Completely unimportant words were printed in large letters,
and everything essential was depicted in the smallest font.
M. E. Saltykov-Shchedrin
Sometimes the parties come to the conclusion that it is inappropriate to continue the agreement concluded between them in the future. Russian legislation provides for the possibility of freely terminating such an agreement with the consent of the signatories, which can be formalized by concluding an additional agreement on termination of the agreement.
In this material, we have tried to provide answers to the most common questions that arise from our clients when it is necessary to draw up an additional agreement on termination of the contract.
Cases in which it is necessary to draw up an additional agreement on termination of the contract
The initiative to conclude an additional agreement on termination of a contract can come from only one party to such a contract. The simplest situation is when the parties, even without mandatory prior notice, perhaps in an informal setting, agree to conclude an additional agreement. However, such behavior of the party seeking to terminate the contract is justified only if it is absolutely sure of the counterparty’s similar desire. If the counterparty unexpectedly refuses to enter into an additional agreement, the lack of formal notification of the desire to terminate the contract may cost the party extra time, as well as unnecessary continuation of the contract for a certain period. We will tell you more about these risks in the future.
The law says that, as a general rule, termination of a contract in the absence of the consent of the other party is unacceptable in order to protect the interests of a bona fide counterparty. However, Russian legislation provides for a number of situations in which termination of a contract is allowed at the will of only one of the parties. The law knows such a case as a significant violation of the contract by one of the parties. Such a violation is understood as a situation in which the party that violated the terms of the contract caused damage to the other party sufficient for it to largely lose the benefit that it could count on before the conclusion of the contract. In addition to a significant violation, we can note a situation of a significant change in circumstances in which some unexpected events occur that would force the parties to refuse to enter into such an agreement if they foresaw the occurrence of such events.
Termination of a contract by the will of one party takes place not only in specific situations prescribed by law - for example, it is permissible to include in the text of the contract itself a condition on the possibility of abandoning the contract by decision of one of the parties.
Legal advice: Refusal from a contract is the fastest and most effective opportunity to terminate an unnecessary agreement with a counterparty. This method does not require obtaining the mandatory consent of the other party or a court decision, since the lease agreement, when using the clause on refusal of the contract, is terminated from the moment of receipt of notice of such refusal by the other party. We strongly recommend that landlords provide for such a possibility in the text of the lease agreement, as it will allow the property owner to flexibly resolve conflict situations, without the risk of being unable to dispose of the property during the pre-trial procedure and then the trial.
If there are legal or contractual grounds to terminate the contract with the consent of the other party, it is necessary to begin preparing a statement (which may later become a pre-trial claim) or hope that the counterparty will not refuse an informal request to prepare an additional agreement to terminate the contract. If the party does not have such legal or contractual grounds, then the contract can be terminated only by relying on the favor of the counterparty.
When is a government contract terminated?
The customer and supplier document the termination of the government contract by agreement of the parties under 44-FZ due to the fact that the conditions for fulfilling obligations have changed. There are various reasons, including:
- The need for goods, works, and services disappeared (for example, the staff of a government agency was reduced, and it no longer needed services to improve the qualifications of employees who no longer work).
- The supplier does not fulfill its obligations under the government contract due to circumstances beyond its control (for example, natural disasters, strikes, etc.).
- They did not select the entire volume of goods that they had pledged (as an example, during the year the customer ordered food products based on requests; by the end of the validity period it turned out that the volume of products in the specification was greater than what the customer actually received).
Government contracts are terminated by agreement between the customer and supplier, by court decision or unilaterally. Let's look at a situation where the customer and supplier decide that it is impossible to continue fulfilling their obligations and terminate the government contract by mutual agreement.
Use free instructions from ConsultantPlus experts to terminate the contract unilaterally without errors or violations.
Consequences of termination of the contract
A standard condition for parties seeking to terminate a contract is the inability to demand the return of money transferred to the counterparty before termination of the lease agreement. If one of the parties did not fulfill its obligation or fulfilled it clearly unequally, then such party is still obliged to return the unpaid/untransferred property, since this property will be recognized as unjust enrichment. However, the possibility of transferring compensation upon termination of the contract may be provided for in the contract itself. For example, if only part of the price of the item was paid when purchasing an item, and then the contract is terminated, the unpaid money would be unjust enrichment.
The concept of termination by agreement of the parties
Art. 95 44 Federal Law defines termination of a contract as the opportunity to terminate obligations under a government contract on the basis of mutual agreements between the supplier and the government customer. However, the grounds and procedure for action have not been established. In this regard, it is necessary to be guided by the norms of the Civil Code (Civil Code of the Russian Federation), in particular Chapter 29, which describes the essence, mechanism of the procedure and possible consequences of termination of obligations.
Termination by agreement of the parties under 44 Federal Laws implies that in the process of fulfilling obligations a change in conditions occurred. Because of this, fulfillment of all terms of the contract has become less profitable than the customer or supplier initially expected when concluding.
Submitting an application for termination of the contract
In this statement, the party must be notified of the counterparty's desire to terminate the lease agreement. Then a certain period begins to flow during which the counterparty must respond with consent or refusal. This deadline is set:
- Agreement
- Law or other government act
- Provided in this notice
If none of the above sources contains the necessary information - within 30 days.
If the counterparty's consent is obtained, the parties must draw up an agreement to terminate the contract. It must be taken into account that such an agreement must be concluded in the same form as the contract (oral/written). If a party fears the risks associated with the court’s failure to recognize the proper form of the agreement, the issue of formalization should be specified in the text of the main agreement.
