which the receipt of consent is based, and secondly, the issuance by the copyright holder of the consent itself .

However, Rospatent allows a “lighter” version of this design: in particular, paragraph 3 of the Recommendations on the application of the provisions of the Civil Code of the Russian Federation regarding the consent of the copyright holder to register a similar trademark establishes that confirmation of consent can be, in particular, the agreement itself, “ which sets out the conditions under which the copyright holder consents to registration, the obligations of the parties and the consequences of failure to fulfill such obligations.” However, such an agreement (like any other document confirming the consent of the copyright holder), as specifically emphasized in the Recommendations, must contain a number of information, including “an expression of the consent of the copyright holder to register the applied designation as a trademark with the application number, if assigned, and a description of the applied designation for which consent for registration as a trademark is issued with the application of the applied designation.”

An atypical type of consent is found in the norm of paragraph 2 of Art. 1231.1 of the Civil Code of the Russian Federation, which establishes the obligation to obtain the consent of the competent state body, body of an international or intergovernmental organization when including official symbols, names and distinctive signs in an industrial design or means of individualization. Explaining the indication that this kind of consent is atypical, it should be emphasized that Part 4 of the Civil Code of the Russian Federation mentions consents that have not only a civil, but also an administrative legal basis (the latter should include the consent mentioned in Clause 2 of Art. 1231.1 Civil Code of the Russian Federation). M.I. Braginsky, delimiting the above-mentioned grounds for consent, emphasized that when consent is expressed by a person who has administrative competence within the established limits, we are talking about “consent-permission”, which has an administrative-legal basis.

Such “consent-permission” is also meant in paragraph 3 of Art. 1419 of the Civil Code of the Russian Federation (despite the fact that in this article it is designated by a different term - “approval”): this paragraph provides for the obligation to obtain the consent of the Ministry of Agriculture of Russia for the name assigned to a selection achievement. It is obvious that here the consent-permission (albeit named differently) is clearly of an administrative-legal nature.

The term “consent” is used in Part 4 of the Civil Code of the Russian Federation also for cases when one party to a contractual legal relationship needs to obtain permission from its counterparty to carry out certain actions.

So, paragraph 1 of Art. 1266 of the Civil Code of the Russian Federation establishes the author’s right to the inviolability of the work and the protection of the work from distortion. As a result, acting within the framework of a concluded license agreement granting the right to use a literary work, the publisher can make changes, abbreviations, additions, etc. to this work only after receiving the consent of the author (this is usually confirmed by the corresponding inscription of the author on the ready-to-print layout of the manuscript). Within the framework of the contractual relationship between the author and the publisher, such consent is a typical example of a unilateral action necessary for the proper fulfillment of obligations.

This type of consent is mentioned in a number of articles of Part 4 of the Civil Code of the Russian Federation. For example, the consent of the performer is required in a situation where a recording of a performance is intended to be reproduced (or broadcast) for purposes other than those expressly expressed in the agreement between the performer and the person using this recording (Clause 3 of Article 1317 of the Civil Code of the Russian Federation). Only with the consent of the author of a work of architecture, urban planning or gardening art is it permitted to reuse an architectural, urban planning or gardening project developed by this author within the framework, for example, of an order agreement (paragraph 2, clause 1, article 1294 of the Civil Code of the Russian Federation).

To summarize, we can say that all the types of consent mentioned above really represent unilateral actions necessary for the accumulation of legal composition and, ultimately, the onset of legal consequences - the emergence, change or termination of civil legal relations, the consequences of the implementation of civil legal personality or the protection of violated subjective civil rights.

Agreement

The “prohibitive” approach chosen during the development of Part 4 of the Civil Code of the Russian Federation in determining the powers of the copyright holder led to the enshrinement in the Code of the following general rule: “Other persons cannot use the corresponding result of intellectual activity or means of individualization without the consent of the copyright holder, except for the cases provided for by this Code. The use of a result of intellectual activity or a means of individualization (including their use in the ways provided for by this Code), if such use is carried out without the consent of the copyright holder, is illegal and entails liability established by this Code and other laws, except for cases where the use of the result of intellectual activity or means of individualization by persons other than the copyright holder, without his consent, is permitted by this Code” (paragraph 3, paragraph 1, article 1229 of the Civil Code of the Russian Federation).

