Article 310 of the Civil Code of the Russian Federation. Civil Code of the Russian Federation (Civil Code of the Russian Federation). Search for laws by alternative names and an overview of Russian legislation
Full text Art. 310 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 310 of the Civil Code of the Russian Federation.
1. Unilateral refusal from the performance of the obligation and unilateral change its conditions are not allowed, except for the cases provided for by this Code, other laws or other legal acts.
2. Unilateral change in the terms of the obligation associated with the implementation by all parties entrepreneurial activity, or unilateral refusal to fulfill this obligation is allowed in the cases provided for by this Code, other laws, other legal acts or an agreement.
In the event that the fulfillment of an obligation is associated with the implementation of entrepreneurial activity by not all of its parties, the right to unilaterally change its conditions or refusal to fulfill the obligation may be granted by the contract only to the party that does not carry out entrepreneurial activity, except for cases when by law or otherwise legal act the possibility of granting such a right to the other party is provided for by the agreement.
3. The right provided for by this Code, another law, other legal act or contract to unilaterally refuse to fulfill an obligation related to the exercise by its parties of entrepreneurial activity, or to unilaterally change the terms of such an obligation, may be conditioned by agreement of the parties by the need to pay a certain amount of money to the other party. obligations.
(As amended on June 1, 2015 Federal law dated March 8, 2015 N 42-FZ.
Commentary on Article 310 of the Civil Code of the Russian Federation
1.In order to ensure stable market relations, the legislator in the commented article provides for the principle of indissolubility of an obligation, which is most relevant for contractual relations, but which has its effect in relation to all types of obligations, regardless of the basis for their occurrence ().
At the same time, as an exception, it is allowed to establish in the contract the grounds for unilateral refusal and change of the obligation. The legislator means cases in which both counterparties are entrepreneurs and for both of them this commitment connected with the entrepreneurial activity they carry out (on the concept of entrepreneurial activity, see the commentary to Article 2 of the Civil Code of the Russian Federation).
2. The Civil Code of the Russian Federation and other laws provide the party with the right to unilaterally refuse to fulfill the obligation and unilaterally change the obligation, mainly due to non-fulfillment or improper performance the other side of the reciprocal obligations. The general rule in this regard is contained in. With regard to the sale and purchase, a unilateral refusal of the buyer is allowed if the seller refuses to transfer the sold goods (clause 1 of Art. 463 of the Civil Code of the Russian Federation), when the goods are transferred to them of inadequate quality (clause 2 of Art. 475 of the Civil Code of the Russian Federation), incomplete (clause 2 of Art. 480 of the Civil Code of the Russian Federation), in violation of the assortment (clause 2 of Art. 468 of the Civil Code of the Russian Federation). In turn, a unilateral refusal (unilateral change in the obligation) by the seller may follow if the buyer refuses to accept the goods (clause 3 of article 484 of the Civil Code of the Russian Federation) or pay for it (). Similar rights are provided for donation (Article 577 of the Civil Code of the Russian Federation), contracting (Articles 715 and 716 of the Civil Code of the Russian Federation), etc.
It should be borne in mind that the Civil Code of the Russian Federation does not link the right to unilateral refusal to perform an agreement with the existence of grounds for refusal provided for by law. For a unilateral refusal to execute an agreement related to the implementation of entrepreneurial activities by the parties, the very fact of the indication in the law or the agreement of the parties on the possibility of unilateral refusal is sufficient. Moreover, the possibility of such a refusal may be provided for by a peremptory norm, i.e. a norm that cannot be canceled or changed by means of a contract.
3. In cases where a law or an agreement allows a unilateral refusal to execute the agreement or unilateral change of its terms, they automatically entail the termination or amendment of the agreement, respectively (see clause 3 of Article 450 of the Civil Code of the Russian Federation). This does not deprive the other party of the right to challenge the lawfulness of such a refusal or change.
4. Judicial practice:
- Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 11.09.2012 N 3378/12 on case N A31-1905 / 2011;
- Resolution of the Nineteenth Arbitration appellate court dated 12.12.2013 in case No. A08-2780 / 2013;
- Resolution of the Federal Antimonopoly Service of the Moscow District of 02/06/2013 in case N A40-97482 / 11-139-837;
- Resolution of the Federal Antimonopoly Service of the West Siberian District of 09/18/2013 on case No. A45-1134 / 2013;
- Resolution of the Federal Antimonopoly Service of the East Siberian District of May 24, 2012 in case No. A19-14048 / 2011;
- ruling of the Second Arbitration Court of Appeal dated 19.03.2012 in case N A82-11602 / 2010.
