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» Features of a foreign economic agreement

A. S. Selivanovsky
PhD in Law

Features of a foreign economic agreement

When drawing up an agreement (contract) with a foreign counterparty, as a rule, two approaches are used: drawing up a short or very detailed text.

Practice shows that both the first and second approaches are fraught with many pitfalls.

In the case of a short contract, in the event of a dispute, the parties have to spend a lot of time and money on settling undescribed points and clarifying the rules that should be applied in a particular case.

At the same time, the analysis of multi-page detailed contracts does not always lead to comforting conclusions:

1. often such contracts are drawn up according to a stencil that does not sufficiently take into account the type of goods that are the subject of sale and purchase. Almost the same conditions are provided for both in respect of all types of mass food and industrial goods, and in relation to machinery and equipment.
2. contracts of approximately the same content are drawn up regardless of the partner from which country they are concluded, and without regard to applicable law.
3. when drawing up contracts, references are relatively rarely made to standard terms of sale adopted in international trade, and in particular to the General Conditions of Delivery.
4. the desire to provide conditions in the contract for all cases that may arise during its execution, complicates, on the one hand, negotiations at the conclusion of the contract, and on the other hand, leads to burdening the contract with a large number of general provisions, often more precisely formulated and to greater benefit for the Russian parties to the applicable law. In addition, as practice shows, it is impossible to foresee everything in the contract.

To avoid disputes, when concluding a foreign economic agreement (contract) and determining its content, it is necessary to take into account a number of points.

Applicable right

When drawing up an agreement (contract) with a foreign counterparty, it is necessary to pay special attention to the applicable law - the law that will be applied to regulate relations between the parties. The relations of the parties are determined not only by the terms of the contract, but also by the norms of the applicable law. Non-compliance of the contract or any of its conditions with the mandatory provisions of the law may lead to the recognition of the agreement (contract) as invalid in whole or in part of a certain condition of it (for example, if the form of the contract is not observed).

Sometimes it turned out to be impossible to use the condition stipulated by the contract.

Example. The law in force in the UK and the US does not allow enforcement by a court or arbitration of a contractual condition for the payment of a fine. For the Russian side, it often turned out to be unexpected that the gap in the contract is filled with the help of the applicable law, when the contract does not contain a condition on any issue. During consideration of one of the disputes, the Russian buyer, objecting to the claim of the foreign seller for compensation for losses caused by the violation of the contract by the buyer, stated that he should be released from liability, since the contract only provides for the liability of the seller.

It is not always taken into account that there are significant differences in the resolution of the same issues in the law of different states, and therefore it is necessary to know which of them will govern relations under a particular contract.

Example. In accordance with Russian, German and Bulgarian law, the inclusion in the contract of a penalty clause as a general rule does not deprive the right to claim damages in the part not covered by the penalty. At the same time, the law of Poland and the Czech Republic proceeds from the fact that a contractual penalty is recognized as an exceptional penalty, i.e. damages in excess of the fine cannot, as a general rule, be recovered. In French law, the penalty is also recognized as exceptional, but the judge is given the right to change the amount of the penalty if it is too high or low.

The question of the law applicable to the contract, as a general rule, is decided by agreement of the parties, and in the absence of such an agreement, by using the relevant conflict of laws rules by the court or arbitration, answering the question of the law of which country governs relations in which there is a foreign counterparty.

The above rules do not apply to those imperative norms of legislation Russian Federation, which, as a result of being indicated in them or due to their special significance, including for ensuring the rights and legally protected interests of participants in civil circulation, regulate the relevant relations, regardless of the law to be applied.

When determining the law to be applied, the interpretation of legal concepts is carried out in accordance with Russian law, unless otherwise provided by law.

If, in determining the law to be applied, legal concepts, requiring qualification, are not known to Russian law or are known in a different verbal designation or with a different content and cannot be determined by interpretation in accordance with Russian law, then foreign law may be applied in their qualification.

The civil legislation of the Russian Federation provides that in the absence of an agreement between the parties on the law to be applied, the law of the country with which the contract is most closely connected shall apply to the contract. Such a right is considered, unless otherwise follows from the law, the conditions or essence of the contract or the totality of the circumstances of the case, the law of the country where the place of residence or the main place of activity of the party that performs the performance, which is decisive for the content of the contract, is located.

With regard to the contract of sale, the seller is recognized as such a party, unless otherwise follows from the law, the terms or essence of the contract, or the totality of the circumstances of the case. At the same time, it should be borne in mind that the court (including the state court) is granted the right, taking into account the above criteria provided for in the Civil Code of the Russian Federation, to recognize as applicable the law not of the seller's country, but of another state.

With regard to foreign economic contracts, two types of international agreements are important:

• treaties establishing the regime of trade in relations between two states or a group of states. For example, agreements on trade and economic cooperation, trade and payments, payment agreements.
• contracts containing civil law rules governing property relations arising from foreign economic contracts.

When drawing up an agreement (contract) and agreeing on its terms with a foreign partner, it is necessary to check whether international agreements of the first type are valid in relations between Russia and the state whose jurisdiction the counterparty belongs to. The legal regime of interstate trade directly affects the price level. Interstate agreements on the contingents of mutually supplied goods create the appropriate prerequisites for obtaining licenses and other permits, if necessary, and on payment issues they predetermine contractual conditions for settlements, including the currency of payment.

Russia is a party to the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) . Therefore, it is important to determine whether the provisions of the Vienna Convention will be applied to relations under the concluded contract. If the state in which the place of business of the foreign partner is located is also a party to this Convention, then the Vienna Convention certainly applies.

In accordance with the Vienna Convention, a contract, in order to be recognized as concluded, must contain a minimum of conditions (parties, product designation, quantity and price or the procedure for determining them). Moreover, if the applicable national legislation recognizes as legally valid a contract concluded without specifying a price in it, then the Vienna Convention allows the conclusion of a contract without including a price clause in it (Russian legislation allows this). All other conditions, if not specified in the contract, are determined by the provisions of the Convention. Such norms are valid only if otherwise is not provided by agreement of the parties. If a Russian entrepreneur is satisfied with the relevant provisions of the Vienna Convention, there is no need to spend efforts on agreeing such conditions with a foreign partner. The Vienna Convention governs the relations of the parties under an international sales contract also in the case when the commercial enterprise of a foreign partner of a Russian entrepreneur is located in a state that is not party to the Convention (for example, in the UK, Japan), but on condition that the applicable law to the contract is the law of a state party to the Convention.

When the General Conditions of Delivery of a regulatory nature are applied in trade between Russia and the state of the contracting partner, it may be stipulated in the agreement (contract) that the relevant General Conditions of Delivery will otherwise apply. If the General Conditions of Supply, which are optional, are applied between Russia and the partner country, it is necessary to weigh how their provisions satisfy the interests of your organization. In permanent business relations with a specific partner, it is practiced to agree with him the General Terms and Conditions of Sale so that in a specific agreement (contract) or an addendum to the agreement (contact) refer to them in everything that is not provided for in its text.

Let us mention some standard agreements (general conditions).

Model international sales contract finished products(intended for resale) developed by the International Chamber of Commerce. This document proceeds from the application of the Vienna Convention to the relations of the parties and the use of the basic terms of delivery based on Incoterms 2000. It also contains some provisions that go beyond the regulation of the Vienna Convention, in particular: on the issue of retaining the ownership of the goods by the seller until full payment by the buyer prices; about the penalty for delay in delivery.

Developed under the leadership of the United Nations Economic Commission for Europe general conditions and model contracts for various kinds trade deals(there are more than 30). Such general conditions apply, for example, to the export of machinery, the sale of consumer goods long-term use and other mass-produced metal products, purchase and sale of lumber conifers, international sale of citrus fruits.

Model contracts widely used in international trade, developed by the relevant industry associations of traders of a certain type of goods. Such standard contracts are drawn up for each separate view goods (grain, vegetable oils, cotton, natural rubber, timber, hides, coal, non-ferrous metals, etc.).

Incoterms 2000- International Rules for the Interpretation of Trade Terms, developed by the International Chamber of Commerce in 2000. They provide the concept and interpretation of 13 basic terms of delivery most commonly used in modern international trade (FOB, CIF, CAF, FAS, free carrier, etc.).

With regard to Incoterms 2000, two points should be taken into account in particular. First, paragraph 6 of Art. 1211 of the Civil Code of the Russian Federation provides that if the contract uses trade terms accepted in international circulation, in the absence of other indications in the contract, it is considered that the parties have agreed on the application to their relations of business customs denoted by the corresponding trade terms. Secondly, by a resolution of the Board of the Chamber of Commerce and Industry of the Russian Federation of June 28, 2001, Incoterms 2000 are recognized as a trade custom in Russia. It follows from the foregoing that even if there is no reference to Incoterms 2000 in the contract, they will be applied in interpreting the relevant basic delivery condition to the extent that the contract does not expressly provide otherwise.

It is also possible to develop your own standard contracts containing general provisions, in determining which it is advisable to use the same sources as in the development of the General Conditions of Sale. In addition to general provisions, a standard contract usually provides for the relevant columns to be filled in in each specific case (subject of the contract, quantity, quality requirements, price and delivery basis, delivery time, terms of payment, etc.).

It must be taken into account that the application of the Vienna Convention in relation to certain types goods, in particular ships of water and air transport, hovercraft, electricity, securities. At the same time, they either unconditionally fall under the scope of regulation of the civil legislation of the Russian Federation, or, as it is provided for securities, they are regulated by general provisions on the sale and purchase, unless special rules for their sale and purchase are established by law.

