Capital construction can be carried out by contract, economic or mixed methods (contract and economic), determined primarily by the procedure for financing costs and the relationship of the parties in the construction process.

Construction of facilities and performance of work by contracting is predominant.

With the contract method of construction, construction and installation work is carried out by specialized organizations that have licenses to perform the relevant types of construction work, on the basis of a construction contract with the customer. The construction contract is the main legal document regulating the relationship between construction participants. The contracting method of conducting work has a number of advantages. It provides conditions for the intensification of construction based on the maximum use of structures, parts, factory-made components, the latest construction equipment, and advanced work methods. Contracting organizations have a permanent workforce of construction workers, production assets, and perform work using industrial methods. This method of work allows us to reduce the duration of construction, improve quality, reduce the cost of construction, and ensure an increase in savings.

The subject of the contract is:

construction, reconstruction of an enterprise, building, structure or other facility;

performing construction and other special installation work.

The rules for concluding and executing agreements (contracts) also apply to major repairs of facilities.

Customers and contractors (general contractors, subcontractors) can be legal entities and individuals of the Republic of Belarus and other states.

In the contract method of carrying out work, the customer is: the management of an operating enterprise, organizations, and individual citizens. The function of the customer on state-owned new buildings for industrial purposes, as well as large non-industrial facilities built according to individual projects, can be performed by a specially organized directorate of the enterprise under construction.

During the construction of residential buildings for social and cultural facilities and public utilities in regions, cities, districts, a single customer service is created, which implements investment programs at the expense of funds from the republican and local budgets, as well as funds from legal entities and individuals contributing them in the form of equity participation .

When constructing facilities for public needs, the state customer is determined from among the government bodies that have the necessary investment resources, or organizations with the right to dispose of such resources.

The Directorate or, accordingly, other bodies are the managers of all funds allocated to finance investment projects and costs. They enter into contracts with design and construction organizations, equipment suppliers, to carry out design, construction and installation work, and to supply equipment.

The selection of a contractor is carried out:

for objects for which contract tenders are held - according to their results;

for objects for which contract tenders are not held - at the discretion of the customer.

The customer may delegate part of the responsibilities, as well as the authority to make decisions on his behalf in relations with the contractor, to the engineer (engineering organization). The relationship between them is governed by a service agreement. In this case, the contractor’s consent to conclude such an agreement is required.

The contractor has the right to engage, on the basis of subcontract agreements, including on competitive terms, subcontractors to perform certain types of work. Fulfillment of the customer's responsibilities for work for which the general contractor has entered into a subcontract agreement is assigned to the general contractor, and the contractor's responsibilities are assigned to the subcontractor. The general contractor is responsible to the customer for all work performed by him and the subcontractor.

A warranty period of two years is established for objects accepted for operation and construction work performed.

A construction contract is concluded if the customer has: a relevant document certifying the rights to the land plot, a decision of local executive and administrative bodies for the construction of the facility; design and estimate documentation that has passed the state non-departmental examination, agreed upon and approved in the prescribed manner, if the responsibility for its development is not assigned to the contractor; protocol on contract bidding; protocol on the results of contract tenders and the selection of their winner.

The contractor has a license to perform the relevant types of construction work, valid on the territory of the Republic of Belarus.

The contract can be signed by the parties no later than 20 days after the completion of the contract bidding and the execution of the protocol. If one of the parties evades concluding a contract, the other party has the right to apply to the economic court with a claim to compel the conclusion of the contract, as well as compensation for losses caused by evading its conclusion.

If holding contract tenders is not mandatory, then the contract is concluded on the basis of negotiations and agreement of the parties; it can be prepared by the customer or contractor or jointly by the parties. Before concluding a contract, the customer and the contractor may enter into a preliminary agreement defining the relationship between the parties at the stage of preparation for construction of the facility.

When preparing a work contract by the contractor, the customer submits to him within the agreed time frame the documents specified above, as well as:

proposals on the price and timing of construction of an object or type of construction work;

payment schedule;

delivery schedule for structures, materials, products, equipment and inventory, if their delivery is entrusted to the customer by agreement of the parties;

schedule for commissioning work when putting the facility into operation in the planned year;

a schedule for combining types of construction work and production processes at existing facilities, indicating, if necessary, possible dates for temporarily stopping production, as well as excluding land from agricultural circulation in order to create appropriate conditions for carrying out construction work; and other documentation.

The period for consideration by the contractor of the specified documents, drawing up and signing of the contract is determined by agreement of the parties, but should not exceed 30 days.

Within the specified period, the contractor develops a work schedule, as well as a schedule for the delivery of structures, materials, products, equipment and inventory, the implementation of which he assumes. These schedules are attached to the draft contract agreement.

The contractor, sending the signed draft contract to the customer, determines the normally required period (at least 20 days) during which the customer is obliged to review this draft and provide a response. If the conclusion of a contract is mandatory, the customer must respond within 30 days from the date of receipt of his project. If the customer disagrees with certain terms of the received draft contract, he has the right to draw up a protocol of disagreements and attach it to the contract.

The contract contains the following data and mandatory conditions:

names of the parties and necessary details;

subject of the contract (name and location of the construction project, types of construction work);

terms (month and year) of the beginning and completion of construction of the facility, execution of construction work;

the negotiated (contract) price of an object, type of construction work, established based on the results of bidding, and for objects for which bidding is not mandatory, the price is determined by agreement of the parties;

the procedure for payment for work performed;

sources of financing;

distribution of functions between the customer and the contractor to provide the facility with structures, materials, and equipment;

responsibilities of the customer and contractor in the performance of the contract;

the procedure for the customer to control the quality of the work performed by the contractor and the supplied structures, materials, products, equipment and inventory;

terms of payment and amount of bonuses for timely commissioning of the facility;

liability of the parties in case of failure to fulfill obligations under the contract;

features of acceptance of completed construction work, commissioning of the facility;

relationship between the parties in the event of force majeure and other conditions.

Legal entities and individual entrepreneurs carrying out construction and reconstruction of residential premises for citizens must define in contracts, along with the above, the following essential conditions:

The amount and procedure for depositing funds by citizens;

Grounds for termination of the contract earlier than the established period;

The procedure for returning funds to citizens in the event of failure to fulfill an obligation or termination of a contract earlier than the established period;

Liability for failure to fulfill obligations.

Mandatory annexes to a construction contract are a work schedule and a payment schedule.

A subcontract agreement is concluded based on the results of contract bidding announced by the general contractor or through direct negotiations with subcontractors. The subcontract agreement includes the same mandatory conditions as the contract agreement. In addition, the subcontract agreement determines the lists of services provided by the general contractor, as well as the amount and procedure for payment by the subcontractor for these services.

The contract may provide for the obligation of the party bearing the risk of accidental loss or accidental damage to construction projects, materials, and equipment to insure the corresponding risks.

When constructing facilities for public needs, financed from the republican and local budgets, extra-budgetary funds, bank loans, the state customer enters into a state contract with the contractor to perform contract work in compliance with the requirements of the Rules. At the same time, the state customer fulfills the obligations and has the rights established by the Rules for customers, with the exception of the right to independently make decisions on the volume of investment allocation and the directions of their use; on the transfer of their powers to third parties; on conservation or termination of construction of the facility.

The customer is responsible for failure to fulfill or improper fulfillment of obligations stipulated by the contract and pays a penalty to the contractor in the following amounts:

for unreasonable evasion from accepting completed construction work and issuing documents confirming its completion - 0.1% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (facility);

for untimely transfer of an advance payment for completed and accepted construction work - 0.15% of the untransferred amount for each day of delay;

for violation of delivery deadlines for structures, materials, equipment - 0.15% of their cost for each day of delay, but not more than the cost of undelivered structures, materials, products, equipment, inventory.

