Procedure for unilateral termination of the contract in 2021

Reason for termination

In accordance with the Civil Code, the conclusion, amendment and early termination of a contract occurs by agreement of the parties.
Often the initiator is one party. To remain in the legal field, you will need compelling reasons. They are similar to the grounds for refusal to fulfill obligations and arise from the contract (clause 1 of Article 307.1 of the Civil Code of the Russian Federation). All possibilities and restrictions are prescribed by law:

The procedure and conditions for terminating the contract are regulated by Art. 450 – 453 GK;
unilateral procedure - Art. 450;
Features of unilateral refusal to fulfill obligations - Art. 310 GK.

Results

So, in order to terminate a previously concluded supply agreement, its parties need to prepare and sign a document containing the corresponding expression of will of the parties.
Mandatory details of such an agreement are the data of the counterparties who entered into the canceled supply agreement, the number of this agreement, the date of its preparation, as well as an indication of the moment the provisions of the agreement enter into legal force. The document must be signed by each party. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.

How to terminate

By mutual agreement

The parties have the right to agree and terminate the contract by agreement of the parties, this is done before the expiration of its term. The basis is mutual agreement (clause 1 of Article 450 of the Civil Code). Please note that:

to terminate an agreement concluded in favor of a third party, it is necessary to obtain his consent, unless otherwise provided by law, other legal acts or by himself (clause 2 of Article 430);
in a multilateral transaction, the consent of the majority of the parties is sufficient if this is allowed by the business contract and is not prohibited by law (Clause 1 of Article 450 of the Civil Code of the Russian Federation).

Out of court unilaterally

Such termination is carried out on the grounds provided for:

law or other legal act;
agreement (its violation by the counterparty, the occurrence of specified circumstances).

IMPORTANT!

If only one of the parties conducts business activities, then unilateral termination of the contract in the Civil Code of the Russian Federation is permitted only to its counterparty (clause 2 of Article 310 of the Civil Code).

Through the court

The Civil Code determines the procedure for terminating a contract in court and prescribes the grounds for this:

significant violation of the terms by the other party (clause 2 of Article 450 of the Civil Code). The violation is recognized as material by law or agreement. To terminate, you will have to prove that it was completed, or justify its significance, if it was not named in the law or agreement as the basis for termination;
other violation provided for by law or contract (clause 2 of article 450 of the Civil Code of the Russian Federation). Example - violation of the terms of the lease provided for in paragraph 3 of Art. 611 and art. 620 GK;
the occurrence of other circumstances provided for by law or contract that are not related to the violation of the latter (Clause 2 of Article 450 of the Civil Code of the Russian Federation). For example, the prescribed basis is a unilateral change in price by the counterparty;
a significant change in circumstances (clause 1 of Article 451 of the Civil Code), which is very difficult to prove.

Termination of the contract by agreement of the parties or initiative of one of the parties

It often happens in life that counterparties decide to terminate a concluded agreement (contract, provision of services, supply, etc.). This happens for various reasons: due to violations of the terms of the contract by the other party, dissatisfaction with the quality of the performance provided by the other party, deadlines for performance, in connection with concluding an agreement with a new partner, or for objective reasons (for example, when life circumstances change). Termination of a contract is one of the topics that gives rise to an inexhaustible variety of practical situations. We will try to understand the most common situations in this article. We will also talk about the grounds and procedure for terminating the contract.

Methods for terminating the contract

To begin with, it should be noted that there are 3 ways to terminate the contract:

by agreement of the parties
unilaterally (at the request of one of the parties)
judicially

Termination of the contract by agreement of the parties

This method of terminating a contract is the simplest option for terminating a contract when both parties agree to terminate contractual obligations and there are no disputes regarding mutual settlements or other issues related to terminating the contract.

To terminate a contract by agreement of the parties, you need to draw up and sign a termination agreement. The main thing is to clearly and unambiguously indicate in it that the contract is being terminated.

