(product), and the buyer undertakes to pay a certain amount (price) for it. The purpose of a contract of sale is to transfer ownership of the thing serving as a commodity to the buyer. As a general rule, the ownership right of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. In cases where the alienation of property is subject to state registration, the acquirer's ownership rights arise from the moment of such registration, unless otherwise provided by law.
Characteristics of the agreement: consensual, bilateral, compensated.
The subject of the contract is always individualized.
The subject is things that have not been withdrawn from civil circulation.
The parties to the agreement are counterparties.
The form of the agreement is subject to general rules: oral, simple written, or notarized.
Essential terms of the contract: subject (product) and quantity.
A wholesale purchase and sale agreement can be concluded for an item that already exists, as well as for an item created in the future.
The quantity of goods is determined in units of measurement or in monetary terms. If the terms of the goods are not agreed upon, the contract is considered not concluded.
The price of the goods is determined by the wholesale purchase and sale agreement or can be determined based on its terms. The price can be set depending on the net weight or can vary depending on the indicators that determine the price of the product (cost, expenses, etc.).
The price is determined based on the ratio of these indicators at the time of concluding the contract and at the time of transfer of the goods.
The execution period is determined by the wholesale purchase and sale agreement, and if not established by the agreement, then within a reasonable time.
The range of goods is agreed upon by the parties. If it is not established, then the assortment arises from the essence of the obligation, i.e. the product must be in the assortment, taking into account the usual interests of the buyer.
Seller rights:
- transfer the goods to the buyer within the period established by the contract, if there is no such period, within a reasonable time or seven days after the presentation of the requirements;
- transfer of goods free from the rights of third parties, unless otherwise provided by the contract.
Buyer's responsibilities:
- accept the goods if he does not have the right to demand replacement or refusal to perform the contract;
- The buyer is obliged to pay for the goods at the price that is charged under comparable circumstances for similar goods.
Types of wholesale purchase and sale agreement:
- at the place of execution of the contract:
a) in places of wholesale sales;
b) in a trading establishment; - by time of delivery of goods:
a) on pre-orders;
b) with immediate delivery of the goods; - according to the payment term for the goods:
a) with advance payment, full or partial, before the seller transfers the goods;
b) with payment on credit, after a certain time after the transfer of the goods;c) installment plan, the contract determines the price, procedure, terms and amounts of payments;
- on the duty of delivery of goods:
a) with the obligation to deliver the goods to the buyer by the seller to a specified place and transfer them to a certain person;
b) without delivery.
The risk of accidental loss and accidental damage to the goods passes to the buyer from the moment the seller fulfills his obligation to transfer the goods to the buyer. The risk of accidental loss and accidental damage to goods sold while in transit passes to the buyer from the moment the wholesale purchase and sale agreement is concluded.
A wholesale purchase and sale agreement is not provided for in the Civil Code of the Russian Federation, unlike a retail purchase and sale agreement, which has a very negative impact on law enforcement activities. In the conditions of the low level of contractual work that currently exists, entrepreneurs do not independently develop the terms of the contract and use the supply contract model provided for in the Civil Code of the Russian Federation, even when there are no objective grounds for this. The lack of legislative support for a wholesale purchase and sale agreement leads to contradictory qualifications of one-time transactions for the wholesale sale of goods by arbitration courts. In some cases, arbitration courts qualify such transactions as supply contracts; in others, general rules on sales contracts are applied to them (§ 1 of Chapter 30 of the Civil Code of the Russian Federation). Meanwhile, although the supply agreement is one of the types of purchase and sale agreement, and a number of general provisions on the purchase and sale agreement, provided for in § 1 Ch. 30 of the Civil Code of the Russian Federation, the rules of the supply agreement are designed for its application in commercial circulation, therefore, the Civil Code of the Russian Federation (§ 3, Chapter 30) provides for some special rules on the terms of the supply agreement, which differ from similar rules provided for in the general provisions on purchase and sale (as Examples include Article 512 on the assortment of goods when making up for shortfalls in goods, special rules on the rights of the buyer in case of underdelivery of goods, failure to comply with requirements to eliminate defects in goods or to replenish goods).
It should be noted that the wholesale purchase and sale agreement is provided for as one of the main trade agreements in the legislation of developed Western countries. It is also widely used in foreign trade, which led to the adoption in 1980 of the UN Convention on Contracts for the International Sale of Goods.
Considering the relationship between the supply agreement and the wholesale purchase and sale agreement, it should be noted that both of these agreements are concluded in the field of wholesale trade. The difference between a wholesale purchase and sale agreement and a supply agreement lies in the one-time nature of the wholesale purchase and sale transaction, the absence of long-term contractual relations between the parties, and a one-time transfer of a wholesale batch of goods. These features also require their regulatory reinforcement. A supply contract designed for a large, most often annual, order from the buyer requires organizational and technical preparation for production. Accordingly, long-term commercial relations between the parties require detailed elaboration of the terms of the contract.
