Compulsion to fulfill obligations

Arbitration lawyer – pre-trial and judicial compulsion to fulfill obligations under the contract

Have you entered into a business agreement, but the counterparty does not fulfill its obligations? Are losses growing every day, but the debtor’s solvency is zero? A professional arbitration lawyer who knows all the nuances of resolving property disputes will help you fully protect your interests and compensate for property or monetary losses.

Interim measures for the fulfillment of contractual obligations

Most of the obligations assumed by both parties entering into an agreement must be fulfilled voluntarily and properly. The legislation provides for a number of interim measures aimed at stimulating the debtor to properly fulfill its obligations:

pledge;
penalty;
surety;
retention of property;
deposit;
bank guarantee.

Business partners may provide for other interim measures when concluding an agreement, if they do not contradict current legislation and are enshrined in writing or notarial form. They do not fully guarantee unconditional fulfillment of obligations, but they simplify compensation for losses due to the insolvency of the debtor in the pre-trial resolution of the conflict.

Features of the pre-trial method of compulsory performance of obligations

There are many tools for legally inducing a debtor to fulfill obligations in a pre-trial manner, allowing businessmen not to enter into an open conflict:

1. Negotiations. A successfully conducted conversation, taking into account the debtor’s motivation, objective and subjective reasons that caused the violation of contractual obligations, should force him to satisfy your demands by legal means.

2. Claim correspondence. Sending claims to the debtor in writing is an effective way to increase the debtor’s motivation to fulfill contractual obligations. Plus, a well-drafted written complaint can be used as a document confirming the seriousness of your intentions during further negotiations or in court.

3. Resale of debt. The law allows the sale of debts through an agreement on the assignment of claims to companies engaged in purchasing them. Of course, this will not completely compensate for losses, but will partially cover the material costs incurred.

It is much easier to prevent any dispute than to resolve it in court. Therefore, it is advisable to look for alternative ways to resolve it with the help of a professional lawyer specializing in resolving property disputes, and not a full-time specialist.

Suspension of work under a government contract due to non-payment by the Customer

SOLUTION

Yuzhno-Sakhalinsk Case No. A59-8479/2018

March 08, 2022

The operative part of the court decision was announced on March 7, 2022, the court decision was made in full on March 08, 2022.

Arbitration Court of the Sakhalin Region composed of judge T.S. Gorbacheva when keeping the minutes of the court session by the secretary of the court session Che S.A.,

case No. A59-8479/2018 in open court

according to the claim of the limited liability company "Sakhalin-Stroy-Mekhanizatsiya" (OGRN 1046500642550, INN 6501153111)

to the Office of the Judicial Department in the Sakhalin Region (OGRN 1026500525006, TIN 6500000835)

on imposing the obligation to conclude an additional agreement to the state contract dated December 10, 2013 No. 2013.36874,

starring:

from the plaintiff - representative Martynov D.A. by power of attorney dated February 10, 2019; representative of Struchanin A.V. by proxy dated 03/05/2019 (before the break);

from the defendant - representative Marinenko E.I. by power of attorney dated February 18, 2019; representative Kalina I.V. — powers are confirmed on the basis of an extract from the Unified State Register of Legal Entities (before the break),

U S T A N O V I L:

Limited Liability Company "Sakhalin-Stroy-Mekhanizatsiya" (hereinafter referred to as the plaintiff, the Company, LLC "Sakhalin-Stroy-Mekhanizatsiya") filed a claim with the Arbitration Court of the Sakhalin Region, specified in accordance with Article 49 of the Arbitration Procedural Code of the Russian Federation, to the Office Judicial Department in the Sakhalin Region (hereinafter referred to as the defendant, the Department) on the obligation to conclude an additional agreement to the state contract dated December 10, 2013 No. 2013.36874 for the construction of the facility “Building of the Yuzhno-Sakhalin City Court and the Yuzhno-Sakhalin Garrison Military Court in Yuzhno-Sakhalinsk " The first stage”, stated in a new edition:

1. clause 3.1. “The calendar dates for completing the work are determined by the Parties:

Work begins from the moment the “Parties” sign the government contract;

Completion of work: July 30, 2022. Commissioning of the facility on October 10, 2022.”;

2. Schedule of construction work, which is Appendix No. 3 to the Contract;

3. Schedule for delivery of equipment and materials by the General Contractor, which is Appendix No. 4 to the Contract.

The claims are justified by the provisions of Articles 451, 452, 766, 767 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) and are motivated by arguments about the suspension of work under the contract in the period from 04/01/2016 to 2017 due to the Customer’s non-payment for work performed during the period January-March 2016.

