CONTRACTING, CONTRACTING AND ENERGY SUPPLY AGREEMENTS
The purpose of the study: a general analysis of the types of the contract of sale (supply, contracting) used mainly in the field of entrepreneurial activity and an energy supply contract involving a wide range of subscribers (consumers).
After studying this chapter, the student must:
know definitions of supply contracts (Article 506 GK), contracting (Article 535 GK)
be able list the essential conditions, rights and obligations of the parties under the contracts studied;
acquire skills formalize contracts for supply, contracting and power supply.
Questions for the seminar lesson
1. Concept, essential conditions, content and other elements of the supply contract.
2. Supply of goods for state and municipal needs.
3. Basic provisions on the contract of contracting.
4. Energy supply contract: concept, rights, duties, responsibility of the parties.
One of the most important for the development of the economy types of the contract of sale is the supply contract. Under this contract, the supplier, the seller engaged in entrepreneurial activities, undertakes to transfer the goods produced or purchased by the buyer to the buyer within a specified time (period) for use in entrepreneurial activities or for other purposes not related to personal, family, domestic or other similar use.
The seller under the supply contract is only an entrepreneur who produces or purchases certain goods. Often an entrepreneur is a buyer purchasing goods for use in business (processing, renting, etc.). Goods under the contract of supply can be purchased for use and not in entrepreneurial, but not necessarily in personal, family, home, etc. for example, to create state material reserves, ensure the country's defense capability or implement federal targeted programs.
The supply contract is mutual, onerous, consensual. The basic norms about this contract are fixed in art. 506-534 GK.
The supply contract is in writing. Since the supply relations are usually of a long-term nature and the contract is complex, the law regulates the settlement of the disputes at the stage of its conclusion. The party (usually the buyer, the acceptor) who has received the offer from the other party (the supplier, the offerer) to conclude the contract (draft contract, offer), has the right to accept it, reject or formalize its variant of the separate terms of the contract by the protocol of disagreements. Having received this protocol, the offeror is obliged within 30 days from the date of its receipt to take measures on the coordination of disputable conditions or in writing to notify the acceptor about the refusal to conclude the contract. Otherwise, the offeror is obliged to compensate for losses caused by the evasion of agreement on the terms of the contract.
Subject of the supply contract - the transfer of goods intended for use in entrepreneurial activities or for other purposes not related to personal, family, domestic or other similar use. Along with the subject, other essential terms of the supply agreement, such as the terms and procedure for delivery, the assortment, quality and completeness of the goods, packaging and packaging, the sampling of goods, the order and forms of settlements, also have specific features.
Delivery periods are defined in the contract for individual shipments of goods. If they are not installed, then the goods must be delivered in regular batches on a monthly basis. Along with the periods, the contract may provide for ten-day, daily and even hourly delivery schedules (for example, for bakery products, raw materials for perfume products or for any perishable produce).
Goods are delivered by shipping them by the supplier to the buyer or the recipient specified in the contract, which is not a party to the contract, in accordance with the shipment order, which the buyer, in accordance with the contract The term (but not later than 30 days before the delivery period) is sent to the supplier. The contract may provide for the receipt of goods by both the buyer and the recipient at the location of the supplier (sampling of goods).
Assortment of the delivered goods, i.e. their ratio by type, model, size, color or other characteristics is established by the contract in accordance with Art. 467 CC. The general norms of Art. 469, 478 and 481 of the Civil Code also define the requirements for the quality and completeness of the delivered goods, its packaging and packaging.
The rules established by the Civil Code comply with international standards. For example, the rule of paragraph 4 of Art. 469 GK that if in the order established by law obligatory requirements to quality of the sold goods are stipulated, the seller, carrying out entrepreneurial activity, is obliged to transfer to the buyer the goods corresponding to these obligatory requirements, adequately to the norm of cl. 35 of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, April 22, 1980). The Convention has been in force for the United States since 1991. According to Cl. 35 the seller must supply the goods, which by quantity, quality and description are in accordance with the requirements of the contract and which are packaged or packaged as required by the contract.
Quality products can be determined by standards, technical description, samples, catalogs or vendor brochures. For goods subject to mandatory certification, the quality of the goods supplied must be confirmed by certificates of their quality. The legal basis for compulsory and voluntary certification of goods, as well as the rights, duties and responsibilities of certification participants, is determined by Federal Law No. 184-FZ of 27.12.2002 "On Technical Regulation". The unified list of products subject to mandatory certification and the Unified List of Products, the confirmation of compliance with which is carried out in the form of the adoption of a declaration of conformity, is approved by US Government Decree No. 982 of 01.12.2009.
