The procedure for changing and terminating a contract in court. Procedure for changing and terminating contracts. Change (termination) of the contract unilaterally from the parties which entails for

Amendment or termination of the contract is possible by mutual agreement of the parties, unless otherwise provided by law or the contract itself.

Changing or terminating the contract entails legal consequences.

If the contract is amended, the obligations of the parties remain unchanged.

Upon termination of the contract, the obligations of the parties cease.

The exclusive right to change or terminate the contract (unless this is provided for by law or the terms of the agreement) belongs to the court.

At the request of one of the parties, the contract may be changed or terminated by a court decision in the following cases:

1) in case of a significant violation of the contract by the other party. 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;

2) due to a significant change in circumstances. A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms;

3) in other cases provided for by the Civil Code of the Russian Federation, other laws or the agreement itself.

An agreement can be terminated or amended by a court at the request of an interested party only if the following conditions are simultaneously met:

1) at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;

2) the change in circumstances was caused by reasons that the interested party could not overcome, although it showed such a degree of care and prudence that was required of it by the nature of the contract and the terms of circulation;

3) execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;

4) it does not follow from business customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

The consequence of the change and termination of the contract is the fact that the parties cannot demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise provided by law or by agreement of the parties.

The procedure for amending and terminating the contract is defined in the Civil Code of the Russian Federation. A claim can be submitted by a party to the court only after receiving a refusal from the other party to the proposal to change (terminate) the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - within thirty days.

Sample statement of claim for termination of contract. Termination of the contract is possible by mutual agreement of the parties to the contract. If it was not possible to reach an agreement, then the contract will have to be terminated through the court, by filing a claim for termination of the contract.

The contract can be terminated if it is provided for by law (for example, a residential lease, gift or lease agreement) or in the event of a significant violation of the terms of the contract. 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.

A significant change in the circumstances from which the parties proceeded when concluding the contract is the basis for its modification or termination, unless otherwise provided for by the contract or follows from its essence. A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

For this category of disputes, a pre-trial settlement procedure is provided. This means that it is necessary to serve on the defendant, in which it is proposed to terminate the contract voluntarily. The statement of claim must be accompanied by the text of the claim and evidence that the defendant received it. After the expiration of the period established in the claim, you can go to court. If such a period was not established in the claim, then by law it will be 30 days.

Since contractual relationships are varied, we recommend that you consult the relevant publications on our website to determine the rules and the amount to be paid for the relevant requirements. Familiarization with the basic rules for drawing up a statement of claim will help you prepare a claim efficiently and competently.

IN ___________________________
(name of court)
Plaintiff: _______________________
(full name, address)
Respondent: ____________________
(full name, address)
: ____________________
(full amount from claims)

Statement of claim for termination of contract

An agreement was concluded between me and the defendant _________ (full name of the defendant) “___”_________ ____ on _________ (indicate what the agreement is about, what its essential terms are, what obligations arose among the parties to the agreement).

Due to a significant violation of the terms (change of circumstances) of the contract _________ (indicate what the violation of the conditions or change of circumstances from which the parties proceeded when concluding it, taking into account the requirements of Article 451 of the Civil Code of the Russian Federation), further execution of the contract is impossible.

“___”_________ ____, I suggested that the defendant terminate the contract by handing him a written claim, setting a deadline for a response until “___”_________ ____. The defendant did not respond to my proposal (if he refused, indicate in more detail the defendant’s arguments, the reasons for the plaintiff’s disagreement with them ).

When terminating the contract, it is necessary to determine the consequences of termination by allocating the costs incurred in connection with the execution of the contract _________ (indicate how costs should be distributed, what amount to recover from the defendant, and, if necessary, provide a calculation of claims).

Based on the above, guided by Articles 131-132 of the Civil Procedure Code of the Russian Federation,

Terminate the contract _________ (name of the contract) dated “___”_________ ____ between _________ (full name of the plaintiff) and _________ (full name of the defendant).
To recover from the defendant the amount of _______ rubles for expenses incurred in connection with the execution of the contract.

List of documents attached to the application (copies according to the number of persons participating in the case):

Copy of the statement of claim
Document confirming payment of state duty
Copy of the agreement
Copy of the claim
Documents confirming a significant violation of the terms of the contract or a significant change in circumstances
Other evidence confirming the grounds for the claim for termination of the contract

Date of application “___”_________ ____ Signature of the plaintiff _______

1. Amendments and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code

A multilateral agreement, the execution of which is related to the implementation of entrepreneurial activities by all its parties, may provide for the possibility of changing or terminating such an agreement by agreement of both all and the majority of persons participating in the specified agreement, unless otherwise provided by law. The agreement specified in this paragraph may provide for the procedure for determining such a majority.