The plaintiff's representative supported the arguments set out in the statement of claim at the court hearing.

The defendant, in his response to the statement of claim, objected to the satisfaction of the requirements and indicated that there were no grounds for extending the contract, since the contract was extended twice by additional agreements concluded between the parties. He also indicated that the plaintiff’s lack of his own funds allowing him to carry out work at his own expense is not an absolute reason for his failure to perform work under the contract.

In the additional written explanations provided, the defendant provided explanations on how the limits on budgetary obligations under the contract in question were allocated. With regard to the allocated limits, the defendant's representatives explained at the court hearing that in general there was no reduction in the limits of budget obligations under the contract, however, for certain periods (years) there was a decrease in the limits of the allocated limits of budget obligations, which were transferred to the next (later) periods . In confirmation of these circumstances, the defendant provided information about the budgetary obligations fulfilled within the framework of this program, the amount of funding provided under this program, the amount of funding received under this program, adopted within the framework of the target program “Development of the Judicial System of Russia for 2013-2020”, within the framework of which the contract in question was concluded, and the budgetary obligations fulfilled within the framework of this program. as well as information from the Federal Treasury Department for the Sakhalin Region with reports on the state of the recipient’s personal account for each period under review. The changes that were made to the specified program were also presented in tabular form, along with excerpts from the Decrees of the Government of the Russian Federation that introduced these changes. These documents are included in the case file.

The arguments set out in the response to the statement of claim and written explanations were supported by the defendant's representatives in court hearings.

From the case materials, the court established the following.

Decree of the Government of the Russian Federation dated December 27, 2012 No. 1406 approved the federal target program “Development of the judicial system of Russia for 2013 - 2022” (hereinafter referred to as the Program), paragraph 50 of which provided for the allocation of limits on budgetary obligations for the project “Construction of a building to accommodate the Yuzhno-Sakhalinsk city court and the Yuzhno-Sakhalinsk Garrison Military Court" in the amount of 1,136,159,000 rubles, the commissioning date for the facility was set at 2018.

Between the Office of the Judicial Department in the Sakhalin Region (Customer) and Sakhalin-Stroy-Mekhanizatsiya LLC (Contractor) state contract No. 2013.36874 dated December 10, 2013 (hereinafter referred to as the Contract) was concluded, in accordance with clause 1.1 of which the Customer delivers, and the General the contractor undertakes the general contract for the construction of the building of the Yuzhno-Sakhalinsk City Court and the Yuzhno-Sakhalinsk Garrison Military Court at the address: Yuzhno-Sakhalinsk, St. Katayama, 6 (first stage - construction and installation work) in the amount and in terms provided for in this Contract.

In accordance with clause 2.1 of the Contract, the cost of work was set at 935,964,351.55 rubles.

The timing of the work is established by clause 3.1 of the Contract, according to which the start of work is from the moment the parties sign the state contract, the completion of work is December 31, 2022, the commissioning of the facility is December 31, 2022.

According to clause 3.3, the deadlines for completing individual stages of work are determined by the construction schedule (Appendix No. 3).

According to clause 4.1.2, the General Contractor is obliged to supply equipment and materials to the construction site in accordance with the Equipment and Materials Delivery Schedule (Appendix No. 4).

Clause 4.1.37 sets limits on budgetary funds that the General Contractor is obliged to use in each period of work under the Contract. Thus, the General Contractor must master within:

— 2014 at least 373,147,467 rubles,

— 2015 not less than 179,853,017 rubles,

— 2016 not less than 285,299,900 rubles,

— 2022 at least 97,663,967.55 rubles.

According to clauses 2.6, 2.7, 2.10 of the Contract, payment is made by the Customer for the work actually performed on the basis of documents submitted by the contractor confirming their completion. No advance is paid.

Moreover, in accordance with clause 4.2.7 of the Contract, the Customer is obliged to provide a continuous financing regime throughout the entire period of work (construction), starting from 2014.

By clause 2.11 of the specified additional agreement, its parties established that, starting from 2016, the General Contractor fulfills its obligations, payment of which will be made in 2016 and subsequent years, only after receiving from the Customer a notification about informing the Customer of the scope of rights to accept and fulfill obligations allowing in the corresponding year, pay for the Contract without changing its terms.

Clause 19.1 of the Contract establishes that in the event of changes in legislative and regulatory acts that worsen the situation of the parties compared to their condition at the time of concluding this Contract and leading to additional costs of time and money, valid on the date of entry into force of changes in legislative and regulatory acts, agreements on terms and conditions construction costs must be adjusted accordingly by the parties and secured by an additional agreement, which becomes an integral part of this contract from the moment of its signing.

