Contracts are different, or what you subscribe
Periodically I track questions on jurisprudence on a toaster. And not once faced with the fact that people have problems due to a misunderstanding of the difference between the contract and services. It would seem, what's the difference in these of your legal definitions? There is a contract! And here and there, the approaches differ quite substantially. In some cases, so dramatically that it is better to understand in advance what you subscribe to.
Referring to the original source - the civil code of the Russian Federation (Civil Code). Under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand it over to the customer, and the customer agrees to accept the result of the work and pay for it (clause 1 of Article 702 of the Civil Code of the Russian Federation). In general, it is still clear.
Let's see what the law says about services. Under the contract of paid services, the contractor undertakes, on the instructions of the customer, to render services (to perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1 of Article 779 of the Civil Code of the Russian Federation). Well, also not too difficult. And for most non-lawyers themselves, there is no difference. But she is colossal!
As an analogy, we turn to the English language. Understand the difference between Present Perfect and Present Continuous ? How was school taught there ... In the first case, you have already done something, but this has to do with the time of the conversation, and in the second case you are doing it at the moment, that is, you are in the process. Here it is.
If you re-read the definitions again, you will see that in the case of a contract, you must do the work and its result (that is, complete the work) to the customer. And in the second contract its essence is continuing action. You do not need something substantiated, something finished. From you require exactly action.
You have been ordered to make a website. What's this? Well, the stump is clear that the customer needs exactly what he wrote in the terms of reference that he can use to attract customers.
You ordered admin site. What result can you pass? Type a functioning site? So he functioned before you. You just serve it, it's an ongoing action. You provide services.
Another example. You have ordered bare servers and you need to run them. What do you need in the end? So that as a result of IT magic in your accounting, abuggy inevitable 1C is launched , and the employees throw each other cats through an exchanger. Result? Result.
And if you decide to use the exchanger on the side. Chose, for example, Dropbox. Americans will give you what result? Exchanger? And each month you will transfer a new exchanger? No, they just provide you a service.
An important digression after the comments appeared: services is not necessarily an ongoing action. It can be only one action at all. Made (rendered service) and free. The difference is exactly what you need - the finished result or just an action that does not have a specific form of the whole result (compare “pulled the layout on the site” and “fixed errors in the layout” - in the second case you have nothing to pass to the customer). It is because of this that the division of these two treaties occurs - they have different goals.
Surely you still have a lot of questions, especially in borderline cases. I’ll stop here on this. And now I will tell why and why it is very important to know.
The biggest difference between the contract and the services is how to terminate the contract.
If we are talking about a contract, then by default the contractor must do what he subscribed to. No options at all. If he does not do this, then the possibility of hangingall the dogs on him all the damage - the car and a small truck. The option “I didn’t shmogla” or “we were thrown by our partners” does not work. This is business, baby.
In this case, the customer, unless otherwise specified in the contract (almost never happens), may at any time jump off. Well, he lost interest in the project, funding did not go away, the stars changed their location in the sky. To you, he should only compensate for what you have done by this moment. But that's the problem. It is very difficult. And the fact of the work performed must prove exactly you. In this case, most likely, it will not roll "we have already written a million lines of code." Your work should have some customer value. If you have only sets of broken code sheets, then no one should pay.
The law allows you to claim damages from the customer. But their size is limited by the contract price. This time. And two - it is not easy to prove losses, many lawyers will confirm to you. In fact, the contract agreement strongly protects the interests of the customer. Such logic has its right to life, because really, if I don’t need it, it’s somehow wrong to force me to continue to pay for unnecessary work for me, and then force it to accept this work. I may have a business line for a long time no longer where you developed billing.
Everything is easier with services. There, any party may at any time withdraw from the contract. Wherein:
Of course, there are some consequences here. The customer must pay the actual costs to the contractor, and the contractor must pay damages to the customer. At the same time, I note that, in contrast to the contract, it is not the cost of the work performed (the services rendered in this case), but the expenses! Depending on the situation, this can both worsen and improve your position (for example, there are not many expenses for the offices that write the code by their own employees).
What if I have to do the site and have to maintain it? This is called a mixed contract. That is one piece of paper, but legally consists of two different contracts. So the contractor can not refuse to create the site, but can easily then reset its maintenance and run off.
Wonderful. How would you not name the contract, and how would the parties be called (though the performer, even the programmer, although office number 1) is a legally important set of rights and obligations. It is by what and how you undertake to do that the nature of the contract is determined. True, not even all lawyers understand this, so periodically you can see the processes that are judged by fines for leaving the service contract, which the parties called a contract (and hence the penalty is illegal), or to commit to transfer the result of the work under the contract, which Something services, and the result is not there to speak. Even the judges do not always delve into it.
Yes, it happens. Even the highest authority periodically issues opposite decisions. What can we say about ordinary people. You will take the car after the accident to the service. Brought junk, took almost a new machine rolling around. What's this? Services or in a row? They gave you the car back, did not create anything new, just repaired it. But in fact it is almost another object - compare the junk and sparkling new paint with the new engine swallow! There is only one advice, depending on which agreement is beneficial for you, to adjust it with the necessary rights and obligations. It is often enough to call the contract a service contract and few will argue with that.
PS I would appreciate feedback. And if it’s interesting, I’m ready to tell the whole truth on other sensitive issues, such as: what will be for the NDA, without a piece of paper you’renot a mess anyway, and how to write contracts without lawyers.
What is it all, damn it?
Referring to the original source - the civil code of the Russian Federation (Civil Code). Under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand it over to the customer, and the customer agrees to accept the result of the work and pay for it (clause 1 of Article 702 of the Civil Code of the Russian Federation). In general, it is still clear.
