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How to call a service contract. Standard contract for the provision of services: conditions, form, sample

A service agreement is one of the most common agreements. It is in such legal form they cover communication services, medical, consulting, those related to education, etc. We would like to note that it is sometimes quite difficult to draw a clear line between services and work (for example, equipment repair). How to enter into transactions for the provision of services, and what are the varieties of this agreement, you can find out further.

What is a service?

A service is an activity, the result of which cannot have a material expression, it must be fully implemented and consumed in the process of its implementation. Work is considered to be an activity that has a purely material expression. The contract for the provision of services implies that the contractor must perform certain actions, and the customer, accordingly, is obliged to pay for them. The rules of the agreement on the provision of services for a fee are regulated by Civil Code. Chapter 39 of the Civil Code of the Russian Federation applies to a fairly wide range of services:

Audit;

informational;

medical;

Consulting;

Veterinary;

Tourist;

Training services, etc.

What is not included in services?

It should be noted that the following types of agreements do not apply to service contracts:

Work agreement;

For technical work;

commissions;

For the implementation of development work;

Transportation;

Bank account;

transport expedition;

storage;

bank deposit;

Trust management of property.

Subject of the contract

As already mentioned, the subject of such contracts is exclusively an intangible service. Since the quality of its provision directly depends on the person who will provide it, such a service must be performed by the contractor personally (unless the parties have indicated otherwise in the contract). Such an agreement must be made in writing. Each of the participants should also have a copy of such an agreement in their hands. Customers can be legal entities, individual entrepreneurs and capable individuals. The same circle of persons may be involved as a performer.

We draw up a contract

To draw up a correct contract for the provision of services, it is necessary to strictly adhere to the provisions of the Civil Code of the Russian Federation:

Be sure to indicate the subject of the agreement; and it is not enough to write marketing research”, it is necessary to specify by points what kind of activity it will be;

Specify all due powers and obligations of the parties;

Set clear deadlines within which activities must be completed;

It would also be useful to indicate the criteria by which the quality of the service will be determined;

In such an agreement, of course, the price of the contractor's services is prescribed;

Do not forget to also determine the responsibility of the participants in the transaction; it is also desirable to prescribe in the agreement the amount of compensation in case of unilateral refusal of it.

Features of the contract

In some cases, it is possible to conclude a contract for the provision of services only with those entities that have a license for such activities. For example, if we are talking about an agreement to provide medical care, then the medical institution must have a license. At the same time, it must be valid, and for those types of medical care for which, in fact, you applied. If the hospital provides care to patients without a license, it will face liability. In addition, if the performer does not have a license, then this agreement in court may be declared invalid. That is, such an agreement will not have any legal weight. The following rule can also be attributed to the features of the service agreement: in some cases, the service agreement is subject to general provisions about contracting and domestic contracting.

Termination of the contract

It should be emphasized that, unlike other types of transactions, civil contract for the provision of services can be terminated not only by mutual agreement of the parties, but also by one of its participants (executor or customer) unilaterally. The law provides that the customer may withdraw from the contract, provided that he compensates the contractor for all costs incurred by him. In addition, the customer can refuse the services of the contractor both before the start of the provision of the service, and already directly in the process of its provision. The contractor, in turn, also has the authority to withdraw from the contract. If such a refusal causes losses to the customer, the other party is obliged to compensate them.

Agency contract

The agency contract for the provision of services is an agreement between the principal (actually the guarantor) and the agent (intermediary, performer), according to which the first orders the provision of certain services by the second person ( legal services etc.) on behalf of the principal or directly on behalf of the agent. For such actions, the agent is entitled to a reward.

Mandatory conditions

To conclude an agency agreement in accordance with all the rules, it is necessary to indicate:

The function that the agent must perform;

Will he act on his own behalf or on behalf of the customer;

How will he report to the principal;

The amount of the fee and the timing of its payment;

Obligations and rights of the parties;

Are there any restrictions on the authority of the agent;

Terms of termination of the agreement;

Responsibility of the parties.

Certain types of contract

A variation of the contract under consideration is an agreement for the provision of consulting services. They can be both long-term and one-time. This type of contract is often concluded between different professionals and companies. The following are the most popular consulting services: legal, financial, strategic, advertising, informational. In the process of making various real estate transactions, a realtor agreement is often used. Many businessmen turn to marketing agencies to promote their brand in the modern world. Such companies usually provide a lot of services: defining target audiences, developing a brand profile, drawing up a brand strategy, etc. In addition to all these types of agreements, there are many others, and every day there are more of them. Therefore, to list them all within the framework of one article is simply unrealistic.

Important highlights

As it turned out, the contract for the provision of services has its own specifics. Therefore, his conclusion must be taken more than seriously. In addition, the customer may terminate such an agreement, in fact, at any time. So the performer is initially interested in the quality performance of the agreed actions, otherwise he may lose his earnings. Also, do not forget that when concluding such contracts, the contractor is often required to have a license. If an individual or an enterprise does not have a license, there is simply no point in concluding an agreement with him. Indeed, in the event of disagreement in court, such an agreement is declared invalid, and it will be extremely difficult to receive, for example, compensation for losses.