Thus, the powers of the holder of exclusive rights, which have an undoubted resemblance to the powers of the owner and which in any case are the powers of the owner of property (property rights) , are essentially enshrined in the Civil Code of the Russian Federation through the prohibition of other persons from exercising these powers without the consent of the copyright holder.

The legislator takes a different approach to determining the powers of the owner. Thus, the Civil Code of the Russian Federation not only directly vests the owner with the rights of ownership, use and disposal of his property (clause 1 of Article 209), but also grants him the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and not violating the rights and interests protected by law of other persons, including alienating one’s property into the ownership of other persons, transferring to them, while remaining the owner, the rights of ownership, use and disposal of property, pledging property and encumbering it in other ways, disposing of it in other ways (Clause 2 of Article 209).

Meanwhile, there is no basis for such fundamental differences in approaches to regulating the capabilities of authorized subjects who have absolute rights.

It seems that a more complete and clear disclosure of Art. 1229 of the Civil Code of the Russian Federation the powers of the owner of exclusive rights. The provision enshrined in paragraph 1 deserves undeniable support. 1 clause 1 art. 1229 of the Civil Code of the Russian Federation, by virtue of which a citizen or legal entity having an exclusive right to an intellectual property object (right holder) has the right to use such an object at his own discretion in any way that does not contradict the law. But it would be more productive to enshrine in the same article a rule according to which the copyright holder, at his own discretion, can perform any actions in relation to his property rights that do not contradict the law, including the disposal of exclusive rights belonging to him (alienating them through the conclusion of an agreement on alienation of exclusive rights or granting the right to use an object of intellectual property within the limits specified by the contract through the conclusion of a license agreement, commercial concession agreement, etc.); transfer the exclusive rights belonging to him as collateral and encumber them in other ways. Of course, it is impossible not to mention in the Code that in cases directly established by the Civil Code of the Russian Federation and other laws, the use of intellectual property objects is permitted without the consent of the copyright holder in the manner and under the conditions established by law (including issues of compensation for such use).

Combining such detailed provisions of a “permissive” nature in one article would relieve the powers of the holder of exclusive rights from the aura of uncertainty that surrounds them today, would remove many practical issues, and, in addition, would allow us to avoid what was allowed in paragraph. 3 p. 1 art. 1229 of the Civil Code of the Russian Federation errors - substitution of the term “agreement” with the term “consent”.

One can, of course, assume that by prescribing in paragraph. 3 p. 1 art. 1229 of the Civil Code of the Russian Federation, the obligation for the interested party to obtain the “consent” of the copyright holder to use the corresponding object of intellectual rights, the developers of Part 4 of the Civil Code of the Russian Federation thereby tried to introduce into the law the construction mentioned in the second of the examples discussed in the previous part of this article. As already indicated, this construction presupposes, firstly, the conclusion of an agreement between the copyright holder and the interested party, on which the receipt of consent (permission) is based; and, secondly, the issuance by the copyright holder of the consent itself. However, the text of the Civil Code of the Russian Federation does not confirm such considerations, and common sense suggests only one way to solve the problem: for an interested party to acquire the rights to use an object of intellectual property, the rights to which belong to another person, the only acceptable, undoubtedly, is the banal conclusion of an agreement (contract) , on the basis of which the said right will be transferred.

The general procedure for concluding contracts provides for the exchange between the parties, orally or in writing, of an offer - an offer by one party to conclude an agreement and acceptance - the acceptance of this offer by the other party (clause 2 of Article 432 of the Civil Code of the Russian Federation). At the same time, the current law provides that the offer must meet a number of requirements, namely: be addressed to a specific person (persons), contain the essential terms of the agreement and express the intention to conclude an agreement with the addressee if he accepts this offer (Clause 1 of Article 435 of the Civil Code of the Russian Federation ). By acceptance, the law means complete and unconditional acceptance of the offer by the person to whom the offer was addressed (clause 1 of Article 438 of the Civil Code of the Russian Federation).

Thus, in order to obtain the right to use an object of intellectual property, the interested party applies to the copyright holder with an offer that meets the requirements of Art. 435, 436 of the Civil Code of the Russian Federation. In turn, the copyright holder has the right to accept this offer, which entails the parties concluding a corresponding agreement (license, commercial concession, etc.) (Article 433, paragraph 1 of Article 438 of the Civil Code of the Russian Federation), to propose concluding an agreement on other terms (Article 443 of the Civil Code RF) or reject this proposal or leave it unanswered if silence is not considered as acceptance (Article 432, paragraph 1 of Article 438 of the Civil Code of the Russian Federation).

