When doing business, various types of contracts are used in the field entrepreneurial activity... Any transaction is necessarily accompanied by the conclusion of an agreement. It is drawn up in writing and signed by all participants. A contract between two or more persons must in any case not contradict the current legislation, that is, it cannot contain conditions that violate laws, rules or other norms. Such an agreement will be invalidated in court proceedings.

Each individual and legal entity has the right to independently choose its business partners and counterparties with whom it will enter into agreements. But there are exceptions when a person can be forced to sign a document. For example, in apartment building there is a store. This house is serviced by a management organization.

The owner of non-residential premises is obliged to conclude an agreement for the provision of housing and communal services with this particular organization, even if he does not want it.

Types of contracts in business:

• on the sale and / or purchase of works, services, goods, rights to use intellectual property;
• on the provision of property for rent;
• to open and maintain a bank account, deposit;
• credit;
• on the provision of a loan;
• labor;
• contracting;
• about a commercial concession.

Each organization or individual entrepreneur enters into many different contracts that are directly or indirectly aimed at generating income for the organization or individual entrepreneur.

Any document that businessmen draw up and sign should be beneficial for each subject of the transaction.

Purchase, Sale, Lease Agreement

A purchase and sale agreement is the most common type of agreement entered into in the process of doing business. Every entrepreneur produces or buys goods in order to then sell them to an intermediary or end consumer. The contract for the purchase, sale, sale, shipment, delivery of goods contains the main condition that one party undertakes to provide the other with economic benefits, and the other undertakes to pay for them cash... If the contract stipulates that one participant transfers the benefits to the second, and that, in turn, also transfers goods, works or services, then this is already an exchange agreement.

The document prescribes the name of the goods, the type of services, the nature of the work, the time for their delivery, provision or performance, when the payment will be made. Funds can be transferred before delivery in installments for each consignment of goods, after the actual shipment. The contract necessarily prescribes the procedure for resolving disputes, penalties for violation of the agreed conditions, and other important aspects of the partnership.

Very often in the process of carrying out business activities, lease agreements are concluded. To make a profit, an enterprise or individual entrepreneur needs jobs, offices, workshops, machines, machinery and equipment, land and other means of labor. They are not always acquired in property, in many cases they are taken for temporary use. The lease agreement stipulates that one person transfers to another for use for a certain period of time any property, and in return receives money in the form of rent.

Loan agreement

In the process of running a business, an organization or an entrepreneur may need additional funds that they do not currently have. But they can be borrowed from a bank. A loan agreement is an agreement under the terms of which one party (the lender) provides the other (the borrower) funds for temporary use for a fee. A bank or other credit organization (pawnshop, cooperative) can act as a creditor.

Funds are provided according to the following principles:

• refundability - the money must be fully refunded after a specified period of time;
• chargeability in the form of interest;
• security (pledge, surety, guarantee);
• urgency - funds are issued for a certain period of time;
• target nature - to obtain a loan, the borrower must inform what he plans to spend it on.

The loan agreement spelled out who is the lender and who is the borrower, the period for using the borrowed funds, when and in what way they must be returned, the amount of interest rate, for what they will be used. In the presence of security, contracts of surety or pledge are additionally concluded.

The loan agreement differs in that, according to its terms, any individual or legal entity can act as a borrower. It can be free of charge, that is, no fee is charged for the use of funds. As security from the borrower, you can receive a receipt that he undertakes to return the money within the specified period.

Other types of contracts in the field of entrepreneurial activity

For settlements with partners, employees, budgets of all levels, etc. the organization requires a bank account. To open it, you must conclude an agreement with a credit institution.

To do this, you need to choose a bank, submit the required package of documents, sign an agreement, get a current account number and use it. In some cases, individual entrepreneurs also open bank accounts for settlements in the process.

Any enterprise or individual entrepreneur needs employees to carry out their activities. Labor contract regulates the relationship between the employee and the employer.

It prescribes job duties citizen, the amount of remuneration for work, the mode of work, the procedure for granting leave and other conditions relating to the work of an employee in an organization or with an entrepreneur.

A commercial concession agreement is concluded between the owner of a trademark or other exclusive rights to something and another person, on the basis of which the latter can use these rights in the conduct of his business.

Construction contracts are very common in construction. According to its terms, one party undertakes to perform certain work, and the other to check, accept them (if everything is done correctly) and pay money to the contractor.

The contract is flexible legal form, which can be clothed with different in nature public relations... The main purpose of the contract is to regulate the behavior of people within the framework of the law by indicating the limits of their possible and proper behavior with the ensuing legal consequences of violating the relevant requirements. In the field of entrepreneurial activity, the contractual form allows you to reach an agreement between certain actors business relations on determined by the parties conditions that become binding on them.

According to paragraph 1 of Art. 420 of the Civil Code of the Russian Federation, an agreement is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations.

Before giving the concept of an entrepreneurial contract, it is necessary to highlight a number of features.

1. Business agreement is for the purpose of its parties (party) carrying out entrepreneurial activities.

The parties (or one party) of such an agreement enter into an obligation relationship with their counterparties for the sale of goods, the use of property, the performance of work, the provision of services due to the fact that it is necessary for her (their) professional activity aimed at systematic profit, and not at the satisfaction of personal, household needs.

2. The parties (or one of the parties) of such agreements must be subjects of entrepreneurial activity - legal entities and (or) individual entrepreneurs who acquire the status of the subject of the specified activity from the moment of their state registration.

In certain cases, the law allows for the possibility of extending the norms on contractual obligations in the field of entrepreneurship to a party to the contract that is not registered as an entrepreneur. Thus, a citizen carrying out entrepreneurial activity without state registration does not have the right to refer to the transactions concluded by him that he is not an entrepreneur. The court may apply to such transactions the rules on obligations related to the implementation of entrepreneurial activity (clause 4 of article 23 of the Civil Code of the Russian Federation).

In a number of cases, the law contains a direct indication that only business entities in certain organizational and legal forms can be parties to certain contracts. So, in accordance with paragraph 3 of Art. 1027 and clause 2 of Art. 1041 of the Civil Code of the Russian Federation, parties to contracts of commercial concession and simple partnership can only be commercial organizations and citizens registered as individual entrepreneurs.

3. Business contracts are of a compensatory nature: a party to such an agreement must receive a payment or other counter provision for the performance of its duties (clause 1 of article 423 of the Civil Code of the Russian Federation). This feature is due to the purpose of entrepreneurial activity - the focus on making a profit.

Russian legislation contains a fundamental ban on the conclusion of gratuitous contracts between business entities. In particular, donation is not allowed in relations between commercial organizations (clause 4 of article 575 of the Civil Code of the Russian Federation). This prohibition also applies to individual entrepreneurs, since they are general rule the norms of the Civil Code of the Russian Federation are applied, which regulate activities legal entities that are commercial organizations (clause 3 of article 23 of the Civil Code of the Russian Federation).