A one-time purchase of goods under a wholesale purchase and sale agreement necessitates a simplified procedure and form for concluding an agreement, and the conclusion of a supply agreement is carried out according to special, more complex rules. In the future, as civilized rules of conduct in the market become stronger and the pre-revolutionary “indestructible word of the merchant” is revived, oral forms of transactions between entrepreneurs may also be used.
Contracts concluded in wholesale trade require a clear definition of the deadline for fulfilling obligations. When concluding a wholesale purchase and sale agreement, it is important for both parties to determine the exact period for the transfer of goods. This is important for determining the shelf life of goods in order to optimize storage costs, acceptance of goods, and ensure coordination of the terms of acceptance of goods with the production terms. It is no coincidence that the principle of “just in time” delivery, without warehousing, is becoming quite widely used in foreign commercial activities. Application of the rules of Art. 314 of the Civil Code of the Russian Federation when concluding a supply and wholesale purchase and sale agreement, which states that if an obligation does not provide for a deadline for its fulfillment and does not contain conditions to determine this period, it must be fulfilled within a reasonable time after the obligation arises, not meets the interests of entrepreneurs. A reasonable period is a subjective concept. Based on the rules of Art. 314 of the Civil Code of the Russian Federation, it is quite difficult to fill in the missing term or terms of delivery in the contract<1>. Rule Art. 315 of the Civil Code of the Russian Federation on the right of the debtor to fulfill an obligation before the due date does not apply to obligations related to the implementation of entrepreneurial activities. The qualifying feature of a wholesale purchase and sale agreement, as opposed to a retail one, should be considered the period of transfer of goods from the seller to the buyer. This will give clarity and certainty to the parties’ relationship and help avoid arbitration disputes.
Wholesale purchase and sale is the activity of selling goods in batches to retailers, industrial or non-manufacturing consumers who do not use these goods for personal, family consumption.
Features of the wholesale purchase and sale agreement:
1) the goods are sold or purchased in bulk, mainly in batches, and not in single quantities;
2) the goods are not always in stock with the seller at the time of concluding the wholesale purchase and sale agreement;
3) the execution of the contract is of a continuing nature (due to the delivery of goods in batches, the distance of the recipient from the seller);
4) the seller of a product can be either its manufacturer or a person who purchased the product for commercial purposes for retail resale;
5) the buyer of a product can be a person who purchased it for commercial purposes or for economic use, with the exception of individuals who use the goods for personal or family consumption.
The wholesale purchase and sale agreement is: 1) consensual - concluded by mutual agreement; 2) compensated - the seller undertakes to transfer the goods to the buyer, the buyer - to pay for the goods; 3) bilateral - the presence of two parties is necessary. The main goal of wholesale purchase and sale is the prompt and widespread saturation of the retail network with goods necessary to satisfy the needs of the population. The subjects of a wholesale purchase and sale agreement are only business organizations and individual entrepreneurs specializing in the manufacture, purchase and sale of goods intended for subsequent resale in a retail distribution network.
The wholesale purchase and sale agreement governs the relationship: 1) manufacturers of goods and wholesale trade organizations specializing in the sale of these goods; 2) manufacturers or wholesale trade organizations with retail trade organizations; 3) manufacturers of goods and suppliers of raw materials, materials, and components. The risk of accidental loss and accidental damage to the goods passes to the buyer from the moment the seller fulfills his obligation to transfer the goods to the buyer. The risk of accidental loss and accidental damage to goods sold while in transit passes to the buyer from the moment the wholesale purchase and sale agreement is concluded.
Supply contract
Under a supply agreement, a supplier-seller engaged in business activities undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in business activities or for other purposes not related to personal, family, home and other similar use (Article 506 Civil Code of the Russian Federation).
The supply agreement is consensual, remunerative, mutual. The general rules on purchase and sale apply to the supply contract, unless otherwise provided by the rules on it. Thus, the general provisions of the purchase and sale agreement regulate the terms of quantity, assortment, quality, completeness, containers and packaging, price, and payment procedure.
Parties supply agreement are: supplier (seller) and buyer. Only persons engaged in entrepreneurial activities can act as a supplier. They can be both commercial and non-profit organizations, as well as citizens - individual entrepreneurs.
A supply agreement may be concluded in favor of a third party - the recipient of the goods, who, although not a party to the agreement, may be indicated in it and acquires civil rights and obligations by virtue of its conclusion.
The essential terms of the contract include its subject matter and delivery period. Item a supply contract is considered established if its content allows one to determine the name and quantity of goods (clause 3 of article 455 of the Civil Code of the Russian Federation). The subject of delivery can only be goods. Moreover, the subject of a supply agreement can only be goods intended for use in business activities or for other purposes not related to personal, family, home and other similar use (purchase of office equipment, office furniture, vehicles, materials for repair work, etc.) .p.). The goods produced or purchased by the supplier are subject to delivery.
