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“The parties have concluded an unnamed contract. What rules will the court apply” — an article by Arltan Tserenov co-authored with Anton Siushov for “Arbitration Practice for Lawyers”

The law does not prohibit the conclusion of mixed and unnamed contracts. But such agreements have nuances in legal regulation. What the parties should take into account is in the article by Arltan Tserenov, junior lawyer of "Prime Advice" and Anton Siushov for the publication "Arbitration Practice for Lawyers".

The principle of freedom of contract allows the parties to conclude contracts that are not provided for by law or other legal acts or contain elements of various contracts. Many companies are afraid to use such constructions due to their possible re-qualification by the court. Let's look at how courts evaluate unnamed contracts.

Non-application of provisions on certain types of contracts

An unnamed contract is a contract that is not provided for by any law or other legal act (clause 2 of Article 421 of the Civil Code). When evaluating such a contract, the court will take into account not its name, but the subject matter, the actual content of the rights and obligations of the parties, the distribution of risks, etc. (paragraph 5 of the Resolution of the Plenary of the Supreme Arbitration Court of 14.03.2014 No. 16 "On Freedom of contract and its limits").

If it is impossible to determine from the content of the contract to which of the types provided for by the legislation the contract or its individual elements relate, the rights and obligations of the parties will be established based on the interpretation of its terms (paragraph 49 of the Resolution of the Plenary of the Supreme Court of 25.12.2018 No. 49 "On some issues of the application of the general provisions of the Civil Code of the Russian Federation on the conclusion and interpretation of the contract").

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