2. At the request of one of the parties, the contract can be changed or terminated by a court decision only:

1) in case of a significant violation of the contract by the other party;

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.

4. A party that is granted the right to unilaterally change the agreement by this Code, other laws or an agreement must, when exercising this right, act in good faith and reasonably within the limits provided for by this Code, other laws or an agreement.

Commentary on Article 450

1. The rule provided for in paragraph 1 of the commented article corresponds to the fundamental principle of Russian civil legislation on freedom of contract (see Art. 1, 421 and commentary thereto).

The Civil Code provides for methods by which the parties can, by mutual agreement, terminate or amend the contract. For example, by novation (see Art. 414 and commentary thereto), providing compensation in exchange for execution (see Art. 409 and commentary thereto). However, under contracts in favor of a third party, the parties cannot terminate or change the contract they have concluded without the consent of the third party from the moment he agrees to exercise his right under the contract (see Article 430 and commentary thereto). The current procedural rules (part 2 of article 34 of the Civil Procedure Code and paragraph 4 of article 37 of the Arbitration Procedure Code) prohibit courts of general jurisdiction and arbitration courts from approving settlement agreements of the parties (including those entailing a change or termination of the contract) if they violate the rights and interests of third parties protected by law. Although the law does not prohibit the parties from changing the obligation secured by the guarantee, however, as soon as such changes entail an increase in liability or other adverse consequences for the guarantor, and he has not given consent to this, the guarantee is terminated (see Article 367 and commentary thereto) .

2. The contract can be amended or terminated if no agreement has been reached at the request of the interested party, and only in court and only if there are certain grounds (clause 2 of the commentary article).

The basis for changing or terminating the contract (its material violation) expressly established in the commented article should be interpreted in accordance with the meaning of the law. And it consists in the fact that such a violation should be recognized as significant if it makes it impossible for the other party to achieve the purpose of the contract. In this regard, the term "damage" should not be interpreted restrictively. In addition to possible high additional costs and loss of income, it also includes other consequences that significantly affect the interests of the party. This approach of the legislator is clearly visible when analyzing individual provisions of the Civil Code. For example, under a life annuity agreement (Article 599), the very fact of its failure to pay on time gives the annuity recipient the right to demand termination of the agreement. A significant violation of the purchase and sale agreement is recognized, in particular, as the transfer of goods with irreparable defects, with defects that are repeatedly identified or appear again after they have been eliminated (clause 2 of Article 475). When applying this rule, one should take into account arbitration practice, which was, in particular, reflected in the information letter of the Supreme Arbitration Court of the Russian Federation dated May 5, 1997 No. 14 “Review of the practice of resolving disputes related to the conclusion, amendment and termination of an agreement” (see Bulletin of the Supreme Arbitration Court of the Russian Federation. 1997. N 7. S. 108, 109). First of all, the party citing a material breach of the contract must provide the court with relevant evidence of its existence. The mere fact of such a violation does not serve as a basis for termination of the contract if the violation is eliminated within a reasonable time. When a party had the right, by virtue of the provisions of the Civil Code, to demand a change in the contract, but did not take advantage of it, the court, at the request of the other party, justifiably decided to terminate the contract, recognizing the violations committed as significant.

The second group of grounds that give the right to demand a change or termination of a contract includes both those established by the Code and other laws, and those provided for in the contract. For example, under a contract of adhesion such a right is granted to the joining party under certain conditions (see paragraph 2 of Article 428 and commentary thereto). The grounds for termination of privatization transactions of state or municipal property are provided for by the Privatization Law (see paragraph 7 of Article 21 and paragraph 1 of Article 29).

3. It is necessary to make a clear distinction between the right to make a demand for termination of the contract (in whole or in part) and the right to unilaterally refuse (in whole or in part) from its execution. A unilateral refusal to fulfill a contract is made without going to court and, accordingly, by virtue of the very fact of its implementation, the contract is considered terminated, and in case of partial refusal - amended. This does not exclude the possibility of challenging in court the validity of a unilateral refusal on the basis of the general provisions of the Civil Code (see Article 11 and commentary thereto).

