Basis for concluding a service agreement. A contract for the provision of services: how to draw up without errors

One of the ways to make a profit from entrepreneurial activities listed in paragraph 1 of Article 2 of the Civil Code of the Russian Federation is the provision of services.

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 (Article 779 of the Civil Code of the Russian Federation).

The rules of Chapter 39 of the Civil Code of the Russian Federation are designed to regulate an extensive, unlimited list of services, and apply to contracts for the provision of communication services, medical, veterinary, auditing, consulting, information services, training services, tourist services and others, with the exception of services provided under contracts:

§ contract;

§ performance of research, development and technological work;

§ transportation;

§ transport expedition;

§ bank deposit;

§ bank account;

§ calculations;

§ storage;

§ instructions;

§ commissions;

§ trust management of property.

The norms of the Civil Code of the Russian Federation provide for the possibility of applying to contracts for the provision of services for a fee, a number of provisions on the contract, if this does not contradict the specifics of the contract.

When concluding contracts for the provision of services for a fee, the parties should agree on a number of mandatory conditions, as well as check a number of circumstances related to the tax risks of the organization.

The Civil Code of the Russian Federation does not contain special rules governing the form of a contract for the provision of services for compensation. Therefore, we turn to the general provisions of civil law. According to Article 161 of the Civil Code of the Russian Federation, the following must be made in simple written form, with the exception of transactions requiring notarization:

§ transactions of legal entities between themselves and with citizens;

§ transactions of citizens among themselves for an amount exceeding at least ten times the amount established by law minimum size remuneration, and in cases provided for by law - regardless of the amount of the transaction.

Failure to comply with the simple written form of the transaction deprives the parties of the right, in the event of a dispute, to refer to evidence of the transaction and its conditions, but does not deprive them of the right to provide written and other evidence.

Failure to comply with the simple written form of a foreign economic transaction shall entail the invalidity of the transaction.

The contract for the provision of services is concluded, as a rule, in writing, by drawing up two copies, for each of the parties.

According to Article 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties, in the form required in the relevant cases, on all essential terms of the agreement.

Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

A contract for the provision of services for a fee can 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 an information letter dated September 29, 1999 No. 48 “On Certain Issues judicial practice arising from the consideration of disputes related to contracts for the provision of legal services.

Accordingly, the contract for the provision of services cannot be considered concluded without agreeing on the actions to be performed by the contractor or the activity that he is obliged to carry out is not indicated.

The subject of performance under the contract in question is the beneficial effect received by the customer from the performance by the contractor of certain actions or the implementation of certain activities by him.

The Civil Code of the Russian Federation does not impose any restrictions on the term of the contract for the provision of services for a fee.

The contract for the provision of services for compensation must provide for the initial period of activity to be carried out by the contractor, the deadline for the performance of the contract may not be provided, unless otherwise contradicts the essence of the contract. Thus, the term for the performance of the contract is determined by the agreement of the parties, but in most contracts for the provision of services for a fee, a deadline is also provided.

According to paragraph 1 of Article 408 of the Civil Code of the Russian Federation, proper performance terminates an obligation.

The Civil Code of the Russian Federation does not contain any restrictions regarding the subject composition under the contract for the provision of services, therefore, it is necessary to focus on general rules participation of citizens and legal entities in civil circulation. However, a special subject composition may be provided for by law or follow from the nature of the service.

The parties to this agreement are the contractor and the customer, both individuals and legal entities. Service providers must be business entities, registered with the tax authorities, which is confirmed by state registration data.

For certain types services provided for mandatory licensing activities. The list of types of activities for which compulsory licensing is provided is established by Article 17 of the Federal Law of August 8, 2001 No. 128-FZ “On Licensing Certain Types of Activities” (hereinafter Law No. 128-FZ).

According to article 780 of the Civil Code of the Russian Federation, the contractor is obliged to provide services personally. The obligation to “provide services in person” should be understood as the performance of a specific contract, without any intermediaries. This approach is associated with the existence of an inseparable connection between intangible services and the personality of the person providing them.

The contractor has the right, in agreement with the customer, to involve third parties, including this condition into a contract.

The terms and procedure for payment under the contract for the provision of services shall be established by agreement of the parties.

The contract must specify the price of the services to be rendered or methods of determining it.

In cases where the price is not provided for in the compensated contract and cannot be determined based on the terms of the contract, the performance of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods, works or services (paragraph 3 of Article 424 of the Civil Code of the Russian Federation) .