Additional agreement No. 5 to the Contract dated 05/08/2015 of the parties to this Contract in connection with the reduction of the limits of budget obligations previously communicated to the Customer and the change in financing by year in paragraph 50 of part 5 of the Decree of the Government of the Russian Federation of 12/25/2014 No. 1488 “On amendments to the federal The target program “Development of the Russian judicial system for 2013-2020” extended the deadline for completing work under the Contract, setting the completion date for work as September 30, 2022, and the commissioning date for the facility as September 30, 2022.

Also, the specified additional agreement redistributed the financing limits, reduced the allocation of limits for 2016, 2017, and added a new period for the allocation of limits - 2022.

Additional agreement No. 13 dated September 26, 2018 of the parties to the Contract in connection with the reduction of the limits of budget obligations previously communicated to the Customer by paragraph 50 of the Decree of the Government of the Russian Federation dated December 27, 2017 No. 1555 “On amendments to the federal target program “Development of the judicial system of Russia for 2013- 2020" extended the deadline for completing the work under the Contract, setting the completion date for the work as September 31, 2022, and the commissioning date for the facility as May 31, 2022.

Referring to the fact that by Decree of the Government of the Russian Federation dated October 3, 2018 No. 1186, the allocation of budget funding limits was postponed to 2022, the Company addressed the Management with letters dated October 19, 2018, dated November 7, 2018, with a request to conclude an additional agreement to the Contract, which extend the deadline for completing work until October 10, 2019.

Due to the fact that by letter dated November 19, 2018 No. 0110/4253, the Department refused to conclude an additional agreement, citing the fact that in accordance with the Decree of the Government of the Russian Federation dated October 3, 2018 No. 1186, the limits of budget obligations were not reduced, the Company appealed to arbitration court with a claim to oblige the Office to conclude a corresponding additional agreement.

Having studied the case materials, examined and assessed according to the rules of Article 71 of the Arbitration Procedure Code of the Russian Federation the evidence available in the case materials, and heard representatives of the parties at court hearings, the court comes to the following conclusions.

In accordance with Art. 702 of the Civil Code of the Russian Federation, under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

According to Art. 708 of the Civil Code of the Russian Federation, the contract indicates the initial and final deadlines for the work. Unless otherwise established by law, other legal acts or provided for by the contract, the contractor is responsible for violation of both the initial and final, as well as intermediate deadlines for the completion of work. The initial, final and intermediate deadlines for completing the work specified in the contract may be changed in cases and in the manner provided for by the contract.

According to Art. 450 of the Civil Code of the Russian Federation, amendment of the contract is possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract. At the request of one of the parties, the contract can be changed or terminated by a court decision only: in case of a significant violation of the contract by the other party; in other cases provided for by the Code, other laws or agreement. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.

By virtue of Art. 767 of the Civil Code of the Russian Federation, when the relevant state bodies or local government bodies in the prescribed manner reduce the funds of the corresponding budget allocated to finance contract work, the parties must agree on new terms, and if necessary, other conditions for the performance of work.

Changes to the terms of a state or municipal contract not related to these circumstances, unilaterally or by agreement of the parties, are permitted in cases provided for by law.

In accordance with paragraph 6 of part 1 of Article 95 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Federal Law No. 44-FZ), a change in significant terms of the contract during its execution are not allowed, with the exception of changing them by agreement of the parties, including in the cases provided for in paragraph 6 of Article 161 of the Budget Code of the Russian Federation, when reducing the limits of budget obligations previously communicated to the state or municipal customer as a recipient of budget funds. At the same time, the state or municipal customer, during the execution of the contract, ensures the approval of new terms of the contract, including the price and (or) timing of the contract and (or) the quantity of goods, volume of work or services provided for by the contract.

Clause 6 of Article 161 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation) establishes that in the event of a decrease in a government institution as a recipient of budgetary funds by the main manager (manager) of budgetary funds of the previously established limits of budget obligations, leading to the impossibility of the government institution fulfilling budgetary obligations arising from state (municipal) contracts and other agreements concluded by it, the state institution must ensure that, in accordance with the legislation of the Russian Federation on the contract system in the field of procurement of goods, works, services to meet state and municipal needs, the new conditions of state (municipal) contracts, including price and (or) deadlines for their execution and (or) quantity (volume) of goods (work, services), other contracts.

Analyzing the above norms together, the court comes to the conclusion that these norms indicate the possibility of changing the terms of the state (municipal) contract in terms of the period of work in the event of a reduction in the customer's budget obligations, including in a particular period, leading to impossibility of fulfillment by the customer of obligations assumed in accordance with the contract.

