According to paragraph 1 of Art. 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to conclude in the future an agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement.

Consequences of refusal to conclude the main contract

So, the preliminary contract is concluded. After the time specified in the contract, the parties are obliged to conclude the main contract, the essential terms of which are indicated in the preliminary contract. However, there are situations when one of the parties refuses to commit the main contract. In this case, the provisions provided for in paragraph 4 of Art. 445 of the Civil Code of the Russian Federation, namely: the interested party has the right to demand in court the conclusion of the main contract on previously agreed terms and compensation for losses incurred.

Responsibility for evading the conclusion of the main contract

If the party that has entered into the preliminary agreement evades the conclusion of the main agreement within the term of its validity, the rules provided for the conclusion of binding agreements shall apply.

In this case, the other party may file a lawsuit to compel the conclusion of the main contract.

In addition, in the preliminary contract itself, it is possible to establish a penalty (fine, penalties) for refusing to conclude the main contract or delaying its conclusion.

Disputable issues arising from the conclusion of a preliminary contract

One of such questions that arise for the parties when concluding a preliminary agreement is the question of whether, on the basis of this agreement, it is possible to acquire the right of ownership, for example, to real estate. The answer in this case is unambiguous - it is impossible.

The preliminary contract is not a title document, it is only the basis for the conclusion of the main contract within the prescribed period. The Presidium of the Supreme Arbitration Court also spoke on this issue in the Information Letter dated April 28, 1997 N 13 "Review of the practice of resolving disputes related to the protection of property rights and other property rights." In particular, paragraph 2 of the Information Letter states that the right of ownership of property cannot be acquired by the plaintiff under a preliminary agreement on the sale of property.

Arbitration courts adhere to a similar position.

Hello Svetlana!

It is impossible to refuse to conclude a contract in such conditions; you can get into the register of unscrupulous suppliers.

If it's all about timing, it might be worth trying to file a lawsuit with the Arbitration Court to force the customer to conclude an agreement on your terms. In the claim, you will have to justify that it is impossible to carry out work to repair the heating in the current weather conditions. I think the court will be on your side. If there is no interest in concluding a contract, then do as your colleagues suggested. The most convenient option is to conclude an agreement and terminate it by agreement of the parties, if the customer does not mind.

According to Article 446 of the Civil Code of the Russian Federation In cases of transferring disagreements that arose during the conclusion of the contract to the court on the basis of Article 445 of this Code or by agreement of the parties, the terms of the contract on which the parties had disagreements are determined in accordance with the decision of the court.

According to Article 445 of the Civil Code of the Russian Federation 1. In cases where, in accordance with this Code or other laws, it is mandatory for the party to whom the offer (draft agreement) is sent to conclude an agreement, this party must send the other party a notice of acceptance, or a refusal to accept, or on the acceptance of the offer on other terms (minutes of disagreement to the draft agreement) within thirty days from the date of receipt of the offer. agreement), has the right to refer the disagreements that arose during the conclusion of the agreement to the court within thirty days from the date of receipt of such notice or the expiration of the period for acceptance. In cases where, in accordance with this Code or other laws, the conclusion of an agreement is obligatory for the party that sent the offer (draft agreement), and a protocol of disagreements to the draft agreement will be sent to it within thirty days, this party is obliged, within thirty days from the date of receipt of the protocol of disagreements, notify the other party of the acceptance of the agreement in its version or of the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or the notification of the results of its consideration within the specified period is not received, the party that sent the protocol of disagreements has the right to refer the disagreements that arose during the conclusion of the agreement to the court. . The rules on the terms provided for in paragraphs 1 and 2 of this article shall apply, unless other terms are established by law, other legal acts or agreed by the parties.4. If the party, for which, in accordance with this Code or other laws, the conclusion of the contract is obligatory, evades its conclusion, the other party has the right to apply to the court with a demand to compel the conclusion of the contract. The party that unreasonably evades the conclusion of the contract must compensate the other party for the losses caused by this .