The range of services that the contractor can provide to the customer according to the standard form of a service agreement is extremely wide, thanks to a variety of actions to meet the needs in the civil law sphere.

The development of the economy and the growth of information (knowledge) in the intellectual field have contributed to the emergence of a large number of new services, the implementation of which is carried out on the basis of the conclusion of contractual relations for the provision of consulting, information and other services, including training services.

We have forms of contracts that are appropriate to conclude when providing the following services:

  • general;
  • legal;
  • accounting;
  • information;
  • consulting;
  • audit;
  • tourist;
  • communications;
  • marketing;
  • security;
  • advertising;
  • real estate;
  • transport.

What kind of services you or your client need is decided individually in each individual case, in our service you can find all these service agreements with the necessary annexes.

Legal regulation of contracts

The legal regulation of these agreements is carried out by the norms of the Civil Code of the Russian Federation. In particular, Chapter 39 of the Civil Code of the Russian Federation ("Paid services"). The rules of the chapter apply to contracts for the provision of medical, auditing, information, consulting, veterinary, training and some other services.

And Article 783 of the Civil Code of the Russian Federation states that the general provisions on the contract may apply to this agreement, if this does not contradict the subject of the agreement. It is worth remembering that these documents have a significant difference between them: in one case, services are provided to the customer, in the other, work is performed. It is quite difficult to distinguish between documents due to the lack of definitions of the concepts “work” and “service” in the Civil Code of the Russian Federation.

However, these concepts are defined in the Tax Code of the Russian Federation. Work is an activity, the results of which have a material expression. Services are considered to be activities, the results of which do not have a material expression, and are consumed in the process of carrying out this activity. Thus, when concluding a contract for the provision of services, the customer does not pay for the result of the work, but directly for the process of providing certain services.

The process of "providing a service" refers to the commercial (entrepreneurial) activity of an individual, legal entity or individual entrepreneur, aimed at meeting the needs of others. Services, most often, are provided on the basis of an appropriate form of an agreement for the provision of services concluded between the contractor and the customer.

The concept of a service contract

According to the service agreement, the contractor undertakes, on the instructions of the customer, to provide some service / services (perform certain actions or carry out certain activity), and the customer undertakes to pay for these services.

According to the above definition, a contract for the provision of services, or a sample thereof, is consensual, reimbursable and bilateral.

Contracts for the provision of services: features of the conclusion

The following rules apply to contracts concluded when providing any services in 2019:

  • According to Article 780 of the Civil Code of the Russian Federation, the contractor is obliged to provide services personally, unless otherwise provided by the concluded document. However, this does not deprive the contractor of the right to include in the sample agreement for the provision of services a condition on the involvement of co-executors, after agreeing on the conditions with the customer.
  • Some activities require a license.
  • A written task is the basis for a competent definition of the subject in a sample of such a contract for the provision of services. The formulation of the task is one of the main responsibilities of the customer, along with payment for the services performed on time and in the manner specified in the contract.
  • If the possibility of early provision of a particular service is not provided for by the agreement, the customer has the right not to pay for the services performed ahead of schedule.
  • In case of impossibility to fulfill obligations that arose due to the fault of the customer, he is obliged to pay for the services in full, unless otherwise provided by the contract or legislation.
  • In the event that it is impossible to fulfill obligations arising from circumstances beyond the control of the parties, the customer is obliged to reimburse the contractor for the expenses actually incurred by him, unless otherwise provided in the contract or legislation.
  • The customer has the right to terminate the contract for the provision of services, subject to payment to the contractor of the expenses actually incurred by him.
  • The contractor has the right to terminate the contract only on condition of full reimbursement of expenses to the customer.

Causes of disputes under the contract for the provision of services

  • Most often, disputes arise due to an insufficiently clearly formulated task, the absence of deadlines and other specific indicators in the contract.
  • A common cause of disputes is the insolvency of the customer, as well as the lack of mechanisms to ensure fulfilled obligations.

How to ensure the fulfillment of contractual conditions?

The fulfillment of obligations under the contract for the provision of any services is ensured in the following ways:

  • forfeit (in the form of fines);
  • bank guarantee;
  • retention of the debtor's property;
  • surety;
  • contract insurance;
  • deposit and some other ways provided by the agreement or legislation.

It is also advisable to apply insurance of concluded contracts. Such measures will help to eliminate or minimize property losses when concluding a sample contract for the provision of services, which you can download in our service.

The concept of a contract as a legal document is regulated by Articles 779-783 of Chapter 39 of the Civil Code of the Russian Federation. Drawing up contracts for the provision of services is necessary in cases where one party undertakes to perform certain work or actions, provide services, and the other party undertakes to pay for them. Such agreements are called service contracts and are usually made in writing. The subject of the contract can be a variety of types of services: audit, accounting, legal support, educational and medical services, services for different types works, for the supply of goods, etc. A separate issue is the drafting of contracts that require notarization. These include:

  • transactions between individuals and legal entities or only legal entities;
  • transactions for certain amounts (exceeding the minimum wage at least ten times);
  • transactions stipulated by law (specified in Article 161 of the Civil Code of the Russian Federation).