According to clauses 6 and 7 of Art. 24 Federal Law On Technical Regulation the declaration of conformity issued by the applicant is subject to registration in electronic form in a single register of declarations of conformity in a notification procedure within three days from the date of its adoption. Maintenance of a single register of declarations of compliance is carried out by the federal executive body authorized by the US Government. The procedure for the formation and maintenance of a single register of declarations of compliance and the procedure for the registration of declarations of compliance are established by the federal executive body authorized by the US Government. The Declaration of Conformity and evidentiary materials shall be kept by the applicant within ten years from the date of expiration of such declaration in the event that another period of their storage is not established by the technical regulations. The applicant must submit a declaration of compliance and evidence at the request of the federal executive body authorized to exercise state control (supervision) over compliance with the requirements of technical regulations.
Completeness is also set by the contract, taking into account the purpose and complexity of the goods, the need to supply it with a set of tools, technical passport, assembly and operation instruction and other documentation. If the completeness is not determined by the contract, the seller establishes it, being guided by the customs of business turnover or the usually presented requirements.
The terms of the supply contract for packaging and packing of the goods must take into account the possibility and necessity of preserving the goods, its quantity and quality, including during transportation. There are containers of transport, consumer and packaging equipment. Transport packaging is designed for stowing of transported goods. Consumer containers usually serve as primary packaging, sold together with the goods and out of circulation. Tare-equipment is a unified commodity carrier intended for stowing and delivering goods from industrial enterprises and wholesale bases to the store's sales area. According to other criteria, containers are rigid and soft, one-time, returnable and multi-turn, non-separable, collapsible, folding and collapsible.
Price of the delivered goods is determined by agreement of the parties or mandatory instructions of legal acts. For example, in accordance with the US Government Decree No. 239 of 07.03.1995 "On Measures to Streamline Government Regulation of Prices (Tariffs)". prices for alcohol are established or regulated by the state. Delivered goods are paid in the manner and forms established by the contract, and if the procedure and form of settlements are not determined by the contract - payment orders.
The content of the contract of supply of the right and obligations of the supplier and the buyer (recipient) of goods is closely related to its terms. The supplier is obliged to deliver in the stipulated period the goods in the established quantity and assortment, necessary quality and completeness, in the required packaging and packing. Assuming short delivery in a separate period, he must fill it in the following periods. Goods delivered to one recipient in excess of the amount provided for in the contract or shipping order are not included in the coverage of short delivery to other recipients. Similarly, the supply of goods of one denomination in a larger quantity is not included in the coverage of the shortage of goods of another denomination belonging to the same assortment.
In the case of delivery of goods of inadequate quality or incomplete, the supplier must, at the choice of the buyer, discount the goods, or eliminate its shortcomings without compensation, or complete the goods, or perform other actions in accordance with Art. 475 or 480 GK. The supplier can be relieved from these duties if he receives a notice from the buyer about the shortcomings or incompleteness of the goods delivered, immediately replaces them with goods of the proper quality, adds to the goods or replaces them with complete goods (paragraph 1 of Article 518, item 1 of Article 519 GK).
Violation by the supplier of obligations but replenishment of short delivery of goods or non-satisfaction of the buyer's requirements related to the supply of goods of inadequate quality or incomplete, gives the buyer the right to purchase undelivered goods from other persons with attribution to the supplier of all necessary and reasonable expenses for their acquisition. These expenses can be expressed in the form of a difference between the price and the price of purchasing goods from other persons established in the contract. Such costs are called specific losses .The main responsibilities of the buyer (recipient) are to ensure the acceptance (selection) of the goods (ready for delivery) or their responsible storage (if it reasonably refuses them acceptance) and payment of goods. If the payment is assigned to the recipient of the goods and the latter unjustifiably refused payment, the obligation of full or partial payment rests with the buyer.
The Civil Code does not regulate the procedure for accepting goods by quantity, quality and completeness. Until now, in practice for these purposes, the Instructions on the procedure for the acceptance of products of industrial and technical designation and consumer goods by quantity and quality are approved (approved by the USSR State Arbitrazh Resolution No. P-6 of June 15, 1965 and No. P-7 of April 25, . In accordance with clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the United States of 22.10.1997 No. 18, these Instructions apply only in cases where this is provided for in the supply contract.
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