Delivery time, i.e. the deadline for the supplier to fulfill the obligation to transfer the goods to the buyer. The delivery period is determined within the overall validity period of the contract; it can be determined by a calendar date or a period of time. Often, the contract does not imply a one-time transfer of goods, but regular delivery of goods in batches. In this case, the total quantity of goods is divided into certain parts and the counterparties agree on the delivery time of individual batches (delivery periods). So, there may be quarterly, monthly, ten-day and other delivery periods. If the contract provides for delivery in separate installments, but delivery periods are not specified, then the goods must be supplied in equal monthly installments, unless otherwise follows from the law, other legal acts, the essence of the obligation or business customs
Product price is established freely, at the discretion of the parties.
The main responsibility of the supplier is to transfer to the buyer the goods, the quantity, quality and completeness of which correspond to the contract. The buyer is obliged to check the quantity and quality of accepted goods in the manner prescribed by law, other legal acts, agreement or business customs. The buyer has the right to refuse to accept goods whose delivery is overdue only if he sends a notice of his refusal to the supplier and only in relation to goods delivered by the supplier after receiving the notification, unless otherwise provided by the contract (Clause 3 of Article 511 of the Civil Code of the Russian Federation).
Distribution agreement
Under a distribution agreement, one party (distributor), as part of business activities, undertakes to purchase goods from the other party (supplier) and promote or sell them in a strictly defined territory, and the supplier undertakes not to supply goods for sale in this territory independently or with the participation of third parties , including not selling the product to third parties for distribution in this territory.
Distributors, or distribution companies, are intermediary organizations that sell purchased imported goods on the territory of the Russian Federation. Thus, when speaking about a distribution contract, we always mean a foreign trade contract. This agreement is most often long-term in nature, because it is aimed at long-term commercial relations between the intermediary distribution company and the manufacturer of the product.
Distribution relationships always arise in the field of entrepreneurial activity. Since the purpose of formalizing such relations is to promote the product, i.e. in its subsequent sale, special entities - persons engaged in entrepreneurial activities (merchants) - can participate in them. The contract must establish a minimum quantity of goods purchased by the intermediary organization from the manufacturer. Also mandatory is a provision coordinating additional supplies of goods ordered by the distributor.
The distributor may, at his own discretion, choose his own methods and channels of sales and promotion of products. The distribution agreement must agree on a list of activities to be carried out by the distributor
A distribution agreement can be a framework agreement if it defines only the general principles of interaction between participants in business transactions and formalizes their main obligations on which they reached an agreement at the time of concluding the framework agreement. The parties detail and clarify the specific terms of the transactions made in additional agreements concluded in pursuance of their framework agreement. As they are concluded, the framework distribution agreement is filled with specific content.
A distribution agreement, under which the supplier undertakes to accept the goods back from the buyer, is complex, since it includes several obligations of the same type (transfer of ownership of the goods from the supplier to the buyer and return transfer of ownership). A distribution agreement, under which the distributor undertakes an obligation to sell a product, is mixed: in addition to the terms of purchase and sale, it contains an obligation to sell the product not provided for by law.
The distributor always acts on his own behalf and at his own expense.
Contract agreement
Under a contracting agreement, a producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the procurer - the person purchasing such products for processing or sale. The contracting agreement is formal, fixed-term, paid, bilateral, consensual.
The procurer is the person who purchases the above-mentioned products for processing or sale. The responsibility of the manufacturer is to transfer products in the quantity and assortment stipulated by the contract. The procurer is obliged to accept agricultural products from the manufacturer at their location, as well as ensure their export. It is also the responsibility of the procurer to pay money for the products.
The contracting agreement is concluded directly with agricultural enterprises, peasant and farm enterprises, etc., which are the direct producers of agricultural products. The second party to this agreement are the procurers, that is, the persons purchasing such products for processing or sale.
The subject of the contract is products in raw form or having undergone primary, only the most necessary processing. If the raw materials have undergone industrial processing, we are already talking about a food product, which acts as the subject of a supply or purchase agreement.
A contract agreement is defined as being concluded in writing.
Agricultural products purchased under a contract are paid for at free market prices.
Payment terms are one of the most significant and important terms for a contract.
The procurer is obliged to accept agricultural products from the manufacturer at their location and ensure their export.
In the case when the acceptance of agricultural products is carried out at the location of the procurer or another place indicated by him, the procurer does not have the right to refuse to accept agricultural products that comply with the terms of the contract and transferred to the procurer within the period stipulated by the contract.
The contracting agreement may provide for the obligation of the procurer carrying out the processing of agricultural products to return waste from the processing of agricultural products to the manufacturer upon his request with payment at the price determined by the contract.
The manufacturer of agricultural products is obliged to transfer to the procurer the grown (produced) agricultural products in the quantity and assortment stipulated by the contract agreement.
