Public contract, Agreement of accession - Commercial law

Public contract

Public contract - is a contract entered into by by a commercial organization and setting its responsibilities on the sale of goods, the performance of work or the provision of services, which such an organization, in the nature of its activities, must implement with respect to everyone who applies to it (retail, public transport, communication services, etc. .). As follows from the definition of a public contract, one of the parties to such a contract is always a commercial organization. A public contract has been designed mainly for the relationship between a commercial organization engaged in a particular type of activity and a mass consumer.

It should be noted that one and the same organization can make transactions both within the framework of public activities, and in others. For example, energy supplying commercial organizations need to distinguish between two types of contracts. Energy supply contracts with subscribers who consume energy are public. However, if an energy supplier sells excess equipment to the same subscriber, then this is the usual contract.

One of the main features of a public contract is that in relation to a commercial organization, the subject of a public contract excludes the application of the principle of freedom of contract. The refusal of a commercial organization to conclude a public contract, provided that it is possible to provide the consumer with the relevant goods, services, perform the necessary work is not allowed. The price of goods, works and services, as well as other terms of the public contract are set to be the same for all consumers, except for those who are allowed to provide benefits by law and other legal acts. The commercial organization has only one possibility to refuse the conclusion of a public contract - to refer to the lack of production opportunities. The burden of proving the lack of production opportunities rests with the commercial organization as a party to a public contract. The position of the consumer, which refers to such an organization with a requirement, is passive. He does not have to prove anything in court. In case of unjustified evasion from the conclusion of a contract with a commercial organization, losses caused by such evasion may be recovered.

The right to bring an action in court to review the differences that arose during the conclusion of a public contract is exclusively the counterpart of the commercial organization.

Affiliation agreement

The accession contract recognizes a contract, terms of which are defined by one of the parties in the forms or other < strong> standard forms and could be accepted by the other party only by joining the proposed contract as a whole.

The party to the contract has the right to demand termination or amendment of the contract, if the accession agreement, while not contrary to the law and other legal acts, deprives this side of the rights normally granted by contracts of this type; excludes or limits the liability of the other party for breach of obligations, or contains other terms that are clearly onerous for the acceding party, which, on the basis of its reasonably understood interests, it would not accept if it has the opportunity to participate in determining the terms of the contract.

Such a requirement, presented by a party that joined the contract in connection with the performance of its business activities, is not subject to satisfaction if the acceding party knew or should have known on what terms the contract is concluded.

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