TO general information Service contracts include the following information:

1) Subject of the contract: the type and form of the services provided and the obligations of the consumer of these services;

2) Type of contract: one-time, framework, renewable, etc.;

3) Type of contract: drawing up contracts for the provision of services, purchase and sale, performance of work (contract), mediation, labor relations etc.;

4) Parties to the agreement: both individuals and legal entities;

5) Form of the contract: not stipulated by law, but written execution in 2 copies is required - non-compliance with this requirement in case of disputes does not confirm the existence of a transaction;

6) Conditions of the agreement: the law defines three categories of conditions when drawing up such contracts:

- ordinary, which are stipulated in the laws and must be included in the text of the agreement;

- the essential conditions indicated by laws for this type of agreement and the conditions on which one of the parties insists;

- random conditions - to supplement or change the usual conditions (these include: the designation of risk insurance, a non-standard number of copies, the procedure for making changes to the content, etc.);

  • introductory part;
  • designation of the subject of the contract (list of actions or activities of the contractor);
  • obligations and rights of the parties;
  • term of the contract (by agreement of the parties);
  • cost of services (goods, works), mechanism and terms of payment;
  • responsibility of the parties to the agreement;
  • conclusion.

The contract for the provision of services for a fee is considered officially concluded in the event of reached agreement under ordinary and essential conditions, which must be confirmed by the signatures of the parties (in accordance with Article 432 of the Civil Code of the Russian Federation). It should be noted that most standard contracts do not require special legal knowledge. But important agreements, transactions for large amounts, transactions in the course of which force majeure circumstances or complications may arise, must necessarily undergo legal examination. We strongly recommend entrusting the drafting of service contracts to experienced lawyers, which will guarantee successful resolution of disputes should they arise.

Agreement for the preparation of technical specifications

Drawing up a technical task is one of the key stages of many types of work and services, for example, architectural, design, engineering design, website development, creation of creative objects, manufacturing of non-standard products, etc. But, to draw up a technically and legally competent TK, which is the basis for the implementation of all subsequent work is not an easy and very responsible task. Therefore, it must be paid accordingly. For this, an agreement is needed for the preparation of technical specifications - a legal confirmation of the agreement between the customer and the contractor that the latter will develop the technical specification, and the former will pay for these works in accordance with the contractual terms.

As a rule, the drafting of contracts for the provision of services for the development of terms of reference includes the following items:

  • purpose, principles and objectives of future work (design, creative, others);
  • conditions and procedure for their implementation;
  • deadlines;
  • Expected results.

On the part of the customer, this contract requires the provision of initial technical data and a clear indication of what he needs from the contractor - this must be included in the text of the agreement. It should be borne in mind that verbal agreements are not legally binding and will not be taken into account in the event of disputes. The standard cost of developing technical specifications is 10-15% of total cost project or work.

Contract for the preparation of estimate documentation

Such an agreement is no less important point in the performance of certain works; it is a type of contract. This is an agreement that the contractor (contractor) undertakes to develop an estimate and submit it to the customer within the agreed time frame, who must pay for the work in accordance with the conditions. The contract for the preparation of estimate documentation is drawn up in writing and does not require certification by a notary, regardless of the amount of remuneration for services. This type of agreement must necessarily include certain essential conditions, namely: TOR for the preparation of estimate documentation, requirements for estimates, the amount and terms of payment for the work performed. In the absence of one of these conditions, the contract may be recognized as not concluded. Since the preparation of an estimate is not only a complicated matter, but also a very responsible one, then, as a rule, in contracts for estimate documentation a sufficiently large amount additional conditions. Some of the most important are sanctions for improper fulfillment of conditions, guarantees for the result and the responsibility of the contractor for the results.

Drafting a contract

The most frequently concluded type of agreement is the drawing up of a work contract or, in other words, for the performance of work. There are several types of such contracts:

  • construction contract (construction of buildings and structures, engineering networks, roads);
  • for research and design work(geodesy, geology, architecture, engineering network design, etc.);
  • contract for work for municipal and state needs(garbage disposal, maintenance of housing stock and infrastructure, etc.);
  • household contract (for repair or other work).

The execution of an order for subcontract work is also included in the preparation of such an agreement and is carried out in cases where the General Contractor (usually in construction) engages other contractors to perform special work. In form, a subcontract agreement is similar to a work contract, but it requires taking into account many legal subtleties regarding the resolution of disputes in construction. Therefore, it is preferable to entrust the drafting of a contract to a specialist or to carry out his legal expertise, especially if the amount of work and the amount of payment are significant.

Conclusion

The drafting of contracts for the provision of services must meet the following important requirement: the wording of the provisions should be as clear and understandable as possible and give unambiguous answers to the question of who, what and when should do, on what conditions, what remuneration and in what order will be received, what will be if the terms of the agreement are violated. A legally competently drafted contract removes almost all possible risks and makes it possible to resolve all claims and disputes out of court.

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Agreement - an agreement between two or more persons on the establishment, change or termination of civil rights and obligations (in accordance with Article 420 of the Civil Code of the Russian Federation).

Properly adjusted contract work system in the enterprise can prevent unnecessary errors and misunderstandings that delay human and financial resources. In addition, it will help to avoid many litigation disputes.