Refusal (avoidance) of concluding an agreement and imposition of unfavorable conditions by an economic entity occupying a dominant position

The considered form of abuse of dominant position belongs to the sphere of conclusion of contracts and pre-contractual disputes.

Under normal conditions, the subjects of civil circulation are free to choose both contractors and the conditions under which they are ready to conclude an agreement. Usually, an economic entity may refuse to conclude an agreement with another person for no reason, but only at its own request.

At the same time, such rights of an economic entity occupying a dominant position are significantly limited. The Federal Law on Protection of Competition prohibits, as an abuse of a dominant position, refusal or evasion from concluding an agreement with individual buyers (customers) if it is possible to produce or supply the relevant goods, and also if such refusal or evasion is not expressly provided for by the regulations of the Russian Federation or judicial acts.

When qualifying such actions of an economic entity as refusal or evasion from concluding an agreement, it is necessary to take into account the provisions of Art. 445 of the Civil Code of the Russian Federation. According to this rule, if the conclusion of the contract is mandatory for the party to which the offer (draft contract) is sent, this party must send the other party a notice of acceptance, or a refusal to accept, or acceptance of the offer on other conditions (minutes of disagreement to the draft contract) within 30 days from the date of receipt of the offer.

Thus, the refusal to conclude an agreement is understood as the direction by the economic entity occupying a dominant position of a notice of refusal of the received acceptance. At the same time, the offer itself must meet the requirements established by Art. 435 of the Civil Code of the Russian Federation.

If an economic entity occupying a dominant position does not send a notice of acceptance, refusal of acceptance or acceptance of an offer on other terms, then its actions may be qualified as evasion from concluding a contract. In addition, other actions of an economic entity may indicate avoidance of concluding an agreement, for example, an unreasonable requirement for a counterparty to submit documents and information, postponement of the conclusion of an agreement without an objective reason, and other actions indicating that an economic entity has no real intention to conclude an agreement.

At the same time, it must be taken into account that refusal or evasion from concluding a contract cannot be considered an abuse of a dominant position if such actions are justified by economic or technological circumstances.

As an economic justification for the legitimacy of the refusal, the offer by the counterparty of conditions that do not correspond to the market situation and are unfavorable for the economic entity occupying a dominant position (for example, an offer to conclude a contract below a market reasonable price) can be considered.

Technological grounds for refusing to conclude a contract can only be circumstances that objectively impede the possibility of its execution, for example, the potential seller does not have the goods in the right quantity, the impossibility of producing the right goods in the time required by the counterparty.

If the actions of an economic entity are qualified as the imposition of unfavorable or not related to the subject of the contract conditions, then it is necessary to determine, firstly, what actions of the economic entity can be qualified as imposition, and secondly, what conditions can be considered unfavorable or not related to the subject of the contract.

Let's go back to Art. 445 of the Civil Code of the Russian Federation. It follows from this rule that an economic entity that occupies a dominant position may notify the person who sent the offer of its consent to conclude an agreement on other conditions. However, not any notice of acceptance of an offer on other conditions is automatically recognized as the imposition of the relevant conditions.

We can talk about imposition, first of all, if the very notice of acceptance on other conditions indicates a categorical refusal to discuss other conditions. If there is no such refusal in the notice, then the person who received it must declare his disagreement with the conditions offered by the economic entity occupying a dominant position. And already in the case when the economic entity that occupies a dominant position insists on its proposal, its actions can be considered as imposition. In other words, the imposition of certain conditions may be indicated by the unwillingness or refusal of an economic entity occupying a dominant position to change the conditions proposed by it, and not by any proposal to change the offer made by the counterparty.

In itself, the offer to the counterparty of the terms of the contract can be considered as imposing them only if, based on the specific situation, such a counterparty is forced to agree to them due to the impossibility or difficulty of discussing the proposed terms, for example, if discussing the terms of the contract threatens to stop production.