4. Special procedure for resolving disputes in connection with the execution of business contracts.

Most of the disputes arising from business contracts are economic disputes that are resolved by arbitration courts in accordance with the Arbitration Procedure Code of the Russian Federation (Articles 27-28). As a rule, these are disputes about disagreements under the agreement, about changing conditions, about termination of the agreement or about non-fulfillment or improper fulfillment of obligations, etc.

The parties to business contracts, one of which is a foreign business entity or an enterprise with foreign investments, have the right to provide in the contract a condition for the consideration of their disputes in the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry - a permanent arbitration court. There are also other arbitration courts that resolve disputes arising from business contracts.

An entrepreneurial agreement is an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activities, the parties or one of the parties of which act as a business entity.

In the scientific literature, an entrepreneurial contract is often considered a type of private civil contract.

As V.V. Vitryansky, “the designation of a contract or a group of contracts as“ entrepreneurial ”is conditional: this class of contracts is not provided for by the Civil Code of the Russian Federation and other legislation. At the same time, the legislation provides for differentiated (special) regulation of "obligations related to the implementation of entrepreneurial activities by its parties" (for example, Articles 310, 315), "obligations related to entrepreneurial activities" (Article 322), "obligations fulfilled by carrying out entrepreneurial activity "(Art. 401)".

Of course, an entrepreneurial contract combines the norms of private law and public principles. However, we believe that entrepreneurial contracts in legislation and in civil circulation are represented by a corresponding group of civil contracts that meet the predefined above criteria.

Classification of business contracts must be carried out depending on the direction.

The first group is made up of contracts, aimed at transferring property. They are represented in the Civil Code of the Russian Federation by the supply of goods, including for state needs, contracting, energy supply, sale of real estate and sale of the enterprise. All of them, meaning the transfer of property into ownership, constitute a subtype of the named contracts, while their other subtype is associated with the transfer of property for temporary use. This includes rent, including Vehicle, buildings and structures, enterprises.

The second group is made up of contracts, aimed at performing work. These include the contract with its varieties (construction contract, contract for the performance of design and survey work, contract work for state needs) and contracts for the performance of research and other works.

The third group is represented by contracts, aimed at providing services. The Civil Code of the Russian Federation (Art. 779) defines services as actions or activities carried out by the contractor at the request of the customer; these actions (activities) constitute the object of such agreements. Services, depending on the nature of the actions (activities) performed, are divided into two subspecies: legal (order, commission, agency service) and actual (transportation, storage, etc.).

The focus of the contract on the transfer of property, the performance of work or the provision of services cannot serve as a comprehensive criterion that can delineate all contractual obligations. Outside it, for example, there remains a simple partnership, the essence of which is to combine the contributions of the participants and their subsequent joint actions to achieve a goal that does not contradict the law (Article 1041 of the Civil Code of the Russian Federation).

According to the subject composition of the parties, contracts are distinguished, all parties to which are entrepreneurs and in which an entrepreneur acts as one of the parties.

Contracts in which one party acts as an entrepreneur are retail sale, rental, bank deposit and bank account agreements, loan agreements, energy supply agreements, transportation of goods, transport expedition, construction contract, agency contract and many others.

Contracts concluded exclusively between entrepreneurs include contracts: supply of goods for entrepreneurial purposes, contracting, commercial concession, financial lease (leasing), warehouse storage, insurance of entrepreneurial risks and a simple partnership agreement concluded for the implementation of entrepreneurial activity, as well as other agreements, the parties to which are business entities.

• Sukhanov E.L. Civil Code Russia and private law // Lawyer. 2000, no. 4, p. 3.
• Vitryansky V. V. Responsibility for violations of the "entrepreneurial contract" // Materials of the Annual Scientific Readings in memory of Professor S.N. Bratusya (Moscow, October 24, 2007). M., 2008.S. 17.

The classification of business contracts can be carried out on various grounds.

Business contracts for the sale (sale) of goods include a purchase and sale agreement, including an agreement for the supply of goods, an agreement for the supply of goods for state needs, a contracting agreement, an energy supply agreement, an enterprise sale agreement, as well as a retail sale and purchase agreement, an energy supply agreement, etc.

Business contracts for the sale of goods are extremely important for business turnover, since a developed civilized trading activities is the basis of full-fledged entrepreneurship that stimulates production, intermediary and other types of entrepreneurial activity.

The number of entrepreneurial contracts for the transfer of property for use, first of all, must include various types of lease agreements, since, on the one hand, the provision of property for temporary possession and use allows the lessor to receive entrepreneurial income (profit). On the other hand, for the effective implementation of their activities by entrepreneurs, in a number of cases it is economically more profitable not to acquire property, but to get it on lease and use it for their activities. For example, a trading company expanding the volume of sales of its goods may need additional warehouse and office space, etc.

In this regard, the most typical for entrepreneurial activities are an enterprise lease agreement, a financial lease (leasing) agreement, and a rental agreement.

Entrepreneurial contracts for the performance (production) of work are primarily various types of work contracts - a construction contract, a contract for the performance of design and survey work, a state contract for the performance of contract work for state needs, a household contract, etc.

Great importance in business, they have business contracts for the provision of services. The provision of services is essential in the business turnover. In this regard, a significant number of contractual obligations in entrepreneurship are associated with the provision of services that may be needed both by entrepreneurs themselves and by persons who are not related to them. Unlike works, services do not receive a material expression, different from the very activity in which they are expressed.The legislation provides for the possibility of providing different types services under the following contracts: repayable rendering services, commercial representation, commission, agency services, transportation, forwarding, insurance, asset management, storage, etc.

According to the subject composition of the parties, contracts are distinguished, all parties to which are entrepreneurs and in which an entrepreneur acts as one of the parties.

Contracts in which one party acts as an entrepreneur are retail sale, rental, bank deposit and bank account agreements, loan agreements, energy supply agreements, freight forwarding agreements, freight forwarding agreements, construction contracts, agency agreements, and many others.

Contracts concluded exclusively between entrepreneurs include contracts: supply of goods for entrepreneurial purposes, contracting, commercial concession, financial lease (leasing), warehouse storage, insurance of entrepreneurial risks and a simple partnership agreement concluded for the implementation of entrepreneurial activities, as well as other contracts, parties of which are business entities.

The contract for the supply of goods, according to which the supplier-seller engaged in entrepreneurial activity undertakes to transfer, within a specified time or time frame, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, domestic and other similar use ( Article 506 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation establishes the following signs of a supply agreement, which make it possible to distinguish it from other varieties of a purchase and sale agreement:

1) special legal status the seller and the buyer, who should act as business entities;

2) the purpose of purchasing goods under a supply contract is to use it in business or for other purposes not related to personal, family, household and other similar use (for industrial processing, for subsequent sale, etc.).

A contracting agreement is a special type of agreement for the sale of goods, concluded between business entities.

Under the contracting agreement, the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the procurer - the person who purchases such products for processing or sale (Article 535 of the Civil Code of the Russian Federation).

The parties to this agreement are the seller - manufacturer of agricultural products and the buyer - procurement of these products.

