RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of December 25, 2018 No. 49

About some questions of application of general provisions of the Civil code of the Russian Federation of the conclusion and interpretation of the agreement

For the purpose of ensuring unity of practice of application by courts of the legislation on the conclusion and interpretation of the agreement Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations.

Conclusion of the agreement

1. Owing to Item 3 of Article 154 and Item 1 of Article 432 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) the agreement is considered the prisoner if between the parties the agreement on all essential terms of the contract is reached. The agreement of the parties can be reached by adoption (acceptance) by one party of the offer to sign the agreement (offers) of other party (Item 2 of article 432 Civil Code of the Russian Federation), by joint development and agreement negotiation in negotiations, otherwise, for example, the agreement is considered the prisoner and in that case when their will on the conclusion of the agreement appears from behavior of the parties (Item 2 of Article 158, Item 3 of article 432 Civil Code of the Russian Federation).

2. Essential conditions which shall be approved by the parties in case of the conclusion of the agreement are conditions about the subject of the agreement, conditions which are called in the law or other legal acts essential or necessary for agreements of this type (for example, the conditions specified in articles 555 and 942 Civil Codes of the Russian Federation).

All conditions concerning which according to the statement of one of the parties the agreement (paragraph two of Item 1 of article 432 Civil Code of the Russian Federation) shall be reached also are essential even if such condition would be filled with the residuary rule.

For example, if during negotiations of one of the parties the condition about the price is offered or it is declared need to approve it, then such condition is essential to this agreement (Item 1 of article 432 Civil Code of the Russian Federation). In that case lack of consent on condition on the price or procedure for its determination cannot be filled by the rule of Item 3 of article 424 Civil Code of the Russian Federation and the agreement is not considered the prisoner until the parties do not approve the called condition, or the party which offered condition about the price or declared its approval will not refuse the offer, or such refusal will not follow from behavior of the specified party.

3. Non-compliance with requirements to agreement form in case of achievement by agreement parties on all essential conditions (Item 1 of article 432 Civil Code of the Russian Federation) does not demonstrate that the agreement was not signed. In this case effects of non-compliance with form of the agreement are determined according to special rules about effects of non-compliance with form of separate agreement types, and in case of their absence - general rules about effects of non-compliance with form of the agreement and form of the transaction (Article 162, Item 3 of Article 163, article 165 Civil Code of the Russian Federation). So, in case of non-compliance with the requirement about written form of the trust management agreement of personal estate such agreement is invalid (Items 1 and 3 of article 1017 Civil Code of the Russian Federation). At the same time according to Item 1 of article 609 Civil Code of the Russian Federation the lease agreement of personal estate for term over a year and if at least one of agreement parties is the legal entity, irrespective of term, shall be concluded in writing in case of which non-compliance the parties have no right to refer to the testimony in the agreement confirmation and its conditions (Item 1 of article 162 Civil Code of the Russian Federation).

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