The contract considered in this case for the construction of the building of the Yuzhno-Sakhalinsk City Court and the Yuzhno-Sakhalinsk Garrison Military Court was financed from the limits of budgetary obligations provided for by the federal target program “Development of the Judicial System of Russia for 2013 - 2022” (hereinafter referred to as the Program), approved Decree of the Government of the Russian Federation dated December 27, 2012 No. 1406.

Paragraph 50 of the said Program in its original version provided for the allocation of limits on budgetary obligations for the project “Construction of a building to house the Yuzhno-Sakhalinsk City Court and the Yuzhno-Sakhalinsk Garrison Military Court” in the amount of 1,136,159,000 rubles, the deadline for putting the facility into operation was set - 2018

The allocation of limits on budget obligations was provided for by periods:

— in 2014 – 424,764,000 rubles,

— in 2015 – 212,600,000 rubles,

— in 2016 – 310,400,000 rubles,

- in 2022 - 103,900,000 rubles,

- in 2022 - 84,495,000 rubles.

By Decree of the Government of the Russian Federation of December 25, 2014 No. 1488 “On amendments to the federal target program “Development of the judicial system of Russia for 2013-2020”, changes were made to this program. The total amount of allocated limits amounted to 1,147,509,500 rubles, while the allocation of limits by year was redistributed as follows compared to the original edition:

- for 2014 - limits decreased from 424,764,000 rubles to 424,437,200 rubles,

- for 2015 - limits decreased from 212,600,000 rubles to 192,408,900 rubles,

- for 2016 - limits decreased from 310,400,000 rubles to 223,181,400 rubles,

- for 2022 - limits decreased from 103,900,000 rubles to 40,000,000 rubles,

- for 2022 - the limits increased from 84,495,000 rubles to 267,482,000 rubles.

That is, the specified Resolution of the Government of the Russian Federation reduced the limits of budget financing for 2014, 2015, 2016, 2017, while the reduced limits were transferred to 2018.

In connection with the introduction of amendments to the Program by the specified Government Decree, the parties to the Contract concluded an additional agreement No. 5 to the Contract dated 05/08/2015, the parties extended the deadline for completing the work under the Contract, setting the completion date for the work - September 30, 2022, the date for putting the facility into operation - also September 30, 2022.

By Order of the Government of the Russian Federation dated May 20, 2017 No. 972-r “On ensuring, by December 1, 2022, the completion of settlements for unfulfilled obligations of 2016 provided for by state contracts in relation to capital construction projects,” the Judicial Department under the Supreme Court of the Russian Federation was pointed out the need to ensure up to December 1, 2017 completion of settlements for unfulfilled obligations of 2016 in the amount of 2,317,248.5 thousand rubles provided for by government contracts in relation to capital construction projects according to the list according to the appendix.

In accordance with the list of capital construction projects, which is an appendix to the said order, in relation to the building to house the Yuzhno-Sakhalinsk City Court and the Yuzhno-Sakhalinsk Garrison Military Court (construction), the amount of limits that had to be used before December 1, 2017 was 136,190, 9 thousand rubles.

By Decree of the Government of the Russian Federation of December 27, 2017 No. 1555 “On amendments to the federal target program “Development of the judicial system of Russia for 2013-2020”, changes were again made to this program. The total amount of allocated limits did not change and amounted to 1,147,509,500 rubles, while the allocation of limits by year was redistributed as follows in comparison with the limits provided for by the Program as amended by Government Decree No. 1488 dated December 25, 2014:

— for 2014 — 424,437,200 rubles (the volume of limits has not changed),

— for 2015 — 192,408,900 rubles (the volume of limits has not changed),

— for 2016 — limits decreased from 223,181,400 rubles to 151,726,800 rubles.

- for 2022 - limits increased from 40,000,000 rubles to 136,190,900 rubles,

- for 2022 - the limits have not changed and amounted to 267,482,000 rubles.

At the same time, the date of commissioning of the facility in terms of construction work was postponed from 2022 to 2022.

In connection with the introduction of the above changes to the Program, the reduction of the limits of budgetary obligations and the postponement of the commissioning date of the facility, the parties to the contract concluded an additional agreement No. 13 dated September 26, 2018, by which the deadline for completing the work under the contract was extended: in terms of completion of work - up to 31 December 2022 (for three months), in relation to putting the facility into operation - until May 31, 2022 (for eight months).