Consultations and comments of lawyers under Article 310 of the Civil Code of the Russian Federation
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Art. 310 of the Civil Code of the Russian Federation is responsible for the proper fulfillment of the obligation under the concluded agreement and for the principle of inadmissibility of unilateral refusal to fulfill the obligation.
It is about the refusal of one party to fulfill its obligations without the consent of the other.
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Art. 310 of the Civil Code of the Russian Federation with comments
The article was adopted in 1994, the current version is valid as amended in 2018.
It says about:
- Inadmissibility of making a decision to refuse to fulfill obligations on one side only.
Its useful to note: this is only possible if the case is provided for by law or other law.
- A party may opt out if:
- she does not carry out entrepreneurial activity, unlike other participants;
- she was not obliged to sign the paper, that is, the absence of this participant would not affect the activity in any way;
- such a possibility is spelled out in the agreement in advance.
- If the refusing participant uses the conditions of refusal prescribed in the contract, or a unilateral change in the conditions occurred with the consent of the other participants, the guilty party will be obliged to pay compensation.
If the right to refuse on the one hand is established in peremptory norm(that is, it cannot be changed even by the decision of the participants), it is not possible to include claims for compensation.
Unilateral refusal to fulfill an obligation
This is a unilateral transaction under which the terms of the contract (all or some) are terminated. The law does not allow such a possibility in principle.
The easiest way to understand this is with an example: if an agreement is concluded between the parties to perform any work, the refusal of either party solely at its request will put the second participant at a disadvantage.
So, if the foreman refuses to do the work, the customer will be forced to look for a new employee; if the customer refuses to pay, the foreman will suffer damage.
Unilateral refusal or changes are not possible. But there are certain exceptions. Two of them are mentioned above: they are referred to in article 310.
If the agreement concerns a loan, the debtor can change the agreement at will in some situations:
- The lender did not come for the money without warning.
Note: we are talking about a situation when the time and place was indicated in the papers.
- The lender refused to accept the money for some reason.
- On the part of the creditor, there were violations of the agreement. For example, he had to provide the account number for the transfer of funds, but did not do so on time. Then the debtor can also change the conditions for his part and delay the payment.
- The incapacity of the creditor: it can be accepted by a court decision after the loan has been issued.
- Lack of certainty as to who exactly is the creditor and who needs to be repaid. This can happen, for example, due to the death of the creditor and disputes between the heirs.
Inadmissibility of unilateral refusal under article 310 of the Civil Code of the Russian Federation
Changes to the terms of the agreement or refusal to comply without the consent of the second participant are unacceptable.
The only exceptions are the situations described above or the terms of the contract.
It is worth distinguishing between unilateral refusal and termination at the request of the participants.
In the second case, the party wants to change or terminate the contract, offers it to the second participant and has the right to go to court if it is refused. That is, the first participant is the initiator of the revision of the agreement.
Take a note: amendment or termination at the request of a party occurs under Article 452.
In other cases, it is necessary to rely on Article 450 of the Civil Code, which sets out the conditions for these actions. It says that such decisions require the consent of both parties or a court decision if there is no consent of one of the parties. The basis for judgment there may be violations committed by the second party, or other reasons.
Article 310 of the Civil Code with comments talks about the possibilities of termination or amendment of a document unilaterally. It talks about the inadmissibility of such actions almost always. There are a few exceptions, but in principle there are few of them.
Watch the video in which the specialist dubs actual changes in article 310 of the Civil Code of the Russian Federation with regard to the proper fulfillment of obligations by the parties to the contract:
In accordance with Art. Art. 309 - 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts ... Unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided by law. On business. Omsk region.
Fora CJSC applied to Arbitration court Omsk region with a claim against the entrepreneur Kharlamova *. *. on the recovery of 23.750 rubles of the contractual penalty.Having checked the case materials in accordance with Articles 153, 155 of the Arbitration procedural code RF, having studied the arguments of the appeal, the response to it, after hearing the representatives of the parties, the appellate instance considers that the decision is subject to cancellation in part on the basis of paragraphs 2 and 4 of part 1 of Article 158 of the Arbitration Procedure Code of the Russian Federation, and the claims are partially satisfied.
