RESPONSIBILITY FOR DISHONEST CONDUCT OF TALKS

Pre-contractual liability and pre-contractual relations are not sufficiently studied in the science of civil law. Russian legislation was not aware of the rules about pre-contractual liability for the breakdown of negotiations of signing of the contract of an agreement; culpa in contrahendo was not applied in judicial practice. Currently, such rules are enshrined in the article 434.1 of the Civil Code. According to the clause 1, legal entities and citizens are free to negotiate an agreement and incur expenses on their own, and they are not responsible for the fact that no agreement has been reached. Point 2 of Art. 434.1 of the Civil Code establishes the obligation of the parties to act in good faith during the conduct of negotiations. Paragraph 3 of Art. 434.1 of the Civil Code obliges the party who leads or terminates the negotiations in bad faith to compensate the other party for the damages. This provision is not actively applied in practice. In my opinion, this is due to the fact that the application of this provision raises such questions as: 1. What should be considered as good faith behavior? 2. What is the legal nature of pre-contractual relations?

Consider the question of evaluating good conduct. According to Art. 1 of the Civil Code in the establishment, implementation and protection of civil rights and in the performance of civil obligations, participants in civil relations must act in good faith. No one has the right to take advantage of their illegal or unfair behavior. Based on the text of the Plenum of the Supreme Court of the Russian Federation of June 23, 2015 No. 25, it can be concluded that conscientious behavior is the behavior expected from any participant in civilian traffic that takes into account the rights and legitimate interests of the other party and promotes it, including in obtaining the necessary information.

The principle of good faith operates not only in the framework of the execution of an already established legal relationship, but also before the occurrence of rights and obligations, as well as after the termination of the obligation. The considered principle is valid at all stages of economic activity, including at the stage of negotiation. The principle of good faith and at the pre-contractual stage allows the court to qualify an unreasonable way out of negotiations and negotiation in order to divert the potential counterparty from concluding a transaction with a specific subject and other actions as an abuse of the right. In accordance with paragraph 4 of Art. 10 of the Civil Code of the Russian Federation, if an abuse of the right entailed a violation of the right of another person, such a person has the right to demand compensation for damages. According to paragraph 5 of Art. 10 of the Civil Code of the Russian Federation, reasonableness and good faith are assumed, which means that the victim of unfair negotiation must bear the burden of proof.

Point 2 of Art. 434.1 of the Civil Code of the Russian Federation states that when entering into negotiations the parties are obliged to act not only in good faith but also to prevent entering into negotiations on concluding an agreement or their continuation with the deliberate absence of the intention to reach an agreement with the other party. At the moment when the balance between the principles of freedom of contract and good faith is violated, the occurrence of pre-contractual liability is possible. The principle of freedom of contract provides that participants in civil legal relations may negotiate with an unlimited number of persons. But if a person does not intend to conclude an agreement, but commits actions in order to distract his competitor from entering into a contract, or the person stops negotiating without any reason, then it is possible to talk about causing losses to the person with whom the negotiations were held. The absence of general rules on pre-contractual liability could lead to the insecurity of bona fide participants in pre-contractual relations. Negotiations on the conclusion of contracts may entail temporary and fairly large financial costs for legal entities.

To understand the legal nature of pre-contractual relations, it is necessary to analyze these relations. The right establishes responsibilities at the stage of negotiation. If the contract is concluded at the auction, then the relations of the bidders are regulated by the legislation in sufficient detail.But here, too, there is the question of whether it is possible to say that before the conclusion of the contract there is a legal relationship? The main elements of any legal relationship are subject, object, authority and duty. In addition, when describing the legal relationship, O. S. Ioffe singled out the will and interest [4, p. 549]. We need to figure out what is the obligation. Article 307 of the Civil Code of the Russian Federation defines an obligation: by virtue of an obligation, the debtor is obliged to perform a certain action in favor of the creditor: transfer property, perform work, etc., or refrain from a specific action, and the creditor has the right to require the debtor to perform his duty. From the legal definition of an obligation it follows that the content of an obligation can be both the commission of active actions and the abstention from certain actions.

There are also doctrinal definitions. Thus, G.F. Shershenevich understood the obligation as “such a legal relation, from which one person’s right to the known action of another certain person is revealed” [2, p. 89].