Unilateral refusal or modification of the contract is permitted in the event of a significant violation of the contract by one of the parties to it.
A violation of the supply agreement by the supplier is considered significant in the following cases:
Delivery of goods of inadequate quality with defects that cannot be eliminated within a time acceptable to the buyer;
Repeated violation of delivery deadlines.
A violation of the supply agreement by the buyer is considered significant in the following cases:
Repeated violation of payment terms for goods;
Repeated non-selection of goods.
Responsibility of the producer of agricultural products. A producer of agricultural products who fails to fulfill an obligation or improperly fulfills an obligation bears liability if he is at fault.
Trade credit agreement
A trade credit agreement is an agreement between the parties, according to which one party provides the other party with things defined by generic characteristics.
Parties to the contract are any subjects of civil law.
A peculiarity of the legal relations of the parties under a commodity loan agreement is that, unlike the usual (typical) type of lending, in commodity lending the subject is not the lender’s funds, but a specific product.
The subject of this loan agreement is such goods as agricultural products, semi-finished products, raw materials, fuels and lubricants, etc., the deficiency of which can be compensated by borrowing from another person. Since a trade credit agreement is concluded, as a rule, for production purposes, not only the rules on a loan (credit), but also the conditions on quantity, assortment, quality, packaging and other rules of the chapter on the purchase and sale of goods are applied to it, if otherwise not provided for in the loan agreement.
It is necessary to distinguish a trade credit agreement from a loan agreement. Unlike the loan of things, under a trade loan agreement, the borrower, firstly, has the right, in pursuance of an already concluded agreement, to demand from the lender the transfer of the relevant things.
Secondly, a trade credit agreement differs from a credit agreement (loan) in terms of the subject composition of the parties. Banks and other credit organizations act as lenders in a loan agreement. A commodity loan can be provided by any person. In practice, a trade loan agreement is usually concluded by commercial organizations.
Thirdly, all the terms of the trade credit agreement on the quantity, quality, assortment, completeness of the transferred goods, their packaging and containers are regulated by the rules on the purchase and sale agreement, unless otherwise provided in the agreement.
And finally, fourthly, the agreement may establish certain requirements for the things being transferred, and a trade credit agreement, like any credit agreement, is compensated.
Agency agreement
Under a contract of agency, one party (the attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (the principal). The rights and obligations under a transaction completed by an attorney arise directly from the principal.
A DA is a contract of representation because the attorney undertakes to act on behalf of the principal. The actions of the attorney, if performed within the scope of authority, create rights and obligations directly for the principal. In this regard, general rules on representation are applicable to individual relations arising from a contract.
Legal characteristics: bilateral, consensual, gratuitous (as a rule) / compensated (unless directly provided for by law, other legal act or agreement). If the contract is related to the implementation of entrepreneurial activity by at least one of its parties (commercial representation), then the contract is presumed to be compensated, even if the amount and procedure for payment of remuneration due to the attorney are not provided for in it
The parties to the agency agreement (principal and attorney) can be citizens and legal entities. faces. Minors from 14 to 18 years of age can be principals in contracts to perform actions that they can carry out independently.
Attorneys for a DP involving commercial representation can be commercial legal entities and citizens operating as an entrepreneur without forming a legal entity. In some cases, the attorney under a contract of a certain content can only be a person who has a license to carry out entrepreneurial functions in the relevant field, for example, in the field of circulation of the Central Bank
Essential condition - subject
The subject of the DP is the execution by an attorney on behalf of the principal legal entity. actions, that is, those that entail the emergence, change or termination of the subjective rights and obligations of the principal.
Actions must be lawful - you cannot entrust the completion of an illegal transaction. Actions of a personal nature have been carried out through an attorney, for example: drawing up a will, getting married
The DP form is subject to the general rules on the form of transactions (Articles 158-163) and the form of the agreement (Article 434). Because of this, contracts involving legal entities must be concluded in writing. Written form is required for DPs between citizens in an amount exceeding at least 10 times the minimum wage established by law. The amount of the DP is determined based on the price of the transaction that the attorney undertakes to complete
The principal is obliged to issue the attorney a power of attorney (powers of attorney) to perform legal actions provided for by the agreement. A power of attorney determines the scope and nature of the powers of the attorney and is intended to be presented to third parties with whom he enters into relations on behalf of the principal. Thus, third parties have the opportunity to verify that the attorney has authority.
The validity period of the power of attorney is limited by law (clause 1 of Article 186 of the Civil Code of the Russian Federation) - 1 year.
Commission agreement
Under a commission agreement, one party (the commission agent) undertakes, on behalf of the other party (the principal), for a fee, to carry out one or more transactions on its own behalf, but at the expense of the principal.
