The Economical Board corrected the cassation in the interpretation of the protocol of disagreements

Economic board Supreme Court The Russian Federation explained what guided, when satisfied with the complaints of LLC « M-7c » and LLC “Lorenkom » in a dispute with the Department of City Property of Moscow (DGI). In 2013, both companies applied to the DGI with a proposal to conclude contracts for the sale and purchase of their property under the law No. 159-FZ ( About the peculiarities of alienation of immovable property located in state or municipal ownership and leased by small and medium business entities”).

The DGI decided to privatize the premises and sent draft contracts of sale and purchase to the companies for signing. But buyers offered the redemption price seemed too high, and they sent new corrected documents to the department, appending reports on the assessment of the market value of premises to the answer. The DGI regarded this behavior as a refusal to sign contracts, and accordingly, the loss of the pre-emptive right to purchase premises (according to Part 9, Article 4 of Law No. 159-FZ ).

« M-7cn » and “Lorenkom » went to court with suits to compel the DGI to conclude deals (cases No. A40-48277 / 2014, A40-34226 / 2014, respectively), and the first two instances of their demand fully satisfied. The courts qualified the new draft treaty as a protocol of disagreement – « in connection with the existence of doubts about the reliability of the market valuation of the property specified in the draft agreement &raquo ;. They came to the conclusion that the companies did the right thing, and established art. 445, 446 of the Civil Code of the Russian Federation the procedure (on the transfer of disputes arising at the conclusion of the contract to the court) is observed. But the cassation board of the Arbitration Court of the Moscow District decided on the contrary and left the statement without satisfaction. In her opinion, neither “M-7th” nor “Lorenkom”, having sent letters to the DGI with objections to the assessment of property, did not use the right to forward the protocol of disagreement to the draft contract, and therefore the right of preemptive redemption.

There was no refusal of transactions

Companies complained to the Supreme Court where they argued that, based on the content of the provisions of the Civil Code of the Russian Federation, consent to enter into a contract, taking into account the changes stated in the protocol of disagreements, can be expressed both by an indication of this in the protocol and by drafting a new contract for One document that includes the amended condition. These arguments have been persuaded by the economics committee of the Sun, and as a result, the “triple” (Alexey Manenkov, Elena Zolotova and Galina Popova), the decision of the first two instances was upheld, and the county’s cassation orders were canceled.

In their definitions (see here and here), the judges of the Armed Forces noted that the agreement to conclude a contract on other terms is not an acceptance, but is recognized as a new offer, which does not exclude its execution in the same form as the originally submitted offer &ndash ; that is, in the form of a draft treaty. And accordingly, the economical board reasoned, the courts of the first and appellate courts lawfully qualified the new draft contracts as a protocol of disagreements regarding the redemption price and came to the conclusion that the plaintiffs did not refuse to sign the deal.

Right is not a formality

The protocol of disagreements is only a legal term, meaning that the party participating in pre-contractual relations expressed the will to conclude the contract on other terms, comments Pavel Khlyustov, head of the department for the resolution of litigation of the bar association &Barkhchevsky and partners » .  In what objective form this will is expressed, as a general rule does not matter in principle , – he adds.  The right should not be formal , – says Arik Shabanov, partner of the law firm « Prime ligal » . –  In this case, the value is not the form of the document itself, but its content . If the intention is to accept the text of the contract previously proposed from the new draft agreement, but on different terms, then this project should be regarded as the implementation of the right to conclude an initial contract on different terms, Shabanov considers.

 Thus, the court board indicates that the conclusion of a contract on other terms is not an acceptance, but is recognized as a new offer. 

 However, in the sense of paragraph 1 of Art. 445 of the Civil Code of the Russian Federation, applied to the conclusion of the contract without fail, the direction of the protocol of disagreements is the acceptance of the offer on other terms, rather than a new offer &raquo ;, –she explains. 

And in Khlyustov’s view, the economic committee did not pay attention to another important circumstance in these cases. – that Law No. 159-FZ contains a special rule concerning the dispute on the reliability of the value of the market value of the object (the appeal to the court for challenging such an assessment (Part 4.1 of Article 4)). This rule, according to Khlystov, the legislator excluded the possibility of sending a protocol of disagreements concerning the market value of the object being redeemed, but provided for judicial procedure for resolving this issue.

12.10.2015 Content from https://pravo.ru/review/view/122706/