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Essential terms of the service agreement. Provision of services without a contract - consequences

We have considered barter transactions where the subject of the contract is a commodity. However, if the specifics of the organization's activities are far from trade, and the organization produces services of various kinds, then the cooperation of such organizations with each other leads to the exchange of these services. Even entire industries, such as information business, advertising, consulting of various kinds, use mutual services as a means of payment. However, there is no clear definition of mutual services in the legislation. Therefore, when exchanging services, the parties must enter into a mixed contract that includes both provisions relating to services and provisions relating to the exchange agreement. Accordingly, there are problems in terms of the relationship of counterparties. The article discusses such issues as the concept of mutual services, the issue of interaction between counterparties, issues of judicial practice and features that need to be paid attention to when concluding a contract.

The concept of mutual services

The servants belong to one of the types of objects of civil rights (Article 128 of the Civil Code of the Russian Federation) and are carried out on the basis of civil law. If we talk about mutual services, then it is necessary to apply the provisions of the contract paid provision services. According to Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

However, under the contract mutual rendering services as payment is a service (goods, work). At the same time, the provisions of Chapters 31 “Change” and 30 “Sale and Purchase” of the Civil Code of the Russian Federation cannot be applied to transactions for the exchange of services, as well as to transactions in which at least one party exchanges services, since they apply only to things . According to Art. 567 of the Civil Code of the Russian Federation, under an exchange agreement, each party undertakes to transfer goods to the other party in exchange for another.

However, in the exchange of services, it can be said that the services to be exchanged are assumed to be of equal value, and the costs of accepting the services are borne in each case by the party that has the corresponding obligations. These provisions are similar to the provisions of art. 568, which regulates prices and costs arising from an exchange agreement.

For a voluntary exchange of services to take place, five conditions must be met:

There must be at least two sides.
Each party must have some kind of service (goods, work) that could be of value to the other party.
Each party must be able to communicate.
Each party must be completely free to accept or reject the proposal of the other party.
Each party must be confident in the expediency or desirability of dealing with the other party.

In practice, the following types of exchange occur:

For example, a construction exhibition is taking place and a construction magazine wants to take part in it, but agrees with the organizers to place an advertisement instead of paying with money.

Or the organizations have entered into an agreement under which Advokat OJSC provides consulting services to Shield LLC in exchange for the provision of security services. This exchange considered to be of equal value.

For example, a sole trader provides services Catering a large company for providing him with premises, inventory, etc.

Many more examples of exchange of services could be cited.

However, a distinction must be made between services and goods. The difference between a service and a product and work is that it is an action or activity carried out on order that does not have a material result (for example, the activity of a commission agent, a carrier, etc.). At the same time, some services may still have a material result (catering services, written consultations, certain types of medical and advertising services, etc.).

In addition, it is necessary to pay attention to the fact that the service under the contract may be a financial service, expressed in monetary terms. In accordance with the law on protection of competition, “financial service - banking service, insurance service, market service valuable papers, a service under a leasing agreement, as well as a service provided financial institution and related to the attraction and (or) placement of funds of legal entities and individuals.

However, as we found out, the legislation provides only for the exchange of goods. Therefore, when exchanging services, the parties must conclude a mixed contract, which includes both the provisions relating to services and the provisions relating to the exchange agreement. According to Article 421 of the Civil Code of the Russian Federation, the parties to the transaction have the right to independently choose the contract by which they want to determine their legal relationship.

Features of the contract

First of all, in the contract it is necessary to determine the conceptual apparatus. In the civil legislation there is no concept of "mutual services" as such. At the same time, paragraph 1 of the Decree of the President of the Russian Federation of August 18, 1996 No. 1209 “On State Regulation of Foreign Trade Barter Transactions” determines that a foreign trade barter transaction provides for the exchange of goods, works, services, and results of intellectual activity of equivalent value. In foreign economic activity the concept of "barter transaction" is provided. In Art. 154 of the Tax Code of the Russian Federation, the legislator uses the concept of "realization of services for barter (barter) transactions". Thus, depending on where the transaction takes place, what conditions the parties want to include in the contract, they determine whether the contract between the parties is a contract for the mutual provision of services or a barter transaction.

The terms of the contract for the mutual provision of services on the subject must be clearly and precisely agreed upon by the parties in the text of the contract.

By virtue of Art. 421 of the Civil Code of the Russian Federation, the parties may determine the terms of the contract at their discretion. At the same time, an important condition is to determine the result of the services provided (written consultations and explanations on legal matters; draft contracts, statements, complaints and other documents of a legal nature, etc.). An important reporting document of the mutual services agreement is the act of services performed, according to which the parties confirm that the services were performed in full and on time. This document is not provided for by law, but will avoid litigation and tax disputes. This document may reflect the quality of services. The quality of the services performed by the contractor must comply with the terms of the contract for the provision of services, and in the absence or incompleteness of the terms of the contract, with the requirements usually imposed on services of the corresponding kind. In addition, the organization providing the service reflects its implementation at the time of signing the act of acceptance and transfer of work performed or services rendered.

In some cases, the cost of exchanging services is different, which will require the use of additional payments in cash. In this case, the contract must determine the amount, the procedure for additional payment, as well as the procedure for establishing the cost of the service itself.

It is important to foresee the timing of the provision of services. If the service is of a long-term nature, then it is advisable to approve the schedule for the provision of services, sign acts after the end of the reporting period, or establish a different procedure for monitoring the provision of services.

Reporting documents may include acts and invoices for the shipment and posting of goods, if the result of the provision of services is material assets, invoices, work orders, conclusions. These documents not only confirm the validity of attributing the cost of the exchanged services, but also make it possible to prove the very fact of the exchange of services or its absence in court.

The parties must understand that if they use transactions for an unequal exchange of services, such transactions can be challenged in court by both the counterparty and the tax authorities, since in accordance with Art. 40 of the Tax Code of the Russian Federation, the tax authorities check the correctness of the application of prices for barter (barter) transactions. Thus, I would like to warn against the desire to conclude a deal for the exchange of unequal services.

It is advisable to provide for the procedure for satisfying claims, penalties in the contract. This point is important, since the result of the services provided is not a tangible product, but a service that often does not have a material embodiment. It is better to determine penalties in terms of money, based on the cost of the service itself.

IN individual cases performance of the contract for the provision of services is impossible without a license, since for certain types services provided for mandatory licensing activities. The list of activities for which compulsory licensing is provided is established by Art. 17 federal law dated 08.08.2001 No. 128FZ “On Licensing Certain Types of Activities” (hereinafter - Law No. 128FZ). In addition, when providing certain types of services, such as valuation activities, design, the performing party must be a member of a self-regulatory organization, which must also be provided for in the contract.

The involvement of third parties is possible in case of inclusion given condition into a contract.

In the event that an organization exchanges mutual services with a foreign company, the following conditions must be provided. The contract must be drawn up in the form of a single document, it must define the list of services, results of intellectual activity, their cost, terms of work, the moment of provision of services and rights to the results of intellectual activity; a list of documents submitted to a Russian person to confirm the fact of performance of work, provision of services and rights to the results of intellectual activity; the procedure for satisfying claims in case of non-fulfillment or improper fulfillment by the parties of the terms of the contract. At the same time, one should not forget that when making barter transactions, it is necessary to issue a transaction passport. Passport - a document of control and accounting of barter transactions made by Russian persons in accordance with the concluded foreign economic agreements. In addition, when concluding foreign economic contracts, it becomes necessary to determine the equivalent price, since some services can be valued in rubles, while others can be valued in foreign currency. However, regardless of the date of the provision of services, the parties may provide in the contract for the equivalent of the cost of the services provided in rubles or at the rate of the dollar, euro, in force on the date of signing the act of rendering services.