Agricultural commercial organizations act as a seller-producer: economic societies and partnerships, production cooperatives, peasant (farmer) enterprises engaged in entrepreneurial activities in the production (cultivation) of agricultural products.

The purchaser-procurer can be a commercial organization or an individual entrepreneur engaged in entrepreneurial activity in the acquisition (purchase) of agricultural products for its subsequent processing or sale (for example, dairies, meat processing plants, wool processing factories, enterprises wholesale trade in the field of consumer cooperation, etc.).

Unlike a supply agreement, under a contracting agreement, the seller is obliged to produce (grow) agricultural products in order to sell them to the buyer (purveyor).

A financial lease (leasing) agreement is an agreement between the parties, according to which the lessor undertakes to acquire ownership of the property specified by the lessee from the seller specified by him and provide the lessee with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the subject of the lease and the seller (Article 665 of the Civil Code of the Russian Federation).

The subject of a finance lease agreement can be any non-consumable things used for entrepreneurial activity, except land plots and other natural objects. Based on this, the lease agreement is concluded only for business purposes and, accordingly, between business entities.

The lessors (lessors) are leasing companies created by various structures: manufacturers of machinery and equipment, banks, etc. Leasing companies (firms) are commercial organizations (residents of the Russian Federation or non-residents of the Russian Federation), performing in accordance with their constituent documents functions of lessors and received, in accordance with the procedure established by the legislation of the Russian Federation, permits (licenses) to carry out leasing activities (Article 5 of the Law on Leasing).

Commercial concession agreement - an agreement under which one party (rightholder) undertakes to provide the other party (user) for a fee, for a period or without specifying a period, the right to use in business a set of exclusive rights belonging to the rightholder, including the right to a company name and (or ) the commercial designation of the copyright holder, for protected commercial information, as well as for other objects of exclusive rights provided for by the contract - a trademark, service mark, etc. (Article 1027 of the Civil Code of the Russian Federation).

Only commercial organizations and individual entrepreneurs can be parties to a commercial concession agreement.

Under a simple partnership agreement, two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law (1041 of the Civil Code of the Russian Federation).

The subject of a simple partnership agreement is the joint activity of partners to achieve the goal specified in the agreement.

The parties to the agreement can be commercial organizations and individual entrepreneurs. Simple partnership agreements are, as a rule, multilateral.

A warehouse storage agreement is an agreement by virtue of which a warehouse (custodian) undertakes to store goods for a fee. Transferred to him by the commodity owner (depositor), and return these goods intact (Article 907 of the Civil Code of the Russian Federation).

A warehouse is an organization that carries out storage of goods as a business activity and provides storage-related services.

The concept of a business contract

In the scientific literature, the concept of an entrepreneurial contract, its place in the system of law are defined in different ways, depending on the view of the system of law and the place of business law in it.

The following terms are usually used as synonyms: "business law", "commercial law", "commercial law", "commercial law" (a number of authors put different content into these terms, but we do not consider this issue here).

There are three main points of view on business law:

1. Business law is an independent branch of law. Supporters of this point of view are followers of the so-called concept of economic law. This concept proceeded from the homogeneity of power-managerial (vertical) and contractual (horizontal) relations in the sphere of the national economy and was aimed at justifying the planned and administrative system of management.

With the collapse of the administrative-command system and the transition of the countries of the former USSR to market rails, this concept suffered a complete fiasco. Nevertheless, supporters of the concept are trying to adapt to new market realities by means of its restructuring1

Supporters of this point of view proceed from the fact that entrepreneurial (economic) law is a set of legal norms governing economic relations.

Here is the most common definition: entrepreneurial law is a set of legal norms governing entrepreneurial relations and others closely related to them, including non-commercial relations, as well as relations on state regulation of the national economy in ensuring the interests of the state and society2.

2. Business law is part of civil law. This concept is directly opposite to the concept of economic law as an independent branch of law and is widespread both in educational3 and scientific literature4.

3. Entrepreneurial (economic, commercial, trade) law is a complex branch of law5. Business law should be understood in two ways. In a narrow sense, business law is a part of civil law. Entrepreneurial activity is a kind of civil activity.

At the same time, business law can be understood in a broad sense as a comprehensive formation that combines the norms of various branches of law (civil, administrative, financial, customs, labor, etc.).

According to first concept a business contract is one of the institutions of business law as an independent branch of law and has nothing to do with a civil contract. According to second concept a business contract is an institution of civil law. A number of representatives third concept considers it to be a complex institution combining elements of public and private law.

For example, V.S. Belykh came to the following conclusion about the concept of an entrepreneurial contract: "An entrepreneurial contract is a complex legal institution that combines the norms of private law and public principles. Therefore, it can be argued that an entrepreneurial contract is an intersectoral (complex) concept."

An entrepreneurial contract, like any other type of contracts (enshrined in family, labor, land, mining and other branches of law), is always a civil law contract based on the principles of equality of parties and the principles of private law. After all, a contract is an agreement of the parties, and it can be an agreement only when the parties are independent and equal from each other.

Any contract concluded between unequal parties is a quasi-contract, this is an ordinary power relationship, clothed in an unnatural form of contract in relation to them. Therefore, the author has a negative attitude towards financial, tax, licensing and other contracts, when one party - the state gives permission or order, and the other party - a citizen or legal entity fulfills the conditions of this permission or order.

Therefore, an entrepreneurial contract is a civil contract, and it cannot be anything else. It is included in the complex branch of business law, while remaining entirely within the framework of civil law.

Thus, an entrepreneurial contract is an institution of civil law (while being also an institution of entrepreneurial law). But at the same time, civilians who recognize the existence of an entrepreneurial contract cannot determine its place in the system of civil law. The question immediately arises as to how the institution of an entrepreneurial contract relates to the division of contractual institutions according to contractual types (purchase and sale, contracting, transportation, hiring, etc.).

These contractual institutions include both entrepreneurial (supply) and ordinary civil (donation) and mixed (hire) contracts. If business contracts are placed in the same row with the contractual types enshrined in the Civil Code of the Russian Federation, then there will be no place for them in the civil law system.

The difficulty of determining the place of an entrepreneurial contract in the civil law system is largely due to the fact that the very concept of an institution as structural unit system of law is the most poorly developed and vague concept in the system of law (in comparison with the rule of law and the industry).

The specificity of social relations may require its expression in an additional structure of law located in a different plane than the main structure. The main criterion of the structure in this case can be the subjects of relations. In our opinion, one of the manifestations of this structure is such legal formations as an entrepreneurial agreement and an agreement to serve the needs of citizens.

In this additional structure, the classification of civil law contracts is carried out, first of all, by subjects (contracts of legal entities (as well as individual entrepreneurs) among themselves, contracts between citizens and legal entities (individual entrepreneurs), contracts between citizens), and then from these groups stand out the following agreements: entrepreneurial, contracts for servicing citizens according to an additional criterion of purpose (servicing entrepreneurial activity or the needs of citizens) and ordinary civil law. However, due to the fact that the contract for servicing citizens is also entrepreneurial in nature, it is advisable to consider it as a kind of business contract.