In legal literature there are the following signs of commitment:

1) the obligation is a relative legal relationship (GF Shershenevich) and can be deduced from the legal definition of the concept of obligation [2, p. 146];

2) the creditor has the right to require the debtor to perform certain actions, i.e. the participants of the obligations is a certain responsibility. Failure to comply with this obligation may entail negative consequences;

3) the property nature of the actions of the debtor. (Gavze F.I. believes that the actions of the debtor should be exclusively commodity-money in nature [1, p. 97]; Lavrov DG asserts that the obligation is a property relationship [6, p. 53]; other authors believe that there are obligations with a purely non-proprietary content [5, p. 77]. It must be said that organizational relations are also related to the subject of civil law, for example, relations arising from a preliminary contract, as well as relations on the organization of tenders. that in practice there are no such obligations TV, which in one way or another would not be connected with property relations. Compensated obligations, whatever their purpose, are always property, but the gratuitous obligation, according to the author, refers to property, if its content is to transfer the property to the property. Based on the above, we can talk about the property nature of the obligations.

Analyze the pre-contractual contacts of the parties in terms of these characteristics. The law establishes certain requirements for the offer and acceptance, the offer must contain the essential terms of the contract, and the acceptance must be in full compliance with such conditions. But the pre-contractual contacts of the parties often consist of an exchange of proposals that do not contain the essential terms of the contract, and the type of contract to be concluded may also be the subject of negotiations. Thus, the contacts of the parties can only be associated with the proposal to negotiate in a certain direction.

In order for pre-contractual contacts to become a legal relationship, it is necessary to establish the parties. If the conclusion of the contract is mandatory for one of the parties, the rights and obligations will arise if the offer is sent. If the parties are free to conclude an agreement, then the negotiating relationship will arise if the acceptance is accepted on different terms or there will be a different entry into the negotiations by both parties. In this case, the person who received the offer, in any case, should behave in good faith and not respond to it, if he does not have the desire to conclude an agreement. The duty to behave in good faith arises in the contacts of the parties, even if no proposals have yet been formulated for all the essential conditions of a future contract, for the law it is important to have an intention to conclude a contract.

For example, A. Ton expressed the opinion that the prerequisite of responsibility for pre-contractual guilt is the existence of a legal relationship between the parties, and not just a requirement of reasonableness and good faith.The relations of the parties after the direction of the offer, but before acceptance is accepted, fall under the concept of action in someone else’s interest [3, c. 38-39]. According to A. Köppen, if the conclusion of a transaction does not lead to the conclusion of a contract that generates obligations for its execution, the parties remain bound by the contract as a legal relationship and obligation that arises at the time of acceptance of the offer and within which responsibility for culpa in contrahendo can be realized [2, p. 269].

From these completely different points of view, we can conclude that without a legal relationship there can be no obligation, including the duty to behave in good faith when negotiating, for violation of which it is possible to bring to justice in the form of compensation for damages caused by dishonest behavior.

From the above review of the positions on the nature of the pre-contractual contacts of the parties, it can be concluded that a special obligation arises between the negotiators. Our legislation also regulates the pre-contractual stage of relations between the parties, fixes certain consequences of committing an action or inaction at the pre-contractual stage. Based on the new rules of the Civil Code of the Russian Federation, it is possible to talk about the regulation by the domestic legislator of the pre-contractual relationship as an obligation. The obligation to negotiate occurs when its members become known.

References:

1. Gavze, F.I. Liability law (general provisions) / F.I. Gavze. Minsk: BGU of V.I. Lenin, 1968. – 126 pages.
2. Glintsevich, K. V. Precontractual responsibility in civil law / K.V. Kuzmin//the Messenger of the Supreme Court of Arbitration of the Russian Federation. – 2009. - No. 3. – Page 13-15.
3. Sukhanov, E. A. Civil law: Textbook: In 2 t. T. 2. Semi-volume 1 / E. A. Sukhanov. - Moscow: Volters Kluver, 2004. – 368 pages.
4. Ioffe, O. S. The chosen works under civil law. Civil legal relationship / O.S. Ioffe. – Moscow: Academy, 2000. – 800 pages.
5. Kucher, A. N. Theory and practice of a precontractual stage: legal aspect / A.N. Kucher. – M.: Statute, 2005. – 363 pages.
6. Lavrov, D.G. Liabilities in the Russian civil law / D.G. Lavrov. SPb.: Legal Press center, 2001. – 248 pages.