Refusal (evasion) to conclude an agreement and imposition of unfavorable conditions by an economic entity occupying a dominant position

The considered form of abuse of dominant position relates to the sphere of contracting and pre-contractual disputes.

Under normal conditions, the subjects of civil turnover are free to choose both counterparties and the conditions on which they are ready to conclude an agreement. Usually, an economic entity can refuse to conclude a contract with another person for no reason, but only at one request.

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

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

Thus, the refusal to conclude an agreement means the direction by an economic entity occupying a dominant position of a notice of refusal from the received acceptance. Moreover, the offer itself must meet the requirements established by Art. 435 of the Civil Code of the Russian Federation.

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

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

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

Technological grounds for refusal to conclude a contract can only be circumstances that objectively prevent the possibility of its execution, for example, the lack of a potential seller of goods in the required quantity, the impossibility of producing the required goods within the period required by the counterparty.

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

Let us turn again to Art. 445 of the Civil Code of the Russian Federation. It follows from this provision that an economic entity occupying a dominant position may notify the person who sent the offer of its consent to conclude an agreement on other terms. However, not any notice of acceptance of an offer on other terms is automatically recognized as the imposition of the relevant terms.

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

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

The conditions that can be attributed to unfavorable for the counterparty, the Federal Law "On Protection of Competition" includes economically or technologically unreasonable or not directly provided for by regulatory legal acts of the Russian Federation or judicial acts requirements for the transfer of funds, other property, including property rights , as well as consent to conclude an agreement on the condition that the counterparty is not interested, and other requirements.

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

When assessing the condition of the contract, proposed by the dominant economic entity, regarding its disadvantage for the counterparty, it is important to establish that it represents unreasonable encumbrances for him and in conditions of normal competition he would not enter into an agreement with such a condition.

As an example of imposing unfavorable terms of the contract, one can cite the case considered by the Krasnodar OFAS Russia against LLC Krasnodarregiongaz, connected with the inclusion of penalties for the total volume of gas selected by the buyer in excess of the daily contractual volume in the gas supply contract for OJSC “Breeding Poultry Plant“ Labinsky ”. As noted by the Presidium of the Supreme Arbitration Court of the Russian Federation in its resolution of June 15, 2010 No. 325/10, the inclusion in the contract of additional coefficients in relation to those specified in the Rules for the supply of gas in the Russian Federation, approved by the Government of the Russian Federation of February 5, 1998 No. 162, , named in the contract as a penalty for gas consumption in excess of the contractual volume, is a violation of regulated pricing in the field of gas supply and abuse of a dominant position by imposing contractual terms that are unfavorable for the counterparty.

It is also necessary to mention that in relation to the considered manifestation of abuse of a dominant position, the Federal Law "On Protection of Competition" provides for a special prompt procedure for responding by sending a warning to the person whose actions contain signs of violation of the antimonopoly law to terminate the corresponding offense (Article 39 The procedure for applying this measure will be described in more detail in the chapter on state control over compliance with antimonopoly legislation.

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

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

It is not so easy to achieve the conclusion of a contract through the court, therefore it is better to entrust this matter to a specialist who is well familiar with this practice. Otherwise, litigation may ultimately only lead to an unconcluded contract, losses and payment of legal costs.

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

Going to court with a claim for compulsion to conclude a contract

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

If the conclusion of the controversial agreement is binding on the other party under the law (for example, privatization, an agreement for the provision of services, etc.), then in case of refusal to conclude this agreement, this agreement can be enforced, but already through the court, having addressed there with a statement of claim for compulsion to the conclusion of the contract.

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

Professional legal assistance in refusing to conclude an agreement

Before considering options for contract refusal, you need to carefully understand what is contract or hire military service. Working for the Ministry of Defense is very responsible and requires strict adherence to all the rules and regulations prescribed in the military regulations.

Persons who have turned 18 years old can work under a contract in the army. An age limit has been established for persons over forty years old, persons who are in stock. Vacancies are varied and narrowly specific in the military field.

In other words, contract service means work related to military activities. Since the work is very serious, the selection of candidates is carried out strictly according to the rules. The military commission has the right to refuse a candidate in a job if he does not fit according to certain criteria.