When drawing up a foreign economic agreement (contract), it is necessary to pay special attention to the provision on the applicable law. Without said provision agreement (contract) should not be signed.

When choosing the applicable law, you should evaluate which rules best take into account (protect) the rights of your organization.

Arbitration clause

Particular attention should be paid to the so-called "arbitration clause" - a contract condition that determines in which court the dispute between the parties will be considered if it arises.

If there is an arbitration clause in the contract that provides for alternative law apply for dispute resolution to one of the two arbitration courts, the plaintiff has the right to apply to any of them at his discretion.

Example. The agreement between a Russian organization and a Belgian company may include a provision according to which disputes between the parties are resolved in the Arbitration Institute of the Stockholm Chamber of Commerce or in the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation in Moscow.

If the parties to a contract agree to submit their disputes to a specific arbitral tribunal, they may specify that the jurisdiction of such disputes in state courts is excluded. It should be noted that in legal terminology, foreign languages the terms "arbitration" and "arbitration court" (for example, "arbitration" and "arbitration court" in English or "Schiedsgericht" in German) mean "arbitration court" and are not applicable to Russian state arbitration courts.

It is advisable to determine in the contract the applicable procedural law and the place of disputes in case of their occurrence.

Definition Russian court as a court that will consider the dispute, will reduce possible costs.

Contract language

In practice, foreign trade contracts are drawn up in two languages ​​(languages ​​of the parties). However, it is not uncommon for contract texts in different languages ​​to have differences, sometimes even significant ones, which can subsequently lead to disagreements on certain issues of the transaction. Therefore, it is advisable to include a clause in the text of the agreement (contract) about the priority of the version of the contract in one language or another (for Russian entrepreneurs, the priority of the version in Russian is natural), because in the event of a disagreement between the parties on the content of a contract term, the term in the preferred language will apply. Otherwise, each of the parties, when executing the agreement (contract), will be guided by the text in their native language, which may lead to disputes.

In the case of drawing up an agreement (contract) in two languages, it is necessary to check whether the agreement (contract) contains an indication of the text in which language will be the “standard” (has priority) in case of discrepancies.

Subject of the contract

The subject of the agreement (contract) is an essential condition. When it is formed, gross errors are made, relating mainly to determining the quality side of the product and its packaging.

Such negligence can lead to the delivery to the Russian buyer of goods, although they comply with the terms of the contract, but not of the quality that he expected.

Example. The subject of the contract was the supply of a batch of SONY TV sets, which was carried out by a foreign partner, but later it turned out that the goods were made not in Japan, but in China. Naturally, TVs made in China are inferior to TVs made in Japan in terms of reliability and technical characteristics. In this situation, the Russian side will not be able to demand the replacement of the delivered goods, since the contract does not contain an exact condition for the delivery of Japanese-made TV sets.

When drawing up an agreement (contract), it is necessary to pay special attention to the detailed statement of the conditions on the subject of the contract.

When determining the subject of the contract of sale, you should specify:

• full commercial name of the product, its range, dimensions, models, completeness, country of origin;
• container/packaging, marking of goods;
• volume, weight, quantity;
• volume of cargo, its weight with or without packaging.

Contract form

In accordance with paragraph 3 of Art. 162 of the Civil Code of the Russian Federation, foreign economic transactions must be carried out in a simple writing. Failure to comply with the written form entails the invalidity of the transaction. An agreement in writing can be concluded both by drawing up a single document signed by the parties, and by exchanging documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the agreement.

As practice shows, the conclusion of a contract by exchanging faxes can lead to subsequent misunderstandings, because. this form of communication does not guarantee that the text received by fax is exactly the same as the text sent. In a number of cases, it turned out that due to a discrepancy between the text of the proposal and the acceptance sent and received by fax, the opinions of the parties on the content of the contract concluded by them did not coincide. There were also cases when the parties had a single text of the contract that did not match in content, signed by both parties by fax. It is also impossible to determine whether a fax was sent by a certain person. In case of disputes, references to the non-conclusion of an agreement (contract) are possible. It seems reasonable either not to use this form of communication at all to conclude agreements (contracts), or when using it, it is necessary to repeat the terms of the offer and acceptance by sending the corresponding letter to the other party, and when drawing up the agreement (contract) in the form of a single document - by submitting a written the text of the agreement (contract).

The civil and commercial codes of different countries set limits on the amounts when a contract is required to be concluded in a simple written form, depending on various signs:

From the amount of transactions for all types of contracts (over 1000 euros - article 134 of the French Civil Code; over 500 US dollars - article 2 - 201 of the Uniform Commercial Code of the United States);

From the term of the contract (rental contracts for a period of more than one year - § 566 of the German Civil Code);

From the type of contract, regardless of the amount and term - a surety (§ 766 of the German Civil Code, with the exception of commercial transactions; § 350 of the German Commercial Code).

It is advisable to draw up an agreement (contract) as a single document.

In the case of the conclusion of a foreign economic agreement (contract) through the exchange of letters, it is necessary to check the compliance of all essential conditions.

Do not use the exchange of documents by fax as the only way to document the conclusion of an agreement (contract).

The procedure for concluding an agreement

Entering into negotiations with a foreign partner to conclude a contract, Russian entrepreneurs often neglect to check such important points as legal status partner (what he is legally, where he is registered, what is the scope of his legal capacity), his financial position and commercial reputation, as well as the authority of his representative to conclude a contract. In a number of cases, this resulted in the inability to receive payment for delivered export goods or to obtain a refund of amounts paid for imported goods that were either not delivered at all, or delivered incompletely or with significant defects. There are also situations when attempts to find a foreign partner to serve him with claim materials and a summons to summon him to arbitration are unsuccessful.

It is necessary to pay attention to the powers of the foreign representative to negotiate and sign the deal. Authorizations must be checked against the statutory documents of a foreign company, if the transaction is signed by an official responsible person, as well as by a power of attorney, which must be drawn up in accordance with the law and signed by authorized persons. Acquaintance with the constituent documents will also make it possible to determine the "subject of activity" of a foreign company and the functions of its bodies.

The legal capacity of a legal entity is determined by the law of the country where this legal entity is established, regardless of the law of which state regulates relations under a transaction concluded by this legal entity. The question of the legal capacity of Russian organizations, resolved in accordance with the norms of Russian law and the constituent documents of such organizations, was most often raised in connection with challenging the validity of contracts signed by officials (bodies) of these organizations, or on the basis of powers issued by them. We are talking about transactions of a legal entity that go beyond the limits of its legal capacity, beyond the limits of the goals of the activity, enshrined in the statutory documents.

It is necessary to familiarize yourself with the constituent documents (charter or other founding document) counterparty before concluding a deal with them to establish the purpose and legal capacity of the company's bodies to complete the planned transaction.

In case of doubt, it is necessary to require the submission of additional documents, incl. legal opinions.

Settlements (price currency, settlement currency, currency regulation, including repatriation)

A distinction should be made between the currency in which the monetary obligation is denominated (the currency of the debt) and the currency in which this monetary obligation must be paid (the payment currency). In foreign economic agreements (contracts), the parties often determine that the price of goods (work, services) is payable in a certain currency in an amount equivalent to a certain amount in another currency. For example, EUR 1,000 at the EUR/USD exchange rate on the date of payment. This is due to the fact that the parties are trying to manage currency risk - the risk of adverse changes in the exchange rate.

The parties have the right in the agreement to establish their own exchange rate for converting one currency into another or to establish the procedure for determining such a rate.

Also, one should not forget that settlements between residents and non-residents both in foreign currencies and in rubles are regulated by the norms of currency legislation.

First of all, it is important to consider the requirement of repatriation.

Repatriation- the obligation of residents, unless otherwise provided by federal law No. 173-FZ of December 10, 2003 "On currency regulation and currency control" in terms stipulated by foreign trade agreements (contracts), ensure:

1) receipt from non-residents to their bank accounts in authorized banks Money in foreign currency or rubles due in accordance with the terms of the said agreements (contracts) for goods transferred to non-residents, work performed for them, services rendered to them, information and results of intellectual activity transferred to them;

2) return to the Russian Federation of funds paid to non-residents for goods not imported into the customs territory of the Russian Federation, work not performed, services not rendered, information and results of intellectual activity not transferred.

Residents have the right not to credit their bank accounts with authorized banks with funds in foreign currency or rubles in the following cases:

1) when crediting foreign exchange earnings to accounts legal entities- residents or third parties in banks outside the territory of the Russian Federation - in order to fulfill the obligations of resident legal entities under loan agreements and loan agreements with non-resident organizations that are agents of governments of foreign states, as well as under loan agreements and loan agreements concluded with residents of states - OECD or FATF members for a period exceeding two years;

2) when customers (non-residents) pay local expenses of residents related to the construction by residents of facilities in the territories of foreign states - for the construction period, after which the remaining funds are subject to transfer to residents' accounts opened with authorized banks;

3) when using foreign currency received by residents from holding exhibitions, sports, cultural and other similar events outside the territory of the Russian Federation, to cover the costs of holding them - for the period of these events;

4) when offsetting counterclaims on obligations between non-residents and residents that are transport organizations, or between non-residents and residents engaged in fishing outside the customs territory of the Russian Federation.

