Agreement of accession Article 428 of the Civil Code of the Russian Federation examples. Civil Code of the Russian Federation (Civil Code of the Russian Federation)

1. An agreement of adhesion is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and could be accepted by the other party only by joining the proposed agreement as a whole.

2. The party that has acceded to the agreement has the right to demand termination or modification of the agreement, if the agreement of accession, although not contrary to the law or other legal acts, but deprives that party of the rights usually provided under contracts of this type, excludes or limits the liability of the other party for breach of obligations, or contains other conditions that are clearly burdensome for the acceding party, which, based on its reasonably understood interests, it would not accept if it had the opportunity to participate in determining the terms of the contract.

Unless otherwise established by law or follows from the essence of the obligation, in the event of an amendment or termination of an agreement by a court at the request of a party that has acceded to the agreement, the agreement is considered to be in force in the amended version or, accordingly, not in force from the moment of its conclusion.

3. The rules provided for in paragraph 2 of this article are also subject to application in cases where, when concluding an agreement that is not an adhesion agreement, the terms of the agreement are determined by one of the parties, and the other party, due to the obvious inequality of negotiating opportunities, is placed in a position that significantly complicates the agreement of another content individual conditions agreement.

Commentary to Art. 428 Civil Code of the Russian Federation

1. The agreement of adhesion (or dictated agreement) represents some deviation from the rules on freedom of contract. Due to certain circumstances, one of the parties to the adhesion agreement cannot offer its own conditions, but must only agree with the form proposed to it or completely refuse to conclude the agreement. The party proposing to join a standard form or form saves significant time by not having to negotiate the details of the transaction with each counterparty. At the same time, the counterparties of such a person have practically no opportunity to ensure that their interests are taken into account in the contract.

The Constitutional Court of the Russian Federation considers the institution of an accession agreement as one of the ways to limit " constitutional freedom agreement" on the basis of federal law and includes among such accession agreements, for example, a fixed-term bank deposit agreement with citizens (clause 2 of Article 834 of the Civil Code), the terms of which, in accordance with clause 1 of Art. 428 of the Civil Code of the Russian Federation are determined by the bank in standard forms. At the same time, the Constitutional Court notes that citizen investors, as a party to the contract, are deprived of the opportunity to influence its content, which is a restriction on the freedom of contract and requires compliance with the principle of proportionality. According to Constitutional Court RF, “the opportunity to refuse to enter into a bank deposit agreement, which outwardly indicates recognition of freedom of contract, cannot be considered sufficient to actually ensure it for citizens, especially when the right of citizens to protection from economic activity banks aimed at monopolization and unfair competition, there are no mechanisms for market control over credit institutions, including providing consumers with information about the economic situation of the bank, and the citizen is forced to agree to the conditions actually dictated to him, including the bank’s reduction in unilaterally interest rate on deposit."

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Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P “In the case of verifying the constitutionality of the provisions of part two of Article 29 Federal Law dated February 3, 1996 “On banks and banking activities” in connection with complaints from citizens O.Yu. Veselyashkina, A.Yu. Veselyashkina and N.P. Lazarenko."

2. Specifics of the economic situation weak side in such relations dictates the need to use special methods of protection.

As such a method of protection, the commented article establishes the requirement to terminate or amend the contract. To satisfy this requirement One of the following grounds must be present:

1) the agreement of adhesion deprives the joining party of the rights usually granted under agreements of this type;

2) the terms of the contract exclude or limit the liability of the other party for violation of obligations;

3) the contract contains other conditions that are clearly burdensome for the acceding party, which it, based on its reasonably understood interests, would not accept if it had the opportunity to participate in determining the terms of the contract.

The requirement to terminate or amend the accession agreement should be distinguished from the requirement to recognize it as invalid, including due to the non-compliance of the agreement with the law (Article 168 of the Civil Code).