The Federal Law “On Protection of Competition” refers to the conditions that may be classified as unfavorable for the counterparty as economically or technologically unjustified or not directly provided for by regulatory legal acts of the Russian Federation or judicial acts of the requirement to transfer financial resources, other property, including property rights , as well as consent to conclude an agreement on the condition that the counterparty is not interested, and other requirements.

At the same time, the terms of the contract cannot be considered unfavorable just because the counterparty himself considered them to be such. The disadvantage must be of an objective nature, different from the conditions accepted in the sector under consideration and from the conditions under which similar goods are supplied by other economic entities.

When evaluating the terms of the contract offered by the dominant economic entity regarding its unfavorability for the counterparty, it is important to establish that it represents unreasonable burdens for him and, under conditions of normal competition, he would not have entered into a contract with such a condition.

As an example of the imposition of unfavorable terms of the contract, we can cite the case considered by the Krasnodar OFAS Russia in relation to OOO Krasnodarregiongaz, which is related to the inclusion in the gas supply contract of OAO Tribal Poultry Plant Labinsky of penalties for the total volume of gas selected by the buyer in excess of the daily contractual volume. As noted by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 325/10 dated June 15, 2010, the inclusion in the contract of additional coefficients in relation to those specified in the Rules for the supply of gas in the Russian Federation, approved by Decree of the Government of the Russian Federation dated February 5, 1998 No. 162, coefficients , named in the contract as a fine for gas consumption in excess of the contractual volume, is a violation of regulated pricing in the field of gas supply and abuse of a dominant position by imposing unfavorable terms of the contract for the counterparty.

It should also be mentioned that in relation to the abuse of dominant position under consideration, the Federal Law “On Protection of Competition” provides for a special operational procedure for responding by sending a warning to a person whose actions contain signs of a violation of the antimonopoly law, a warning about the termination of the relevant offense (Article 39 "). The procedure for applying this measure will be described in more detail in the chapter on state control over compliance with antimonopoly legislation.

