Some problems of correlation of the categories "contract modification" and "contract termination" with related categories of civil law

Chizhov Aleksandr Vladimirovich Graduate Student, Department of Civil Law and Process, Far Eastern Federal University 690922, Russia, Primorsky Krai, Vladivostok, the village of Ayask, 10 alexst7t@gmail.com

The development of the institution of civil law contracts has a serious impact on the formation of models of interaction between participants in civil law relations. Civil law contracts are the main tools that are used to consolidate the rights and obligations of participants in legal relations.

The "termination" or "termination" of civil law contracts is the final stage in the dynamics of contractual obligations and at the same time complex factual compositions. The accumulative elements of these compositions are the transforming economic, social and other interests of the participants in legal relations, as well as various violations of the fulfillment of obligations on the part of one or both parties to the contract.

At the conclusion of the contract, the parties have the right to establish the conditions themselves, defining their rights and establishing obligations under the contract ^[1]. In pursuance of these provisions, the parties to civil law contracts on the basis of the principle of dispositivity also have the opportunity to choose a way to protect their rights and interests according to the most acceptable conditions for them in a particular situation, which will generate legal facts.

Legal facts are legally established circumstances that have become the basis for the emergence, modification or termination of legal relations ^[2]. They are legitimate actions with a pronounced volitional component, unilateral, for example, when refusing execution or when filing claims, or bilateral – with the agreement of the parties. The purpose of these actions is to terminate contractual obligations.

Legal facts can lead to the termination of obligations in a simple or complex obligation and, accordingly, to the termination or modification of a civil contract. The consequences of such actions on contractual legal relations are carried out automatically and lead to their change or termination.

As one of the definitions of "modification" and "termination" of the contract, K.E. Chistyakov means that modification and termination of the contract are special ways of changing and terminating unfulfilled obligations of one or both parties. They are carried out as a result of purposeful changes in the terms of the agreement or termination of its validity. These methods of changing and terminating obligations are special grounds for the occurrence of an obligation.

When changing the contract, the parties establish new conditions related to a change in circumstances that could not have been predicted at the conclusion of the contract. The "termination" of the contract leads to the termination of the legal obligations of the parties before the expiration of the period of performance of obligations under the contract.

It is important to emphasize that the amendment or termination of the contract is the right of both parties and is possible only with their mutual consent. Violation of this principle in the field of contractual relations contradicts the regulatory framework ^[3].

The lack of mutual agreement on the issues of amendment or termination can lead to negative consequences for the subjects of a civil contract, including legal and financial costs. Based on this, in order to carry out the procedure of "modification" and "termination" of the contract, it is necessary to ensure the consent of both parties, which is a fundamental prerequisite for ensuring legal reliability, as well as protecting the interests of all parties to contractual relations.

Based on the previously mentioned definition, it can be concluded that the modification and termination of the contract are certain ways of completing obligations that can be applied only in cases where this is provided for by the terms of the contract or legislation.

S.A. Somenkov, in turn, designates the process of "termination" of the contract as an act aimed at terminating for the future the partially or completely unfulfilled contract and thereby the obligations arising from it ^[4].

Within the framework of this theoretical concept, it can be noted that the author considers only the problems of obligations that arose in the process of contractual legal relations and are subject to termination in the future. At the same time, this theory mostly considers "modification" and "termination of the contract" from the point of view of retrospect and does not cover issues related to the possibility and nature of other obligations that may arise after the conclusion of a newly created termination agreement between the parties to the contractual process. Therefore, in the context of this concept, a preliminary study of scientific and practical data on issues related to new opportunities in the field of obligations that may arise during the conclusion of a new agreement by the participants in the contractual process is of particular importance.

The concept of the existence of the legal nature of obligations related and newly formed in connection with the termination of the contract also takes place in judicial practice. Paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 06.06.2014 No. 35 "On the consequences of termination of the contract" established that in the framework of court proceedings related to the termination of contracts, the courts must take into account that in accordance with paragraph 2 of Article 453 of the Civil Code of the Russian Federation, upon termination of the contract, the debtor's obligation to perform actions that are the subject of the contract, for example, delivery goods, performance of works, and disbursement of funds under the loan agreement are terminated. Thus, the penalty established in case of non-fulfillment or improper fulfillment of this obligation must be accrued before the date of termination of the obligation, that is, before the date of termination of the contract.

