Compulsion to conclude a property dispute agreement. Sample statement of claim - compulsion. Methods of protecting violated rights and features of coercion to conclude an agreement

case No. 2-387/2014

Pushkin City Court of the Moscow Region, consisting of:
presiding judge Kurganova N.V.
with the court secretary [...]
Having considered in open court a civil case based on I.’s claim against SNP [...] for the conclusion of an agreement for the use of infrastructure facilities and other common property when conducting gardening on an individual basis

installed:

I. filed a lawsuit against SNP [...] to conclude an agreement for the use of infrastructure facilities and other common property when conducting gardening on an individual basis. In support of the claims it is stated that the plaintiff was a member of the SNP [...]. On June 28, 2013, he submitted a statement to the People's Congress to resign from its membership. The agreement for the use of infrastructure facilities and other common property when conducting gardening on an individual basis, the draft of which was handed over to the chairman of the SNP on September 29, 2013, has not yet been concluded, since disagreements have arisen regarding it, to which the SNP has not responded.

At the court hearing, the representative of the plaintiff, by proxy A., supported the subsequently stated clarified claims in full and considered them subject to satisfaction.

The representative of the defendant, the chairman of the SNP, K., did not object to the conclusion of the agreement at the court hearing, but on the terms established by the decision of the general meeting of members of the SNP, which will be held in May 2014.

Having heard the parties, examined the case materials, and familiarized itself with the draft agreements presented by the plaintiff on the use of infrastructure facilities and public property when conducting gardening on an individual basis, the court finds the claim subject to partial satisfaction

In accordance with clause 1 of Article 8 of the Federal Law of the Russian Federation dated April 15, 1998 No. 66-FZ “On gardening, gardening and dacha non-profit associations of citizens,” citizens have the right to conduct gardening, vegetable gardening or dacha farming on an individual basis.

According to the Determination of the Constitutional Court of the Russian Federation dated December 17, 2009 No. 1662-О-О, the provisions of the first paragraph of paragraph 2 of Article 8 of the Federal Law “On gardening, gardening and dacha non-profit associations of citizens”, considered in systemic unity with the provisions of the third paragraph of the same paragraph and establishing the right of citizens engaged in gardening, gardening or dacha farming on an individual basis to use certain property of a non-profit association, as well as the conditions and procedure for the implementation of this right, including judicial guarantees, are designed to ensure a fair balance of individual and collective interests in this area of ​​public relations.. .

In accordance with Article 21 of the Federal Law "On horticultural, gardening and dacha non-profit associations of citizens", the exclusive competence of the general meeting of members of a horticultural, gardening and dacha non-profit association (meeting

authorized) include, in particular, the following issues: establishing the size of trust funds and corresponding contributions, establishing the amount of penalties for late payment of contributions, changing the deadlines for making contributions by low-income members of such an association, approving the income and expenditure estimate of such an association and making decisions regarding its implementation and other issues .

The general meeting of members of a horticultural, gardening and dacha non-profit association (meeting of authorized representatives) has the right to consider any issues of the activities of such an association and make decisions on them.

By virtue of Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement.

Compulsion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by this Code, the law or a voluntarily accepted obligation.

According to clauses 1 and 4 of Article 445 of the Civil Code of the Russian Federation, and in cases where, in accordance with this Code or other laws, the conclusion of an agreement is mandatory for the party to whom the offer (draft agreement) is sent, this party must send the other party a notice of acceptance , or refusal of acceptance, or acceptance on other terms (protocol of disagreements to the draft agreement) within thirty days from the date of receipt of the offer.

The parties do not dispute that the plaintiff is the owner of land plot No. [...] SNP [...], June 28, 2013. he submitted an application to the People's Congress to resign from membership in the People's Congress; to date, the issue of expulsion has not been resolved.

By virtue of the general principle enshrined in Article 30 of the Constitution of the Russian Federation, no one can be forced to join or remain in any association.

Article 116 of the Civil Code of the Russian Federation provides for the possibility of uniting citizens into consumer cooperatives based on the principle of voluntary membership to meet the material and other needs of its participants.

The principle of voluntary membership of citizens in consumer cooperatives enshrined in this article also presupposes the unconditional right to voluntarily withdraw from the membership of such a cooperative.

The activities of horticultural non-profit partnerships are regulated by Federal Law No. 66-FZ of April 15, 1998 “On horticultural, gardening and dacha non-profit associations of citizens.”

The principle of voluntary membership in horticultural organizations. gardening and dacha non-profit associations of citizens is also enshrined in Article 1 of this Law.

Subparagraph 9 of paragraph 1 of Article 19 of this Law provides for the right of a member of a gardening association to voluntarily leave the gardening association while simultaneously concluding with such association an agreement on the procedure for the use and operation of utility networks, roads and other public property.

