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Official text:
Article 779. Agreement paid provision services
1. Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
2. The rules of this Chapter shall apply to contracts for the provision of communication, medical, veterinary, auditing, consulting, information, training, tourism and other services, with the exception of services provided under contracts provided for in Chapters 37, 38, 40, 41, 44, 45, 46, 47, 49, 51, 53 of this Code.
Lawyer's comment:
In accordance with Article 128 of the Civil Code of the Russian Federation, services as a kind of certain actions or certain activities are a special type of objects of civil rights. The role of such actions and activities increases significantly in the context of the transition of the economic structure to market economy. Of paramount importance in terms of expanding and strengthening the service sector and improving its legal regulation has the fact of including the category in question in the Constitution. The interrelated, largely reproduced in Article 1 of the Civil Code of the Russian Federation norms contained in Articles 8 and 74 of the Constitution are recognized as fundamental. By virtue of one of them, along with the unity of the economic space in Russia, the free movement of goods, services and financial resources, support for competition, freedom economic activity. Other norms do not allow the establishment of customs borders, duties, fees and any other obstacles to the free movement of goods, services and financial resources on the territory of the country. Restrictions on the movement of goods and services may be introduced only in accordance with Federal Laws, provided that this is necessary to ensure safety, protect human life and health, protect nature and cultural values.
It should be noted that the allocation in the system of civil law agreements enshrined in a codified law of a special type of contract - paid services - was carried out in Russian jurisprudence for the first time. The roots of this phenomenon go back to classical Roman law, which was known for the contract of hiring services (locatio-conductio operarum). Under such an agreement, one party (hired) assumed the obligation to perform certain services in favor of the other party (employer), and the employer assumed the obligation to pay an agreed remuneration for these services. In contrast to such an agreement, the purpose of which was to provide the contractor with the finished result of the work, the contract for the hiring of services had as its subject the performance of individual services at the direction of the hired person. Formulating the above definition of a contract for the provision of services for a fee, the Civil Code of the Russian Federation reveals (by including in brackets) the content of the phrase "provide services". To do this, the law uses such related words as "to perform certain actions" or "to carry out certain activities." Such a technique, apparently, is due to the need to clarify the insufficiently clearly expressed initial part of the text of paragraph 1 of Art. 779 of the Civil Code of the Russian Federation, in which the words "provide services" are reused after the name of this agreement.
A different, narrower, but also not quite definite meaning is given to the concept of services by the Federal Law of 08.12.2003 No. 164-ФЗ "On the Fundamentals of State Regulation of Foreign Trade Activities". In it, this concept is presented only as entrepreneurial activity aimed at meeting the needs of others, with the exception of activities carried out on the basis of labor relations. Giving a description of the content of the contract for the provision of services, sometimes they recognize the absence of a material form of the services provided as its main feature. Meanwhile, such a categorical statement does not agree with the essence of a number of relations mentioned in paragraph 2 of Article 779. So, many contracts for the provision of communication services are concluded regarding the dispatch of letters, parcels, parcels. One of the terms of the tourist service contract is most often the provision of certain Vehicle. Such examples can be multiplied by other relationships, such as the provision of health care services various types prosthetics. Paragraph 2 of Article 779 provides an indicative list of types of contracts that fall under the rules of this chapter.