Litigation

A contract for the provision of services for compensation may be considered concluded if it lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. This is indicated by the Presidium of the Supreme Arbitration Court in the information letter dated September 29, 1999 No. 48 “On some issues of judicial practice arising in the consideration of disputes related to contracts for the provision of legal services”. Thus, based on the recommendations of the SAC, it is necessary to determine the type of activity and the procedure for actions under the mutual services agreement.

In practice, litigation most often arises in terms of payment of obligations assumed by the parties. At the same time, the termination of the contract does not release either of the parties from the obligation to pay for the actually performed services. In the case of mutual services, this means that the other party must perform his part of the services. There is also case law on this issue.

Arbitrage practice

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In the decision of the Federal Arbitration Court of the Volga District dated September 17, 2009 No. A1219210 / 2008, the court concluded that the contract was not terminated by the parties, was not declared invalid in the manner prescribed by law, obligations under it must be properly performed. Based on these circumstances, it seems correct to conclude that the defendant fulfilled the obligation to offset under the disputed contracts in the manner of barter.

Thus, when terminating the contract, the parties must reconcile mutual settlements, make mutual offsets under the contract in the manner of barter and sign an act stating that they have no mutual claims against each other. This measure will avoid litigation in terms of mutual settlements between the parties.

Services should not be imposed as ancillary services if they are the same as services that a party should have provided free of charge to a consumer, as the consumer (or other party) is then misled as to the service being provided to him (Federal Court of Arbitration ruling Central District No. А233675/07А14260 dated March 21, 2008).

Litigation is also associated with the desire of the parties to reclassify any mutual agreements into a contract for the mutual provision of services. However, the courts do not agree with this position of the parties, believing that the parties must first terminate the previously signed agreement and only then sign a new agreement on the mutual provision of services.

Arbitrage practice

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In the decision of the Third Arbitration Court of Appeal dated December 14, 2007 No. A741698/200703AP1455/2007, the Arbitration Court of Appeal indicated that the protocol is not an agreement for the mutual provision of services or an additional agreement between the parties to change the terms of the agreement on the form of settlements. The subject of this protocol is the offset of the mutual debt of the parties, and not the change and termination of the contract.

In general, the exchange of services is convenient for those companies that do not have large working capital but are able to offer other alternative solutions. At the same time, it is necessary to take care of the correct execution of the contract for the mutual provision of services, as well as the documents confirming the fact of the provision of these services. Also note that you should not try to reclassify any contract into a contract for the provision of services in the event of financial problems.

Editor's note: our publishing house has long and successfully used a mutual service agreement in its activities. We are pleased to present to readers a sample of such an agreement (see Example).

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Footnotes

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In the event that an institution provides paid services, it must ensure that the transaction is properly documented in order to protect itself from any subsequent claims from various regulatory authorities, and in addition, from possible property losses. Is it necessary to conclude an agreement with the customer in the form of a single document, or will it be possible to confine ourselves, for example, to just issuing an invoice? The risks associated with the provision of services without a contract will be discussed further.

What contract can rightly be considered concluded?

Institutions take part in civil circulation on an equal footing with certain legal entities, acquiring the corresponding rights and obligations in exactly the same manner, like all participants in legal relations. In accordance with article No. 432 of civil law, an agreement can be considered concluded if an agreement has been reached between the parties in the proper form on all, without exception, the essential conditions of the future document. For example, the provision of transport services.

As a general rule, the terms on the subject matter of the agreement are essential. They also include those that are given in the law or other legal acts. Thus, the legislation provides the conditions and requirements necessary for contracts, regarding which, based on the application of one of the parties, one or another agreement must ultimately be reached. Now consider what are the subtleties in the provision of services without a contract.

Provision of services: essential nuances

In situations where the subject of the contract is indicated by an indication of a specific activity, the range of proposed actions on the part of the contractor is determined on the basis of negotiations preceding the conclusion of the document, as well as correspondence and practices that have been established in mutual relations between the parties. In this case, the business custom is also taken into account along with the subsequent behavior of the parties and the like. All the necessary clarifications regarding this issue are given in the information letter of the Presidium of the Supreme Arbitration Court. Directly the subject of the contract for the provision of services for a fee is determined in article No. 779 of civil law. Under the relevant contract, the contractor is obliged to provide his services on assignment, that is, to perform certain actions by carrying out specific activities, and the customer, in turn, must financially pay for everything. This is how the home master works.

When is the contract considered concluded?

Any other conditions of this type of contract are not called essential by the legislation. So, the contract for the provision of services is considered concluded if it lists the actions that the contractor must perform, or the activity that he is obliged to perform is given. According to civil law, the contract is recognized as concluded immediately at the moment the person who sent the offer receives its acceptance. Any offer must necessarily contain the essential terms of the contract being concluded.

Need for written form

Any transactions of legal entities that are conducted between themselves and with citizens must be made in the usual writing. The contract can be concluded by drawing up one document, which is signed and approved by both parties. In addition, it can be concluded by exchanging papers through the mail, telegraph, teletype, telephone, electronic or other communication. The main thing is that, as part of the transfer of information, it is possible to reliably establish that the required document comes from the party under the contract.

In addition, according to the general rule, the written form of the contract is considered complied with if the person who received the offer within the time period established for its acceptance has completed the actions to implement the terms of the document that were specified in the offer.

What actions can be taken?

For example, as part of the fulfillment of conditions, the following could happen:

Goods have been shipped.
Services have been provided.
All expected work was completed in full.
The corresponding amount has been paid.

Any other requirements may be provided by law, legal acts or specified in the offer. Is it possible to provide services without concluding a contract? Let's figure it out.

In order to recognize actions on the part of the offeree as an acceptance, the legislation does not require the fulfillment of the conditions in full. It is sufficient that the person who receives an offer or a contractual project starts its implementation in accordance with the conditions specified in the document. Moreover, it is important to complete everything within the time period strictly established for acceptance.

With regard to the agreement on the provision of services for a fee, it is emphasized that the actual use of the services must be considered as an acceptance of the offer that was proposed by the party performing the work. For this reason, these relations should be considered as contractual. Is this the provision of services without a contract?

A contract is not required

Thus, in order to recognize the fact that legal relations have been established between both parties, it is not at all necessary that the contract itself be in the form of a single document that was signed by the parties. In the event that participants in civil legal relations perform actions with which the law associates the emergence of contractual obligations and rights, this means that a civil law document of the type that corresponds to the legal nature of these measures has been drawn up and concluded between them.

Risk assessment

Now consider the very fact of the conclusion of the document. Legal risks may be this case connected with the impossibility of establishing the fact that both parties reached an agreement on the subject of the contract being concluded. That is, it may not be possible to confirm that a contract for the provision of services was actually concluded between certain parties to the transaction. The solution to this problem directly depends on the content of the documents that were drawn up by the parties. At the same time, it is taken into account whether the documentation reflects the actions carried out by the contractor with a sufficient level of specification, which would make it possible to conclude that a contract for the provision of services was actually concluded between the parties.

bilateral act

They confirm the actual provision of services by the contractor due to the drawn up bilateral act, which reflects the content of all the actions performed. Thus, the document indicates the actions that were performed by the performer. Home master can also apply. There is no unified form of this act. Therefore, it is absolutely not required to carry out the details of the contract in the act, especially the date and number. In the act, it will be enough to simply detail the services provided in order to clearly see from the content of this document which specific actions were performed by the contractor, and which ones the customer accepted when providing services without a contract.