The contractor is responsible for failure to fulfill or improper fulfillment of obligations stipulated by the contract and pays a penalty in current prices to the customer in the following cases and amounts:

for untimely provision of construction readiness of work, including for failure to submit the scope of work - 0.1% of their cost for each day of delay;

for violation of the deadlines for completing construction work that is the subject of a contract for commissioning of a facility - 0.15% of the cost of these works for each day of delay, but not more than 10% of the cost of construction work (facility);

for untimely elimination of defects identified during the warranty period of operation of the facility - 0.15% of the cost of construction work to eliminate defects for each day of delay.

The Contractor is responsible for poorly performed work discovered within the warranty period.

In addition to the sanctions provided for in these rules for failure to fulfill obligations under a work contract, the party that violated the contract shall compensate the other party for losses in the amount not covered by the penalty (fine, penalty).

The party guilty of exceeding the deadlines for the construction of an object (construction work) established by the contract shall compensate the other party for the losses caused by this.

The procedure for financing capital construction costs depends on the sources of financing and the procedure for payment for work performed between the customer and the contractor established in the construction contract. Financing of the customer's costs for capital construction can be carried out with current(current) account (when financed from state budget funds and the investor’s own funds) or from the account for accounting debt on loans(for construction lending).

From the account from which construction is financed, the following are paid: equipment and materials, work performed and services rendered, completed enterprises, start-up complexes, construction phases and facilities, design and estimate documentation, costs of maintaining the directorate of the enterprise under construction and other costs.

Work performed by subcontractors can be paid either from the current (settlement) account of the general contractor, or directly from the customer’s account (in accordance with concluded agreements). Construction and installation work performed by contractors under direct contracts with customers is paid from the customer’s account on the basis of acceptance certificates for the work performed.

Construction financing is carried out at a negotiated (contract) price established in the construction contract.

The negotiated (contract) price when placing construction orders through contract bidding is established upon the conclusion of a construction contract between the customer and the contractor. When conducting contract bidding, the following types of prices are applied:

The price of the customer (investor), which is the starting price of the construction project or contract work, proposed by him on the date of the decision to carry out contract work.

The contractor's bid price, which is determined by contracting organizations applicants for a construction order and serves for their submission of a competitive proposal when participating in the auction.

When concluding a construction contract, the negotiated price is applied, which is fixed in the construction contract and is determined based on the results of the bidding based on the bid price of the winning contractor.

The price of the customer (investor) and the price of the contractor's proposal are determined in prices on the date of the decision to conduct contract bidding, taking into account taxes, fees (duties) and other deductions to the revenues of the relevant budgets in accordance with current legislation. To determine the customer's price, the base-index method is used, in which the indices of changes in the cost of construction and installation work by cost elements, approved in the prescribed manner by the republican government bodies, are applied to the base estimated cost of contract work. The contractor's bid price can be determined either by the base-index method or by the resource method, which involves the application of weighted average and current (current) prices and tariffs to the resource consumption standards approved by construction organizations or republican government bodies, including resource-estimate standards . In some cases, to formulate the contractor's bid price, the resource-index method can be used, combining the resource method with a system of resource price indices used in construction

To carry out calculations, a settlement period is determined, which can be a month or another period of time necessary to complete a stage of work or the entire volume of work provided for in a construction contract

The basis for payments for work performed, complexes (stages) of work (services) are certificates signed by representatives of the contractor and the customer on the cost of work performed, drawn up on the basis of certificates of work (stages) completed. Payments for work performed can be made with the customer paying advances to the contractor or without paying advances. The procedure and conditions for advance payment are stipulated in the construction contract.

The Bank provides continuous financing and lending to construction projects in accordance with construction contracts - within the limits of their estimated cost based on a copy of the consolidated estimate, work schedules and payments developed on the basis of projects, estimates and construction duration standards. The bank institution, in which financing is opened at the expense of budgetary funds and bank loans, exercises preliminary and subsequent control over the targeted expenditure of funds, compliance by enterprises with state, financial, design, estimate and settlement discipline in construction, as well as contractual obligations.

Some enterprises carry out construction work using economic methods; the volume of such work in the republic is 4-5%.

With the economic method, work is carried out using the efforts and resources of the customer. During the construction period, enterprises organize construction organizations, teams, capital construction departments, and create a production base.

The role of the customer is performed by the management of the enterprise, and the responsibilities of the contractor are usually departments or departments of capital construction that carry out construction and installation work.

The economic method of construction has become widespread when carrying out work on the re-equipment of continuous production. It is also advisable for small volumes of work, in cases where their implementation by a third party in a production environment creates inconvenience for both the contractor and the customer.

It is also used when carrying out technical re-equipment and reconstruction of existing production facilities. Such work can also be carried out in a mixed way (contracting and economic).

If there is a large number of works carried out in an economic way, enterprises can organize auxiliary production for the production of materials, structures and products for these purposes, if the need for them cannot be met by enterprises in the construction industry and the building materials industry.

In construction carried out economically, two methods of financing are used - according to the amount of work completed and according to cost elements.

In the first method, work is accepted and paid as construction and installation work is completed. In this case, the manager of all funds allocated for capital construction is the management of the enterprise. The work is carried out by the capital construction department (department). The relationship between the management of the enterprise and the department (management) of capital construction is organized in approximately the same order as the contract method of performing work. The management of the enterprise bears full responsibility for the quality, timing and cost of construction. In this case, the construction manager, who is subordinate to the management of the enterprise and is responsible for the results of his financial and economic activities, is directly involved in the execution of work. Instead of a contract, a list of construction projects is drawn up, which is signed by the parties and handed over to the construction manager. It indicates the volume of work at the estimated cost for each object. For each year, quarterly tasks are determined for technological stages and work packages.

The capital construction department, like the contractor, needs working capital for the procurement of building materials, structures, parts and other costs associated with the work. Payment for work performed is usually made monthly on the basis of acts on the cost of work performed, which are signed by the construction manager and the director of the enterprise. However, if the customer pays the contractor for completed construction and installation work at full cost (contractual price), then when paying for work performed in an economic way, a number of deductions are made - planned savings, depreciation charges for fixed construction assets. These amounts are withheld due to the fact that they are envisaged as sources of financing capital investments in the economic method of construction.

Small construction projects can be financed by the bank based on cost elements. In this case, the construction site opens one account from which all costs associated with construction are paid (production of design estimates, purchase of equipment, materials, structures, parts, components, wages, etc.).

BASIC CONDITIONS, PROCEDURE FOR CONCLUSION, EXECUTION, TERMINATION OF A CONSTRUCTION CONTRACT. OTHER CONTRACTS USED IN CONSTRUCTION

To build real estate, it is necessary to carry out a huge amount of work using various types of materials. When constructing a building, structure or structure in accordance with the norms of civil law, the necessary agreements are concluded between the construction customer and the contractor.

Traditionally, these contracts are construction contracts. This type of agreement is very complex, since when concluding them, the parties must stipulate a significant range of issues: deadlines for completing the work (in stages or at once); the procedure for their payment; supply of materials; installation of equipment; terms and conditions for eliminating deficiencies discovered after acceptance of the work results by the customer, etc.

According to the general definition of a contract, one party (which is the contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for it.

The definition of a construction contract is given in Art. 740 Civil Code of the Russian Federation. In accordance with it, under a construction contract, the contractor undertakes, within the period established by the contract, to build a certain object according to the customer’s instructions or to perform other construction work, and the customer undertakes to create the necessary conditions for the contractor to carry out the work, accept their result and pay the agreed price.

The procedure for concluding construction contracts does not differ from concluding other types of contracts. Accordingly, a contract is concluded if an agreement is reached between the parties in the form required in appropriate cases on all the essential terms of the contract. A construction contract is signed by the parties in simple written form and does not require notarization or state registration.

Depending on who the construction contract is concluded between (the parties to the contract), the following criteria can be distinguished:

1) the customer of construction is the state. Under a government contract, the government customer is a government agency that has the necessary investment resources, or an organization vested with the right to dispose of such resources by the relevant government agency, and the contractor is a legal entity or citizen.

