Contract Law in Russia

by Maria Yefremova, Svetlana Yakovleva, Jane Henderson

Overview

The book explains Russian contract law in a form understandable to lawyers qualified in other countries, especially common law countries. The introduction gives a concise overview of the Russian legal system in general and contract law in particular as well as a brief insight into the history of contract law in Russia. Then the main concepts of Russian contract law are explained, using the conceptual framework of English contract law to make them accessible to someone not familiar with the codified Russian system.The book not only considers the legislation regulating Russian contractual relations but also includes appropriate case law to show how the legislation is interpreted. The focus is on contract law in Russia as it actually operates, rather than merely the legislative texts, so that it will be directly relevant to legal practitioners and others who wish to acquire knowledge of the practical application of an important element of the Russian legal system, as well as those seeking an insight into the realities of codified law in action. The target readership therefore includes legal practitioners who have to deal with Russian law, academics and students with an interest in Russian law, the law of contract and comparative civil law, as well as scholars of comparative legal systems and Russian area studies.

Product Details

ISBN-13:	9781849462990
Publisher:	Bloomsbury Academic
Publication date:	05/22/2014
Pages:	326
Product dimensions:	6.14(w) x 9.21(h) x 0.69(d)

About the Author

Maria Yefremova graduated cum laude from the Faculty of Law at the State University - Higher School of Economics in Moscow and is qualified to practise law in the Russian Federation. She also holds an LLM degree in Public International and European Union Law from the University of Amsterdam. Prior to establishing a legal practice with Svetlana Yakovleva, Maria worked for the Moscow office of White & Case LLC. Maria is currently Corporate Legal Counsel at Level 3 Communications.
Svetlana Yakovleva graduated cum laude from the Faculty of Law at the State University - Higher School of Economics in Moscow and is qualified to practise law in the Russian Federation. She holds an LLM degree in Law and Economics from the Erasmus University, Rotterdam and the University of Hamburg (EMLE). Svetlana worked for the Moscow office of Debevoise & Plimpton LLP, then established and ran a legal practice with Maria Yefremova. She now holds the position of Legal and Compliance Officer at Allianz Global Assistance Russia.
Jane Henderson is Senior Lecturer in Law at the Dickson Poon School of Law, King's College London, a member of King's Russia Institute and an Adjunct Professor at the University of Notre Dame (USA) in England.

Table of Contents

Table of Legislation xi

Table of Informational Circulars xix

Table of Plenum Resolutions xxi

Introduction 1

A Note about Language 2

1 Useful Information 4

I Introduction 4

II A history of Russian contract law 4

A Prerevolutionary law 4

B 1922: First Soviet Civil Code 5

C Era of state planning 7

D Post-Stalin Fundamental Principles and the 1964 Russian (RSFSR) Civil Code 8

E Perestroika (&CyrO;&CyrxEe;&CyrxFat;&CyrxEe;&CyrxFa;&CyrR;&CyrxFat;&CyrxEn;&CyrI;&CyrJ;&CyrxEat;) 11

F Russia's current Civil Code 14

G Reform of civil law in the twenty-first century 15

III The Russian State and its agencies 16

A Russia's federal structure 16

B Relevant state agencies 17

IV The Russian court system 20

A General overview 20

B Structure of the courts of general jurisdiction 21

C Structure of the commercial courts 22

D Federal Constitutional Court 22

E Arbitration tribunals (&CyrR;&CyrP;&CyrxEe; &CyrR;&CyrxEe;&CyrI;&CyrxFa;&CyrxEj;&CyrI;&CyrxEe; &CyrxFa;&CyrxFc;&CyrxEd;&CyrxFl;&Cyrg; treteiskie sudy) 23

V Sources of law 23

A Sources of law 23

B Sources in relation to contract law 30

C Sources of legal information 34

D Role of international law 34

E Recognition and enforcement of foreign judgments and arbitral awards 35

VI The legal profession 36

A Legal education 36

B Advokatura (the 'Bar') 36

C Thenotariat 38

D The judiciary 40

VII Principles of contract law 42

A Duality: commercial law versus civil law 42

B Freedom of contract 43

C Actual performance 44

D Compensational nature and equivalence 45

E Good faith 46

VIII Conclusion 49

2 The Terms of a Contract 50

I Introduction 50

II Terms versus representations 50

III Terms: express and implied 53

A Distinction between express and implied terms 53

B Types of contract 55

IV Material terms 60

A Definition of material terms 60

B Subject matter as a material term 60

C Terms mentioned in the Code or other legislation as material for the particular type of contract 62

D Terms defined as material by the parties to the contract 65

V Incorporation of terms 66

VI Interpretation of contract terms 68

A Rule 1: literal meaning 68

B Rule 2: parties' intention 69

C Rules from court practice 70

VII Unfair contract terms 72

A Controls on contracts of adhesion 72

B Protection of consumer rights 73

C Public contract (&CyrO;&CyrxFc;&CyrxEa;&CyrxEK;&CyrxEh;&CyrsFg;&CyrM;&cyrbs;&Cyrg;&CyrxEi; &CyrD;&CyrN;&CyrC;&CyrN;&cyrB;&CyrN;&CyrP; publichnyi dogovor) 74