It is worth noting that the terms of contractual relations, which by their nature imply actions after termination of the contract, such as warranty obligations for commercial products or work results, judicial dispute resolution procedures, applicable law, as well as conditions aimed at regulating the relationship of the parties after termination of the contract, including the conditions for the return of rent or advance payment, retain its legal force after the termination of the contract, unless otherwise specified in the agreement between the parties to the contractual process ^[5]. In this regard, law enforcement agencies need to pay special attention to the analysis of the content of the contract in order to identify all such conditions that are subject to application even after termination of the contract.

Thus, based on the concepts of the scientific community, it can be concluded that "modification" and "termination of the contract""is an act concluded between the parties to contractual relations based on the principle of dispositivity, aimed at early modification or termination of subjective rights and legal obligations in the future, as well as serving as the basis for the emergence of new rights and obligations obligations in connection with the "modification" and "termination" itself, which are not provided for in the previously existing contractual structure.

Despite the existence of certainty in the legislative framework regarding the concepts considered in this study, when the parties to civil law distinguish the categories of modification and termination of a contract from related categories of civil law, some problematic aspects may arise.

Within the framework of this study, it can be noted that "conclusion of an additional agreement" and "amendment of the contract" are different legal concepts that need to be distinguished from each other in civil law.

An additional agreement assumes that the parties to the agreement conclude a new agreement that supplements or modifies the terms of another existing agreement, while changing the agreement means modifying existing terms of the agreement that cannot be fulfilled in the existing format.

Similar theses about the difference between the supplementary agreement and the amendment of the contract are confirmed in law enforcement practice. For example, by the Ruling of the Supreme Court of the Russian Federation dated 01/25/2021 No. 305-ES20-22336 in case No. A40-112440/2019, the applicant was denied a cassation review of judicial acts in the case of recognition of the contract terminated, the obligation to conclude a new contract due to the fact that the lower courts came to the legitimate conclusion that the draft the offer submitted by the plaintiff does not imply the conclusion of any new agreement for the parties, but in fact is aimed at changing (revising) only certain terms of an existing agreement, meanwhile neither the law nor the agreement between the parties provides for mandatory modification of the terms of an existing agreement at the request of the plaintiff.

An additional agreement may contain new terms and changes that may be aimed at supplementing or changing certain provisions of the agreement, and "changing the agreement" may affect its general meaning and often leads to its termination if the parties have not reached an agreement on changes to the terms.

The process of termination of the contract arises on the initiative of one of the parties and entails the termination of all obligations. To date, Russian legal science and legal practice know the following grounds for termination of the contract: expiration of its validity period; loss of legal capacity of one of the subjects of legal relations; achievement by the parties of the goals set in the contract; inability by the parties to fulfill their obligations; termination unilaterally (including by applying to the court) or by agreement of the parties.

Termination of the contract by agreement of the parties is a special procedure involving the mutual expression of the will of the subjects of the legal relations regulated by the contract, and is inevitably accompanied by the signing of an additional agreement ^[6].

The voluntary expression of the will of the participants in civil law relations regulated by the contract may be expressed, inter alia, through the commission of conclusive actions.

In accordance with paragraph 5 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 05.05.1997 No. 14 "Review of the practice of dispute resolution related to the conclusion, modification and termination of contracts", the commission of conclusive actions can be considered, under certain conditions, as consent to amend the contract concluded in writing.

As follows from paragraph 3 of Article 438 of the Civil Code, the commission by the person who received the offer, within the time limit set for its acceptance, of actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of works, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or not specified in the offer.

If there are no grounds for non-recognition of the actions of the party to the civil law relationship by acceptance, objections to changes to the contract proposed by the opposite party have not been stated, these actions may be regarded as his consent to make changes to the civil law contract.

The difference between "modification of the contract" and "conclusion of an additional agreement" also lies in the fact that the former refers to the modification and modification of existing terms of the contract, while the latter refers to the conclusion of a new contract intended to supplement or change the terms of an existing contract.

In addition, the supplementary agreement retains its legal force until the conclusion of a new agreement or a change in the terms of an existing agreement, whereas the "amendment of the agreement" begins to take effect immediately after the consent of the parties and the relevant changes to the existing agreement.

It should be borne in mind that the "termination" of the contract and the "termination" have the same consequences – the termination of obligations. At the same time, "termination of the contract" can be considered as a type of termination of the contract along with termination due to full fulfillment of obligations.

Upon termination of the contract on the initiative of one of the parties, if the other party has not fulfilled its obligations or performed them improperly, the right to compensation for losses related to the fulfillment of obligations arises. This right is granted to the second party, which is forced to incur additional costs or losses due to non-fulfillment of obligations under the contract ^[7].