When applying paragraph 3 of the commented article, it is necessary to specifically clarify the issue of the moment such a refusal comes into force. First of all, it should be borne in mind that in relation to certain types of contracts, the Civil Code establishes the obligation to provide advance notice of termination of the contract. See, for example, paragraph 1 of Art. 699 (in relation to an open-ended contract for gratuitous use); clause 3 art. 977 (regarding the contract of agency); clause 2 art. 1003 (relating to commission agreement); clause 2 art. 1024 (in relation to the property trust management agreement); clause 1 art. 1037 (in relation to a commercial concession agreement); Art. 1051 (in relation to an open-ended simple partnership agreement). In addition, the question of whether the refusal comes into force from the moment of its application or from the moment of its receipt by the other party is not indisputable, unless the refusal itself provides for a later date for its entry into force or this does not follow from the nature of the contract and the refusal. In this regard, it is necessary to pay attention to the fact that in relation to the supply agreement (clause 4 of Article 523), the law establishes that the agreement is considered amended or terminated from the moment the party receives the counterparty’s notification, unless a different period is provided for in the notification and is not determined by agreement of the parties .

According to Art. 310 (see commentary to it) unilateral refusal to fulfill an obligation and unilateral change of its conditions are allowed only in cases provided for by law. At the same time, in relation to obligations related to the implementation of entrepreneurial activities, they are allowed by agreement of the parties in cases provided for by the agreement, unless otherwise follows from the essence of the obligation. With regard to contractual obligations, paragraph 3 of the commented article does not contain a restriction similar to the prescription of Art. 310. It follows that the law allows the inclusion of a condition on the right to unilateral refusal (unilateral change) in contracts not related to business activities, unless otherwise follows from the law or the essence of the obligation. The basis for this conclusion is clause 3 of Art. 420 (see commentary on this article), according to which the general provisions of the Civil Code on contracts and the rules on certain types of contracts are given priority over the general provisions on obligations (which include Article 310).

4. Part one of the Civil Code provides for some general provisions that grant a party the right to unilaterally refuse to perform the contract. This right belongs to the party in respect of whom the counter-obligation has not been fulfilled or circumstances clearly indicate that it will not be fulfilled within the prescribed period (see Article 328 and commentary thereto). The creditor can also use it if the debtor is in default, if due to this the performance has lost interest for him (see Article 405 and the commentary thereto).

A significant number of rules granting the parties the right to unilaterally refuse to fulfill the contract are contained in Part Two of the Civil Code. They can be divided into two groups. The first includes rules regarding contracts, the essence of which predetermines the granting of the parties (or one party) the right to withdraw from the contract at their discretion. For example, under a contract of gratuitous use - to both parties (Article 699), under a contract of agency - to both parties (Article 977), under a commission agreement - to the principal (Article 1003), under a storage agreement - to the depositor (Article 904), according to under a bank account agreement - to the client (Article 859), under a commercial concession agreement - to both parties (Article 1037), under a transport expedition agreement - to both parties (Article 806), under a rental agreement - to the lessee (Clause 3, Article 627) , under an agreement for the provision of paid services - to both parties (Article 782), under a gift agreement - to the donee (Article 573). The second group includes rules that provide for such a right of a party in cases where the other party has violated its obligations. For example, under a purchase and sale agreement (clause 1 of article 463, part 2 of article 464, clause 2 of article 467, clause 2 of article 475, clause 2 of article 480, clause 3 of article 484, clause 4 of article 486, clause 2 of article 489, part 2 of article 490), under a retail purchase and sale agreement (clause 3 of article 495, clause 3 of article 503), under a supply agreement (clause 3, Article 509, clause 2, Article 515, clauses 1 and 2, Article 523), under a contract (clause 3, Article 715, clause 3, Article 716, clause 717, clause 2, Art. 719, clause 3 of article 723), under a construction contract (clause 3 of article 745), under a contract for the carriage of passengers (clause 2 of article 795).

In relation to the supply contract, special attention should be paid to two points. Firstly, such a right is granted in case of a significant violation of the contract (determined in accordance with the requirements of paragraph 2 of the commentary article). Secondly, the law (clauses 2 and 3 of Article 523) establishes a presumption of what kind of violations are considered significant: on the part of the supplier - delivery of goods of inadequate quality with defects that cannot be eliminated within a period acceptable to the buyer, and repeated violation of delivery deadlines; on the part of the buyer - repeated violation of payment terms and repeated non-selection of goods.

Indeed, according to paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, a contract can be terminated by a court decision in the event of a significant violation of the contract by the other party, while the violation of the contract is considered significant when it 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.

Consequently, the party citing a material breach of the contract must provide the court with relevant evidence of the existence of such a breach of contract: non-receipt of income, the possible occurrence of additional expenses or other consequences that significantly affect the interests of the party. The very fact of the existence of such a violation by virtue of Art. 450 of the Civil Code of the Russian Federation cannot serve as a basis for termination of the contract. (Decision of the Supreme Court of the Russian Federation dated 04/03/2001 N 18-В01-12).