Thus, a business contract is an institution of a complex branch of law, which is business law. At the same time, it remains entirely within the framework of civil law as its institution. An entrepreneurial contract is a sub-institution of a civil contract, which includes, in addition to a business and consumer contract, an ordinary civil contract.

In turn, an entrepreneurial contract is an institution that includes institutions: supply contracts, construction contracts, lease of an enterprise, transportation of goods, and others.

This system of an entrepreneurial contract is secondary in relation to the system of contractual institutions enshrined in the Civil Code of the Russian Federation: sale and purchase, hiring (rent), performance of work, provision of services, transportation, etc.

Therefore, an entrepreneurial contract is a complex institution of civil law.

The Civil Code of the Russian Federation does not contain any clarifications on the subject composition of the contracts under consideration: it does not contain the term "business contract" itself, not to mention its definition. Meanwhile, this issue is important for us already because it is associated with the definition of the range of contracts that should be considered entrepreneurial.

In principle, an entrepreneur can enter into a contractual relationship with any person, including with non-profit organizations and citizens. This circumstance, apparently, gave the basis for the conclusion in the literature that if at least one party to the contract is a commercial organization or an individual entrepreneur, it can already be recognized as entrepreneurial7.

From the Civil Code of the Russian Federation, it is possible to extract only that information about an entrepreneurial contract that reflects its private-law side. The very fact of the presence of these agreements in the Civil Code of the Russian Federation is explained by the fact that norms devoted to both entrepreneurship (within the limits, of course, of the same side) and everyday life have found a place in it; in other words, in the Civil Code of the Russian Federation there are two regimes of legal regulation: entrepreneurial and domestic. The first of them is devoted to business, and the second - to meeting the personal needs of citizens. In part 2 of the Civil Code of the Russian Federation, entrepreneurial obligations - delivery, lease of an enterprise, construction contract - are adjacent to such purely domestic contracts as retail purchase and sale, rental and household contracts.

What are the criteria for classifying a contract as an entrepreneurial one? 8

The first criterion is relations (connections) developing in the field of entrepreneurial activity. With regard to entrepreneurial activity, as is known, various kinds of social relations arise: a) entrepreneurial (horizontal); b) entrepreneurial (vertical); c) corporate.

An entrepreneurial contract as an individual act primarily regulates horizontal property relations. In this capacity, it is a kind of civil contract.

The second criterion for belonging of a contract to an entrepreneurial one is the subject composition. An agreement is considered to be an entrepreneurial one if both parties are subjects of entrepreneurial activity. Moreover, the subjects of entrepreneurial activity should be understood as individual entrepreneurs and commercial organizations, the main purpose of which is to make a profit, as well as non-profit organizations that carry out entrepreneurial activity only insofar as it serves to achieve the goals for which they were created (clause 3 of article 50 of the Civil Code) ...

On the contrary, if in a civil law contract one party is a subject of entrepreneurial activity, and the other is represented by an individual, then such an agreement cannot be classified as an entrepreneurial one. A simple example: a customer shopping at a retail store enters into a civil contract with commercial organization(department store). Such an agreement should be considered a consumer agreement and not a business one, even if the buyer subsequently decides to resell the purchased goods in order to generate income9.

It's another matter when individual(without the status of an individual entrepreneur) systematically acquires products for their further sale in order to make a profit, then by virtue of paragraph 4 of Art. 23 of the Civil Code, a citizen does not have the right to refer to the fact that he is not an entrepreneur.

Consequently, in each specific situation it is necessary to see the signs of an entrepreneurial contract, or, on the contrary, to see the absence of such.

The third criterion for classifying an agreement as an entrepreneurial one is the entrepreneurial purpose of using the transferred property. As noted earlier, this criterion is applied, for example, when concluding a financial lease (lease). Similar properties of the contract apply in other cases.

Summarizing what has been said, we can formulate the following definition of the concept of an entrepreneurial contract. An entrepreneurial (private law contract) is a two or multilateral agreement between business entities aimed at achieving entrepreneurial goals in the field of entrepreneurial activity.

Thus, an entrepreneurial contract is a complex legal institution that combines the norms of private law and public principles. Therefore, it can be argued that an entrepreneurial contract is an intersectoral (complex) concept.

1. to be concluded without coercion;

2. be established either by law or by an agreement concluded in accordance with the requirements of the law (Articles 420, 421, 422 of the Civil Code of the Russian Federation);

3. to enter into legal force from the moment of its conclusion (there are other periods by agreement of the parties, or established by law) (Article 425 of the Civil Code of the Russian Federation).

Business contracts should be classified, first of all, from the standpoint state regulation entrepreneurship 10. It is necessary to highlight three main legal regimes of this regulation. The first of them, which can be designated as a regime of active regulation, has as its subject areas that are especially important from the point of view of economic security: production and transportation of oil, oil products and gas, energy supply, communications, formation of state reserves, etc.

The second regime presupposes moderate government regulation, which is limited to determining the parameters of the activities of commercial organizations (technical regulations, rules, etc.), but does not, as a general rule, affect the freedom of contract.

The third legal regime - minimal - refers to such types commercial activities, as the organization of tourism, entertainment events, where there are practically no opportunities for state regulation even through technical and legal norms.

Business contracts should be distinguished by object and subject.

In the first place it is necessary to put contracts aimed transfer of property... They are represented in the Civil Code of the Russian Federation by the supply of goods, including for state needs, contracting, power supply, the sale of real estate and the sale of an enterprise. All of them, meaning the transfer of property into ownership, constitute a subtype of the named contracts, while their other subtype is associated with the transfer of property for temporary use. It includes lease, including vehicles, buildings and structures, enterprises, as well as financial lease (leasing).

The next type is made up of contracts aimed to perform work... These include the contract with its varieties (construction contract, contract for the performance of design and survey work, contract work for state needs) and contracts for the performance of research and other related works.

The third type is represented by contracts aimed at for the provision of services... The Civil Code of the Russian Federation (Art. 779) defines services as actions or activities carried out by the contractor at the request of the customer; these actions (activities) constitute the object of such agreements. Obligations of this type do not create any tangible result. He is either absent altogether, or is outside the legal relationship. Do not have such a result, for example, services for training, audit, demonstration of films, and in cases where the service entails some material consequences, they are outside the contract.

One of the most serious restrictions is the conclusion by the parties of the so-called preliminary contract, after which they have no choice but to enter after a certain period time in the main commitment. The preliminary agreement does not create any other obligations for them, except to conclude the main one. Thus, if at the stage of the preliminary contract it is still possible to choose a counterparty who agrees to enter into it, then after its registration the question of choice does not arise. A situation arises when the obligation of specific subjects to conclude an agreement is based on an obligation they voluntarily accepted - a preliminary agreement (Article 421 of the Civil Code of the Russian Federation).

By entering into a preliminary agreement, the parties themselves limit their freedom. But it can also be limited accession agreement.