The plaintiff, referring to Articles 115, 117, 120, 127 of the Arbitration Procedure Code of the Russian Federation, claims a violation by the court of first instance of the norms procedural law: deprivation of the opportunity to file a petition for the appointment of a handwriting examination, violation of the principle of continuity judicial trial, incompleteness and one-sidedness of the study of evidence. Appellate instance does not accept these arguments of the plaintiff. It follows from the minutes of the court session that on October 9, 2000, in court session a hiatus was announced until October 10, 2000. The minutes do not contain information about the plaintiff's petition to conduct a handwriting examination. The plaintiff did not submit comments on the protocol. The incompleteness of the study of the evidence was made up for in the consideration of the dispute in the appellate instance.
From the materials of the case it follows that on October 1, 1998, ZAO Fora and entrepreneur Kharlamova *. *. concluded a work contract, in accordance with which the plaintiff assumed obligations for the construction of a trade pavilion, and the defendant assumed obligations to pay for the plaintiff's work.
Those who joined legal force judicial acts(decision of the Arbitration Court of the Omsk Region dated 15.11.99 in case No. 8-134, resolution cassation instance Federal Arbitration Court of the West Siberian District of 13.03.00 in case N F04 / 630-108 / A46-2000) it was established that the entrepreneur Kharlamova *. *. the obligation to pay for the property of the trade pavilion received from CJSC Fora was not fulfilled. Recovered by the decision from the entrepreneur Kharlamova *. *. in favor of CJSC Fora, a debt in the amount of 25,000 rubles, a contractual penalty for the period from 25.12.98 to 12.11.99, with the application of Article 335 of the Civil Code of the Russian Federation, in the amount of 26.000 rubles. The decision has not yet been executed, the debt has not been repaid, which is not disputed by the parties.
By virtue of clause 2 of Article 58 of the Arbitration Procedure Code of the Russian Federation, the circumstances established by the decision of the arbitration court that entered into legal force on a previously considered case are not proven again when the court is considering another case in which the same persons are involved.
The judicial acts that have entered into legal force established the failure to fulfill the monetary obligation of the defendant. According to Articles 309 - 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts ... Unilateral refusal to fulfill an obligation and unilaterally changing its conditions is not allowed, except as otherwise provided by law. In accordance with paragraph 1 of Article 408 of the Civil Code of the Russian Federation, proper performance terminates the obligation. Entrepreneur Kharlamova *. *. until now has not fulfilled the monetary obligation, by virtue of which it can be brought to civil - legal responsibility.
The court of first instance concluded that the obligations of the defendant were terminated due to the termination of the contract by agreement of the parties in March 1999. The appellate instance considers that this circumstance, which the arbitration court considered established, is not proven. The defendant, in support of his objections, submitted a letter from CJSC Fora dated 17.03.99 N 25. The appellate instance, guided by paragraph 1 of Article 53, Article 57 of the Arbitration Procedure Code of the Russian Federation, comes to the conclusion that this document does not confirm the fact of termination of the contract. By virtue of paragraph 1 of Article 452 of the Civil Code of the Russian Federation, an agreement on amending or terminating an agreement is made in the same form as the agreement, unless otherwise follows from the law, other legal acts, agreement or business customs. The contract dated 01.10.98 was made in writing. Agreement on termination of the contract in writing (not submitted to the arbitration court. According to paragraph 1 of Article 450 of the Civil Code of the Russian Federation, amendment and termination of the contract is possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract. In clause 5 of the contract dated 01.10.98 the parties have foreseen the possibility early termination contracts at the request of CJSC "Fora", in the event of the defendant's failure to fulfill the conditions for financing the construction. Letter dated 17.03.99 N 25 contains a link to clause 3 of the contract dated 01.10.98, which does not contain conditions for terminating the contract. The further behavior of the parties does not allow us to conclude that they considered the obligations terminated. The statement about the termination of the contract was made by the entrepreneur Kharlamova *. *. only in August 2000. CJSC "Fora" denies the fact of termination of the contract dated 01.10.98 and sending a letter dated 17.03.99 N 25. A visual comparison of the signature of the head of CJSC "Fora" on the documents in the case raises doubts in the court about the authenticity of the signature made in the letter dated 17.03. .99 N 25. When considering case N 8-134 entrepreneur Kharlamov *. *. did not declare termination of the contract in March 1999. By a decision of 15.11.99 from the entrepreneur Kharlamova *. *. the contractual penalty was collected for the period up to November 12, 1999. Thus, the decision of the arbitration court that entered into legal force established that the agreement was in effect after March 1999, which is of prejudicial significance for the resolution of this dispute.