If the requirement specified in the application was ignored or the counterparty refused to terminate the contract, then the party who decided to terminate the contract has the legal opportunity to go to court, demanding termination of the contract and the return of the amount of unjust enrichment.
Additional agreement form
When drawing up an agreement, you must take into account paragraph 1 of Article 452 of the Civil Code. It states that the form of termination of relations must correspond to the form of their conclusion. That is, if the contract is written, then the additional agreement must be created in writing.
If the agreement was certified by a notary and was subject to registration, the agreement must also be certified and registered. An exception is the compensation document. Such an agreement is considered independent, and therefore it is subject to Art. 452 of the Civil Code does not apply.
IMPORTANT! If the form of the additional agreement does not correspond to the form of the contract, the document may be declared invalid. The basis is the lack of proof of the will of the participants in the relationship. For example, the Moscow City Court came to this conclusion in its ruling No. 4g-741/2016 dated September 21, 2021.
An additional agreement should be drawn up only when all claims of the parties have been settled. Otherwise, the counterparty may go to court after the relationship has broken down.
FOR YOUR INFORMATION! The agreement is called supplementary because it is part of the contract and does not have independent force.
Contents of the additional agreement on termination of the contract
- Title of the document
- the place where the additional agreement was signed;
- date of;
- names (names for individuals) of counterparties;
- conditions under which the contract is terminated
- date from which the contract should be considered terminated
- consequences of termination
- details and signatures.
Please note that when terminating certain types of agreements (for example, a lease agreement), in addition to signing the agreement, it may be necessary to perform other legally significant actions (termination of the lease in Rosreestr) or to include additional information in the text of the additional agreement.
Sample additional agreement
Here is a sample of a completed claim, as well as a blank form that you can use to prepare your document.
What is an additional agreement to an employment contract?
As a general rule, the terms of an employment contract determined by the parties when concluding it can only be changed by agreement between the employee and the employer (Article of the Labor Code of the Russian Federation).
In this case, a separate document called “additional agreement to the employment contract” is drawn up. An additional agreement is, in fact, another employment contract. This agreement establishes new (changed) working conditions compared to those previously discussed by the parties. An additional agreement allows you to exclude certain provisions from the current agreement in whole or in part, replace them with others, and also add new terms to the text. All these adjustments in any combination are permissible within the framework of one additional agreement.
Draw up and print out an employment contract and order for free in form No. T‑1
If it was not possible to reach an agreement.
When a party does not have a legal or contractual basis to demand termination of the contract and attempts to negotiate are unsuccessful, unfortunately, there will be no legal way to terminate the contract without negative sanctions. If there are such grounds, but the counterparty refuses to terminate the funds after presenting a formal application to him, then the only legal opportunity for the party to terminate the contract will be court proceedings. Please note that pre-trial claim settlement is mandatory before filing a claim to terminate the contractual relationship between you and the counterparty, although this rule is disputed in legal doctrine.
When filing a claim, you will need to attach evidence that the applicant made an attempt to resolve the dispute through a claim procedure, in the form of copies of the submitted application.
You can read about the features of drawing up a statement of claim in this article.
When an additional agreement is not required
An additional agreement is not necessary if the innovations, although they affect the employee, are not related to changes in the terms of the original contract. For example, if the employment contract does not indicate a specific address of the office location, then when the employer moves within the locality, changes to the contract are not required. Just as there is no need for an additional agreement to transfer an employee from one office to another (decision of the Moscow City Court dated November 26, 2013 No. 4g/5-11603/13).
There is also no need to draw up an additional agreement when assigning an employee to work on another mechanism (unit), if it was not expressly specified in the employment contract. This means that the employer can change the company cars assigned to drivers without drawing up an additional document (appeal ruling of the Vologda Regional Court dated 02/05/14 No. 33-583/2014). However, it is unacceptable to change the positions of employees. For example, a truck driver cannot be entrusted with the duties of a bus driver without his consent (decision of the Supreme Court of the Republic of Sakha (Yakutia) dated November 16, 2017 in case No. 7/2-543/2017).
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When force majeure occurs for an entrepreneur
Force majeure (force majeure) is an extraordinary and unavoidable circumstance. This doesn’t happen every day, there is no one to blame and none of the entrepreneurs are prepared for the consequences. This is approximately how force majeure was described by the Supreme Court of the Russian Federation in paragraph 8 of the Plenum Resolution No. 7 dated March 24, 2016.
If the work of an entrepreneur is affected by self-isolation and bans in the regions, this is force majeure. For example, to limit crowds, shopping centers in the city were closed. The clothing store has lost revenue and now has no money to pay suppliers.
Entrepreneurs from any sector, not just those particularly affected, can invoke force majeure. You don’t need to meet any criteria either. This way, advertisers, photographers and everyone else whom the state does not consider to be victims can solve problems, for example, with rent.
Force majeure applies to contracts with companies, individual entrepreneurs, individuals and self-employed people. What the agreement was about does not matter. But it is worth remembering that for small businesses from affected industries there is support from the state under separate agreements. This includes a deferment on rent until October 1, exemption from rent to the state until July 1, and a credit holiday for 6 months. The laws already spell out the conditions for deferrals; they cannot be made worse.
⌚ Rent deferment for affected industries
Force majeure does not apply to employment contracts - Rostrud noted this. You cannot cancel your salary or delay the payment date. There are different rules.