Actions actually taken

The fact that the contractor performs certain actions along with the implementation of certain activities, which can be characterized as services, as well as their acceptance by the customer, directly indicates the conclusion of the relevant agreement by both parties. In judicial practice, the provision of services without a contract is a frequent occurrence.

According to article No. 435 of civil law, a written proposal to conclude an agreement, depending on the content of the document, may recognize the application of the contracting authority or an invoice for payment for services, which is issued by the contractor. This requires that the paper reflect the subject of the contract by referring to the services provided by the contractor. Of course, given the nature of the transaction, both parties have the right to determine the period within which all necessary services must be provided.

What is an acceptance?

Accordingly, acceptance within the framework of this offer will be considered either the issuance of an invoice from the contractor in response to the customer's request, or the fact of payment for services based on the issued receipt. In such situations, the contract for the provision of services for compensation can be considered concluded immediately from the moment the customer receives an invoice for payment in accordance with the application. Also, the fact of the conclusion can be considered the moment of transfer of funds as part of the payment for services.

What does the actual provision of services without a contract entail?

Unseen circumstances

No one can be fully insured against the occurrence of circumstances that do not allow the provision of a service. Something similar can happen not only through the fault of the customer, but also because of the contractor. It is also possible that a situation will arise in which none of the parties will be able to answer for the circumstances.

Consequences

As a rule, the consequences of such circumstances directly depend on whether the application, along with the invoice for payment issued by the contractor, together determine that an agreement was actually concluded between these parties.

In the event that such a fact is established, then the consequences will be the same as those that may occur if there is an agreement drawn up in the form of a single document signed by both parties:

As part of the performance by the performer of actions that were aimed at providing services, and in addition, if the result is not used by the customer, the entire amount of payment is not refundable. This is clearly spelled out in Article No. 781 of the civil law.
In situations where the customer unilaterally withdraws from the agreement until the moment when all the required services are properly rendered, all expenses actually accepted by him must be fully reimbursed in favor of the contractor. The provision of educational services without a contract or tutoring also implies this. Consequences may occur if the inability to provide services is related to circumstances for which neither party is responsible.
In the event that the services are not provided in a timely manner due to the fault of the contractor, the customer has the right to withdraw from the agreement, demanding full compensation for losses. In particular, he may demand the return of money paid for the provision of services.

In situations where, prior to the actual provision of services and their acceptance, the documents exchanged by the parties along with the actions already committed by them do not make it possible to establish that an agreement was concluded between the parties for the provision of services (transport, for example), it is required to recognize that the citizens did not have obligations under the deal. At the same time, sent orders, invoices issued along with the transfer of funds, and so on, should be considered proof of the transaction. The provision of legal services without a contract is also often carried out.

Refund request

In such situations, the customer has the right at any time convenient for him to demand the return of the paid money, which can be regarded as unjust enrichment. At the same time, the contractor does not have obligations related to the provision of services for the customer. The institution can directly evaluate the expediency of the methods of processing documents on its own.

The likely consequences of the provision of services without a contract can be minimized if the documentation exchanged between the parties, in particular in the customer's application or invoice for payment, specifies the services sufficiently so that the subject of the contract itself, along with the term, can be considered agreed upon by both parties.

Conclusion

Thus, in conclusion, it should be noted that the absence of a transaction agreement between the parties cannot be regarded as grounds for refusing to pay for the services provided. But you need to have evidence of their provision.

The procedure for settlements under the contract for the provision of services is determined by the parties in the relevant clause of it. You will learn further about what calculation methods are and how best to display them in the contract from the article.

Peculiarities of reflecting the remuneration clause in the service agreement

According to paragraph 1 of Art. 779 of the Civil Code of the Russian Federation for the services rendered, the customer must pay. The procedure and terms of payment are determined by the parties in the contract for the provision of services (clause 1 of article 781 of the Civil Code). At the same time, as the Constitutional Court of Russia explained in its Resolution No. 1-P dated January 23, 2007, the condition for paying remuneration cannot be made dependent on the achievement or failure to achieve the result expected by the customer.

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Based on the clarifications of the Constitutional Court, it can be concluded that the parties, when concluding an agreement on the provision of services for a fee, are free to choose the price, procedure and amount of payment, as well as the timing of performance. At the same time, the type of services provided, which is the subject of the contract, cannot be changed even by agreement of the parties. But the amount and timing of payment may vary even in the process of fulfilling the contract - by making changes on a bilateral basis.

Types of remuneration under a service agreement

As for the prescribed conditions for remuneration to the contractor for the services rendered, they can be different:

Payment of the agreed amount upon completion of the contract. The parties, as a rule, stipulate the term of payment - for example, within 3 days after signing the act on the provision of services.
Payment of remuneration and compensation of expenses of the contractor. They can be paid on the same day on the basis of an invoice issued by the contractor, or remuneration can be paid as a result of the performance of services, and compensation - in the course of the contract or later, after the provision of all supporting documents.
Prepayment - in one hundred percent or in some part (50%, 25% or a fixed amount). Due to the fact that the contracts for the provision of services, according to Art. 783 of the Civil Code, the provisions on the contract and household contract are applicable, in accordance with paragraph 1 of Art. 711 of the Civil Code, the contract may also provide for an advance payment, both in full and in part (Article 735 of the Civil Code). Prepayment is due before the service is rendered. For its introduction, a certain period is also set - for example, within 5 days after the signing of the contract. The final settlement, as a rule, is made based on the results of the provision of services by the contractor.

Compensation of expenses - how are their costs reflected in the contract?

In the conditions on the procedure for settlements under a service agreement, a requirement to compensate the contractor's expenses may be displayed (clause 2 of article 709 of the Civil Code). Also, in contracts for the provision of services for a fee, the price may not be displayed - then the customer will have to pay for the services received at a comparable cost for a similar type of service (clause 3 of article 424 of the Civil Code).

Therefore, in order to avoid misunderstandings in the future, it is recommended to immediately clearly state in the contract how, in what amount, the contractor's remuneration is paid and how his costs are compensated by the customer (they are included in the price of the contract or paid extra when providing documents confirming the expenses). So, the expenses of the contractor can be expressed as a percentage of the amount of remuneration, and can be calculated according to the estimate or in fact - in rubles.

Expenses, if their amount is known at the time of the conclusion of the contract, are laid down immediately in the price of the contract or are reflected separately in one of its clauses, in the estimate / calculation, which are attached to the contract as an integral part of it. If the amount of expenses at the time of the conclusion of the contract is unknown, then it indicates that the customer undertakes to compensate all expenses of the contractor related to the performance of the assigned task.

The procedure for making settlements is determined by the parties at the conclusion of the contract. At the same time, the very fact of payment of remuneration to the performer cannot depend on the result of his activity. The customer pays for the fact that the contractor, on his behalf, has provided certain services.

The amount of remuneration is either immediately determined in a fixed amount, or may contain a fixed part and a variable (costs that the customer compensates), or the contract may not specify the amount of payment at all, then the calculation is made in comparable prices for the same services. Payment can be made on the terms of full / partial prepayment or in full on the basis of the provision of services.

The essential terms of the service agreement include the conditions that determine the specific type of service provided (clause 1 of article 779 of the Civil Code of the Russian Federation), i.e.:

The subject of the contract for the provision of services for compensation (according to Articles 432, 703, 779 of the Civil Code of the Russian Federation) are specific services, therefore it should be clear from the contract what services will be provided.
Other conditions that are provided for in industry regulations (for example, the Law of December 30, 2008 No. 307-FZ “On Auditing Activities”, the Law of November 24, 1996 No. 132-FZ “On the Basics of Tourism Activities in the Russian Federation”, the Law “On Education in RF”, etc.) or the parties consider it essential (according to Article 432 of the Civil Code), i.e. such conditions under which, at the request of one of the parties, an agreement must be reached.