At the same time, from the above-mentioned Decree of the Government of the Russian Federation dated December 27, 2017 No. 1555, Order of the Government of the Russian Federation dated May 20, 2017 No. 972-r, presented by the Department of “Information on accepted budgetary obligations, the volume of completed funding and the balances of accepted budgetary obligations not covered by the completed financing”, as well as explanations from representatives of the Department given in court hearings, it follows that for 2016 the limits were not only reduced to the amount of 151,726,800 rubles, but also brought to the Department at the end of 2016, and therefore were not fully used . For 2016, the Company, due to the lack of limits on allocated budgetary obligations, carried out work only at the beginning of 2016, after which it was suspended. These works were paid for by the Department at the end of 2016 with payment orders No. 444145 dated December 29, 2016, No. 453891 dated December 30, 2016, No. 453890 dated December 30, 2016. The volume of fulfilled budget obligations (that is, paid funds) amounted to 20,276,976.24 rubles from the allocated and completed limits - 157,706,200 rubles. The remaining amount was returned to the budget.

At the same time, the amount of 136,190,900 rubles, the allocation of which was provided for by Decree of the Government of the Russian Federation dated December 27, 2017 No. 1555 for 2022, is the remaining unused limits of 2016, which is confirmed by Order of the Government of the Russian Federation dated May 20, 2017 No. 972-r “On provision of up to December 1, 2022, the completion of settlements for unfulfilled obligations of 2016 provided for by government contracts in relation to capital construction projects,” in which this amount is indicated as unused in 2016.

In addition, the limits for 2022 in the amount of 40,000,000 rubles, which were provided for by the Program as amended by Decree of the Government of the Russian Federation of December 27, 2017 No. 1555, were not allocated for the period of 2017, which is confirmed by the information of the Department “Information on accepted budgetary obligations, the volume of completed funding and the balances of accepted budget obligations not covered by completed funding,” in support of which reports are presented on the state of the personal account of the recipient of budget funds for each period, compiled by the Federal Treasury Department for the Sakhalin Region.

As follows from the information provided, in 2022, funding in the amount of 136,190,900 rubles was provided to the Department, that is, the remaining funds from 2016, which were provided by Decree of the Government of the Russian Federation dated May 20, 2017 No. 972-r, as well as Decree of the Government of the Russian Federation dated December 27. 2017 No. 1555 were postponed to 2017.

Thus, the limits provided for 2016 (151,726,800 rubles) were actually allocated and used for two years - 2016 and 2017; the limits provided for by the Program for 2022 in the amount of 40,000,000 rubles were not allocated.

The limits that were provided for 2016 by the Program as amended by Government Resolution No. 1488 dated December 25, 2014 (RUB 223,181,400) and subsequent Government Resolution No. 1555 dated December 14, 2017 were reduced to the amount (RUB 151,726,800). At the same time, these limits were not transferred to 2022, since in 2022 the remaining limits of 2016 were used, and the limits for 2022 by Government Decree No. 1555 of December 14, 2017 were not changed and remained unchanged in the amount of 267 482,000 rubles.

That is, on the date of the Government Resolution No. 1555 dated December 14, 2017, the 2016 limits remained unallocated in the amount of 71,454,600 (223,181,400 rubles - 151,726,800 rubles) and 2017 – 40,000 rubles, which were reduced by this Resolution.

By Decree of the Government of the Russian Federation of October 3, 2018 No. 1186 “On amendments to the federal target program “Development of the judicial system of Russia for 2013-2020”, changes were made to this program. The total volume of allocated limits amounted to 1,161,946,700 rubles. The allocation of limits by year was redistributed as follows in comparison with the limits provided for by the Program as amended by Government Resolution No. 1555 of December 27, 2017:

— for 2014 — 424,437,200 rubles (the volume of limits has not changed),

— for 2015 — 192,408,900 rubles (the volume of limits has not changed),

— for 2016 — 151,726,800 rubles (the volume of limits has not changed),

— for 2022 – 136,190,900 rubles (the volume of limits has not changed),

- for 2022 - the volume of limits increased from 267,482,000 rubles to 274,918,700 rubles,

- for 2022 - the allocated volume of limits amounted to 113,714,000 rubles.

The parties did not conclude an additional agreement to the Contract in connection with the introduction of the above changes to the Program.

From the above it follows that, in general, under the Contract there was a decrease in the limits of budget obligations in 2016 and 2022, these limits were transferred to 2022, 2022.

At the same time, additional agreement No. 5 was concluded in connection with the reduction of limits in each period - 2015, 2016, 2022 and the allocation of reduced limits in 2022 (Resolution of the Government of the Russian Federation dated December 25, 2014 No. 1488). Additional agreement No. 13 was concluded in connection with the reduction of limits in the amount of 136,190,900 rubles for 2016 and their assignment to the next period - 2022 (Resolution of the Government of the Russian Federation of December 14, 2017 No. 1555).