Legal characteristics: consensual, compensated, bilateral (mutual)
· commission trade in non-food products
· brokerage activities of professional participants of the securities market (law “On the securities market”)
· commission trading on commodity exchanges (law “On commodity exchanges and exchange activities”)
· intermediary activity of fear. brokers (Law “On Insurance Business Organizations in the Russian Federation”)
Essential conditions - subject - commission agent performing one or more transactions for the principal, except for those that must be carried out personally
The Law does not establish special requirements for the form of the DC, and therefore one should proceed from the general rules on the form of the transaction (Articles 158-163) and the form of the agreement (Article 434)
The commission agent is obliged to execute the order in accordance with the instructions of the principal (clause 1 of Article 993). If the principal does not give the necessary instructions, the order is subject to execution in accordance with business customs or other usually imposed requirements. When the commission agent has completed a transaction on terms more favorable than those specified by the principal, the additional benefit is divided equally between the principal and the commission agent, unless otherwise provided by agreement of the parties. This rule is dispositive in nature, and therefore the parties have the right to provide in the contract a different procedure for the distribution of additional benefits. The commission agent is obliged to carry out the instructions given to him personally. In the absence of such a condition, the commission agent has the right to assign the fulfillment of obligations to a third party by concluding a subcommission agreement with him. In relation to this person (sub-commissioner), the commission agent acts as a principal and has all the rights and obligations of the latter.
At the same time, the commission agent remains responsible to the principal for the execution of orders. The committent himself does not have the right, without the consent of the commission agent, to enter into any relationship with the sub-commission agent, except in cases where such a possibility is permitted by the DC. The commission agent is obliged to ensure the safety of the property in his possession, transferred by the principal or received for the principal
The commission agent who discovers damage or shortage of property is obliged to take measures to protect the rights of the principal, collect the necessary evidence (draw up reports of poor quality or shortage of goods) and immediately inform the principal about everything
After executing the order, the commission agent is obliged to submit a report to the principal and transfer to him everything received under the commission agreement.
The commission agent is obliged to provide the committent with a report on the execution of the commission order. The principal who has objections to the report must report them to the commissioner within thirty days from the date of receipt of the report, unless a different period is established by agreement of the parties. Otherwise, the report, in the absence of another agreement, is considered accepted. The commission agent is not responsible to the principal for the failure of a third party to fulfill a transaction made for the principal.
Responsibilities of the committent
1) accept from the commission agent everything performed under the commission agreement. In this case, the committent is obliged to inspect the accepted property, check its quantity and quality, and if deficiencies are discovered, immediately notify the commission agent about this. Since the transaction is made in the interests of the principal, he must release the commission agent from all obligations that he has incurred under the transaction with a third party.
2) pay the commission agent a commission. The amount of the commission, as well as the del credere fee, if provided, is usually established by agreement of the parties.
Agency agreement
Under an agency agreement one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. Under a transaction made by an agent with a third party on his own behalf and at the expense of the principal, the agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party for the execution of the transaction.
Legal characteristics:
· consensual,
· double-sided,
· paid
Types (models) of agency:
· AD, which provides for the activity of an agent on his own behalf and at the expense of the principal, is constructed in the image of a commission agreement. In this regard, the legal consequences of the actions performed arise directly from the agent.
· If an agent acts on behalf and at the expense of the principal, their relationship is built according to the Assignment model. In this case, the rights and obligations under transactions completed by the agent arise with the principal
city (place of conclusion of the contract)
"____"_________ ___ G.
(Name of the legal entity - wholesale trade organization), hereinafter referred to as the "Seller", represented by (position, full name), acting on the basis of (Charter, power of attorney), on the one hand, and (name of the legal entity - buyer ), hereinafter referred to as the “Buyer”, represented by (position, full name), acting on the basis of (Charter, power of attorney), on the other hand, have entered into this agreement as follows:
1. SUBJECT OF THE AGREEMENT
1.1. The Seller transfers ownership, and the Buyer accepts and pays for the goods in quantity, quality, assortment and on the terms in accordance with the specification (Appendix __________ to the contract), which is an integral part of the contract.
1.2. Product location: ___________________________________
2. PRODUCT PRICE
2.1. Unit price: (amount in words) rub.
2.2. The total cost of the goods is: (amount in words) rub.
2.3. Changes in the price of a product during the term of the contract (allowed, not allowed).
2.4. The price of the goods includes: (the cost of containers and packaging; costs of storing the goods in the Seller’s warehouse; payment for issuing a quality certificate, a hygiene certificate, a certificate of compliance of the goods with the GOST R certification system, a technical passport and other necessary documentation; costs of insurance and transportation to the destination ).
3. CONTAINER AND PACKAGING
3.1. The goods must be (packed, packaged) by the Seller in such a way as to prevent damage and destruction during the delivery period until acceptance of the goods by the Buyer.