Let's see what the law says about services. Under the contract of paid services, the contractor undertakes, on the instructions of the customer, to render services (to perform certain actions or carry out certain activities), and the customer undertakes to pay for these services (clause 1 of Article 779 of the Civil Code of the Russian Federation). Well, also not too difficult. And for most non-lawyers themselves, there is no difference. But she is colossal!
As an analogy, we turn to the English language. Understand the difference between Present Perfect and Present Continuous ? How was school taught there ... In the first case, you have already done something, but this has to do with the time of the conversation, and in the second case you are doing it at the moment, that is, you are in the process. Here it is.
If you re-read the definitions again, you will see that in the case of a contract, you must do the work and its result (that is, complete the work) to the customer. And in the second contract its essence is continuing action. You do not need something substantiated, something finished. From you require exactly action.
Let's practice
You have been ordered to make a website. What's this? Well, the stump is clear that the customer needs exactly what he wrote in the terms of reference that he can use to attract customers.
You ordered admin site. What result can you pass? Type a functioning site? So he functioned before you. You just serve it, it's an ongoing action. You provide services.
Another example. You have ordered bare servers and you need to run them. What do you need in the end? So that as a result of IT magic in your accounting, a
And if you decide to use the exchanger on the side. Chose, for example, Dropbox. Americans will give you what result? Exchanger? And each month you will transfer a new exchanger? No, they just provide you a service.
An important digression after the comments appeared: services is not necessarily an ongoing action. It can be only one action at all. Made (rendered service) and free. The difference is exactly what you need - the finished result or just an action that does not have a specific form of the whole result (compare “pulled the layout on the site” and “fixed errors in the layout” - in the second case you have nothing to pass to the customer). It is because of this that the division of these two treaties occurs - they have different goals.
Surely you still have a lot of questions, especially in borderline cases. I’ll stop here on this. And now I will tell why and why it is very important to know.
And what I get for this?
The biggest difference between the contract and the services is how to terminate the contract.
If we are talking about a contract, then by default the contractor must do what he subscribed to. No options at all. If he does not do this, then the possibility of hanging
In this case, the customer, unless otherwise specified in the contract (almost never happens), may at any time jump off. Well, he lost interest in the project, funding did not go away, the stars changed their location in the sky. To you, he should only compensate for what you have done by this moment. But that's the problem. It is very difficult. And the fact of the work performed must prove exactly you. In this case, most likely, it will not roll "we have already written a million lines of code." Your work should have some customer value. If you have only sets of broken code sheets, then no one should pay.
The law allows you to claim damages from the customer. But their size is limited by the contract price. This time. And two - it is not easy to prove losses, many lawyers will confirm to you. In fact, the contract agreement strongly protects the interests of the customer. Such logic has its right to life, because really, if I don’t need it, it’s somehow wrong to force me to continue to pay for unnecessary work for me, and then force it to accept this work. I may have a business line for a long time no longer where you developed billing.
Everything is easier with services. There, any party may at any time withdraw from the contract. Wherein:
- It can not be a contract to ban it.
- You can not register a penalty for such a refusal.
- Apparently (for the time being there is no explanation from the highest authority, but this is derived from the previous positions), it is impossible to prescribe the terms for how much you need to warn about the termination of the contract. Because this is also a limitation, and the law does not give such liberty.
Of course, there are some consequences here. The customer must pay the actual costs to the contractor, and the contractor must pay damages to the customer. At the same time, I note that, in contrast to the contract, it is not the cost of the work performed (the services rendered in this case), but the expenses! Depending on the situation, this can both worsen and improve your position (for example, there are not many expenses for the offices that write the code by their own employees).
Promised Frontier Cases
Let there be a mix!
What if I have to do the site and have to maintain it? This is called a mixed contract. That is one piece of paper, but legally consists of two different contracts. So the contractor can not refuse to create the site, but can easily then reset its maintenance and run off.
I provide services (!) To create a site
Wonderful. How would you not name the contract, and how would the parties be called (though the performer, even the programmer, although office number 1) is a legally important set of rights and obligations. It is by what and how you undertake to do that the nature of the contract is determined. True, not even all lawyers understand this, so periodically you can see the processes that are judged by fines for leaving the service contract, which the parties called a contract (and hence the penalty is illegal), or to commit to transfer the result of the work under the contract, which Something services, and the result is not there to speak. Even the judges do not always delve into it.
I do not understand what I'm doing
Yes, it happens. Even the highest authority periodically issues opposite decisions. What can we say about ordinary people. You will take the car after the accident to the service. Brought junk, took almost a new machine rolling around. What's this? Services or in a row? They gave you the car back, did not create anything new, just repaired it. But in fact it is almost another object - compare the junk and sparkling new paint with the new engine swallow! There is only one advice, depending on which agreement is beneficial for you, to adjust it with the necessary rights and obligations. It is often enough to call the contract a service contract and few will argue with that.
Findings:
- What matters is not what you sign, but what you subscribe to. Not names are important, but filling.
- Any situation you can try to beat in your favor, using the shortcomings of people and documents.
- The courts are not always predictable in their decisions, and often both sides run to appeal the decisions. Therefore, do not quarrel, gentlemen, and in advance calculate your opportunities and risks!
- Always fix the agreement and the implementation of the stages. Even correspondence can fully expand the position of the judge.
PS I would appreciate feedback. And if it’s interesting, I’m ready to tell the whole truth on other sensitive issues, such as: what will be for the NDA, without a piece of paper you’re