A cumulative analysis of the above provisions of the law and the charter documents of the partnership allows us to conclude that the will of a person to withdraw from the membership of the partnership and his submission of the corresponding application are an unconditional basis for his exclusion from the membership of the partnership due to voluntary withdrawal.

In this case, the termination of membership due to voluntary withdrawal from the Partnership is formalized by a decision of its general meeting.

Thus, in order for SNT members to exercise their right to voluntarily withdraw from membership of the Partnership, it is necessary for the general meeting of SNT to make a decision to exclude persons who have declared this from the Partnership.

By virtue of clause 19, part 3, article 22 of the Federal Law of April 15, 1998 No. 66-FZ “On horticultural, gardening and dacha non-profit associations of citizens”, the competence of

The board of a horticultural, gardening or dacha non-profit association includes consideration of applications from members of such an association.

Since the fact of the plaintiff’s application on June 28, 2013 to leave the SNT members was established by the court and is not disputed by the defendant, the court considers it established that I. left the members of the SNT [...] from June 29, 2013.

When considering the case, the court found that the SNP [...] does not contain an agreement for the use of the SNP infrastructure approved by the general meeting of members of the SNP.

In addition, from the explanations of the representative of the defendant, it follows that the general meeting of the SNP never discussed or considered the issue of concluding agreements for the use of infrastructure facilities and other common property when conducting gardening on an individual basis.

From the explanations of each of the parties in the case, it follows that their desire is aimed at achieving the same legal goal - concluding an Agreement for the use of infrastructure facilities and other common property when conducting gardening on an individual basis, but they did not reach an agreement on the terms of such an agreement.

According to clause 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422).

Paragraph 1 of Article 422 of the Civil Code of the Russian Federation provides that the agreement must comply with the rules binding on the parties, enshrined in law and other acts in force at the time of conclusion of the agreement.

It follows from these norms of the Civil Code of the Russian Federation that if the conditions for a given agreement are determined by mandatory norms of law or other legal acts, then such conditions must comply with them.

By virtue of paragraph 1, paragraph 2, article 8 of the Federal Law of the Russian Federation dated April 15, 1998 No. bb-FZ, citizens engaged in gardening, vegetable gardening or dacha farming individually on the territory of a horticultural, gardening or dacha non-profit association have the right to use infrastructure facilities and other common property of a horticultural, gardening or dacha non-profit association for a fee under the terms of agreements concluded with such an association in writing in the manner determined by the general meeting of members of the horticultural or dacha non-profit association.

In connection with the foregoing, the court comes to the conclusion that the basis for the Agreement to be concluded between the parties should be the draft agreement proposed by the court on the procedure for using infrastructure facilities and other property of common use, and therefore the requirements for concluding an agreement specifically in The court rejects the plaintiff's version.

The court finds the plaintiff’s indication that infrastructure facilities that they do not intend to use are subject to exclusion from the contract to be unfounded, since to delimit the common use property of the SNP for each land user, as well as to exercise real control over the property actually used by persons, including those who are not members of the SNP, does not seem possible.

At the same time, the court proceeds from the fact that the conclusion of the Agreement is aimed at realizing the need of a citizen operating in the gardening territory on an individual basis to use infrastructure facilities and other common property on the same terms as members of such an association, while ensuring a fair balance of individual and collective interests .

The court also considers it necessary to establish that an integral part of the contract should be Appendix No. 1, the text of which consists of setting out the cost estimates for the period of concluding the contract and calculating the amount of monetary contributions of members of the SNP, approved by the decision of the general meeting of members of the SNP.

The specified annex is signed by the parties annually when prolonging the contract after approval by the next general meeting of members of the SNP of the estimate and amount of payment under the Contract.

In this regard, clauses 3.1 and 3.2 are subject to the following wording: “The estimated price of this Agreement is made on the basis of the estimate of the financial and economic activities of the SNP for the period of conclusion of the Agreement, approved at the General Meeting of members of the SNP, which is an integral part of this Agreement in in the form of Appendix No. 1, updated annually upon renewal of the Agreement. The recipient pays the amount under the Agreement in the amount and on the terms approved in the SNP for its members.”

Establishing the amount of payment on the basis of cost estimates for the coming period does not contradict the norms of the current legislation, since the possibility of planning expenses for the coming period is ensured by the inclusion of the norms of the Federal Law “On Gardening, Vegetable Gardening and Dacha Non-Profit Associations of Citizens” (subparagraphs 4 and 10 of paragraph 3 of Article 22).

When determining the terms of the Agreement on settlements thereunder, the court takes into account that the amount of payment for the use of infrastructure facilities and other common property of the SNP for the plaintiff, by virtue of Article 8 of Federal Law No. 66-FZ, cannot exceed the amount of payment for the use of the specified property for members of this Partnership .

