The difference between pacts and contractual obligations. In general, how can an agreement differ from a contract?

When mutual agreement is reached in negotiations between the parties, the following phrases are often used: “congratulations on the concluded agreement”, “signed a contract for a large amount”, “agreed on the terms of the contract”, “concluded a profitable agreement”. At the same time, for a split second many people wonder what is the difference between these categories? Which term is correct to use in which situations? In fact, the terms “agreement” and “contract” are used interchangeably in many jurisdictions, with agreement being the most general concept. From a legal point of view, it is permissible to mix the concepts of “agreement” and “contract” without any legal consequences for the parties. However, everything is not as clear as it seems at first glance. Jurisprudence is full of mysteries and hidden points, knowledge of which can help to understand this issue and put an end to the dispute about the differences between agreements, contracts and contracts.

Before moving on to a direct indication of the differences between these legal categories, it should be noted that the terms used in different countries differ, and therefore comparison of terms outside the Russian legal field will be based on their essence, and not their name.

Contract or agreement?

In the broadest sense, the expressions contract, agreement and agreement are interchangeable. These are business customs and established practices. And in certain areas of law this is indeed the case. For example, in labor legislation the concepts of “employment contract” and “employment contract” are absolutely identical.

But in procurement there is a very specific division:

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• a contract is concluded within the framework of law 44-FZ ;
• within the framework of law 223-FZ - agreement .

What is a contract in procurement?

the state is one of the parties . It may operate through authorities or certain types of organizations. To meet the needs of the state, procurement is carried out in accordance with law 44-FZ. Within the framework of this norm, contracts are concluded between the customer and the contractor. In this case, the executor can be any person who meets certain requirements, both legal and physical. But the second party to contracts is always the state, that is:

• public authority;
• state corporation;
• state-financed organization;
• government agency;
• state or municipal unitary enterprise.

In other words, the contract is concluded with budget money . The customer declares his needs, the contractor satisfies them and receives payment for this from the budget of the appropriate level.

Main types

A mutual agreement is precisely that paper, thanks to which the interests of one participant can be satisfied by rewarding the interests of another participant. In other words, each person involved in it gets their own benefit . Naturally, people are interested in complying with the rules prescribed in the document, since otherwise their interests will not be properly satisfied. It is the mutual consent of two or more parties who sign this paper that creates the stable ground on which, in fact, the entire world economy rests. It turns out that this is a fundamental element of the entire system in which we live, work and develop.

Each contract is an individual matter. They are classified according to such criteria as the number of participants, the essence and subject, its conclusion between individuals or legal entities, and much more. A table that briefly describes all the characteristics of currently existing agreements will help you understand all this quickly and easily.

This is interesting! What is this according to the Civil Code of the Russian Federation: invalid, voidable and void transactions

Table

types of contracts in civil law table

Types of contracts in civil law table
This table helps, in accordance with the conditions of a particular type, to quickly identify it. Knowing such information, you can figure out in advance what conditions will have to be met, on what grounds and within what time frame, as well as find out what will happen if they are not met.

Attention! In civil law, the concept of a bilateral contract is very common, but it is not in our table. It is analogous to mutual, but differs from it in that only two parties are involved in concluding the transaction. In a mutual form, three or more persons may be present.

Types of contracts

What is a procurement contract?

Unlike a contract, an agreement can be concluded between any persons. The party to the agreement can be an ordinary citizen, an individual entrepreneur or an organization of any type. Including a state corporation or monopoly, a company with state participation, as well as a budgetary institution or unitary enterprise (in terms of purchases using its own funds and not from budgetary funds). In this case, the mentioned persons make purchases within the framework of Law 223-FZ. When the winner is determined, a contract is concluded with him.

You can find out who can become the executor of the contract under 223-FZ from this material.

Contract and agreement under 44-FZ

Contracts and agreements are regulated not only by 44-FZ, but also by the Civil Code.

A contract is an agreement that was reached by two or more persons regarding the establishment, termination or change of civil rights and obligations (according to Article 420 of the Civil Code). A similar definition is given in relation to a contract. According to Chapter 30 of the Civil Code, a contract is a type of agreement that is aimed at meeting state needs.

According to clause 3, part 1, art. 1 Federal Law-44 “On the contract system...”, this law regulates the issues of concluding civil contracts, the subject of which is the supply of goods, performance of certain works and provision of services on behalf of the Russian Federation, a Russian constituent entity or municipal authorities, as well as a budgetary institution or legal entity. According to the following note, further in the text of 44-FZ the term “contract” will be used.

Taking into account the above, the term “contract” for 44-FZ is synonymous with “civil contract” and there are no differences between them.

But it is worth noting that according to the Civil Code, some types of agreements are called contracts in the legislation, so that they can be distinguished from other agreements. In particular, under Part 1 of Art. 2 of the Civil Code, as state and municipal contracts, we can consider contracts that are concluded by state and municipal customers when fulfilling orders for the supply of goods under clause 1 of Art. 525 of the Civil Code or execution of contract work under clause 1 of Art. 763 Civil Code.