If you only offer the counterparty to terminate the contract, sign and send him 2 copies of the agreement and ask him to return one of them with his signature. Please indicate in your cover letter that this letter and termination agreement do not constitute a waiver of the contract if you have the right to unilaterally rescind. This is necessary if you do not want to terminate the contract unilaterally (for example, if the contract proposed for termination provides for a penalty for early termination of the contract in case of unilateral refusal).

The termination agreement must be signed by authorized persons (the party to the agreement, a legal representative, a person acting without a power of attorney from a legal entity, or a representative under a power of attorney containing the appropriate powers and duly executed). To terminate a multilateral agreement, the consent of not all parties, but the majority, may be sufficient, if this is allowed by the business agreement and is not prohibited by law (Clause 1 of Article 450 of the Civil Code of the Russian Federation).

To terminate a contract in favor of a third party, it is necessary to additionally obtain the consent of the third party, unless otherwise provided by law, other legal acts or the contract.

Often in practice the question arises: in what form should the termination agreement be drawn up? As a general rule, draw up the agreement in the same form as the contract. As a rule, this is one document in simple written form that is signed by both parties to the contract. If the contract is notarized (for example, an annuity contract), the agreement to terminate it must also be notarized.

If a registered contract is terminated, submit the agreement to the authorized body (for example, Rosreestr) so that information about the termination of the contract becomes known to third parties and you can enter into a new contract or realize other interests.

Before drawing up an agreement, we recommend reconciling mutual settlements. The reconciliation report can be made an annex to the agreement.

How to draw up a termination agreement?

Please include the following information in the termination agreement:

information about the contract being terminated: its name, date, number (required)
name and details of the parties signing the agreement, signatures of the parties (required)
an indication that the contract is being terminated, made in a clear and unambiguous form - for example, “the parties have agreed to terminate the contract …” (required)
the moment from which the contract is considered terminated, or the date of the agreement (required). As a general rule, rights and obligations are considered terminated from the moment the agreement to terminate the contract is concluded. However, you can agree on a different termination point (for example, 10 days from signing the agreement). Regarding the possibility of terminating a contract retroactively, there are several positions of the courts: formally there is no prohibition in the law, but a number of judges believe that when the contract is terminated, the relations of the parties are terminated for the future and do not affect the rights and obligations of the parties that existed before.
the state of the obligations of the parties, conditions for the return of what was performed under the contract, sanctions for violating the return period (recommended). For example, an unearned advance or property transferred for the execution of a contract. This is important if the obligations are not fulfilled to the same extent and otherwise is not agreed in the contract. Indicate the amount or list of property, the period and procedure for return.

If the contract was registered with Rosreestr, it will terminate:

for the parties - from the moment of conclusion of the agreement on termination of the contract or from the date specified in such agreement
for third parties - from the moment of making an entry in the Unified State Register about this

Termination of the contract unilaterally

In order for a party to a contract to terminate it unilaterally, it must have grounds for doing so. Such grounds are provided for by law or other legal act (for example, the law provides for the right to unilaterally refuse a contract for the provision of services, the shareholder’s refusal of the DDU in certain cases, etc.), as well as the concluded agreement (for example, the contract may provide for the right any of the parties or one party unilaterally withdraw from the contract without giving reasons or upon the occurrence of certain conditions, notifying the other party about this). At the same time, the law establishes restrictions on the inclusion of a condition for unilateral refusal in the contract if only one of the parties conducts business activities; in this case, the refusal can only be allowed to its counterparty (non-entrepreneur).

Please note how the grounds for refusal of the contract are formulated. Usually, the right to a reasoned refusal is allowed, which is associated with a violation of the contract by the counterparty or due to the occurrence of other circumstances. In this case, you can cancel the contract if the specified circumstances occur. But the refusal may not be due to anything (unmotivated refusal). In such a situation, you can refuse to fulfill the contract at any time without giving reasons.