The existence of comparable circumstances that make it possible to unambiguously determine which price to be guided by must be proved by the interested party. If there are disagreements on the condition on the price and the parties fail to reach an appropriate agreement, the contract is considered not concluded.

With the consent of the customer, the work can be paid by him in advance at the conclusion of the contract in whole or in part.

Payment for the services performed is made in accordance with Article 781 of the Civil Code of the Russian Federation:

“The customer is obliged to pay for the services rendered to him on time and in the manner specified in the contract for the provision of services for compensation.

In case of impossibility of performance due to the fault of the customer, the services are subject to payment in full, unless otherwise provided by law or the contract for the provision of services for compensation.

In the event that the impossibility of performance arose due to circumstances for which none of the parties is responsible, the customer shall reimburse the contractor for the expenses actually incurred by him, unless otherwise provided by law or the contract for the provision of services for compensation.

Arbitration practice also indicates that in case of impossibility of performance due to the fault of the customer, services are payable in full, unless otherwise provided by law or a contract for the provision of services for compensation. (Resolution of the Federal Antimonopoly Service of the Urals District of February 8, 2005 in case No. F09-136/05-GK; Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District of July 30, 2003 in case No. A11-5878/02-K1-2/254).

The risk associated with accidental non-performance of the contract lies with the customer, unless otherwise provided by law or the contract, while the contractor has the right to claim only the expenses actually incurred by him.

One of the main duties of the contractor is the provision of the service stipulated by the contract. The contractor is obliged to provide services, observing the mandatory requirements specified in the contract. The law and other legal acts may provide for mandatory requirements for the quality of the result obtained as a result of the service provided under this agreement. In this case, the contractor acting as an entrepreneur is obliged to provide services in compliance with these mandatory requirements. In addition, the contractor (under the contract) may assume the obligation to provide services that meet quality requirements that are higher than those established, binding on the parties, requirements.

In the absence or incompleteness of the terms of the contract, the quality of the service performed must comply with the requirements usually imposed on services of the corresponding type (Article 721 of the Civil Code of the Russian Federation).

In addition, a law, other legal act, a contract for the provision of services for a fee or business practices may provide for a period for the result of the service provided, during which it must comply with the terms of the quality contract provided for in paragraph 1 of Article 721 of the Civil Code of the Russian Federation (warranty period).

In accordance with Article 716 of the Civil Code of the Russian Federation, the contractor is obliged to immediately notify the customer and, until he receives instructions from him, suspend the provision of services upon detection of:

Possible adverse consequences for the customer of the fulfillment of his instructions on the method of providing the service;

Other circumstances beyond the control of the contractor that threaten the quality of the service performed, or make it impossible to complete it on time.

The contractor, who did not warn the customer about the above circumstances, is not entitled to refer to these circumstances when the customer presents relevant requirements to him.

If the customer, despite a timely and justified warning from the contractor about the circumstances that impede the provision of services, does not take the necessary measures within a reasonable time to eliminate these circumstances, then the contractor has the right to refuse to perform the contract for the provision of services for compensation and demand compensation for the losses caused by its termination.

In cases where the service was performed by the contractor with deviations from the contract for the provision of services for compensation that worsened the result of the service, the customer has the right to demand:

§ commensurate reduction of the price set for the service;

§ provision of the service anew with compensation to the customer for the losses caused by the delay.

Requirements for the elimination of deficiencies within a reasonable time, as well as reimbursement of expenses for the elimination of deficiencies in the quality of the service, may be applied in individual cases, depending on the service.

If deviations in the provision of services from the terms of the contract for the provision of services for a fee, or other shortcomings in the result of the service, have not been eliminated within the reasonable time period established by the customer, or are significant and irreparable, the customer has the right to refuse to perform the contract and demand compensation for the damages caused (paragraph 3 of Article 723 of the Civil Code RF).

In the event that a warranty period is not established for the result of the service, claims related to the shortcomings of the service may be presented by the customer, provided that they were discovered within a reasonable time, but within two years from the date of transfer of the result of the service, unless other terms are established. law, contract or business practices.

In accordance with Article 727 of the Civil Code of the Russian Federation, a party that has received from the other, due to the fulfillment of its obligation under a contract for the provision of services for a fee, information about new solutions and technical knowledge, including those not protected by law, as well as information that can be considered as (Article 139 of the Civil Code of the Russian Federation ), is not entitled to communicate it to third parties without the consent of the other party. The procedure and conditions for the use of such information are determined by agreement of the parties.