This is the usual procedure for concluding licensing agreements. However, what has been said will be more clearly illustrated by the conclusion of the agreement mentioned in the second of the examples discussed in the previous part of this article (although this agreement, of course, is not an agreement granting the right to use an object of intellectual property). The choice for analysis of this particular case is due to the fact that many do not see the contract (agreement) binding the parties after obtaining the consent of the copyright holder.

From the meaning of the norm in paragraph. 5 paragraph 6 art. 1483 of the Civil Code of the Russian Federation it follows that registration of a “junior” mark in relation to similar goods is permissible only with the consent of the copyright holder of the “senior” mark. The copyright holder can give such consent to the applicant of the “junior” mark for a fee or free of charge, but in any case, the issuance of consent will be preceded by agreement by the applicant of the “junior” mark and the copyright holder of the “senior” mark of both the subject of the agreement (issuance of consent) and its conditions (in particular , a list of goods (or services) in respect of which the copyright holder does not object to the registration of a “junior” mark, the issue of remuneration for issuing consent, etc.). The result of such agreement is a transaction (agreement), which is concluded either orally (Article 159 of the Civil Code of the Russian Federation) or by drawing up a single document signed by the parties, or by exchanging several documents (letters, faxes, e-mails, etc., which, by virtue of clause 2 of Article 434 of the Civil Code of the Russian Federation, is recognized as a written form of the contract). It is on this transaction (agreement of the parties) that the subsequent issuance of consent to register a “junior” trademark is based.

Use "under control"

In development of what has been said, one cannot help but notice that clause 2 of Art. 1486 of the Civil Code of the Russian Federation provides for the use of one of the objects of intellectual property - a trademark - not only on the basis of an agreement (license agreement). This paragraph of this article provides for the possibility of using a trademark under the control of the copyright holder. What should be understood by this concept?

An analysis of European judicial practice, based on Council Regulation (EC) No. 40/94 of 20.12.1993 and Regulation 207/2009 of 26.02.2009 on the European Community trademark, indicates the use of the term “consent” for such cases ( consent). European practice proceeds from the fact that it is not enough to simply “allow” the use of a trademark by another person; “consent” is necessary, and such consent must “receive” the counter actions of another person using the disputed trademark. In other words, there must be a certain interaction between the parties, i.e. We are talking about an actual agreement between the parties.

At the same time, in paragraph 2 of Art. 19 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the TRIPS Agreement), which regulates the use of a trademark, uses the term “control” rather than “consent”. And here the fact that the TRIPS Agreement was drawn up by American lawyers comes to the fore, and yet the Trademark Law (Lanham Act) uses the term “control”.

Before the adoption of the Lanham Act in 1946, American courts did not allow licensing agreements at all (!), since they were guided by the doctrine of “trademark origin”: it was believed that licenses were generally contrary to the nature of the trademark (and were legal nonsense), since the main function of the trademark is to certify in the eyes of the consumer the origin of the product - its production by a specific manufacturer. Accordingly, US judicial practice until 1946 was based on the fact that the right to use a trademark can be granted only simultaneously with the right to use the enterprise itself, which produces the goods marked with this mark.

But in 1946, after a couple of precedents, the Lanham Act introduced the doctrine of “quality control” that has prevailed to this day. This doctrine allows previously rejected licensing agreements for the use of a trademark, but on the condition that the agreement stipulates the obligation of the copyright holder to control the quality of the goods produced by another person, which will be marked with the trademark of the copyright holder. Moreover, such conditions must be quite stringent: for example, the right holder must also provide for the supply of the necessary components of the product (goods). Thus, persons using the Coca-Cola trademark are provided with the components of the drink - the drink itself is not produced by others independently. Thus, licensing agreements are understood more like franchising agreements.

However, subsequently (including under the pressure of antimonopoly legislation), US judicial practice came to the conclusion that the doctrine of “quality control” makes licensing in itself possible, where quality control consists only of the relevant activities of the copyright holder (inspections, identification standards, etc.), ensuring not the achievement of high quality as such, but the correspondence of the quality of the product produced (including completely) by another person to the quality of the original product of the copyright holder.