2) the construction customer is an independent economic entity (legal entity);

3) the construction customer is an individual.

Let us dwell on the most common type of construction contract, when its parties are two independent legal entities. It is necessary to immediately make a reservation that the activity of construction of real estate objects is classified as licensed. The contractor engaged by the customer must have licenses to carry out those types of construction activities that are subject to licensing in accordance with current legislation. But obtaining the appropriate licenses is necessary not only to perform certain types of work, but also to perform the functions of a contractor and construction customer.

A construction contract is concluded for the construction or reconstruction of an enterprise, building (including a residential building), structure or other object, as well as for the performance of installation, commissioning and other work inextricably related to the object under construction. The rules on construction contracts also apply to major repairs of buildings and structures, unless otherwise provided by the contract. That is, a construction contract can be concluded both for the creation, construction of a new facility, and for the reconstruction of a real estate property, as well as for the performance of installation, commissioning and other works inextricably linked with the facility under construction. The performance of major repairs of buildings and structures is also regulated by the norms of construction contracts, unless the parties provided otherwise when signing the relevant agreement.

In cases provided for by the contract, the contractor undertakes to ensure the operation of the facility after its acceptance by the customer for the period specified in the contract.

In cases where, under a construction contract, work is performed to satisfy the household or other personal needs of a citizen (customer), the rules of the paragraph “Household Contract” on the rights of the customer under a household contract are respectively applied to such an agreement.

General rules on contracts established by Ch. 37 of the Civil Code of the Russian Federation, apply to certain types of construction contracts, which include construction contracts, unless otherwise established by the rules of the Civil Code of the Russian Federation on these types of contracts.

The essential terms of the contract are the following:

1) a condition on the completion date of the work provided for in the contract. According to Art. 740 of the Civil Code of the Russian Federation, the contractor undertakes to build a specific object or perform other construction work within a specific period established by the construction contract, on the instructions of the customer. That is, the condition on the completion date of the work must be present in the specified type of contracts. This requirement was reflected in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51 “Review of the practice of resolving disputes under construction contracts” (hereinafter referred to as the Review). In accordance with clause 4 of the Review, a construction contract is considered not concluded if it does not contain a condition on the deadline for completing the work. Consequently, the condition on the completion date of the work is an essential condition of these contracts. If this condition is absent in the contract, by virtue of Art. 432 of the Civil Code of the Russian Federation, this agreement should be considered not concluded, since the agreement is considered concluded if an agreement is reached between the parties in the form required in appropriate cases on all essential terms of the agreement. Essential are the conditions regarding the subject of the contract, the conditions that are named in the law (as in the case of a construction contract) or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, there should be an agreement has been reached.

Violation of the deadlines for completion of work by the contractor is grounds for termination of the contract in accordance with Art. 450 of the Civil Code of the Russian Federation, which provides the grounds for amendment and termination of the contract. According to it, at the request of one of the parties, the contract can be changed or terminated by a court decision in the event of a significant violation of the contract by the other party. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.

In this case, by agreement of the parties, the completion date of work may be changed, extended or postponed to another date.

The remaining terms of the construction contract, discussed below, are not essential for this type of contract, i.e., in their absence, the specified contract cannot be considered not concluded. But nevertheless, they must be specified in the contract, since when concluding a construction contract, their specification is necessary in accordance with the Civil Code of the Russian Federation;

2) the terms of the contract regarding the price of the work to be performed. In accordance with Art. 709 of the Civil Code of the Russian Federation, which contains general rules on contracts in general, the price of work in a contract includes compensation for the contractor’s costs and the remuneration due to him. It can be determined by drawing up an estimate.

The price of the work (estimate) can be approximate or fixed. In the absence of other instructions in the contract, the price of the work is considered fixed.

This difference in price characteristics is significant. If the price, by agreement of the parties when signing the contract, is determined to be approximate (i.e., a direct indication of this fact is contained directly in the contract), the contractor may, subject to the conditions listed below, demand an increase in the price:

a) if there is a need for additional work;

b) with timely warning to the customer about this. A contractor who fails to promptly warn the customer about the need to exceed the price of work specified in the contract is obliged to fulfill the contract, retaining the right to pay for the work at the price specified in the contract.

After warning, the customer who does not agree to exceed the price of the work specified in the contract has the right to withdraw from the contract. And the contractor in this case can demand that the customer pay him the price for the completed part of the work.

As for the fixed price of a construction contract, the contractor does not have the right to demand an increase in the fixed price, and the customer does not have the right to demand a reduction, including in the case when at the time of concluding the construction contract it was impossible to provide for the full scope of work to be performed or the expenses necessary for this.

If there is a significant increase in the cost of materials and equipment provided by the contractor, as well as services provided to him by third parties that could not have been foreseen at the conclusion of the contract, the contractor has the right to demand an increase in the Set Price, and if the customer refuses to fulfill this requirement, termination of the contract in accordance with Art. 451 of the Civil Code of the Russian Federation.

The specified change in the cost of materials and equipment is a significant change in the circumstances from which the parties proceeded when concluding the contract. A change in circumstances is considered significant when they have changed so much that, if the parties could have reasonably foreseen it, the contract would not have been concluded by them at all or would have been concluded on significantly different terms.

Such a change is the basis for its modification or termination.

Since the customer refuses to make appropriate changes to the contract price, these circumstances constitute grounds for termination of the contract. Termination is possible by agreement of the parties or in court if the following conditions are simultaneously met:

a) at the time of concluding the contract, the parties assumed that such a change in circumstances would not occur;

b) the change in circumstances was caused by reasons that the interested party could not overcome after their occurrence with the degree of care and prudence that was required of it by the nature of the contract and the conditions of turnover;

c) execution of the contract without changing its terms would so violate the relationship of property interests of the parties corresponding to the contract and would entail such damage for the interested party that it would largely lose what it had the right to count on when concluding the contract;

d) it does not follow from business customs or the essence of the contract that the risk of changes in circumstances is borne by the interested party.

When terminating a contract due to significantly changed circumstances, the court, at the request of either party, determines the consequences of terminating the contract based on the need for a fair distribution between the parties of the costs incurred by them in connection with the execution of this contract.

According to clause 6 of the Review, the contract may establish a method for determining the price or its component. In accordance with Art. 709 of the Civil Code of the Russian Federation, the contract specifies the price of the work to be performed or the method for determining it. Based on Art. 746 of the Civil Code of the Russian Federation, payments must be carried out in the manner prescribed by the agreement. If the contract specifies that the price of the work consists of two parts: an estimate, expressed by a specific amount, and a variable, expressed by the current index of the cost indicator, the method for determining the price is actually agreed upon by the parties in a form that allows it to be calculated without additional approvals;

3) the terms of the agreement on payment for work. The condition on the procedure for payment for work, on the payment of an advance (if the parties have agreed on it) must be reflected in the contract, since otherwise, according to Art. 746 of the Civil Code of the Russian Federation, payment for work performed by the contractor is made in accordance with Art. 711 of the Civil Code of the Russian Federation. That is, if the contract does not provide for advance payment for the work performed or its individual stages, the customer is obliged to pay the contractor the agreed price after the final delivery of the work results, provided that the work is completed properly and on time, or with the customer’s consent ahead of schedule. The contractor has the right to demand payment of an advance or deposit only in cases and in the amount specified in the law or the contract. Thus, the agreement may provide for a phased payment procedure with appropriate payment terms, prepayment, advance payment. But in the absence of these conditions, the customer has the right to make payment after the final delivery of the work results and provided that the work is completed properly. That is, according to Art. 746 of the Civil Code of the Russian Federation, it is allowed in a construction contract to provide for payment for work at a time and in full after acceptance of the object by the customer.

