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Termination of the contract and unilateral refusal to execute it: to distinguish, not mix

Civil Code knows the institution of termination of the contract and knows the institution of unilateral refusal to execute it. A certain similarity (both serve the stage of termination of the contract, the rules on refusal refer to the provisions on termination) sometimes causes the parties to mix them, resulting in light civilized monsters - products of interspecific interbreeding: “unilateral termination of the contract” "And even" unmotivated early termination of the contract unilaterally. " The question arises about the ethics of such experiments on civil law institutions, especially since their results can spoil a lot of blood both to their creators and to innocent practicing lawyers.

To begin with, no “unilateral termination of the contract” is possible. It is terminated either by mutual consent of the parties, or by a court initiated by one of them. In the second case, the initiative is not equal to some kind of “one-sidedness”, the process of termination cannot be resolved by the exclusive will of the person who came forward with such an initiative - an intermediary link in the form of a counterparty or a court is always necessary (it would be strange if the court demanding the termination should both / all parties to the contract were treated). In order for a party to a contract to withdraw from the contract with its will, it must have the right to unilaterally refuse to execute it, realized by addressing the corresponding will to counterparties.

In most cases, attempts to cross a crucian with a pig meant that the parties tried to establish some kind of preferential (compared with the established code) unilateral withdrawal from the contract, but could not adequately express it in the text of the contract. The low quality of contract work is promoted, of course, by the fact that, at the level of medium business and below, it is carried out according to the principle “let's quickly sign everything, and then we shall understand”. This is aggravated by the fact that the legislator also allows such confusion (see p. 22 , Art. 3 Federal Law No. 137-FZ of October 25, 2001) and the highest judicial instances ( Regulation Presidium of the Supreme Arbitration Court of the Russian Federation No. 5848/98 dated December 22, 1998; Clause 4 of the Review of the Court Practice of the Supreme Court of the Russian Federation No. 1 (2016).

1 (2016)

In this regard, the key is the issue of qualification by the courts of all these complex structures. Often the wording “may be terminated unilaterally ahead of schedule” (accompanied by a reference to “notice of termination of the contract”) actually means that the parties had in mind a unilateral refusal to perform the contract. Without setting any additional requirements, except for the direction of “notification of a unilateral termination of the contract”, such conditions fully correspond to the description of the unilateral refusal given by the Presidium of the Supreme Arbitration Court of the Russian Federation in A decree September 9, 2008 № 5782/08:

“For a unilateral refusal to execute a contract related to the business of its parties, the mere fact of specifying in the law or agreement of the parties on the possibility of a unilateral refusal is sufficient.”

And this is exactly how the contractual condition of the Presidium of the Supreme Court of Arbitration of the Russian Federation in Resolution No. 13057/09 of February 16, 2010 qualified:

“Based on clause 6.2 of the lease agreement, its validity may be terminated before the expiration specified in clause 6.1 of the term in the case provided for in clause 2.4.3 of the contract, as well as unilateral termination of the contract.

Therefore, the courts of first and appeal instances reasonably concluded that there is a condition in the lease agreement about the possibility of its early termination at the request of the lessor.

As for the unilateral refusal to execute the contract (unilateral termination of the contract), the fact of this indication in the agreement of the parties is sufficient, there were no grounds to consider the actions of the department to make an entry on the termination of the lease contract in the state register ”.

However, a different qualification of such contractual terms is possible, especially in cases when “unilateral termination of the contract” is accompanied by conditions specific to the institution of termination of the contract. Most likely, the will in this case was directed to ensure that the person had the opportunity to exit from the contract unilaterally, but she was buried under such a thick layer of will that it is not possible to reconstruct it. In this connection, the case of “unmotivated cancellation”, considered by the SCES AF of the RF Armed Forces ( Definition of the Supreme Court of the Russian Federation of 08.21.2015 N 310-ЭС15-4004 in case number A08-7981 / 2013).

In this dispute, the parties, establishing in one of the clauses of the long-term lease agreement the grounds for its termination in court, in another clause provided that in case of early termination of the contract for other reasons, the parties are obliged to notify in writing about the forthcoming termination in advance one year before the termination. What was meant? Most likely, that the contract can be waived, but such a refusal will be valid only a year later, after it is announced. Actually, the provision of such a large grace period (four times longer than the notice period for withdrawal from the contract concluded for an indefinite period, point 2 , Art. 610 The Civil Code of the Russian Federation) may indicate the parties' intention to provide guarantees for the counterparty who refuses the contract of the party (either in order to find a new tenant as usual, or in order to find new premises). If the parties had assumed that in this case the usual procedure for termination would operate, there was no reasonable reason to establish such a long period of time. However, this intention was expressed so imperfectly that the court interpreted this provision precisely as establishing an additional procedure for terminating the contract, denying the lawsuit with reference to the inconsistency of additional grounds by the parties.

Similar terms of the contract were subject to review by the Presidium of the Supreme Arbitration Court in A decree dated October 20, 2011 N 9615/11. In accordance with the condition of the contract, the tenant was entitled to demand early termination of the contract, subject to the lessor’s warning no less than 90 days, subject to their obligations to pay the rent and reimburse the lessor’s expenses for utilities and maintenance services. The court of first instance considered that the parties provided for the unilateral refusal of the tenant to perform the contract. The Supreme Court of the RF Supreme Court amended:

“According to clause 2 of Article 450 of the Code, at the request of one of the parties, the contract may be terminated by a court decision in the cases specified in the contract.

Clause 7.5 of the lease agreement provides for the right of the tenant to demand early termination of the contract, but not the right to terminate the contract unilaterally in relation to clause 3 of Article 450 of the Code.

Since the landlord refused to terminate the contract, and the relevant agreement between the parties was not reached, the tenant had the right to demand that the contract be terminated in court. The lessee took advantage of this right by filing a counterclaim in the present case.

As established by the court of first instance, the tenant fulfilled all the conditions of clause 7.5 of the lease agreement, the landlord was warned in advance about the tenant’s intention to terminate the rental relationship due to the termination of the branch office, but the landlord did not give the tenant reasonable reasons for refusing to terminate the contract.

Here, as we see, a not entirely correct turnover was also used - “the right to terminate the contract unilaterally” - but that's not the point. In the case when the elements of termination and unilateral refusal of it are mixed, no one can be insured against any interpretation of such conditions. Characteristically, in the interpretation that the Presidium of the Supreme Arbitration Court chose, the authority of the person to terminate the contractual relationship also remains one-sided, it is simply accompanied by a procedural superstructure which causes the termination of the contract. The role of the court in such an interpretation of contractual terms is reduced to certifying the person’s timely unilateral expression of will, in essence, the court serves as a notary: then a notice is made then the contract must be terminated. Why duplicate entities if the mechanism of unilateral withdrawal from the contract is already established and settled.

Contractual terms must be respected, whatever incredible conditions the parties agree on, this is an axiom. But there is no guarantee that the metal detector at the entrance to the court will fix Occam's razor, carried in the briefcase of some well-read lawyer, and there is no guarantee that the contract prepared with its help will preserve the balance of interests of the parties to it. interpreted as a unilateral refusal, or vice versa). The guarantee is a “no GMO” mark on the contract. Clarity of thought is a pledge of clarity.

What was meant?

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