Violation of the obligation to repatriate may result in an administrative fine on officials and legal entities in the amount of three-fourths to one of the amount of funds not credited to accounts in authorized banks in accordance with paragraph 4 of Art. 15.25 of the Code of the Russian Federation on administrative offenses RF.

To carry out settlements, it is necessary to draw up a transaction passport in accordance with the Instruction of the Central Bank of the Russian Federation of June 15, 2004 No. 117-I "On the procedure for residents and non-residents to submit documents and information to authorized banks when carrying out foreign exchange transactions, the procedure for accounting by authorized banks of foreign exchange transactions and issuing transaction passports" and Regulation of the Central Bank of the Russian Federation of 01.06.04 No 258-P "On the procedure for residents to submit to authorized banks supporting documents and information related to the conduct of foreign exchange transactions with non-residents under foreign trade transactions, and the exercise by authorized banks of control over the conduct of foreign exchange transactions."

Before signing the agreement (contract), carefully check all the terms of the settlements.

Check the conditions on the currency of the price and the currency of settlements.

Check the conditions regarding compliance with the requirements of currency regulation, incl. the obligation to repatriate, the need to draw up a transaction passport.

After signing the agreement (contract), it is necessary to monitor all currency aspects.

Change of persons in the agreement (contract)

Often in agreements (contracts) there are provisions that allow or prohibit the transfer of rights under the agreement (contract) to third parties without the consent of the other party.

This provision is of great importance.

Example. The Russian company signed a contract with an Austrian company. The contract provided that neither party was entitled to transfer the rights and obligations under the contract without written consent the other side. The Russian company transferred the advance. After three days Russian company received a message from the seller that the order will be carried out by a third party, the letter contained a letter from the specified third party to accept the obligation under the contract. However, the goods were not shipped by a third party. The Russian side demanded that the original counterparty return the amount paid and pay a fine in accordance with the terms of the contract. The Austrian firm rejected these demands, believing that the responsibility to the buyer should be borne by a third party who assumed obligations under the contract. But the court satisfied the claim, based on the prohibition of transferring rights and obligations under the contract to a third party.

"burden of proof"

It is necessary to pay attention to such aspects as the obligation to prove the circumstances referred to by the party to the contract as the basis for their claims or objections.

Example. The American company required Russian organization reduce the price of the delivered goods in connection with the detected discrepancy between the quality of the goods and the requirements of the contract. At the same time, the indicated discrepancy was identified and documented after checking a part of the goods. The court satisfied the claim of the American company only in respect of the quantity of goods that was actually checked and for which defects were revealed at the place of destination of the goods. It is accepted that the buyer failed to prove his assertion that there were defects in the rest of the delivered goods.

Often, the agreement (contract) contains a condition according to which payment obligations are not considered fulfilled until the actual receipt of payment to the bank account of the seller (executor). At the same time, it must be borne in mind that money can be “lost” not only when transferred by the buyer (customer) and his bank, but also in the bank of the seller (executor). Thus, in the above wording, the risk of "loss of money (payment)" lies with the buyer (customer).

The specified condition can be formulated in another way, for example: "The obligation to pay is considered fulfilled after the funds are debited from the account of the buyer (customer)." In this case, the risk of "losing money" is shifted to the seller (executor). It is the seller (executor) who will have to bear the costs of finding money (including inquiries to the relevant banks).

In the event of a lawsuit, the buyer (customer) will have to submit documents proving the receipt of funds to the account of the seller (executor), which is very difficult, in the second case it is sufficient to confirm only the fact that money has been debited from the account.

Article 401 of the Civil Code of the Russian Federation established that a person who has not fulfilled an obligation or has performed it improperly is liable if there is fault (intent or negligence), except when other grounds for liability are provided for by law or an agreement. A person is recognized as innocent if, with the degree of care and diligence required of him by the nature of the obligation and the conditions of turnover, he took all measures for the proper performance of the obligation. The absence of guilt is proved by the person who violated the obligation. At the same time, a person who has not fulfilled or improperly fulfilled an obligation in the course of exercising entrepreneurial activity, is liable unless it proves that proper performance was impossible due to force majeure, unless otherwise provided by law or contract.

Similar rules exist in the laws of other states.

Thus, it is possible to include in the agreement (contract) a provision according to which the company will be liable only if there is fault.

When preparing and signing an agreement (contract), pay attention to the following provisions:

• which establish who must prove damages, the fact of non-fulfillment of obligations,
• which establish that the counterparty is liable only if there is fault.

Ensuring the fulfillment of obligations under the contract

The civil legislation of the Russian Federation contains open list ways to secure obligations. Fulfillment of obligations may be secured by: forfeit (fine, penalty interest), pledge, retention of the debtor's property, surety, bank guarantee, deposit, other methods provided for by law or contract. In addition, the so-called measures of operational impact are also quite effective security, such as: refusal to fulfill the contract in case of its violation by the other party, changing the delivery or payment terms, changing the volume (quantity) of the transferred property or the amount payable for the goods received.

In some cases, it is simply necessary to insist on the provision of security by the other party.

Example. A foreign company approached a Russian glass container manufacturer with a proposal to conclude a contract for the production of a large batch of unique bottles designed specifically for the production of a limited batch of drinks. In the offer, the foreign customer indicated that payment would be made after receiving the entire batch of bottles. For the production of these bottles, the plant would have to rebuild its line for a certain period of time. If a foreign customer refuses to accept a batch of unique bottles and, accordingly, refuses to pay for such a batch, the plant will suffer significant losses. Therefore, the Russian plant demanded that a foreign company provide a bank guarantee for the amount of the contract.

In international practice, many other ways to ensure the fulfillment of obligations are also used, in particular, a collateral account (escrow account).

Do not neglect the provisions of the agreement (contract) on securing the fulfillment of obligations of a foreign counterparty, which can protect your interests.

If the draft contract contains enforcement provisions for your company, be sure to assess the potential for violations by your company.

If the draft agreement (contract) contains provisions on the use of methods unknown to you to ensure the fulfillment of obligations, be sure to contact specialists in order to avoid unpleasant “surprises” in the event of a possible violation of the agreement.

Termination of an agreement

In the legislation and commercial practice of Russia and foreign countries, a variety of terms are used regarding the "termination" of the contract. Among them in the Russian version: termination, termination, annulment, cancellation, refusal, refusal before the due date, etc. Some of these words are used as synonyms for "termination" and have the same meaning. Others carry an independent legal burden and their use is associated with certain legal consequences.

"Termination of obligation" and "termination of the contract", as a rule, differ in legal consequences: it all depends on the absence or presence of liability of the parties to the contract. When the obligation is terminated on the grounds specified in the law, both parties shall not be liable to each other, and when the contract is terminated, if it has been carried out lawfully, the injured party has the right to demand compensation from the guilty party for the losses incurred by it.

The general rule on termination of the contract is contained in Art. 450 of the Civil Code of the Russian Federation, which provides that the termination of the contract is possible:

a) by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or an agreement;

b) at the request of one of the parties, the contract may be terminated by a court decision, and only:

• in the event of a material breach of the contract by the other party;
• in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.

Specific conditions for termination of the contract are regulated by the norms of the Civil Code of the Russian Federation in relation to the relevant contractual relations of the parties. Thus, the buyer has the right to refuse to fulfill the contract for the sale of goods if the seller refuses to transfer the sold goods to him.

Especially in the civil legislation of the Russian Federation, the issue of termination of the contract in connection with a significant change in circumstances is regulated. So, in Art. 451 of the Civil Code of the Russian Federation establishes that a significant change in the circumstances from which the parties proceeded when concluding an agreement is the basis for its termination, unless otherwise provided by the agreement or follows from its essence. A change in circumstances is recognized as significant when they have changed so much that if the parties could reasonably foresee this, the contract would not have been concluded by them at all or would have been concluded on significantly different terms. If the parties have not reached an agreement on bringing the contract in line with the significantly changed circumstances or on its termination, the contract may be terminated by the court at the request of the interested party, if the following conditions are simultaneously present:

1. At the time of the conclusion of the contract, the parties proceeded from the fact that such a change in circumstances would not occur.

2. The change in circumstances is caused by reasons that the interested party could not overcome after they arose with the degree of care and diligence that was required of it by the nature of the contract in terms of turnover.

3. The performance of the contract without changing its terms would so violate the balance of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract.

4. It does not follow from the customs of business transactions or the essence of the contract that the risk of a change in circumstances is borne by the interested party.

When terminating the contract for the specified reason, the court, at the request of any of the parties, determines the consequences of terminating the contract based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

Here are some of the main provisions of the laws of foreign states regarding the termination of agreements (contracts).

French legislation

The French Civil Code (hereinafter - FCC) provides that obligations are extinguished: by payment, novation, waiver of the creditor's rights, set-off, merger, destruction of the thing, nullity of the obligation, the effect of a resolutive condition, prescription. Termination of the contract is governed by other rules of the FGC. As can be seen, the list of grounds for termination of obligations in the Federal Civil Code is somewhat different than in the Civil Code of the Russian Federation.

FGC established that if the seller does not provide the goods at the time set by the parties, the buyer may demand termination of the sales contract (Resolution). This term means the right to terminate the contract, i.e. make it insignificant. The seller must be held liable for damages if, as a result of the non-delivery of the thing in set time the buyer suffered damage and suffered losses.

FGC also determined that if the buyer fails to pay the price, the seller may demand termination of the sales contract.