Of course, all these relations for product quality control were only contractual (either franchising or a simple license), and a “naked license” was and is considered a license agreement in which either there are no quality control conditions at all, or they are recognized in the court's opinion, insufficient. At the same time, license agreements that provide for quality control conditions that are not fulfilled by the parties are also recognized by the courts as “bare” licenses.

The above indicates that the conditions for quality control of goods under a license or franchise agreement are essential terms of the agreement.

Meanwhile, only in exceptional cases is non-contractual use “under control” allowed. For example, one of the options may be the existence of a legal relationship between the copyright holder and another person, due to which the copyright holder has the organizational and legal ability to actually control the quality of the product produced by another person: such relations, first of all, are understood as relations of corporate control within a group of persons.

As a result of the above, we can conclude that in paragraph 2 of Art. 1486 of the Civil Code of the Russian Federation enshrines a hybrid of the American approach, which practically denies non-contractual use, and the liberal continental position, based on the fact that for the legal use of a trademark, the consent of the copyright holder is sufficient (which, strictly speaking, as established by judicial practice, is based on the actual agreement of the parties).

To summarize, it should be concluded that it should be common to use intellectual property on the basis of an agreement concluded by the parties; all cases of non-contractual use are exceptional, i.e. either must be clearly and unambiguously defined by law, or must be identified by judicial practice, based on the existence of an actual agreement arising from legal relations that essentially provide for its existence. These could be, as mentioned above, for example, corporate relations within a group of persons.

*The work was carried out with the financial support of the Ministry of Education and Science of the Russian Federation at the expense of the state assignment for the implementation of research work on the 1865 project.

1Braginsky M.I., Vitryansky V.V. Contract Law: General Provisions. M.: Statute, 1998. P. 120-121 (author of the chapter - M.I. Braginsky).

2Appendix to the order of Rospatent dated December 30, 2009 No. 190.

3Braginsky M.I., Vitryansky V.V. Contract law. P. 120 (author of the chapter – M.I. Braginsky).

4For more details on the types of legal consequences, see: Rozhkova M.A. Legal facts of civil and procedural law: agreements on the protection of rights and procedural agreements. M.: Statute, 2009. pp. 14-18.

5For more details see: Rozhkova M.A. Incorrect use of the terms “consent” and “agreement” in part four of the Civil Code of the Russian Federation as a factor limiting freedom of contract (in the upcoming collection of scientific and practical articles “Freedom of Contract” (https://rozhkova.com/a/asp.html)).

6Instead of unclear indications that “the copyright holder may dispose of the exclusive right to the result of intellectual activity or to a means of individualization (Article 1233), unless otherwise provided by this Code.” Or an abstract rule: “The copyright holder may, at his own discretion, permit or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission)” (Clause 1 of Article 1229 of the Civil Code of the Russian Federation).

7Today, the powers of the copyright holder are “scattered” across many articles of Part 4 of the Civil Code of the Russian Federation.

8https://www.wipo.int/wipolex/ru/details.jsp?id=1421

9https://www.wipo.int/wipolex/ru/details.jsp?id=5207

10https://www.wipo.int/wipolex/ru/details.jsp?id=12746

11https://www.wipo.int/wipolex/ru/details.jsp?id=5402

12In this case, such conditions must be fulfilled by the parties. Otherwise, the court’s establishment of the fact of a “bare license” will mean for the copyright holder that he has abandoned his trademark and is not using it, which entails the termination of the legal protection of the trademark due to its non-use. In addition, in any dispute regarding violation of the exclusive right to a trademark, each defendant receives the right to protection from a claim by indicating that the copyright holder has “abandoned” the trademark.

general information

The form of an employment contract is a document that reflects information about the employee and the employer, the documents that the parties need to provide, the attributes of the parties, their representatives (if any) and other necessary data.

Despite the absence of a uniform form of employment contract for all organizations, it makes sense for organizations to draw up an employment contract for themselves in a form that is uniform for all employees applying for work, regardless of the position for which they are applying.

The fixed form of the employment contract will help to draw up an employment contract in accordance with legal standards and in the shortest possible time.

Employment contracts according to the form of labor relations are divided into:

contracts concluded at the main workplace;
part-time contracts with the main job;
contracts concluded when an employee joins for a temporary period (less than two months);
agreements between individuals and future employees;
home work agreements;
contracts for employing employees for seasonal work;
contracts upon entry of citizens into public service.

By duration, employment contracts are classified as contracts, the conclusion of which does not imply time limits, i.e. contracts with an indefinite duration and so-called fixed-term employment contracts.