In connection with the reduction of limits in 2016 in the amount of 71,454,600 (223,181,400 rubles - 151,726,800 rubles) and 2022 - 40,000 rubles, which were transferred to 2022 by Decree of the Government of the Russian Federation dated October 3, 2018 No. 1186, the parties additionally no agreement was concluded.

The above circumstances indicate that the parties to the Contract have the right to extend the period for completing the work and paying for it.

At the same time, the court takes into account that paragraph 6 of Article 161 of the Budget Code of the Russian Federation establishes the customer’s obligation to agree on new terms of the contract in accordance with the changed limits allocated for the fulfillment of the customer’s obligations under the contract.

The management's objections essentially boil down to the fact that in this case there was no general reduction in the limits under the Contract and the Program. At the same time, despite this circumstance, in each individual financial year the limits of budget obligations were reduced and allocated at a later period, which is not disputed by the Department, and therefore the court recognizes the lawfulness of the application in this case of the provisions of paragraph 6 of Article 161 of the Budget Code of the Russian Federation , as well as paragraph 6 of part 1 of article 95 of Federal Law No. 44-FZ.

The above conclusion corresponds to the legal position of the Supreme Court, set out in the Ruling dated October 2, 2017 in case No. 305-KG17-13700.

When considering the question of the period for which the execution of work under the contract may be extended, the court proceeds from the explanations of the parties. Thus, the court took into account the fact that initially, when filing the claim, the plaintiff asked to extend the deadline for completing the work by six months - until June 30, 2022, and the deadline for putting the facility into operation - until September 30, 2022, that is, he considered it possible for himself to complete the work and deliver the object within the specified time frame.

Subsequently, the plaintiff clarified the requirements and asks to extend the deadline for completion of work by nine months - until September 30, 2022, and the deadline for putting the facility into operation - until October 10, 2022.

The representative of the defendant, in turn, explained that if the claims are satisfied, the period cannot be extended more than until July 30, 2022.

The court took into account that the Arbitration Court is considering a bankruptcy case against the plaintiff (No. A59-4940/2016), and a procedure has been introduced - external management. By definition dated January 28, 2019, the period of external management was extended until July 26, 2019.

Thus, the court recognizes as justified the Department’s arguments that if after July 26, 2019, bankruptcy proceedings are opened against the plaintiff, the contract may not be executed.

In addition, the plaintiff did not provide evidence of the impossibility of completing the work before July 30, 2022 and the need to extend its deadline until September 30.

When considering the issue of extending the period for putting the facility into operation, the court takes into account that by additional agreement No. 13 dated September 26, 2018, the parties stipulated that this period exceeds the deadline for completion of work by five months, and recognizes as justified the Department’s argument that in order to commission the facility, which is a multi-storey building, will require considerable time, and therefore considers it possible to extend the deadline for putting the facility into operation until October 10, 2022.

Based on the foregoing, the court satisfies the claims regarding the defendant’s obligation to conclude an additional agreement with the plaintiff to the Contract to extend the period for completing the work - until July 30, 2022, the deadline for putting the facility into operation - until October 10, 2022.

During the consideration of the case, the plaintiff waived the demands regarding the defendant’s obligation to conclude an addition to the Contract, which would set out in a new edition the calendar schedule for construction work, which is Appendix No. 3 to the Contract, as well as the schedule for the supply of equipment and materials by the General Contractor, which is Appendix No. 4 to the Contract.

In accordance with parts 2, 5 of Article 49 of the Arbitration Procedure Code of the Russian Federation, the plaintiff has the right, before the adoption of a judicial act, which ends the consideration of the case on the merits in the arbitration court of the first instance or in the arbitration court of appeal, to abandon the claim in whole or in part.

The arbitration court does not accept the plaintiff’s refusal of the claim, the reduction of the amount of the claim, the defendant’s recognition of the claim, and does not approve the settlement agreement of the parties if this is contrary to the law or violates the rights of other persons. In these cases, the court considers the case on its merits.

Since the refusal of these requirements does not contradict the law and does not violate the rights of third parties, the court accepts this refusal, and therefore terminates the proceedings in the case regarding these requirements.

Based on the above, guided by Articles 167-171, 176 of the Arbitration Procedural Code of the Russian Federation, the court

DECIDED:

Accept the plaintiff's refusal of the claim regarding the requirement to present in a new edition the Calendar Schedule for the execution of construction work, which is Appendix No. 3 to the Contract, and to present in a new edition the Schedule for the supply of equipment and materials by the General Contractor, which is Appendix No. 4 to the Contract. Proceedings in case No. A59-8479/2018 regarding these requirements are terminated.

Satisfy the claims.

