On the consequences of termination of the contract: the last Plenum

Cases when a contract can be terminated by agreement of the parties

Analyzing legal practice, we can highlight the following typical cases of termination of a contract by mutual consent:

One of the parties no longer needed further cooperation. This may be due to the achievement of a specific goal or, conversely, the belief that it is impossible to achieve it.
Circumstances have arisen when further cooperation does not make sense (flooding of the territory, demolition of a building, adoption of a prohibiting law, etc.).
One of the partners cannot fulfill their obligations on time and, without waiting for negative consequences, proposes to terminate the contract.

Proposal to terminate the contract by agreement of the parties

Having realized that the cooperation has exhausted itself or has become unprofitable, one of the partners makes an offer to the counterparty to terminate the relationship. As a rule, this is done in writing, by composing a letter with approximately the following content: “Dear Albert Pavlovich, due to the unprofitability of production and the closure of the unit at _______, we ask you to terminate the contract for cleaning the rented premises from 12/01/2016. Payment for services until the termination of the contract by mutual agreement has been made in full.”

For the convenience and speed of making a decision, a developed document is attached to such a letter, which the partner, upon agreeing to separate, only needs to sign. Large companies, as a rule, have strict documentation standards and offer their own sample agreement for signature.

Form of termination of the contract by agreement of the parties

Clause 1 Art. 452 of the Civil Code of the Russian Federation contains a provision that an agreement to terminate a contract by mutual consent must be concluded in the same form as the contract itself. An oral agreement is terminated orally, a written agreement is terminated by the parties drawing up a corresponding document. A contract requiring notarization can only be terminated with the participation of a notary. Termination of a contract subject to registration must also be registered.

Failure to comply with the termination form leads to the court recognizing the contract as valid and the obligations of the parties as continuing, which entails the recovery of their cost from the consumer of services. An example is the position of the Supreme Court, expressed in the decision of September 14, 2015 in case No. A40-47398/2014.

The termination agreement usually contains the date on which the obligations will cease. If it is absent, the date of signing the document is taken into account. The obligations of the parties that they guarantee to fulfill, or a provision that the parties have fulfilled what was promised under the contract in full, may also be stated.

Legislative grounds for termination of the contract

According to the provisions of Art. 450 of the Civil Code of the Russian Federation, execution of a transaction may be terminated due to:

agreements of the parties (part 1), when the parties to the transaction mutually record the fact of its termination in an additional agreement to the contract;
a significant violation of the terms of the contract by one of the parties - in this case, the transaction is terminated based on the court verdict that has entered into force, rendered based on the results of studying, analyzing and evaluating the provisions of the statement of claim filed by the other party (Part 2);
the occurrence of other circumstances determined by the terminated agreement or current legislation regulating relations arising in a certain legal area (Part 2).

In accordance with Part 1 of Art. 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill obligations acquired as a result of the conclusion of an agreement is allowed, provided that such a possibility is established by its provisions or existing laws.

IMPORTANT! Only an agreement that has not yet been fulfilled by the parties can be terminated. A completed contract cannot be terminated.

Termination of the contract by mutual consent must be documented. To do this, an additional agreement is drawn up, which specifies all the nuances of termination of the contract, as well as the range of responsibilities acquired by the parties. According to Art. 452 of the Civil Code of the Russian Federation, such an agreement must be drawn up in the same form as the previously concluded agreement. For example, if a notary took part in the procedure for concluding a transaction, the additional agreement will also need to be notarized.

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Consequences of termination of the contract by agreement of the parties

Based on clause 2 of Art. 453 of the Civil Code of the Russian Federation, the signing by the parties of an agreement to terminate the contract entails the termination of the obligations of the partners, unless otherwise prescribed by law or contract. More information about other grounds for termination of obligations can be found in the article “ What are the grounds for termination of obligations? "

There are obligations that are not affected by termination of the contract. This may include:

collection of debt under the contract that arose before the moment of termination or after termination until the actual moment of termination of the parties’ actions (decree of the cassation instance dated June 24, 2015 in case No. A36-5038/2014);
the right to demand penalties and fines for violation of obligations, which are subject to accrual until the termination of the contract (determination of the Supreme Arbitration Court of the Russian Federation dated September 7, 2011 No. VAS-9825/11);
preservation of the contractor's guarantee after termination of the contract in relation to the work performed (resolution of the Federal Autonomous District of the Volga-Vyatka District dated 08/13/2009 in case No. A31-852/2008).