Based on the above and guided by Article 194.198 of the Code of Civil Procedure of the Russian Federation, the court

decided:

I.'s claims against SNP [...] for concluding an agreement for the use of infrastructure facilities and other common property when conducting gardening on an individual basis are partially satisfied.

Approve the wording on the terms of which an agreement between SNP [...] and I. is to be concluded on the procedure for using infrastructure facilities and other common property of SNP [...] when conducting gardening on an individual basis:

“Gardening Non-Profit Partnership [..], hereinafter referred to as SNP, represented by the Chairman of the Board.., acting on the basis of the Charter, on the one hand, and... - the owner of the garden plot located at the address: [...], SNP plot No. .., not a member of the SNP, acting on its own behalf, hereinafter referred to as the “Recipient”, on the other hand, have entered into this agreement as follows:

1. The Subject of the Agreement

1.1. SNP provides the Recipient with the right to use SNP infrastructure facilities (such as water supply, power lines), common property of SNP (such as roads, etc., taking into account the provisions of Article 1 of the Federal Law of April 15, 1998 No. 66-FZ “On horticultural, gardening and country non-profit associations of citizens") in order to provide the Recipient with access to water supply, electricity,

household waste and other services that the Recipient can use in the territory of the SNP.

1.2. The recipient bears annual expenses for the use and maintenance of the SNP infrastructure facilities and the general property of the SNP in an amount not less than the amount of annual membership and target fees for members of the SNP, which are established by the General Meeting of SNP members, as well as the costs of payment for the removal of household waste etc., according to current tariffs and special fees, if such fees are established for members of the SNP by decision of the General Meeting of members of the SNP.

1.3. The recipient uses the infrastructure facilities in accordance with the terms of this Agreement, the Charter of the SNP, as well as other internal documents of the SNP regulating the use of the SNP infrastructure facilities and the general property of the SNP.

2. Rights and Obligations of the parties

2.1. SNP has the right:

2.1.1. Exercise control over the procedure for using the SNP infrastructure facilities and the common property of the SNP.

2.1.2. In case of violation of the procedure for using SNP infrastructure facilities and common property, SNP suspends the possibility of using infrastructure facilities in the manner determined by the decisions of the General Meeting of SNP members, reflected in the SNP documents specified in clause 1.3 of this Agreement.

2.1.3. The SNP, on the basis of a decision of the general meeting of its members, has the right to deprive the Recipient of the right to use infrastructure facilities and other public property specified in clause 1.1 of this Agreement, in the event of failure to pay on time the payments established by clause 3 of the Agreement and Appendix No. 1.

2.1.4. SNP, for the purpose of proper technical operation of SNP infrastructure facilities, has the right of unhindered access at any time, with notification to the Recipient, to all pipelines, networks and electrical installations of the Recipient.

2.2. SNP is obliged:

2.2.1. Provide the Recipient with the opportunity to use the infrastructure of the SNP and gain access to the services of electricity, water supply, removal of household waste, etc., as well as the opportunity to use the common property of the SNP.

2.2.2. Organize control over the Recipient's use of the SNP infrastructure facilities and the general property of the SNP.

2.2.3. Inform the Recipient about the impossibility of using the SNP infrastructure facilities and the general property of the SNP in emergencies and other force majeure situations.

2.2.4. If possible, assist the Recipient in eliminating malfunctions that impede the use of SNP infrastructure facilities.

2.2.5. Inform the Recipient about all changes made during the validity period of this agreement to the Charter of the SNP and other documents of the SNP specified in clause 1.3. agreement.

2.3. The recipient has the right:

2.3.1. To use the infrastructure facilities of the SNP and the general property of the SNP to access the services of electricity supply, water supply, removal of household waste, etc., subject to the conclusion of this Agreement and the fulfillment of the terms of this Agreement.

2.3.2. Receive information from the Board of the SNP about all rules, regulations and other documents adopted by the SNP that regulate the use of SNP infrastructure facilities.

2.3.3. Contact the SNP Board with statements regarding compliance with the terms of this Agreement.

2.4. The recipient is obliged:

2.4.1. Familiarize yourself with and comply with all the requirements of the SNP Charter, as well as other SNP documents regulating the procedure for living on the territory of the SNP, the procedure for using the SNP infrastructure facilities, the procedure for using the common property of the SNP.

2.4.2. Participate, within the time frame and in the manner determined by the decisions of the General Meeting of members of the SNP and the board of the SNP, in maintaining in good condition, in the modernization of existing infrastructure facilities and common property in the SNP, as well as in the creation of new infrastructure facilities and common property of the SNP. In case of refusal to participate in the maintenance, modernization and creation of one or another SNP infrastructure object or common SNP property, the Recipient loses the right and opportunity to use such infrastructure object or SNP property.

