Payment is made after services are rendered. The procedure for settlements under the service agreement

hello we are public budget institution. We had to conclude a contract for the provision of security services for a period of 6 months. Authorized body spent electronic auction according to Law 44-FZ. Time dragged on while monitoring documents, EA, FAS complaints, etc., when we signed a contract, its period was 4 months. It turned out that the specification indicated 6 months on time, the amount for 6 months, and in fact the services were rendered for 4 months. We paid the counterparty the amount for 4 months, but he filed an application with the court to recover money from us for all 6 months. Is it legal?

• Question: No. 1888 dated: 2015-05-18.

Hello, in regards to your question, we would like to inform you that:

In accordance with paragraph 1 of Art. 779 of the Civil Code of the Russian Federation under the contract paid provision services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activity), and the customer undertakes to pay for these services.

Therefore, the agreement on the provision of security services concluded by you is a contract for the provision of services for a fee (hereinafter referred to as the Agreement).

According to Art. 783 of the Civil Code of the Russian Federation general provisions on the contract (Articles 702 - 729) and the provisions on domestic contracting (Articles 730 - 739) are applied to the contract for the provision of services for a fee, if this does not contradict Articles 779 - 782 of the Civil Code of the Russian Federation, as well as the specifics of the subject matter of the contract for the provision of services for a fee.

Thus, the norms of the Civil Code of the Russian Federation, which regulate the general provisions on the contract, can be applied to the contract to the extent that they do not contradict the special norms of the Civil Code of the Russian Federation.

By virtue of paragraph 1 of Art. 708 of the Civil Code of the Russian Federation, the contract specifies the start and end dates for the performance of work.

Therefore, the condition on the term for the provision of services is essential for contracts of this type.

In the contract concluded between the institution and the counterparty, the term for the provision of services was set at 6 months.

In accordance with paragraph 1 of Art. 781 of the Civil Code of the Russian Federation, the customer is obliged to pay for the services rendered to him on time and in the manner specified in the contract for the provision of services for compensation.

At the same time, by virtue of Part 2 of Art. 781 of the Civil Code of the Russian Federation in case of impossibility of performance due to the fault of the customer, the services are payable in full, unless otherwise provided by law or the contract for the provision of services for compensation.

The provisions of Part 2 of Art. 781 of the Civil Code of the Russian Federation regulate cases when the customer, without renouncing the contract and expressing the will to accept services, performs actions that exclude the possibility of providing him with proper services. In this case, the consequences of such an impossibility, consisting in the obligation to pay for the services in full, are assigned to him. By its nature, such an obligation is a measure of responsibility for breach of an obligation.

According to paragraph 3 of Art. 781 of the Civil Code of the Russian Federation, in the event that the impossibility of performance arose due to circumstances for which none of the parties is responsible, the customer reimburses the contractor for the expenses actually incurred by him, unless otherwise provided by law or the contract for the provision of services for compensation.

Thus, if the guilt of the institution in the deliberate creation of conditions for the impossibility of providing services is not proven, then the institution is obliged to pay the counterparty a fee for 4 months of its work. The obligation to pay remuneration under the Agreement for 6 months cannot be assigned to the institution.

This position is confirmed by judicial practice.

17 The Arbitration Court of Appeal, in its Resolution of July 26, 2010 No. 17AP-6383 / 2010-GK in case No. A50-2549 / 2010, established that in the case when none of the parties can be found guilty of the impossibility of fulfilling obligations, the customer is obliged to reimburse the contractor only for the expenses actually incurred by him, and at the same time he (the customer) is released from payment for the services of the contractor in full.

Attention! The information provided in the article is current at the time of its publication.

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A service contract has been signed. I make settlements under the contract by bank transfer, the amount is different every month and is determined by the contract as a percentage. For me, as a Customer, the proof of settlement with the Contractor in a non-cash way is an account statement. But, in order to avoid claims from the Contractor, I would like to sign a paper-based settlement document with him every month. Which document will be a convincing argument for the court - the monthly receipt of the Contractor or another document confirming that the Contractor has received a monthly payment from me under the contract (translation Money carried out from the Customer's bank card to bank card executor)?