The grounds listed above for satisfying a claim for termination or amendment of an accession agreement can be applied if the agreement does not contradict the law and other legal acts. So, for example, a retail purchase and sale agreement that prohibits the buyer from exchanging non-food products is contrary to Art. 502 of the Civil Code of the Russian Federation, the norms of which are imperative in nature. If such an agreement is concluded, the buyer has the right to consider void condition waiver of the right to exchange.

An agreement to limit the amount of liability of the debtor under an adhesion agreement, in which the creditor is a citizen acting as a consumer, is also void (Article 400 of the Civil Code).

3. The above-mentioned methods of protecting the interests of the party acceding to the agreement are not subject to application in relation to the party acceding to the agreement in connection with the implementation of its entrepreneurial activity, if such a party knew or should have known on what terms the contract was being concluded (clause 3 of the commented article). This norm is regarded in the Concept for the Development of Civil Legislation of the Russian Federation as unfair, allowing the stronger party to impose conditions favorable to it, and therefore requiring exclusion from the Civil Code of the Russian Federation.

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Concept for the development of civil legislation Russian Federation. Approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation dated October 7, 2009 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. N 11.

4. The mention in the commented article on adherence to forms or standard forms does not mean a requirement for a written form of the agreement. An agreement of adhesion is often concluded orally, if such a possibility is permitted by Art. 159 of the Civil Code of the Russian Federation. So, for example, a contract of adhesion can be considered those cases of retail purchase and sale when the buyer, having chosen a product, cannot offer the seller to change the price, method of payment, delivery of goods and other conditions, but only accedes to the terms of the contract arising from the situation and information, located at the point of sale.

The insured, as a rule, enters into an agreement by joining standard forms of agreement (insurance policy), which, by virtue of clause 3 of Art. 940 of the Civil Code of the Russian Federation can be developed by an insurer or an association of insurers for certain types of insurance. Since the insurance contract requires written form, in this case, joining the form occurs by signing by the policyholder the documents offered to him by the insurer.

Art. 428 Civil Code mentions new agreement in Russian civil law. It is considered one of the options for limiting freedom of contract on the basis of law. To what extent does the party agreeing to sign such a deal limit itself?

Regulatory regulation

Art. 428 of the Civil Code describes the possibility of concluding transactions by agreeing to proposals, the terms of which do not change during negotiations between the parties. The provisions of the article were amended by two amendments in 2015.

Given the increasingly widespread use standard forms agreements between business structures; significant volume judicial practice accumulated arbitration courts. Conclusions drawn in this regard are periodically published in newsletters. The Treaty of Accession has still found its way into the practice of the Constitutional Court of the Russian Federation.

Main features of the deal

The agreement may be qualified in accordance with Art. 428 of the Civil Code of the Russian Federation, if it simultaneously meets three conditions:

terms are offered exclusively by one party;
a standard agreement is proposed in the form of a form, which is filled out by the second party;
the other party has the right only to refuse the proposed conditions or agree to them.

If there was a discussion and as a result the original text was changed, even one of its paragraphs, it can no longer be said that the transaction was concluded on the terms of the adhesion agreement.

How to prove that the transaction was concluded in the usual way? A study of similar agreements concluded by a party to the case is being conducted. And if there are discrepancies, then the agreement is no longer subject to the provisions of Art. 428 Civil Code.

Conclusion options

The deal can be concluded in two ways:

a full document with details is signed by filling out the form;
a form is filled out or documents are submitted, which confirms agreement with the terms.

The agreement may not have the usual form, and the fact of conclusion is confirmed by correspondence between the parties and the receipt of goods and services. In this regard, Art. 428 of the Civil Code does not establish any other procedure for concluding transactions.

The essence of the problem

The adhesion agreement is used by merchants because of the convenience of applying this norm. This gives you the opportunity to offer a potential partner a deal on your own terms. In relations with numerous consumers, this is a fairly convenient option. There is no need to waste energy on concluding every contract. An example is Insurance companies, banks offering a deal on standard terms, entrepreneurs working under a contract.