In the event that one of the partners has accepted performance under a contract from the other, but has not fulfilled its obligations, the counterparty has the right to demand the performance back as unjust enrichment.

This provision was introduced in paragraph. 2 clause 4 art. 453 of the Civil Code of the Russian Federation, which came into force on June 1, 2015. It consolidated the approach to the qualification of such cases, previously developed by judicial practice (resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35).

The parties also have the opportunity to specify consequences of termination of the contract that differ from those indicated above. In such cases, the courts are guided by the will of the participants in legal relations (ruling of the Supreme Court of the Russian Federation dated October 6, 2015 in case No. A68-2906/2014).

Legal consequences

It is important to know that in the absence of an agreement, negative consequences for both parties will not be long in coming.

In addition, neglecting the issues of peaceful settlement of pressing problems may result in protracted legal proceedings , and then an agreement will have to be concluded in a higher authority.

However, in most cases, termination of the contract has a favorable outcome for both parties.

What obligations do not cease after termination?

According to paragraph 2 of Art. 453 of the Civil Code of the Russian Federation, the obligations of the partners terminate after they sign an agreement to terminate the contract, unless otherwise provided by law. But there are obligations that do not terminate regardless of the fact of termination. It could be:

collection of debt under the contract that arose before its termination or after, until the moment when the actions of the parties were actually terminated (resolution in case No. A36-5038/2014, adopted on June 24, 2015 by the cassation instance);
presentation of claims for violation of obligations to collect penalties and fines, which must be accrued before the date of termination of the contract (determination of the Supreme Arbitration Court of the Russian Federation No. VAS-9825/11 dated 09/07/2011);
acceptance by one of the partners of performance under a contract from another partner and failure to fulfill the undertaken obligations. The counterparty has the right to make demands for the return of the fulfilled obligation on the basis of illegal enrichment. This provision contains clause 4, paragraph. 2 tbsp. 453 of the Civil Code of the Russian Federation (Resolution of the plenum of the Supreme Arbitration Court of the Russian Federation No. 35 of 06.06.2014);
indication in the contract of other consequences, different from the above, that occur as a result of its termination. In this case, the court decision is made taking into account the legal relations provided for by the parties to the contract (determination of the Supreme Court of the Russian Federation in case No. A68-2906/2014 dated October 6, 2015).

This is also important to know:
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To protect your interests in court, it is better to use the help of our lawyers, from whom you can obtain a sample of termination of an agreement by agreement of the parties, as well as consult on all issues related to drawing up the agreement. To provide legal services, you must fill out an online application or call the numbers that are on our website.

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The right to compensation for losses upon termination of the contract by agreement of the parties

Clause 5 Art. 453 of the Civil Code of the Russian Federation provides for the right of a partner to demand compensation for losses upon termination of a contract if the basis was a significant violation of the contract by another partner. We have already said that often if one of the counterparties violates obligations, the parties resolve the matter amicably and terminate the contract by mutual consent.

To recover damages, the following factors must be present:

the significant nature of the violation;
fault of the counterparty;
presence of losses;
the existence of a cause-and-effect relationship between the violation and losses.

IMPORTANT! The guilt of the offender is assumed until the contrary is proven.

Thus, when terminating a contract by agreement of the parties, in order to avoid subsequent disputes, you need to pay attention to a number of conditions. In particular, compliance with the form of the agreement, the absence of continuing obligations, such as warranty periods and liability for violations of obligations preceding termination of the contract.

What a sample (form) of an agreement to terminate a contract looks like, in what form the agreement to terminate by agreement of the parties is concluded and what consequences it entails - we will talk about this in this article.