Contract for services

Civil Code, the provisions on the contract and household contract are applicable, in accordance with paragraph 1 of Art. 711 of the Civil Code, the contract may also provide for an advance payment, both in full and in part (Article 735 of the Civil Code). Prepayment is due before the service is rendered. For its introduction, a certain period is also set - for example, within 5 days after the signing of the contract.

The final settlement, as a rule, is made based on the results of the provision of services by the contractor. Compensation for expenses - how is their cost reflected in the contract? In the conditions on the procedure for settlements under a service agreement, a requirement to compensate the contractor's expenses may be displayed (clause 2 of article 709 of the Civil Code). Also, in contracts for the provision of services for a fee, the price may not be displayed - then the customer will have to pay for the services received at a comparable cost for a similar type of service (p.
3 art. 424 GK).

The procedure for settlements under the service agreement

Compensation of expenses - how are their costs reflected in the contract? In the conditions on the procedure for settlements under a service agreement, a requirement to compensate the contractor's expenses may be displayed (clause 2 of article 709 of the Civil Code). Also, in contracts for the provision of services for a fee, the price may not be displayed - then the customer will have to pay for the services received at a comparable cost for a similar type of service (p.
3 art. 424

GK). Therefore, in order to avoid misunderstandings in the future, it is recommended to immediately clearly state in the contract how, in what amount, the contractor's remuneration is paid and how his costs are compensated by the customer (they are included in the price of the contract or paid extra when providing documents confirming the expenses). So, the contractor's expenses can be expressed as a percentage of the amount of remuneration, and can be calculated according to the estimate or in fact - in rubles.

Payment procedure in the service agreement

The price of this agreement consists of remuneration to the Contractor in the amount of () rubles. And the amount of the Contractor's costs in the amount of () rubles. 3.2.
The price of this agreement is: RUB. 3.3. Payment by the Customer to the Contractor of the price of the contract is carried out by transferring funds to the settlement account of the Contractor specified in this contract. 4. Liability of the parties 4.1. For violation of the term for the provision of the Services specified in paragraph.
1.3 of this agreement, the Contractor pays the Customer a fine in the amount of % of the contract amount and a penalty at the rate of % of the contract amount for each day of delay. 4.2. Measures of responsibility of the parties not provided for in this agreement are applied in accordance with the norms of civil law in force in the territory of Russia.
4.3. The payment of the penalty does not release the Contractor from the fulfillment of the non-obligations or the elimination of violations. 5.

Rules and procedure for payment under a service agreement

For its introduction, a certain period is also set - for example, within 5 days after the signing of the contract. The final settlement, as a rule, is made based on the results of the provision of services by the contractor. Price and calculations software to his desires and needs. The Contractor shall not be liable for any losses, damages, regardless of the reasons for their occurrence, (including, but not limited to, special, incidental or consequential damages, losses associated with lost profits, interruption of commercial or production activities, loss of business information , negligence, or any other damages) arising from the use or inability to use the software.

Price and settlements contract for the provision of services

Limited Liability Company "IT-Expert" (LLC "IT-Expert"), hereinafter referred to as the "Contractor", represented by Director Murzin Alexey Nikolaevich, acting on the basis of the Charter, and (name of organization) hereinafter referred to as the "Customer", represented by , acting on the basis of (position, full name), collectively referred to as the “Parties”, and individually as the “Party”, have concluded this Agreement (hereinafter referred to as the “Agreement”) as follows:

Subject of this Agreement

The Contractor undertakes to provide services for the implementation of software (CRM-systems), and the Customer undertakes to accept and pay for them. The stages and terms of joint (type) actions of the Contractor and the Customer are given in Appendix No. 1, which is an integral part of this Agreement.

Service Agreement

The Customer pays for the Services in the following order (choose the necessary one / it is possible to establish a different payment procedure) - before the Contractor begins to provide the Services (advance payment). — within days after the signing by the Parties of the Certificate of acceptance and delivery of the Services rendered. - part of the cost of the Services in the amount of () rubles, including VAT () rubles, the Customer pays before the start of the provision of services by the Contractor (advance payment), the remaining part of the cost of the Services in the amount of () rubles, including VAT () rubles ., The Customer pays within days after the signing by the Parties of the Certificate of acceptance and delivery of services rendered. 3.3. All settlements under the Agreement are made in a cashless manner by transferring funds to the settlement account specified by the Contractor. The Customer's payment obligations are considered to be fulfilled on the date the funds are credited to the correspondent account of the Contractor's bank. 4.

Contract for the provision of services

Types of remuneration under a service agreement As for the prescribed conditions for remuneration to the contractor for the services rendered, they can be different:

Payment of the agreed amount upon completion of the contract. The parties, as a rule, stipulate the term of payment - for example, within 3 days after signing the act on the provision of services.
Payment of remuneration and compensation of expenses of the contractor.

They can be paid on the same day on the basis of an invoice issued by the contractor, or remuneration can be paid as a result of the performance of services, and compensation - in the course of the contract or later, after the provision of all supporting documents.
Prepayment - in one hundred percent or in some part (50%, 25% or a fixed amount). Due to the fact that the contracts for the provision of services, according to Art.

Standard contract for the provision of services

Attention

Contract for the provision of services They can be paid on the same day on the basis of an invoice issued by the contractor, or remuneration can be paid as a result of the performance of services, and compensation - in the course of the contract or later, after the provision of all supporting documents.

Prepayment - in one hundred percent or in some part (50%, 25% or a fixed amount). Due to the fact that, according to Article 783 of the Civil Code, the provisions on contracting and domestic contracting are applicable to contracts for the provision of services, in accordance with paragraph

1 st. 711 of the Civil Code, the contract may also provide for an advance payment, both in full and in part (Article 735 of the Civil Code). Prepayment is due before the service is rendered.

For example, payment for legal services may not depend on what a court decision will be made as a result of the provision of such services. Thus, its subject matter belongs to the essential terms of the contract, and the legislator has not secured the achievement of a certain result for it. As a subject, the implementation of the ordered type of activity by the contractor is implied, for which remuneration must be paid. Based on the clarifications of the Constitutional Court, it can be concluded that the parties, when concluding an agreement on the provision of services for a fee, are free to choose the price, procedure and amount of payment, as well as the timing of performance.

Important

At the same time, the type of services provided, which is the subject of the contract, cannot be changed even by agreement of the parties. But the amount and timing of payment can vary even in the process of fulfilling the contract - by making changes on a bilateral basis.

The procedure for payment under the contract for the provision of services

The provisions of Chapter 39 of the Civil Code of the Russian Federation do not establish any special requirements regarding the terms of the contract for the provision of services for a fee on the terms and procedure for payment. By virtue of paragraph 1 of Art. 781 of the Civil Code of the Russian Federation, the content of the relevant conditions is determined at the discretion of the parties.

In particular, the payment period may be determined by the methods provided for in Art. 190 of the Civil Code of the Russian Federation (by indicating a calendar date, a period of time or an event that must inevitably occur). The moment the customer has an obligation to pay for the services rendered may also be due to the need for the performer to perform certain actions (for example, invoicing). In this case, it is assumed that such actions must be performed by the contractor within the time period stipulated by the contract, and in its absence, within a reasonable time (clause 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2014 N 165, resolution of the Ninth AAC dated January 31, 2017 N 09AP-57453/16). At the same time, the moment when the customer's obligation to pay for services arises cannot be made dependent on the receipt of the necessary financing. Such a condition does not indicate an agreement on the payment term (Decree of the Twelfth AAS dated August 28, 2013 N 12AP-6963/13), which in this case should be determined in accordance with Art. 314 of the Civil Code of the Russian Federation.