For example, the simplest error in contract work can bring your organization not only to the arbitration court, but also become the reason for initiating a “tax” criminal case. This, in turn, may affect the reputation of the organization, and in the case of tenders, adversely affect their results.

The author of the article, having climbed the career ladder from the position of assistant secretary to the deputy head of the legal department of a large federal unitary enterprise shares his experience gained in the field organization of document circulation contracts in the enterprise. In this article, we will take a closer look at:

  • preparation of a draft agreement;
  • its approval;
  • conclusion of an agreement (signing and sealing);
  • registration (including state registration);
  • accounting and operational storage, issuance of copies (originals) of contracts;
  • formation of a database according to documents of counterparties;
  • organizing the execution of contracts;
  • preparation of contracts for archiving.

The main thing is the principle!

At the initial stage of building contract work systems it is necessary to determine the principle on which it will be built:

  • centralized or
  • decentralized.

To do this, you should conduct a survey of business processes and methods of operation of the enterprise. Based on the information received, the question of who will be responsible for organization of contract work:

  • a specific structural unit (when choosing a centralized principle) or
  • individual employees in different structural divisions (when choosing a decentralized principle).

Having analyzed contract work experience in Russia, the author of the article can say that in most small and medium-sized companies document flow of contracts"torn" - divided between individual workers. The responsible executor prepares a draft contract, organizes its approval, the secretary or clerk registers, and the contract is stored either by the responsible executor or Chief Accountant businesses or anyone else.

In large companies, as a rule, the principle of centralization is used: the responsible executor prepares a draft contract and submits it to the office management service (or contract department), which coordinates, concludes, registers, records and stores contracts, and issues copies of them.

At the moment, the organization of contractual work on a centralized basis is the most optimal for large companies with a network of geographically remote subdivisions.

Preparation of a draft agreement

Preparation of a draft agreement (drawing up your own draft contract or reviewing received from the counterparty) carried out by the responsible person Togo structural unit, which initiates the conclusion of the contract, along with a lawyer.

According to article 161 of the Civil Code of the Russian Federation, transactions legal entities among themselves and with citizens should be carried out in a simple writing, with the exception of transactions requiring notarization.

The draft agreement is submitted for approval and signing as follows: number of copies:

  • usually by the number of sides;
  • for contracts effective from the date of registration by its authorized body state power or local government, (for example, lease agreements) - by the number of parties + 1 copy for the registering authority.

In the structure of any business contract, it is recommended to provide for the following: sections, which in some cases can be combined or separated:

  • Preamble.
  • Subject of the contract.
  • Rights and obligations of the parties.
  • Cost and procedure for making payments.
  • Special conditions contracts.
  • Responsibility of the parties.
  • Modification, termination and termination of the contract.
  • Confidentiality.
  • Dispute resolution.
  • Circumstances force majeure.
  • Contract time.
  • Addresses and details of the parties.
  • Signatures of the parties.

We check the counterparty!

At the stage of working with the draft contract, the responsible executor is obliged to ensure that the counterparty provides a package of documents. This is due to a number of reasons. The fact is that the concluded contract may not have legal force (for example, if it is signed by an unauthorized person). To avoid such excesses, it is necessary to carefully approach the verification of documents of the counterparty.

Based on practice, it can be said that full check documents of the counterparty (that is, checking not only registration and constituent documents, but also valuable papers, corporate documentation, assets, auditors' opinions, financial reports, etc.) is not appropriate when concluding all contracts. It may be necessary, for example, when joining an organization, since a working business is acquired, in the course of which certain obligations could be created.

The list of documents provided by the counterparty is determined by the legal service of the organization. Here is a sample list of them for your consideration:

  • documents containing information about counterparties:
    • documents provided legal entity:
      • copies of constituent documents,
      • a copy of the document confirming the authority of the head of the legal entity,
        • a copy of the power of attorney, duly certified by the legal entity, and a photocopy of the representative's passport (if the contract is signed on behalf of the legal entity not by its head, but by a representative),
      • copy of certificate of state registration legal entity with all changes,
      • copy of the letter of authorities statistical observation about the assignment of codes,
      • copy of certificate of registration tax accounting,
      • documents containing information including the company's postal address, phone number and Bank details,
        • copies of licenses certified by the seal of the organization and the signature of its head for the implementation of the relevant type of activity, certificates, etc. (in cases stipulated current legislation Russian Federation);
    • documents provided by the counterparty - individual:
      • copy of the passport,
      • a copy of the certificate of registration with the tax authority at the place of residence,
      • bank details (if necessary, payment through a bank),
      • copy of insurance certificate pension fund RF.

A general regulatory legal act establishing the procedure for checking counterparty documents in all organizations does not currently exist in Russia. Although there are separate special legal acts. For example, credit organizations and professional participants in the securities market have the right to request certain information about the counterparty:

  • in relation to individuals - last name, first name, and patronymic (unless otherwise follows from the law or national custom), citizenship, details of an identity document, details of a migration card, a document confirming the right of a foreign citizen or stateless person to stay (residence ) in the Russian Federation, the address of the place of residence (registration) or place of stay, taxpayer identification number (if any);
  • in relation to legal entities - the name, taxpayer identification number or code of a foreign organization, state registration number, place of state registration and location address.