UK law

In the English "Common Law" unilateral termination of the contract can take place in the event of "breach" by any party of the agreement (contract), which is denoted by the term "Breach of Contract". When terminating a contract, the term "Discharge of Contract" is used, i.e. "termination of the contract". This term should not be confused with the term "termination" which may take place on legal basis and without compensation for any losses that in such cases do not arise at all (termination by agreement of the parties and on other grounds mentioned earlier).

Basic provisions on the unilateral termination of the contract in accordance with the rules " common law"comes down to the following.

A breach of contract may occur:

• In the course of its execution, when any party to the contract, without legal grounds, refuses to perform or performs its obligations improperly. In such cases, the contract is considered violated (contract is broken);
• Breach of the contract before the due date (Anticipatory breach).

In the first case, if the contract is violated, the injured party does not automatically have the right to terminate the contract. The rule applies: breach of contract by either party entitles the injured party to claim compensation for its losses. To terminate the contract, one more important condition must be met - the breach of the contract must be "accepted" by the injured party (accepted).

In addition to the “acceptance” condition, to terminate the contract due to its violation, it is also necessary for the injured party to be able to prove that the guilty party violated its contractual obligations and refused to fulfill the entire contract or any of its essential conditions. The injured party has the right to terminate the contract also in the case when the guilty party deprives itself of the right to perform the contract (disables itself from performing), which can be considered as repudiation of the contract.

As regards the second case of breach of contract, ie. violation before the deadline for its performance, it takes place when the party to the contract, whose obligation to perform has not yet come, unconditionally and unconditionally expresses its will not to perform or deprives itself of the opportunity to perform its obligation, then the other party may, at its discretion, consider the contract violated . It should be noted that the injured party is not obliged in such cases to wait for the due date. The contract is terminated and a claim for damages is filed. However, as in the first case, the injured party must "accept" the breach of contract. If she does not want to do this, then the contract is considered valid with all the ensuing consequences.

What are the consequences of termination of the contract by the injured party as a result of its violation (refusal, non-performance or improper performance)?

Under English Common Law, a breach of contract entitles the aggrieved party to: claim damages, performance in kind by the Respondent personally, or an injunction against doing something.

If the breach of contract concerns the payment of a price, no damages other than the amount owed and the payment, where appropriate, of interest, shall be recoverable. If, on the other hand, the injured party has suffered a loss, he is entitled to receive that amount of money which, as far as possible, will put him in the position in which he would have been if the contract had been performed. It should be noted that this principle of damages is now used in the civil legislation of the Russian Federation and in the Vienna Convention.

US law

In American law, the issue of termination of the contract is governed by the rules of "Common Law" and the rules of statutory law, i.e. based on the law. The American "Common Law" largely adopted the system of the English "Common Law" and these issues are generally regulated by it in a generally similar way, although American law has its own specifics, for example, there is no "acceptance" condition required under English law to terminate the contract.

Issues of "breach of contract" and - as a consequence - the termination of the contract are regulated in the United States in the "Code of Contract Law", a private publication (Restatement of contracts), which reflects American legal doctrine and is based on judicial precedents.

The "Code" lists three types of actions of the parties to the contract, which are considered as a breach of the contract:

• a clear and distinct statement by the party to the contract that it will not fulfill the obligations assumed under the contract;
• transfer or obligation to transfer by the party to the contract to a third party all obligations under the concluded contract;
• the commission by a party to the contract of any actions that make it impossible to fulfill the contract.

In these cases, it is considered that the party that committed any of these actions violated the contract (broke the contract) and the injured party has the right to terminate it and to compensate for the losses incurred.

With regard to the statutory law of the United States, this is the "Uniform Commercial Code" - "ETK" (Uniform Commercial Code), which is valid in all US states, except for the state of Louisiana, where the FCC is applied. It is established that if any of the parties refuses the contract in respect of performance, the term of which has not yet come and the failure to perform which significantly reduces the value of the contract for the other party, the injured party may terminate the contract (to cancel). If the buyer unlawfully refuses to accept the goods, or cancels the acceptance of the goods that has already taken place, or fails to make a payment due before or simultaneously with the delivery of the goods, or withdraws from the contract in whole or in part, the aggrieved party is entitled to withdraw from the contract (to cancel) and claim damages.

If the seller fails to deliver the goods or refuses to perform, or if the buyer rightfully refuses to accept the goods or justifiably revokes an acceptance that has already taken place, the buyer may withdraw from the contract with respect to the goods in question or goods in general and, in addition to the purchase price paid, claim damages for the damages incurred.

International agreements

Termination of contracts is also regulated by international treaties and documents, including the Vienna Convention.

Thus, the buyer may declare avoidance of the contract if the Seller's failure to perform any of its obligations under the contract or under the Convention amounts to a fundamental breach of contract, or in case of non-delivery, subject to an additional period of time fixed by the buyer, or if the seller declares that he will not deliver within the specified period.

The buyer may only withdraw from the contract as a whole if the partial non-performance or partial non-conformity of the goods with the contract constitutes a fundamental breach of the contract.

It is established that in case of breach of the contract by the buyer, the Seller has the right to terminate the contract. The seller may declare avoidance of the contract if the buyer's failure to perform any of his obligations under the contract or the Convention amounts to a fundamental breach of contract, or if the buyer fails to perform, within an additional period of time fixed by the seller, his obligation to pay the price, or declares that he will not do so within the specified additional period.

A breach of contract is material if it involves such harm to the other party as to deprive the other party of what it was entitled to expect under the contract to a significant extent, unless the party in breach did not foresee such a result and a reasonable person acting in the same capacity under similar circumstances would not have foreseen it.

The issue of unilateral termination of a foreign economic agreement (contract) is quite complicated from a legal point of view, and not always the actions of any party to terminate the agreement may turn out to be lawful, despite the violation of the agreement by the other party.

It must be borne in mind that:

1. Unilateral early termination of the contract can take place only for the reasons specified in the law or in the contract, otherwise the termination of the contract may be recognized by the court as unlawful with all the ensuing negative consequences.

2. If the termination of the contract is carried out in accordance with its terms, then they must be strictly observed.

Force Majeure

Usually, force majeure issues are regulated by the parties themselves in contracts, which list the conditions for releasing the parties from liability for failure to fulfill the contract and provide for the right of each party to unilaterally terminate the contract without any liability for failure to fulfill the obligations assumed.

When a specific list of circumstances beyond the control of the parties is included in the contract, it must be left open, since arbitration and arbitral tribunals, with a closed list, as a rule, decide on the recovery from the side of losses resulting from those circumstances beyond the control that are not provided for by this list. It should be remembered that certain circumstances in national law or international treaty may not be recognized as exempting from liability, despite the "contractual" force majeure.

In Russian law, force majeure does not recognize a breach of obligations on the part of the debtor's counterparties, the absence on the market of the goods necessary for the performance of the contract, and the debtor's lack of the necessary funds.

Increasingly, so-called hardship clauses are being used instead of the traditional force majeure clause. The purpose of the hardship clause is to preserve the contract by adapting it to changing circumstances that make performance significantly more difficult. The meaning of such a clause is the intention (agreement) of the parties on their obligation, upon the occurrence of certain circumstances, to enter into negotiations to revise the contract.

You should not be limited to the general common wording of exemption from liability in the event of force majeure without specifying a specific list of such circumstances, because. in the event of any extraordinary circumstances, disagreements may arise between the parties as to whether this circumstance is force majeure or not.

It is advisable to formulate a force majeure clause taking into account the geographical, climatic and other features of the territory where the contract will be executed (in particular, transportation will be carried out).

It should be remembered that, unfortunately, during the execution of the agreement (contract), disputes may arise, which, in turn, will be resolved only in court. When preparing the text of a foreign trade agreement (contract), it is necessary to take into account all your interests, thereby taking care of the further proper execution of the contract and obtaining the appropriate benefits as a result of concluding a particular transaction with foreign partners.

There are certain restrictions regarding the inclusion in these documents of conditions that violate the balance of interests of the parties, i.e. providing unilateral benefits in their favor.

Firstly, obvious violations of the balance of interests of the parties will be easily noticed by the partner, making it difficult to negotiate on essential conditions (price, terms, etc.), since, agreeing to accept your conditions, the partner will try to receive compensation for it, for example, in price. Meanwhile, the opportunity to use such conditions (for example, a disproportionately high amount of sanctions for violation of obligations) will not always present itself. Compensation will have to be paid regardless of whether circumstances arise that allow these conditions to be realized.

Secondly, when including in the contract the so-called advantages that are hardly noticeable for the partner, it should be taken into account that international practice and international agreements, for example, the Vienna Convention, proceed from the principle of good faith in international trade, i.e. from consideration in contracts of generally accepted commercial practices. The Vienna Convention, which establishes the procedure for interpreting the will of the parties, provides that it is interpreted in accordance with the intention of the party, if the other party knew or could not have known what that intention was. Otherwise, the understanding of a reasonable person acting in the same capacity as the other party in similar circumstances is taken into account. The Civil Code of the Russian Federation also proceeds from the need to clarify the actual common will of the parties, taking into account the purpose of the contract.

The attention of the readers of the journal is drawn to the most important points which must be taken into account when concluding a foreign economic agreement (contract) and determining its content.