If a party has grounds for unilateral refusal of the contract, it has the right to send the other party a notice of termination of the contract (unilateral refusal of the contract). In this case, the agreement will terminate from the moment the notification is received by the counterparty (the moment when it is delivered to the counterparty or is considered delivered according to the rules of Article 165.1 of the Civil Code of the Russian Federation) or another moment specified in the agreement or law in this case (in some cases, the moment of termination of the agreement is the time of sending the notification).

Therefore, when terminating a contract unilaterally, we recommend sending a notice by Russian Post by registered mail with a list of the attachments (in the list indicate “notice of unilateral refusal of the contract...” with the data of the contract being terminated) or handing it in against signature, but if the person who accepted the notice has the authority to receive documents (take a copy of the power of attorney).

Send the notice of termination to the correct address, otherwise the court may declare the termination of the contract invalid (notifications to legal entities and individual entrepreneurs are sent to the address specified in the Unified State Register of Legal Entities or the Unified State Register of Individual Entrepreneurs, respectively, to individuals - to the known address of residence). Save the documents that confirm the fact of sending and delivery of the notice. In case of unilateral refusal of the contract, the party does not need to go to court to terminate the contract, including in the case of the need to enforce unequal performance (for example, when returning an unpaid advance).

How to draw up a notice to a counterparty about unilateral termination of a contract?

The form of notification is not established by law. We recommend that you include the following information in your notice:

a clearly and unambiguously formulated intention to unilaterally renounce the contract out of court. Otherwise, in the event of a dispute, the court may not recognize that the refusal has taken place and qualify your intention, for example, as an offer to terminate the contract by agreement of the parties
grounds for refusal of the contract if the refusal is motivated (violations of the counterparty)
a rule of law or a clause in a contract that gives you the right to withdraw from the contract
details of the agreement (name, date, number) and details of the parties to the agreement
requirement to return what was fulfilled (for example, an unpaid advance) or property that you transferred to fulfill the contract (for example, to a commission agent for sale), the deadline and method of return in accordance with the contract
demand to compensate for losses or pay penalties, if your refusal is motivated and by law or contract you have the right to demand this

A number of agreements (and in some cases the law) provide for a fine or a certain fee upon termination of the agreement, which must be taken into account when deciding on unjustified termination of the agreement. In this case, the condition in the agreement regarding payment for unilateral cancellation of the agreement will be valid if the following conditions are simultaneously present:

the contract is related to the fact that both you and the counterparty are engaged in business activities (if one of the parties is a consumer, then such a condition may be invalid)
unilateral refusal is unmotivated
the provision in the contract regarding the stipulated termination fee does not violate mandatory norms of law

Also, the courts do not charge a fee for refusal if its amount clearly does not correspond to the adverse consequences of the refusal that have occurred for the counterparty, and his behavior is dishonest. Or if in the contract you called this payment a penalty or a fine, these are sanctions for violating the contract, while your refusal is a legal action.

When unilaterally terminating a contract, the party to the contract who decides to terminate the contract must check:

does she have the right to unilaterally refuse the contract (according to law or contract)
the moment of termination of the contract in this case
deadlines for notifying the other party
additional conditions for such termination provided for in the legal acts or agreement

Termination of the contract in court

When terminating a contract in court, as in the case of unilateral refusal, the initiative to terminate the contract comes only from one of the parties. But in this case, the party must prove to the court the grounds provided for by law for terminating the contract in court. In this case, the contract will be considered terminated from the moment the court decision enters into legal force.

The following grounds can be identified for termination of a contract at the initiative of one of the parties in court:

material breach of contract by the other party. The breach may be said to be fundamental in law or contract. For example, the parties may agree that a supplier's failure to deliver by more than 20 business days constitutes a material breach. In this case, to terminate the contract, you need to prove that the counterparty supplier committed this violation. If the violation is not specified in the law or contract as a basis for termination, then it is necessary to prove to the court what the materiality of such violation is.
other violation provided for by a special law or agreement. For example, such violations of the lease agreement are provided for in paragraph 3 of Art. 611 and art. 620 Civil Code of the Russian Federation; Law No. 214-FZ provides for a number of grounds under which the shareholder has the right to terminate the DDU in court (not to be confused with the grounds for unilateral refusal). In this case, it is not necessary to prove whether the violation is significant; in this case, only the fact that the other party committed the intended violation is proven
the occurrence of other circumstances provided for by law or contract that are not related to the violation of the contract. For example, in the contract the parties may provide for such a basis as the counterparty changing the price unilaterally
significant change in circumstances (clause 1 of Article 451 of the Civil Code of the Russian Federation). There is little chance of terminating the contract on this basis, since it is very difficult to prove such a change.