Based on the practice of work, we can say that in most cases documents are presented by the counterparty without problems. It's become the norm business communication. Problems begin when checking documents. It may turn out, for example, that the license or power of attorney has expired. If, for a number of reasons, the counterparty cannot or does not want to submit documents, this should alert you.

Coordination of the draft agreement

Prepared draft contract the responsible executor submits to the records management service(or contract department) together with a package of documents. In our company, it consists of:

  • draft treaty in electronic form;
  • documents prepared by the counterparty;
  • approval sheet containing the following information:
    • FULL NAME. responsible executor indicating his position, the name of the structural unit in which he works,
    • visa of the responsible executor,
    • visas of the heads of the responsible executor,
    • type of document sent for approval (agreement, supplementary agreement),
    • name of the counterparty,
    • endorsement list,
    • the date of receipt of the document for approval and the date of return of the document by the employees approving the contract.

      Sheets for the approval of draft agreements are registered in a special journal, which makes it possible to clearly record the number of draft agreements submitted for approval. The journal also reflects the progress of the coordination of draft agreements. The presence of links to the date of receipt of the agreement for approval and the date of return from the approving specialists helps to track the terms of approval by each approving specialist, as well as their violation;

    • explanatory note (if necessary). An explanatory note signed by the responsible executor must contain the following information:
      • rationale for the need conclusion of the contract,
      • justification for choosing a counterparty,
      • about the counterparty
      • subject of the contract (briefly),
      • contract amount,
      • conditions of payment,
      • conditions for receiving payment or fulfilling obligations;
  • feasibility study (feasibility study) of the project, if necessary. It contains the following information:
    • substantiation of the expediency of the transaction,
    • the subject of the transaction, the total amount of the transaction, other material conditions,
    • an estimate of the costs associated with the execution of the transaction, economic consequences making a deal,
    • terms of the transaction,
    • description of the counterparty: what period of time is present on the market for this product (works, services), how it has established itself, etc.

It should be noted that the above list of documents is approximate, because. each enterprise establishes its own procedure for contractual work, which largely depends on the type of activity of the organization and the volume of contracts. From the above list, each company has the right to choose those documents that are most optimal for it.

So, for example, in large trading and manufacturing companies, it is desirable to have an explanatory note to the contract. It gives a clear idea of ​​the purpose of the contract. If the head of the enterprise has to sign a large number of contracts daily, then the explanatory note significantly reduces the time he spends studying the contract. In addition, it provides the necessary information for approving employees.

In large trading companies offering goods or services, standard contracts have been developed, in which case there is no need to prepare an explanatory note, and possibly an approval sheet. There is no need for these documents in small companies, where the head can sign up to 2 contracts per day. Therefore, the organization of contractual work should be approached creatively, analyzing many factors and choosing the most optimal way to negotiate contracts.

Coordination of the draft agreement organizes office work(or contract department).

Since contractual relations are serviced by both legal, and accounting, and financial service, it turns out that contractual work should permeate through and through the entire economic activity enterprises. It is properly organized negotiation of contracts helps eliminate the possibility negative consequences associated with the invalidity of the contract or additional economic, tax, currency, customs and other losses.

Each enterprise can independently determine the list of persons carrying out approval of the draft contract, which should be fixed in the local normative act. As a rule, "vising" positions are:

The availability of additional visas depends on the specifics of the contract sent for approval.

To optimize the process of negotiating contracts in the organization, standard forms contracts, which must be approved by order of the head of the organization (see Example 2). As a rule, this applies to contracts, the conclusion of which is related to the main activity of the enterprise: in trade organizations they are standard supply contracts, insurance companies are developing standard insurance contracts.

At the conclusion standard contract its draft is agreed only with the legal service, which checks the submitted draft document for compliance with the standard one and checks the documents of the counterparty. This significantly reduces the time for negotiating the draft agreement.

should be distinguished standard contracts, approved by the organization, and the so-called contract templates, which represent exemplary texts of contracts. Unlike draft model contracts draft contracts that are drawn up using a template must be agreed with the full range of specialists in a particular enterprise.

All specialists agreeing on the draft contract make notes in approval sheet(see Example 3), and in case of disagreement with the draft agreement, they must write a reasoned conclusion in the remarks sheet or issue it in the form of a separate document (see Example 4).

The approval sheet developed at our enterprise and shown to you in Example 3 contains the “Signing the contract” section. But it is relevant only for large enterprises with a large number of persons entitled to sign contracts. The "Notes" section helps to confirm the transfer of documents (their list) by employees of the clerical service (contractual department) to the responsible executor for sending documents to the counterparty, which is very important in case of loss of documents.

With absence explanatory notes at the enterprise, additional information can be entered in the approval sheet by placing it before the “Agreement” section:

The terms for the approval of the draft contract by each specialist must be determined in the local regulatory act, this may be the Regulation on contractual work. Wherein responsibility for meeting deadlines is assigned to the specialists who carry out the sighting, and control over compliance with the deadlines is assigned to the head of the records management service (head of the contract department).

If there are comments at the sighting persons to draft treaty it is transferred by the employees of the clerical service (contractual department) to the contractor for the elimination of comments, and then re-sent for approval. If disagreements remain, then the responsible executor initiates a meeting with the participation of the heads of the departments concerned. The meeting is recorded, and based on its results, the director of the organization decides on the expediency or inexpediency of concluding an agreement.