What does

The contract is concluded on a voluntary basis. Any resident of the country, regardless of gender, can go to serve in the army.

Cases are widespread when soldiers who have completed their military service are offered to work for hire. An agreement called "Contract" is concluded between the parties.

A contract is a written document that is concluded between a citizen of the Russian Federation and the Ministry of Defense. The contract is legally binding. A contract is concluded between the parties in a certain form and strictly according to the rules, they are spelled out in the regulation. The contract specifies the time period and conditions under which the citizen is obliged to serve. The document clearly spells out the responsibilities of the two parties. The contract must spell out the rights of the contractor, possible compensation and the right to use certain benefits.

The contract is considered valid when the signature of the superior management is signed. The conclusion and termination of the contract is controlled and regulated by federal law. Under certain circumstances, the contract can be terminated early. After the expiration of the term, the contract can be extended. To get to the service under the contract, it is enough to contact the military registration and enlistment office at the place of registration, where a special commission is organized to consider the candidate, which checks the data about the candidate and his suitability.

Back to the table of contents

Basic requirements for candidates

Today, military service in Russia is considered very prestigious. For this reason, many go to serve in various troops in different professions. First of all, candidates who decide to join the army must comply with all established standards. Failure to comply with these requirements may result in refusal to serve under a contract. The main criteria are good professional training, psychological and physical health.

In a managerial position, it is necessary to possess a high level of professionalism and the presence of a higher education. To determine the suitability of a candidate, an attestation commission is organized, which conducts a medical examination and measures for professional selection. Based on the results of this commission, the candidate can be accepted or refused, contractual services in this case are practically not to be seen.

Back to the table of contents

For what reasons can they refuse

The verification of candidates is carried out carefully and strictly, the results are always documented. Refusal may follow if the citizen:

• after passing a medical examination, does not meet certain requirements, in other words, has physical disabilities or a serious disruption in the functioning of the body;
• if the attestation commission assigned the candidate to the 4th category in the professional selection;
• lack of vacancies;
• inconsistency of the candidate under the Federal Law;
• if a conviction is passed against a candidate, he is under investigation, his conviction has not been removed or canceled.

In case of refusal, the candidate has every right to appeal the decision in court.

Back to the table of contents

How can you refuse

There are times when, for some reason, the candidate changed his mind and decided to refuse to serve under the contract.

In order to refuse, it is necessary to cancel the submission of the admission report.

If the report was nevertheless submitted, it is still possible to withdraw from the conclusion of the contract in writing. There are times when a refusal is necessary for good reasons. You can terminate the contract early, by agreement of the two parties.

Reasonable reasons are required for early termination of the contract. According to the legislation, there may be reasons for early termination of the contract:

• failure to fulfill the rights and obligations that are stipulated in the contract;
• job cuts;
• transfer to the police or other executive organizations;
• deterioration in health, the appearance of symptoms that interfere with the fulfillment of the obligations stipulated in the contract;
• family circumstances;
• the need to care for a close relative who is limited in self-care activities;
• caring for a minor child, provided that there is no second parent;
• obtaining a deputy mandate;
• guilty verdict.

On the facts of coercion or illegal actions in relation to a citizen who wishes to refuse military service under a contract, you can file a complaint with the command of the military district or the military prosecutor's office. To quickly resolve the issue of refusal, you must contact a military lawyer.

If the supplier refuses to conclude a contract after summing up the procurement procedure

The register of unscrupulous suppliers is referred to in Art. 5 of the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - 223-FZ, Law No. 223-FZ, the Procurement Law). On November 22, 2012, the Government of the Russian Federation adopted Resolution No. 1211 "On the introduction of a register of unscrupulous suppliers provided for by the Federal Law" On the procurement of goods, works, services by certain types of legal entities ".

The named regulatory legal act prescribes:

• rules for sending information by customers about unfair procurement participants and suppliers to the federal executive body authorized to maintain the register of unfair suppliers;
• rules for maintaining the register of unscrupulous suppliers;
• a list of information that is included in the register of unscrupulous suppliers;
• requirements for technological, software, linguistic, legal and organizational means of maintaining the register of unscrupulous suppliers.