In accordance with Art. 712 of the Civil Code of the Russian Federation, if the customer fails to fulfill the obligation to pay the established price or other amount due to the contractor in connection with the execution of the work contract, the contractor has the right to retain the result of the work, as well as equipment belonging to the customer, things transferred for processing (processing), the remainder of unused material and other the customer's property found in his possession until the customer pays the appropriate amounts. This provision is general and, in relation to a construction contract, provides for the following. The contractor has the right to withhold:

a) the result of the work (either a separate stage of the work, or a constructed facility);

b) equipment owned by the customer, transferred to the contractor for the performance of work, materials not used by the contractor, also owned by the customer and transferred to the contractor on the basis of a contract.

Satisfaction of the contractor's demands from the value of the retained property must be made on the basis of Art. 360 of the Civil Code of the Russian Federation, which regulates the relevant procedure. The claims of the contractor holding the thing are satisfied from its value in the amount and manner provided for satisfying the claims secured by the pledge, i.e., by court decision;

4) condition regarding technical documentation and estimates. According to paragraph 2 of Art. 743 of the Civil Code of the Russian Federation, a construction contract must determine the composition and content of technical documentation, and it must also stipulate which party must provide the relevant documentation and within what time frame. Design and estimate documentation is a mandatory appendix to the construction contract, since it is on its basis that construction and installation work is carried out. The contractor is obliged to carry out construction and related work in accordance with the technical documentation defining the volume, content of the work and other requirements for them, and with the estimate determining the price of the work.

The construction customer must, in accordance with Art. 747 of the Civil Code of the Russian Federation, provide a plot of land for construction, prepare the territory of the construction site, ensuring the timely start of work, including transferring for use to the contractor the buildings and structures necessary for the implementation of the work, ensure the relocation of persons and organizations located in buildings subject to demolition, ensure the installation of engineering networks, cargo transportation, and also transfer project documentation to the contractor:

a) the approved part, including the construction organization project (it contains, in particular, measures to ensure the strength and stability of constructed and existing buildings and structures during the construction process; decisions on the organization of transport, water supply, sewerage, energy supply, communications; decisions on erection of structures, construction in difficult natural and climatic conditions, as well as cramped conditions; measures to temporarily restrict traffic, change routes.
transport; situational construction plan with the location of junctions with railway tracks, river and sea berths, temporary settlements, etc.);

b) working documentation for the entire facility or for certain stages of work.

The design documentation must be approved for the execution of work by the customer with the signature of the responsible person or by affixing a stamp.

On the other hand, despite all the importance and mandatory availability of design documentation for construction and installation work, and in accordance with paragraph 5 of the Review, the absence of duly approved technical documentation is not an unconditional basis for recognizing the contract as not concluded.

An essential condition of the contract is the condition that determines its subject, as follows from Art. 740 of the Civil Code of the Russian Federation, in the absence of which it is considered not concluded.

In accordance with Art. 743 of the Civil Code of the Russian Federation, technical documentation determines the volume, content of work and other requirements for them, i.e. the subject of the contract.

If the parties stipulated in the contract that the contractor’s responsibility is to perform a specific type of work and the contract price for these works is indicated, this indicates that the parties actually determined the subject of the contract. If the parties did not have any disagreements on this subject of the contract, and they considered it possible to begin its execution, and the customer, upon completion, accepted the result of the work according to the act, then there is no reason to consider the contract not concluded due to the lack of technical documentation:

5) a term of the contract that imposes obligations on one of the parties to provide construction with materials and equipment. According to Art. 745 of the Civil Code of the Russian Federation, the specified obligation to provide construction with materials, including parts and structures, or equipment is borne by the contractor, unless the construction contract stipulates that the provision of construction in whole or in a certain part is carried out by the customer. That is, this condition is also left to the discretion of the parties when concluding a construction contract. If the parties have not settled by introducing an additional clause into the contract, the norm of the Civil Code of the Russian Federation applies, and the contractor must ensure the completion of the work by supplying the necessary equipment and materials when performing the appropriate scope of work.

The party whose responsibility is to ensure construction is responsible for the discovered impossibility of using the materials or equipment provided by it without deteriorating the quality of the work performed, unless it proves that the impossibility of use arose due to circumstances for which the other party is responsible.

When installing equipment supplied by the contractor or performing work using his own materials, he is obliged to provide the customer with technical passports, quality certificates and other necessary documents confirming their quality. He must also provide the customer with documents confirming the manufacturer’s price and the fact of purchasing them at these prices.

In addition, the construction contract must specify all penalties for violation by the parties of their obligations under the contract (for example, for the contractor’s violation of deadlines for completing work, for the customer’s failure to provide the construction site or design documentation on time, etc.)

In accordance with Art. 706 of the Civil Code of the Russian Federation, the contractor can act in relation to the customer as a general contractor or subcontractor. If the law or the contract does not provide for the contractor’s obligation to perform the work provided for in the contract personally, the contractor has the right to involve other persons (subcontractors) in the performance of his obligations. In this case, the contractor acts as a general contractor. That is, the general contractor may not carry out direct construction and installation work, but may involve a third, third-party organization for this purpose. But at the same time, the general contractor, in accordance with civil law, is entrusted with serious responsibility.

The general contractor in the system of relationships between him, the customer and the subcontractor bears the following responsibility:

1) to the customer - for the consequences of non-fulfillment or improper fulfillment of obligations by the subcontractor in accordance with the rules of the Civil Code of the Russian Federation on the fulfillment of an obligation by a third party (clause 1 of Article 313 of the Civil Code of the Russian Federation) and on the liability of the debtor for the actions of third parties (Article 403 of the Civil Code of the Russian Federation);

2) to the subcontractor - for non-fulfillment or improper fulfillment by the customer of obligations under the contract.

Unless otherwise provided by law or contract, the customer and the subcontractor do not have the right to make claims against each other related to the violation of contracts concluded by each of them with the general contractor. That is, the customer and the subcontractor are in no way connected with each other, there are no legal relations between these persons, unless otherwise provided by law or contract (for example, if the customer, with the consent of the general contractor, did not entrust the subcontractor with performing a certain amount of work). Moreover, in accordance with clause 9 of the Review, payment by the general contractor for work performed by the subcontractor must be made regardless of the payment by the customer to the general contractor.

On the other hand, the customer has the right to conclude contracts for the performance of certain works with other persons (for example, directly with subcontractors), but with the consent of the general contractor (this consent can be indicated when concluding a general contract as one of its conditions). In this case, these persons are responsible for non-performance or improper performance of the work directly to the customer.

Termination of a construction contract is carried out in accordance with general civil procedure in compliance with the requirements of Chapter. 29 Civil Code of the Russian Federation.

But, in addition, the Civil Code of the Russian Federation provides grounds for the parties to refuse to fulfill the specified agreement (these provisions are exceptions to the requirements of Article 310 of the Civil Code of the Russian Federation, according to which unilateral refusal to fulfill an obligation is unacceptable):

1) in accordance with Art. 717 of the Civil Code of the Russian Federation, unless otherwise provided by the contract, the customer may, at any time before delivery of the result of the work to him, refuse to fulfill the contract by paying the contractor part of the established price in proportion to the part of the work performed before receiving notice of the customer’s refusal to fulfill the contract. The customer is also obliged to compensate the contractor for losses caused by termination of the contract, within the difference between the price determined for the entire work and the part of the price paid for the work performed. According to clause 19 of the Review, this article establishes the maximum limit for damages in the event of a unilateral refusal by the customer to fulfill the contract. In accordance with paragraph 1 of Art. 15 of the Civil Code of the Russian Federation, the damage caused is fully compensated, unless the law or contract provides for compensation for losses in a smaller amount. Article 717 of the Civil Code of the Russian Federation determines that in addition to paying the contractor part of the price established by the contract in proportion to the volume of work performed before receiving notice of the customer’s refusal to perform the contract, the customer is obliged to compensate for losses caused by termination of the contract, within the difference between the price determined for the entire work, and part of the price paid for you
complete work.