When organizing the process of negotiating contracts, one nuance should be taken into account. In a local regulatory document, as a rule, the positions of specialists who have the right to visa contracts without indicating their names are fixed. This is expedient, because in case of dismissal or transfer of the approver, no amendments to the local regulatory act are required.

However, in the absence of employees (when sent on a business trip, being on sick leave) who have the right approval of contracts, the acting specialists of the above-mentioned specialists are not always appointed. Therefore, in order to implement continuous process approval of contracts by order of the organization, the right to endorse draft contracts may be granted specific employees additionally. A sample order is shown in Example 5.

Conclusion of an agreement
(signing and sealing)

A draft agreement agreed upon by all specialists is prepared by the record keeping service (or employees of the contract department) for signing.

There are cases when one of the parties, having received an agreement signed and sealed by the other party, replaced some of the pages violating previous agreements. In order to avoid the occurrence of such situations, in the practice of contractual work, there are several ways:

  • sighting (initialization) of each page of the contract by the persons who sign it. Maybe endorsement of the text of the agreement the head of one of the structural divisions who has been granted such a right, which should be fixed accordingly in the local regulatory act of the organization, for example, the head of the legal service. In this case, initialing can be carried out using a special stamp, which indicates:
    • Name of the organization,
    • sheet number of the contract from the total number of sheets, for example, "Sheet No. 1 of 5 sheets",
    • the signature of the respective manager;
  • stitching sheets of the contract indicating the number of stitched, numbered sheets and affixing this information with seals and signatures of the parties. Typically, the inscription looks as shown in Example 6. Special attention should be paid to the stamping of the seal when certifying the document. It must capture part of the title of the person signing the document, and part of the sheet on which it says "Stitched, numbered, sealed ___ sheets." It is this arrangement of prints of seals that helps to avoid forgery of documents.

The right to sign a contract have:

  • persons holding the relevant position, in accordance with the constituent organization documents,
  • authorized persons.

It should be taken into account that even whenthe contract is signed not a representative but the first person of the company - it may not always have the authority to complete the transaction.

For example, making a decision to conclude a major transaction, the subject of which is property joint-stock company, the value of which is more than 50% of the balance sheet value of the company's assets as of the date of the decision to conclude the transaction, must be approved general meeting shareholders (Article 79 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies”).

A similar procedure has been introduced for heads of unitary enterprises. In accordance with Article 23 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises”, the head of a unitary enterprise is limited in the amount of transactions made. Thus, a transaction for the alienation of property should not exceed 10% of the authorized capital or 50 thousand statutory minimum dimensions wages (at the moment it is 5,000,000 rubles). To conclude more big deals owner's consent is required.

Similar restrictions are also provided for in Art. 46 of the Federal Law of February 8, 1998 No. 14-FZ "On Limited Liability Companies".

In addition, additional restrictions on the powers of the first person of the company may be contained in the constituent documents of the enterprise. If such restrictions exist, care must be taken to ensure that the decision to conclude a contract is approved by the relevant persons. Otherwise, the contract may be declared invalid by virtue of Art. 174 of the Civil Code of the Russian Federation.

If the contract is signed by a person on the basis of a power of attorney, You need to pay attention to what type it belongs to. Depending on the content of the powers specified in the document, there are so-called:

  • general powers of attorney (issued for a representative to perform a wide variety of transactions on behalf of the represented),
  • special powers of attorney (issued to conclude homogeneous transactions (contracts), for example, only sales contracts) and
  • one-time powers of attorney (issued for signing a specific contract, while the power of attorney must indicate the number and date of the contract, the name of the counterparty with which it is necessary to conclude this contract, briefly the subject of the contract, as well as the amount for which the contract is concluded).

Why is it important to know this difference? The mere fact that the person signing the contract has a power of attorney does not mean that the person has the authority to conclude this agreement. Imagine specific situations (see Examples 7 and 8). In both cases, transactions will be invalid.

It should also be taken into account that power of attorney is issued for a certain period, which is set at the discretion of the person who issued it, but cannot exceed 3 years (Article 186 of the Civil Code of the Russian Federation). If the term of validity is not specified in the power of attorney, it shall remain in force for one year from the date of its issuance. A power of attorney that does not indicate the date of its issue is void. This document must be signed by the head of the organization, or by a person who has been granted the right to sign powers of attorney. A power of attorney issued by way of substitution is valid only in the case of notarization in accordance with paragraph 3 of Art. 187 of the Civil Code of the Russian Federation (with the exception of individual cases), the period of validity of such a power of attorney may not exceed the period of validity of the power of attorney on the basis of which it was issued.

A sample of a special power of attorney is shown in Example 9. It should be noted that the seal impression must capture part of the title of the person signing the power of attorney. In addition, we will give an example of issuing an order to revoke a power of attorney for such a common reason as the dismissal of an employee (see Example 10).

In the clerical service (contract department) should copies (or originals) of powers of attorney for the right to sign contracts are kept. For systematization of information by proxy a Register of powers of attorney for the right to sign contracts is drawn up (see Example 11). Copies of powers of attorney should be provided to the heads of departments preparing draft contracts. On the basis of the issued powers of attorney, a Register of specimen signatures of persons entitled to sign contracts is compiled (see Example 12).