public agreement an agreement is recognized concluded by a person engaged in entrepreneurial or other income-generating activities, and establishing his obligations to sell goods, perform work or provide services that such a person, by the nature of his activity, must carry out in relation to everyone who applies to him (retail trade, transportation public transport, communication services, energy supply, medical, hotel services, etc. (Civil Code of the Russian Federation).
It should be noted that at present there is a list of rules binding on the parties when concluding a public contract. For example, the sale of certain types of goods, durable goods, which are not subject to the buyer's requirement to provide him free of charge for the period of repair or replacement of a similar product, and non-food products of good quality that cannot be returned or exchanged for a similar product of a different size, shape, dimensions, style, color or configuration, approved. Government of the Russian Federation of 19.01.1998 N 55; sale of goods remotely, approved. Government of the Russian Federation dated September 27, 2007 N 612; provision of catering services, approved. Government of the Russian Federation dated 15.08.1997 N 1036; provision of telephone services, approved. Government of the Russian Federation dated 09.12.2014 N 1342; provision of parking services, approved. Government of the Russian Federation of November 17, 2001 N 795 and other Rules.
By virtue of the Civil Code of the Russian Federation, the refusal of a person engaged in entrepreneurial or other income-generating activities to conclude a public contract, if it is possible to provide the consumer with the relevant goods, services, to perform the relevant work for him, is not allowed. It provides for the legal consequences of a violation by the subject of a public contract of the obligation to conclude an agreement with the consumer who applied to him, if it is possible to provide the relevant goods, services or perform the required work. In the event of unreasonable evasion from concluding a public contract, the consumer has the right to apply to the court with claims against the subject of the public contract to compel the conclusion of the contract, as well as to compensate for the losses caused by this evasion (CC). In this case, the contract is considered concluded on the terms specified in the court decision from the moment the relevant court decision enters into legal force.
In the joint Decree of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 "On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation" it was explained to the courts that when resolving disputes over consumer claims for compelling commercial organization (now - "a person engaged in entrepreneurial activities or other income-generating activities", i.e. the subject of a public contract) to conclude a public contract, it must be taken into account that the burden of proving the inability to transfer goods to the consumer, perform the relevant work, provide services is assigned to the commercial organization (i.e. the subject of a public contract).
And one more feature of the protection of the consumer entering into contractual relations with the subject of a public contract, due to the fact that for such a subject the law establishes the obligation to conclude a contract with everyone who applies to him. The obligation to conclude a public contract comes primarily from Article 426 of the Civil Code of the Russian Federation, from the approved Rules binding on the parties when concluding a public contract, as well as other federal laws and by-laws. And it is the commercial organization that is obliged to bear the burden of proving the fact that it is impossible to conclude a public contract (sell goods, perform work, provide a service): for example, compulsion to conclude a public contract for the maintenance of housing and the provision of utility services in an apartment is impossible due to the fact that the defendant does not has contractual obligations to the plaintiff for the provision of public services, since it is not a resource supplying or managing organization (see the Ruling of the Moscow Regional Court dated 03.08.2010 in case N 33-14852); compulsion to conclude a public contract for a domestic contractor to carry out the relevant installation work to connect natural gas is impossible due to the plaintiff's initial refusal to manufacture a project for further work on a domestic contract (clause 3 of article 740 of the Civil Code of the Russian Federation) (see Appeal ruling of the Voronezh regional court dated February 12, 2015 N 33-755); compulsion to conclude a public contract for the performance of work on the maintenance of housing and the provision of utility services in the apartment is impossible due to the fact that the defendant does not have contractual obligations to the plaintiff to provide utility services, since it is not a resource supply or management organization (see Ruling of the Moscow Regional Court dated 08/03/2010 in case No. 33-14852); compulsion to conclude a public contract and recovery of damages is impossible due to the plaintiff's failure to comply with the Rules for Cold Water Supply and Sanitation and the lack of evidence that the plaintiff submitted a full package of documents necessary for concluding a disputed contract, namely, failure to provide an extract from the Unified State Register of rights to real estate and transactions with him to confirm the ownership of the object (see the Decree of the Arbitration Court of the Volga District of 03.03.2016 N F06-6384 / 2016 in case N A65-6361 / 2015), etc. The defendant is obliged to confirm in court the fact that there is no real possibility of concluding a public contract.
Additionally, we note: when applying for compulsion to conclude a public contract not by a citizen, but by a legal entity (organization or individual entrepreneur), the latter must provide the court with evidence that the goods (the result of work, services) were intended for use in entrepreneurial (other economic) activities.
Here are just a few examples of public contracts:
In the field of catering: the contract for the provision of public catering services is one of the public contracts, and the organization’s refusal to conclude a public contract, if it is possible to provide the consumer with the relevant services, is not allowed, and if in this case the other party avoids concluding it, the other party has the right to apply to the court with a request to compel to conclude an agreement and on compensation for losses caused by an unreasonable refusal to conclude it (, Civil Code of the Russian Federation). An exception to this rule is when it is impossible to provide a catering service (for example, due to a fire).
In the field of electricity supply: Article 37 of the Federal Law of March 26, 2003 N 35-FZ (as amended on July 3, 2016) "On the Electric Power Industry" obliges a grid organization to conclude a public contract. The consumer of electrical energy is free to choose a counterparty under the contract of sale, contract for the supply of electrical energy. The grid organization is not entitled to refuse the consumer of electric energy to conclude a contract for the provision of services for the transmission of electric energy on the grounds related to the choice by the consumer of electric energy of a certain supplier of electric energy.
In the field of tourism: in the case of the formation of the tour by the tour operator at its own discretion and the presence of a written proposal containing the essential terms of the agreement, named by the Russian Federation and on the basics of tourism activities, addressed to an indefinite circle of persons, such an offer is recognized as a public offer, and an agreement concluded with a tourist for tourist services - a public agreement. The legal consequences of qualifying a tourist contract as public are that, firstly, the travel organizer cannot refuse to conclude a tourist contract (the Civil Code of the Russian Federation); secondly, if a commercial organization avoids concluding an agreement, it may be compelled by a court to conclude an agreement and compensate the other party for losses caused by unreasonable evasion from concluding an agreement (the Civil Code of the Russian Federation); thirdly, with the requirement to compel to conclude a public contract, only a tourist has the right to apply to the court; fourthly, due to the public nature of the tourist agreement, its terms, which do not comply with the Civil Code of the Russian Federation, are void. When resolving disputes on claims for compelling the travel organizer to conclude a travel contract, the burden of proving the inability to provide the relevant services rests with the travel organizer.
In the field of property insurance: an insurance organization that has a license to carry out a certain type of insurance is obliged to conclude an agreement with any person with insurance legal personality and who wishes to conclude one or another type of property insurance agreement. At the same time, the refusal of the insurer in the presence of real opportunities for the implementation of its insurance functions is unacceptable. The insurer is obliged to insure all policyholders on the same terms of one or another type of insurance in accordance with federal laws, as well as government Rules binding on the parties when concluding and executing a public contract. These are just a few of the industries associated with the conclusion of a public contract.
Thus, based on the foregoing, an unreasonable refusal to conclude a public contract with everyone who applies is not lawful.