The limitation consists in the very content of the contract, which is predetermined by the subject, which can be a bank, an energy supplying organization, transport company etc. Anyone who intends to conclude such an agreement is faced with a choice: to enter into it on the proposed terms or to refrain from doing so. This is exactly how this issue is understood in paragraph 1 of Art. 428 of the Civil Code of the Russian Federation, which states that an accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed agreement as a whole.

In most cases, entrepreneurs distinguish the following types of contracts:

Memorandum of association;

Contract of sale;

Property lease agreement;

Lease contract;

Leasing agreement;

Work agreement;

Cooperation agreement;

Consortium Agreement;

Order agreement;

Commission agreement;

Agency contract;

Agreement for the exclusive sale of goods;

Franchise agreement;

Factoring agreement;

Storage agreement;

Agreement on the establishment of a joint (mixed) enterprise;

Project financing agreement.

Contracts concluded between entrepreneurs include contracts:

supply of goods for business purposes,

contracting,

commercial concession,

financial lease (leasing),

warehouse storage,

insurance of business risks,

a simple partnership agreement concluded for the implementation of entrepreneurial activity, labor contract, as well as other contracts, the parties to which are business entities.

Contracts in which one party acts as an entrepreneur are contracts:

retail sale,

bank deposit and bank account,

loan agreement,

energy supply contracts,

transportation of goods,

transport expedition,

construction contract,

agency contract

System of business contracts

№	name of the contract	names of the parties	legal qualification	regulatory framework
1. OBLIGATIONS TO TRANSFER PROPERTY IN OWNERSHIP
1.1	contract of sale	seller buyer		Art. 454 - 505 of the Civil Code of the Russian Federation
	a) retail sales contract	seller buyer	bilateral consensual compensated	Art. 492-505 of the Civil Code of the Russian Federation
1.2	delivery contract	supplier-purchaser	bilateral consensual compensated	Art. 506-534 of the Civil Code of the Russian Federation
	a) supply contract for state needs	supplier government customer	bilateral consensual compensated	Art. 535-538 of the Civil Code of the Russian Federation
1.3	contracting agreement	procurement manufacturer	bilateral consensual compensated	Art. 535-538 of the Civil Code of the Russian Federation
1.4	power supply contract	supplying side - consumer (subscriber)	bilateral consensual compensated	Art. 535-538 of the Civil Code of the Russian Federation
1.5	real estate sale agreement (there must be state registration)	seller buyer	bilateral consensual compensated	Art. 549-558 of the Civil Code of the Russian Federation
1.6	an agreement for the sale of an enterprise (there must be state registration)	seller buyer	bilateral consensual compensated	Art. 559-566 of the Civil Code of the Russian Federation
1.7	barter agreement	seller buyer	bilateral consensual compensated	Art. 567-571 of the Civil Code of the Russian Federation
2. OBLIGATIONS TO TRANSFER PROPERTY FOR USE
2.1	lease agreement (property lease)	lessor (landlord) - lessee (tenant)	bilateral consensual compensated	Art. 606-625 of the Civil Code of the Russian Federation
2.2	rental agreement (household rental)	landlord-tenant	bilateral consensual compensated	Art. 626 - 631 of the Civil Code of the Russian Federation
2.3	vehicle lease agreement a) with the provision of driving services and technical operation	landlord-tenant	bilateral consensual compensated	Art. 632-641 of the Civil Code of the Russian Federation
2.4	finance lease (leasing)	lessor - lessee - seller		Art. 665-670 of the Civil Code of the Russian Federation
3. OBLIGATIONS ON PRODUCTION OF WORKS
3.1	work agreement	contracting contractor	bilateral consensual compensated	Article 702-729 of the Civil Code of the Russian Federation
3.2	household contract (must be licensed)	contractor - customer	bilateral consensual compensated	Art. 730-739 of the Civil Code of the Russian Federation
3.3	construction contract a) contract for capital construction	contractor - customer	bilateral consensual compensated	Art. 740-757 of the Civil Code of the Russian Federation
3.4	contract for the performance of design and survey work	contractor (designer), prospector - customer	bilateral consensual compensated	Art. 758-762 of the Civil Code of the Russian Federation
3.5	contract for contract work for government needs	contractor - government customer	bilateral consensual compensated	Art. 763 - 768 of the Civil Code of the Russian Federation
4. OBLIGATIONS TO IMPLEMENT CREATIVE ACTIVITIES
4.1	contracts for the implementation of research, development and technological works	customer executive	bilateral consensual compensated	Art. 769-778 of the Civil Code of the Russian Federation
5. OBLIGATIONS TO PROVIDE SERVICES
5.1	transport contracts a) contract of carriage and cargo	consignor - carrier - guarantor	bilateral or multilateral paid or free consensual for the organization real for citizens	Art. 784 - 800 Civil Code of the Russian Federation KTZh UZhD UAT
	b) contract for the carriage of passengers	passenger - carrier
	c) charter agreement (charter)	charterer - charterer

d) direct mixed message

5.2	forwarding agreement	forwarder-client (shipper or consignee)	See transport contracts	Art. 801 - 806 of the Civil Code of the Russian Federation
5.3	loan agreement	lender - borrower		Art. 807 - 818 of the Civil Code of the Russian Federation
5.4	credit agreement a) trade credit agreement	lender - borrower	double sided real onerous	Art. 819 - 823 of the Civil Code of the Russian Federation
	b) commercial loan	lender - borrower	double sided real onerous	Art. 823 of the Civil Code of the Russian Federation
5.5	financing agreement against assignment of a monetary claim	financial agent - client (lender)	double sided real onerous	Art. 824 - 833 of the Civil Code of the Russian Federation
5.6	bank deposit agreement (the bank must have a license for this activity) a) demand deposit b) term deposit	depositor - bank	double sided real onerous	Art. 834 - 844 of the Civil Code of the Russian Federation Law of the Russian Federation "On Banks and Banking Activities" 1990/95
5.7	bank account agreement	client (account holder) - bank	double sided real onerous	Art. 845 - 860 of the Civil Code of the Russian Federation Law of the Russian Federation "On Banks and Banking Activities" 1990/95
5.8	storage agreement	custodian - depositor	double sided real onerous	Art. 886 - 926 of the Civil Code of the Russian Federation
	a) a warehouse storage agreement b) a pawnshop agreement c) an agreement for the storage of valuables in a bank d) an agreement for the storage of valuables in a bank safe e) an agreement for storage in lockers transport organizations f) storage agreement in the wardrobes of organizations			Articles 907 - 918 of the Civil Code of the Russian Federation Article 912 of the Civil Code of the Russian Federation Article 922 of the Civil Code of the Russian Federation Article 923 of the Civil Code of the Russian Federation Article 924 of the Civil Code of the Russian Federation
	g) hotel storage agreement	see storage agreement	Art. 925 of the Civil Code of the Russian Federation
	h) an agreement for the storage of things that are the subject of a dispute (sequestration)	see storage agreement	Art. 926 of the Civil Code of the Russian Federation
5.9	insurance contract	insurer - insured	bilateral onerous	Art. 927 - 970 of the Civil Code of the Russian Federation
	a) property insurance contract			Art. 929 of the Civil Code of the Russian Federation
	b) personal insurance contract	see insurance contract	Art. 934 of the Civil Code of the Russian Federation
6. OBLIGATIONS TO PROVIDE LEGAL AND ACTUAL SERVICES
6.1	contract assignment	attorney - attorney	bilateral consensual compensated	Art. 971 - 979 of the Civil Code of the Russian Federation
6.2	unauthorized action in the interest of others	a person acting in someone else's interest - interested party	bilateral consensual compensated	Art. 980 - 989 of the Civil Code of the Russian Federation
6.3	commission agreement	commission agent - consignor	bilateral consensual compensated	Art. 990 - 1004 of the Civil Code of the Russian Federation
6.4	agency contract	agent - principal	bilateral consensual compensated	Art. 1005-1011 of the Civil Code of the Russian Federation
6.5	trust agreement	founder of management - trustee - beneficiary	tripartite consensual compensated	Art. 1012-1026 of the Civil Code of the Russian Federation
6.6	commercial concession agreement	copyright holder - user	bilateral consensual compensated