We present to your attention a matrix of the process of agreeing and signing contracts (see example in Example 13).

Symbols: P - signs; MP - can sign; B - sights. Pay special attention to symbol MP - can sign. From a legal point of view, several people can have the right to sign the same contracts at once (first of all, this is the first person of the organization, as well as other persons who have the appropriate powers of attorney). However, according to the procedure established within the organization, homogeneous agreements can be signed by only one person, while other persons get the opportunity to exercise their powers only in case of his absence (illness, business trip, etc.).

If the enterprise has a practice of sending cover letters along with contracts, the office management service (contract department) may be entrusted with the function of preparing them. Letters are submitted to be signed by the manager along with the draft agreement.

All contracts signed by the first person of the organization or a person authorized by him on the basis of a power of attorney are certified by the seal of the organization. The seal is placed on the contract when:

  • the presence of a signature;
  • availability of visas for the required persons;
  • if the signature on the agreement matches the sample signature of the authorized person in the Register of Signature Samples.

Registration of contracts

All contracts signed by the head of the enterprise (authorized person) are transferred to the office management service (contract department) for registration with the assignment of the corresponding number to the contract.

Each party to the contract must, after signing, assign a serial number to it and ensure its internal registration. Therefore, the contract number is usually complex, consists of separate numbers of counterparties, which are written through a fraction, which is not always convenient (see Example 14).

In practice, there is another way assigning a contract number: if the organization receives a contract that has already assigned a number to one side, then the second party, having carried out internal registration, indicates its registration number on the back of the last page of the document. In this case, a special stamp is used, which indicates the name of the organization, the registration number of the contract and the date (see Example 15). In this case, the contract number will be the number assigned by the counterparty (see contract No. AB104 with Leos LLC in Example 16).

When an organization receives an agreement without a number, it is assigned a number that matches the registration number, then it is affixed on the first page of the document (see agreement with MOR CJSC No. 116/10/06 in Example 16).

For large companies, the following structure can be recommended contract registration number: serial number of registration in the records management service, the number of the structural unit in accordance with the approved classification in the organization or the letter designation of the structural unit, the year the contract was concluded. For example: 108/07/06 or 199-KS/06, where KS is the letter designation of the commercial service.

Registration of contracts carried out in a special journal, which, as a rule, is kept in in electronic format. We recommend the following composition of the columns of the Contract Registration Journal:

  • registration number;
  • additional number (counterparty number);
  • agreement date;
  • name of the counterparty;
  • subject of the contract;
  • validity;
  • responsible unit (responsible executor);
  • contract price;
  • availability of applications;
  • who signed the contract.

If the organization uses the numbering of contracts through a fraction, then instead of two columns “registration number” and “additional number (counterparty number)”, one is entered - “contract number”.

In a number of cases, determined by law, contracts require state registration. For example:

  • a lease agreement for a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration;
  • license agreements (registration and re-registration of trade names, trademarks, service marks, assignment of claims under trademarks) come into effect only after their registration with Rospatent;
  • deals with land and other real estate subject to state registration in accordance with Art. 164 of the Civil Code of the Russian Federation.

Transfer of the signed contract to the counterparty

The contract signed on behalf of your organization is transferred to the responsible executor against signature in the approval sheet (see Example 3 in the first part of the article on page 35 of the March issue of the magazine for 2006) for transfer to the counterparty. In our organization, the responsibility for the delivery of the contract to the counterparty rests with the contractor under the contract. As a rule, in large enterprises, sending documents is assigned to preschool service, which should maintain the Register of sent documents.

The contract can be sent registered mail with acknowledgment of receipt. It can be handed over to authorized officials counterparty organization or in any other way that allows you to reliably confirm the fact of receipt of the contract.

When sending important documents by mail, you should do it by registered mail with acknowledgment of receipt. Tracking the return of notifications will allow you to control the progress of delivery of contracts to partners. In some cases, it is appropriate to send documents with a list of attachments (in the form of valuable letters and parcels).

Unfortunately, documents may be lost, damaged, or delivered late when sent by mail. In all these cases, in accordance with the Rules for the provision of postal services (approved by Decree of the Government of the Russian Federation of April 15, 2005 No. 221), you can apply to the post office with a claim. Moreover, both to the postal operator who accepted the shipment, and to the postal operator at the destination of the postal item. Postal workers are obliged to accept your claim for consideration within 6 months from the date of sending the documents you are looking for or damaged by them.

The claim is made in writing. Copies of all documents related to the issue under consideration are attached to it. First of all, this is a receipt for sending and an inventory of the attachment (if we are talking about a valuable shipment). A copy of the contract for the provision of postal services is attached only if such is concluded. If the essence of the claim concerns a delay in the delivery of a simple item, then it is necessary to present its shell with the dates of receipt and receipt of the postal item indicated on it.

The terms for considering claims depend on the geography of the movement of the postal item with which problems arose. For shipments within the same locality, you should be answered within 5 days. For all other postal items and transfers - within 2 months.

