Текст бизнес-книги "Russian business law: the essentials"

Автор книги: Evgeny Gubin

Раздел: О бизнесе популярно, Бизнес-книги

Several chapters of CC of the RF govern the contracts of providing different kinds of services: carriage, freight forwarding, insurance, storage, delegation, commission, entrusted management of property, bank deposits, bank accounts, and agency.

The rules of Chapter 39 of the CC of the RF (contracts of compensated services) apply to the contracts which are not specifically regulated in the code. In particular, the rules of this chapter apply to the provision of medical, auditing, consulting, and information services, as well as to the services related to education and tourism.

3. Common Types of Contracts

The general provisions on the contract of sale can be found in Articles 454–491 of the CC of the RF. These provisions subsidiarily apply to individual types of contracts of sale, if the CC of the RF does not provide specific rules for those contracts. The general provisions govern the main rights and obligations of the parties, the quality and assortment requirements, transfer of the right of ownership, and the risk of accidental loss of goods.

The description of goods is an essential term in the contract of sale. This term is deemed to be agreed on if the contract allows for the determination of the name and quantity of goods. According to Article 455 of the CC of the RF, a contract may be concluded for the purchase and sale of goods that the seller has on hand, at the time of the conclusion of the contract, as well as of goods which will be made or acquired by the seller in the future. Furthermore, the general rules on the ability of goods to be circulated, provided in Article 129 of the CC of the RF, shall also be complied with. According to Article 456 of the CC of the RF, the quantity of the goods subject to transfer to the buyer can be stipulated in units or with monetary expression. The term on the quantity of goods can be agreed on by means of establishing in the contract a procedure for such a determination.

The price of the contract is not an essential term for contracts of sale (with the exception of contracts of real estate sale). If the price of the contract is not stipulated in the contract and cannot be implied from the other terms of the contract, the payment of goods shall be made in the amount that is usually paid in comparable circumstances for similar products (Clause 1 of Article 485 of the CC of the RF, Clause 3 of Article 424 of the CC of the RF).

The quality of goods shall correspond to the terms of the contract. In the absence of such terms, the seller shall transfer to the buyer goods that are appropriate for the use which that sort of goods is typically intended for. The consequences of the transfer of goods of improper quality are set forth in Article 475 of the CC of the RF. If the defects of goods are not substantial, the buyer shall have the right, at their choice, to demand either proportionate reduction of the purchase price, or uncompensated elimination of the defects of goods within a reasonable period of time, or compensation of expenses for the elimination of such defects. In case of a substantial breach of the requirements on the quality of goods, the buyer shall have the right, at their choice, to refuse to perform the contract of sale and to demand the return of the amount paid for the goods, or to demand the replacement of goods of improper quality with those corresponding to the terms of the contract.

The seller has the duty to transfer goods that are free from the rights of third parties, with the exception of cases when the buyer agreed to accept goods which are burdened with the rights of third parties (Article 460 of the CC of the RF). The breach of this duty gives the buyer the right to demand a reduction of the price of goods, or the termination of the contract of sale, unless it is proven that the buyer knew or should have known of the rights of third parties to these goods.

In case the third parties have withdrawn the goods from the buyer on the grounds that arose before the performance of the contract of sale, the seller shall be obligated to compensate the buyer for inflicted losses, unless the seller proves that the buyer knew or should have known of the existence of these grounds.

The contract of retail sale is governed by Articles 492–505 of the CC of the RF. This contract is distinguished by the following characteristics:

1) the seller is a person conducting entrepreneurial activity in the sphere of retail sale of goods;

2) the purchased goods are meant for personal, family, domestic, or another use that is not connected with entrepreneurial activity.

The contract of retail sale is a public contract. Therefore, the seller does not have the right to give preference to one person over another with respect to the conclusion of a public contract. The price and the other terms of the contract shall be identical for all buyers.