In accordance with the Procurement Law, a supplier can be included in the RNP on such grounds as:

termination of the contract with the counterparty by a court decision in connection with a material violation of the terms of the concluded contract.

When sending information about unscrupulous suppliers for inclusion in the register, when contracts with them were terminated by the court, the customer must take into account some peculiarities. For example:

If the customer refused to conclude and sign the contract for reasons such as, for example, in connection with the financial situation of the enterprise, then information about the suppliers is not sent for their inclusion in the register of unscrupulous suppliers.

Before going to court, the customer must apply the pre-trial procedure for resolving the current situation, dispute (Article 452 of the Civil Code of the Russian Federation).

evasion of the person who is the winner in the procurement procedure from the conclusion of the contract.

Carrying out procurement activities in accordance with 223-FZ, the customer may face a situation when the winner of the procurement evades signing the contract and fulfilling all its conditions. Persons who in bad faith fulfill the requirements of the procurement documentation related to the conclusion and execution of the contract are subject to inclusion in the RNP (for example, after summing up the procurement results and determining the winner, the participant refuses to deliver the goods at the previously announced price specified by him in the application for participation, which is the winner's evasion purchases from the conclusion of the contract). This circumstance can significantly complicate the access of such suppliers to the market for goods, works and services in the next two years, since the customer has the right to establish in the procurement documentation the requirement for the absence of information about the procurement participants in the RNP (Article 3 of Law No. 223-FZ). In this case, the possibility of participating in procurement procedures and, accordingly, concluding contracts with such a supplier is significantly reduced. Thus, the financial and economic position of the organization is undermined, the profit from the sale of goods (works or services) on the market decreases.

The inclusion of unscrupulous suppliers who evaded the conclusion of the contract in the RNP according to 223-FZ is possible in cases where the signing of the contract after summing up the results is mandatory in accordance with the current procurement regulation and procurement documentation of the customer. In this regard, before contacting the antimonopoly authority, the customer must carefully study its own position and procurement documentation, in accordance with which the specific procurement procedure was carried out.

Federal Antimonopoly Service maintains the RNP in accordance with clause 5.3.4 of the Regulation on the Federal Antimonopoly Service, approved by the Decree of the Government of the Russian Federation of June 30, 2004 No. 331. The register is maintained in electronic form using an information system, which includes software tools, in accordance with the requirements for technological, software, linguistic, legal and organizational means of maintaining the register of unscrupulous suppliers. The antimonopoly authority places information in the register of unscrupulous suppliers in accordance with the current legislation, taking into account the requirements for the protection of state secrets. All information that is sent by the customer to the supervisory authority for entry in the register about the unscrupulous supplier is verified. In the absence of the necessary information, the FAS sends a notification of the need to send the required data to the antimonopoly authority within 3 working days from the day when the customer received a notification of the provision of information from the authorized body. After checking the information, the data about the supplier are included in the RNP by the antimonopoly body within 3 working days, forming a register entry (it must be signed by a representative of the authorized body using an EDS or other analogue of a handwritten signature in order to protect the information included in the register). Information about the supplier is excluded from the RNP after 2 years from the date the information is included in the register. Also, the register entry on the unscrupulous supplier can be removed from the RNP by the authorized body in the case when the court decision to terminate the contract, which became the basis for adding information about the supplier to the RNP, was canceled in the manner prescribed by law.

Information contained in the registry

• Registry record number and date of inclusion of information in the register
• The authorized body that carried out the inclusion of information in the register
• Information about the unscrupulous supplier (performer, contractor) and its location (place of residence):
• Information about the purchases carried out:
• Information about the contract:

Currently, the customer has the opportunity to make a note that the supplier is not included in the register of unscrupulous suppliers in the section "Requirements for procurement participants" when forming a notice on the official website about the procurement procedure. In the future, when drawing up procurement protocols, the procurement participants will be checked in the register of unscrupulous suppliers.