However, it is not possible to identify any pattern in the sequence and significance of their location. Along with this, the numbers of eleven chapters of the Civil Code of the Russian Federation, providing for services to which the mentioned rules do not apply, are also named here. Among the latter are chapters 37 and 38, respectively, devoted to contracts, which, as noted, are aimed at performing work of a different nature. Thus, there can hardly be any doubt that the Civil Code of the Russian Federation refers contracting as such and the implementation of research, development and technological works to the category of services in broad sense. From the text of Article 779, it can be concluded that the rules of this article apply exclusively to the named types of contract for the provision of services. Meanwhile, each of them, to one degree or another, has been enshrined in the relevant current laws, as well as in other special regulations:
1) Federal Law No. 126-FZ of July 7, 2003 "On Communications" establishes the legal basis for activities in the field of communications carried out under the jurisdiction Russian Federation. The law defines not only the powers of the authorities state power on the regulation of this activity, but also the rights and obligations of individuals and legal entities that participate in these activities or use communication services. Communication services are understood as the product of activities for the reception, processing, transmission and delivery of postal items or telecommunication messages. Special chapters provide for the rights of communication users, responsibility in carrying out activities in the field of communications;
2) Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education" provides that in the charter of an educational institution in without fail indicate, in particular, the organizational and legal form of the educational institution, the availability of paid educational services and the procedure for their provision on a contractual basis. Educational institution in accordance with its statutory goals and objectives, may implement additional educational programs and provide additional educational services on a contractual basis outside the educational programs that determine its status;
3) Federal Law of November 24, 1996 No. 132-F3 "On the basics of tourism activities in the Russian Federation" (as amended on July 1, 2011). As stated in the preamble to the Law, it defines, first of all, the principles of state policy aimed at establishing the legal foundations for a single tourist market in the Russian Federation. However, neither the introduction nor the text of the Federal Law mentions the Civil Code of the Russian Federation, which led to the consolidation of vague and even contradictory provisions. So, in article 1, as one of the basic concepts, a tour is defined as a complex of services for accommodation, transportation, meals for tourists, excursion services, as well as services of guides-interpreters and other services provided depending on the purpose of travel. At the same time, in article 6, the rights of the tourist include compensation for losses and compensation for moral damage in case of non-fulfillment of the terms of the contract. retail purchase and sale tourist product by a tour operator or travel agent in the manner prescribed by the legislation of the Russian Federation. Thereby legal form tourist services is recognized as nothing more than a contract of retail sale. This not only does not correspond to the essence of the latter and tourism activities, but also fundamentally distorts the ratio of these categories.
The essential terms of the contract for the provision of services must be observed in it.
Without their indication or if the data is filled in incorrectly, problems may arise with the recognition of the agreement as invalid.
To prevent this from happening, and the transaction took place, special attention should be paid to the correct drafting of the contract.
This is the only way to protect the participants in the transaction from abuse and fraud.
The Civil Code of the Russian Federation in the article defines the contract for the provision of services for compensation.
Paragraph one of this article states that such a contract is recognized under which one party, the contractor, is obliged, within the framework of the agreement, to provide certain services in favor of the customer, and the second, in turn, must pay for them.
Clause 2 of Article 779 of the Civil Code of Russia defines a list of possible varieties of such an agreement.
These include transactions for the provision of medical, information, educational and other services.
Form and decoration
Theoretically, a service agreement can be concluded verbally between the parties.
They have the right to agree on the conditions for fulfilling the customer's tasks, terms and payment, etc.
However, this threatens with a lack of timely payment for the contractor or poor-quality work for the customer.
To avoid problems and disagreements, it is better to draw up a contract for the provision of services strictly in writing. It is signed by the parties, which means their agreement with the terms of the transaction.
Documents of this type can be drawn up in a simple written form, which means that there is no obligation to certify them with a notary. This can be done if the participants in the transaction fear that errors may be made during self-compilation.
The law does not prohibit the involvement of specialists in the case, if the parties so desire. However, going to a notary public will make the transaction process more expensive.
Structure and content
The contract usually consists of several clauses and has a special structure. At the very beginning, its name is indicated, below the place and date of its conclusion. The body of the document then contains the following sections:
- Thing. This should contain data about the service itself, describe all important points her execution.
- Validity. This section contains information on the date of entry into force of the agreement and its termination.
- The term of the service. It is necessary to establish the period in which the contractor must perform the service that is provided for by the agreement.
- Rights and obligations of the parties. The clause should contain all the important obligations of the contractor and the customer in relation to each other. The parties may modify the standard form of the contract and include in this paragraph all the parameters that they consider necessary.
- The procedure for terminating the agreement. The paragraph contains the conditions under which the parties can terminate the contract and the consequences of such actions. There may be an exhaustive list of all circumstances, the occurrence of which entails the termination of the agreement.
The conclusion must contain signatures, details of the parties. In addition, the participants in the transaction have the right to independently supplement the text with clauses on the resolution of disputes and other nuances of the transaction that may arise in the course of cooperation.