Oblige the Office of the Judicial Department in the Sakhalin Region to conclude with the limited liability company Sakhalin-Stroy-Mekhanizatsiya an additional agreement to the state contract dated December 10, 2013 No. 2013.36874 for the construction of the facility “Building of the Yuzhno-Sakhalin City Court and the Yuzhno-Sakhalin Garrison Military Court in Yuzhno-Sakhalinsk." First stage”, setting out paragraph 3.1 in a new edition:

“The calendar dates for completing the work are determined by the Parties:

Work begins from the moment the “Parties” sign the government contract;

Completion of work: July 30, 2022. Commissioning of the facility on October 10, 2022.”

To recover from the Office of the Judicial Department in the Sakhalin Region in favor of the limited liability company "Sakhalin-Stroy-Mekhanizatsiya" legal costs for payment of the state fee in the amount of 6,000 rubles.

Issue a writ of execution after the court decision enters into legal force.

The decision can be appealed to the Fifth Arbitration Court of Appeal through the Arbitration Court of the Sakhalin Region within one month from the date of its adoption.

Judge T.S. Gorbachev

Obligation to accept the offer

The Civil Code of the Russian Federation describes in detail the mechanism for accepting an offer (consent to an offer to conclude an agreement). For more information about cases when an offer must be accepted, see the article on the protocol of disagreements to the contract.

Subject of proof when filing a claim for compulsion to enter into an agreement

An application for compulsion to conclude an agreement must contain confirmation of the following legally significant facts:

Whether a person has an obligation to enter into an agreement (as we found out, the obligation can be from law or from a contract);
Sending an offer by the plaintiff to the defendant in accordance with the rules of civil law (as a rule, documentary evidence is required - postal correspondence, electronic mail - if it is possible to accurately identify the recipient);
Failure to receive acceptance or a protocol of disagreements to the contract, or receipt of such a protocol, but disagreement with its provisions;
Upon receipt of the protocol of disagreements and in case of disagreement with it, a thirty-day period for going to court must be observed;
Evasion of the obligation to conclude an agreement (related to paragraphs 2-4, but at the same time carries a different burden - there must be a pronounced refusal of the defendant to conclude or evasion, it is necessary to prove that the defendant actually received the offer);
Specific conditions under which the court will oblige the defendant to enter into an agreement (at a minimum - essential conditions named as such in the law). The court cannot oblige the conclusion of an agreement on arbitrary terms, agreements on which were not in the preliminary agreement or which are not specified in the law.

Thus, if the counterparty does not want to enter into an agreement, it is necessary to examine all the above circumstances in order to identify the possibility of forcing the conclusion of an agreement.

State duty in cases of coercion to conclude an agreement

In courts of general jurisdiction, it is stipulated that when such a claim is filed, the state duty is charged in the amount of: 300 rubles - for individuals (citizens) 6,000 rubles - for legal entities (organizations) In arbitration courts - 6,000 rubles (clause 2, clause 1, art. 333.2 Tax Code of the Russian Federation)

The agreement is considered concluded on the terms specified in the court decision from the moment the relevant court decision enters into legal force.

Features of the pre-trial procedure

In one of the court cases, the court concluded that the plaintiff did not take all measures to discuss the possibility of concluding such an agreement. This approach excludes a purely formal approach in relations with a potential partner.

The parties to the preliminary agreement have the right to go to court if a draft agreement is sent within the scope of the main agreement.

Procedure for invalidating a contract

The opposite situation, when there is coercion to conclude a transaction in the absence of legal grounds, also requires consideration, since it occurs quite often.

Guaranteeing the free expression of the subjects' will when concluding contracts, civil legislation defines the following grounds, the presence of each of which leads to the recognition of the transaction as invalid (Article 179 of the Civil Code of the Russian Federation):

deception, violent or threatening actions under the influence of which a transaction is concluded;
concluding a deal on extremely unfavorable terms due to difficult life circumstances.

Such agreements are declared invalid in court at the request of the injured party. The statute of limitations for such cases is a year (clause 2 of Article 181 of the Civil Code of the Russian Federation), however, the one-year period begins not from the date of the transaction, but from the moment the coercive actions (violence or threats) ceased or from the day the victim learned about the circumstances sufficient to invalidate the transaction.

Recognition of a transaction as invalid through the court on the grounds provided for in paragraphs. 1–3 tbsp. 179 of the Civil Code of the Russian Federation, entails obligations for counterparties to return everything received under the transaction, and if this is not possible, to reimburse the cost of the property.

When does the obligation to enter into a contract arise?