According to Art. 783 of the Civil Code of the Russian Federation, if this does not contradict the provisions of Chapter 39 of the Civil Code of the Russian Federation, as well as the features of the subject matter of the contract for the provision of services for a fee, general provisions Civil Code of the Russian Federation on the contract and provisions on household contracts (paragraphs 1 and 2 of Chapter 37 of the Civil Code of the Russian Federation), including Art. 711 of the Civil Code of the Russian Federation. Therefore, unless otherwise follows from the contract for the provision of services for compensation and the nature of the relationship, the customer is obliged to pay the contractor the agreed price after the counterparty has duly fulfilled the obligations stipulated by the contract (that is, after the provision of services). The contractor has the right to require the customer to pay an advance or a deposit only in cases and in the amount specified in the law or the contract (clause 2, article 711 of the Civil Code of the Russian Federation). In other cases, the customer's failure to fulfill the obligation to pay an advance provides the contractor with the rights provided for in paragraph 2 of Art. 328 of the Civil Code of the Russian Federation.

Paragraph 2 of Art. 781 of the Civil Code of the Russian Federation provides that in case of impossibility of performance due to the fault of the customer, the services are payable in full (decisions of the Arbitration Court of the North-Western District of 13.05.2016 N F07-2670 / 16, the Arbitration Court of the Moscow District of 09.03.2016 N F05- 1612/16). Otherwise, it may be provided by law or an agreement for the provision of services for a fee (decree of the AC of the East Siberian District of October 28, 2016 N F02-5694 / 16). If the impossibility of performance arose due to circumstances for which none of the parties is responsible, and otherwise is not provided by law or the contract for the provision of services for compensation, the customer reimburses the contractor for the expenses actually incurred by him (clause 3 of article 781 of the Civil Code of the Russian Federation).

Tax Code of the Russian Federation). Therefore, when issuing an advance to an individual working under a civil law contract, the organization, as a tax agent, must withhold personal income tax at the time of the actual transfer of income. in case No. А40-66058/09-140-443, by Ruling of the Supreme Arbitration Court of the Russian Federation dated April 14, 2010 No. VAC-3976/10, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation was denied). However, due to the final unresolved this issue the author recommends that personal income tax be withheld from advance payments under civil law agreements. Moreover, in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 16, 2009 N 1660/09, which considered the issue of the date of recognition of income by an individual entrepreneur, the highest court recognized as justified the reflection of an individual entrepreneur in the tax base income, incl.

Taxation of a contract for the provision of services for a fee with an individual

Tax Code of the Russian Federation): for oneself and a child. In addition, when calculating personal income tax on remuneration paid under a civil law contract, the contractor can also be provided with a professional tax deduction in the amount of documented expenses associated with the execution of the contract (clause 2 of article 221 of the Tax Code RF). Moreover, the deduction is provided only to the contractor - a tax resident of the Russian Federation (clause 3 of article 210 and clause 1 of article 224 of the Tax Code of the Russian Federation), provided that he submits a corresponding application to the accounting department (Article 221 of the Tax Code of the Russian Federation). However, be careful, professional deduction can be provided only if the customer organization does not compensate the contractor for the costs under a civil law contract (Letter of the Ministry of Finance of Russia dated 04.21.2008 N 03-04-06-01 / 96). In addition, not all contractors can be provided with a professional deduction under civil law contracts.

Features of the contract for the performance of works (services) with an individual

For example, if the service is directly related to mobile communications, then when signing the agreement, it is necessary to refer to the Federal Law “On Communications”. Public contracts refer to the Federal Law “On Protection of Consumer Rights”. Is it possible to conclude a contract for the provision of services with an individual Russian legislation allows the possibility of signing a contract for the provision of services with an individual.
The form of the contract for the provision of services can be downloaded here. At the same time, it is necessary to pay attention to numerous nuances in this matter.

Let's consider them in more detail. Essential terms According to the Russian Civil Code, the essential terms of an agreement include:

the subject of the transaction;
service provision period.

If the text of the agreement ignores these conditions, then it is considered as such as void with all the ensuing consequences.

Payments under civil law contracts: taxes, deductions, contributions

Moscow dated December 14, 2009 N 20-14 / 3 / 131685). The organization must transfer the tax when paying remuneration (clause 6 of article 226 of the Tax Code of the Russian Federation): - in cash - on the day the money is actually received in the bank; - in non-cash form - on the day the money is transferred to the bank account of the contractor. However, in addition to the usual transfer of remuneration, a civil law contract may provide that the contractor is paid an advance or a deposit. Neither financial nor tax authorities have ever commented on advance payments. But in the Decree of the FAS of the West Siberian District of 10/16/2009 in case N A03-14059 / 2008, the judges concluded that, according to paragraph 1 of Art. 208 of the Tax Code of the Russian Federation, remuneration for work performed (service rendered) refers to income subject to personal income tax. In this case, income arises only after the performance of work (provision of services).

GPC agreement with an individual - tax obligations of the customer

Often, individuals under such agreements work seven days a week in order to earn money as soon as possible. As for the advantages, they distinguish:

the ability to choose your own work schedule;
It is possible to independently set the amount of payment for the services provided.
the ability to protect their interests in court in case of non-fulfillment of their obligations by the customer.

As you can see, there are advantages and disadvantages. It is up to the individuals themselves to conclude such agreements or not, depending on the specific situation. In conclusion, I would like to note that today it is no longer a rarity to sign this type of agreement.

However, as practice shows, often such documents can be challenged without problems in court, since it contains many errors.

Questions and answers on accounting

6 p. 1 art. 346.16 of the Tax Code of the Russian Federation, expenses for the purposes of the simplified tax system include labor costs in the manner prescribed for the calculation of corporate income tax, Art. 255 of the Tax Code of the Russian Federation (clause 2 of article 346.16 of the Tax Code of the Russian Federation). On the basis of clause 21 of Art.

Treaty
on the provision of consulting services

date and place of signing

Hereinafter we refer to __ as the “Customer”, represented by _________________, acting __ on the basis of _________________, on the one hand, and _________________, hereinafter referred to as the “Contractor”, represented by _________________, acting __ on the basis of _________________, on the other hand, collectively referred to as the “Parties”, and each individually - the "Party", have concluded this Agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this Agreement, the Contractor undertakes to provide consulting services to the employees of the Customer in the manner and on the terms established by this Agreement.

1.2. The Customer undertakes to pay for the Contractor's services in the manner, on time and on the terms specified in this Agreement.

1.3. The Contractor provides the Customer with the following services:

1.3.1. ________________.

1.3.2. ________________.
Option: The list of services, their volume and cost, last name, first name, patronymic (or: list) of the consulted employee(s), forms of consultation are determined by the Parties in Appendix No. 1 to this Agreement, which is its integral part.

1.4. Services can be provided by the Contractor in stages.

1.5. Services are provided at the location of the Contractor (city ___________). If necessary, travel to other settlements The Customer pays for the travel and accommodation of the Contractor based on:
— tickets: _________________________;
– accommodation (hotel): ________ rubles per day;
- food: ________ rubles per day.

1.6. All costs associated with the implementation of this Agreement, the Contractor bears independently at the expense of his remuneration.

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The contractor is obliged:

2.1.1. Provide consulting services specified in clause 1.3 of this Agreement (option: Appendix No. 1 to this Agreement) in a timely manner and in full.