Issuance of originals and copies of contracts

Issuance of originals and copies of contracts is carried out by employees of the records management service (contractual department) on the basis of a written request. At our enterprise, this is documented by a memo. It should indicate the rationale for the need to obtain a document, to whom (full name, position) and for how long it is issued. See Samples of memos in Examples 17 and 18. See Example 19 for filling out a special journal that records the fact of issuing and returning documents.

At issuance of the original contract employees of the record keeping service (contractual department), according to the procedure established at our enterprise, are obliged to make a photocopy of the contract and enclose it in the case.

To ensure order and avoid loss important documents, you can periodically carry out the following procedure. At the end of the month, the record keeping service (contract department) prepares a report on the movement of contracts. On its basis, all heads of structural divisions are sent office notes with a list of contracts to be returned (see Example 20).

Accounting for documents of counterparties

An internal regulatory document should define a list of registration and constituent documents that should be requested from the counterparty before concluding a transaction with him. The composition of the documents depends on who your organization is dealing with - these are individual or legal, resident or non-resident of the Russian Federation (we discussed this issue in more detail in the first part of the article published in the previous issue of the journal).

All necessary documents about the counterparty are provided by the responsible executor along with the contract to the office management service (contract department), where they are to be stored. Documents of counterparties are formed into cases according to the card index system in alphabetical order with a general directory, which is usually maintained in electronic form (it also indicates the number of the case in which the documents of the counterparty are stored). Each counterparty can be assigned a code.

When concluding several contracts with the same counterparty, re-submission of documents is not required. Upon receipt of each new contract, documents are checked for:

  • the right to sign the contract, the term of office of the head of the enterprise;
  • validity period of the license, powers of attorney;
  • registration addresses;
  • compliance of the subject of the contract with the direction of the counterparty's activities in accordance with the charter.

If necessary, additional documents may be requested from the counterparty.

Storage of contracts

Contracts signed by an authorized person of the organization are transferred by the employees of the record keeping service (contract department) to the responsible executor, and contracts signed by all parties (usually these are bilateral transactions) remain in the record keeping service for operational storage.

All contracts are formed into cases in accordance with the nomenclature of cases of the clerical service (contract department), which is part of the Consolidated nomenclature of cases of the enterprise. When compiling the nomenclature, it is very important to choose the classification schemes for its construction.

The main requirement is that the title of the case should clearly and in a generalized form reflect the main content and composition of the documents of the complex, since it is by the title that the search is made required documents. Headings of cases can be specified in the process of formation and execution of cases, however, in any case, when compiling them, the established rules should be followed.

Mandatory elements of the heading of the case are:

  • the name of the type of complex (case, correspondence) or the name of the type of documents (protocols, contracts, etc.);
  • the following are clarifying data, the composition and sequence of which are determined by the nature of the documents of the case:
  • the name of the author of the documents (the name of the organization or structural unit);
  • addressee or correspondent (name of the organization where the documents were sent or from whom they were received);
  • generalized summary case documents;
  • indication of the location of correspondent organizations (territory, locality);
  • the dates to which the documents of the case refer;
  • an indication of the authenticity or copies of the documents contained in the file.

In some cases, it is possible to form cases on an object basis. So, in one case, agreements will be formed, concluded with a specific organization, which will act as a specific object.

Therefore, when developing nomenclatures of cases, it is necessary first of all to develop contract classification principle at the enterprise in such a way that it provides the fastest possible search for contracts, allows you to reasonably distribute documents and form files. Indeed, often contracts are concluded not for one year, but with the possibility of their subsequent prolongation. Therefore, usually in the clerical service (contractual department) a large number of valid contracts concluded several years ago can be stored.

Document retention periods are established in accordance with the "List of standard management documents generated in the activities of organizations, indicating the periods of storage" (M., 2000), with departmental lists of documents and other normative documents. At the same time, contracts with a fixed shelf life should be singled out separately, for example:

  • gift agreements;
  • sales contracts land plots, buildings, premises;
  • agreements on long-term lending and investment activities;
  • contracts for the right of ownership, possession, use, disposal of property (a permanent storage period for all contracts of this group is established by Article 57, at the same time for individual contracts of this group, the List establishes exceptions - shorter periods of storage, for example, Article 28 obliges to store purchase agreements - sale of shares by shareholders only 5 years after their expiration date);
  • contracts for registration and re-registration of trade names, trademarks, service marks;
  • agreements on the acceptance and delivery of premises for rent;
  • privatization agreements;
  • agreements on economic, scientific and cultural relations;
  • contracts for the supply of materials (raw materials), products, equipment for state needs.

It should be noted that during the storage and formation of cases, each contract should be accompanied not only by additional agreements on its amendment and addition, but also, if it is determined by the terms of the contract, letters on changing the details of the parties, as well as letters on termination of the contract in a unilateral okay. Such letters received from the counterparty must be registered. Letters sent by your organization to the counterparty must also be registered and marked as received by an authorized person of the counterparty. In addition to each contract, approval sheets with specialist visas can be attached.

Let us give as an example a fragment of the nomenclature of cases of the clerical service, directly related to contract work:

1 See the federal law dated 07.08.2001 No. 115-FZ “On counteracting the legalization (laundering) of proceeds from crime and the financing of terrorism”.