The right to offer a deal of this kind also creates the ground for abuse. If a potential participant in a transaction is a commercial organization, he will either refuse to enter into such an agreement or challenge the legality of its provisions in court, then ordinary citizens this probability decreases exponentially.

Features of termination

Art. 428 of the Civil Code of the Russian Federation gives additional privileges to the second party in terms of changing or terminating the contract. What are they?

In a normal situation, changing a transaction unilaterally or refusing it is impossible, unless otherwise provided by law or the agreement itself. Termination or modification of the agreement is possible subject to mutual agreement. Termination through the court is formalized if there has been a serious violation on the part of the counterparty or it makes the contract further meaningless.

The party that developed the contract has the right to go to court, citing these reasons. The second party to the transaction is given preferences that make it easier to terminate the transaction.

The effect of clauses on the invalidity of the contract, on recognizing it as not concluded due to the absence of all essential conditions or their inaccurate presentation.

What are the preferences of the second party?

Art. 428 of the Civil Code of the Russian Federation with commentary identifies several additional reasons that give the second party the right to request termination of the contract:

a party, having acceded to the agreement, is deprived of the rights that participants in such agreements usually have;
the terms of the transaction limit or completely exclude the liability of the second party;
the conditions for the second party are burdensome, and she could refuse them if she had the opportunity to discuss them with the counterparty.

The same grounds give the right to amend the contract in judicial procedure, if the other party refuses to mutually amend the terms of the transaction.

Case studies

Now let's look at a few examples to illustrate the points being discussed.

For example, the requirement that the buyer must identify all defects in the product only at the stage of acceptance is considered to be a deprivation of the rights that everyone who has entered into such contracts has. The period for filing a claim for goods or services may be reduced in comparison with the law.

A reduction in the level of liability occurs in the case of different formulas for calculating penalties or fines. And for the same violations, different sanctions are imposed on the parties.

An onerous condition is the bank’s reserving the right to change interest rate, tariffs for the provision of services unilaterally. Banks often stipulate in contracts that a notification of a change is considered to be the posting of information in a bank branch or on its website without the usual notification of the client by mail or other means of communication. A client who has missed the deadline for filing an objection is considered to have agreed to the changes.

Changes made to the law

IN new edition Art. 428 of the Civil Code of the Russian Federation contains the following provisions.

Firstly, the second party has the right to use additional reasons not only to terminate the agreement, but also to make changes to it.

If the court agrees with the claim to amend or terminate the contract, then it is considered amended or terminated, respectively, from the date of signing or conclusion. This is possible only for transactions declared invalid.

Previously, the law established the rule that a claim should be denied if the other party should have known or knew about onerous conditions or restrictions before signing the transaction.

It is interesting that the preferences regarding termination described above apply to other agreements that are not accession agreements. The rule applies if the other party did not have negotiating opportunities. We are talking about ordinary citizens, cases with monopolists, etc.

Official text:

Article 428. Agreement of adhesion

2. The party that has acceded to the contract has the right to demand termination or modification of the contract if the contract of accession, although not contrary to the law and other legal acts, deprives this party of the rights usually granted under contracts of this type, excludes or limits the liability of the other party for violation of obligations, or contains other conditions that are clearly burdensome for the joining party, which, based on its reasonably understood interests, it would not accept if it had the opportunity to participate in determining the terms of the contract.

Lawyer's comment:

Agreements by accession are widespread in a wide variety of industries. National economy. These, in particular, include agreements for the use of electrical and thermal energy, gas and similar services of public utilities, agreements with transport organizations. At the same time, to a certain extent, they limit the freedom of expression of the “joining” party.

There should be no doubt that not only consumer citizens, but also other participants in civil circulation can act as such a party.

Accordingly, various rules are established in case the “party joining the contract” demands, based on the instructions of the law, termination or modification of the contract.

A citizen-consumer has such a right when, based on his positive interests and having the opportunity to participate in determining these conditions, he would not accept them.

In this regard, as well as in the presence of the circumstances listed in paragraph 2 of this article, the agreement to limit the amount of liability of the debtor under the adhesion agreement is considered void.

As for the situation in which the joining party is an entrepreneur, her similar demand cannot be satisfied, since it can be assumed that she knew or should have known on what terms she was concluding the contract.

The adhesion agreement - an example of it is given in our article - is a unified document, subject to unconditional execution by any party joining it as a participant. The article also contains information about what features such an agreement has, how to distinguish it from a regular agreement, what are the grounds for terminating an already concluded agreement of adhesion or changing its terms.

What agreement is a contract of adhesion in civil law?

In accordance with paragraph 1 of Art. 428 of the Civil Code of the Russian Federation, an adhesion agreement is an agreement, the terms of which are established by one of its parties and enshrined in a form or other form. This applies to essential conditions, rights and obligations of the parties, conditions regarding the term of the agreement, etc. The form in in this case- This standard contract, the text of which is developed in advance and offered to the counterparty for signing (in this case, the second party can accept such conditions only by joining it).

The party to which such a form is proposed may join it or refuse such accession. The legislator does not grant her the right to participate in the discussion of its terms. In fact, the accession agreement is concluded by the developer sending an offer to the joining party, which, in turn, accepts this offer (Clause 2 of Article 432 of the Civil Code of the Russian Federation).

The restriction on the freedom of the joining party is due to the fact that accession agreements, as a rule, are of a mass nature (their developers are banks, insurance companies, air and railway carriers, etc.) and, therefore, are concluded with an unlimited number of persons. This approach allows the company to optimize its time resources, eliminating the need to develop individual agreements that take into account the specifics of each specific situation.

However, from this advantage follows the main disadvantage of contracts of this type: the unification of the project used may entail a violation of the legal rights of the joining party. That is why the legislator has provided for the possibility of terminating and changing the accession agreement unilaterally at the initiative of the joining party.

In what cases is such an agreement terminated under the Civil Code of the Russian Federation?

According to paragraph 2 of Art. 428 of the Civil Code of the Russian Federation, a contract of adhesion is terminated at the initiative of the joining party if its conclusion entails:

deprivation of the acceding party of the rights that usually arise when concluding contracts of this kind;
limitation of the other party’s liability for violation of the terms of the contract (or its complete exclusion);
the occurrence of certain encumbrances on the acceding party as a result of the execution of the terms of the contract, which it would have refused if it had had the opportunity to participate in the development of the document.

In addition, according to general rules, established by clause 5 of Art. 453 of the Civil Code of the Russian Federation, the party on whose initiative the contract was terminated is obliged to compensate its partner for the losses incurred.

However, this rule does not apply to adhesion agreements. The possibility of terminating the agreement is provided by the legislator only as a measure allowing the joining party to protect its legal rights and interests.

Amendments to the accession agreement

If the party that has acceded to the agreement does not want to terminate it, it has the right to demand amendments to the existing agreement (Clause 2 of Article 428 of the Civil Code of the Russian Federation). The grounds for making changes coincide with the grounds under which the contract can be terminated completely.

Moreover, in the event of adjustments being made to the concluded agreement, it, in accordance with paragraph. 2 p. 1 art. 428 of the Civil Code of the Russian Federation is recognized as valid in a modified form from the moment of its conclusion. A similar rule applies in the event of termination of an agreement, since it is considered invalid from the moment of its conclusion, that is, it is actually canceled, leveling the rights and obligations that exist for the joining party in the period from the date of signing the agreement to the day of termination.

What agreement is recognized as an adhesion agreement?

The main criterion by which a contract of adhesion is recognized a separate species a civil law agreement is the method of concluding an agreement. Wherein civil law does not contain any indication of which agreements have the status of an adhesion agreement. That is why, when determining the type of contract, it is worth answering the question of whether it can be concluded in the usual way or not. If the answer is negative, the agreement will be recognized as a contract of adhesion.

