Preliminary contract: the term of the contract and other historical and legal aspects
The history of legislative existenceThe preliminary treaty has many centuries. The preliminary contract (pactum in contrahendo) was familiar to ancient Roman lawyers. This treaty was fixed both in the Russian prerevolutionary and in Soviet civil legislation. Thus, the Civil Code of the RSFSR of 1922 legalized the contract of sale of a residential house that existed in the civil legislation of pre-revolutionary Russia, which obliged its participants after a certain time (which provided for the term of the contract), to conclude on the previously accepted conditions another - sale and purchase. The need for a preliminary contract was due to the existence of certain obstacles or the absence of any conditions for its conclusion.
Russian scientist-civilian G.F. Shershnev, noted that the reason for the conclusion of the sale, determining how to change the duration of the contract of sale, could be the lack of proprietary rights, or the finding of property under prohibition. The Civil Code of those years did not mention the preliminary agreement, but the possibility of its conclusion logically ensued from the meaning of the content of the Civil Code, which allowed the emergence of civil rights not attributed to the law, but not contradicting it. In the economic practice of those years, preliminary contracts were, first of all, in the sphere of supply or foreign trade relations, where the term of the contract of supply, for example, was always a problem. In the conditions of a planned economy, the legal configuration of such a contract was not properly demanded due to the fact that most of the contracts arose from planned tasks in which the duration of the contract itself was determined by the plan.
With the beginning of market transformation placecontractual obligations arising from the planned tasks, the traditional system of preliminary contracts was called upon. After the collapse of the USSR in the Fundamentals of Civil Legislation, this term took its place in 1991. This normative act defines the procedure for concluding, the duration of the contract and other obligations, including the requirement to compel the conclusion of a contract. The basics did not provide for a specific list of preliminary agreements. It could be contracts for sale, performance of works and services, etc.
Now, with the management of multi-year contractualinterconnections, the conclusion by participants of civil legal relations of these treaties and the reservation in them of such an important position as the term of the contract becomes an absolutely necessary attribute.
Often, the decision to enter into a contractrequires complex and lengthy negotiations, preceded by expensive preparatory work, sometimes a highly professional examination is necessary. In such circumstances, the question arises whether the costs incurred at the stage of preliminary preparation of the contract will not be wasted.
Analysis of the legal nature of the preliminary contractallows us to state that this agreement is characterized by a number of specific features. As a contract, it is significantly different from those in which future counterparties outline the basic and secondary terms of the forthcoming treaty. In some cases, at the stage of preparation for the conclusion of a treaty, its participants form a protocol of intent. This document fixes the achieved results and makes specific commitments (related to the continuation of the negotiations or the signing of the treaty) for a certain period.
A protocol of intent may be useful insolving issues on financing the transaction, obtaining a loan, preparing a business plan and in other cases of practical activities. This document can serve, for example, as confirmation for the accounting department of the negotiations conducted and the basis for writing off the costs of their organization. However, like other ways of fixing the negotiation process, the protocol of intent does not oblige the signatories to enter into a contractual relationship in the future.