of March 4, 2002 No. 103
About some questions of practice of application by economic courts of the Law of the Republic of Uzbekistan "About the contractual legal base of activities of business entities"
The law of the Republic of Uzbekistan "About the contractual legal base of activities of business entities" (further in the text - the Law), adopted on August 29, 1998, is important in streamlining of the economic relations, new on content, arising in the conditions of market economy and in strengthening of agreement discipline between business entities. The role of the specified Law in strengthening of commercial ties of subjects of small and medium business, the business owners who do not have still sufficient experience of the conclusion of agreements in protection of their rights and interests in contractual relations with the different supplying, procurement and exclusive companies and the organizations is especially big.
This Law serves one of the main legal sources in ensuring legal permission of the economic courts of the disputes arising from contractual relations which are often found in activities. At the same time, in practice of application of this Law by economic courts some questions meet.
For the purpose of ensuring uniform application in court practice of the Law, based on article 47 of the Law "About Courts", the Plenum of the Supreme Economic Court decides to make the following explanations:
1. Economic courts in case of application of the Law should adhere to requirements of RUZ Group, the relevant laws and presidential decrees, resolutions of the Cabinet of Ministers, and also other legal acts.
2. By consideration of the disputes following from contractual relations according to the Art. of Art. 10-15 of the Law, the Art. of Art. 364-385 of RUZ Group, courts need to mean that only the complete and unconditional reply of the party about adoption of the offer to sign the agreement (offers) can be considered as the acceptance. The answer about consent to sign the agreement on other conditions, than it is offered in the offer, or partial adoption of the offer is not considered the acceptance, and is the counter offer.
Committing by person, received the offer in time, established for its acceptance, actions for accomplishment of the terms of the contract (shipment of goods, provision of services, performance of works, payment of the corresponding amount, etc.) specified in it is considered the acceptance if other is not stipulated by the legislation or is not specified in the offer.
If person who received the offer on the conclusion of the agreement partially satisfied the conditions (partially sent goods, paid part of sum of money) provided in the agreement at the scheduled time, its actions are estimated as the acceptance. In such cases if between the parties according to essential terms of the contract the agreement is reached, courts should consider such agreement the prisoner with all that it implies.
3. According to Art. 108 of RUZ Group and Art. 11 of the Law economic agreements are signed in writing. Non-compliance with written form of the agreement (verbal agreement) does not involve its invalidity (except as specified, directly provided in the legislation). Courts need to mean that by consideration of the disputes arising in connection with non-compliance with written form of the agreement, the parties lose the right to confirm its making, content or execution with the testimony. However they have the right to use written or other proofs.
Courts need to research and give comprehensive assessment to the evidence of the making, content or agreement performance concluded without observance of written form produced by the parties (to superimposed, commodity-transport documents, powers of attorney, acts, etc.), and on their basis in the procedure established by the law to consider disputes.
At the same time courts, proceeding from essence of requirements of Art. 363 of RUZ Group, shall take into account all corresponding circumstances, including the negotiations and correspondence, the practice established in relations of the parties, business customs, the subsequent behavior of the parties preceding the agreement.
4. Modification and amendments in the agreement during its action is allowed only by agreement of the parties. Courts need to mean that change of the agreement unilaterally is not allowed if other is not provided by the law or the agreement.
Courts by consideration of disputes on the conclusion or change of agreements shall mean that according to Art. 141 of HPK RUZ on the dispute which arose in case of the conclusion or change of the agreement in substantive provisions the decision according to each controversial term of the contract is specified, and on dispute on compulsion of the conclusion of the agreement conditions on which the parties shall sign the agreement are accurately specified.
5. Economic courts, considering disputes on recognition of the agreement invalid or about agreement cancelation, shall pay special attention on that fact: whether the text of the agreement meets the requirements provided by Art. 10 of the Law. Though absence in the agreement of the above-stated conditions does not involve invalidity of the agreement, but narrows possibility of legal protection. Therefore courts need to consider question of involvement of the officials allowing the conclusion of similar agreements to the responsibility provided by the law.
If the essential conditions established by the legislation or the requirement of one of the parties are not provided in the agreement and it is impossible to determine these conditions judicially, such agreement is not considered the prisoner. In this case in case of the dispute resolution courts should apply the rules regulating non-contractual obligations.
6. According to Art. 356 of RUZ Group in cases when the price is not provided in the paid agreement and it cannot be determined proceeding from terms of the contract, courts need to mean that agreement performance shall be paid for average market price which under comparable circumstances is usually levied for similar goods (works, services).
7. If completion date of the obligation is not established or determined by the claiming moment, then the creditor according to Article 242 of group of companies has the right to require execution, and the debtor shall make execution of such obligation in seven-day time from the date of submission of demand by the creditor if the obligation of immediate execution does not follow from the law, the agreement or being of the obligation.
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