If, during the conclusion of the agreement, the second party managed to achieve amendments to the existing draft document, the specificity of the adhesion agreement disappears, therefore, it is deprived of the specified status.

The accession agreement should be distinguished from standard forms and sample agreements distributed in public sources, including on our website. Such documents can be used as a basis for developing a unique agreement regulating the interaction of its two parties. In this case, the person to whom the finished project is offered has the right to make his own adjustments to it, that is, to conclude it on normal terms.

Signs of an adhesion agreement

It is possible to identify the features of an adhesion agreement by analyzing the provisions of paragraph 1 of Art. 428 of the Civil Code of the Russian Federation, the content of which allows us to conclude that these are:

determining the terms of the agreement of one of its parties;
the second party does not have the opportunity to make adjustments to the draft agreement proposed to it;
recording the terms of the agreement in standard forms (for example, insurance policies).

In most cases, the merger agreement is a multi-page document that regulates all the nuances of interaction between a large company and its counterparties and/or clients. A whole staff of qualified lawyers with specialized knowledge not only in the field of contract law, but also in the industry to which the subject of the concluded agreement relates (the subject may be land plot, insurance or credit product, services telephone communication and many more etc.). In order to better understand general principle drawing up such contracts, as well as familiarize yourself with their structure and possible content, we suggest considering a sample drawn up by our specialists.

Agreement of adhesion - sample

Agreement of accession

Don't know your rights?

Commentary on Article 428

1. Along with the public one (Article 426), the Civil Code introduces another the new kind agreement - agreement of adhesion. A sign that makes it possible to distinguish this agreement is the procedure for concluding and developing its terms.

The name of the agreement reflects its essence, which is that the second party simply joins the agreement with standard terms proposed by one party without affecting its content (conditions). However, in this case the principle of freedom of contract is not violated, because It is at the discretion of the acceding party to decide whether to enter into an agreement or not. It follows from this that one of the conditions for using an adhesion agreement should, as a rule, be the opportunity to select a counterparty from among those offering an adhesion agreement.

2. The features of an adhesion agreement are as follows:

a) the contract is developed by one party using a form or other standard form; the other party does not participate in determining the terms of the contract;

b) the form or other standard form of the agreement is developed by the party offering (using) the adhesion agreement. Such a form, another standard form in contrast to the standard or sample contract is not subject to approval and does not require publication in the press (see Articles 426, 427 of the Civil Code and commentary thereto);

c) the offeror is the party that developed the adhesion agreement;

d) acceptance of the adhesion agreement is the consent to conclude such an agreement, expressed by signing on a form (standard form) or performing implied actions, for example, in the cases provided for in paragraph 2 of Art. 494 and art. 498 Civil Code;

e) as a rule, the adhesion agreement is accepted in its entirety, i.e. a protocol of disagreements cannot be drawn up against it (objections are presented in a different form). If there is a disagreement on at least one of the terms of the accession agreement, it is recognized as not concluded (see Articles 433 and 437 of the Civil Code and commentary thereto);

f) the terms of the accession agreement must comply with the Civil Code, other laws or other legal acts, and reflect the rights usually granted under agreements of this type.

3. The commented article gives the party that has acceded to the contract the right to make a claim to terminate or amend the contract and provides the grounds for making such claims. Moreover, the grounds are defined differently depending on who is the joining party. Clause 3 significantly limits the rights of the party who entered into the agreement in connection with the implementation of its business activities. This party should be understood as an entrepreneur who uses the purchased goods (services) for consumption or processing in the process of entrepreneurial activity, or for resale. For example, the purchase of gas from a thermal power plant, water from a chemical plant that uses gas or water in the production process.

The party who has acceded to the agreement in connection with the implementation of its business activities must be careful, because she is given the right to demand termination or modification of the contract of adhesion only in cases where she proves that she did not know or should not have known on what terms the contract was concluded.