The main obligation of the customer is to pay for services under the contract for the provision of services in the manner and within the time specified in the contract.

The customer has the right at any time to check the progress and quality of the services provided by the contractor, without interfering in his activities.

If the executor does not start the execution of the contract for the provision of services in a timely manner or performs the service so slowly that it becomes clearly impossible to complete it by the deadline, the customer has the right to refuse to perform the contract and demand compensation for losses.

If during the provision of the service it becomes obvious that it will not be performed properly, the customer has the right to set a reasonable time for the contractor to eliminate the deficiencies and, if this requirement is not fulfilled within the appointed time, to withdraw from the contract (paragraph 3 of Article 715 of the Civil Code of the Russian Federation).

The customer is also obliged, in cases stipulated by the contract, to assist the contractor in the performance of the service. If the customer fails to fulfill this obligation, the contractor has the right to demand compensation for the damages caused, including additional costs caused by downtime, or the postponement of the service, or an increase in the price of the service specified in the contract.

The Contractor has the right not to start rendering services, but to suspend the initiated actions in cases where the violation by the customer of his obligations under the contract for the provision of services for compensation prevents the proper execution of the contract by him, as well as in the presence of circumstances that clearly indicate that the fulfillment of these obligations will not be carried out in set time.

The contract for the provision of services is somewhat different from all others: it may be terminated not only by mutual consent, but also unilaterally. At the same time, the initiative to terminate the contract may belong to both the customer and the contractor. However, the consequences of presenting the corresponding requirement differ significantly. It depends on which party it (requirement) is presented.

Article 782 of the Civil Code of the Russian Federation enshrines the right to unilateral refusal to execute the contract, both the customer and the contractor.

The customer has the right to refuse to execute the contract for the provision of services for compensation, subject to payment to the contractor of the expenses actually incurred by him. The refusal of the customer to execute the contract may follow both before the start of the provision of the service, and in the process of its provision.

The customer's unilateral refusal to execute the contract for the provision of services for compensation does not terminate the customer's obligation to pay the contractor the necessary expenses that he has incurred on account of the services not yet rendered until the moment of the customer's unilateral refusal to perform the contract of services (paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 104 "Review of the practice of application by arbitration courts of the norms of the Civil Code of the Russian Federation on certain grounds for termination of obligations").

The contractor has the right to refuse to fulfill obligations under the contract for the provision of services for compensation only if the customer is fully reimbursed for losses.

Losses subject to recovery in accordance with paragraph 2 of Article 782 of the Civil Code of the Russian Federation are determined in accordance with the rules of Article 15 of the Civil Code of the Russian Federation and are subject to proof by the person claiming compensation for losses.

According to article 15 of the Civil Code of the Russian Federation, losses include:

Expenses that the person whose right has been violated has made or will have to make in order to restore the violated right;

Real damage;

Unearned income that the person would have received under normal circumstances.

civil turnover, if his right had not been violated (lost profit).

When determining losses, the prices that existed in the place where the obligation was to be performed, on the day the debtor voluntarily satisfies the creditor's claim, and if the claim was not voluntarily satisfied, on the day the claim was brought, are taken into account. Depending on the circumstances, the court may grant the claim for damages, taking into account the prices prevailing on the date of the judgment.

When determining the lost profit, the measures taken by the creditor to obtain it and the preparations made for this purpose are taken into account.

For more details on the procedure for concluding contracts for the provision of services for a fee, you can find in the book of CJSC "BKR-Intercom-Audit" "Agreement for the provision of services".

The concept and elements of the contract. 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 (clause 1 of article 779 of the Civil Code). As follows from the definition, this agreement is consensual, mutual (synallagmatic), reimbursable. An agreement under which the contractor performing the relevant entrepreneurial activity, provides a customer-customer with a service designed to meet the personal (domestic) needs of the latter, is public (Article 730, 783 of the Civil Code) * (488).