Imperative norms are rules binding on the parties, statutory and other legal acts in force at the time of its conclusion.
Next - "Vienna Convention"
The specified requirement for the written form of foreign economic transactions complies with the requirements of the UN Vienna Convention on Contracts for the International Sale of Goods of 1980, to which the Russian Federation is a party.
Chapter 23 of the Civil Code of the Russian Federation.
Violation of the contract by one of the parties is recognized as essential, which entails such damage for the other party that it is largely deprived of what it was entitled to count on when concluding the contract. If the basis for termination of the contract was a material breach of the contract by one party, then the other party has the right to demand compensation for losses caused by the termination of the contract.

V Russian legislation the term "force majeure" is used, in the law of European continental countries the terms "Force majeure" (French), "hohere Gewolt" (German) are used, and in the Common Law countries the term "Frustration" is used, which means frustration or futility contracts. The term most frequently encountered in international commercial practice is "force majeure".

"Accounting" No. 18 and 19, 2005

A foreign trade agreement (contract) is a civil law document that determines the terms of a foreign trade transaction. In the Civil Code of the Russian Federation Art. 420, an agreement is recognized as an agreement between two or more persons on the establishment, change or termination of civil rights and obligations. The rules on bilateral and multilateral transactions apply to contracts. The general provisions on obligations shall apply to obligations arising from a contract, unless otherwise provided by the rules of Chapter 27 of the Civil Code of the Russian Federation and the rules on certain types of contracts contained in the Civil Code of the Russian Federation.

Art. 153 of the Civil Code of the Russian Federation, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations.

Entering into contractual relations, the parties determine their rights and obligations, the totality of which constitutes the content of the contract. By virtue of an obligation arising from a contract, one person is obliged to perform a certain action in favor of another person, and this person accordingly has the right to demand the performance of duties.

The basis of the legal regulation of contractual relations is the principle of freedom of contract. Persons are free to establish their rights and obligations on the basis of the contract and to determine any conditions of the contract that do not contradict the law. Civil rights may be restricted on the basis of federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

All of the above fully applies to foreign trade contracts, with the exception of cases where the content of the relevant terms of the contract is directly prescribed by law, other legal acts or international agreements. It should be noted that the introduction of a system of currency control over export-import operations, as well as significant penalties for violating the terms of currency legislation, forced Russian participants in foreign trade activities to be more careful in determining the terms of contracts and pay more attention to collecting information about foreign counterparties.

A foreign trade contract is considered concluded if the parties have reached an agreement on all essential terms. The essential conditions include: the subject of the contract; conditions directly named in an international agreement, law or other act as essential for this type of agreement; conditions under which an agreement must be reached on the basis of one of the parties.

In terms of the preparation and execution of international sales contracts, the United Nations Convention "On Contracts for the International Sale" is in force, concluded in Vienna on April 11, 1980 (Vienna Convention).

When preparing a foreign economic agreement, it is necessary to take into account the peculiarities of Russian legislation in the field of civil, currency, tax, customs and other legal relations. When Russia joined the Vienna Convention in September 1991, a condition was stipulated according to which oral contracts are not applied in trade with Russian participants.

In accordance with Russian law, it is prohibited to include in contracts tax clauses, in accordance with which a foreign legal or individual assumes the obligation to pay the taxes of other taxpayers.

In a foreign trade contract, it should be specified in what language this document is drawn up, in what language correspondence will be conducted on it, etc. Unless there is a special indication, then correspondence is conducted in the language of the party from which the proposal to conclude a deal was received.

1. Uniform number

A foreign trade contract may have a unified number consisting of three groups of characters formed as follows:

BB/ХХХХХХХХ/ХХХХХ or CCC/ХХХХХХХХ/ХХХХХ

The first group of characters - two letters or three digits correspond to the country code of the buyer (seller) according to the Russian classifier of countries of the world used for customs clearance.

The second group - eight characters mean the code of the organization of the buyer (seller) according to the All-Russian Classifier of Enterprises and Organizations (OKPO).

The third group of characters - five digits, represent the serial number of the document at the level of the buyer's (seller's) organization.

2. Date of conclusion of the contract

The date of conclusion of the contract is the date of its signing by the last party. If the text of the agreement does not explicitly indicate the date of its entry into force, then the date of conclusion of the agreement is considered such date.

3. Place of signing the contract

Important for the legal regulation of foreign trade activity is the place of signing the contract, and in certain circumstances this fact may acquire legal significance. The place of signing the contract determines the form of the transaction, the legal capacity and legal capacity of the persons who made the transaction. If the text of the agreement does not indicate the law of which country is applied when considering the dispute, then this will be determined based on the place where the agreement was signed.

4. Subject of the contract

In this section of the contract, the subject is formulated - an action or a set of actions that determine the type and nature of the transaction being concluded.

The same paragraph indicates the object of the contract - the product, its range, dimensions, completeness, country of origin, other data necessary to describe the product, including references to national and (or) international standards, the performance of specific works or the provision of services.

If goods of different qualities or different assortment are supplied, they are listed in the specification attached to the contract and which is its integral part.

Also indicate the name of the container or packaging of goods according to the international classifier, description and requirements for marking the goods.

When determining the quantity of goods in the contract, the unit of measurement and the procedure for establishing the quantity (firmly fixed figure or within the established limits) are indicated.

The issue of including tare and packaging in the quantity of the delivered goods is also stipulated, in accordance with this, the gross and net weights are determined.

When determining the quality of goods, the contract establishes a set of properties that determine the suitability of the goods for its intended use. The quality of a product can be determined by a standard; technical specifications containing a detailed technical specification of the product, a description of the materials from which it is produced, rules and methods of verification and testing; according to specification; according to the sample; by preliminary examination; the content of individual substances, etc. Usually, the product is accompanied by a quality certificate issued by the manufacturer, a certificate of origin.

5. Terms of delivery

In this section, the basic terms of delivery are fixed, the date and time of delivery, the schedule for the supply of batches, the procedure for the delivery and acceptance of goods in terms of quantity and quality are determined.

Basic terms of delivery - conditions that determine the obligations of the seller and the buyer for the delivery of goods, the moment the risk of accidental loss or damage to the goods passes from the seller to the buyer.

The distribution of risks, costs and obligations between the seller and the buyer is based on the international trading conditions Incoterms (Incoterms, International Commercial Terms), developed by the International Chamber of Commerce (ICC), used in international trade practice. The first edition of Incoterms was published in 1936, the last one was published in 2000 and was called Incoterms 2000.

The use of INCOTERMS when concluding foreign trade contracts is characterized by the following features:

from a legal point of view, this document is advisory in nature, therefore, the parties to the contract using its terms must make a link to this document;

the unified terms of delivery contained in the INCOTERMS are of a general nature, therefore, in the relevant articles of the contract, the parties must clarify the obligations of the seller and the buyer for the supply of goods;

in contracts, the parties can agree on the use of INCOTERMS earlier than the latest edition of 2000 (1936, 1953, 1967, 1976, 1980, 1990), about which they make a reservation in the contract;

in connection with the widespread use of INCOTERMS in the world, when processing customs documents, in the column "Terms of delivery" the condition is indicated in accordance with INCOTERMS.

Based on the terms of INCOTERMS, the distribution of costs for the delivery of goods between the seller and the buyer is fixed. These costs can be up to 50% of the price of the goods. Delivery costs include: preparation for shipment, loading into a vehicle, transportation, reloading, cargo insurance during transportation, storage of goods in transit, customs payments, etc. In addition, INCOTERMS determine the moment of transfer from the seller to the buyer of the risks of accidental death and damage goods.

In total, INCOTERMS contains 13 types of basic terms of delivery, which provide for various combinations of costs and risks for the seller and buyer, and are also classified depending on the means of transportation. Let's briefly review these conditions.

The first group - conditions E (E-terms) - the seller provides the goods to the buyer directly in their premises:

EXW - ExWorks (named point) - Ex Works (place name).

In accordance with this condition, the obligation of the seller is to make the goods that meet the requirements of the contract available to the buyer at his plant or warehouse within the time period stipulated by the contract. The buyer bears all costs and risks (including when loading at the factory) of transporting the goods from the seller's factory or warehouse to the destination, as well as for customs clearance of the goods for export.

The second group - terms F (F-terms) - the seller undertakes to place the goods at the disposal of the carrier, which is provided by the buyer:

FCA - Free Carrier (named place) - Free carrier (named place).

"Carrier" means any company with which a contract is concluded for the carriage of goods by railway, by road, by sea, etc., including multimodal transport.

The seller's obligation under this condition is to deliver the cleared goods to the named place to the carrier (or the buyer's forwarder). The risk of loss or damage to the goods passes from the seller to the buyer when the goods are transferred to the carrier (forwarder).

FAS - Free Alongside Ship (named port of shipment) - Free along the side of the vessel (named port of shipment).

The seller has made delivery when the goods are placed alongside the ship or on lighters at the named port of shipment. From this point on, the risk of loss and damage to the goods is borne by the buyer. The seller is responsible for clearing the goods for export. This condition applies to carriage by sea or inland water transport.

FOB - Free On Board (named port of shipment) - Free on board (named port of shipment).

The seller has made delivery when the goods have passed the ship's rail at the named port of shipment. From this point on, the buyer bears all risk of loss and damage. The seller is responsible for clearing the goods for export. Applies only when transported by sea or inland waterway. The contract for the carriage of goods from the named port of shipment shall be concluded by the buyer at his own expense.