TASK: Due to the poor harvest in previous years, the farmer Prikazchikov did not have enough grain for sowing. He decided to borrow some from a neighbor. A property lease agreement was concluded between them, in accordance with which the neighbor transferred to Prikazchikov the right to own and use 20 centners of wheat. As stated in the contract, the employer had to return the grain at the end of the harvest.

Is it possible to conclude a contract with such content? What right has the neighbor transferred to the farmer and why? What kind of contract should the court be guided by in the event of a dispute between counterparties?

Solution.

In this case, it was wrong to conclude a property lease agreement, so in accordance with Art. 606 of the Civil Code "Under a lease (property lease) agreement, the lessor (lessor) undertakes to provide the lessee (lessee) with property for a fee for temporary possession and use or for temporary use." Here, however, there was no paid basis (payment), and the wheat was not transferred for temporary use. After all, the bailiffs, having sowed wheat, cannot return exactly the one he borrowed from a neighbor.

In addition, the subject of an agreement under a property lease agreement can be any bodily non-consumable thing, since it does not lose its natural properties in the process of use. In this case, after sowing the grain, it will lose its properties. For the same reason, the transferred right cannot be considered a free use right.

In this case, the neighbor transferred his ownership of the grain to the farmer, and the latter must return the same amount of grain to him at the end of the harvest, that is, there is a loan. According to paragraph 1 of Art. 807 of the Civil Code, the subject of a loan agreement can be movable things that are determined by generic, and not individual characteristics, which the amount of wheat grain specified in the agreement possesses in this case11.

1. Supreme courts of republics, regional and regional courts, city courts of Moscow and St. Petersburg, courts of autonomous regions and autonomous okrugs occupy the position of middle-level courts in the system of federal (civil) courts of general jurisdiction. They are directly superior to the district courts and inferior to The Supreme Court RF.

Business contracts

In accordance with paragraph 1 of Art. 420 of the Civil Code of the Russian Federation, an agreement is an agreement between two or more persons on the establishment, change or termination of civil rights and obligations.

An entrepreneurial agreement is an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activity, the parties or one of the parties of which act as a business entity.

The peculiarities of contracts in the field of entrepreneurship are due to various factors: the goals of their conclusion, a certain composition of the parties, compensatory nature, etc.

In general, the following applies to business contracts General requirements on the conclusion, amendment and termination of contracts provided for in the norms of civil law.

The procedure for concluding a business agreement traditionally includes three stages:

2) acceptance of the offer by the other party;

3) receipt of acceptance by the party that sent the offer. 1 1 V.T. Batychko, "Business Law, Lecture Notes", 2011

Types of business contracts

Most common contracts

In most cases, entrepreneurs distinguish the following types of contracts:

Memorandum of Association - an agreement between the founders (participants) on the creation of a legal entity. 2 2 Big Encyclopedic Dictionary, 2000

A purchase and sale agreement is one of the most common types of agreement, according to which one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the buyer), and the buyer undertakes to accept this product and pay a certain sum of money(price). The sale and purchase agreement is one of the bilateral paid contracts, the subject of which is things (property). According to Art. 454 of the Civil Code of the Russian Federation, the subject of a sale and purchase agreement may also be property rights, unless otherwise follows from the content or nature of these rights. The Civil Code of the Russian Federation provides for the specifics of the legal regime of a sale and purchase agreement for sale by installments, on credit, using machines, retail trade, sales by samples, purchase and sale of certain types of property. 1 1 Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev, "Big Law Dictionary", 2003

A lease (property lease) agreement is a civil law agreement, according to which the lessor (landlord) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use (Article 606 of the Civil Code of the Russian Federation). A lease is also called a property lease. 2 2 "Big Law Dictionary", Akademik.ru, 2010

A work contract is an agreement under which "one party (contractor) undertakes to perform a certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it" (part 1 of article 702 of the Civil Code of the Russian Federation) ... A work contract is concluded for the manufacture or processing (processing) of a thing or for the performance of other work with the transfer of its result to the customer. Under a work contract concluded for the manufacture of a thing, the contractor transfers the rights to it to the customer. Unless otherwise provided in the work contract, the work is performed by the contractor's dependency - from his materials, by his forces and means. 3 3 Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev, "Big Law Dictionary", 2003

Cooperation Agreement - signed in 1970 in Washington. To date, 89 states have joined it. It provides for the possibility of drafting and filing with the national patent office a so-called “international application” in cases where the applicant wishes to ensure the protection of industrial property in several countries. One of these “receiving” national patent offices is Rospatent. International applications are published by WIPO 18 months from the priority date. 4 4 "Legal Dictionary of Patent and Licensing Operations", 1998

According to paragraph 2 of Art. 1395 of the Civil Code of the Russian Federation, patenting in accordance with the Patent Cooperation Treaty or the Eurasian Patent Convention of an invention or utility model created in the Russian Federation is allowed without prior submission of a corresponding application to federal body executive power for intellectual property, if the application in accordance with the Patent Cooperation Treaty (international application) is filed with the federal executive body for intellectual property as the receiving office and the Russian Federation is indicated in it as the state in which the applicant intends to obtain a patent, and the Eurasian application was filed through the federal executive body for intellectual property.

Agreement on the creation of a consortium - an agreement on the temporary association (agreement) of independent entrepreneurial structures for the joint placement of orders, carrying out production, credit and financial and marketing operations large scale, implementation of global projects in industrial construction, coordination of all business activities to obtain profitable orders and their joint execution. Drawn up by a consortium agreement.