By force of law, it is mandatory to conclude such types of agreements as:

A public agreement (Article 426 of the Civil Code of the Russian Federation), which must be concluded with everyone who contacts an entrepreneur.
Bank account agreement (Article 846 of the Civil Code of the Russian Federation).
Agreement on social rent (Article 57, 100 of the Housing Code of the Russian Federation) and management of multi-apartment housing (clause 5 of Article 161 of the Housing Code of the Russian Federation).
Guardianship agreement (Clause 7, Article 145 of the Family Code of the Russian Federation).
Agreement on compulsory pension insurance (Article 36.4 of the Law “On Non-State Pension Funds” dated 05/07/1998 No. 75-FZ).
Contract in the field of state defense procurement (Article 6 of the Law “On State Defense Order” dated December 29, 2012 No. 275-FZ).
Heat supply agreement (Articles 14, 15 of the Law “On Heat Supply” dated July 27, 2010 No. 190-FZ).
Other contractual agreements required by law.

In addition to the statutory obligation to conclude a transaction, there is a contractual obligation to sign agreements in the future.

The grounds for compulsion to conclude an agreement in this case may be:

a previously concluded preliminary contractual agreement (clause 5 of Article 429 of the Civil Code of the Russian Federation);
won auctions (clause 6 of article 448 of the Civil Code of the Russian Federation).

Who has the right to apply

The law does not restrict the right of the other party to the relationship to go to court. Entrepreneurs and organizations have the same right to file a lawsuit. The condition of the appeal is a violation of the rights and interests of the plaintiff, as well as third parties.

If the entrepreneur is obliged to make a transaction, but the consumer does not have such an obligation, the consumer has the right to go to court. Commercial organizations and entrepreneurs do not have such a right in this case.

Voluntariness of the sales contract

In fact, it is possible to go to court with a claim to compel the conclusion of an agreement. Moreover, the court can even make a decision that the plaintiff needs, but neither the court nor the bailiff can force the buyer or seller to sign the agreement. And without the signature of one of the parties, the contract will be invalid.

It would seem that in essence the situation is legal nonsense, when there is a decision, but there is no execution and there will not be. And, in fact, the point is not at all that the agreement will not be signed. The bottom line is that if the claim is satisfied, the plaintiff will have the right to demand not the fulfillment of the terms of the contract, which the court will write about in the decision, but the recovery from the defendant of losses associated with the fact that he does not want to sign the contract.

Let us say right away that it will not be possible to improve your financial situation by collecting losses from your counterparty. Because losses, as such, due to failure to fulfill the terms of the contract are very small or may not exist at all.

Standard contracts

A significant number of agreements are concluded on the basis of standard forms approved by the authorities. The lawsuit asks either to compel a conclusion on the project proposed earlier, or on the basis of such a form.

The second party has the right to challenge the terms of the project if it does not comply with the legislative form. And companies that are required to use a standard form tend to make changes to them, which then turn out to be quite noticeable.

In the case of public services, if the proposed text deviates from the standard form, the standard form is automatically applied. It is also easier for a consumer to challenge a proposal to conclude a transaction if the text conflicts with the law.

And the court, having taken into account the requirements of the claim, can agree with it, establishing the conditions prescribed by regulations.

Pre-trial method of resolving disputes

A party's refusal to sign an agreement does not give the other party the right to immediately go to court. For this category of disputes, the law provides for a pre-trial procedure. This means that before going to court, you will need to send the counterparty a written offer to conclude an agreement. The counterparty's refusal or lack of any response to the offer will become grounds for filing a lawsuit.

The claim itself will need to be accompanied by a copy of the written offer and the counterparty’s response, if one was received.

Failure to comply with the pre-trial method of resolving a dispute will be grounds for refusal to accept the statement of claim.

Conditions for filing a claim in court

Filing a statement of claim for the forced conclusion of an agreement is possible if there is an obligation provided for by law or stipulated by the counterparty himself.

In addition, before going to court, you must comply with the claim procedure for resolving the conflict. In other words, send a claim or statement demanding the conclusion of an agreement to the other party to the transaction.

Lawyers strongly recommend sending a written claim (application) by registered mail with acknowledgment of receipt and a list of the contents. Thus, the applicant will have documentary evidence of the notification of the defendant.

If you decide to notify the counterparty personally, provide him with 2 copies of the claim. On one of them he must put his signature and indicate the date of receipt of the documents.

In practice, counterparties often refuse to sign a copy of the claim. In order to have evidence of notification to the defendant and compliance with the claim procedure for resolving the dispute, at least two witnesses must be present during personal delivery of documents.

If the counterparty refuses to accept the claim, they confirm this information by signing one of its copies.

If there is a protocol of disagreements, you can file a claim in court 30 days after receiving it. At the same time, the text of the statement of claim indicates the controversial terms of the future contract.