The third group - conditions C (C-terms) - the seller undertakes to conclude a contract of carriage, however, without assuming the risk of accidental loss or damage to the goods or any additional costs after loading the goods:

CFR - Cost and Freight (named port of destination) - Cost and freight (named port of destination).

The seller made the delivery when the goods passed the ship's rail at the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the port of destination. The costs of customs clearance of goods for export shall be borne by the seller. The risk of loss and damage, as well as additional costs, after the shipment of the goods are transferred to the buyer.

CIF - Cost, Insurance and Freight (named port of destination) - Cost, insurance and freight (named port of destination).

The seller made the delivery when the goods passed the ship's rail at the port of shipment. The seller must pay the costs and freight necessary to bring the goods to the port of destination. The risk of loss and damage, as well as additional costs, after the shipment of the goods are transferred to the buyer. The seller is obliged to purchase marine insurance in favor of the buyer against the risk of loss and damage to the goods during transportation, i.e. the seller is obliged to conclude an insurance contract and pay insurance premiums. The costs of customs clearance of goods for export shall be borne by the seller.

CPT - Carriage Paid to (named point of destination) - Freight/Carriage paid to (named point of destination).

The seller delivers the goods to the carrier named by him, pays the costs associated with transportation to the specified destination. The buyer assumes all risks of loss and damage to the goods, as well as other costs after the goods are handed over to the carrier. If transportation is carried out by several carriers, then the transfer of risk will occur when the goods are handed over to the first of them. The seller clears the goods for export. This condition is used when transporting goods by any mode of transport, including multimodal transport.

CIP – Carriage and Insurance Paid to (named point of destination) – Freight/Carriage and insurance paid to (named point of destination).

The seller delivers the goods to the carrier named by him, pays the costs associated with transportation to the specified destination. The buyer assumes all risks of loss and damage to the goods, as well as other costs after the goods are handed over to the carrier. If transportation is carried out by several carriers, then the transfer of risk will occur when the goods are handed over to the first of them. The seller clears the goods for export. The seller is obliged to provide insurance in favor of the buyer against the risk of loss and damage to the goods during transportation, i.e. the seller is obliged to conclude an insurance contract and pay insurance premiums. This condition is used when transporting goods by any mode of transport, including multimodal transport.

The fourth group of conditions - conditions D (D-terms) - the seller bears all costs and assumes risks until the delivery of the goods to the destination.

DAF - Delivered at Frontier (... named place) - Delivery to the border (name of the place of delivery).

The seller has made the delivery when he has provided the unloaded goods, which have been cleared for export, arrived by means of transport at the disposal of the buyer at the named place or point at the frontier before the goods arrive at the customs border of a neighboring country (customs clearance for import has not been cleared). Border - any border, including the border of the country of export. Therefore, the point or place is clearly indicated. The seller bears the risk until delivery. This condition applies if the carriage is carried out by any mode of transport to the land border.

DES - Delivered Ex Ship (... named port of destination) - Delivery from the ship (named port of destination).

The seller has delivered when the uncleared goods for import are placed at the disposal of the buyer on board the vessel at the named port of destination. The seller bears all risks until the moment of unloading. This condition applies only to carriage by sea or inland waterways or multimodal transport, when the goods arrive at the port of destination by ship.

DEQ - Delivered Ex Quay (... named port of destination) - Delivery from the pier (name of the port of destination).

The seller has fulfilled his obligation to deliver when the goods, cleared for import, are placed at the buyer's disposal at the quay at the named port of destination. The seller bears all costs of transporting and unloading the goods to the pier. This condition applies to the transportation of goods by sea or inland waterways and in multimodal transport, when the goods are unloaded from the ship to the pier at the port of destination.

DDU - Delivered Duty Unpaid (...named place of destination) - Delivery without payment of duty (named place of destination).

The seller delivers the goods not cleared for import and unloaded from the arriving means of transport at the named place of destination. The seller is obliged to bear all costs and risks associated with the transportation of goods to this place, with the exception of customs clearance costs, customs payments, etc. The buyer is responsible for paying such costs, as well as other costs and risks associated with the fact that he was unable to timely clear customs for imports. The risks and costs of unloading and reloading the goods depend on who controls the chosen place of delivery. This condition can be applied regardless of the mode of transport.

DDP - Delivered Duty Paid (...named place of destination) - Delivery with duty paid (named place of destination).

The seller delivers the goods cleared for import and not unloaded from the arriving means of transport at the named place of destination. The seller is obliged to bear all costs and risks associated with the transportation of the goods to this place, including the costs of customs clearance, customs payments, etc. This condition can be applied regardless of the mode of transport.

Terms and date of delivery, schedule of deliveries. The term is understood as the moment when the seller is obliged to transfer the goods to the property of the buyer. Goods can be delivered as a lump sum in full or in parts. The delivery time is set by determining the calendar date or period during which the delivery must be made. In addition, it is indicated which date is considered the date of delivery - the date of transfer of the goods to the buyer, for example: the date of the transport document (bill of lading, waybill, etc.), the date of the forwarder's receipt for the acceptance of the goods, the date of signing the acceptance certificate by the commission, etc.

The order of delivery and acceptance of goods. It is necessary to clearly formulate the procedure for acceptance of goods in terms of quantity and quality: type of delivery and acceptance, place of actual delivery and acceptance, term, method of quality control, method of acceptance of goods by quality, method for determining the quantity and quality of goods supplied (sampling or complete inspection). The delivered goods are accepted at the place where the title and the risks of loss or damage are transferred from the seller to the buyer. For example, when using the EXW condition, acceptance is made at the seller's warehouse, when using the FOB condition, at the port of shipment.

By type, delivery and acceptance can be preliminary - it involves inspection of the goods by the seller to determine whether the quantity and quality comply with the terms of the contract, to establish the correctness of packaging and labeling; final - the actual completion of the delivery at the specified place in due time is checked.

There are two main ways to determine the quantity of goods when it is expressed in weight units: by the shipped weight, established at the point of departure and indicated by the carrier in the transport document (bill of lading, air waybill, railway waybill, etc.); by unloaded weight, set at the destination in the country of the importer. The verification is carried out by weighing during unloading by persons acting on the authority granted to them by the authorities and chambers of commerce. The results are recorded in the relevant documents.

Acceptance of goods by quality is carried out on the basis of a document confirming the compliance of the quality of the delivered goods with the terms of the contract, as well as checking the quality of the actually delivered goods at the place of acceptance. The quality of the actually delivered goods is determined by analysis, comparison of previously selected samples, inspection, inspection and testing.

The contract determines who will carry out the acceptance - the parties or their representatives jointly, a disinterested controlling organization appointed by agreement of the parties, or others.

6. The price of the goods and the total amount of the contract

This section specifies the unit price and the total amount of the contract. When setting the price, the unit of measure, the price basis, the price currency, the method of fixing the price, the procedure for determining the price level are fixed.

The price basis is determined by the basic delivery condition selected in the contract.

The price set in the contract can be determined in the currency of the country of the exporter or importer, in the settlement currency or in another currency. The contract fixes the name and code of the currency of the price, in accordance with the Classifier of currencies.

Depending on the method of price fixing, there are fixed, floating, moving prices. A fixed price is set at the time of signing the contract and is not subject to change during its validity. The price with subsequent fixation is not directly indicated in the contract, but it precisely describes how the price is set in the future on a certain date, for example, the price is set according to the level of exchange quotations on the date of delivery or the date of payment. In contracts for the supply of goods with a long production time (ships, industrial equipment), sliding prices are used, which are calculated taking into account changes in the costs of manufacturing goods during the period of the contract. In contracts where goods are delivered in batches, the price may be determined in the process of contract execution, for example, revised for each delivery batch.

When determining the price level, they are guided by the calculated and published prices. Published prices are reported in special sources (reference prices, exchange quotations, auction prices, offer prices of large suppliers, etc.). Estimated prices are used in contracts for the supply of a specific product, such as custom-made equipment.

7. Terms of payment (payment terms)

The main terms of payment include: currency of payment, terms of payment, method of payment, form of payment.

In the contract, in addition to the price currency, the payment currency is fixed, that is, the currency in which settlements will be made under the contract, while indicating the name of the currency, the currency code in accordance with the Currency Classifier. It is allowed to pay for goods in different currencies: part in one currency, part in another.

If the currency of payment does not match the currency of the price, then the contract specifies the procedure for converting one currency into another. Usually, the conversion is made at the exchange rate of one currency to another, in force in the country of the paying party. This procedure is called a currency clause.

An important point is the establishment of payment terms (as well as guarantees of compliance with these terms). The contract defines either calendar dates or the period during which payment must be made, as well as the procedure and terms for granting a deferred payment (if any).

The same section indicates the documents transferred by the seller to the buyer, confirming the fact of shipment, cost, quality, nomenclature, quantity of goods, etc.

Particular attention should be paid to the choice of payment method and form of payment. There are the following payment methods:

cash payment, that is, the transfer of funds before or after the transfer by the exporter of documents of title or the goods themselves at the disposal of the buyer;

advance payment - payment before the transfer of the goods to the buyer or before the start of the execution of the contract (commercial credit to the seller);

deferred payment - payment after the goods are placed at the disposal of the buyer after a certain period of time (commercial credit to the buyer).

In international trade, the following forms of payment are used - transfer, collection, letter of credit, checks.