The legality of the possibility of collecting damages is reflected, for example, in the Ruling of the Supreme Court of the Russian Federation dated 03/20/2023 No. 306-ES23-1483 in case No. A55-33746/2021, in which the supervisory authority indicated that the basis for collecting damages in case of early termination of the contract by the counterparty is the proof of the fact that the party violated the terms of the contract upon its early termination, and also, the validity of the amount of such losses.

Based on the above, in case of early termination of civil contracts, there is a possibility of reimbursement of expenses from the party to the contract that has not fulfilled its obligations or performed them improperly. At the same time, it should be noted that "termination" is only one of the ways to end civil law contracts, and other methods are provided, such as termination of the contract in cases determined by law, or fulfillment of obligations by the parties in full.

"Termination of the contract", on the other hand, is an active process that requires joint action by the parties. Compared to termination after the expiration of time, termination requires additional actions and expressions of will from the parties.

In addition to the above, the concept of "invalidity" and the concept of "termination of the contract" should be distinguished. The main difference is that the "invalidity of the contract" is related to the illegality of the transaction, that is, its non-compliance with any legal requirements, whereas the "termination of the contract" occurs due to various circumstances requiring termination of the contract, despite its legality.

"Invalidity of the contract" can occur if the transaction does not comply with legal requirements – it was committed with the purpose of deception, threat or violence and may be declared invalid ^[8]. "Termination of the contract", on the contrary, can be caused by various circumstances that may be related to the absence or improper fulfillment of obligations under the contract. In particular, if one of the parties has not fulfilled its obligations under the agreement, this may serve as a basis for termination.

Thus, "invalidity" and "termination" are different concepts with different grounds. In particular, their differentiation is due to the fact that "invalidity" refers to the illegality of the transaction, and "termination" refers to the occurrence of circumstances requiring termination of the contract.

When considering the categories of "termination of the contract" and "refusal to perform the contract", it is also necessary to distinguish these concepts. Article 452 of the Civil Code of the Russian Federation provides for the possibility of termination of the contract as an exceptional measure in the civil law field, which actually means the impossibility of fulfilling contractual obligations in the event, for example, of a significant violation of the terms of the contract by one of the parties. In turn, the refusal to perform the contract does not always imply a violation of the terms of the contract by one of the parties, but may be related to other social and economic interests of the parties.

The difference between these concepts is even seen in the order of use of the method of termination of the contract. "Termination of the contract" is carried out through a judicial procedure at the request of the interested party, and "refusal to perform the contract" is carried out only at the request of one of the parties to the contract ^[9]. The procedures under consideration differ in the moment of putting into effect the consequences provided for by law. As part of the termination procedure, a warning is sent to the counterparty before sending a statement of claim to the judicial authorities by the interested party. In case of "refusal to perform the contract", on the contrary, from the moment of notification of the counterparty, in accordance with the provisions of Article 450.1 of the Civil Code of the Russian Federation.

In addition to the above, according to the position reflected in the Ruling of the Supreme Arbitration Court of the Russian Federation dated 05/13/2010 No. VAC-5792/10, claims for amendment or termination of the contract can only be made with respect to an existing contract, that is, an agreement that has expired cannot be terminated or amended on the basis of a court decision.

Based on the above, it can be concluded that the implementation of minimizing the problematic aspects of the relationship between the categories of "contract modification" and "contract termination" with related categories of civil law, which are concluded, for example, in contrast to the grounds for termination of the contract and the invalidity of the contract, the legal consequences of contract modification, conclusion of an additional agreement, termination of the contract at the end of the term actions and refusal to execute the contract are possible, first of all, due to the direct participation of the legislator in solving this problem by issuing acts of official interpretation, in particular the resolution of the plenum of the Supreme Court of the Russian Federation.

The theoretical basis on the chosen topic has not been deeply studied by legal theorists, the analysis of scientific works allows us to conclude that the authors do not address the issue of termination of the contract due to circumstances beyond the control of the participants in legal relations, which was especially pronounced during the coronavirus pandemic, and is a fairly common legal phenomenon in modern foreign policy conditions.

In this regard, it is proposed not only to distinguish at the legislative level the concepts of "termination" and "termination" of a contract already known to legal science, but also to add definitions to the theory of Russian law that qualify the most common methods of "termination" and "termination of contracts" at this stage of development, including through borrowing from a wide range of foreign experience.

The proposed set of measures will make it possible to fill the existing gap and unify the legal approach of law enforcement officers to classify such categories, and, last but not least, form the basis of a powerful tool for protecting the rights of participants in civil relations, legitimate and fair Russian justice.