Deed of assignment - an agreement under which one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal). The rights and obligations under a transaction made by an attorney arise directly from the principal (clause 1 of article 971 of the Civil Code of the Russian Federation). The principal is obliged to pay the attorney remuneration if this is provided by law, other legal acts or the contract of agency. In cases where the contract of order is associated with the implementation by both parties or one of them of entrepreneurial activity, the principal is obliged to pay the attorney remuneration, unless the contract provides otherwise. The attorney is obliged to carry out the assignment given to him in accordance with the instructions of the principal, which must be lawful, feasible and specific. The attorney has the right to deviate from the instructions of the principal if, according to the circumstances of the case, this is necessary in the interests of the principal and the attorney could not first request him or did not receive a response to his request within a reasonable time. The attorney is obliged to notify the principal about the deviations made as soon as notification becomes possible. 1 1 Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukharev, "Big Law Dictionary", 2003

Commission agreement - a civil contract, in accordance with which one party (commission agent) undertakes, on behalf of the other party (principal), for a fee, to make one or several transactions on its own behalf, but at the expense of the principal (clause 1 of article 990 of the Civil Code RF). Under a transaction made by a commission agent with a third party, the commission agent acquires the rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party to execute the transaction. The commission agreement can be concluded for a certain period or without specifying its validity period, with or without specifying the territory of its execution, with the commitment of the committent not to grant third parties the right to make transactions in his interests and at his expense, the execution of which is entrusted to the commission agent, or without such obligations, with or without conditions, regarding the range of goods that are the subject of the commission. The law and other legal acts may provide for the specifics of certain types of the commission agreement. 2 2 "Big Law Dictionary", Akademik.ru, 2010

Agency agreement - in accordance with clause 1. Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes for a fee to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.

Under a transaction made by an agent with a third party on his own behalf and at the expense of the principal, the agent acquires the rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party to execute the transaction.

In a transaction made by an agent with a third party on behalf of and at the expense of the principal, the rights and obligations arise directly from the principal.

Franchise agreement. Franchise is a license issued to a manufacturer, distributor, trader, etc., which allows them to produce or sell a specific product or service in a specific region for a specified period. The franchisee usually pays the franchisor a royalty through sales, often in the form of a lump sum upfront payment against future earnings. The licensee may also provide the recipient with financial and technical documentation... 1 1 “Business. Explanatory dictionary"Ed. Osadchey I.M., 1998

Factoring agreement - an agreement under which one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the client's (creditor's) monetary claim against a third party (debtor) arising from the client's provision of goods, performance of work or rendering services to a third party, and the client concedes or undertakes to cede this monetary claim to the financial agent (Article 824 of the Civil Code of the Russian Federation). In addition, the monetary claim against the debtor may be assigned by the client to the financial agent in order to secure the fulfillment of another, already existing obligation of the client to the financial agent. 2 2 "Lawyer's Encyclopedia", 2005

Storage agreement - an agreement under which one party (custodian) undertakes to keep a thing transferred to it by the other party (depositor) and return this thing in safety. According to Art. 886 of the Civil Code of the Russian Federation, in the storage agreement, according to which the custodian is a commercial organization or a non-commercial organization that carries out storage as one of the goals of its professional activities (professional custodian), the obligation to accept the thing within the period specified in the agreement may be provided. As a special type of storage agreement, the Civil Code of the Russian Federation distinguishes a warehouse storage agreement. Special types storage are: storage in a pawnshop, storage of valuables in a bank, storage of valuables in an individual bank safe, storage in wardrobes of organizations, in storage rooms of transport organizations, in hotels, storage of things that are the subject of a dispute (sequestration). 1 1 Ya. Sukharev, V. E. Krutskikh, A. Ya. Sukhareva, "Big Law Dictionary", 2003

The peculiarities of contracts in the field of entrepreneurship are due to various factors: the goals of their conclusion, a certain composition of the parties, compensatory nature, etc.

One of the main features of an entrepreneurial agreement is that it is for the purpose of its parties (party) carrying out entrepreneurial activities, the signs of which are contained in paragraph 3 of paragraph 1 of Article 2 of the Civil Code of the Russian Federation.

The parties (or one party) of such an agreement enter into an obligation relationship with their counterparties for the sale of goods, the use of property, the performance of work, the provision of services due to the fact that it is necessary for her (their) professional activities aimed at systematic profit, and not for the satisfaction of personal, household, etc. needs.

The presence or absence of the above purpose entails certain legal consequences for the parties to business contracts. In particular, the obligations of the parties (parties) that have entered into an agreement for the purpose of carrying out entrepreneurial activities will be subject to special legislation on obligations related to such activities (for example, on liability - clause 3 of Article 401 of the Civil Code of the Russian Federation, etc.). The obligations of a party that has entered into an agreement with an entrepreneur and does not pursue the goal of carrying out entrepreneurial activities will be subject to general rules of civil law.

The most important feature of contracts in the field of entrepreneurship is a certain composition of the parties. The parties (or one of the parties) to such agreements must be subjects of entrepreneurial activity. As noted earlier, legal entities and individual entrepreneurs acquire the status of a subject of these activities from the moment of their state registration. From that moment on, they have the right to conclude business contracts with both other entrepreneurs and with persons not related to business entities.

In certain cases, the law allows for the possibility of extending the norms on contractual obligations in the field of entrepreneurship to a party to the contract that is not registered as an entrepreneur. Thus, a citizen carrying out entrepreneurial activity without state registration does not have the right to refer to the transactions concluded by him that he is not an entrepreneur. The court may apply to such transactions the rules on obligations related to the implementation of entrepreneurial activity (clause 4 of article 23 of the Civil Code of the Russian Federation).

Agreements between business entities that are commercial legal entities ( business companies and partnerships, production cooperatives, state and municipal unitary enterprises) are assumed to be entrepreneurial, since these persons pursue profit-making as the main goal of their activities (clause 1 of article 50 of the Civil Code of the Russian Federation).

In a number of cases, the law contains a direct indication that only business entities in certain organizational and legal forms can be parties to certain contracts. So, in accordance with clause 3 of article 1027 of the Civil Code of the Russian Federation, the parties to a commercial concession agreement can be commercial organizations and citizens registered as individual entrepreneurs. A similar rule is provided for in the norm of clause 2 of article 1041 of the Civil Code of the Russian Federation, according to which the parties to the agreement on joint activities, concluded for the implementation of entrepreneurial activity, can only be individual entrepreneurs and (or) commercial organizations. Thus, non-profit organizations do not have the right to conclude these agreements at all.

An illustrative example in this case is an example from arbitration practice. The joint-stock company filed a claim with the Arbitration Court against the research institute to invalidate the agreement on joint activities for the construction and operation of a paid parking lot, which should be further used for entrepreneurial activities.

The arbitration court satisfied the claim, stating that the fact that a non-profit organization has the right to carry out entrepreneurial activities in the cases specified in clause 3 of article 50 of the Civil Code of the Russian Federation does not change the nature of such an organization as a non-profit organization. Therefore, by virtue of the direct indication of the law, institutions as non-profit organizations cannot be parties to an agreement on joint activities concluded for the implementation of entrepreneurial activities (clause 2 of article 1041 of the Civil Code of the Russian Federation).