This rule does not contain an exception to the general rule of compensation for losses and does not relieve the contractor from the obligation to prove losses incurred by him, but only limits the amount of compensation if the actual damage exceeds the maximum limit established by law;

2) according to Art. 719 of the Civil Code of the Russian Federation, when the customer’s violation of his obligations under the contract, in particular the failure to provide material, equipment, technical documentation or things to be processed (processed), prevents the contractor from fulfilling the contract, and also in the presence of circumstances clearly indicating that the fulfillment of the specified duties are not performed within the prescribed period, unless otherwise provided by the contract, the contractor has the right to refuse to perform the contract and demand compensation for losses.

Relations related to investment activities carried out in the form of capital investments are regulated by the Federal Law “On investment activities in the Russian Federation carried out in the form of capital investments.” Thus, it examines the legal and economic foundations of investment and construction activities in terms of the activities of investors in financing construction, the contractor’s performance of the required volumes of work, and the activities of customers in organizing construction.

The objects of capital investment in the Russian Federation are various types of newly created and (or) modernized property in private, state, municipal and other forms of ownership, with exceptions established by federal laws, i.e. this law is applicable to legal relations arising in construction.

The subjects of investment activity carried out in the form of capital investments are:

1) investors - individuals and legal entities created on the basis of an agreement on joint activities and not having the status of a legal entity, associations of legal entities, state bodies, local governments, as well as foreign business entities. They make capital investments on the territory of the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation;

2) customers - individuals and legal entities authorized by investors who implement investment projects. At the same time, they do not interfere with the entrepreneurial and (or) other activities of other investment entities, unless otherwise provided by the agreement between them. Customers can be investors. The customer, who is not an investor, is granted the rights to own, use and dispose of capital investments for the period and within the powers established by the agreement and (or) government contract in accordance with the legislation of the Russian Federation;

3) contractors - individuals and legal entities who perform work under a contract and (or) government contract concluded with customers in accordance with the Civil Code of the Russian Federation - Contractors are required to have a license to carry out those types of activities that are subject to licensing in accordance with federal law ;

4) users of capital investment objects - individuals and legal entities, including foreign ones, as well as state bodies, local governments, foreign states, international associations and organizations for which the specified objects are created. Users of capital investment objects can be investors.

A subject of investment activity has the right to combine the functions of two or more entities, unless otherwise established by an agreement and (or) government contract concluded between them.

Relations between subjects of investment activity are carried out on the basis of an agreement and (or) government contract concluded between them in accordance with the Civil Code of the Russian Federation. Their terms remain in force for the entire period of their validity, with the exception of cases provided for by the Federal Law “On investment activities in the Russian Federation, carried out in the form of capital investments” and other federal laws.

Thus, legal relations between subjects of investment activity are built on the basis of agreements concluded between them in accordance with the Civil Code of the Russian Federation. But according to Art. 421 of the Civil Code of the Russian Federation, the parties are free to conclude an agreement; they can enter into an agreement, both provided for and not provided for by law or other legal acts. Therefore, although an agreement on investment activity is not provided for by civil law, the terms of each specific agreement are qualified in accordance with the Civil Code of the Russian Federation (as the terms of a work contract, a simple partnership agreement, etc.). But such participants in civil legal relations as investors are absent in the Civil Code of the Russian Federation.

These contradictions complicate the qualification of contracts of this type taking into account the norms of the Civil Code of the Russian Federation.

It is permissible to conclude a simple partnership agreement between legal entities engaged in the construction of real estate. Under a simple partnership agreement (joint activity agreement), two or more persons (partners) undertake to pool their contributions and act together without forming a legal entity to make a profit or achieve another goal that does not contradict the law (Article 1041 of the Civil Code of the Russian Federation).

The parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities can only be individual entrepreneurs and (or) commercial organizations. This provision of paragraph 2 of Art. 1041 of the Civil Code of the Russian Federation is in some sense ambiguous. The question remained whether individuals could be one of its parties (if all the requirements of Chapter 55 of the Civil Code of the Russian Federation are met) if the simple partnership agreement was not concluded for the purpose of carrying out entrepreneurial activities.

In order to clarify these and other controversial issues, the Supreme Court of the Russian Federation adopted a generalization of the practice of consideration by the courts of the Russian Federation of cases on disputes between citizens and organizations raising funds from citizens for the construction of multi-apartment residential buildings dated September 19, 2002.

In accordance with Art. 40 of the Constitution of the Russian Federation, everyone has the right to housing.

The possibility of realizing this right by building housing at the expense of citizens’ own funds without limiting the area is enshrined in civil legislation.

A study of practice has shown that in order to purchase residential premises, citizens enter into agreements with organizations, both provided for and not provided for by law and other legal acts.

In the absence of legislation regulating agreements on investment activities, the courts proceeded from their content, and not from their name, while ambiguously assessing the legal nature of the transactions concluded:

1) as a work contract. By virtue of Art. 702 of the Civil Code of the Russian Federation, under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

The contractor's responsibilities are specified in Art. 740 of the Civil Code of the Russian Federation, which stipulates that under a construction contract, the contractor undertakes, within the period established by the contract, to build a certain object on the instructions of the customer or to perform other construction work, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the agreed price.

A distinctive feature of the relations that have arisen between the parties under this type of agreement is that the citizen enters into legal relations for the construction of his apartment directly with the contractor-organization carrying out the construction of a residential building.

If, in fact, the concluded agreement is a work contract, and the name does not correspond to its content, then by virtue of the provisions of clause 2 of Art. 170 of the Civil Code of the Russian Federation, the rules relating to the contract are applied to it. Relations arising on the basis of a contract for the construction of residential buildings are regulated by legislation on the protection of consumer rights;

2) as simple partnership agreements (joint activity agreements).

By virtue of Art. 1041 of the Civil Code of the Russian Federation, under a simple partnership agreement (joint activity agreement), two or more persons (partners) undertake to pool their contributions and act together without forming a legal entity to make a profit or achieve another goal that does not contradict the law. The parties to a simple partnership agreement concluded for the implementation of entrepreneurial activities can only be individual entrepreneurs and (or) commercial organizations.

By virtue of the provisions of Ch. 55 of the Civil Code of the Russian Federation, participants in joint activities enter into a mutual agreement on joint activities and form a simple partnership. Each participant has mutual rights and obligations in relation to the others. Each participant in a joint activity agreement must have the right to participate in the management of common affairs, to a share in the common property and to receive a portion of the profits. Property contributions of participants and property created or acquired by them as a result of joint activities, including income received, constitute the object of their common shared ownership. Relations between partners are regulated by the rules on the right of shared ownership, including the right of first refusal to purchase a share sold by a participant, and they are expressed in the organization of joint activities of participants to achieve a common goal. Shared ownership constitutes only the necessary property base for such activities. By mutual agreement, the participants may entrust the management of their joint activities to one of them, whose position is formalized by a power of attorney issued by the remaining parties to the agreement.

Meanwhile, the ultimate goal of citizens' participation in the construction of apartment buildings is to obtain an apartment for living, and the citizen's contribution is intended only to finance the construction of a specific apartment.

As a result of the fulfillment of the terms of the agreement, not common property is created, but the property of each individual citizen for a specific apartment.

There are also no signs of creating an association of citizens - future Residents of a multi-apartment residential building under construction to carry out the construction of the house, since there is no connection of cash deposits, the procedure for conducting general affairs, accounting is not determined, the consent of shareholders on the general management of affairs is not sought, they do not participate in resolving issues, no meetings are held, minutes of meetings are not signed, no single agreement is concluded;

3) a typical way for citizens to acquire apartments in houses under construction is to conclude agreements with the organization carrying out the construction of a residential building, in accordance with the terms of which citizens become accomplices in the organization of construction, and make money as a contribution to joint activities. As a rule, such relationships are formalized by an agreement on joint activities, on shared participation in construction.