The parties to the contract for the provision of services for compensation are the contractor (service provider) and the customer (service recipient). In ch. 39 of the Civil Code does not contain any requirements for the subject composition of this agreement. Consequently, as a general rule, any entities (individuals and legal entities, public legal entities) can act as parties, taking into account their scope and nature of legal capacity and capacity. At the same time, in relation to certain varieties of this agreement, the legislator establishes special requirements relating primarily to the figure of the performer. Thus, activities for the provision of certain types of services (medical, veterinary and some others) are subject to mandatory licensing. Special requirements are imposed on the performers of audit services * (489), evaluation services * (490) and some others.

The subject of the contract is the service provided by the contractor. The condition about the subject has the character of the essential. It is considered agreed if the contract lists certain actions that the performer is obliged to perform, or indicates certain activities that he is obliged to carry out. With regard to the latter case, the range of possible actions of the performer can be directly indicated in the contract or determined on the basis of negotiations and correspondence preceding the conclusion of the contract, the practice established in the mutual relations of the parties, business customs, subsequent behavior of the parties, etc. * (491)

The price in the contract for the provision of services, as a rule, is determined by the parties and is free. However in certain cases the size of the price is regulated by the state * (492).

As a general rule, the price condition is not essential. In its absence in the contract, the price will be determined according to the rules of paragraph 3 of Art. 424 GK. The exception is cases when the service provided is unique and has no analogues. Since the provisions of Art. 424 of the Civil Code in such a situation are not able to adequately fill the missing agreement of the parties on the price, such absence means that the contract has not been concluded.

The price can be determined by drawing up an estimate (Article 709, 783 of the Civil Code).

The term for the execution of the contract for the provision of services for compensation is established by agreement of the parties, and in the absence of such an agreement, it is determined according to the rules of paragraph 2 of Art. 314 GK. However, often the specificity of the service rendered makes the term condition essential. Thus, in contracts for the provision of services for holding concerts, theatrical, sports or musical performances, in the absence of a deadline agreed by the parties, the contract should be considered not concluded. In many contracts that provide as a subject not an action, but the activity of the performer (educational services, the so-called subscription and other long-term services * (493), the term of the contract determines the time limits within which the services will be provided, and therefore the indication of this period is necessary .

The form of the contract for the provision of services for a fee, in the absence of special instructions, Ch. 39 of the Civil Code, is determined according to the general rules on the form of transactions (Articles 158-161 of the Civil Code).

At the same time, Art. 780 of the Civil Code establishes the presumption of personal provision of services. Engagement by the performer to the performance of the agreed action or the implementation of the activities stipulated by the contract of third parties is not allowed, unless otherwise provided by the contract. This presumption is general and applies to any contract for the provision of services for a fee, regardless of the specifics of its subject matter or subject composition. In all cases, the relevant actions (activities) carried out for the contractor by a third party are not considered as proper performance (clause 1 of article 313 of the Civil Code) and should not be paid.

The contractor is obliged to provide the service on time and in the proper place. Often, the nature of the service provided determines the place of performance of this obligation. So, it is obvious that the services for holding a theatrical event, watching a movie, etc. involve their provision in the appropriate premises (theatre, cinema). In other cases, the place of performance of the obligation to provide a service should be determined according to the general rules of Art. 316 GK.

The contractor is obliged to provide a service of adequate quality. Taking into account the specifics of the service as an object, the quality of the service is directly related to the actions that the contractor must perform. Accordingly, the assessment of the quality of the service provided should be carried out according to these actions themselves.

The customer is obliged to pay for the services provided by the contractor. As a general rule, payment should occur after the provision of services (clause 1 of article 781, clause 1 of article 711, article 783 of the Civil Code), however, by agreement of the parties, advance payment or payment in installments may be provided. If the contract does not establish a payment period, it is determined according to the rules of Art. 314 GK.

Since the customer's obligation is monetary, the general consequence of the customer's delay in payment is the obligation to pay interest under Art. 395 GK.

Special rules are established by the legislator regarding the consequences of the impossibility of providing the intended service. If such an impossibility arose due to the fault of the customer, he is obliged to pay for the services in full (clause 2 of article 781 of the Civil Code). In the event that the impossibility of performance arose due to circumstances for which none of the parties is responsible * (494), the customer reimburses the contractor only for the expenses actually incurred by him (paragraph 3 of article 781 of the Civil Code). These rules are dispositive and can be changed by law or contract.

When the impossibility of performance has arisen due to circumstances for which the performer is responsible (clause 1, 3 of article 401 of the Civil Code), he loses the right to both remuneration and payment of actually incurred expenses.

Termination of the contract. Features of the service as the subject of the contract predetermine the specifics of its termination.

So, by virtue of paragraph 1 of Art. 782 of the Civil Code, the customer has the right to refuse to execute the contract for the provision of services for a fee. This rule is enshrined in an imperative norm and cannot be changed by an agreement. The customer's right of withdrawal should be regarded as unconditional. The agreement of the parties, establishing a special procedure for unilateral refusal or providing for a penalty (fine) for such a refusal, is invalid * (495).

The only consequence * (496) of the customer's refusal is his obligation to reimburse the contractor for the necessary expenses actually incurred by the latter, related to the preparation for the provision of services * (497). This rule does not affect the right of the contractor to demand full payment for the services actually rendered by him until the moment the customer cancels the contract. So, if the subject of the contract is the provision of long-term services (for example, weekly excursion services, fitness center services for an annual subscription), the contractor's activities can be conditionally divided into several components. Therefore, the refusal of the contract before the expiration of its validity period does not release the customer from payment for already partially rendered services * (498).

To refuse at any time from the contract for the provision of services, with the exception of the contract, which is of a public nature * (499), the performer is also entitled (paragraph 2 of article 782 of the Civil Code).

As a consequence of such a refusal, the contractor must compensate the losses caused to the customer in full * (500).

Paid service contracts are very common, but even experienced lawyers make mistakes when preparing them. Read how to write the perfect contract, how to avoid common mistakes. Also download a sample document.

What is this article about:

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 them (clause 1, article 779 of the Civil Code of the Russian Federation.

When is a contract for the provision of services concluded?

The document is concluded when the following services are provided:

medical;
advisory
veterinary;
audit;
information;
for training;
for tourist services (clause 2 of article 779 of the Civil Code of the Russian Federation);
legal;
security;
advertising;
accounting;
communication services.

This list is not exhaustive.

Relations between the parties are regulated by Chapter 39 of the Civil Code of the Russian Federation. Also applied to the document general provisions on the contract (Articles 702-729 of the Civil Code of the Russian Federation) and the provisions on household contracts (Articles 730-739 of the Civil Code of the Russian Federation), if this does not contradict the special rules on this contract (Articles 779-782 of the Civil Code of the Russian Federation).

Sample contract for the provision of services

How to avoid typical mistakes when preparing a contract

Specify the subject of the contract

The contract is considered concluded if the parties have reached an agreement on all essential conditions (clause 1 of article 432 of the Civil Code of the Russian Federation). The subject is an essential condition of the contract for the provision of services for compensation. If the subject matter is vague, in particular, if the list (type) of work, their volume is not indicated, the court may recognize the contract as not concluded. Consequently, the parties will not be able to apply liability for their failure to fulfill their contractual obligations (Article 309, clause 1 of Article 393, Articles 330,331, 332 of the Civil Code of the Russian Federation).

However, the party that confirmed the fulfillment of obligations by partial or complete acceptance is not entitled to demand that the contract be recognized as not concluded if, taking into account certain circumstances, such a requirement would not comply with the principle of good faith (clause 432 of the Civil Code of the Russian Federation). This indicates that the actions of the customer, who accepted the services, but did not pay for them, and in the future, when collecting debts in the court, who declared that the contract was not concluded due to disagreement on the subject, can be perceived as bad faith behavior, for example, to avoid liability for violation of obligations under payment. Taking into account the provisions of paragraph 3 of Article 432 of the Civil Code of the Russian Federation, most likely, such a statement will not be taken into account by the court.

Thus, the subject of the contract is considered agreed if the list of services is defined sufficiently and specifically (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 23, 2005 No. 1928/05).

The subject of the contract is considered agreed if the list of services is defined sufficiently and specifically.

Specify the scope of services

Based on the scope of services, the parties can calculate the costs incurred for the actual work performed or the remuneration to the contractor. Within a certain type of activity, the volume can be set based on the list of actions performed by the performer. Coordination of the volume is inextricably linked with the content of the subject matter of the contract for the provision of services for compensation.

The parties may use the following indicators:

the number of objects for which the provision of services is established (for example, when protecting the object - the number of storage facilities);
duration of work (when compiling an assessment report - the amount of time spent (hours, minutes);
the number of recipients (say, when organizing and conducting a seminar - the number of listeners).