As for other contracts concluded with the participation non-profit organizations, then their classification as entrepreneurial depends on the goal pursued by these persons, acting as a party to the relevant agreements. As noted earlier, if contracts are concluded for the purpose of carrying out entrepreneurial activity, such contracts should be classified as entrepreneurial.

Business contracts are of a reimbursable nature: a party to such an agreement must receive a payment or other reciprocal provision for the performance of its duties (clause 1 of article 423 of the Civil Code of the Russian Federation). This feature is due to the purpose of entrepreneurial activity - the focus on making a profit.

Russian legislation contains a fundamental ban on the conclusion of gratuitous contracts between business entities. In particular, donation is not allowed in relations between commercial organizations (clause 4 of article 575 of the Civil Code of the Russian Federation). This prohibition also applies to individual entrepreneurs, since, as a general rule, they are subject to the norms of the Civil Code that regulate the activities of legal entities that are commercial organizations (clause 3 of article 23 of the Civil Code of the Russian Federation).

It should be noted, however, that the rule on the retribution of business contracts is not always consistently applied in practice, which in a number of cases is facilitated by the ambiguous position of the legislator. For example, in accordance with paragraph 2 of clause 1 of Article 972 of the Civil Code of the Russian Federation, in cases where the contract of order is associated with the implementation of entrepreneurial activities by both parties or one of them, the principal is obliged to pay the attorney remuneration, unless the contract provides otherwise. It turns out that entrepreneurs, by their agreement, have the right to provide for a condition on the gratuitousness of an entrepreneurial contract of order.

In reality, a number of gratuitous contracts are concluded between entrepreneurs: an interest-free loan, gratuitous use, agreements on debt forgiveness (with reference to the principle of freedom of contract). The law provides for a ban only on the transfer of property by a commercial organization for gratuitous use to a person who is its founder, participant, head, member of its management or control bodies (clause 2 of article 690 of the Civil Code of the Russian Federation). In other cases, the special rule of clause 2 of Article 690 of the Civil Code of the Russian Federation does not prohibit the conclusion of agreements for gratuitous use between business entities.

In our opinion, taking into account the fundamental prohibition of donation between commercial organizations (clause 4 of article 575 of the Civil Code of the Russian Federation), business entities are not entitled to conclude agreements between themselves for an interest-free loan, gratuitous use, debt forgiveness, gratuitous commission, etc. This position should be consistently adhered to by law enforcement authorities.

Undoubtedly, the rule on the retribution of business contracts, contained in the norms of paragraph 4 of article 575, article 972 of the Civil Code of the Russian Federation, provides for the necessary restriction of the freedom of contract in order to prevent entrepreneurs from acquiring illegal advantages in their activities (avoiding taxation through gratuitous contracts and etc.).

The combination of maximum freedom and increased requirements for entrepreneurs in contractual obligations - characteristic feature business contracts. The principle of freedom of contract, expressed in the possibility of free concluding a contract, choosing its type, nature, counterparties, wide discretion in determining its conditions (Article 421 of the Civil Code of the Russian Federation), is most typical for business contracts. This principle opens up great opportunities for the development of entrepreneurial turnover.

Russian legislation contains norms that provide business entities with maximum freedom in agreeing on the terms of business contracts (dispositive norms). So, a unilateral refusal to fulfill an obligation related to the implementation by its parties of entrepreneurial activity, and a unilateral change in the conditions of such an obligation are allowed in cases where stipulated by the agreement, unless otherwise follows from the law or the essence of the obligation (Article 310 of the Civil Code of the Russian Federation). For persons who are not entrepreneurs, this provision does not provide for the possibility of establishing in the contract a condition on unilateral refusal to fulfill an obligation.

At the same time, the law establishes a number of increased ("strict") requirements for entrepreneurs who are parties (party) to the relevant agreements. This is due to various factors: the imposition of the risk of negative consequences from entrepreneurial activity on the entrepreneur himself, his economically stronger position in comparison with the citizen-consumer, the dominant (monopoly) position of the entrepreneur in the market, etc.

Some of these "stringent" requirements are associated with the necessary restriction of the above-mentioned freedom of contract in the field of entrepreneurship. It consists, in particular, in the obligation of the party to conclude an agreement on a mandatory basis or with certain counterparties, etc.

Restriction of the freedom of contract is allowed in cases where the obligation to conclude it is provided for by law or a voluntarily accepted obligation. So, in case of unjustified evasion of a commercial organization from the conclusion public contract the other party has the right to fraternize in court with the requirement to compel to conclude an agreement (clause 3 of article 426 of the Civil Code of the Russian Federation).

A public contract is a contract concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to everyone who turns to it ( retail, transportation by transport common use, communication services, energy supply, medical, hotel services, etc.) (clause 1 of article 426 of the Civil Code of the Russian Federation).

The obligation of a business entity to conclude an agreement is provided for by other laws. So, business entities (suppliers, contractors) that occupy a dominant position in the market for a certain product are prohibited from refusing to conclude an agreement with consumers (buyers, customers) if there is a possibility of production or supply of this product(Article 5 of the Law on Competition in Commodity Markets). A similar rule also applies to the conclusion of state contracts for the supply for federal state needs, for the supply material values v state reserve, as well as for the acceptance of defense orders (paragraph 2 of article 5 of the Law on the supply of products for federal state needs, paragraph 4 of article 9 of the Law on the State Material Reserve, paragraph 4 of Article 3 of the Law on the State Defense Order).

An example of a combination of increased requirements for an entrepreneur and his maximum freedom is the rule on increased responsibility for non-fulfillment of obligations in the implementation of entrepreneurial activities. General rule states that a person who has not properly fulfilled his obligation in the course of entrepreneurial activity is liable even in the absence of his fault, unless such a violation was the result of force majeure circumstances (see clause 3 of article 401 of the Civil Code of the Russian Federation). At the same time, business entities are given the opportunity to establish in the contract a condition on the responsibility of the entrepreneur only if there is his fault. The condition of guilt can also be provided for by law (Article 538 of the Civil Code of the Russian Federation).

A feature of business contracts is that disputes related to their conclusion, amendment, termination and execution are generally considered in a special order (arbitration or arbitration courts). Most of the disputes arising from business contracts are economic disputes that are resolved by arbitration courts in accordance with the Arbitration Procedure Code of the Russian Federation (Articles 27-28). As a rule, these are disputes about disagreements under the agreement, about changing conditions or about termination of the agreement, or about non-fulfillment or improper fulfillment of obligations, etc.

The parties to business contracts, one of which is a foreign business entity or an enterprise with foreign investments, have the right to provide in the contract a condition for the consideration of their disputes in the International Commercial Arbitration Court at the Russian Chamber of Commerce and Industry - a permanent arbitration court. There are also other arbitration courts that resolve disputes arising from business contracts.

Taking into account the specified features that characterize the entrepreneurial contract, it is possible to give its general definition.

An agreement in the field of entrepreneurial activity (entrepreneurial agreement) is an agreement concluded on a reimbursable basis for the purpose of carrying out entrepreneurial activity, the parties (or one of the parties) of which act as subjects of entrepreneurship.