According to business entities, when executing such contracts, relations arise that are regulated by Ch. 55 of the Civil Code of the Russian Federation “Simple Partnership”;

4) another typical scheme used by business entities is the conclusion by an organization that is not directly involved in construction with citizens of contracts for
financing the construction of a residential building and its subsequent transfer to citizens.

Since investment activity is making investments and carrying out practical actions in order to make a profit or achieve another positive social effect, it is one of the types of entrepreneurial activity.

As already noted, the basic principles of relationships between subjects of investment activity are established in the Federal Law “On investment activity in the Russian Federation, carried out in the form of capital investments.”

However, this law does not regulate the issues of relationships between the parties to the investment agreement.

The type of agreement formalizing the relationship of participants in investment activities, rights, obligations, liability for non-fulfillment or improper fulfillment are determined on the basis of the Civil Code of the Russian Federation.

In this regard, recognizing an agreement as an investment does not answer the question of its civil nature and does not exclude the possibility of applying to the resulting relations the norms of the Civil Code of the Russian Federation and the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On the Protection of Consumer Rights” (with amended and supplemented on December 21, 2004);

5) often the courts have had difficulties associated with the legal assessment of such an agreement as an apartment purchase and sale agreement, including in installments, as well as the question: can a shared housing construction agreement be qualified as an agreement for the provision of paid services or as a preliminary agreement.

By virtue of Art. 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement.

In accordance with Art. 549 of the Civil Code of the Russian Federation, under an agreement for the purchase and sale of real estate (real estate sale agreement), the seller undertakes to transfer a land plot, building, structure, apartment or other real estate into the ownership of the buyer.

As established in the current legislation, the sale of real estate can only be carried out by the owner or with his consent. An organization that attracts funds from citizens to finance the construction of multi-apartment residential buildings is not the owner of either the buildings under construction or the apartments in them, and therefore cannot enter into purchase and sale agreements with citizens.

By virtue of Art. 554 of the Civil Code of the Russian Federation, the contract for the sale of real estate must contain data that makes it possible to definitely establish the real estate to be transferred to the buyer under the contract, including data that determines the location of the real estate on the corresponding land plot or as part of other real estate. In the absence of this data in the contract, the condition regarding the real estate to be transferred is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.

By virtue of Art. 558 of the Civil Code of the Russian Federation, a contract for the sale of a residential building, apartment, part of a residential building or apartment is subject to state registration and is considered concluded from the moment of such registration.

In accordance with the State Law, mandatory state registration of rights to real estate is established, therefore, a contract for the sale and purchase of such property that has not undergone the specified registration cannot be considered concluded.

For the same reasons, the agreement for shared participation in housing construction is not preliminary.

According to Art. 429 of the Civil Code of the Russian Federation, under a preliminary agreement, the parties undertake to enter into a future agreement on the transfer of property, performance of work or provision of services (main agreement) on the terms stipulated by the preliminary agreement. The preliminary agreement is concluded in the form established for the main agreement, and if the form of the main agreement is not established, then in writing. Failure to comply with the rules on the form of the preliminary agreement entails its invalidity. The preliminary contract must contain conditions allowing to establish the subject matter, as well as other essential conditions of the main contract. The preliminary agreement specifies the period during which the parties undertake to conclude the main agreement.

The specified legal requirements are rarely met by the parties when concluding a purchase and sale agreement.

When considering a shared housing construction agreement as preliminary, the question arises about the legal nature of the funds contributed by the shareholder for construction before the conclusion of the main agreement, whether they are a loan, a deposit, a payment for the purchased object, or an installment payment.

As a result of considering various options for the interpretation of these agreements, the Supreme Court of the Russian Federation came to the conclusion that the Law of the Russian Federation “On the Protection of Consumer Rights” is subject to application to all cases considered, but there was no clear decision on what type of agreements they should be classified as and what legal norms regulation was not accepted.

After the adoption of the Law on participation in shared construction, this contradiction was removed.

In accordance with Art. 1 of this Law, an agreement to attract funds from citizens and legal entities for shared construction of apartment buildings and (or) other real estate is an agreement for participation in shared construction.

At the same time, in paragraph 2 of Art. 1 of this Law, the attraction of funds from citizens by an individual or legal entity with the assumption of obligations, after the fulfillment of which the citizen may have the right of ownership of residential premises in an apartment building under construction (created), is allowed on the basis of the above-mentioned law and the legislation of the Russian Federation on housing savings cooperatives.

Thus, if a developer attracts funds from legal entities to participate in construction, he has the right to enter into not only an agreement on participation in shared construction, but also other agreements, for example, a simple partnership agreement.

In accordance with the simple partnership agreement, its participants (companions) make appropriate contributions to the common cause. The contribution of a comrade is recognized as everything that he contributes to the common cause, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business connections.

The partners' contributions are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary value of a partner's contribution is made by agreement between the partners.

Applicable to construction problems, a simple partnership agreement is concluded between two legal entities. The contribution of one partner, performing the functions of the customer (developer) of construction, is the right of ownership or lease to the corresponding site, prepared and approved design and estimate documentation, etc. The other partner (contractor) contributes the volume of work, supplies materials, etc. e. By agreement of the parties, the cost of each contribution can be assessed by the parties when signing a simple partnership agreement.

As a result of this, the property contributed by the partners, which they possessed by right of ownership, as well as the products produced as a result of joint activities and the fruits and income received from such activities are recognized as their common shared property, unless otherwise established by law or a simple partnership agreement, or does not follow from the essence of the obligation.

That is, a property jointly built by these persons is in common shared ownership. Each partner has the right to perform actions permitted by law with his share. But for this it is necessary to allocate the indicated shares. It is advisable to do this at the stage of concluding a contract. Since at the time of signing there is already a working draft of the house, you can not only indicate the shares as a percentage, but also make their actual division.

Maintaining accounting records of the partners' common property may be entrusted by them to one of the legal entities participating in the simple partnership agreement.

The use of the common property of the partners is carried out by their common consent, and if agreement is not reached, in the manner established by the court.

The obligations of the partners for the maintenance of common property and the procedure for reimbursement of expenses associated with the performance of these obligations are determined by the simple partnership agreement.

When conducting common affairs, each partner has the right to act on behalf of all partners, unless the simple partnership agreement stipulates that the business is carried out by individual participants, or jointly by all participants in the simple partnership agreement.

When conducting business together, each transaction requires the consent of all partners.

In relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement concluded in writing.

Decisions concerning the common affairs of the partners are made by the partners by general agreement, unless otherwise provided by the simple partnership agreement.

Each partner has the right to information, regardless of whether he is authorized to conduct the common affairs of his partners, and has the right to familiarize himself with all documentation on the conduct of affairs. Waiver of this right or its limitation, including by agreement of partners, cannot take place.

The procedure for covering expenses and losses associated with the joint activities of the partners is determined by their agreement. In the absence of such an agreement, each partner bears expenses and losses in proportion to the value of his contribution to the common cause.

An agreement that completely exempts any of the partners from participating in covering common expenses or losses is invalid.

The profit received by the partners as a result of their joint activities should be distributed in the same way - in proportion to the value of the partners’ contributions to the common cause, unless otherwise provided by the simple partnership agreement or other agreement of the partners. An agreement to exclude any of the partners from participating in profits is invalid.

The simple partnership agreement is terminated due to:

1) declaring one of the partners incapacitated, partially incapacitated or missing, unless the agreement of a simple partnership or a subsequent agreement provides for the preservation of the agreement in relations between the remaining partners;

2) declaring one of the partners insolvent (bankrupt);

3) the death of a partner or the liquidation or reorganization of a legal entity participating in a simple partnership agreement, unless the agreement or subsequent agreement provides for the preservation of the agreement in relations between the remaining partners or the replacement of a deceased partner (liquidated or reorganized legal entity) by his heirs (successors);

4) refusal of any of the partners from further participation in an open-ended simple partnership agreement;

5) termination of a simple partnership agreement, concluded with a specified period, at the request of one of the partners in relations between him and the other partners;

6) expiration of the simple partnership agreement;

7) allotment of a partner’s share at the request of his creditor.