In paragraph 3 of Art. 486 of the Civil Code of the Russian Federation (Chapter 30, § 1 “General provisions on purchase and sale”) contains a special rule defining the legal consequences of late payment by the buyer of the goods transferred to him by the seller under the purchase and sale agreement. They are as follows: the seller has the right to demand payment for the goods and additional payment of interest in accordance with Art. 395 of the Civil Code of the Russian Federation.

From what is contained in paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, the concept of a significant violation of the contract by one of the parties (a violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract) it follows that the party making the court requesting termination of the contract on this basis must provide evidence confirming precisely this nature of the violation. (Decision of the Supreme Court of the Russian Federation dated 06/07/2011 N 5-B11-27).

Amendment and termination of the contract in accordance with clauses 1, 2 of Art. 450 of the Civil Code of the Russian Federation are possible by agreement of the parties, unless otherwise provided by this Code, other laws or an agreement. At the request of one of the parties, the contract may be changed or terminated by a court decision only in the event of a significant violation of the contract by the other party, as well as in other cases provided for by the Civil Code of the Russian Federation, other laws or the contract. 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.

At the same time, registration of the transfer of ownership to the buyer of the sold real estate was not an obstacle to termination of the contract on the grounds provided for in Article 450 of the Civil Code of the Russian Federation (clause 65 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10/22 of April 29 2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights").

By virtue of clause 4 of Art. 453 of the Civil Code of the Russian Federation, the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise established by law or agreement of the parties. At the same time, according to Article 1103 of the Civil Code of the Russian Federation, the provisions on unjust enrichment are subject to application to the demands of one party to an obligation to another for the return of what has been performed in connection with this obligation. Therefore, in the event of termination of the contract, the seller, who has not received payment under it, has the right to demand the return of the property transferred to the buyer on the basis of Articles 1102, 1104 of the Civil Code of the Russian Federation. A judicial act on the return of real estate to the seller is the basis for state registration of termination of the buyer's ownership right and state registration of the seller's ownership of this property (clause 65 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10/22 of April 29 2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights").

According to Art. 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, every natural or legal person has the right to respect for his property. No one may be deprived of his property except in the interests of society and under the conditions provided for by law and the general principles of international law.

1. Amendments and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.

2. At the request of one of the parties, the contract can be changed or terminated by a court decision only:

1) in case of a significant violation of the contract by the other party;

2) in other cases provided for by this Code, other laws or agreement.

3. In the event of a unilateral refusal to fulfill the contract in whole or in part, when such refusal is permitted by law or by agreement of the parties, the contract is considered respectively terminated or amended.

Article 451. Amendment and termination of the contract due to a significant change in circumstances

1. A significant change in the circumstances from which the parties proceeded when concluding the contract is the basis for its modification or termination, unless otherwise provided for by the contract or follows from its essence.

A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

2. If the parties have not reached an agreement to bring the contract into compliance with significantly changed circumstances or to terminate it, the contract may be terminated, and on the grounds provided for in paragraph 4 of this article, amended by the court at the request of the interested party if the following conditions are simultaneously present:

1) at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;

2) the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence that was required of it by the nature of the contract and the conditions of turnover;

4) it does not follow from business customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

3. When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract, based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

4. Changing the contract due to a significant change in circumstances is permitted by a court decision in exceptional cases when termination of the contract is contrary to the public interest or will entail damage for the parties that significantly exceeds the costs necessary to execute the contract on the terms changed by the court.

Article 452. Procedure for amending and terminating the contract

1. An agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, the contract or business customs.

2. A requirement to change or terminate a contract may be submitted by a party to the court only after receiving a refusal from the other party to the proposal to change or terminate the contract or failure to receive a response within the period specified in the proposal or established by law or the contract, and in its absence - within thirty days .

Article 453. Consequences of amendment and termination of the contract

1. If the contract is changed, the obligations of the parties remain unchanged.

2. Upon termination of the contract, the obligations of the parties cease.

3. In the event of a change or termination of a contract, obligations are considered changed or terminated from the moment of conclusion of the agreement of the parties on the change or termination of the contract, unless otherwise follows from the agreement of the parties or the nature of the change in the contract, and in case of change or termination of the contract in court - from the moment of entry into legal force of a court decision to amend or terminate the contract.

4. The parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise established by law or agreement of the parties.

5. If the basis for changing or terminating the contract was a significant violation of the contract by one of the parties, the other party has the right to demand compensation for losses caused by the change or termination of the contract.

The president
Russian Federation
B.YELTSIN