2.1.2. Provide services in compliance with applicable laws.

2.1.3. Appoint persons responsible for advising the Customer's employees and, if necessary, submit samples of their signatures to the Customer.

2.1.4. Respect the confidentiality of the information provided by the Customer in accordance with Section 5 of this Agreement.

2.1.5. Issue invoices to the Customer for payment for services in the manner prescribed by this Agreement.

2.2. The performer has the right:

2.2.1. Require from the customer necessary information and documents, make copies of the documents provided by the Customer in order to fulfill obligations under this Agreement.

2.2.2. At any time, replace persons responsible for advising the Customer's employees with others with equivalent professional qualifications (option: with prior notification of the Customer).

2.2.3. Require the Customer to provide the necessary conditions for work in accordance with Appendix No. 2 to this Agreement both before and during the provision of services.

2.2.4. Suspend the provision of services under this Agreement in the event that the Customer violates the terms of payment for services until the receipt of funds to the account of the Contractor, as well as in cases where there are no necessary conditions for work, in accordance with Appendix No. 2 to the Agreement.

2.3. The customer is obliged:

2.3.1. Provide the Contractor with the necessary conditions for the provision of services specified in Appendix No. 2 to this Agreement.

2.3.2. Provide the Contractor with the information, documents, powers necessary to fulfill its obligations under this Agreement, in accordance with written and oral requests of authorized representatives of the Contractor.

2.3.3. Do not give instructions to persons responsible for advising the Customer's employees on the provision of services.

2.3.4. Provide the Contractor with a list of authorized employees and samples of their signatures who have the right to sign the Certificate of Services Rendered on behalf of the Customer.

2.3.5. Pay for the services of the Contractor in the manner and terms established by this Agreement.

2.3.6. During the term of this Agreement and within __ months after its expiration, do not take actions aimed at transferring the Contractor's employees to the Customer.

2.4. The customer has the right:

2.4.1. Require the Contractor to provide information on the progress of the execution of this Agreement.

2.4.2. Independently make a decision on the advisability of using the suggestions and recommendations of the Contractor in their work.

2.4.3. Clarify and adjust the desired results of the services provided in the event of a significant change in the situation.

2.5. The Contractor, at the request of the Customer, is obliged to:

2.5.1. Submit to the Customer during the execution of this Agreement materials and conclusions in in electronic format on magnetic media, and based on the results of the provision of services under this Agreement - written materials and conclusions.

2.5.2. Participate in the discussion of the conclusion.

3. COST OF SERVICES AND PROCEDURE OF PAYMENTS

3.1. The cost of services provided by the Contractor under this Agreement is:

3.1.1. _______ (_________) rubles for the provision of the service provided for in paragraphs. 1.3.1 of this Agreement.

3.1.2. _______ (_________) rubles for the provision of the service provided for in paragraphs. 1.3.2 of this Agreement.
Option: The cost of services provided by the Contractor under this Agreement is determined in Appendix No. 1 to this Agreement.

3.2. The cost of the Contractor's services is paid by the Customer in the following order:

3.2.1. Prior to the start of the provision by the Contractor of the services provided for by this Agreement (option: Appendix No. 1 to this Agreement), the Customer transfers to the Contractor an advance payment in the amount of _______ (_______) rubles (option: ___% of the total cost of the services provided).

3.2.2. The remaining part of the cost of services is paid by the Customer after the signing of the Certificate of Services in accordance with clause 4.4 of this Agreement, after the invoice is issued by the Contractor.
Option: The cost of the Contractor's services is paid by the Customer in the following order: by pre-payment of the cost of services for the month within ___________ banking days from the date of invoicing by the Contractor.

3.3. If the Contractor provides services in stages, the Customer transfers to the Contractor an advance payment in the amount of ______ (________) rubles (option: ___% of the cost of the stage to be performed).
Payment of the remaining part of the cost of the stage is made by the Customer after the signing of the Act for the provision of services for each stage in accordance with clause 4.4 of this Agreement, after the invoice is issued by the Contractor.

3.4. The Customer pays the cost of services on the basis of invoices issued by the Contractor by transferring funds to the Contractor's settlement account within ____ (____) banking days from the date of the invoice.

3.5. Services are considered paid after the receipt of funds to the settlement account of the Contractor (option: from the moment the funds are debited from the Customer's account), which is confirmed by an extract from the bank servicing the Contractor.

3.6. If the Contractor provides services under this Agreement outside the city of _________________, the cost of providing the Contractor's services increases by the amount agreed by the Parties in an additional agreement, which will be an integral part of this Agreement.

4. PROCEDURE FOR THE PROVISION OF SERVICES. THE ACT OF PROVIDING SERVICES

4.1. The Contractor starts rendering services under this Agreement subject to receipt of an advance payment to the Contractor's settlement account in accordance with clause 3.2 of the Agreement and subject to the Customer creating the necessary conditions for the work of the Contractor's employees in accordance with Appendix No. 2 to the Agreement.

4.2. If the services are provided in stages, the Contractor proceeds to the next stage, subject to the receipt of an advance in accordance with clause 3.3 of the Agreement and after the Customer creates the necessary conditions for the work of the Contractor's employees in accordance with Appendix No. 2 to the Agreement.

4.3. Compliance of the conditions for work created by the Customer with the requirements of the Contractor is determined by the representative of the Contractor by checking the actual conditions. In the event that the conditions for the work of the Contractor are not met or will be performed improperly, the representative of the Contractor no later than next day sends a written notice to the Customer indicating the deficiencies found. The procedure for agreeing on conditions is repeated until the conditions created by the Customer meet those required by the Contractor.

How to make payments under contracts in 2018

Upon completion of the provision of services or its stage, the Contractor submits to the Customer an Act on the provision of services (Act on the provision of services at a certain stage), which must be considered by the Customer within ____________ days from the date of receipt and, in the absence of objections, signed by the Customer.
If the Certificate is not signed by the Customer within the specified period and the Customer does not submit objections to the Certificate in writing, the Certificate unilaterally signed by the Contractor shall be considered confirmation of the proper provision of services under the Agreement.

4.5. In the event that the Customer provides a justified refusal to sign the Act on the provision of services (the Act on the provision of services at a certain stage), the Parties within ___________ days develop a unified decision on contentious issues and, if necessary, make changes to the Act on the provision of services or to the description of services provided for by the Agreement (option: provided for in Appendix No. 1 to the Agreement) by making the appropriate changes in additional agreements in accordance with clauses 6.2, 6.3 of this Agreement.

5. PRIVACY

5.1. The Parties hereby confirm that the information they exchange during the preparation, as well as in the process of execution of this Agreement, is confidential.

5.2. The list of confidential information, measures taken to ensure its safety, as well as other conditions and requirements related to the safety of confidential information, are specified by the Parties in the relevant supplementary agreement signed by the Parties.

6. VALIDITY, GROUNDS FOR CHANGE

AND TERMINATION OF THE AGREEMENT

6.1. This Agreement shall enter into force from the date of its signing by both Parties.
Terms of services:
Beginning: "___"_________ ___

End: "___" ________ ___

6.2. The provisions of this Agreement may be amended or supplemented only on the basis of a written agreement between the Customer and the Contractor, drawn up as an additional agreement to this Agreement, signed by authorized representatives of the Parties.

6.3. In case of deviation from the content and scope of the services provided, specified in clause 1.3 of this Agreement (option: provided for in Appendix No. 1 to this Agreement), the Parties make appropriate changes to the description of services in the form of drawing up and signing an appropriate additional agreement.