It is impossible to collect interest for the use of other people's funds if the contract is not concluded due to a disagreement in the scope of services (decree of the Ninth Arbitration Court of Appeal dated 05/29/2007, 06/04/2007 No. 09AP-6541 / 2007-GK in case No. A40-73650 / 06-49-560), to recover damages for violation of the conditions (Decree of the Federal Antimonopoly Service of the Central District dated 06.28.2005 No. A14-15387 / 04 /558), collect payment and a penalty for late payment (decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 21, 2009 in case No. A29-6050/2008). Cm., how to calculate refinancing interest .

Tax authorities may not recognize expenses for income tax and VAT deductions if the contract does not contain a detailed description of the work.

Record the work done

Services are activities, the results of which do not have a material expression (clause 5, article 38 of the Tax Code of the Russian Federation). Therefore, when determining the issue of their reality, it is important for the parties to clearly comply with the terms of the agreement on confirmation of services in terms of drawing up acts or other documents evidencing performance. (Decision of the Arbitration Court of the Urals District dated October 16, 2015 No. F09-7065/15 in case No. A60-55015/2014).

current legislation Russian Federation there is no unified form of the act on the provision of services, with the exception of the requirements for the primary accounting document, for which mandatory details are established (part 2 of article 9 of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting"). In order for the company not to have problems, the act of acceptance and transfer must necessarily contain a detailed list of all actions performed by the performer, their volume and cost .

It is necessary to take into account the tax consequences of non-confirmation of the work done. The tax authorities may not recognize income tax expense and VAT deductions in the absence of a detailed description of work (decree of the Federal Antimonopoly Service of the West Siberian District of September 12, 2013 in case No. A46-29654 / 2012, decision of the Federal Antimonopoly Service of the Moscow District of November 19, 2012 in case No. A40-98375 / 11-107-416 and etc.). Such claims will have to be contested by the customer with an unclear outcome. .

Agree on quality terms

The condition on the quality of services determines their characteristics, properties that are necessary to meet the needs of the customer (Articles 779, 783, 721 of the Civil Code of the Russian Federation). The provisions of Article 721 of the Civil Code of the Russian Federation on the quality of work and Art. 723 of the Civil Code of the Russian Federation on the liability of the contractor for their inadequate quality (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 No. 4593/13 in case No. A41-7649/2012).

If the parties have established quality requirements in the document, for example specifications, then the performer is obliged to comply with them. Otherwise, the quality of the work done will be recognized as inadequate, and the contractor will not be entitled to demand payment from the customer (decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 24, 2013 N 4593/13 in case N A41-7649 / 2012, decision of the Arbitration Court of the Volga-Vyatka District dated 06/16/2015 No. F01-2032/2015 in case No. A43-21302/2014).

If the parties did not agree on the requirements for their quality in the contract for the provision of services for a fee, then the contractor is not obliged to comply with the quality requirements presented by the customer after the conclusion (clause 2 of article 307, articles 783, 721 of the Civil Code of the Russian Federation). The customer is not entitled to invoke non-compliance with such requirements and demand a price reduction on the basis of Art. 783, paragraph 1 of Art. 723 of the Civil Code of the Russian Federation (decision of the Fourteenth Arbitration Court of Appeal dated October 20, 2008 in case No. A05-5815 / 2008, decision of the Federal Antimonopoly Service of the North-Western District of January 19, 2009 No. A05-5815 / 2008 left unchanged).

The Contractor is not obliged to comply with the requirements for the quality of services, if they are not specified in the contract.

Agree on the terms of engagement of third parties (sub-contractors)

According to the general rule established by Article 780 of the Civil Code of the Russian Federation, the contractor must provide services personally, unless otherwise agreed by the contract. The Contractor has the right to agree on the condition of involving third parties in the work, in the absence of specialists with relevant knowledge in the staff.

If the conditions for engaging third parties (subcontractors) are not agreed with the customer, the contractor will be obliged to provide services personally (Article 780 of the Civil Code of the Russian Federation). If this provision is not observed, the contractor will not be able to demand from the customer reimbursement of costs associated with the involvement of third parties. For example, to recover losses in the form of arrears in payment of subcontractors on the basis of Art. 15 of the Civil Code of the Russian Federation.