The Budget Code also recommends using the term “contract” in relation to state or municipal customers.

What is the difference

In procurement, contract and agreement differ quite significantly. And mainly due to the fact that the first of them is regulated by law 44-FZ, and the second by law 223-FZ. The second law gives the customer much more freedom. For example, they can independently choose the method of determining the supplier, while Law 44-FZ strictly regulates this issue.

The Public Procurement Law regulates almost all aspects - from procurement planning to acceptance of contract results. Any deviation from its norms is punishable by fines. In contrast, Law 223-FZ leaves almost all decisions to the parties to the contract.

Contract

- the Roman name for a legal contract subject to direct action, in contrast to a simple agreement (pactum), which had no force at all or was protected only by exception (see). This expression is used in the same sense among us, although now the distinction between contract and a simple agreement is made with greater difficulty, and many jurists are even completely denied. In Rome, K. were divided into several types, according to the form of their conclusion. Formal K. required for its reality either the performance of certain solemn actions or the utterance of solemn words. The contract was not considered concluded if the parties made mistakes or mispronounced words (see Nexum and Stipulation). The real contract was valid only when one of the persons who agreed to certain actions carried out full or partial fulfillment of the contract. His general formula was: do ut des vel facias and facio ut des vel facias. Literal K. consisted of making entries in the codices accepti et depensi (see) indicating the issuance of certain amounts as a loan to another person. Finally, consensual K. was also valid in the case of a mutual exchange of promises to perform certain actions, i.e., in the case of a simple agreement of the parties, but it embraced only certain types of contracts: purchase and sale, personal and property hiring, assignment and partnership. Taken in the historical sequence of their formation, these forms express the growth of the very idea of ​​contract, in connection with the development of social conditions by which it was brought to life.

1) Formal justice is a product of a very early era of legal development - an era of free domination of personal power and will, not moderated in their manifestations by the intervention of public power. Traces of this domination are reflected in the early forms of this contract, especially in the original form of stipulation, sponsio, about which we have information from the field of international legal relations, where it was a type of agreement with a defeated and unequal enemy. Sometimes accompanied by an oath, it was, for the most part, associated with a series of symbolic actions signifying submission (stretching out hands asking for mercy, from which then shaking hands), or with the transfer of symbols of submission, in the form of various objects, which were then replaced by the concept of deposit (arrha) or pledge (p ignus). An almost complete analogy with this sponsio is provided by the ancient German formal K. - fides facta, which consisted of throwing to the ground as a sign of submission, or transferring into the hands of the creditor a stick or straw (replacing a spear), or other signs of submission (cut hair, gloves and other “ forfeits" or wadia). Submission to the will of the creditor reached the point of complete slavery, with the right of life and death occurring at the moment of non-fulfillment of the contract and carried out through the solemn “laying on of hands” (manus injecti o). In another form of the early Roman formal K. - nexum - symbolism, identical to that used in mancipation (q.v.), could mean weighing out borrowed money, but perhaps also meant selling oneself into slavery for loaned money. In any case, this type also retained the severity of collection, reaching the right to cut the debtor into pieces in case of insolvency (post. XII table, also similar to a number of regulations of German law), not to mention the right to turn the debtor into a slave. In the later historical stipulation, all that remains of sponsio is the utterance of the words “Spondes ne? Spondeo”, which constituted the essence of K.; the rest of the ritual disappears along with the severity of responsibility, which becomes exclusively property-based; even later, it is allowed to use not only Latin words, but also unambiguous words of other languages. Nevertheless, two main features of the formal contract remain: the strict one-sidedness of the obligation arising from it and the limitation of the amount of the penalty given at the conclusion of the obligation by the promise, interpreted according to the exact meaning of the spoken words, and not according to the general meaning of the content of the contract or good conscience. Combined with these qualities, formal K. becomes, little by little, the general form of Roman obligation. By means of stipulation, it was possible to turn any agreement, not only unilateral, but also bilateral, into a legally valid contract. In the form of a stipulation, it was possible not only to establish a loan, interest on a loan concluded in another form (nexum or mutuum), a guarantee, a penalty, but also to make a novation, conclude a purchase and sale, hire, etc. In the latter case, it was necessary to stipulations on both sides. The strictness of the agreement, which did not give scope for interpretation, made it, however, extremely inconvenient for the latter type of transactions, and they are gradually molded into other forms of contract.

2) Real K. arises from transactions of personal trust and goodwill. Its initial types: formless loan (mutuum), loan, deposit and pledge, i.e. transactions of a predominantly friendly nature [In a pledge (pignus), ownership of the thing passed to the pledgee, return was ensured only by word of honor. Mortgages, therefore, were given to trusted persons - friends, etc.]. In accordance with this, the responsibilities of the parties entering into it are distributed. There is no obligation to give money or things or to accept them for safekeeping until the moment of giving or accepting them; in other words, promises of such giving or acceptance are not obligatory. The pledge, by transferring the thing to the disposal (property) of the creditor, placed it in his hands only on his conscience, and only the later development of the law gives a personal claim for the return of the pledge for the payment of money and equalizes the responsibility of the parties. Only the complete loss of the thing by the depositor gave, in the early period, to the depositor an actio furti, then an actio depositi direct a (for more details, see the Agreement). Creating unequal relations for the parties, but being imbued with bona fides, these agreements were still more consistent with the interests of the debtors than a completely one-sided formal contract. Hence the later growth of the real contract, which covered so many types of contracts that lawyers refused to list them, failing them under the group of “nameless real K.” (contr. reales innominati), in contrast to their above-mentioned prototypes - nominal real K. (p. r. nominati). Do ut des, do ut facias, facio ut des and facio ut facias - such was their general formula; they all remained real loan agreements. This is their fundamental difference from the later consensual K.