2.4.3. Treat the property of the SNP with care, prevent its damage, and take all possible measures to ensure its safety.

2.4.4 Maintain order and cleanliness on public land, do not store or dispose of household waste, construction and other waste on public lands of the SNP. Place household waste only in a garbage container. Recycling and removal of construction waste, bulky waste (old furniture, outerwear, etc.) must be done at your own expense.

2.4.5. In the event of any emergency and extreme situations occurring on the territory of the SNT, which may adversely affect the life and health of people, lead to the destruction of individual property of citizens and the general property of the SNT, negatively affect the performance of the elements of the SNT infrastructure, urgently contact the appropriate emergency services (rescue service, emergency medical care, etc.), and also report to the board of the SNP or the person on duty at the SNP.

2.4.6. In a timely manner, in accordance with the established procedure, pay for garbage removal, as well as pay fees, charges and fines established by the general meeting of the SNP.

3. Price and payment procedure.

3.1. The estimated price of this Agreement is made on the basis of the estimate of the financial and economic activities of the SNP for the period of conclusion of the Agreement, approved at the General Meeting of members of the SNP, which is an integral part of this agreement in the form of Appendix No. 1, updated annually when the Agreement is extended.

3.2. The recipient pays the amount under the Agreement in the amount and on the terms approved in the SNP for its members.

4.Additional conditions

4.1. All changes and additions to this agreement must be made in writing and signed by the Recipient and the SNP representative (Chairman of the SNP or an authorized member of the SNP Board).

4.2. If disputes arise under this Agreement, SNP and the Recipient must first resolve such issues through friendly negotiations.

4.3. Refusal to conclude or extend this Agreement at the initiative of any of the parties does not deprive the Recipient of the right to unhindered travel and passage along the roads of the SNP to the territory of his personal site, with the exception of travel to the Recipient’s site for heavy cargo and construction equipment. Travel to the Recipient's site for heavy cargo and construction equipment is possible only with a special permit from the Board of the SNP, at a strictly defined time and on a paid basis (payment for road restoration).

4.4. Refusal to conclude or extend this Agreement at the initiative of either party does not relieve the Recipient from the obligation to make payments established by clause 3.1 of the Agreement in the manner prescribed by clause 3.2.

4.5. Refusal to conclude or extend this Agreement on the initiative of any of the parties allows SNP to provide the Recipient with garbage removal services in the manner established by the decisions of the General Meeting of SNP members, reflected in the SNP documents specified in clause 1.3 of this Agreement.

5. Duration of the Agreement

5.1. This agreement is concluded for a period of up to "___" __20, comes into force on the date of signing and is considered annually extended for a period of one year, provided that the SNP and the Recipient have not given written notice of termination of the agreement. A written notice of termination of this Agreement must be submitted by the party initiating the order to the other party no later than 1 month before the expected date of termination of the agreement.

5.2. Subject to compliance with clause 5.1. of this Agreement and provided that the Recipient has no debts to SNP, this Agreement is considered terminated starting from the date specified in the written notice of termination of this Agreement.

5.3. This Agreement is considered terminated in cases where the Recipient has become a member of the SNP and has ceased to be the owner of an individual plot on the territory of the SNP.

5.4. This agreement is drawn up on... pages, in 2 copies, having equal legal force.

5.5. Appendix No. 1 is an integral part of the specified agreement, is updated annually when the agreement is extended, the text contains a statement of the cost estimate for the period of conclusion of the agreement with the given calculation of the price of the agreement, approved by the decision of the general meeting of members of the SNP [...] (indicating the date of the meeting), certified by the signature of both parties.

6. Addresses and details of the parties... »

Regarding the claims regarding the obligation of the SNP [...] to conclude an agreement with I., the wording proposed by him will be rejected.

The decision can be appealed to the Moscow Regional Court through the Pushkin City Court within one month from the date of drawing up the reasoned decision.

In practice, there are often situations when, after reaching mutual agreements, the counterparty suddenly begins to evade concluding an agreement related to the provision of contract services, the purchase and sale of land, plots, hiring, social relations, etc. in the Republic of Kazakhstan and the Russian Federation. You can force your counterparty to sign an agreement in court by filing a claim for the fulfillment of obligations under the contract.

What is a claim for compulsion?

This type of claim is drawn up in the event of failure to fulfill its obligations to the counterparty on the part of the defendant. The claim is related to the evasion of entering into relations with the counterparty through the conclusion of an agreement, if any took place on the basis of the obligations imposed on the defendant on the basis of a legislative act, or when agreements were reached in accordance with all the rules of business turnover.

Note! Before that, it is necessary to send a claim to the defendant in writing, which is drawn up according to the general rules of business turnover accepted in our country. The letter is sent with acknowledgment of delivery and, after a reasoned response to the claim has not been received in pre-trial order, or a refusal has been received, you can proceed to the traditional procedure for filing a claim in court.