3.2. The goods must be (packed, packaged) as follows: __________.
4. RESPONSIBILITIES OF THE SELLER
The seller is obliged:
4.1. No later than (specify the deadline) transfer the goods to the Buyer.
4.2. Within ___ days (by telegram with notification, fax, e-mail, telephone message, etc.) notify the Buyer that the goods are ready for transfer.
4.3. Simultaneously with the transfer of the goods, hand over the following documents to the buyer: (certificate of origin of goods; quality certificate; hygiene certificate; technical passport, operating instructions, etc.).
4.4. Notify the Buyer about the shipment of the goods within (specify the period) from the date of _______ by means (telegram with notification, fax, e-mail, telephone message, etc.).
4.5. Indicate the following data in the notice of shipment of goods: (name and number of units of goods; gross and net weight; date of shipment of goods; estimated date of arrival of goods at destination; invoice number; other information).
5. OBLIGATIONS OF THE BUYER
The buyer is obliged:
5.1. Accept the goods within ____ days from the receipt of notification from the Seller that the goods are ready for transfer.
5.2. Carry out a check upon acceptance of goods in terms of quantity, quality and assortment, draw up and sign the following documents: (acceptance certificate, delivery note, etc.).
5.3. Notify the Seller of defects in the sold product noticed upon acceptance or during operation.
5.4. Pay the cost of the purchased item.
5.5. No later than (specify the deadline) at your own expense, ship returnable packaging to the Seller.
6. PAYMENT PROCEDURE
Money for the sold goods is transferred to the Seller’s bank account within ____ days after: (signing the contract; signing the goods acceptance certificate; delivery of the goods to the Buyer’s warehouse; receipt of the railway waybill; notification from the container station; notification of the arrival of the cargo at the destination airport; messages on the arrival of a ship at the port of destination; receipt of a message about the departure of a wagon (train) with goods;
7. TERMS OF DELIVERY
Delivery of goods is carried out: (by the Seller or the Buyer; by whose transport; type of transport; at whose expense - the Seller or the Buyer; delivery point; delivery time; etc.).
8. SHIPMENT PROCEDURE
8.1. Shipping point: __________________________.
8.2. Shipping time: ____________________________.
8.3. Minimum shipping rate: (container; wagon; other standards).
8.4. Features of shipment: (consignee details).
9. RESPONSIBILITY OF THE PARTIES
9.1. For untimely delivery of goods through the fault of the Seller, the latter pays the Buyer a fine in the amount of ___% of the cost of the undelivered goods, calculated in accordance with (specifications, price calculation, price agreement protocol), but not more than ____%.
9.2. In case of incomplete delivery, the Seller returns to the Buyer the cost of the incomplete goods, and also pays a fine in the amount of ___% of the cost of the incomplete goods.
9.3. If the quality of the product is defective, the Seller returns to the Buyer the cost of the defective product or replaces the defective product (copy, weight, etc.) with a quality one. A fine in the amount of _____% of the cost of low-quality goods is paid by the Seller only if he is the manufacturer of the goods.
9.4. If the assortment changes from that specified in the specification, the Seller returns to the Buyer the difference in the cost of the goods, if a cheaper product is actually delivered than indicated in the specification.
9.5. In the event of an unjustified refusal to accept the goods, the Buyer shall compensate the Seller for losses in the form of direct damage and lost profits, based on the commercial loan rate at the bank that services the Buyer.
9.6. In case of refusal to pay for the purchased goods, the Buyer pays the Seller a penalty in the amount of ____% of the cost of the unpaid goods for each day of delay in payment, starting from the _____ day, but not more than ____% in total.
9.7. For non-return of packaging, the Buyer pays ____ times the cost of the packaging.
9.8. For late return of containers, the Buyer pays a fine in the amount of: (amount in words) rub. for each day of delay, starting from the first day.
9.9. For violation of the terms of this agreement, the parties are liable in a general civil manner, compensating the injured party for losses in the form of direct damage and lost profits. The injured party is required to prove the fact and amount of losses incurred.
10. OTHER CONDITIONS
10.1. The ownership of the purchased goods passes to the Buyer at the moment (the parties sign the acceptance certificate; the Seller receives the bill of lading; the Seller receives the baggage receipt, etc.).
10.2. The risk of accidental death is borne by the owner in accordance with the current civil legislation of the Russian Federation.
11. FORCE MAJEURE
11.1. In the event of force majeure circumstances (fire, flood, earthquake, military action, civil unrest, nationalization, other circumstances beyond the reasonable control of the parties), the deadlines for fulfilling obligations under this agreement are proportionately postponed for the duration of these circumstances, if they significantly affect the fulfillment of the term of the entire contract or its part, which is subject to fulfillment after the occurrence of force majeure circumstances.
11.2. The parties must immediately notify each other in writing of the beginning and end of force majeure circumstances that prevent the fulfillment of obligations under this agreement.