6.4. Early termination of this Agreement is allowed by mutual written agreement of the Parties.

6.5. The Customer has the right to refuse to perform the Agreement at any time, subject to payment to the Contractor of the expenses actually incurred by him.

6.6. The Contractor has the right to refuse to perform the Agreement, subject to full compensation to the Customer for losses.

7. RESPONSIBILITIES OF THE PARTIES

7.1. If the Customer violates the deadline for paying the cost of the Contractor's services, established by this Agreement, the Contractor has the right to present to the Customer a demand for payment of a penalty in the amount of ___% of the amount not paid on time for each day of delay in payment.

7.2. In case of violation by the Customer of the obligation established by paragraphs. 2.3.6 of this Agreement, the Contractor has the right to present to the Customer a requirement to pay a fine in the amount of __________________.

7.3. The Parties are released from liability for partial or complete failure to fulfill obligations under this Agreement, if this failure was the result of force majeure circumstances that arose after the conclusion of the Agreement, which the Parties could neither foresee nor prevent by reasonable measures.

7.4. Force majeure circumstances include events on which the Parties cannot influence and for the occurrence of which they are not responsible, such as: natural disasters, fires, emergency social events (war, riots, etc.), government regulations or orders of state bodies that make it impossible to fulfill the obligations of the Parties under this Agreement.

8. DISPUTES RESOLUTION

8.1. All disputes and disagreements arising in the process of execution of this Agreement shall be resolved by the Parties through negotiations.

8.2. If the Parties do not come to an agreement on controversial issues, disputes are referred to the Arbitration Court of ________ in the manner prescribed by applicable law Russian Federation.

9. OTHER TERMS

9.1. The Parties agreed that the documents that they will exchange in the process of fulfilling this Agreement, transmitted by facsimile, are recognized as having legal force in the following cases:
- a message received by fax is recognized as authentically originating from the Party under the Agreement if it contains the marks of the fax machine of the Sending Party with its name and telephone number;
— a message sent by fax is confirmed by a report from the fax machine of the Sending Party containing information about the receipt of the message by the Receiving Party.

9.2. In matters not provided for by this Agreement, the Parties shall be guided by the current legislation of the Russian Federation.

9.3. This Agreement is concluded in two copies, one for each of the Parties.

10. ADDRESSES, DETAILS AND SIGNATURES OF THE PARTIES

Is it possible to pay obligations under the transaction to a third party?

The condition on the payment procedure determines in what period (before or after the transfer of work), in what parts (or at a time) and who will pay for the work.

Coordination of payment procedure for work

To agree on the payment procedure, the parties must establish the following in the contract:

- due date;

- the moment of fulfillment by the customer of the obligation to pay (the moment of payment);

- the term and amount of payments when paying in installments;

- a condition on financing the work by a third party (payer, investor).

If payment for work is carried out in a non-cash form, then in the relations associated with such calculations, banks are directly involved, with which the parties have concluded relevant agreements. Their participation, especially in the case of revocation of a banking license, affects the fulfillment of the obligation to pay for work.

If the terms of the payment procedure are not agreed

In this case, the customer will be obliged to personally pay for the work performed after the final delivery of its result, provided that the work is performed properly and within the agreed time, or with the consent of the customer ahead of schedule (clause 1, article 711 of the Civil Code of the Russian Federation).

- advance payment (advance payment) - the work must be paid in full or in part within a certain period before the final delivery of the result of the work or its individual stages;

– payment for the work after the final delivery of the result of the work – the work is paid within a certain period after the delivery of its result.

If the payment term is not agreed

The customer must pay for the work after the final delivery of its result (clause 1 of article 711 of the Civil Code of the Russian Federation). The specific deadline for fulfilling the obligation to pay in Art. 711 of the Civil Code of the Russian Federation is not specified. In judicial practice, there is no single position on how the payment deadline for the work performed is determined if it is not agreed by the parties and, accordingly, at what point the customer is late in fulfilling the obligation to pay. So, the court may recognize that the customer must pay for the work on the day of signing the act of acceptance of the transfer of its result and is responsible for the delay in payment, starting from the next day after signing the act. Some courts believe that the payment term, not established by the contract, is determined according to the rules of paragraph 2 of Art. 314 of the Civil Code of the Russian Federation. In this case, the obligation to pay, not fulfilled within a reasonable time, must be fulfilled within seven days after the presentation of the relevant request. Thus, the court can determine that the delay occurs after seven days after the customer receives the invoice issued by the contractor.

In connection with the different interpretation by the courts of paragraph 1 of Art. 711 of the Civil Code of the Russian Federation when setting the payment deadline Negative consequences arise for the contractor. Court, determining the payment period in accordance with paragraph. 2 Article. 314 of the Civil Code of the Russian Federation, may refuse to collect interest under Art. 395 of the Civil Code of the Russian Federation, if the contractor did not send the customer a demand for payment of the debt, or reduce their amount, excluding from the calculation the period until the expiration of seven days from the date of sending such a demand.

Ways to determine the payment term

The payment term must be determined in the contract according to the rules of Art. Art. 190 - 194 of the Civil Code of the Russian Federation:

- an indication of a calendar date or an event that must inevitably occur;

- the expiration of a period of time calculated from the next day after the calendar date or the occurrence of the event that determined the beginning of the period (Article 191 of the Civil Code of the Russian Federation).

If the payment term is determined in violation of the rules of art. Art. 190 - 194 of the Civil Code of the Russian Federation

The condition of the agreement on the payment term is void as contrary to the law (Article 168 of the Civil Code of the Russian Federation) and is not subject to application. In this case, the customer must pay for the work after the final delivery of its result (clause 1, article 711 of the Civil Code of the Russian Federation) and, in case of delay, bears the risk of paying a penalty under the contract, or interest for the use of other people's funds (art.

On September 1, 2013, Federal Law No. 100-FZ of May 7, 2013 “On Amendments to Subsections 4 and 5 of Section I of Part One and Article 1153 of Part Three of the Civil Code of the Russian Federation” came into force. The changes concern, among other things, the qualification of invalid transactions and the consequences of their invalidity. In particular, according to the new edition of Art. 168 of the Civil Code of the Russian Federation, transactions that violate the requirements of a law or other legal act, as a general rule, are voidable, and not void (clause 1, article 168 of the Civil Code of the Russian Federation). The law may provide for other consequences of the violation that are not related to the invalidity of the transaction, as well as exceptions to the voidability rule. Such an exception, in particular, is the provision of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation that a transaction that does not comply with the requirements of the law is void if it infringes on public interests or the rights and legitimate interests of third parties.

Consequently, the condition on the term of payment for work is voidable if it does not fall under the cases established by law in which such a condition should be considered void, and there are no other consequences in the law that are not related to its invalidity. By virtue of paragraph 2 of Art. 166 of the Civil Code of the Russian Federation, one of the parties to the contract or other persons specified in the law can declare a voidable condition invalid.

This rule applies to contracts concluded after September 1, 2013 (clause 6, article 3 of Federal Law No. 100-FZ of May 7, 2013).

The condition on the term is recognized as contradictory to Art. 190 of the Civil Code of the Russian Federation, if the period is determined by an indication of events that do not have a sign of inevitability, for example:

- receipt by the customer of funds from any third party that is not a party to the contract, in particular, if a subcontract is concluded, payment for which depends on the financing of work by the customer under the general contract;

- the commission of any actions by a third party.

Legal group "Yursodeistvie": Legal services and case management in the arbitration court http://pgu.guru for the collection of debts for work performed, services rendered, advance payment, losses due to violation of the deadline for performing work.

