Civil Law #4
Zhanat Alimanov, assistant professor
Remark
CONTRACT
Rescission* Termination** Voidance***
art. 401 art. 367 art. 159
Damages Restitution
& discharge of
obligations
*расторжение; **прекращение; *** признание недействительным
Home assignment
13. Section 1 (General Provisions), Labor Code
14. Section 2 (Employment Relationships), Labor Code
Find out what are the differences between Civil & Labor Codes (with references to articles).
Terms
1. To rescind – расторгнуть
2. Rescission – расторжение
3. Material Breach – существенное нарушение
4. Unilateral Refusal – односторонний отказ
Step 1 (Formation of Contract)
Is there an offer? (art. 393-5)
Is there an acceptance?
(art. 397)
If not, is there a counteroffer?
(art. 396)
If yes, there is a CONTRACT
Step 2 (How to avoid contract obligations?)
CONTRACT
FORM(форма,
articles 151, 152, 153)
DEFENSES(основания
недейств-сти, art. 159)
EXCUSES(Освобождение от
Ответ-ти, ст. 359, 374, 404)
No witnesses or
RestitutionRestitutionRestitution
PLAN
VI. Excuses from Liabilities
VII. Breach vs. Material Breach (Rescission)
VI. Excuses from Liabilities
Example 1
Andrei agreed to build a two storied
(двухэтажный) pub for Boris for
10 mln. They made contract.
When Andrei was digging foundation
of the pub. He found underground
waters which would 40 times
increase cost of the construction, up
to 400 mln.
Andrei says that it is impossible to
implement the contract.
Example 1
Is Andrei excused
(освобождается)
from his obligations?
Example 1
Is Andrei excused
(освобождается)
from his obligations?NO. Art. 359 (2) & 374
EXCUSE from Liability Art. 359 (2) & 374
2. Impossibility
Impossibility: must be real, not commercial
Example 2
Let’s assume that Andrei invested
heavily in foundation as well as tried
to divert the waters, but failed to
provide sufficiently solid foundation.
Given such foundation, Andrei
managed to build only one storied
(одноэтажный) pub. Besides, he
was one month late.
Boris sues for damages including
lost profit.
Example 2
1. Was Andrei in breach of contract?
2. What are consequences of the
breach?
3. Does Andrei have to pay damages?
Example 2
1. Was Andrei in breach of contract? Art. 349
2. What are consequences of the
breach? Art. 350
3. Does Andrei have to pay damages? NO. Art.
359.
EXCUSE from Liablity (articles 359, 404)
2. NOT GUILTY
Not Guilty: he did everything that he could to perform
properly
VII. Breach vs. Material Breach
Example 3
Let’s assume that Boris considersthis as material breach of contract.
He would like to rescind the contract.
A. What are the differences between
1. Material breach (Rescission);2. Breach?
B. What are the differences between consequences of:
1. Material breach (Rescission);2. Breach?
Consequences (art. 401, 403, 354)
BREACH
Material Ordinary
Rescission No Rescission
NO OBLIGATIONS OBLIGATIONS
Example 3
Let’s assume that Boris considers
this as material breach of contract.
He would like to rescind the contract.
What are the differences between consequences of:
(1) Material breach (Rescission); Boris does NOT have to pay money under the contract & right to damages
(2) Breach? Boris has to pay money, he has the right only to damages.
Step 1 (Formation of Contract)
Is there an offer? (art. 393-5)
Is there an acceptance?
(art. 397)
If not, is there a counteroffer?
(art. 396)
If yes, there is a CONTRACT
Step 2 (How to avoid contract obligations?)
CONTRACT
FORM(форма,
articles 151, 152, 153)
DEFENSES(основания
недейств-сти, art. 159)
EXCUSES(Освобождение от
Ответ-ти, ст. 359, 374, 404)
No witnesses or
RestitutionRestitutionRestitution
Step 3 (Consequences for Non-Compliance)
CONTRACT
BREACH(нарушение,
art, 359)
Damages (убытки)
MATERIAL BREACH
(сущест. нарушение, art. 401)
Damages (убытки) & Discharge of obligations
(Rescission*)
*расторжение => прекращение обязательств