Attention! When considering a claim for compulsion to conclude a public contract, the court must provide, among other things, evidence that the defendant has the opportunity to conclude such an agreement with the plaintiff.

This advice may be useful in preparing a claim according to the template:

(statement of claim)

(statement of claim)

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In what cases does the refusal to conclude an agreement entitle one of the parties to still demand the conclusion of such an agreement? For example, if a preliminary agreement was concluded, if the obligation to conclude an agreement is provided for by law.

The civil legislation regulating the practice of concluding preliminary contracts places special emphasis on its protective functions in relation to the main contract. After all, the counterparty's refusal to conclude the main contract can be equated with non-fulfillment of the preliminary contract, and this, in turn, already violates the rights of one of the parties. Thus, the refusal to conclude the main contract (if there is a preliminary one) is amenable to settlement in court by forcing the conclusion of the contract. True, provided that the preliminary contract itself was fulfilled by both parties and they have no claims to each other regarding the quality of its execution.

It is not so easy to achieve the conclusion of an agreement through the court, therefore it is better to entrust this matter to a specialist who is well acquainted with this practice. Otherwise, litigation may end up only in a void contract, damages, and payment of legal fees.

The court decision on the compulsory conclusion of the contract will take into account not only the need to sign it, but also determine the procedure for monitoring its conclusion. But at the same time, it should be noted that it is impossible to extend the contract (for example, lease) in a judicial proceeding, since after the expiration date, the counterparty has the right to refuse the services of the second party, and the right given to him by law is not subject to appeal in court.

Appeal to the court with a claim for compulsion to conclude a contract

As already mentioned, disputes about coercion to conclude an agreement are most often the result of the refusal of one party to the transaction to conclude the main agreement based on the conditions of the preliminary one.

If the conclusion of a disputed agreement is mandatory for the other party by law (for example, privatization, a contract for the provision of services, etc.), then in case of refusal, this agreement can be concluded by force, but already through the court, by applying there with a statement of claim for compulsion to conclusion of an agreement.

As a general rule, one should apply to the court at the place of residence (deployment) of the defendant. The statement of claim for compulsion to conclude an agreement must be drawn up in full accordance with the requirements of the Civil Procedure Code of the Russian Federation. The application must include the following information: the name of the judicial authority; information about the plaintiff and defendant; the essence of the violation of the rights and legitimate interests of the applicant and his petition; grounds for presenting the claims of the plaintiff, and evidence that confirms these grounds; information about pre-trial proceedings; list of documents attached to the statement of claim, their copies.

Professional legal assistance in case of refusal to conclude a contract