VIII Conclusion 75

3 Requirements of Form 76

I Introduction 76

II Types of forms of contract 76

A Oral contracts 76

B Written contracts 77

III Consequences of non-compliance with the required form of contract 81

A Prohibition against witness testimony 81

B Non-conclusion of the contract 82

C Invalidity of the contract 84

IV Conclusion 85

4 Formation of Contracts 86

I Introduction 86

II Requirements for conclusion of a contract 86

III Formation of a contract: offer and acceptance 87

A Offer 88

B Acceptance 95

IV Formation of a contract: single written document signed by both parties 100

V formation of a contract: special cases 102

VI Moment of conclusion of the contract 103

A Real contracts 103

B Consensual contracts 104

C Special cases 105

D Preliminary contract: binding 'agreement to agree' 105

E Conclusion of a contract compared to entry into force of a contract 106

VII Conclusion 107

5 Consideration 108

I Introduction 108

II Counter-performance 108

A Definition of counter-performance 108

B Function of counter-performance 109

C Main characteristics of counter-performance 111

III Counter-giving for performance 116

A Understanding the concept of counter-giving for performance 116

B Counter-giving for performance compared to consideration: requirements of sufficiency and adequacy 119

C Adequacy of counter-giving as an issue in Russian commercial courts 120

D Counter-giving in forgiveness of debt (&CyrO;&CyrP;&CyrN;&CyrY;&CyrxEe;&CyrxEm;&CyrxEh; &CyrxEe; &CyrD;&CyrN;&CyrK;&CyrR;&CyrxEat; proshchenie dolga) 123

IV Conclusion 125

6 Factors Tending to Defeat Contractual Liability 126

I Introduction 126

II Invalidity of contracts 127

A Invalidity of contracts under Russian contract law 127

B Grounds of invalidity: void contracts 136

C Grounds for invalidity: contested contracts 143

III Contracts being not concluded 156

A Performance of a 'not concluded' contract as unfounded enrichment 157

IV Conclusion 160

7 Third Parties to the Contract 161

I Introduction 161

II Burdening the third party 162

III Defining a contract for the benefit of a third party 163

IV Variation and cancellation of contracts for the benefit of third parties 167

V Rights of the promisee 168

VI Defences available to the promisor 170

VII Liability in contracts for the benefit of third parties 171

VIII Conclusion 173

8 Assignment 174

I Introduction 174

II Effect of assignment 175

III Assignment as a contract 176

A Making a valid assignment 176

B Notification of the debtor 179

C Consent of the debtor 180

D Rights which are not assignable 182

E Form of assignment 184

F Documents certifying the assigned rights 184

G Objections to the demand of the new creditor 185

H Liability of the original creditor 186

IV Assignment by operation of law 188

A Universal legal succession 188

B Transfer of rights by a court decision 190

C Performance of the debtor's obligation by his surety or by a pledgor other than the debtor 191

D Subrogation 191

V Conclusion 192

9 Performance 193

I Introduction 193

II Proper performance 193

A Definition of performance 194

B Understanding proper performance 194

III Methods of ensuring performance 212

IV Alternative obligations 214

V Entire and severable obligations 216

VI Partial performance 218

VII Right to cure bad or incomplete performance 218

A Loss of interest in performance 219

B Explicit right of the promisee to refuse to accept bad or incomplete performance 220

C Termination of contract due to material breach 220

VIII Conclusion 220

10 Remedies for Breach of Contract 222

I Introduction 222

II Damages 223

A Conditions for recovering damages 224

B Types of damages claimed 233

C Limitation of damages 241

III Penalty (&CyrxEm;&CyrxEe;&CyrxFc;&CyrxFa; &CyrxFb; &CyrxEn; &CyrxEi; &CyrxEj;&CyrxEat; neustoika) 243

A Neustoika and the concept of liquidated damages 244

B Nature of neustoika: compensatory or punitive? 245

C Types of neustoika 249

D Conditions for recovering neustoika 250

IV Required performance 251

A General provisions 251

B Contracts to transfer an individually-specified thing 254

C Required performance as remedy for breach of contracts for works and services 256

V Specific remedies for breach of particular types of contracts 258

VI Restitutionary awards 260

A Restitutionary awards in case of termination of contract 260

B Restitutionary awards as specific remedies for breaches of particular types of contracts 262

C Recompense for goods or services 263

VII Conclusion 264

11 Discharge of the Contract 266

I Introduction 266

II General rules on discharge 266

III Discharge by agreement 268

IV Discharge of a contract by breach 269

V Discharge as a result of unilateral refusal to perform 273

A Discharge of a contract due to unilateral refusal permitted by law 274

B Unilateral refusal allowed by contract 276

VI Discharge by 'frustration' 277

A Impossibility of performance 277

B Consequences of impossibility 279

C 'Special' impossibility 280

VII Discharge of a contract as a result of material change of circumstances 283

VIII Conclusion 288

12 Conclusion 289

Index 293

Editorial Reviews

"as an introduction into the Russian contract law for a foreign lawyer the book is a success and a must-have for anyone trying to come to grips with the subject." --Russian Law Journal

"I would strongly recommend this book to anyone interested in how Russian commercial law actually works in practice." --The Russian Review

"...the book serves a very useful purpose by giving practitioners and academics who cannot read Russian the most detailed and coherent analysis of Russian contract law available in English today." --King's Law Journal, Vol 25

"This book offer an accurate overview of contract law in Russia, analysed from a British perspective." --Rivista Trimestrale del diritto pubblico

From the Publisher