of December 23, 2004 No. 13
About some questions connected using regulations of the Civil code of the Republic of Belarus about the delivery agreement
Having generalized court practice on the disputes arising from the delivery agreement and for the purpose of ensuring uniform application by economic courts of the Republic of Belarus (further - economic courts) the regulations of the Civil code of the Republic of Belarus regulating the specified legal relationship, the Plenum of Supreme Economic Court of the Republic of Belarus, being guided by articles 14-16 of the Law of the Republic of Belarus of December 9, 1998 "About economic courts in the Republic of Belarus" (Vedamastsi Natsyyanalnaga to descent of Respubliki Belarus, 1999, No. 2, the Art. 32),
1. By consideration of the disputes connected with the conclusion and agreement performance of delivery regulations of paragraph 3 of Chapter 30 of the Civil code of the Republic of Belarus are applied (further - group of companies). In the absence of the relevant standards in this paragraph economic courts should proceed from the provisions enshrined in paragraph 1 of Chapter 30 (Item 5 of Article 424 of group of companies), and in the absence of such regulations in rules about purchase and sale it is necessary to be guided by general regulations of group of companies about the agreement, transactions and obligations.
The rules provided in the Regulations on deliveries of goods in the Republic of Belarus approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of July 8, 1996 No. 444 "About approval of the Regulations on deliveries of goods in the Republic of Belarus" are applied to the relations on delivery of goods (Collection of presidential decrees and resolutions of the Cabinet of Ministers of the Republic of Belarus, 1996, No. 19, Art. 481; The National register of legal acts of the Republic of Belarus, 2000, No. 55, 5/3320) (further - the Provision) if other is not established by the legislation or the agreement. At the same time it must be kept in mind that regulations of the Provision extend to the relations between the legal entities and (or) individual entrepreneurs performing business activity in the territory of the Republic of Belarus and are not subject to application to consideration of the disputes following from the external economic contracts.
In cases if acts of the legislation, by technical regulatory legal acts or the agreement do not establish other procedure for goods acceptance by quantity and quality, are subject to application of the rule, established by Regulations on goods acceptance by the quantity and quality approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of April 26, 1996 No. 285 "About approval of regulations on goods acceptance by quantity and quality" (The bulletin of normative legal information, 1996, No. 6).
2. The delivery agreement is separate agreement type of purchase and sale. Legal relationship of the parties should be qualified as the legal relationship following from the delivery agreement in the presence of the signs containing in Article 476 of group of companies irrespective of the fact how in the text of the agreement the agreement, his participants and method of transfer of goods are called.
3. In case of absence in the agreement of strictly certain delivery date or different way of its determination rules, the stipulated in Clause 295 Civil Code are subject to application. Application of this regulation follows from Article 427 of group of companies according to which in case of absence the seller of obligation to transfer goods in the agreement of specific completion date completion date of its obligation is determined according to rules, stipulated in Article 295 groups of companies.
4. According to Article 428 of group of companies if other is not provided by the agreement, the obligation on delivery of goods is considered to the buyer performed in date of transmission of goods or delivery of goods to carrier.
If the delivery agreement contains condition about selection of goods by the buyer (Item 2 of Article 480 of group of companies), the obligation fulfillment moment is determined by delivery according to the rule of the subitem 2 of Item 1 of Article 428 of group of companies.
5. In case of the dispute resolution, the goods connected with improper execution of delivery, it is necessary to consider that the underdelivery takes place as in case of delivery of the goods quantity caused by the contract with violation of terms (untimely delivery), and in case of delivery of goods with adherence to deadlines or the delivery periods, but in quantity smaller, than it is provided by the agreement.
Untimely delivery will take place and in that case when goods of inadequate quality or incomplete are delivered, and the buyer timely declared the requirement about their replacement, fitting or remedial action with forces of the supplier.
6. In case of the dispute resolution, following from the delivery agreement signed with condition of its execution to strictly certain term (Item 2 of Article 427 of group of companies) it must be kept in mind that early delivery of goods or completion of the undersupplied goods quantity in the next period or the periods is allowed according to this obligation only in the presence of the consent of the buyer. Under delivery agreements of goods to certain term the notification is not required by the buyer of the supplier about refusal to accept overdue goods. If the specified goods are accepted by the buyer, obligations of the supplier are considered performed with violation of fixed term.
The procedure for calculation of penalty, the stipulated in Article 491 Civil Code, is applied to delivery agreements of goods to certain term, only if completion of underdelivery took place with the consent of the buyer, but was made not in full. In other cases the penalty is collected once for the period in which there was underdelivery.
7. According to Item 2 of Article 438 of group of companies if along with goods which range corresponds to the agreement goods with violation of condition about assortment are delivered, the buyer has the right to refuse as the goods which are not corresponding to condition about assortment, and all goods delivered at the same time. At the same time the buyer has the right to declare the requirement about payment of penalty for underdelivery of all batch.
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