From what date is the contract considered terminated?

If the decision to terminate the transaction is made by the court, then, in accordance with clause 3 of Art. 453 of the Civil Code of the Russian Federation, the contract is considered terminated after the decision comes into force. At the same time, the indicated norm does not allow for discretion; therefore, the court does not have the right to determine a different date for termination of the transaction, even if one of the parties insists on this.

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Unlike state registration, a court decision on termination of a notarial transaction is the main document, and in this case the notary does not require additional endorsement of the fact of termination of the agreement, based on the provisions of paragraph 1 of Art. 163 Civil Code of the Russian Federation, art. 13 Civil Procedure Code of the Russian Federation, 16 Arbitration Procedure Code of the Russian Federation.

Sample agreement and notice of termination of the contract by agreement of the parties

Here you can also: termination agreements; notices (letters) of contract termination.

These samples (forms) can be used in relation to contracts:

purchase and sale;
supplies;
rent;
on the provision of services;
loan agreements;
other civil contracts.

Civil legislation is based, among other things, on the rule that unilateral termination of a contract is prohibited.

The contract can be terminated:

Like any other civil law agreement, an agreement to terminate a contract by agreement of the parties is concluded using the mechanism of sending and receiving an offer (proposal for termination) and acceptance (consent for termination).

An offer may be an independent statement (notification) of the party interested in terminating the contract.

It is recommended to send this application to the legal and actual address of the counterparty organization. The proposal to terminate the contract itself can be expressed in this application, or a draft agreement on termination of the contract can be attached to the application.

In what form is the agreement to terminate the contract by agreement of the parties concluded?

The law establishes that the form for concluding an agreement to terminate a contract by agreement of the parties must correspond to the form of the contract itself, unless otherwise follows from the law, contract, or business customs.

This means that if the contract is in writing, then the termination agreement must be in writing. If the agreement is in notarial form, then the agreement must be in notarial form.

State registration of an agreement does not relate to issues of compliance with the form, therefore, if the agreement is subject to state registration, then the agreement to terminate the agreement, as a general rule, is not subject to such registration.

If the agreement is concluded orally (the law allows such a form), then we recommend expressing your will to terminate the agreement in writing, despite the law to the contrary.

Date of termination of the lease agreement

The document terminating the lease agreement is drawn up and signed in two copies, one for each party. If the lease agreement has passed state registration, then the number of copies of the document on termination of the agreement increases by one. This is explained by the fact that the agreement to terminate the contract will also be subject to state registration.

“At the request of the lessor in connection with the resulting rent arrears, agreement No. 111-AR dated December 1, 2021 for the lease of non-residential premises is considered terminated as of January 1, 2021. The amount of rent owed by the tenant is 100,000 rubles. The tenant undertakes to repay the existing debt in full by March 1, 2021.”

When is a contract considered terminated by agreement of the parties?

As a general rule, the contract will be terminated by agreement of the parties at the moment when the corresponding agreement is considered concluded. And to conclude this agreement, the clearly expressed will of both parties to the agreement in the proper form is necessary. Usually this point is associated with the signing of the termination agreement as a single document by both parties to the contract, but there may be options. In many cases, it is necessary to analyze the mechanism of offer and acceptance when concluding such an agreement.

The parties may stipulate by agreement the moment of termination of the contract and at other times, if this does not contradict the requirements of the law.

What are the consequences of terminating the contract by agreement of the parties?

The main consequence of this action is the termination of obligations between the parties. It should be taken into account that such termination, as a general rule, does not entail the obligation to return what has already been performed, unless otherwise follows from the law or the contract.