The plaintiff filed a claim to recover the forfeit stipulated by the contract (clause 5). Since the obligations of the defendant have not been terminated, it is possible to demand the fulfillment of the security obligation, which corresponds to Articles 329, 330 of the Civil Code of the Russian Federation. The claim was announced to collect a penalty in the amount of 0.5 percent of the amount owed for each day of delay. The penalty is calculated for the period from 13.11.99 to 20.05.00 (190 days) from the amount of the debt of 25,000 rubles, established by the decision of the arbitration court, and amounts to 23,750 rubles. The court of appeal, guided by Article 333 of the Civil Code of the Russian Federation. Taking into account the factual circumstances of the case, the period of delay, the behavior of the parties, he concludes that the declared penalty is disproportionate to the consequences of the violation of the obligation. The appellate instance considers it necessary to reduce the amount of the forfeit to be recovered by applying the discount rate in its calculation The Central Bank RF on the day of filing the claim - 01.06.00, which was 33 percent per annum. The appellate instance satisfies the requirement to collect a forfeit in the amount of 4,351 rubles (25,000 rubles x 33%: 360 days x 190 days).
Payment costs state duty under the claim are subject to the assignment of the defendant, the costs of paying the state fee for appeal distributed in proportion to the satisfied requirements. Guided by paragraph 2 of Article 157 of the Arbitration Procedure Code of the Russian Federation, the arbitration court ruled:
To cancel the decision of the Arbitration Court of the Omsk Region dated October 9-10, 2000 in case No. 2-206 regarding the refusal to collect 4,351 rubles of the penalty, to make a new decision in this part.
Collect from the entrepreneur Ludm Kharlamova living in the city of Omsk, Kirov street, building 10, building 2, apartment 21 in favor of the Closed joint stock company“Handicap” of the city of Omsk 4,351 rubles of forfeit.
Leave the decision unchanged for the rest.
To collect from the entrepreneur Lyudm Kharlamova, who lives in the city of Omsk, Kirov street, building 10, building 2, apartment 21 in favor of the Closed Joint Stock Company "Fora" of the city of Omsk 1.187 rubles 50 kopecks in reimbursement of expenses for paying the state duty on the claim, 103 rubles 34 kopecks in reimbursement of expenses on payment of the state fee on the appeal.
The decision can be appealed against in cassation procedure to the Federal Arbitration Court of the West Siberian District of Tyumen.
1. Unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except for the cases provided for by this Code, other laws or other legal acts.
2. A unilateral change in the conditions of an obligation associated with the implementation of entrepreneurial activity by all its parties, or a unilateral refusal to fulfill this obligation is allowed in the cases provided for by this Code, other laws, other legal acts or an agreement.
In the event that the fulfillment of an obligation is associated with the implementation of entrepreneurial activity by not all of its parties, the right to unilaterally change its conditions or refusal to fulfill an obligation may be granted by an agreement only to a party that does not carry out entrepreneurial activity, except for cases when a law or other legal act provides the possibility of granting such a right by the contract to the other party.
3. The right provided for by this Code, another law, other legal act or contract to unilaterally refuse to fulfill an obligation related to the exercise by its parties of entrepreneurial activity, or to unilaterally change the terms of such an obligation, may be conditioned by agreement of the parties by the need to pay a certain amount of money to the other party. obligations.
Comments to Art. 310 of the Civil Code of the Russian Federation
1. The commented rule extends the principle of indissolubility and immutability, usually associated with a contract, to all other obligations.
2. The commented article, admitting, as an exception, the possibility to establish in the contract the grounds for unilateral refusal and change of the obligation, means the cases in which both counterparties are entrepreneurs and for both of them this obligation is associated with their entrepreneurial activities.
