Institute of the preliminary contract has been known since pre-revolutionary Russian civil law.So in the contract agreement to sell one side undertook to sell the thing the other side.The purpose of drawing up this agreement was to overcome unsuitable conditions for the conclusion of the main contract.Reason for drawing up the preliminary agreement seemed possible due to the lack of overcoming objectionable conditions of the basic contract.Thus, the agreement to sell the contract acted as a guarantor of the duty to conclude a contract for both sides, as well as the guarantor of the right to claim from the other party to sign the main contract.
In modern Russian civil law the definition of the preliminary agreement disclosed by Article 429 of the Civil Code.So in the preliminary contract the parties undertake to enter into in the future contract of sale of land, the basic terms of which the parties themselves determine the make up of the preliminary contract.
preliminary contract of sale of land not
According to paragraph 5 of Article 429 of the Civil Code if the party has entered into a preliminary agreement, avoids compilation of the basic contract, the provisions provided for in paragraph 4 of Article 445 of the current Code.So
paragraph 4 of Article 445 of the Civil Code says that if the party, for which in accordance with the Code or other laws of the conclusion of the contract necessarily shy away from its conclusion, the other party may apply to the court for enforcement to conclude an agreement.Party unjustifiably refused to sign the agreement, so must compensate the other party incurred losses.
According to a similar article of the Civil Code of the preliminary contract contains all the terms of the main contract, including payment terms.
In a preliminary contract of sale of land may indicate the point of transfer of advance payment or deposit.The size of the advance payment made by a deposit determined by agreement between the parties.
In accordance with Art.380 of the Civil Code of the Russian Federation - downpayment recognized an amount of money issued by a contracting party in respect of its outstanding contractual payments to another party in the proof of the contract and in ensuring its implementation.
If specified in the contract-written prepaid amount, terms and procedure of its payment, then the situation will largely depend on what is this amount: the deposit or advance.The difference between the advance and the earnest money is liable for failure to fulfill the obligations to which they were submitted.So when default under the party which gave the down payment or deposit this amount remains in the other hand, if the party responsible for the failure to get an advance, he returned to that extent that was introduced, but the deposit is returned in a double size.In cases where the parties stipulate the agreement, then the implementation of any transfer of funds necessary paperwork (receipt).
Termination of obligations stipulated by the preliminary contract, in accordance with Part. Article 6.429 of the Civil Code be terminated if before the end of the period in which the parties must conclude the basic contract, he will not be signed, or one of the parties gives the other party an offer to enter into this contract.
terminate the pre-contract unilaterally is impossible, before the deadline, if otherwise provided by the basic contract for the sale of land.
Thus, the preliminary contract provides a unique opportunity to establish responsibilities of the parties to each other and give legal effect to the agreements reached before the conclusion of the main contract.