International bank transfers are the most common form of payment. With this form of settlement, the payer's bank transfers the amount of funds indicated in the transfer order to the recipient's (beneficiary's) bank for the benefit of the specified recipient (beneficiary) on behalf of the payer. When making payments in this form, they are guided by international documents: the Model Law “On International Bank Transfers”, approved by the UN Commission on International Trade Law in 1992, the ICC Guidelines for the International Interbank Transfer of Funds and Compensations, 1990.

Letter of credit. The importer's bank undertakes to make, at the direction of the importer and at his expense, a payment to the exporter in the amount of the value of the delivered goods against the presentation by the exporter of the documents specified in the letter of credit. Letters of credit can be covered and uncovered, confirmed and unconfirmed; revocable and irrevocable, divisible and indivisible; transferable (transferable), as well as renewable (revolving).

Collection. The exporter sends an order to his bank to receive a certain amount of payment from the importer against presentation of the relevant documents, as well as bills of exchange, checks and other payable documents.

8. Force majeure

As a rule, a foreign trade contract contains a clause on force majeure circumstances, according to which the term for the performance of the contract is postponed or the party is generally exempted from full or partial performance of obligations in the event of the occurrence, after the entry into force of the contract, of circumstances beyond the control of the parties that impede the performance of the contract. On this issue, there are also established international customs, which are published by the International Chamber of Commerce.

9. Dispute resolution procedure

This section defines the procedure for the presentation and consideration of claims unsettled by the parties, the procedure for payments on claims, the procedure for considering disputes in arbitration. It is necessary to clearly indicate in the contract the law of which country these relations will be regulated.

10. Sanctions (responsibility)

In this paragraph, the parties establish liability for improper performance of obligations, including for late payment or delivery, as well as delivery of goods of inadequate quality or quantity.

11. Procedure for changing or canceling the contract

In this section, the parties stipulate the date of entry into force of the agreement, its validity period, the procedure for amending and supplementing the agreement, and other conditions.

12. Details of the parties, signatures of persons, seals

The contract specifies the full details of the parties: legal and postal address, bank details; positions, surnames and signatures of the persons who have concluded the contract: The contract is sealed.

In order to conduct a foreign trade transaction in accordance with the legislation of the Russian Federation, an importer or exporter needs to draw up the relevant documents, obtain the necessary permits, and fulfill the established requirements.

All goods and vehicles transported across the customs border are subject to customs clearance and customs control in the manner and under the conditions provided for by the Customs Code of the Russian Federation. Payments in foreign currency and other foreign exchange transactions under a foreign trade import transaction are made in the manner prescribed by the currency legislation of the Russian Federation and are subject to currency control.

The basis for recording transactions under a foreign trade agreement in accounting are properly executed documents confirming the fact of transactions, such documents include commercial documents received from suppliers, as well as documents stipulated by the currency and customs legislation of the Russian Federation.

Commercial documents include:

invoices (commercial invoices) of suppliers;

railway waybills, air waybills, bills of lading and other documents confirming the movement of goods;

acceptance certificates confirming the receipt of cargo at ports, warehouses;

commercial acts drawn up in cases of shortages, damage, etc.;

acceptance certificates of forwarders, etc.;

During customs clearance, documents are drawn up in accordance with established forms, the main ones are:

cargo customs declarations (CCD);

declarations customs value(DTS) and others;

Documents drawn up in accordance with the established procedure for currency control in authorized banks and the procedure for making payments on customer accounts:

Transaction passport;

Information on foreign exchange transactions;

Settlement documents (order for transfer, letter of credit, etc.).

The legal basis of foreign economic operations are various kinds of international treaties, agreements and conventions. This institutional framework for international cooperation is being developed both by the countries participating in international trade and by international economic organizations.

International conventions in the field of economic cooperation operate in various fields and areas. There are conventions of a general type relating to the procedure for carrying out operations in foreign economic activity, and special conventions affecting only a narrow scope of this activity. Among conventions of a general type, the most important at present is the UN Vienna Convention on Contracts for the International Sale of Goods - an international economic agreement adopted in 1980 and entered into force in 1988. The USSR joined the Vienna Convention in 1990.

The Convention regulates the procedure for concluding contracts for the sale of goods and their main conditions. The main principle of the settlement of relations between the parties is the balance of interests of the parties to the contract, achieved taking into account the customs and practice of their relations.

An agreement on the main terms of mutual obligations, reached during negotiations by the participants in a foreign trade transaction, is usually formalized in a written document - a contract or an agreement. The contract of sale is a document indicating that one party to the transaction (the seller) undertakes to transfer the goods (or other subject of the agreement) specified in the contract to the ownership of the other party (the buyer), which, in turn, undertakes to accept it and pay for its set price.

The contract of sale is considered concluded if it is duly signed by the parties whose legal addresses are indicated in it. Each contract must have an individual number, as well as information about the date and place of its conclusion. The absence of any of these elements may lead to the invalidation of the contract.

When drawing up a contract, it is often not taken into account that the relations of the parties are determined not only by the terms of the contract, but also by the norms of the applicable law. Non-compliance of the contract with the mandatory provisions of the law led to the recognition of the contract as a whole or its corresponding terms as invalid (for example, in case of non-compliance with the form or changes and additions to it).

In other cases, it was sometimes not possible to use the condition stipulated by the contract. For example, the law in force in the United Kingdom and the United States does not allow enforcement by a court or arbitration of a contractual condition for the payment of a fine. In accordance with Russian, German and Bulgarian law, the inclusion in the contract of a penalty clause as a general rule does not deprive the right to claim damages in the part not covered by the penalty; the law of Poland and the Czech Republic proceeds from the fact that the contractual penalty is recognized as an exceptional penalty, i.e. damages in excess of the fine cannot, as a general rule, be recovered.

It is desirable for both parties to know such features of the applicable law before concluding a transaction.

Depending on the nature of the supply and the specifics of the relationship of counterparties, there are:

• * a contract with a one-time delivery of goods, after the execution of which the legal relationship between the parties to the transaction is terminated;
• * a contract with periodic regular delivery of goods from the seller to the buyer within a certain period.

Both types of contract can have both a short and a long term, and the main difference lies in the specifics of the relationship between the partners in the transaction.

In international trade practice, there are a wide variety of contracts, their content depends on the operation that the counterparties are going to make. But, despite all the variety of types of contracts, each of them is based on the provisions of the classic contract of sale.

The terms of the sales contract include articles agreed by the parties and fixed in the document, reflecting the mutual rights and obligations of counterparties. The parties to the contract independently choose certain wordings of the articles of the contract, guided by the situation on the market, trade customs and the needs of the parties. In addition, some terms of the contract may be determined by international and other agreements or general conditions trade, which are referred to in the contract in this case.

The terms of the contract are usually divided into essential and non-essential. Such conditions of the contract are considered essential, if one of the partners fails to fulfill them, the other party may refuse to accept the goods, terminate the transaction and recover the losses incurred.

If an insignificant condition is violated, the other party does not have the right to refuse to accept the goods and terminate the transaction, but can only demand the fulfillment of the obligation and the recovery of damages. The concept of essential and non-essential conditions depends on the specific transaction.

The essential conditions are usually:

• * name of the parties-participants of the transaction;
• * subject of contract;
• * quantity and quality;
• * basic terms of delivery;
• * price;
• * conditions of payment;
• * Sanctions and complaints (fines, claims);
• * legal addresses and signatures of the parties.

Non-essential (additional) conditions usually include:

• * conditions of insurance;
• * shipping documents;
• * guarantees;
• * packaging and labeling;
• * arbitration clause;
• * other conditions.

Additional, or non-essential, conditions suggest that if one of the parties violates non-essential conditions, the other party is not entitled to terminate the transaction, but may demand the fulfillment of contractual obligations and collect penalties, if this is provided for by the terms of the contract. The contracting parties decide for themselves in each particular case which of the conditions will be essential and which are not essential.

In addition, the terms of the contract can be classified in terms of their universality (individual and universal).

Individual, i.e., those that belong to only one specific contract, include:

• * name of the parties in the preamble;
• * subject of contract;
• * product quality;
• * quantity of goods;
• * price;
• * delivery time;
• * legal addresses and signatures of the parties. Universal conditions include:
• * conditions for the delivery of acceptance of goods;
• * basic terms of delivery;
• * conditions of payment;
• * packaging and labeling;
• * guarantees;
• * Sanctions and claims;
• * force majeure circumstances;
• * arbitration.

The structure and content of the contract are largely individual in nature and are determined both by the specifics of the subject of the transaction and the degree of proximity of counterparties. In general, foreign trade contracts usually contain the following main articles, arranged in a certain sequence: the preamble and definition of the parties, the subject of the contract, the price and total amount of the contract, the quality of the goods, delivery times, terms of payment, packaging and labeling of goods, guarantees, penalties and damages , insurance, force majeure, arbitration clause.

If the subject of the transaction is machinery and equipment, then the contracts may include other articles: technical conditions, maintenance obligations, conditions for sending specialists, etc. In the case of the sale of the results of creative activity, in particular licenses, know-how, the contract includes articles on confidentiality, on the contractual territory and a number of other articles.

Special issues of the contract, primarily technical conditions, the nature of packaging and labeling, etc., may be included in the main text of the contract, and may also be formalized as annexes to the contract, which are its integral part.