Example:

Agreement on termination of supply contract No. ____ dated ________
Limited liability company _____________, OGRN ____________, TIN ______________ represented by __________________, acting on the basis of ________________ on the one hand, and
Limited Liability Company _____________, OGRN ____________, TIN ______________ represented by __________________, acting on the basis of ________________ on the other hand, collectively referred to hereinafter as the “Parties”, have entered into this agreement as follows:
1. The “Parties” entered into a supply agreement No. ______ dated __________ (hereinafter referred to as the “Agreement”). 2. By this agreement, the “Parties” agreed to terminate the “Agreement”. 3. This agreement comes into force on the day it is signed by the “Parties”. 4. This agreement is made in two original copies, one for each of the “Parties”.
signature, m.p.
______________________________________________________________/_________________/ signature, m.p.

LLC ________________________ OGRN _______________________ Taxpayer Identification Number ________________________
FROM: LLC ________________________ OGRN _______________________ Taxpayer Identification Number ________________________ Address: ______________________
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Notice of termination of the lease agreement No. ____________ dated _______________
Lease agreement No. ______ dated __________ was concluded between LLC ____________ and LLC _______________.
With this notice, _______________ LLC, represented by ____________________, notifies you of the termination of the supply agreement No. ___________ dated ________________.
The reason for termination of the contract is __________________________________________ (what constitutes a significant violation of the terms of the contract or a rule of law or clause of the contract that allows unilateral termination of the contract).
FULL NAME. Position date signature stamp

If you need legal advice from a lawyer or lawyer (including online) on the issue of termination of the contract, contact us in any convenient way.

The contract, even after its signing as a result of any transaction, can be terminated. There are three main ways to carry out this procedure. In particular, termination of the contract is allowed by agreement of the parties, on the initiative of one of the participants, or in court. The article will consider the first case of termination of legal relations.

Termination of the Agreement Which day is considered the last

If the tenant files a claim to terminate the lease agreement without first sending a proposal to the landlord, the court will leave the claim without consideration (clause 60 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 01.07.96).

Under such circumstances, with the greatest degree of probability, the court will consider that the lease relationship has been preserved and will satisfy the demand for the collection of rent (Resolution of the Federal Antimonopoly Service of the Central District dated June 20, 2013 No. A23-2472/2021). In support of this conclusion, they cite the fact that termination of the lease agreement does not entail the termination of the obligation to pay rent, which is terminated by the proper fulfillment by the tenant of the obligation to return the property to the lessor (clause 38 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66).

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Basic Prerequisites

The procedure for concluding and terms of contracts are established in the Civil Code, as well as in a number of federal laws. The rules allow for the termination of rights and obligations under the terms of the contract in the event of the mutual desire of its participants. Termination of a contract by agreement of the parties can be caused by a variety of reasons. These points are stated directly in the terms of the transaction. Simply put, when signing a contract, the parties themselves indicate the reasons why it can or cannot be terminated early. Circumstances under which legal relations may be terminated include force majeure or other events that one or the other participant cannot overcome. Termination of a contract by agreement of the parties is also permitted in the event that the fulfillment of the conditions specified in it may entail a violation of the balance of property interests of the participants, as a result of which one of them would suffer significant damage. Termination of legal relations also occurs when someone fails to fulfill accepted obligations.

Obligations of the parties upon termination of the contract

The termination of the obligations that the parties acquired when concluding the contract occurs at the moment of signing an additional agreement or the court makes a decision on forced termination of the transaction. Despite the fact that the obligations of the parties to the agreement, in accordance with Part 2 of Art. 453 of the Civil Code of the Russian Federation, terminate at the moment of its termination; in some cases, the customer and the contractor must make additional mutual settlements. At the same time, the Plenum of the Supreme Arbitration Court, in paragraph 2 of Resolution No. 35, especially emphasized that the provisions of this article apply if the legislation does not contain special rules governing legal relations arising from the interaction of parties in a certain area.

Upon termination of the contract, the parties may have obligations:

for the return of property;
payment of a penalty;
fulfillment of warranty obligations;
payment for goods or services already received.

In addition, in accordance with the provisions of Part 1 of Art. 421 of the Civil Code of the Russian Federation, legal entities and individuals have freedom to enter into an agreement. This means that they have the right to independently determine any provisions of the transaction, including those that determine the consequences of termination of the agreement, additional rights and obligations of the parties that arise upon termination of the agreement for various reasons.