Fixed-term employment contracts can be absolute, relative or conditional in duration.

Depending on the amount of work done, there are contracts for the main job and part-time contracts.

Kinds

An employment contract is concluded either orally or in writing.

When concluding a written employment contract, the employer has the right to use both a simple and notarial form of the contract.

A written employment contract of simple form is a document containing the conditions required to be fulfilled by the employer and employee and signed by the parties.

The law of the Russian Federation stipulates that all letters (including electronic ones), telegrams, faxes, etc. documents confirming the parties’ desire to enter into an employment relationship are equivalent to a written employment contract.

In cases where required by law, a written employment contract must be in notarial form.

For example, a notarized form of an employment contract is required when it comes to an annuity agreement.

Whatever form of written employment contract the employer chooses, the contract must be concluded in two copies. One of them remains with the employer, the second - with the employee.

The oral form of the employment contract comes into force if the contract was not concluded in writing, and the employee began working at the enterprise.

An oral employment contract can be considered legal if the employee began work with the consent of the employer and with permission.

The validity period of such an agreement is no more than three days starting from the day the employee began working at the enterprise.

During this time, the employer is obliged to conclude an employment contract with such employee in any written form.

If a written agreement is not concluded within this time, the employer may be held administratively liable for non-compliance with the Labor Code of the Russian Federation.

We offer forms of employment contracts.

Does an oral contract have legal force and how legal is it?

The answer to the question of whether an oral contract is legal is given by clause 1 of Art. 159 of the Civil Code of the Russian Federation. This paragraph stipulates that any oral transaction can be legal only if the obligation to conclude it in writing is not established by law or by agreement of the parties.

In addition, in paragraphs. 2 and 3 of this norm list the conditions under which an oral agreement has legal force:

When it is executed by the parties immediately at the time of conclusion of the transaction.
When it is concluded by the parties in fulfillment of the terms of a previously concluded written agreement (unless otherwise follows from the agreement or law).

It should be taken into account that orally, by virtue of clause 2 of Art. 159 of the Civil Code of the Russian Federation, an agreement that requires notarization cannot be concluded. The same rule applies to transactions that require state registration or registration of transfer of rights.

An example is a purchase and sale transaction of any real estate (apartment, dacha, land plot, etc.). In order to conclude such an agreement, state registration of the transfer of ownership will be required, the result of which is the making of a corresponding entry in the Unified State Register of Real Estate. An oral transaction cannot entail such registration by force of law - accordingly, its conclusion is impossible.

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When is oral delivery acceptable?

An oral form of an employment contract with a validity period of more than three days may take place if the contract is concluded for a period of no more than two weeks.

When concluding an employment contract, the employer can use both a written (for this you need an employment contract form) and an oral form of the employment contract.

If an employee is employed by an enterprise for a period not exceeding two weeks, a written form of the employment contract is not required.

In all other cases, the employer will be required to conclude a written employment contract with the new employee within a period not exceeding three days from the date the employee takes office.

The state has not defined a uniform form of written employment contract for the country, therefore the employer has the right to draw up an agreement at his own discretion.

A written employment contract must be duplicated, that is, exist in two copies, one of which remains with the employer and the other with the employee.

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Civil Code of the Russian Federation on the oral form of a transaction

One of the forms of transactions, in accordance with paragraph 1 of Art. 158 of the Civil Code of the Russian Federation is oral. The rights and obligations of the parties under such an agreement arise from the moment its terms are agreed upon. The transaction is recognized as oral due to the fact that the terms agreed upon by the parties are not reflected in writing.

In addition, paragraph 2 of the same article states that an oral agreement can be considered concluded even if the initiator has performed certain actions that clearly indicate his intention to enter into a civil transaction. In legal theory, such actions are called conclusive.

In this case, the second party must express consent to enter into legal relations, since clause 3 of Art. 158 of the Civil Code of the Russian Federation presupposes the need for a direct expression of the will of both parties, unless otherwise provided by law or any agreement.

Silence does not indicate a person’s desire to enter into civil legal relations. If neither party shows a desire to enter into legal relations, the transaction cannot be considered concluded from the point of view of the law.

Based on clause 2 of Art. 420 of the Civil Code, an oral agreement is concluded according to the same rules as any other transaction, but it is necessary to understand that a transaction and an agreement are not the same thing. You can read about the relationship between the contract and the transaction.