Features of pre-trial settlement

Legislative regulation

Pre-trial settlement of disputes in the claims procedure is provided for in paragraph 5 of Art. 4 APC, Art. 132 Code of Civil Procedure, art. 4 - part 3. CAS RF. The importance of applying this procedure is due to the fact that if it is not followed, the application will be returned to the applicant or left without progress.

In what cases can one be obliged to conclude a contract or perform it?

The basis of all contractual relations used in the Russian state is the principle of freedom. The main postulates regarding this area of ​​regulation are enshrined in Art. 1 Civil Code of the Russian Federation. Article 421 of the Civil Code, in turn, includes the following elements of the rights of the parties to a business relationship:

• the possibility of concluding an agreement only on the principle of complete freedom of action for citizens and organizations;
• independent discretion of the terms and conditions of contractual agreements within the framework of legislative regulation;
• even in the absence of a form of agreement in the legislative practice of Russia, it is possible to take advantage of the right to apply a dispositive norm and use the concept of “business custom” when drawing up non-standard forms of agreement.

Important! At the legislative level, a reservation is made in the second part of paragraph 1 of Article 421 of the Civil Code of the Russian Federation that coercion to conclude a transaction is allowed only if the parties previously had mutual obligations related to the conclusion of an agreement of the established form, or when they reached mutual obligations on on a voluntary basis subsequently, as well as on other legal grounds approved on the basis of government acts.

How to file a claim?

Filing a claim

When drawing up a claim, you must follow the business rules established for legal documents.

In order to legally correctly file a claim for an obligation to fulfill obligations under a contract, it is necessary to use the following structural elements when drawing up the paper:

• the name and location of the judicial body - the Arbitration Court at the place of registration of the defendant;
• information about the applicant, which includes: his personal data, residence address, contact phone number and email address. If the plaintiff is a legal entity, it is necessary to indicate the full name of the organization, as well as its legal representative;
• information about the defendant: personal data, address of the organization’s location, full details of the company, as well as telephone and email information of the defendant;
• information about other persons involved in the conflict situation;
• The cost of the claim, indicated in rubles of the Russian Federation, is required to be stated in the event that there is a recovery in a fixed amount of money. If the claims are in the nature of a property dispute, then it will be necessary to pay a state fee based on the total value of the claims specified in the claim.

Obligation to supply goods

The main part of the document includes the following necessary data:

• cause-and-effect relationships: it is necessary to provide specifics in the form of data, appeal with facts, describe all the key points and stages of the transaction, all circumstances, including providing the fact of the transfer of goods, receipt of money, and other material assets on the part of the defendant;
• indicate the reason for drawing up the claim, that is, the refusal to conclude a contractual relationship, which is not legal in this situation;
• provide documented facts of the defendant’s refusal to conclude a contract;
• provide facts in favor of the fact that the conclusion of this agreement should be carried out in court under duress;
• list the essence of the claims that will indicate the need to conclude a transaction.

Note! In addition to the basic requirements, it is possible to recover a penalty or penalty in the amounts established by law, taking into account what losses and lost profits were incurred by the company with which the defendant in the claim refused to enter into a contractual relationship.

At the end of the requirement, a list of document attachments to the claim is prescribed:

• duplicates of the claim in the number of participants in the dispute;
• copies of contracts with the plaintiff, foundation documents, agreements, contract agreements, waivers, claims, tenders and other documentation that takes place within the framework of this lawsuit;
• a draft agreement to be concluded following the meeting;
• if the dispute is of a property nature, it is necessary to provide a reasonable calculation in the form of a data register;
• a document confirming the fact of payment of the state fee;
• for legal entities, it is necessary to submit documents such as an extract from the Unified State Register of Legal Entities, a power of attorney;
• other papers on the merits of the dispute.

At the end, the document is endorsed: a date, signature, and also a transcript of the signature are added.

Sample claim for compulsion to conclude a contract

The statement of claim for compulsion to conclude a contract can be downloaded from the link.

All you have to do is insert your data and sign the document.

Important! To avoid mistakes and correctly draw up a claim for compulsion to enter into an agreement with the fulfillment of mandatory requirements, it is recommended to contact a lawyer.

How to substantiate a claim for compulsion to conclude a contract?

When drawing up a claim, you must be guided by the principles specified in Art. 125 Arbitration Procedure Code of the Russian Federation and Art. 131 Code of Civil Procedure of the Russian Federation. The court will need to be convinced of the following facts:

• the existence of an obligation to conclude an agreement due to certain circumstances. An example is the decision of the Moscow Court No. F05-16224 dated January 30, 2015, according to which the requirements for the purchase of a land plot were satisfied. An example of a court’s refusal to enforce a claim is the decision in case No. A40-52102 dated August 1, 2013, adopted by the Federal Antimonopoly Service of the Moscow Region, according to which contractual relations under co-investment do not imply the defendant’s obligation to draw up agreements for shared construction;
• an offer or protocol must be drawn up in writing, which contains the key terms of the transaction. After violation of at least one essential condition, the claim will be ignored by the court;
• the plaintiff must be in a relationship with the defendant as a counterparty.