Upon termination of a simple partnership agreement, things transferred into the common possession and (or) use of the partners are returned to the partners who provided them without remuneration, unless otherwise provided by agreement of the parties.

From the moment of termination of a simple partnership agreement, its participants bear joint liability for unfulfilled general obligations in relation to third parties.

The procedure for terminating the contract is defined in paragraph 2 of Art. 450 Civil Code of the Russian Federation. In addition, a party to a simple partnership agreement, concluded with an indication of the term or with an indication of the purpose as a dispensing condition, has the right to demand termination of the agreement in relations between himself and the other partners for a good reason, with compensation to the other partners for real damage caused by the termination of the agreement.

Contractual relations in construction

In the context of the development of market relations, construction production requires new approaches to regulating the relationships between all participants in the investment and construction process: investors, customers, developers, designers and contractors. The main condition for their successful functioning is to ensure profitable operations. Achieving this goal depends mainly on the development of a mechanism for regulating their relationships. The scope of regulation of relationships between all participants in the investment and construction process is huge, however, economic and social changes in the country put forward demands for both the introduction of new forms of agreements (contracts) and the revision of existing ones.

The basis for regulating the relationships between participants in the investment and construction process is the Civil Code of the Russian Federation, Article 1 of which recognizes the equality of relationships between participants regulated by civil law who act of their own free will and interest. Contracts are given a completely new role, and the possibilities for using various patterns of relationships between all participants have been significantly expanded. The contract (agreement) becomes a document confirming the mutually beneficial interaction of the parties, the purpose of which is to solve the following problems: investment, design, construction of facilities, solving employment problems, making a profit, etc.

The Civil Code of the Russian Federation (Part 2) contains a large number of imperative norms obliging participants in contractual relations to act in a strictly defined manner. Changes to the rules on the responsibility of entrepreneurs for the quality of consumer goods, works, and services are not allowed. There is an obligation on the various parties to assist everyone and on financial terms. The Civil Code clearly defines the content of the typical conditions of the relevant contacts, the consequences of their violation, the grounds for their change and termination. Within certain assumptions, it is possible to regulate the resolution of a number of issues of contractual relations in accordance with special laws of the Russian Federation. Such contracts include: investment issues, laws on a number of the most important types of contracting, research and design and survey work, laws on supply and contracting for government needs, the Land Code, etc. Some deviations not regulated by business law are allowed, but in all cases they should not contradict the laws in force in the Russian Federation.

The Civil Code of the Russian Federation regulates in great detail contractual relations regarding construction contracts. The boundaries within which relations are established under a construction contract for the construction or reconstruction of an enterprise, building (including residential), structure or other facility, as well as for the performance of installation, commissioning and other work inextricably linked with the facility under construction are clearly defined. These provisions of the construction contract also apply to major repairs of buildings and structures. It is possible to include a construction contract in the contract as an obligation of the contractor and ensure the operation of the construction project after its acceptance by the customer for a certain period. In this case, the contractor must take on the responsibility of recruiting and training enterprise personnel, finding sales markets or suppliers of raw materials and equipment for the customer, etc.

The contract may provide for the contractor's obligation to insure for the benefit of the customer certain types of risks assigned to the contractor and indicate which insurance company will provide insurance, what the insured amount will be and what kind of risk is insured. In the coming years, insurance of risks in the construction industry should be one of the mandatory elements of contractual relations. The issue of the contractor's actions upon discovery of work not taken into account in the technical documentation has been resolved. He is obliged to immediately inform the customer about this, indicating what additional work he will have to perform. If, in the absence of another deadline in the law or contract, there is no response within 10 days, the contractor is obliged to suspend work, and the losses will have to be compensated to the customer. The customer is also obliged to assist the contractor in fulfilling his obligations, unless otherwise provided by the contract, and the contract may provide for sanctions. This includes compensation for losses, a change in the timing of work, and an increase in the price of work, which is included in the contract.

The contract provides for accompanying conditions created by the parties or arising as a result of the actions of third parties, force majeure, etc. and related to the subject of the contract.

Thus, the contract becomes a really working legal document that clearly regulates the construction program: the procedure for carrying out construction agreed upon between the parties, the place and role of the parties in its execution, their responsibilities to ensure the smooth and accurate execution of work in accordance with the construction schedule, as well as their legal rights in accordance with the text of the contract and civil law. Contractual relations become a kind of regulator of normal, coordinated work, as they allow monitoring the execution of the contract during construction and involve taking appropriate measures in the event of a departure from the agreements, up to the termination of the contract.

The importance of contractual relations also lies in the fact that for the construction contract of an object there are a number of other contracts that define the relations of all participants in the investment and construction process. This is an investment contract between investors and the contractor, a contract for the presentation and preparation of a construction site, a contract between the customer and the designer, contracts with suppliers for the supply of building materials, transport organizations for the delivery of building materials and equipment, etc.

Contractual relations at the level of construction organizations include: rental relations, leasing (financial lease), factoring (financing against the assignment of monetary claims), franchising (commercial concession), trust management of property.

In conditions when Russia is preparing to enter the World Trade Organization, it is necessary to accept the international rules of the game in terms of economic turnover agreements. Knowledge and use of international rules for concluding contracts is necessary to ensure economic efficiency in their implementation at the organizational level and to protect the interests of the production sector as a whole. This applies to the use of the rules contained in the UNIDROIT Convention on International Financial Leasing. UNIDROIT Convention on International Factoring, as well as rules in the field of transport services. It is necessary to take into account the UNISTRA-PA rules for drawing up international contracts for the construction of industrial facilities. All this will ensure the unification of the rules of trade turnover of economic entities with their counterparts in other countries.

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Subject 2. Contractual relations in construction

Lecture outline:

1. The concept and content of a construction contract.

2. Functions of a construction contract and its features.

3. Regulatory and legal basis of contractual relations.

1. Legally correct contractual relations with other participants in the construction process largely determine the economic and financial stability of contracting construction and installation organizations. In other words, a correctly drawn up construction contract is the first step in the entrepreneurial success of contracting organizations.

A capital construction contract is the main document regulating the relationship between the customer and the contractor and determining their property liability for failure to fulfill contractual obligations. The text of the agreement should not contain clauses that contradict the law or are not related to the relationship of the parties under the agreement.

General rules and regulations on construction contracts are regulated by the Civil Code of the Republic of Kazakhstan, Art. 616-639. The agreement provides for the rights, obligations and responsibilities of participants in the capital construction process.

Contractors perform work ongeneral, direct and subcontracts.

Work performed by an organization under an agreement concluded with the customer for the entire cost of construction work as a whole refers to work performed under general contracts. In some cases, on large construction projects, several general agreements may be concluded.

Work performed by an organization under a contract concluded directly with the customer for the construction of individual facilities and work packages refers to work performed under direct contracts.

Work performed by an organization under an agreement concluded with another contractor for the production of certain types of work refers to work performed under subcontract agreements.

As practice shows, the most effective use of a construction contract (CPA) can be achieved:

- by studying the specifics and features of the legal basis of a construction contract;

- as a result of an analysis of the legal nature of the contract and its functional orientation;

- based on identifying all the possibilities for its practical application.

In terms of the scope of issues covered, the DPA is one of the most complex types of contracts. This is primarily due to the breadth of issues it covers, such as:

- supply of materials;

- installation of technological equipment;

- conditions and schedule for delivery and payment of various stages of work;

- elimination of deficiencies discovered after the commissioning of the facility, etc.

A mandatory attachment to the chipboard is the approved design and estimate documentation.

2. Features inherent in chipboard determine its functional orientation. The main functions of chipboard include the following:

Fund-creating;

Investment;

Social;

- stabilizing.