If, after the end of the procurement procedure, the winner evades concluding a contract (or a procurement participant with whom, according to the procurement documentation, an agreement is concluded if the procurement winner avoids concluding a contract, provided that the documentation stipulates the obligation of such a participant to conclude an agreement), the customer must send an appeal to the antimonopoly service on the inclusion of the supplier in the register of unscrupulous suppliers (this is not a right, but an obligation of the customer). In the appeal, the customer should indicate the name and other data (address, TIN, KPP, etc.) of the person who refuses to conclude a contract, the method of the procurement procedure, the product (work or service), the purchase of which was carried out. The customer should not forget that for failure to submit or untimely submission of information about unscrupulous suppliers (performers, contractors), or the provision of deliberately false information about unscrupulous suppliers to FAS Russia, in accordance with the Code of Administrative Offenses of the Russian Federation, administrative liability is provided in the form of a fine.

Having received an appeal from the customer, the antimonopoly service accepts it for production and subsequently sends a notification to the customer and the supplier about the consideration of the appeal on the inclusion (or non-inclusion) of information about the supplier in the register of unscrupulous suppliers. In the notification, the antimonopoly authority asks the customer and the supplier to provide the necessary documents within the specified period for a more complete and comprehensive consideration of the appeal and making the right decision. Also, in the notification, FAS Russia sets the date and time (indicating the address) when the meeting on the inclusion (or non-inclusion) of the winner of the procurement in the RNP will take place. When considering the appeal by the commission of the antimonopoly body, the parties must ensure the attendance of their representative with a duly executed power of attorney.

Example of a power of attorney

As a rule, the antitrust authority requests the following documents and information:

From the organizer of the purchase:

Notification and documentation of the procurement procedure, notifications of changes to the documentation, clarifications of the procurement documentation (if any);

All bids submitted by the procurement participants;

All protocols that were drawn up during the procurement procedure for goods (works, services);

Evidence of sending a draft contract to the supplier (contractor, executor) (if the winner evades signing), as well as other information that will indicate a refusal to conclude a contract.

Also, the supervisory authority may request:

Documents in accordance with which the procurement procedure was carried out (for example, a regulation on the procurement of goods, works, services, an order to approve a procurement regulation);

Regulatory document on the organization and conduct of this purchase (for example, an order of the director on the organization and conduct of a request for proposals for the supply of an anti-ice reagent);

Other documents and information.

At the supplier (contractor, executor):

Charter (Regulation), in the absence of such in the public domain;

Certificate of state registration of a legal entity;

Information about the date and time of receipt of the draft agreement;

Information about the sending by the supplier (performer, contractor) of the signed draft contract (indicating the date and time of sending), if such documents were not sent - an explanation in writing indicating the reason for evading the conclusion of the contract with the customer;

Other information that relate to evasion from the conclusion of the contract (if any).

To the Federal Antimonopoly Service no later than 30 calendar days from the date of the conclusion of the contract with the participant in the procurement procedure, with whom, according to the terms of the procurement documentation, the contract is concluded, if the winner avoided signing the contract, or from the day when the term for concluding the contract, prescribed in procurement documentation (if the customer in the procurement documentation does not provide for the option of concluding a contract with another procurement participant when the winner avoids signing the contract), the customer sends the necessary information in accordance with Art. 5 of Law No. 223-FZ, the Rules for maintaining the register of unscrupulous suppliers, approved by Decree No. 1211 of 22.11.2012 "On maintaining the register of unscrupulous suppliers provided for by the Federal Law" On the procurement of goods, works, services by certain types of legal entities. "

On the appointed date, the FAS Russia commission, with the participation of representatives from the customer and from the person who avoided signing the contract, examines the request of the organizer of the procurement procedure to include information about the supplier (performer, contractor) in the register of unscrupulous suppliers. The commission, having received the information and documents provided by the parties, clarifies the position of both the customer and the person who refused to conclude the contract (the provisions of the procurement documentation, protocols, the procedure for signing the contract by the parties, the terms for concluding the contract, etc.) are studied.

The parties explain their arguments regarding the inclusion (non-inclusion) of the supplier (contractor, performer) in the RNP, answer the questions of the FAS commission. Also, the parties can ask questions to each other regarding the untimely signing of the contract after summing up the results of the purchase. As a rule, the review process is not long, does not last for hours, so it is important to clearly and concisely formulate your position.