Decision on the case

Thus, if the existence of contractual relations between the counterparties is proven, regardless of whether these agreements are formalized in writing or not, the plaintiff has a chance of a successful outcome of the case. To do this, you need to draw up a sample statement of claim for compulsion and wait for the result.

All persons have the right to freely enter into contractual relations. However, it happens that one party forces the other to complete a transaction, while the person who is forced is not the beneficiary. We will tell you when and how a statement of claim for compulsion to enter into a contract is drawn up.

Compulsion to conclude a civil contract is possible only in exceptional cases. Another option for this situation to arise is to assume obligations under the contract earlier, when the execution of the transaction is just a formality.

When a person for whom entering into a contractual relationship is obligated evades this, coercion to enter into a transaction becomes possible. For example, such circumstances could be:

• a civil contract is public (for example, these are called agreements on retail trade, communication services, medical care, etc.);
• the counterparty evades execution of the contract;
• the transaction is made at auction;
• The landlord of municipal and state property refused to renew the tenant's request for no reason.

A claim is filed in all situations when one of the parties is obliged to enter into an agreement due to objective reasons established by law, but refuses to do so. At the same time, he does not stop using the services or goods provided for under the contract.

Before filing a claim to compel the conclusion of an agreement, it is necessary to follow the pre-trial settlement procedure. This means that the parties are obliged to try to resolve the conflict peacefully, without going to court.

It is necessary to make sure that all possibilities for pre-trial settlement of the dispute have been used. In cases where the obligation to conclude a contract is caused by the existence of a preliminary agreement, the requirements must be stated within the period of its validity.

Filing a claim to compel the conclusion of a contract

Drawing up and filing a claim for compulsion to conclude an agreement has a number of features. Let's consider this procedure in more detail.

Grounds for filing a claim

When preparing to file a claim for compulsion to enter into a contract, the plaintiff must ensure the following:

• the presence of an obligation to conclude an agreement (due to the norms of current legislation or obligations assumed);
• the offer or protocol of disagreement contains all significant conditions;
• the plaintiff is the counterparty of the obligated party.

To file a claim, it does not matter how exactly the counterparty evades execution of the contract. For example, he may not sign the agreement itself or the protocol of disagreements.

It is important to take into account that if neither the law nor the contract provides for the mandatory conclusion of a transaction, it will not be possible to oblige a person to formalize the agreement in court.

State duty

Before filing a claim in court, you must pay the mandatory state fee for consideration of the claim. Without a payment receipt, the claim will not be considered.

The amount of state duty is regulated in tax legislation. In general, you will need to pay 300 rubles.

Filing a claim

There is no clearly regulated form of a statement of claim for compulsion to conclude an agreement. However, the norms of the Civil Procedure Code provide for drafting rules that must be followed strictly. Otherwise, consideration of the claim will be denied.

The text of the document must contain the following information:

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• name of the judicial authority to which the application is submitted;
• identification information about the plaintiff and defendant - full name, address of residence, contact information;
• document's name;
• description of the circumstances of the case that led to the conflict;
• the essence of the conflict;
• information about the concluded agreement;
• references to case materials – material evidence, witness statements;
• the applicant's claim to the court;
• list of attached documents;
• date and signature with transcript.

The claim is drawn up in a number of copies corresponding to the number of participants in the process. That is, at a minimum, it is necessary to prepare three copies - for the plaintiff, the defendant and the court.

The claim must be filed at the place of residence of the defendant. Such issues are considered in a district or city court of general jurisdiction.

Advantages and disadvantages

Filing a claim to compel the conclusion of a contractual relationship has its pros and cons. The benefits include:

• the possibility of canceling the contract in court;
• the ability to call for responsibility for actions of an unlawful nature;
• the ability to recover moral and material damages;
• the ability to demand payment of legal costs from the defendant.

The disadvantages include the following:

• it will be necessary to prove the illegality of the actions;
• initially all legal costs are borne by the plaintiff;
• it is not always possible to prove the need for a forced conclusion of an agreement;
• It is necessary to competently draw up a statement of claim, and for this it is recommended to contact a lawyer.

Being forced to sign a contract is a fairly common situation. Absolutely anyone can face such circumstances. It does not matter whether a person has property or not.

Design features

When drawing up a statement of claim for compulsion to enter into a contract, there are certain features that should be taken into account:

• it is necessary to describe in detail the requirements when concluding a contract;
• it is necessary to specify what kind of influence was exerted to compel the transaction (in some cases the case may be classified as criminal);
• a detailed description of the essence of the problem so that the court does not have additional questions;
• requirements must be stated clearly and succinctly, avoiding ambiguity and “water”.