Confirmation of this conclusion is set out in the positions of the higher courts: the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 30, 2000 No. 8079/99 in case No. 2642-G / 99. Unauthorized involvement of subcontractors may deprive the contractor of tax benefits, if such are established only for organizations directly performing work. Thus, the Federal Antimonopoly Service of the Volga District, in its resolution of December 21, 2007 No. A49-3155 / 2007 (by the decision of the Supreme Arbitration Court of the Russian Federation of April 17, 2008 No. 2141/08, denied review of the case by way of supervision) recognized as unlawful the implementation by a public organization of disabled people of works performed by subcontracting organizations, without charge VAT on their value. The court rejected the arguments that construction and installation works performed by the involved persons are not subject to VAT, since the performance of work by subcontractors is the performance of work by the contractor (organization of disabled people), as based on an erroneous interpretation of subparagraph 2 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation , since the specified norm connects the possibility of applying tax benefits with the direct performance of work by the public organization of the disabled. In article 149 of the Tax Code of the Russian Federation there are several benefits with such a condition.

Include a termination clause at the end of the contract

If the parties have not agreed on the condition that after the expiration of the contract, obligations under it cease (clause 3 of article 425 of the Civil Code of the Russian Federation), these obligations continue to be valid until the moment they are fulfilled by the parties, unless otherwise provided by law (paragraph 2 of clause 2). 3 article 425 of the Civil Code of the Russian Federation). In accordance with Articles 15, 393 of the Civil Code of the Russian Federation, upon expiration of the term, the contractor must compensate the customer for losses caused by non-performance or improper performance of obligations. Court of Appeal dated 06/01/2010 in case No. A10-5622/2009, decision of the Arbitration Court of the Sverdlovsk Region dated 04/27/2009 in case No. A60-5266/2009-C4).

Determine the payment term

It is recommended to determine the payment term in the contract, otherwise its contractor will not be able to recover a penalty for late payment under Article 330 of the Civil Code of the Russian Federation, since the court will not be able to establish a delay period . To prevent negative consequences in the document, it is necessary to establish a payment term for services. It can be set in the form of advance payment (advance payment), staged payment.

In practice, the parties often agree on a time limit by pointing not to an event, but to the actions of the parties or other persons. For example, the payment term can be determined by indicating the period of time from the moment the services are received (the acceptance certificate is signed) or from the moment the contract is concluded (Decree of the Federal Antimonopoly Service of the Moscow District of May 13, 2010 No. KG-A40 / 4077-10, determination of the Supreme Arbitration Court of the Russian Federation of On August 26, 2010 No. VAS-11203/10, the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision was refused), decision of the Federal Antimonopoly Service of the North-Western District of June 1, 2010 in case No. A56-13328 / 2009).

Include a penalty clause for late payment

Penalty (fine, penalty) - an amount of money established by an agreement or law, which is paid by a party that has not fulfilled or improperly fulfilled its obligations under the agreement (clause 1, article 330 of the Civil Code of the Russian Federation). To obtain it, it is necessary to confirm the fact of violation of the obligation. If the parties have not agreed on the obligation of the customer to pay a penalty for late payment (clause 1, article 330, article 331 of the Civil Code of the Russian Federation), the contractor is not entitled to demand its collection (Decree of the Federal Antimonopoly Service of the Moscow District dated April 10, 2008 No. KG-A40 / 2652-08 on case N A40-49611 / 07-10-336).

The exception is cases where the payment of a penalty is established by law (Article 332 of the Civil Code of the Russian Federation). For example, parts 5–9 of Art. 34 of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" for the delay in the fulfillment by the parties of obligations under the contract provide for a penalty. However, if the document does not contain a condition for a penalty for delay in fulfilling a monetary obligation, the injured party may demand payment of interest to it in accordance with paragraph 1 of Article 395 of the Civil Code of the Russian Federation, as well as compensation for losses, having previously proved them.

Specify a price

If there is no price clause in the contract, the services must be paid at the price that, under comparable circumstances, is usually charged for similar work (clause 3, article 424 of the Civil Code of the Russian Federation).

In practice, a situation may arise when the customer will be obliged to pay more for the services rendered than expected, or the contractor will be forced to provide them at a lower price, and not at the one that he assumed at the time of the conclusion of the contract.

In order to avoid disputes about the price, the parties must agree on the amount of the price or the method of its determination, its composition and the condition of a fixed or approximate price. For example, the parties may establish that the price will be determined based on the tariffs (rates) of the contractor, which can be expressed in the cost of one unit of time (hour, minute) spent by the contractor. (Resolution of the Federal Antimonopoly Service of the North Caucasus District of August 11, 2003 No. F08-2883/03 in case No. A32-2491/03-38/41).