Possible payment options under the contract

When changing the legal address, bank details, the Contractor is obliged to notify the Customer in writing within two weeks.

9.4. This Agreement is made in two copies: one for the Customer and one for the Contractor.

10. Legal addresses and bank details of the parties:

Payment for delivered goods

Date of writing: 2014-03-11

Despite its apparent simplicity, the supply agreement is a multifaceted agreement with many legal nuances and pitfalls. One of these nuances is, of course, the procedure for paying for delivered goods. As you know, the payment terms are not an essential condition of the supply contract, however, the settlement procedure is still the most important component of the contractual relationship.

By default, when determining the order and method of payment for goods under a supply agreement, the parties must be guided by general rules about buying and selling. However, payment under a supply agreement also has a number of independent features.

According to Art. 516 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)

The buyer pays for the delivered goods in compliance with the procedure and form of payment stipulated by the supply agreement. If the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders.

In this regard, it is advisable to start the procedure for settlements under a supply agreement by establishing the form of settlements, which the parties have the right to choose independently. Given the paid nature of the supply contract, there are two main forms

Settlements for the delivered goods are carried out in cash (in cash or non-cash)
Payments for the delivered goods are carried out with the help of counter agreements (deliveries, services, contracts, leases, etc.)

If payment for goods is made in a non-cash manner, then the parties have the right to make payments not only through a bank, but also through any other credit institution, as indicated in Art. 861, 862 of the Civil Code of the Russian Federation.

When making settlements in cash, the parties should keep in mind that for legal entities and individual entrepreneurs, payments are made in a limited amount, namely, for one transaction in the amount of not more than 100,000 rubles.

Instruction of the Bank of Russia dated June 20, 2007 N 1843-U

Settlements on the territory of the Russian Federation, in accordance with Art. 140, 317 of the Civil Code of the Russian Federation, are produced in rubles. However, the use of foreign currency between the parties to the contract is allowed under foreign trade contracts in which one of the parties is a foreign person - not a resident.

Federal Law No. 173-FZ of December 10, 2003 “On Currency Regulation and Currency Control”

If the parties agree on the price of the goods in conventional units or foreign currency, then for the correct calculation, for the payment amounts in the contract, it is also necessary to agree on the exchange rate or the rate of y. e. against the ruble. If the parties have not agreed on the foreign exchange rate or the y. e. in relation to the ruble, the payment, according to paragraph 2 of Art. 317 of the Civil Code of the Russian Federation, must be carried out at the official rate of the relevant currency or conventional monetary units on the day of payment.

Clause 13 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 4, 2002 N 70 “On the application by arbitration courts of Articles 140 and 317 of the Civil Code of the Russian Federation”

As mentioned above, the parties have the right to establish in the contract that the delivered goods are partially or fully paid for by the transfer of goods on the other hand (or by performing any work, rendering services, etc.). In this case, the parties need to agree on all the essential conditions for contracts of the corresponding type, as well as take into account the price of counter obligations.

It can be formulated something like this:

“Payment for the Equipment supplied by the Supplier shall be made by counter delivery of the goods by the Buyer. The buyer is obliged to deliver the following goods: __________________ in the amount of __________ copies, up to ________________.

The price of the Goods subject to counter delivery is recognized as equal to the price of the Equipment determined by this agreement.

Further, after establishing the form of payment, the parties to the contract should agree on the settlement procedure, which should contain information about when (that is, at what time before or after the transfer of the goods), in what parts (or at a time) and who will pay for the goods. For the correct coordination of the procedure for settlements, the parties to the contract are strongly recommended to indicate:

Payment term for goods

It should be noted that if the contract does not agree on the procedure for paying for the delivered goods, the buyer is obliged to pay for the goods immediately before or after receiving them, without waiting for the supplier's demand for payment. Otherwise, the buyer runs the risk of "getting" the interest provided for in Art. 395 of the Civil Code of the Russian Federation.

The payment term, depending on the ratio of the moment of payment and the transfer of goods, can be set in 3 ways. Schematically, this can be represented as follows:

Prepayment is beneficial primarily to the supplier, as it reduces its risks (insolvency of the buyer).

The procedure for settlements under the service agreement

For the buyer, on the contrary, the risks associated with late delivery increase. In this regard, when paying in advance, attention should be paid to the correct setting of the terms for advance payment and delivery of goods, as well as liability for late delivery. Deadlines are set according to the rules of Art. 190-194 of the Civil Code of the Russian Federation and are determined in one of three ways:

calendar date
Expiration of a period of time
An indication of an event that must inevitably occur

Payment for goods on credit, in contrast to advance payment, is of greater interest to the buyer, since he gets the opportunity to use, dispose of the goods (subject to the restrictions established by the contract or law) before paying the supplier money for the goods.

When paying for goods on credit, the contract usually determines:

Payment term for goods sold by credit
Interest to be accrued for the use of a commercial loan (if any)
Pledge of goods sold on credit (if any)
Transfer of ownership of goods sold on credit
Ensuring the fulfillment by the buyer of the obligation to pay for the goods on credit (if any)

Payment for goods in installments is a type of condition for paying for goods on credit.

The difference is that with installment payment for goods is not made at a time, but in installments. At the same time, according to Art. 489 of the Civil Code of the Russian Federation should be borne in mind:

An agreement on the sale of goods on credit with the condition of payment by installments is considered concluded if, along with other essential conditions the sale and purchase agreement specifies the price of the goods, the procedure, terms and amounts of payments.

In addition to establishing in the contract the procedure for paying for the delivered goods, the parties also need to determine at what point the buyer is considered to have fulfilled his obligation to pay for the goods. The moment of payment can be determined:

The moment of crediting funds to the correspondent account of the supplier's bank (depositing funds to the supplier's cash desk
The moment of debiting funds from the correspondent account of the buyer's bank
The moment of crediting funds to the supplier's settlement account
The moment of debiting funds from the buyer's current account

It should be noted that with the last two options, there are some risks for the buyer and supplier, respectively. For example, an obligation will not be considered fulfilled until cash will not be credited to the supplier's settlement account, even if they are debited from the buyer's settlement account (this is possible, for example, when money is transferred to the supplier's account, which is closed at the time the buyer makes the payment).

By default, payment for the goods is made directly by the buyer. However, the contract may establish that all payments for the goods are made not by the buyer, but by another third party, for example, the recipient of the goods. At the same time, the parties must remember that, by virtue of paragraph 2 of Art. 516 of the Civil Code of the Russian Federation, the buyer remains the obligated person in the contract for payment for the goods. This entails for the parties to the contract that, legally, the supplier does not have the right to demand from the payer, who is not the buyer under the contract, to pay for the delivered goods, and the buyer, in turn, is liable to the supplier for late payment due to the fault of the payer - a third party.

Let's summarize.

There are two main forms of payment:

Settlements are carried out in cash
Settlements are carried out with the help of counter agreements

e. against the ruble.

When paying for goods with a counter obligation (agreement), the parties must agree on:

Subject of the counter agreement (name and quantity of goods for the supply agreement, name and scope of work performed for the contract, etc.)
The price of the goods (the cost of work for the contract, etc.)
Delivery time (terms of performance of works, etc.)

After agreeing on the form of payment, the parties should establish a settlement procedure in the contract, which should contain information about when (that is, at what time before or after the transfer of the goods), in what parts (or at a time) and who will pay for the goods. For the correct coordination of the procedure for settlements, the parties to the contract are strongly recommended to indicate:

Payment term for goods
The moment the buyer fulfills the obligation to pay for the goods (the moment of payment)
Possibility of payment for goods by the recipient (payer)

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