It is sometimes difficult for a person who is not legally savvy to deal with such documents. For this reason, many people turn to specialists to draw up a competent claim.

When is the help of a lawyer needed?

In some situations, coercion into a contract may be illegal. For example, the law prohibits putting pressure on the seller or buyer when completing a property purchase and sale transaction. If this happens, you need to seek help from a lawyer, and then to the court.

Such illegal actions often occur when drawing up a social tenancy agreement or assignment. In any case, if legitimate interests are violated, you should contact law enforcement agencies.

If you have questions or difficulties, please seek legal advice. You can get free legal assistance on our website. Ask a question to an expert in a special window.

Now you know how to file a claim for compulsion to enter into a contract and when it is appropriate. We recommend that you seek help from a lawyer. The specialist will accompany the case until it is resolved positively in your favor.

Is it possible to compulsorily conclude a business agreement and other agreements?

Provisions of Art. 421 of the Civil Code of the Russian Federation establishes the freedom of participants in business transactions to enter into contracts. Compulsion to sign is allowed only in cases where there is a direct instruction from the legislator or an agreement of the parties.

The Civil Code of the Russian Federation specifies the following options for forced signing of an agreement:

1. Public contract (Article 426 of the Civil Code of the Russian Federation). Citizens who want to use the services of a commercial organization should not be refused when applying, since the company offers a public offer, the conditions of which are the same for consumers.
2. Bank account agreement (Article 846 of the Civil Code of the Russian Federation).
3. The main agreement after signing the preliminary one (Article 429 of the Civil Code of the Russian Federation). In this case, the agreement must be signed by both parties within the period specified in the preliminary agreement.
4. Agreement with the person who won the auction (Article 447 of the Civil Code of the Russian Federation).

Other legislative acts may also contain a requirement to compel the conclusion of a transaction. Examples include:

• Art. 57 of the Housing Code of the Russian Federation - provision of residential premises for social rent to persons in need of housing;
• Art. 145 of the RF IC - conclusion of an agreement on guardianship and trusteeship;
• Art. 10 of the Law “On Advertising” dated March 13, 2006 No. 38-FZ - conclusion of a social advertising agreement.

Methods of protecting violated rights and features of coercion to conclude an agreement

If one of the parties to the transaction refuses to conclude it, Art. 445 of the Civil Code of the Russian Federation provides for 3 ways to protect violated rights:

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1. Filing a claim to resolve any contradictions that have arisen.
2. Going to court for compensation for losses.
3. Drawing up a statement of claim for compulsion to conclude a transaction.

The last option can only be used if the plaintiff sent an offer to the counterparty, but he did not respond to the letter within the 30-day period prescribed by law. If the offer was rejected or the counterparty submitted a protocol of disagreements, the court will refuse to accept the statement of claim on this basis, since neither party is avoiding concluding the transaction.

Let's consider several features regarding coercion to enter into an agreement:

1. Provisions of paragraph 4 of Art. 445 of the Civil Code of the Russian Federation specifies that the right to go to court is granted only to that party to the transaction that incurs losses if the other party evades signing the agreement.
2. If a preliminary agreement has been concluded between the counterparties or there is a draft agreement with agreed upon terms, then the court must check this document for compliance with the law. If contradictions are discovered, the court in its decision must set out the clauses of the agreement in the wording that the parties must adhere to after the court decision enters into legal force (Determination of the Supreme Court of the Russian Federation dated September 27, 2016 No. 78-KG16-40).
3. If the plaintiff’s demands are satisfied by the court, then after the decision comes into force, the agreement, as a general rule, is considered concluded. If a transaction or the transfer of rights under it requires state registration, the transaction is considered concluded after its implementation.

Contents of the statement of claim for compulsion to conclude an agreement

The application must necessarily contain confirmation of facts of legal significance:

• whether the defendant has an obligation to conclude an agreement, which could arise both from the law and from the terms of the agreement between the parties to the dispute;
• the plaintiff sending an offer to the defendant, which was drawn up in accordance with the requirements of the Civil Code of the Russian Federation;
• the plaintiff’s failure to receive acceptance or disagreements regarding the protocol if these documents were sent to him;
• failure by the defendant to comply with the deadlines for reviewing the offer and sending acceptance (30 days from the date of receipt of the offer), etc.

An interested party has the right to file a claim to compel the conclusion of a contract to a district or arbitration court. In this case, the state duty will be:

1. In courts of general jurisdiction:
   • for individuals - 300 rubles,
   • for legal entities - 6,000 rubles.
2. In arbitration courts - 6,000 rubles.

The result of consideration of the claim will be a court decision, which must contain instructions to compel the conclusion of an agreement on certain conditions or a refusal to satisfy the applicant’s demands.