The customer, in accordance with the procurement regulations and procurement documentation, argues for the requirement to include the winner of the procurement in the register of unscrupulous suppliers. For example, according to the protocol of summing up the results of the request for proposals, the customer, within 7 working days from the date of publication on the official website of the final protocol, sends the contract for signing by the supplier, who, in turn, must sign it within 10 business days and send one copy of the contract to the procurement organizer (who is the first to sign the contract - the customer or the supplier - does not matter, unless otherwise provided in the procurement documentation or the final protocol).

If these terms are violated by the winner, the customer must contact the antimonopoly authority, since in accordance with Art. 5 of the Procurement Law, the RNP includes information about procurement participants who avoided concluding a contract, as well as suppliers (performers, contractors) with whom the contracts were terminated due to a significant violation of the contract by them. The customer can familiarize himself with the list of unscrupulous suppliers on the official website, such information is in the public domain and is provided for review without charging a fee.

How to find a supplier in RNP?

The customer can easily find the necessary information, check the supplier, using the search parameters, using the functionality of the official website. To do this, in the "registers" tab, select "the register of unscrupulous suppliers" and then carry out a search after entering the required information about the person (TIN, name).

Also, the antimonopoly body ensures the creation and formation of a certificate of whether participants in the procurement procedure, suppliers (performers, contractors) are in the register of unscrupulous suppliers at the request of a visitor to the official website.

In order to avoid the inclusion of information in the RNP, the supplier (contractor, performer) must provide explanations and evidence for consideration of the customer's appeal, which could refute the fact of evading the conclusion of the contract for the needs of the customer: for example, if technical problems arose when signing the contract in electronic form (see. the decision of the Kurgan OFAS of Russia in case No. 05-02 / 4-12 on refusal to be included in the Register of unscrupulous suppliers of ZAO "Glinki").

The FAS Commission, comparing the arguments and justifications of the parties, will decide to include the supplier in the RNP (for example, the decision of the Kirov OFAS Russia decision to include LLC BULAT in the register of unscrupulous suppliers, case No.RNP-43-02) or refuse to do so (for example , The decision of the Penza OFAS on the results of consideration of the application for the inclusion of LLC "Kamenko-myasa" in the register of unscrupulous suppliers, case No. 5-09 / RNP-58-02).

In any case, the decision of the supervisory authority can be appealed by the parties in court within three months from the date of its adoption.

After consideration of the appeal, the decision is sent to the parties, and also posted on the Internet on the website of the antimonopoly authority of the region (this decision can also be found in the database of decisions of the FAS on its official website, specifying the necessary search parameters).

Thus, at present, such a method of protecting the interests of the customer as including information about unscrupulous suppliers in the RNP is quite effective, since access to orders for such persons will be closed for 2 years, which practically deprives suppliers of normal functioning and closes access to the sales market. The customer has the right to register in the procurement documentation as a condition for participation in the procurement, the absence of the supplier both in the register of unscrupulous suppliers, provided for by Federal Law No. 223, and in the register for public procurement.

Recently, the number of applications for inclusion in the register of unscrupulous suppliers has been increasing, since customers, understanding the responsibility provided for by the Code of Administrative Offenses of the Russian Federation for failure to submit information to the supervisory authority about suppliers who evade the conclusion of an agreement, in the form of a fine, are not ready to incur extra costs due to their own lack of initiative. ... Also, this practice of including information in the register about unscrupulous suppliers allows other customers in the future not to run into an unreliable partner and not create problems for themselves regarding the supply of goods, performance of work or provision of services. And suppliers, knowing about the possible two-year isolation of participation in procurement procedures, will take a more serious and responsible approach to the issue of signing and executing a contract. Once blacklisted, called RNP, suppliers risk losing trust with customers as a reliable business partner capable of meeting their needs in full and on time.

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

Consequences of refusal to conclude the main contract

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

Responsibility for evading the conclusion of the main contract

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

In this case, the other party can file a claim for compulsion to enter into the main contract.

In addition, in the preliminary contract itself, it is possible to establish a forfeit (fine, penalties) for refusing to conclude the main contract or delay in concluding it.

Controversial issues arising at the conclusion of a preliminary contract

One of such questions arising from the parties when concluding a preliminary contract is the question of whether it is possible, on the basis of this contract, to acquire ownership rights, for example, to real estate. The answer in this case is unequivocal - it is impossible.

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

Arbitration courts adhere to a similar position.