Unilateral refusal of the contract of rendering of services
The service contract is perhaps the most common civil contract. It is valued for the versatility of the subject, under the regulation which may be suitable most committed by legal action, as well as for the flexibility of language, including the condition of unwarranted unilateral refusal to perform the Contract.
Costs of such termination are formulated by the legislator is quite clear:
in the case that the initiator of the termination is the customer – he / she shall reimburse to the contractor the amount of actual costs incurred, if the initiator is the executor – he shall reimburse the customer the amount of damages. At the same time, using the specified provisions of the act the parties are trying in one way or another "to modify" if not banned. It is about the nuances associated with the unilateral refusal to perform the contract services will be discussed in this article.
As a rule, the implementing Agreement, learned about the possibility of any of the parties to terminate the Contract, propose to ban such a move, providing the appropriate condition in the Contract. However, this step will be irregular, with a high probability that this condition will be invalidated . So, the Presidium of the Russian Federation in the order dated 07.09.2010 N 2715/10 in the case of N A64-7196/08-23 stated the following:
"Since the right of the parties (both contractor and client) on the unilateral refusal of execution of the agreement of paid rendering of services the imperative established by article 782 of the Code, it cannot be limited by agreement of the parties."
Thus, to limit the ability of the parties to terminate the service Contract unilaterally is unlawful.
Also a common error when terminating the Contract is a dismissive attitude to the very fact of termination. Very often contractors find it sufficient just to provide the notice, while not stopping the work itself. According to them, this notice will be sent "just in case", and will at any moment collapse. However, the courts have quite clearly approached this situation by defining that in this case, the Contract will be considered terminated. About it FAS far Eastern district in its decision № F03-8393/2009 in the case of N A59-2360/2009 expressed such treatment:
"The argument of the complaint on cancellation of the contract from 01.04.2005 by notification dated 14.04.2006 by the court of cassation rejected because the courts found that, despite this notice, Respondent continued to use the services of the plaintiff, therefore, reason to assume contractual relationship of the parties stopped there..."
Thus, if after receipt of the notice of termination be proven that the continuation of the execution of such Agreement will be qualified as active.
The natural desire of counterparties for the notification of the unilateral refusal of execution of the Contract of rendering of services – "cheat" as much as possible the actual costs and recover them from the Customer. However, you should consider a reasonable limit for calculating costs – those costs that the contractor incurred after receipt of the refusal from the Contract will not be paid in accordance with the Contract. Indicative on this issue expressed FAS West Siberian district in its Decision dated 29.04.2010 in the case of N A46-23676/2009.
"According to the paragraph 1 of article 782 of the Civil code of the Russian Federation at the unilateral termination of the contract, the customer reimburses the contractor's actual costs. The contractor must prove that the expenses were incurred to cancel the contract and caused by the execution or preparation for its performance. Arguments, OOO "Communication service" that the payment obligation of services to disable the loudspeaker stems from the provisions of paragraph 1 of article 782 of the Civil code of the Russian Federation, based on erroneous interpretation of this provision of law. Fees for disabling the loudspeaker, it is future coststhat arise after unilateral failure of the subscriber from the services of wired radio..."
Thus, the Contractor should be careful when determining the reimbursable actual costs not requiring reimbursement of those in the future.
In this article we have considered only the most prominent aspects associated with the unilateral refusal to perform the Contract. Of course, it is necessary to comply with the clear language in the drafting of waiver of notice of the Contract, as well as attentive to the existence of the Contract allowable restrictions at the unilateral termination. Anyway the General rule of a responsible attitude to unilateral refusal of execution of the Contract remains unchanged.