Agreement conditions
Any agreement is based on the conditions that the parties put forward regarding the quality of the service performed and payment for it.
The participants in the transaction have the right to independently determine the conditions that should be stipulated in the contract.
However, there are some of them that should be taken into account and written out in the text of the agreement without fail.
These include:
- Put forward for the service being performed, including quality requirements, etc.
- Conditions for acceptance of completed work and refusal of it. However, in the event of a refusal due to reasons beyond the control of the contractor, the customer must reimburse all current costs incurred by the contractor.
- Rules and terms of payment, method of transferring money, etc.
- Actions of the parties in disputable situations, the procedure for resolving disagreements, etc.
The rule on the personal performance of services is established by law in an article of the Civil Code of the Russian Federation. That is why if there are no additional conditions on this occasion, the contract does not provide for the personal provision of services by the contractor.
In addition to the subject of the transaction and payment for the work performed, other conditions are considered additional and are negotiated by the parties at their own discretion.
Essential terms of the contract for the provision of services
The law provides for the conditions, without the exact inclusion of which in the text of the contract, it cannot be considered valid.
This means that the absence of certain data in the text of the agreement automatically entails its invalidity.
Such in the case of a contract for the provision of services is the subject of the contract.
It should be clearly described in the text, i.e. it should be clear what kind of service is provided. Payment should also be specified in the text of the document, since the customer undertakes to pay it.
The exact list of essential terms of the contract for the provision of services for compensation is not specified in the law. However, within the meaning of Article 779 of the Civil Code of the Russian Federation, it follows that it is the condition on the subject and payment that are essential.
Common Mistakes
In the preparation and interpretation of the contract for the provision of services, errors sometimes occur. The most common and dangerous of them is the absence of an essential condition. In the event of a controversial or ambiguous situation, the interested party can take advantage of this fact and challenge the contract in court. This may lead to its invalidation, and all the corresponding consequences.
In addition, this agreement is often confused in meaning and essence with a work contract.
The first implies the commission of some action in favor of the customer, while the second, despite the initial similarity, implies a different result.
Under the contract agreement, the performer also performs actions, but the results will be a specific subject (object), separable from the activity itself.
1. Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
2. The rules of this Chapter shall apply to contracts for the provision of communication, medical, veterinary, auditing, consulting, information, training, tourism and other services, with the exception of services provided under contracts provided for in Chapters 37, 38, 40, 41, 44, 45, 46, 47, 49, 51, 53 of this Code.
Commentary on Art. 779 of the Civil Code of the Russian Federation
1. The commented article for the first time formulates a legal definition of a contract for the provision of services for compensation. The previous legislation provided for only certain types of obligations for the provision of services, such as an order, commission, transport expedition, however general concept the contract covering all types of services was not enshrined in the legislation. In addition, to regulate many contractual relations, it was necessary to apply the rules on contracts aimed at regulating relations that are similar in appearance, but in reality have a different legal nature.
2. Given the novelty of this agreement, as well as the judicial practice that was insignificant at the time of the adoption of part two of the Civil Code of the Russian Federation, the definition of the agreement is formulated in the law only in the most general way, with the main emphasis being placed on disclosing the content of the concept of service. The service in the commented article is understood as the activity of the performer, which creates a certain beneficial effect not in the form of a materialized result, but in the form of the activity itself. It is characteristic that the actions of the contractor are not limited to the result that could be transferred to the customer and which would allow fixing the fulfillment of the obligation on the part of the contractor. That is why in a contract for the provision of services for a fee, the contractor does not bear the risk of not achieving the result, in contrast to the work contract, in which the main criterion for the completion of work is the transfer of their result to the customer.
3. As the main features of the service, one can name, firstly, that the result of its useful effect cannot be expressed in a materialized form, and secondly, the fact that the performer does not guarantee the achievement of the result of the service. The result of the performer's activity can be expressed in such forms as the recovery of the patient, passing an interview or passing an exam, winning litigation, providing advice, obtaining aesthetic satisfaction from an exhibition, watching a movie, etc.