3. The Civil Code and other laws provide a party with the right to unilaterally refuse to fulfill an obligation and unilaterally change an obligation, mainly due to non-fulfillment or improper fulfillment by the other party of counter-obligations. The general rule in this regard is contained in paragraph 2 of Art. 450 Civil Code (see comments), and special - in the chapters of the Civil Code devoted to certain types contracts. In particular, in relation to the sale and purchase, a unilateral refusal of the buyer is allowed if the seller refuses to transfer the sold goods (clause 1 of article 463 of the Civil Code), when he transfers goods of inadequate quality (clause 2 of article 475 of the Civil Code), incomplete (clause 2 of Art. . 480 GK), in violation of the assortment (clause 2 of Art. 468 GK). In turn, a unilateral refusal (unilateral change in the obligation) by the seller may follow if the buyer refuses to accept the goods (clause 3 of article 484 of the Civil Code) or pay for it (clause 4 of article 486 of the Civil Code). Similar rights are provided for donation (Article 577 of the Civil Code), contract (Articles 715 and 716 of the Civil Code), etc.
4. In cases where a law or an agreement allows a unilateral refusal to fulfill the agreement or a unilateral change in its terms, they automatically entail the termination or amendment of the agreement, respectively (see clause 3 of article 450 of the Civil Code and comments to it). This does not deprive the other party of the right to challenge the lawfulness of such a refusal or change.
The right, provided by this Code, another law, other legal act or contract, to unilaterally refuse to fulfill an obligation related to the implementation by its parties of entrepreneurial activity, or to unilaterally change the terms of such an obligation, may be conditioned, by agreement of the parties, by the need to pay a certain amount of money to the other party to the obligation. Commentary on Art.
Civil Code of the Russian Federation
Inadmissibility of unilateral refusal to fulfill an obligation. Unilateral refusal to perform and unilateral change of its conditions are not allowed, except as otherwise provided by law. A unilateral refusal to fulfill an obligation related to the exercise by its parties of entrepreneurial activity, and a unilateral change in the conditions of such an obligation are also allowed in the cases provided for by the contract, unless otherwise follows from the law or the substance. Section 311.Civil Code of the Russian Federation
Inadmissibility of unilateral refusal to fulfill an obligation Unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided by law. Unilateral refusal to perform, related to the implementation of entrepreneurial activities by the parties, and unilateral change in the terms of such an obligation are also allowed in the cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation. Up Article 311.Article 310 of the Civil Code of the Russian Federation
The Arbitration Court of the Voronezh Region (AS of the Voronezh Region) and the forms of settlements stipulated by the supply agreement.If by agreement of the parties the procedure and form of settlements are not determined, then settlements are made by payment orders.
Gk rf article 309 310
having examined in order simplified production the case on the claim of the limited liability company of the inter-municipal enterprise "Interdistrict Electricity Heating Networks" (OGRN 1143525013500) against the partnership of homeowners "Lenina 88" (OGRN 1103533000460) for the recovery of 30,571 rubles. 47 kopecks, limited liability company inter-municipal enterprise "Interdistrict electric heating networks" (OGRN 1143525013500, location Vologodskaya Oblast, g. Chapter 22 OF THE CIVIL CODE of the Russian Federation.Section 309
Therefore, fulfillment is the main and natural stage in the dynamics of the development of commitment. The performance of an obligation is understood as the performance by the debtor certain actions(or refraining from certain actions) due to the content.2. Despite the variety of actions committed by the debtor in different commitments, their implementation is subject to general rules.
Gk rf 309 310 article
Despite the variety of actions performed by the debtor in various obligations, their implementation is subject to general rules. Comment. Art. formulates one of these general rules performance of obligations - the principle of proper performance. This principle assumes that the obligation must be performed properly. Action (refraining from action) is recognized as execution only if they comply with the established obligation.Article 310 of the Civil Code of the Russian Federation
Magnitogorsk ( Chelyabinsk region)) Decision in case 2-2627 / 2019 М-2384/2019 (23.08.2018, Zheleznodorozhny district court G.Penza (Penza region)) Decision in case 2-736 / 2019 (2-10532 / 2015;) М-9601/2015 (23.08.2018, Taganrog city court (Rostov region)) Decision in case 2-3694 / 2019 М- 3286/2019 (08/23/2018, Kirovsky District Court of Novosibirsk (Novosibirsk Region)) Decision in case 2-242 / 2019 М-229/2019 (08/23/2018, Bolshemurashkinsky District Court ( Nizhny Novgorod Region)) Decision in case 2-2112 / 2019 (2-13193 / 2015;) M-12670/2015 (23.08.2018, Oktyabrsky District Court of St.