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

of March 14, 2014 No. 16

About freedom of the agreement and its limits

Due to the questions arising in court practice and for the purpose of ensuring the uniform approaches to the dispute resolution following from agreements the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (further - courts) the following explanations:

1. According to Item 2 of Article 1 and Article 421 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation) citizens and legal entities are free in establishment of the rights and obligations on the basis of the agreement and in determination of any terms of the contract which are not contradicting the legislation.

According to item 4 of article 421 Civil Code of the Russian Federation of the term of the contract are determined by discretion of the parties, except cases when content of the corresponding condition is offered the obligatory rules for the parties established by the law or other legal acts (peremptory rules) existing at the time of its conclusion (article 422 Civil Code of the Russian Federation). In cases when the term of the contract is provided by regulation which is applied so far as the agreement of the parties does not establish other (residuary rule), the parties can the agreement exclude its application or establish condition, excellent from provided in it. In the absence of such agreement the term of the contract is determined by the residuary rule.

Applying the called provisions, courts should consider that the regulation determining the rights and obligations of the Parties of the agreement is interpreted by court proceeding from its being and is more whole than legislative regulation, that is the court takes into account not only literal value of the words and expressions containing in it, but also those aims which were pursued by the legislator, establishing this rule.

2. The regulation determining the rights and obligations of the Parties of the agreement is imperative if it contains obviously expressed prohibition on establishment by the agreement of the parties of the term of the contract other than the rule provided by this regulation (for example, it is provided in it that such agreement is insignificant, it is forbidden or it is not allowed, or is specified the right of the parties to depart from the rule containing normal only in this or that party, or called the prohibition otherwise is unambiguously expressed in the text of regulation).

At the same time can follow from the purposes of legislative regulation that the prohibition on the agreement of the parties containing in the peremptory rule about other shall be interpreted narrowly. In particular, the court can recognize that this prohibition does not allow establishment by the parties only of the conditions infringing the interests of that party protected by the law to which protection this regulation is directed.

So, the part four of article 29 of the Federal Law of 02.12.1990 No. 395-1 "About banks and banking activity" establishes prohibition on unilateral change by credit institution of procedure for determination of percent on the credit agreement signed with the borrower citizen, however it does not mean that such unilateral change of the specified procedure owing to which the size of percent on the credit decreases is forbidden.

Article 310 Civil Code of the Russian Federation allows approval in the agreement of the right to unilateral change or unilateral refusal from the agreement only in cases when the agreement is signed in connection with implementation of business activity by both of its parties. The purpose of this regulation consists in protection of weakness of the agreement. Therefore, the prohibition implied in it cannot extend to cases when in the agreement, only one of the parties of which acts as the entrepreneur, the right to unilateral change or unilateral refusal from the agreement is provided to the party, not being the entrepreneur.

3. In case of absence is normal, regulating the rights and obligations under the agreement, obviously expressed prohibition to establish other, it is imperative if proceeding from the purposes of legislative regulation it is necessary for protection of the significant interests which are especially protected by the law (interests of weakness of the agreement, the third parties, public interests, etc.), non-admissions of gross violation of balance of interests of the parties or imperativeness of regulation follows from being of legislative regulation of this agreement type. In that case the court states that exception the agreement of the parties of its application or establishment of condition, excellent from provided in it, inadmissibly or in general, or in that part in which it is directed to protection of the called interests.

At the same time, if the regulation contains direct specifying on opportunity to provide other the agreement of the parties, the court proceeding from being of regulation and the purposes of legislative regulation can interpret such specifying restrictedly, that is draw conclusion that dispositivity of this regulation is limited to certain limits within which agreement parties are free to establish the condition other than the rule containing in it.

In case of dispute on imperative or dispositive nature of the regulation regulating the rights and obligations under the agreement, the court shall specify how being of legislative regulation of this agreement type, need of protection of the corresponding significant interests which are especially protected by the law or non-admission of gross violation of balance of interests of the parties predetermine imperativeness of this regulation or limits of its dispositivity.

For example, Item 2 of article 610 Civil Code of the Russian Federation provides the right of each of agreement parties of lease, the prisoner sine die, unreasonably to refuse the agreement, having warned about it other party in the terms called in this regulation. This regulation though does not contain obviously expressed prohibition on establishment of other the agreement of the parties, but as agreements on cession of property in temporary ownership and use or in temporary use (article 606 Civil Code of the Russian Federation) follows from being of legislative regulation of the lease agreement that the parties of such lease agreement cannot exclude completely the right to refusal of the agreement as as a result of it the cession of property in ownership and use actually would lose temporality.

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