How to get by without going to court?

Termination of the contract by agreement of the parties is carried out according to a simple scheme. First of all, the initiator of termination of legal relations should draw up an official letter of offer. It must indicate the circumstances on the basis of which the desire to terminate cooperation arose. If the addressee responds positively, the contract is terminated by agreement of the parties. The Civil Code of the Russian Federation sets requirements for the type of document. In particular, it must be compiled similarly to the original one. The demand is sent to the court only if one of the participants ignored the proposal or refused it.

About the date from which the contract is considered terminated

Another possibility exists only on the basis of Art. 165.1 of the Civil Code (fiction of delivery) “if it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it.”

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Without communicating (well, or fictionally communicating) your expression of will to the other party, the contract will not be terminated. Until the contract is terminated, what difference does it make whether you consider the obligations terminated or not? Unilateral refusal to perform (albeit Articles 153-156 of the Civil Code) affects the agreement (legal relationship) between the parties. And the obligations from this agreement (legal relationship) will cease from the moment of its termination - notification of the other party about the refusal.

Additional Information

According to Art. 94, part 10, the report should be accompanied by a conclusion on the examination of a separate stage of execution of the contract, the service provided, the work performed, the products supplied and the certificate of acceptance of the assessment results or another document determined by the legislation of the Russian Federation. Thus, the official website must indicate the grounds on which the contract was terminated (a scanned agreement on this), acts that confirm the partial fulfillment of its terms. The latter may include invoices, delivery notes, and so on.

When formalizing, for example, the termination of a lease agreement by agreement of the parties (a sample of this document is presented in the article), you should directly indicate the volume of obligations fulfilled and remaining outstanding at the time of termination of cooperation. At the same time, the content indicates the absence or presence of mutual claims. The fact of incomplete fulfillment of the conditions does not impose additional obligations, unless otherwise provided in the contract.

Termination of an employment contract by agreement of the parties: sample, description

Relations with an employee can be terminated at any time, subject to the conditions provided for in Art. 78 TK. The initiator of this procedure can be either the employer or the employee himself. The law allows early termination of an employment contract by agreement of the parties. Mutual desire to terminate cooperation must be documented in a separate document. Just as for other legal relations, termination of an employment contract by agreement of the parties is carried out in the same form as it was signed. The document provides the circumstances that caused the termination of interaction, the date (the last day the employee was at work). The agreement also specifies the amount and procedure for paying compensation to the worker, if he is entitled to it. Additional conditions may be included in the document. In particular, these include the provision of leave immediately before dismissal, the procedure according to which the employee must hand over the cases in his proceedings, and so on.

Features of termination of the relationship between employer and employee

The specificity of terminating an employment contract by mutual consent of the parties is that cancellation of such an agreement is also allowed by mutual expression of will. This provision is explained in the Resolution of the Plenum of the Supreme Court. In other words, after signing a dismissal agreement, none of its participants has the right to revoke it unilaterally. In this regard, termination of a working relationship with a specialist in accordance with mutual desire is considered the safest and most acceptable form of resolving a rather complex personnel issue.

Consequences of termination of the agreement (general provisions)

There are several consequences of termination of the contract:

The obligations of its parties are terminated (Part 2 of Article 453 of the Civil Code of the Russian Federation).
The question arises about the need to determine mutual settlements between the parties in the event that part of the obligations has already been fulfilled by them.
If the agreement was terminated unilaterally, there is a need to determine the degree of responsibility of the participant whose actions became the basis for termination of the agreement. As a rule, a party that has materially violated the terms of the contract is subject to material penalties to compensate for the damage suffered by its counterparty. In some cases, separately established by law, the party initiating the termination of the contract has the right to receive compensation, even if the violation is not significant. So, the lessor, in accordance with Part 3 of Art. 611 of the Civil Code of the Russian Federation, has the right to recover funds from the tenant as compensation for losses incurred by him in the event that the latter violated the established deadline for the return of property.