Condition Statement Example

The Customer undertakes to pay the contractor monthly remuneration, calculated by multiplying the total number of hours actually spent in fulfilling obligations under this Agreement by the rate (the cost of one hour of services) of the specialist.
The rate of a specialist is ______________________ rubles ____ kopecks per hour.
The total cost of services under this Agreement is determined on the basis of an act on the provision of services, drawn up and signed by the parties.

Write down the conditions for accepting services

The legislation does not establish the obligation to draw up an act on the provision of services (Decree of the Federal Antimonopoly Service of the West Siberian District dated January 30, 2007 No. F04-9551 / 2006 (30744-A03-11), Federal Antimonopoly Service of the Volga-Vyatka District dated August 17, 2009 N A11-10234 / 2008- K1-13/256). However, the payment of the contractor, as well as the fact of confirmation of the provision of services, are associated with the signing of the act.

Sometimes customers try to evade acceptance by simply not signing the act. To prevent this from happening, a condition can be included in the contract for the provision of services for a fee: if the act received from the contractor by the customer is not signed within the period stipulated by the contract, or is not provided reasoned refusal from signing within the same period, then an act signed unilaterally is considered a confirmation of the proper provision of services by the contractor (decree of the Fifth Arbitration Court of Appeal dated 08/05/2013 N 05AP-6736/13, resolution of the Eleventh Arbitration Court of Appeal dated 03/21/2013 N 11AP-322 /thirteen).

Condition Statement Example

At the end of the provision of services, the Contractor provides the Customer with an act on the provision of services within _________ (__________) days. If objections are not submitted within ________ (_______) days from the date of receipt of the act, the services are considered accepted.

At the same time, the presence in the document of a condition on the mandatory drawing up of this act does not relieve the contractor from the need to confirm the fact of the work done with other documents if there are objections from the customer. (Resolution of the Federal Antimonopoly Service of the North-Western District dated October 26, 2010 No. F07-10378/2010 in case No. A66-13532/2009).

Attached files

Sample contract for the provision of services.doc
Form of contract for the provision of services.doc

We report the following: The regulation has not been changed.

The parties still have the right to establish that the terms of the agreement they have concluded apply to their relations that arose before the conclusion of the agreement, unless otherwise established by law or follows from the essence of the relevant relations (clause 2, article 425 of the Civil Code of the Russian Federation).

Problems can only arise if the conclusion of the contract is subject to procurement regulations. In this case, any relationship before the auction can be regarded as an attempt to circumvent the law. But the negative consequences will concern only the performer - he will not be able to receive payment.

The rationale for this position is given below in the materials of "Systems Lawyer" .

Attention! If the customer is a budgetary institution and the contractor has not concluded a state (municipal) contract with it, the court may refuse to recover the cost of services rendered *

Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation, in resolutions No. 18045/12 dated May 28, 2013 and No. 37/13 dated June 4, 2013, refused the contractor (executor) to collect payment from the customer for the work performed (services rendered) in the absence of a state (municipal) ) of the contract.

This position is based on the provisions of paragraph 1 of Article 763, paragraphs 2 and 3 of Article 764 of the Civil Code of the Russian Federation.

If the customer is a budgetary institution, a state (municipal) contract must be concluded and the procurement procedure must be followed. The situation when the contractor provides services without concluding such a contract is qualified by the courts as a circumvention of the law. *

In this case, the contractor will not be able to recover the cost of the services rendered as unjust enrichment. This is due to the content of paragraph 4 of Article 1109 of the Civil Code of the Russian Federation: “money amounts and other property provided in pursuance of a non-existent obligation shall not be returned as unjust enrichment if the person demanding the return of the property knew about the absence of the obligation.”

The Presidium of the Supreme Arbitration Court of the Russian Federation specifically noted: "... the performance of work without a state (municipal) contract ... indicates that the person who performed the work could not have been unaware that the work was being performed by him with an obvious lack of obligation."

In addition, the Presidium of the Supreme Arbitration Court of the Russian Federation emphasized: “The recovery of unjust enrichment for work actually performed in the absence of a state (municipal) contract would open up an opportunity for unscrupulous contractors and state (municipal) customers to acquire illegal property benefits bypassing Law No. 94-FZ. Meanwhile, no one has the right to take advantage of their illegal behavior” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 4, 2013 No. 37/13).