11.3. If, due to force majeure circumstances, the delay in fulfilling obligations under this agreement is more than (specify the period), either party has the right to refuse the unfulfilled part of the agreement. In this case, neither party has the right to demand compensation for possible losses.
11.4. The party citing force majeure circumstances is obliged to provide a document from the competent government agency to confirm them.
12. ADDITIONAL TERMS
(if necessary, additional conditions for the execution by the parties to the agreement that are not included in the previous sections of the agreement are specified).
13. DISPUTE RESOLUTION
13.1. All disputes under this agreement are resolved through negotiations.
13.2. If agreement is not reached, disputes are resolved in arbitration court in accordance with the current legislation of the Russian Federation.
14. TERM OF THE AGREEMENT
14.1. This agreement applies to the execution of one transaction and may be extended by additional agreement of the parties.
14.2. The contract period is from "___"_____________ ___ to "___"______________ ___.
14.3. The contract may be terminated:
By agreement of the parties;
By decision of the competent authorities in accordance with the legislation of the Russian Federation;
Due to force majeure circumstances.
15. APPENDICES TO THIS AGREEMENT
15.1. Appendix _______ on page ____
15.2 Appendix _______ on page ____
16. LEGAL ADDRESSES, BANK DETAILS AND SIGNATURES OF THE PARTIES
SELLER: BUYER: Legal address: Legal address: Bank details: Bank details: Signature: Signature: M.P. M.P.Source - "Documentation of a trading enterprise: a collection of forms and samples of completion with comments", "GrossMedia", "ROSBUCH"
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A contract for the wholesale purchase and sale of goods is classified as an unnamed contract, since it is not directly provided for by the Civil Code of the Russian Federation. At the same time, it is known to legal science and is used in legal implementation practice.
Under a wholesale purchase and sale agreement, one party, the seller engaged in business activities of selling goods, undertakes to transfer ownership to the other party - the buyer engaged in business activities of selling goods at retail - a certain product for the purpose of subsequent sale to consumer citizens through the conclusion of a retail agreement. purchase and sale.
The qualifying feature of a wholesale purchase and sale agreement is target acquisition of goods - for resale at retail, and it is this goal that determines all the specific features of this agreement.
The need for special regulation of wholesale purchase and sale is due to the fact that the legislator imposes a number of special responsibilities on the seller-retailer aimed at ensuring the rights of the citizen-consumer, for the fulfillment of which he is forced to impose increased requirements on his counterparty - the person who sold the goods for subsequent sale retail.
Unlike a supply contract, a wholesale purchase and sale contract cannot be classified as a contract for which the principle of freedom of contract applies without restrictions. In this agreement, the parties’ ability to formulate contractual terms and even create mixed contracts is limited by law, ultimately for the sake of ensuring the consumer’s right to purchase a quality product, his ability to choose a product from a wide range, thereby maximizing the full satisfaction of the consumer’s needs. It is this goal that gives essential features to the wholesale purchase and sale agreement, making it advisable to consider it as a separate type of sales agreement.
The subjects of a wholesale purchase and sale agreement are always business entities. Since the criterion for distinguishing this agreement is the purpose of acquiring the goods, the main specific feature of the subject composition is that The buyer is always the entity that sells goods at retail. Among the buyers in this agreement, retail chains are especially highlighted, since for the sale of goods to such buyers there are more stringent requirements in terms of selecting suppliers, forming the terms of the contract and its execution, established by the Trade Law.
Product in a wholesale purchase and sale agreement are things defined by generic characteristics, intended to satisfy the personal, family, household and other similar needs of citizens and intended for sale in the retail network. The contract must describe the goods by indicating the name and quantity of the goods. Depending on the type of product being sold, the specifics of the content of the contract are determined, since the specificity of wholesale purchase and sale is the need to take into account special legal requirements regarding the sale of certain types of goods to consumers at retail. The law establishes special requirements for food products. Thus, Federal Law No. 29-FZ dated January 2, 2000 “On the quality and safety of food products” established the obligation to provide complete and reliable information about the quality and safety of food products, materials and products, in Art. 18 provides for requirements for the content of labels and labels. In addition, special requirements are established by technical regulations for certain types of goods (for example, milk, dairy products, juice products, vegetables, fruits, etc.). Such features are also established by subordinate regulatory legal acts. Thus, the Rules for the sale of certain types of goods (approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55) disclose, in particular, the obligation of the seller of various goods to bring certain information to the attention of consumers. In accordance with and. 11 of the Rules, the seller must provide information about the goods and manufacturers; And. 12 - familiarize the consumer, upon his request, with the accompanying documentation for the goods; And. 13 - familiarize yourself with documents confirming the availability of permits for the extraction of wildlife objects used in the manufacture of goods, etc.
The specified requirements are presented by the legislator to the seller in the retail purchase and sale agreement, however, the seller will be able to fulfill most of these requirements only if they were previously addressed to the entities from which the retail seller purchased the goods and fulfilled by them.