The features of the chipboard include the presence in it of provisions on the conditions for delivery and acceptance of completed construction work or the construction project. This requirement of the contract is carried out only in writing, by signing acts and established forms by the parties to the agreement. In addition, the start and end dates of construction are legally significant for the parties. In particular, from the point of view of organizing accounting and taxation, these factors are significant.

3. The regulatory framework of the DSP includes:

- laws governing these activities; GOSTs;

- by-laws;

- industry guidelines, recommendations, regulations, orders, instructions;

SNiPs, etc.

At the same time, the main document regulating chipboard. is the Civil Code of the Republic of Kazakhstan, which contains both mandatory and non-binding norms that are used taking into account specific situations. with the help of which the specifics and all the features required by the customer for a specific construction project are taken into account.

When drafting a construction contract, especially when it comes to large-scale construction, as well as when developing draft standard conditions, the contractor can use international practice. There are International Conditions of Contract for Construction.

1. Law of the Republic of Kazakhstan "On architectural, urban planning and construction activities in the Republic of Kazakhstan" dated July 16, 2001 N 242-P.

2. Fundamentals of accounting in construction of the Republic of Kazakhstan: a practical guide / Ed. V.I. Skala - 2nd ed., revised - Almaty: Lem, 2005. - 360 p.

3. Nazarova V.L. How to keep accounting records in construction. In 2 parts. -Almaty: publishing house “Accountant”, 1999.-40 p.

Test tasks for SRS

1. Rights and obligations of the parties to a construction contract.

2. Features of contracts for design and survey work.

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1.2.Methods of construction work

Construction using economic methods

Contract construction

1.3. Contractual relations in construction

Topic 2. Accounting for the costs of a construction contracting organization for construction and installation work

2.1.Tasks and principles of accounting costs for the production of finished construction products

2.2.Objects and methods of accounting for costs of construction and installation work

2.3. Classification of costs included in the cost of construction and installation work

Classification of costs in construction production

2.4.Accounting for costs of construction and installation works by cost elements

1.Direct costs

1.1. Materials

1.3. Operating costs smm

1.4. Other direct costs

2.6. Consolidated accounting of costs for construction and installation work

Topic 3. Cost accounting for construction machinery and mechanisms

3.1.Tasks of accounting for the costs of operating construction machinery and mechanisms

3.2.Classification of construction machines and mechanisms

Classification of construction machines and mechanisms

3.3. Operational accounting of the use of construction machines and mechanisms

3.4.Accounting for costs associated with the operation of construction machinery and mechanisms

3.5. The procedure for calculating the cost and the procedure for distributing costs for the operation of construction machinery and equipment

Topic 4. Accounting for losses from defects in construction production

4.1. Marriage and its classification

Classification of defects in construction production

4.2. Documentation of marriage

4.3.Synthetic accounting of defects in construction

Topic 5. Accounting for construction materials

5.1.Tasks of accounting and classification of building materials.

Tasks of accounting for construction materials

5.2. Documentation of the movement of construction materials

5.3. Features of accounting and documentation of construction materials of the customer and contractor

5.4. Analytical accounting of the movement of building materials

5.5.Synthetic accounting of building materials

Statement “Movement of materials in value terms”

5.6.Accounting and evaluation of building materials during acquisition

5.7. Methods for writing off building materials for construction and installation work.

5.8. Accounting for construction materials consumption

Topic 6. Accounting for calculations, sales and financial results for completed construction and installation work

6.1.Documentation, synthetic and analytical accounting of the general contractor’s settlements with customers and subcontractors.

7.2. Accounting for financial results from the delivery of construction and installation works.

Topic 7. Accounting for the developer (investor)

7.1.Tasks and basic concepts of accounting for a developer

Problems of construction cost accounting

7.2. Classification of costs

7.3.Accounting for work in progress

Bibliography

1.3. Contractual relations in construction

Depending on the period, type, conditions and construction participants, the characteristics of estimate documentation in construction are applied:

general contract- concluded with the general contractor for the entire construction period;

subcontract agreement- concluded between the general contractor and specialized organizations to perform certain types of work and complexes of construction and installation work.

Regulation of relations between construction participants, regardless of their form of ownership, when concluding and executing construction agreements (contracts) on the territory of the Republic of Belarus is carried out by Rules No. 1450, Civil Code of the Republic of Belarus dated 07.12.1998 No. 218-3 (taking into account the latest changes and additions dated 03.07. 11. No. 286-3), Law No. 293-3 and other regulatory legal acts of the Republic of Belarus.

According to part one of Art. 696 of the Civil Code, under a construction contract, the contractor undertakes to term build a specific object according to the customer’s instructions or carry out construction and other special installation work and hand it over to the customer, and the customer undertakes to create for the contractor the necessary conditions to carry out work, accept the results of this work and pay conditioned price.

The contract is concluded in writing by drawing up a single document. By agreement of the parties, the necessary documents are attached to the contract, which are an integral part of this contract. A work contract is concluded in the cases provided for by the legislation of the Republic of Belarus:

at customer(subclause 12.1 of Rules No. 1450):

a corresponding document certifying the rights to the land plot;

decisions of local executive and administrative bodies for the construction of the facility;

design and estimate documentation that has passed the state non-departmental examination, agreed upon and approved in the prescribed manner, if the responsibility for its development is not assigned to the contractor;

protocol on the results of contract tenders and the selection of their winner;

at contractor- licenses to perform relevant types of construction work, valid on the territory of the Republic of Belarus (subclause 12.2 of Rules No. 1450).

In relation to a construction contract, as in relation to construction contracts, it is necessary that essential conditions , specified in the legislation. Otherwise, the contract may be considered unconcluded, and in some cases the transaction may be declared invalid.

TO essential conditions construction contracts include

conditions on the subject of the contract (name and location of the construction project, types and volumes of construction and other special installation work),

initial and final deadlines for completing work,

negotiated (contract) price of work, established based on the results of contract bidding,

which party must submit the relevant documentation and within what time frame,

conditions regarding which, at the request of one of the parties, an agreement must be reached.

Clause 16 of Rules No. 1450 provides for the following mandatory terms of the contract :

names of the parties and necessary details (legal addresses in accordance with constituent documents or passport data, current accounts of servicing banks, tax inspectorate numbers, numbers of state registration certificates, numbers and validity periods of contractor licenses);

subject of the contract (name and location of the construction project, types of construction work);

terms (month and year) of the beginning and completion of the construction of the facility, the implementation of types of construction work;

negotiated (contract) price of an object, type of construction work, established based on the results of contract bidding.

For objects for which contract bidding is not mandatory, the negotiated (contract) price is determined by agreement of the parties, taking into account the legislation of the Republic of Belarus;

the procedure for payment for work performed;

sources of financing;

distribution of functions between the customer and the contractor for providing the facility with structures, materials, products, equipment, inventory, and, if necessary, for designing the facility;

responsibilities of the customer and contractor in the performance of the contract. Each party has the right to make proposals for inclusion in the contract and other conditions

, providing:

terms of payment and amount of bonuses for timely commissioning of the facility;

liability of the parties in case of failure to fulfill obligations under the contract;

features of acceptance of completed construction work and commissioning of the facility;

relationship between the parties in the event of force majeure;

procedure and grounds for changing or terminating the contract;

a list of services provided by one party to the other;

other conditions.

The construction contract is the main legal document regulating the relationship between construction participants and must comply with the mandatory requirements for the customer and contractor established by Rules No. 1450 and other acts of legislation of the Republic of Belarus.

Control questions.

1.What is included in the concept of “construction activity”?

2. Define construction.

3. List the basic principles of construction activities.

5.Name the classification characteristics of construction organizations.

6.List the subjects of investment activity.

7. Define investment activity.

8. Describe the methods for producing construction and installation works.

9.On the basis of what documents are contractual relations in construction formed?

10.Name the essential, mandatory and other terms of the subcontract agreement.