The provision by the contractor of any material materials (for example, draft documents, written opinions, recipes, etc.) in the process of providing a service should not be confused with the materialized result of its activities. Meanwhile, if the customer formulates the requirement for the subject of the contract solely in the form of providing, for example, a written opinion of the auditor, and the auditor's activity, in turn, is limited to the provision of a written opinion, then in this case the nature of the emerging relationship is more consistent with a work contract.
4. The subject of the contract for the provision of services for compensation is precisely the contractor's own actions, and not the actions of third parties or state bodies with which the service provider entered into relations on behalf of the customer. Thus, the subject of the contract for the provision of services is not covered by a court decision in a case that the service provider conducted on behalf of the customer, or the actions of the debtor to pay the debt to the customer, if the service provider, for example, provided services to draw up a claim. It was precisely this circumstance that the Presidium of the Supreme Arbitration Court of the Russian Federation drew attention to in an information letter dated September 29, 1999 N 48 “On Certain Issues judicial practice arising from the consideration of disputes related to contracts for the provision of legal services”: the contractor’s claim for payment of remuneration is not subject to satisfaction if the plaintiff substantiates this claim with a condition of the contract that makes the amount of payment for services dependent on the decision of the court or state body, which will be adopted in the future . This provision was supported by the Constitutional Court of the Russian Federation in Resolution No. 1-P dated January 23, 2007 “On the case of checking the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation in connection with complaints from LLC Corporate Security Agency and citizen V .AT. Makeev". Two conclusions follow from these judicial acts: firstly, the subject matter of the contract for the provision of legal services for compensation does not cover court decisions; secondly, the obligation to pay for the services rendered cannot be made dependent on the result that is achieved not by the actions of the contractor itself, but by third parties, including state bodies.
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Bulletin of the Supreme Arbitration Court of the Russian Federation. 1999. No. 11.
Collection of legislation of the Russian Federation. 2007. N 6. Art. 828.
The cases reviewed became known as the "success fee" ban cases, i.e. the prohibition of such additional remuneration that the customer paid to his service provider in excess of the amount of the agreed remuneration for issuing, for example, a court decision in his favor. Indeed, is it permissible for a lawyer to assume responsibility (in any form) for a court ruling in favor of his client? Of course not. The service provider can only be responsible for his actions covered by the paid services agreement, which was confirmed by the highest judicial instances. However, no one has the right to forbid a satisfied client from paying his lawyer an additional premium on top of the amount of remuneration. The legal nature of such an award will then go beyond the scope of the contract for the provision of services. If this is done spontaneously after winning the case, such a relationship should be qualified as a gift. If the promise to pay the premium is made in advance and becomes some additional incentive for the work of a lawyer, then these relations can be qualified as a natural obligation, due to which the following restrictions will apply: firstly, the “success fee” is not recoverable in court; secondly, the amount paid as a “success fee” cannot be attributed to legal costs and recovered from the losing party, and thirdly, the client who paid the “success fee” is not entitled to attribute this amount to the cost, but is obliged to pay it from net profit. Under these conditions and within the framework of the current legal regulation, a “success fee” may exist.
Although the issue of the “success fee” was considered by the courts in relation to the provision of legal services, the positions expressed are of general importance and can be applied to medical, educational, and any other types of services covered by the subject of the contract for the provision of services.
5. The contract in question is consensual, mutual and reimbursable.
Compensation of the contract follows directly from its legal definition, i.e. if services are provided free of charge, for example, in the form of patronage assistance, then their provision is not subject to the commented article. A number of authors are trying to justify the possibility of applying the provisions of Ch. 39 of the Civil Code to relations for the provision of gratuitous services and thereby allow the fundamental possibility of constructing obligations for the provision of gratuitous services. Without arguing this position in detail, its authors make a traditional mistake, believing that the property nature of the service does not depend on the counter provision. The peculiarity of a service as a commodity lies precisely in the fact that services always have a use value, but their exchange value in itself is absent, since they do not have a material substrate, but act exclusively in the form of the activity of the service provider, which, like any other "living labor" , has no exchange value. The exchange value of a service appears only when payment is expected for its provision. In the absence of a counter provision (payment), the service does not have the properties of a product, therefore, relations for the provision of gratuitous services are not commodity-money and are not covered by the subject of civil law.