For purchase and sale, as is known, the transfer of any goods that meet the terms of the contract is permissible, even if the contractual requirements are lower than the minimum requirements for quality and safety established by law. It is allowed to sell scrap, scrap, waste and other objects that cannot be used for their original purpose, but can serve as raw materials for processing or other purposes. At the same time, such goods cannot be sold under a retail purchase and sale agreement, therefore they cannot be sold under a wholesale purchase and sale agreement. That is why, with regard to the quality of goods in a wholesale purchase and sale agreement, the rules of law governing the quality of goods sold at retail apply.
The rights of the buyer when purchasing low-quality goods under a wholesale purchase and sale agreement are broader than those in a purchase, sale and delivery agreement. In particular, demands for replacement of goods may be presented to the seller regardless of the significance of the defect - in all cases where such goods were returned by a retail buyer. The buyer of goods under a retail sales contract has the right to return goods with defects, regardless of the nature of the defect (except for technically complex goods). Satisfaction by the buyer under a wholesale purchase and sale agreement of the requirements of his counterparties - consumers, leads to the emergence of his right to compensation for losses caused. The corresponding requirement can be addressed to the seller.
The form of a wholesale purchase and sale agreement is not specifically regulated, which means that the form is subject to general requirements, therefore, it is possible to conclude an agreement, including through the exchange of electronic messages on the Internet, concluding an agreement by accepting orders, etc.
As we have already noted, it seems inappropriate to discuss the issue of the relationship between supply contracts and wholesale purchase and sale, due to the fact that these contracts are distinguished on different classification grounds. In this regard, one can critically evaluate the judgment, often found in the literature, according to which a wholesale purchase and sale agreement is a type of supply agreement, since wholesale purchase and sale “is an entrepreneurial purchase and sale” 1, and its separation is inappropriate.
It differs in significant features agreement for the wholesale purchase and sale of food products to a retail chain. Federal Law No. 381-FZ of December 28, 2009 “On the Fundamentals of State Regulation of Trade Activities” specifically identifies an agreement for the supply of food products to a retail chain, establishing a number of features for concluding such an agreement and the formation of individual contractual terms. Despite the fact that the Law calls this agreement “supply” based on the characteristics identified in the science of commercial law, such an agreement can be classified as a wholesale purchase and sale for the purposes of its conclusion. We emphasize once again that the characterization of the contract as a delivery based on the subject, term, and entrepreneurial nature of the parties’ activities does not exclude the qualification of this contract as a wholesale purchase and sale based on the goal of bringing the goods to the retailer.
The main goals of special regulation of the wholesale purchase and sale of food products in retail chains are to support and develop competition, provide opportunities for small and medium-sized businesses to enter the market, ensure and protect the morals of sellers. In this agreement, freedom of contract is limited to protect the interests of the seller, this is due to the fact that the trading network is considered as a “stronger” entity, therefore special mechanisms are used to equalize the legal status of subjects, which always imply certain restrictions on freedom of contract.
Under trading network by virtue of Art. 2 of the Trade Law means a set of two or more objects that are under common management, or a set of two or more objects that are used under a single commercial designation or other means of individualization.
For the contract in question, these restrictions are as follows:
- 1) information transparency in the selection of suppliers by the trading network and the conclusion of a contract. In accordance with the law, the trading network is obliged to post on the Internet the rules for selecting suppliers, to provide explanations to all applicants about the requirements and criteria for selecting suppliers (clause 1 of Article 9 of the Trade Law);
- 2) restriction of freedom of contract in terms of choosing the type of contract to be concluded. The law specifically prohibits the use of commission agreements, as well as mixed agreements with commission elements for the purchase of goods by retail chains. A commission agreement does not imply the transfer of ownership of the goods to the commission agent; in a situation where the assortment of a retail chain is formed with the help of a commission agreement, this means that the goods are transferred to the retail chain “for sale,” which means the seller of such goods continues to bear all the risks in relation to the goods, even if in this case the goods are not actually in his possession. The prohibition on the use of the commission model is intended to protect the interest of the seller of the goods;
- 3) restriction of freedom of contract in terms of the formation of certain terms of the contract. Part 12 Art. 9 of the Trade Law establishes a ban on imposing additional services on the seller (merchandising, advertising, etc.). In addition, the Law establishes a quantitative limit on the amount of the so-called “shelf fee” - the fee for including a product in the assortment of a retail chain - no more than 10% of the price of the product (Part 4 of Article 9 of the Trade Law). Legislation defines deadlines for deferred payment when selling food products, which depend on the shelf life of the product (Part 7, Article 9 of the Trade Law).
These measures are designed to ensure the interests of the seller, for whom it is important to be able to sell his own goods, timely receipt of payment for the goods sold to ensure uninterrupted trade turnover.
- Romanei, K). B. System of contracts in Russian civil law. M., 2013.