To terminate a contract in court, it is necessary to apply to the court with a statement of claim, and as a claim it is necessary to indicate “terminate the contract” indicating the details of the contract, the parties to the contract and the grounds for termination.

Step-by-step instructions “Termination of a contract in court”

To terminate a contract through court you must:

Step 1. Send a claim to the defendant, a proposal to terminate the contract (indicating the grounds for termination of the contract

Step 2 . Determine the jurisdiction and jurisdiction of the dispute

Economic disputes between legal entities, individual entrepreneurs, and other disputes related to business activities are subject to the jurisdiction of arbitration courts. Other disputes are considered by courts of general jurisdiction.

Geographically, these disputes are subject to the jurisdiction of the court at the location of the defendant, unless other jurisdiction is established by the agreement. However, when determining jurisdiction, check to see if other rules apply in your case. This may be the case when:

The plaintiff chooses jurisdiction. For example, if the contract specifies the place of its performance, you can file a claim both at the location of the defendant and at the place of performance of the contract. And if the claim arises from the activities of a branch of a legal entity, then it can be filed at the location of the legal entity or branch
The law establishes exclusive jurisdiction. For example, if the defendant in a claim for termination of a contract is a carrier, then the claim should be filed with the arbitration court at the location of the carrier (Part 3 of Article 38 of the Arbitration Procedure Code of the Russian Federation).

Step 3. Collect documents confirming the legitimacy of your claim

In addition to the agreement and its annexes, it is necessary to collect documents confirming the grounds for termination of the agreement in court (named in the law or agreement, or the materiality of the violation of the terms of the agreement, etc.). Also collect documents confirming compliance with the pre-trial (claim) procedure.

Step 4. Draw up a statement of claim in compliance with the requirements of the law

Step 5. Calculate the state duty and pay it

The amount of the state fee depends on how many claims you are making and which ones. If you declare not only the termination of the contract, but also property claims (for example, recovery of losses, return of property), then calculate the state duty for each of the claims and add them up. In this case, the amount of the state duty is:

for termination of the contract - 6,000 rubles. (when filing with an arbitration court), 300 rubles (when filing with a court of general jurisdiction)
for collection of funds - based on the cost of the claim and jurisdiction

Step 6 . When filing a claim with the arbitration court, send a copy of the claim and documents to the defendant

Step 7. File a claim with documents attached to the court

You can file a claim through the court office or by sending it by mail or through an electronic system.

Consequences of termination of the contract

With the termination of the contract, the obligations of the parties, as a general rule, cease. You are no longer obligated to fulfill the contract and cannot demand this from the counterparty. However, obligations that, by virtue of the terms of the contract or their nature, imply their application even after termination of the contract or regulate relations after termination, continue to apply (for example, warranty obligations in relation to goods, agreement on jurisdiction, arbitration clause, obligation to pay for goods supplied, work performed, services rendered). services, the tenant's obligation to return the leased property).

As a rule, it is impossible to demand the return of what was performed under the contract. But if the performance was unequal, what was received unjustifiably must be returned, for example, an unearned advance.

Security obligations also terminate, but if the obligation does not terminate after termination of the contract or regulates the relations of the parties after termination, then the security for this obligation also remains (for example, the security continues to ensure the repayment of the loan).

You also have the right to demand compensation for losses if the termination of the contract was the result of a violation of obligations by the counterparty.

Need a trial lawyer? To assess the prospects for resolving a dispute and calculate the cost of services, call us at 8 (495) 223-48-91 or submit a request.

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