3) Consensual K. is an agreement of mutual trust and business personal credit together. Its foundations are the mutuality of interests of the parties and the full implementation of the principles of good conscience. By exchanging mutual promises to perform certain actions, one instead of the other, each party relies on the honesty of its counterparty and bases its calculations on the mutual interest in the contract. The basis of the contract, therefore, is a simple agreement here, and not the preliminary execution of the contract by one of the parties, as in real K., or a strict form, as in a stipulation. The strength of the contract, however, is not in the words of the agreement itself, but in its internal content - in accordance with the equivalents exchanged by the parties and assessed according to the principles of good conscience. Consensual K., therefore, is always a bilateral agreement (see) and essentially a mutual agreement, i.e., one the fulfillment of which can be demanded only when the demander has fulfilled his obligations or there is a readiness to fulfill them. It was only as a result of the early habit of the Romans to clothe this K. in two stipulations that the Roman theory of it, which is set out in Art. Bilateral agreement. Bilateralism and reciprocity create legal equality of the parties who entered into it, i.e. equality of responsibility and its grounds. In historical development, consensual society is therefore an expression of a fully developed and free system of civil society, built on extensive civil circulation and, in contrast to real society, on strong personal credit. In Roman classical law it is new and therefore does not receive full development. In modern law, consensual contract, on the contrary, is the dominant type of contract, finally displacing real contract. Now a loan, loan and other types of real contract (see) are concluded by a simple agreement; the promise is valid, and the full penetration of the principle of good conscience and bilateralism equalizes the position of the parties here too. The latest legislation seeks, for example, to increase the liability of the lender, depositary, etc. The dominance of consensual justice does not lead, however, to the full validity of any agreement in modern law. The presence of a certain content and mutuality of interests is now the main requirement of consensual society, its basis. Transactions are abstract, that is, detached from this basis, and are now protected, for the most part, only as formal contracts.

4) Literal K. is a feature of the Roman system of obligations and is not found in others, while the three types described above are ascertained by science in the historical development of the national law of Germany, France and England. Literary K. no longer knows Justinian's legislation. It dates back to a fairly early time by Roman sources. It is based on the custom of keeping household receipts and expenditure books in Rome. An entry in such a book (see Codices) about the issuance of a certain amount of money to another person, for one reason or another (some old agreement), gave the right to demand its return, regardless of the basis of the debt. A debt according to literary K. is, therefore, always a debt for the novation (see) of some old obligation. The entry was called transcriptio or nomen transcnptitium and had the form expensilatio (that is, it was placed in the expenses department). It usually corresponded to an entry in the debtor's books in the form of acceptilatio (department of receipts), although it was not required for the validity of the obligation: entry into the creditor's book was sufficient. Some writers think that for the validity of the obligation it was also necessary to notify the debtor and certify on his part that the entry was correct. Essentially, literary K. was a type of formal K., strictly one-sided, and was considered as K. stricti juris. Due to lack of information, other questions concerning the literary K. are controversial. Wed. Muromtsev, “Civil Law of Ancient Rome” (M., 1883); Shulin, “Textbook. Roman history rights" (Russian translation, M. 1893); Cuq, “Institutions juridiques des Romains.” For the rest of the literature, see under Art. Agreement.

V. Nechaev.

What common

However, there are many similarities between an agreement and a contract under procurement law. By and large, any contract is an agreement. We can say it differently - a contract is a special case of an agreement in which the buyer/customer is the state.

Both the contract and the agreement must contain a number of parameters. Some of them are essential conditions, for example, the name of the parties, the subject of the contract, its cost. In their absence, the agreement will be considered invalid . There are also provisions that are included at the request of the parties. For example, this is an agreement on prepayment or the involvement of subcontractors.

What is an agreement

In Russian law, an agreement is any agreement between the parties. This concept is much broader than an agreement, and even more so a contract (as it is understood in the field of procurement). An agreement can be oral, but in most cases a contract means a paper document.

At the same time, the term in question appears in the expressions “additional agreement to the contract” and “agreement on termination of the agreement (contract)”. These are established expressions that correspond to business customs.

So, the rules of law generally identify the concepts of “agreement”, “contract” and “agreement”. However, when it comes to procurement, the last two terms have clear differences. It is important to remember that no matter what the type of agreement between the parties is called, it must comply with the norms of the Civil Code.

About the features of the contract under 44-FZ: