Every entrepreneur encounters inconvenient customers. They demand too much and pay too little. They are always unhappy with work, they call in the evenings and scream. There is a desire to write them a farewell letter and move on to other things.
There is another situation - a sudden promising business. The entrepreneur chooses: fulfill the promise and receive 100,000 rubles - or break it and earn 300,000 rubles. The second option is tempting.
Whether it’s the customer or you, break the contract correctly. The article will help you avoid litigation and payment of compensation.
Why is it important to terminate a contract legally?
The agreement confirms the entrepreneur’s responsibility to the customer. He is obliged to complete repairs, prepare a student for the Unified State Exam or develop a website. The opportunity to pick up and quit a job without consequences is rare. Usually the customer suffers losses, which he has the right to return under Art. 393 and 393.1 of the Civil Code of the Russian Federation. If he goes to court, you will most likely lose.
An example of incorrect termination of a contract
Irina develops websites. She entered into a contract agreement with Dmitry. She estimated the entire work at 50,000 rubles and took an advance payment of 25,000 rubles. The deadline has passed, but there are no results. Irina ignores the letters, does not return the advance payment and does not even pay attention to the complaint.
Dmitry found another performer and paid him 75,000 rubles. I launched the website by the beginning of the business season, as planned. And then he went to the arbitration court.
As a result, Irina paid 147,000 rubles:
— 25,000 rubles — for an unpaid advance,
- 25,000 rubles - because the customer had to pay more to another contractor.
- 2000 rubles - for state duty.
— 95,000 — for the customer’s expenses for a lawyer.
Irina's reputation will also suffer. Customers will check it in services like Kontur.Focus or on the website of the arbitration court. They will discover that she deceived the client and will choose another contractor.
Case No. A50-28821/2017
What does it mean to terminate a contract?
Terminate a contract - terminate its validity from a certain date. Everything that happened before this date remains in effect.
Example:
Olga prepares lunches for offices. The contract with Romashka LLC stipulates the period: from July 1 to December 31. The company moved to the other side of the city. The director of Romashka himself offered to sign an agreement to terminate the contract. The company did not have time to pay for August. Termination of the contract does not release her from the debt. The service has been provided, and Olga is waiting for payment for it.
Methods for terminating the contract
There are three ways to terminate a contract: by agreement of the parties, unilaterally or through the court - under Art. 450 and art. 450.1 Civil Code of the Russian Federation.
Termination by agreement of the parties
The customer and the contractor agree: there is no point in continuing. There are two options: to separate silently or by written agreement. The agreement will confirm that there are no longer mutual obligations between the parties. Even if the customer goes crazy, he will not demand a sudden penalty. Sign the agreement for peace of mind.
The termination agreement is essentially an annex to the contract. Therefore, they draw it up in the same way as a contract. If the agreement was signed on paper, prepare a paper document. If the contract was certified by a notary, they go to him again.
The agreement states:
— Should the unearned advance be returned? If yes, by what date?
— Whether to return the result of unfinished work under a contract.
— From what date does the contract cease to be valid? If you do not specify a date, the contract will be terminated from the date the agreement is signed.
Termination of the contract unilaterally
A unilateral refusal is a notice. You tell the customer: “We are no longer working,” and the contract ceases to be valid.
The right to unilateral refusal arises if it is specified in the contract or the Civil Code. In the contract, check the sections “Termination Procedure” and “Final Provisions”.
The contract is terminated unilaterally under Art. 716 and 719 of the Civil Code of the Russian Federation, if:
— The customer provided unsuitable material or inappropriate technical documentation. For example, a client demands to renovate an apartment according to a design project, but it does not correspond to the layout of the apartment.
— The contractor was waiting for materials or technical documentation from the customer - and never received it. For example, to create a website, information about a product is needed, but the customer did not share it.
— The customer’s requirements will lead to poor results or missed deadlines. The customer did not respond to the warning. For example, the customer is having a wedding. She signed a contract with the seamstress. During the process, the customer became obsessed with silk and demanded that this material be used. The seamstress warned that in this case she would not be able to complete the work on time - first verbally, then in writing. She had to break the contract.
The contract for the provision of services is terminated at any time under Article 782 of the Civil Code of the Russian Federation.
To terminate the contract:
— Under the service agreement, the customer’s losses are fully compensated.
— According to the contract, the unfinished product is returned to the customer. For example, an unfinished dress.
Warn the customer about the termination of the contract in an official form: send a registered letter with a list of the contents and a receipt. In the event of a trial, an inventory of the attachment will confirm that you sent a message about the termination of the contract, a notification of delivery will confirm that the customer received the letter. Send the letter to the address in the contract.
Termination of a contract through court
If the client is against terminating the contract, all that remains is to go to court.
The general reasons for breaking a contract are specified in Art. 450, art. 451 Civil Code of the Russian Federation:
— The customer significantly violated the contract. This causes losses to the contractor that he did not expect. For example, the owner of the office did not transfer money for construction materials. The time frame for starting repairs has been delayed, and the contractor needs to proceed with the next orders.
— Circumstances have changed significantly, which the parties did not foresee. For example, trade relations with a country have been stopped, so the reseller of goods from it cannot continue deliveries.
In practice, the contract is usually terminated on the first ground.
The order is:
1. Send the client a written proposal to terminate the contract. Set a deadline for response - or it will be the standard 30 days. Send the letter with a description of the attachment and a receipt.
2. Get rejected or wait until the deadline has passed.
3. Send the statement of claim to the court and a copy to the customer. It is better to prepare a statement of claim with a lawyer. The court will consider only the requirements that are stated in it.
What to include in contracts with customers for the future
The most convenient form of breaking a contract is unilateral refusal. In any agreement you can specify the grounds for it. For reasons, take specific situations from your practice. Arbitrary conditions will not work - for example, an unfavorable alignment of the stars or a bad mood. Art. 450.1 Civil Code of the Russian Federation.
For example, in a contract for tailoring, it can be stated that the tailor has the right to refuse work if:
a) the customer brought unsuitable fabric;
b) the customer does not come to the fitting when the tailor is called.
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CLAIM FOR EARLY TERMINATION OF THE AGREEMENT
For claims for termination of lease agreements on the general grounds established by Art. 450 GK. The subject of proof
includes facts indicating a significant violation of the contract by the other party or a significant change in the circumstances from which the parties proceeded when concluding the contract.
Lease legislation (Articles 619, 620 of the Civil Code) indicates specific facts (circumstances), the presence of which is regarded as a significant violation of the contract by the other party.
One of the following circumstances is proven:
1) failure to provide property by the lessor at the request of the lessee;
2)
creation by the lessor of obstacles to the use of property in accordance with its purpose or the terms of the contract;
3)
the presence of property defects not specified at the conclusion of the contract, which could not and should not have been known to the tenant and should not have been discovered at the conclusion of the contract, but which prevent the use of the property;
4)
failure by the lessor to fulfill the obligation to carry out major repairs within the time period established by the contract (or reasonable);
5)
unsuitability of property for use arising due to circumstances for which the tenant is not responsible (for example, loss or damage to property in a fire that did not occur through the fault of the tenant);
6)
the fact of the occurrence of other circumstances specified in the contract as grounds for early termination of the contract at the request of the tenant.
It should be borne in mind that in the process of considering this category of cases, other circumstances are necessarily established that are not included in the subject of proof, but determine the conditions under which such requirements can be stated.
Thus, a necessary condition for satisfying the lessor’s claim for early termination of the lease agreement on the basis of Art. 619 of the Civil Code is to establish during the trial the fact that the landlord sent a written warning to the tenant about the need to fulfill the contractual obligation within a reasonable time. The landlord has the right to demand termination of the contract only if the tenant fails to comply with the proposal received.
This right is exercised, in turn, in compliance with the procedure for terminating the contract established by clause 2 of Art. 452 of the Civil Code, after receiving the refusal of the other party to the proposal to terminate the contract.
Fulfillment only of the conditions of the last part of Art. 619 of the Civil Code, without complying with the conditions of Art. 452 of the Civil Code is not enough to consider the dispute, since these preconditions are of a different nature and are aimed at achieving independent goals.
So, the proposal is in accordance with Art. 619 of the Civil Code concerns the requirement to fulfill an obligation in the additional time provided, and the proposal, the mandatory sending of which before going to court, is provided for in paragraph 2 of Art. 452 of the Civil Code, concerns the termination of a contract voluntarily, without going to court.
In practice, these conditions are usually fulfilled by the lessor in one document: in an offer to fulfill the obligation within a specified period, and in case of non-fulfillment, to sign an agreement on voluntary termination of the contract attached to this offer.
Regarding the tenant's demands for termination of the contract, there are no special rules for sending him demands for the execution of the contract.
However, compliance with the condition on the mandatory pre-trial procedure for resolving the issue of termination of the contract established by clause 2 of Art. 452 of the Civil Code must be established by the court.
The evidence in these cases is: 1)
documents confirming the occurrence of the circumstances named in Art.
Art. 619, 620 or 451 Civil Code; 2)
a copy of the tenant’s written warning about the need to fulfill the agreement with proof of its delivery or sending in a manner that records sending (by registered mail, letter with notification, etc.) - in cases of landlords;
3)
a copy of the proposal for voluntary termination of the contract with evidence of its delivery or sending - for all claims for termination of the contract.
conclusions
- If you do not terminate the contract according to the law, the customer will go to court and recover damages from you.
- There are three ways to terminate a contract: unilaterally, by agreement of the parties and through the court.
- The ability to terminate the contract unilaterally is the best situation. Notify the counterparty in writing, return the unearned money and the unfinished result - and the transaction is in the past.
- The agreement between the parties implies that both parties agree to end the relationship. If the customer is against it, the work will have to be completed.
- The opportunity to terminate the contract through the court arises if the customer significantly violated the terms of the contract or the apocalypse prevented the fulfillment of obligations.
- In all contracts with clients, provide for your right to unilateral refusal. Write down specific reasons from your practice.
Unilateral termination of the contract for the provision of services and notification of this to the counterparty
The procedure for unilateral termination of a transaction is regulated by clause 1 of Art. 782 of the Civil Code of the Russian Federation. If the service agreement is terminated unilaterally, the party initiating such actions shall send the other party a corresponding notice. It can be sent not only by mail, but also by hand.
In the first case, it is necessary to send it by registered mail with acknowledgment of receipt and a list of the contents to prove the fact of delivery of the correspondence. In the second case, it is necessary to transmit the notice to the counterparty in two copies, on one of which he must sign.
The notification contains the following information:
- Information about the counterparty to whom it is sent (his full name, address, if it is an individual or individual entrepreneur, or the name of the company, its address, if it is a legal entity).
- Information about the details of the concluded agreement, namely the date and number of the agreement.
- Information about the person sending the notification. For individuals, this is your full name. and address, and for legal entities - the name of the organization and its address).
- An indication of the grounds for termination of the transaction.
- Date the notice was signed.
- Signature and transcript of the applicant's signature.
Termination of the transaction implies that the contractor must be reimbursed for his expenses, if he incurred any for the execution of the contract. Documents confirming payment of such expenses may be provided with the notification.
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From the moment the counterparty receives the notification, the contract is considered terminated, and accordingly, the obligations to provide services are terminated.
notifications of termination of the service agreement can be found here.