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See: Civil Law: Textbook / Ed. A.P. Sergeyev. M., 2010. V. 2. P. 503 (the author of the chapter is A.A. Pavlov); see also: Romanets Yu.V. The system of contracts in the civil law of Russia. M., 2001. S. 405; Stepanov D.I. Services as an object of civil rights. M., 2005. S. 170.
See more details: Krotov M.V. Obligation to provide services in Soviet civil law. L., 1990.
6. The performer is obliged to perform certain actions or carry out certain activities. As a rule, when providing a service at the individual request of the customer, the contractor performs certain actions aimed at achieving a beneficial effect for a particular customer. At the same time, telephone communication services, exhibition halls of museums are carried out constantly, mainly without the request of a specific customer, who, at his own request, can use such services. These services are expressed in the implementation of certain activities.
7. The main obligation of the customer under the contract for the provision of services for compensation is their payment.
8. The commented article does not contain indications of special requirements for the subject composition of the contract for the provision of services for compensation, and therefore are subject to application general provisions about the subjects of obligations.
9. Paragraph 2 of the commented article contains an approximate list of services that may be the subject of a contract for the provision of services for a fee, and the types of services that have not received regulatory consolidation in the Civil Code of the Russian Federation in the form of a subject are listed. independent varieties contracts. Services that are self-selected in the Code legislative consolidation are not included in this list.
The list of contracts under which these types of services are provided includes not only contracts for the provision of services in the proper sense of the word, but also those in which there is a pronounced tangible result and which were not initially covered by the concept of a contract for the provision of services. Yes, ch. 37 (in a row), 38 (performance of research, development and technological work), 40 (transportation), 44 ( Bank deposit), 45 (bank account), 46 (settlements), 47 (storage) provide for such contractual relations in which the embodied result is a constitutive sign of the contract. At the same time, the varieties of the contract for the provision of services are indeed the contracts provided for in Ch. 41 (transport expedition), 49 (order), 51 (commission), 53 (trust management).
From the list of contracts for the provision of paid services covered by Ch. 39, ch. 52 (agency), which is apparently explained by the novelty of this agreement and the absence at the time of the adoption of part two of the Civil Code of the Russian Federation of the practice of its application.
10. In addition to the Civil Code of the Russian Federation, a significant part of contracts for the provision of services for a fee is regulated by special legislative and other legal acts: federal laws“On Postal Communication”, “On the Basics of Tourist Activities in the Russian Federation”, the Law of the Russian Federation “On Private Detective and Security Activities in the Russian Federation”. In addition, numerous rules for the provision of services have been adopted, approved by decrees of the Government of the Russian Federation, as well as other regulatory acts.
Contract for the provision of services
1. Under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.
2. The rules of this Chapter shall apply to contracts for the provision of communication, medical, veterinary, auditing, consulting, information, training, tourism and other services, with the exception of services provided under contracts provided for in Chapters 37, 38, 40, 41, 44, 45, 46, 47, 49, 51, 53 of this Code.
Article . Execution of the contract for the provision of services
Unless otherwise provided by the contract for the provision of services for compensation, the contractor is obliged to provide services personally.
Article . Payment for services
1. The customer is obliged to pay for the services rendered to him within the terms and in the manner specified in the contract for the provision of services for compensation.
2. If it is impossible to perform due to the fault of the customer, the services are subject to payment in full, unless otherwise provided by law or the contract for the provision of services for compensation.
3. In the event that the impossibility of performance has arisen due to circumstances for which none of the parties is responsible, the customer shall reimburse the contractor for the expenses actually incurred by him, unless otherwise provided by law or the contract for the provision of services for compensation.
Article . Unilateral refusal to execute the contract for the provision of services
1. The customer has the right to refuse to execute the contract for the provision of services for compensation, subject to payment to the contractor of the expenses actually incurred by him.
2. The contractor has the right to refuse to fulfill obligations under the contract for the provision of services for compensation only if the customer is fully reimbursed for losses.