Three forms of rental agreement

Our labor legislation is voluminous, complex and constantly changing. But you must study at least the basic provisions of the Labor Code (first of all, the forms and features of hiring with the ensuing consequences).

Hiring has three forms - an oral employment contract, a written open-ended employment contract, or a fixed-term employment contract.

Work agreement . which is sometimes inaccurately called an employment agreement, from a legal point of view establishes civil and non-employment relations.

Tip 1: How to prove an oral contract

Find out whether you had the right to enter into an oral contract in a particular situation.

By law, this form of agreement is permissible between individuals if the transaction amount does not exceed ten times the minimum wage (minimum wage). If the transaction did not meet the specified conditions, the chances of confirming the agreement in court are slim.

In this case, try to independently obtain an agreement from the other party to confirm your mutual obligations in writing.

The employer does not pay wages under a verbal agreement

1. In accordance with Article 67 of the Labor Code of the Russian Federation, an employment contract that is not formalized in writing is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative; 2.

Announcements of vacancies for your position on the Internet, newspapers, magazines.

Moreover, very often the employer in such advertisements indicates the actual wage, and not the one indicated in the staffing table, if it is divided into “white” and “black” parts.

Another comment on Art. 159 of the Civil Code of the Russian Federation

1. Most transactions in civil circulation are made orally, which is permissible in all cases where the law or agreement of the parties does not establish a written form for the transaction being made.

2. Execution of a transaction at its very completion means that there is no gap in time between the moments of emergence and termination of the rights and obligations of the parties to the transaction, i.e. execution is carried out immediately upon reaching an agreement between the parties to the transaction.

3. Failure to comply with the notarial form of a transaction required by law always entails its invalidity in the form of nullity (clause 1 of Article 165 of the Civil Code of the Russian Federation). Failure to comply with the simple written form of a transaction entails its invalidity (nullity) only in cases expressly specified in the law or agreement of the parties (clause 2 of Article 162 of the Civil Code of the Russian Federation).

How is an employment contract concluded?

The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer.

This rule does not allow the possibility of concluding an oral employment contract. Employment contracts must be concluded in writing with all persons entering into labor relations with the relevant employer: with permanent and temporary employees at the main place of work and part-time workers, with homeworkers, etc.

Another comment on Article 159 of the Civil Code of the Russian Federation

1. Oral transactions are made by expressing the will verbally (through personal negotiations, by telephone). Since this form establishes a minimum of formal restrictions, it is readily and often resorted to when they want to speed up the desired result and save on the costs associated with the need to use a more stringent form (written or especially notarized). We can say that if this does not contradict the law, the essence of the transaction and the interests of the parties, then there are no obstacles to the use of the oral form, except for the desire of the parties to consolidate their will in writing or even apply for its notarization.

The law as a general rule allows you to resort to oral form in all cases where the law or agreement of the parties does not provide for a written or qualified written (notarized) form for the transaction. Since the Civil Code, for example, allows for the possibility of making transactions not directly provided for by law (Clause 1, Article 8 of the Civil Code), the form for such transactions is considered not established, so the parties have the right either to refer to the rules on the form for similar transactions, or to complete it orally.

Oral transactions are used to satisfy a wide variety of needs of citizens purchasing goods from retailers and on the market, turning to entrepreneurs specializing in consumer services. Entrepreneurs also willingly resort to them when possible.

2. Special mention of the admissibility of the oral form for transactions executed upon their completion allows us to say that for each of the transactions of this type, the oral form is the norm. Exceptions from this rule can be established only for a few transactions: firstly, for those for which the notarial form is established by law (there are very few of them), and secondly, for those transactions for which the written form is a condition, the violation of which entails invalidity transactions (there are also relatively few of them). Hence, even those transactions for which a written form is established can be concluded orally, if the moment of the transaction and execution coincide.

3. Transactions are made not only to create rights and obligations, but also to change and terminate them. These include transactions carried out in pursuance of a concluded contract (shipment of products, payment of money, delivery and acceptance of work results, etc.). The Civil Code allows such transactions to be made orally, even if the main agreement was concluded in writing. Exceptions to this rule may be established by law (the transfer of real estate must be formalized by a transfer deed or other transfer document - Article 556 of the Civil Code), other regulations (cash payments, for example, are allowed between entrepreneurs in the amount of up to 60 thousand rubles), as well as concluded agreement.