The second stage is the conclusion of the contract. The conclusion of a foreign trade contract is carried out in the following forms:

Confirmation by the exporter of the order sent by the importer;

Through the acceptance by the buyer of a firm offer of the exporter;

Acceptance by the seller of a written confirmation by the buyer of a previously sent out free offer;

Signing of the agreed contract by authorized representatives of the parties;

Written confirmation of a previously reached oral agreement A foreign trade contract is usually concluded in writing in the form of single documents signed by the parties

Content of a foreign trade contract

A foreign trade agreement (contract) is an agreement for the supply of material goods, accepted in international trade, which is concluded between the exporter and importer, aimed at establishing, changing or terminating their mutual rights and obligations in foreign trade activities.

Model contracts for the sale of goods are developed by chambers of commerce, monopoly associations, large firms. European Economic Commission. UN. Model contracts for many goods are developed by sectoral national unions of entrepreneurs, and for each product there may be several variants of model contracts. When developing international contracts are guided. Convention. UN o mi. International contracts for the sale of goods and International rules for the interpretation of commercial terms. INCOTWRMs (as amended in 1990). In practice, as a rule, each firm must have a wide range of standard contracts.

The foreign trade contract includes the following sections: preamble; subject of the contract, quantity and quality of goods, basic terms of delivery; price and amount of the contract, terms of payment, terms of delivery and acceptance of goods; packaging and labeling of goods; statement of claims; force majeure circumstances; sanctions and complaints; dispute resolution (arbitration). In general, the structure of a foreign trade contract is similar to that of a conventional supply contract (see 63), however, some of the terms of a foreign trade contract have their own interpretation.

The preamble is the introductory part of the contract, which indicates the number, place and date of signing the contract, determines the parties (organizations, firms) on whose behalf the contract is concluded, and the name of the documents that guide the counterparties when concluding the contract.

The subject of the contract contains a detailed description of the goods (indicating the exact name, brand, variety) that is sold under this contract. If the range of goods is large enough, this section can be placed outside the text of the contract in the form of specifications, which are an integral part of that very contract and are specified in the text of the contract itself.

The quantity of goods to be delivered is established for each commodity item in accordance with the systems of measures and weights used in different countries, and as their equivalent - in the metric system. What awn of the goods is determined by the totality of the main properties that can confirm the possibility of using it for its main purpose, and is established by reference to standards, specifications, samples, etc.

The basic terms of delivery (according to the International Rules for the Interpretation of Commercial Terms as amended in 1990) determine the type of transport and obligations of counterparties for the delivery of goods, determine the moment of transfer of risks from one party to another (Table 63). In relation to the obligation of the seller, a set of conditions. IN-COTERMS as amended in 1990 is divided into four groups:

group. E - shipment of goods;

group F - basic transportation costs not paid;

group. C - the main expenses for the transportation of goods paid;

group D - delivery of goods

. table 63

Classification of conditions. Incoterms in terms of the obligations of the seller (exporter) of material goods

seller's duties	IHKOTEPMC Terms	Group	Summary conditions and
Sending goods	ex works	E	EXW The seller's obligation to deliver the goods is considered fulfilled after he has provided the buyer with the goods at his enterprise, transferred the relevant documents and ownership of the goods in accordance with the requirements of the contract, which was confirmed by the relevant certificate of delivery from the buyer
Basic shipping costs not paid	free shipping	F	FCA The seller's obligation to deliver is deemed to be fulfilled when the goods, cleared of export duties, have been transferred to the responsibility of carriage named by the buyer at the agreed place or point, and the relevant documents and title to the goods have been handed over in accordance with the requirements of the contract, which has been confirmed relevant transport or equivalent electronic messages
	Franco along the board	F	FAC The seller's obligation to deliver is deemed to be fulfilled when the goods have been placed along the side on the quay or on lighters at the named port of delivery.
	FOB Free on board	F	FOB The delivery obligation is considered fulfilled after the goods have been handed over the ship's rail at the named port of shipment.
	Cost and freight	WITH	CFR The seller's obligation to deliver is deemed to be fulfilled when the goods have been delivered to the agreed port of destination at the time the goods pass the ship's rail at the port of shipment.
	CIF Cost, insurance and freight	WITH	CIF The seller's obligation to deliver is deemed to be fulfilled when the goods have been delivered to the agreed port of destination at the time the goods pass the ship's rail at the port of shipment The seller must take out marine insurance to cover the risk of loss or damage to the goods

. Table ending 63

seller's duties	IHKOTEPMC Terms	Group	Summary of terms and conditions
Basic shipping costs paid	Freight paid up to	WITH	CPT The seller's obligation to deliver is deemed to be fulfilled when the goods are delivered into storage with the carrier The seller pays the freight to carry the goods to the agreed destination
	Freight and insurance paid up to	WITH	Syracuse Seller's obligation to deliver? in damage to goods during transportation
	Delivery to the border	D	DAF The seller's obligations are considered fulfilled at the moment the goods, cleared of export duties, arrive at the specified point and place at the border, but before they reach the customs border of the country specified in
	Delivered by free ship	D	DES The seller's delivery obligations are deemed to be fulfilled when the goods are delivered to the buyer on board the ship, not cleared of import duties at the named port of destination. The seller must bear all costs and risks involved in bringing the goods to the named port of destination.
Delivery of goods	Delivered ex-lurk	D	DEQ The seller's delivery obligations are deemed to be fulfilled after he has placed the goods at the disposal of the buyer at the berth (merchant pier)
	Delivered, not paid	D	DDU The seller's obligation to deliver is deemed to be fulfilled when he has placed the goods at the disposal of the buyer at the agreed place in the country of importation. The seller must bear the costs and risks involved in the delivery of the goods (except customs duties, taxes and other fees payable upon importation)
	Delivered duty paid	D	DDP The seller's obligation to deliver is deemed to be fulfilled when he has placed the goods at the disposal of the buyer at the agreed place in the country of import. The seller must bear the risks and losses, including duties, taxes and other charges, connected with the delivery of the goods to the agreed place.

In accordance with this principle, the obligations of the seller are gradually growing - from the minimum in the group. E up to the maximum in group D. In this case, the costs incurred by the seller are included in the price of the goods

The price and amount of the contract is the amount of money in a certain currency that the buyer is obliged to pay to the seller for a unit of goods or all goods delivered on agreed terms at the point specified in the contract. Contract prices can be expressed in the currency of the country of the exporter, importer or a third country, depending on the method of fixing, they distinguish between fixed, mobile, floating, followed by price fixing. In addition, in international trade there is a specific system of discounts to the price (general, if payment for the goods is made in cash, seasonal, if the goods are purchased out of season, etc.).

The terms of delivery and acceptance of goods determine the terms and dates of delivery of goods under this contract. Delivery time - the moment when the seller is obliged to transfer the goods into the ownership of the buyer or a person authorized by him and can be determined by a calendar day, the period during which the delivery must be made, or as a certain condition: "immediately", "quickly"," without delay", "from the warehouse", etc.. By the date of delivery, as agreed by the parties, the following can be accepted: the date of delivery of the goods to the carrier or forwarding company, the date of issue of warrants (warehouse certificate), the date of signing the acceptance certificate, etc. .. Contracts may also provide for early delivery.

At the place of delivery and acceptance, it can be preliminary (conducted by the representative of the buyer to the seller) or final (conducted at the place of loading or at the destination

The terms of payment determine the method, procedure and terms financial settlements and guarantees of fulfillment by the parties of mutual payment obligations. The settlement currency may be the currency of the contract, the currency of one of the parties to the contract or the currency of a third country. The terms of settlement are usually indicated by the parties in the contract as a specific date or period during which payment must take place, and depends on the specific moment of transfer of ownership of the goods. The main payment methods in international practice are bank (cash) recalculation, advance payment and credit payment. Acceptable forms of RO from accounts are collection, letter of credit, open account, transfer, check, promissory note, etc. In practice, forms of payment are often intertwined and combined.

Packaging and labeling of goods provides for the agreement by the parties of the requirements for the packaging of goods (boxes, bags, containers, etc.) and the application of appropriate markings on it (name of the seller and buyer, contract number, destination, special conditions warehousing and transportation, etc., and, if necessary, the conditions for its return).

The order of shipment presupposes not only the obligatory technological support of loading operations, but also the timely informing by the seller of the buyer about the readiness for shipment and the completion of this process. Simultaneously with the message about the shipment to the buyer, a package of shipping documents is sent via means of communication.

Force majeure circumstances provide for the cases in which the parties are exempted from liability for failure to comply with the terms of the agreement (contract) due to force majeure circumstances (natural disasters, military operations, embargo, interference by the authorities, etc.). The period of validity of force majeure circumstances is confirmed by the chamber of commerce and industry of the respective country.

Sanctions and reclamations establish the procedure for applying penalties, compensation for losses and filing claims in connection with the failure of one of the counterparties to fulfill their obligations. The amount of fines for sanctions should be clearly defined in the contract (as a percentage of the value of the undelivered goods or the amount of unpaid funds, the terms for paying fines - from what period they are established and for how long they are valid), the terms during which complaints can be filed. Claims can only be made on those issues that have not been settled by the acceptance procedure, they are sent in writing and must contain a specific requirement for the seller to eliminate the shortcomings.

Arbitration provides for the procedure for settling disputes and disputes, claims and reclamations that cannot be resolved by the parties through negotiations. To do this, the parties stipulate the cases in which the parties m can apply to the court, the appeal procedure and the arbitration body, including the country (seller, buyer or third country), which should be contacted in case of unresolvable superancies.