Thus, it is possible to force a counterparty to enter into an agreement only in cases where this is indicated in the law or there is a corresponding agreement between the parties. In all other situations, the Civil Code of the Russian Federation establishes the principle of freedom of contract, according to which any citizen or organization has the right to independently decide to enter into certain relationships within the framework of a specific transaction.

As is known, if a party evades concluding the main contract, he can be forced to do so through the court. However, the court decision is not always executed by the defendant. He may evade execution of a court decision. In addition, if the object of the agreement is real estate, then subsequent state registration of the transfer of rights to the object of the agreement is required.

If the buyer refuses to conclude a contract, the seller in this situation is more protected, since he retains the right to dispose of the object and can simply sell it to another person, transferring the dispute with the evading buyer to the level of recovery of losses. Therefore, claims by sellers to force them to enter into a contract are quite rare.

In such a situation, the buyer should consider the following. The court does not issue writs of execution in cases where the right to property is recognized. Judicial acts on the obligation to conclude an agreement replace the signature of the person who evaded its conclusion. Taking into account the current edition of paragraph 4 of Art. 445 of the Civil Code, the contract is considered concluded from the moment the court decision enters into force. This decision is the basis for state registration of the transfer of ownership of the relevant property.

An entry in the state register is made if there are statements to this effect from all persons who made the transaction, unless otherwise provided by law6.

The question arises whether the provision of paragraph 4 of Art. 445 of the Civil Code by a circumstance specified in the law, as a result of which the ownership of real estate passes to the person who filed the corresponding claim. Since ownership of real estate does not arise from the moment the contract is concluded, this question should be answered in the negative.

The requirement to force the seller to enter into a contract for the purchase and sale of real estate in itself is meaningless. It would be logical to present an additional requirement to compel registration of the transfer of ownership and transfer of the object. After all, the plaintiff’s goal is not just the signing of an agreement, but the execution of a transaction, which in relation to the real estate object is considered executed no earlier than the moment of registration of the transfer of ownership of it.

By contacting Rosreestr to register the transfer of ownership on the basis of a decision made in accordance with clause 4 of Art. 445 of the Civil Code of the judicial act and without an application to register the transfer of rights on the part of the defendant and his signature in the agreement, the plaintiff will most likely be refused.

The requirement for recognition of the right of ownership when filing a claim in such a dispute is subject to satisfaction only at the claim of the person in whose possession the disputed property is located, subject to the plaintiff providing evidence of the emergence of the corresponding right (paragraphs 58, 59 of the resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22 dated 04/29/2010). But if the property in such a property is in the possession of the plaintiff, registration of ownership of it must be carried out in execution of the relevant court decision, as well as the transfer of the disputed object to the plaintiff.

A party to a real estate purchase and sale agreement has the right to file a claim for state registration of the transfer of ownership only if the other party avoids taking registration actions. (Clause 3 of Article 551 of the Civil Code of the Russian Federation). Registration of the transfer of rights acts as a contractual obligation, that is, it is part of its execution, but not its conclusion. An application for state registration of a transfer of rights is often conditioned by some counter-performance by the other party, for example, it depends on the buyer making payment in full or in part. In this case, the seller’s obligation to apply to Rosreestr for registration before the buyer fulfills the obligation to pay does not arise. Hence, a corresponding requirement cannot be stated.

Although the rights of the buyer cannot be effectively protected by applying to the court only with a requirement to compel the conclusion of the main contract, the simultaneous application of a requirement to compel registration in this case does not comply with the law.

Based on the foregoing, the only way to obtain ownership of the disputed object in the case under consideration is to file a claim to register the transfer of ownership after the entry into force of a court decision to compel the conclusion of the main purchase and sale agreement.

However, there is also other judicial practice. According to other lawyers, this method is considered effective. It contradicts the principle of procedural economy and provides the unscrupulous party with additional opportunities to create obstacles and delay the execution of the contract. If the counterparty has not signed the agreement, this does not mean that he is evading its registration

The following formulation is also found in court decisions. If a transaction requiring registration is completed in the proper form, but one of the parties avoids registering it, the court, at the request of the other party, has the right to make a decision to register the transaction (clause 2 of Article 165 of the Civil Code). In this case, the transaction is registered in accordance with the court decision. For such claims, a one-year statute of limitations applies (clause 4 of Article 165 of the Civil Code). Taking into account similar wording, it is necessary to distinguish between the requirement for state registration of an agreement and the requirement for registration of a transfer of rights, to which the shortened statute of limitations does not apply.

In Art. 165 of the Civil Code we are talking specifically about transactions that are subject to state registration, and since this list is exhaustive and very limited (for example, renting real estate for more than one year, participation in shared construction), the application of this norm in practice is extremely insignificant.

However, due to the fact that the requirement to register a transaction is a necessary condition for the conclusion of such an agreement, it can be included as a second requirement in a claim for compulsion to conclude an agreement. In this case, filing claims consecutively would be procedurally incorrect.