Secondly, the rights and obligations of the parties to the contract are determined by its terms.

In the current legislation (Articles 10 and 11 of the Commercial Procedural Code of Ukraine), case law and literature, the terms "commercial contract" or "commercial contract" are used.

Of course, in modern conditions, some of these features of the economic contract need clarification. In particular, the subjects of economic agreements may be not only legal entities (organizations), but also citizens who carry out business activities in the prescribed manner; contracts with the participation of these persons are mostly unplanned.

In the draft of the Central Committee of Ukraine the category of so-called consumer contracts is represented, in particular, by the concept of "public contract" (Article 665). Public is a contract in which one of the parties is an entrepreneur who has undertaken to sell goods, perform work or provide services to anyone who applies to him (retail, public transport, communication services, medical, hotel, banking services, etc.) … An entrepreneur should not give preference to one person over another in concluding a public contract, except as provided by law or other regulations. The entrepreneur’s refusal to enter into a public contract if he has the opportunity to provide the consumer with relevant goods, works or services is not allowed, and unreasonable evasion of the public contract may entail the obligation to compensate the consumer for such evasion.

As noted in the comments to the Principles of International Commercial Contracts, the criteria used at the national and international levels also vary widely in distinguishing between consumer and non-consumer contracts. There is no definition in the Principles, but it is assumed that the concept of "commercial contracts" should be understood as broadly as possible to include not only business agreements for the supply or exchange of goods or services, but also other types of economic agreements , such as investment or concession agreements, contracts for the provision of professional services, etc.

In the previous draft (preliminary draft) of the Commercial (Commercial) Code of Ukraine of 1994 (Article 49 of Chapter 22) the economic contract as the basis of the economic-contractual obligation is defined as a business agreement between business entities on the distribution of corresponding economic rights and obligations necessary to achieve the objectives and the conditions to be observed by the parties in fulfilling their mutually agreed obligations. This definition of a business contract raises a number of remarks. First, the very concept of a business agreement needs to be clarified. Secondly, the rights and obligations of the parties to the contract are determined by its terms. Third, the question arises: what rights and responsibilities should be considered economic.

The concept of "trade agreement" is known in the legislation and doctrine of a number of foreign countries. In pre-revolutionary Russia, the following features of trade agreements were established in practice: 1) the speculative nature of the agreement; 2) the number of goods purchased by a person exceeds the limits of normal personal consumption; 3) bilaterality, ie the agreement has commercial significance for both parties; 4) the availability of credit.

The draft of the Central Committee of Ukraine enshrines the category of business agreement, in particular in Art. 55 stipulates that the court may, at the request of the wife, adult children, parents, restrict the individual’s right to engage in business if he acts recklessly as a spendthrift. In case of satisfaction of such application the court appoints over this person the trustee. A person who is restricted in the right to engage in entrepreneurship may enter into business agreements only with the consent of the trustee. These agreements are referred to in Part 3 of Art. 54 of the Civil Code, although they are not called directly entrepreneurial. Thus, if an individual has started a business without state registration, having concluded the relevant agreements, he has no right to challenge these agreements on the grounds that he is not an entrepreneur. In resolving a dispute, the court may apply to such agreements rules on obligations related to entrepreneurial activity, in particular, making the entrepreneur liable for breach of obligation and in the absence of his fault (except for force majeure), as provided Art. 640 of the draft Central Committee.

The economic contract combines both the general features inherent in the civil contract, and special features. Such features are:

the subjects of this agreement are legal entities or individuals registered in the prescribed manner as business entities; the content of the economic contract are the conditions under which goods are transferred, works are performed or services are provided for the purpose of carrying out business activities or for other purposes not related to personal (family, home) consumption. An example of such an agreement may be an agreement of international purchase and sale of goods. Under the 1980 Vienna Convention on Contracts for the International Sale of Goods (Articles 1 and 2), this Convention applies to contracts of sale between parties whose commercial enterprises are located in different States, where those States are parties to the Convention or when in accordance https://123helpme.me/write-my-lab-report/ with of private international law, the law of the contracting state shall apply to them. However, this Convention shall not apply to the sale of goods acquired for personal, family or domestic use, unless the seller did not know and should not have known at any time before or at the time of the conclusion of the contract that the goods are acquired for such use; for some types of economic agreements, in particular foreign economic contracts or exchange agreements, a separate procedure for their conclusion (signing), accounting and registration may be established (Decree of the President of Ukraine "On Accounting for Certain Types of Foreign Economic Agreements ( Contracts) "of November 7, 1994); certain features may characterize the procedure or conditions of liability of the parties to the business agreement (for example, the liability of the entrepreneur, regardless of his guilt in breach of obligation).

Taking into account the above features, a commercial contract should be considered a civil contract to which legal or natural persons – business entities and under which the property is transferred, work is performed or services are provided for business purposes or for other purposes not related. with personal (family, home) consumption.

Concluding business agreements

Since the contract is a joint legal act of two or more persons, they agree on the terms of the contract at least two stages: by offering one party to enter into a contract called an offer, and accepting the offer by the other party, or acceptance. Accordingly, the party that made the offer is called the offeror, and the party that accepted it is called the acceptor.

The procedure for concluding agreements is defined in Articles 153-159 of the Civil Code. There are certain peculiarities of concluding exchange agreements (contracts), conducting auctions, by tender, etc.

To enter into a contractual relationship, one of the participants must show his initiative, ie make a proposal to enter into a contract (offer). But can any initiative (proposal) be considered an offer and generate certain legal consequences for the person who made it? The current CC does not contain the features of an offer, although they can be derived from the general provisions of civil law by doctrinal interpretation.

For Art. 675 of the draft CC, an offer is a proposal to enter into an agreement addressed to one or more persons, indicates the essential terms of the future agreement and expresses the intention of the person who made the offer to consider himself bound by the agreement in case of acceptance (acceptance). Thus, the offer is characterized by the following features: first, it is addressed specifically to one or more persons. If the offer is intended for an indefinite number of people (for example, in advertisements), it is considered as an invitation to the offer, unless otherwise expressly stated in this offer. Secondly, the offer must contain an indication of the essential terms of the future contract, ie those that are defined by law or necessary for contracts of this type, or in the approval of which the tenderer is interested. Third, the proposal expresses the firm intention of the bidder to consider itself a bound contract and the proposed conditions in the event of their acceptance (acceptance) by the other party.

The offer can be made with or without a deadline for response. The offer to conclude the contract can be changed or withdrawn (canceled), but in any case not later than before or at the time of its receipt by the addressee. In this case, the previously made offer loses its significance and, therefore, does not bind the bidder. An offer received by the addressee may not be withdrawn within the period for its acceptance, unless otherwise provided in the offer itself or does not follow from the substance of the offer or from the circumstances in which it was made.

The response of the person to whom the offer is addressed on his acceptance of the offer is recognized as acceptance. Acceptance must be complete and unconditional. This means that the acceptor fully agrees with the proposed terms of the contract and notifies the bidder. If the offer to enter into a contract is made with a deadline for response, the contract is concluded provided that the person who made the offer received a response from the other party to accept the offer within this period (Article 155 of the Civil Code) …

In the proposal to conclude a contract addressed to the other party, the deadline for response may not be specified. In this case, the conclusion of the contract depends on the form in which the proposal is made – orally or in writing. When the offer is made orally, without specifying the deadline for response, the contract is considered concluded if the other party immediately announced to the bidder that it accepted the offer. If such a proposal is made in writing, the contract is concluded when the response to the acceptance of proposals is received within the normally necessary time (Article 156 of the Civil Code). This takes into account the deadlines for the passage of correspondence of a certain type in both directions.