Citizens, as well as legal entities who have acceded to an agreement not in connection with the implementation of their business activities, have the right to demand termination or modification of the agreement to which they have joined, in cases where this agreement deprives them of the rights usually granted under an agreement of this type and limits liability the party that proposed the form, or the contract includes conditions that are burdensome for the party.

The commented article is in addition to Art. 450 of the Civil Code defines the grounds for termination or modification of the contract, based on the characteristics of this agreement, since the joining party could not participate in determining its terms.

The acceding party is not deprived of the right to demand changes or termination of the agreement also on the grounds provided for in Art. Art. 450, 523, 546 Civil Code, etc.

In any case, any party acceding to the agreement has the right to demand recognition of individual terms or the agreement as a whole as invalid if its terms contradict the law and other legal acts.

Special rules are established regarding the terms of the liability agreement of adhesion. According to paragraph 2 of Art. 400 of the Civil Code, it is not allowed to limit the liability of the debtor in an accession agreement. The terms of such a liability agreement are void if they establish liability below the amount that is determined by law for a given type of obligation (see commentary to Article 400 of the Civil Code).

The rules establishing the grounds for filing a claim to terminate or amend the accession agreement are aimed at protecting, first of all, the rights of citizens entering into an accession agreement.

4. From paragraphs 2 and 3 of the commented article it follows that the rules on the agreement of adhesion can be used when concluding many types of agreements and the Civil Code does not contain rules interpreting this or that type of agreement as an agreement of adhesion. Nor can it be established by another law or other legal acts that the agreement certain type is concluded only in the manner established for the adhesion agreement. Such a decision is made by the party that developed the adhesion agreement, provided there are conditions that allow its use.

The adhesion agreement is most often used in relationships commercial organization with a citizen when the standard terms of the contract are repeated many times. For example, a retail purchase and sale agreement, a bank deposit agreement, an agreement for the use of a telephone, the provision of tourist services (Article 779 of the Civil Code), etc.

The agreement of adhesion is also used to supply relations with electricity and heat, gas, water to citizens and legal entities who joined the agreement not in connection with their business activities.

In the event of a dispute between the parties, the question of the possibility of applying the rules on the agreement of adhesion to a specific agreement is decided by the court.

5. A different approach is necessary to the energy supply agreement and other supply agreements through the connected network concluded with legal entities entering into an agreement in connection with the implementation of their business activities. For such relations, a contract of adhesion can hardly be applied.

The energy supply (gas, water supply) organization is a subject natural monopoly and occupies a dominant position in commodity market. When supplying energy (gas, water) through the connected network, there is no competition; the subscriber is deprived of the opportunity to choose a counterparty and refuse to join the proposed agreement with standard conditions formulated by the supply organization. In this regard, the use of a form or other standard form of connection agreement by an energy, gas, or water supply organization with market power will mean imposing any conditions on the buyer purchasing energy (gas, water) for business activities, regardless of the specific circumstances, and deprives him of the right to influence them.

The use of only standard conditions in the connection agreement also does not comply with the rules of the Civil Code on energy (gas, water) supply agreements, because according to Art. Art. 541, 542, 544 of the Civil Code, the terms of the contract on quantity, grounds for changing it, mode of supply of energy (gas, water), quality, procedure for payment for energy (gas, water) are established by agreement of the parties, and not determined by one of them.

In connection with the above, it is hardly possible to agree with the recognition in the Decree of the Government of the Russian Federation of December 30, 1994 N 1445 (SZ RF. 1995. N 2. Art. 152) of the gas supply (supply) agreement as an accession agreement and the giving of instructions to RAO Gazprom - business company(commercial organization) approve the contract form for use by all gas supply organizations - its subsidiaries.

In addition, the agreement for the supply of gas to power plants and other consumers - legal entities is public, therefore, if there are disagreements regarding the terms of the agreement, sent in the form of a form approved by RAO Gazprom, the disagreements that have arisen can be referred to the court for decision by virtue of Art. Art. 426 and 445 Civil Code. It can be assumed that upon conclusion public contract As a contract of adhesion, priority should be given to the rules on public contracts.