Answer

What are the payment options for the contract? In fact or prepaid? Is the prepayment rate fixed? (For example, an advance payment of only 40%)?

Answer

Peculiarities of reflecting the remuneration clause in the service agreement

According to paragraph 1 of Art. 779 of the Civil Code of the Russian Federation for the services rendered, the customer must pay. The procedure and terms of payment are determined by the parties in the contract for the provision of services (clause 1 of article 781 of the Civil Code). At the same time, as the Constitutional Court of Russia explained in its Resolution No. 1-P dated January 23, 2007, the condition for paying remuneration cannot be made dependent on the achievement or failure to achieve the result expected by the customer.

For example, payment for legal services cannot depend on the decision of the court as a result of the provision of such services. Yes, to essential conditions of the contract is its subject matter, and the legislator has not fixed for him the achievement of a certain result. As a subject, the implementation of the ordered type of activity by the contractor is implied, for which remuneration must be paid.

Based on the clarifications of the Constitutional Court, it can be concluded that the parties, when concluding an agreement on the provision of services for a fee, are free to choose the price, procedure and amount of payment, as well as the timing of performance. At the same time, the type of services provided, which is the subject of the contract, cannot be changed even by agreement of the parties. But the amount and timing of payment may vary even in the process of fulfilling the contract - by making changes on a bilateral basis.

Types of remuneration under a service agreement

As for the prescribed conditions for remuneration to the contractor for the services rendered, they can be different:

Don't know your rights?

• Payment of the agreed amount upon completion of the contract. The parties, as a rule, stipulate the term of payment - for example, within 3 days after signing the act on the provision of services.
• Payment of remuneration and compensation of expenses of the contractor. They can be paid on the same day on the basis of an invoice issued by the contractor, or remuneration can be paid as a result of the performance of services, and compensation - in the course of the contract or later, after the provision of all supporting documents.
• Prepayment - in one hundred percent or in some part (50%, 25% or a fixed amount). Due to the fact that the contracts for the provision of services, according to Art. 783 of the Civil Code, the provisions on the contract and household contract are applicable, in accordance with paragraph 1 of Art. 711 of the Civil Code, the contract may also provide for an advance payment, both in full and in part (Article 735 of the Civil Code). Prepayment is due before the service is rendered. For its introduction, a certain period is also set - for example, within 5 days after the signing of the contract. The final settlement, as a rule, is made based on the results of the provision of services by the contractor.

Compensation of expenses - how their cost is reflected in the contract

In the conditions on the procedure for settlements under a service agreement, a requirement to compensate the contractor's expenses may be displayed (clause 2 of article 709 of the Civil Code). Also, in contracts for the provision of services for a fee, the price may not be displayed - then the customer will have to pay for the services received at a comparable cost for a similar type of service (clause 3 of article 424 of the Civil Code).

Therefore, in order to avoid misunderstandings in the future, it is recommended to immediately clearly state in the contract how, in what amount, the contractor’s remuneration is paid and how his costs are compensated by the customer (they are included in the price of the contract or paid extra later upon presentation of documents confirming the expenses). So, the expenses of the contractor can be expressed as a percentage of the amount of remuneration, and can be calculated according to the estimate or in fact - in rubles.

Expenses, if their amount is known at the time of the conclusion of the contract, are included immediately in the price of the contract or are reflected separately in one of its clauses, in the estimate / calculation, which are attached to the contract as an integral part of it. If the amount of expenses at the time of the conclusion of the contract is unknown, then it indicates that the customer undertakes to compensate all expenses of the contractor related to the performance of the assigned task.

The procedure for making settlements is determined by the parties at the conclusion of the contract. At the same time, the very fact of payment of remuneration to the performer cannot depend on the result of his activity. The customer pays for the fact that the contractor, on his behalf, has provided certain services.

The amount of remuneration is either immediately determined in a fixed amount, or may contain permanent part and a variable (expenses compensated by the customer), or the contract may not indicate the amount of payment at all, then the calculation is made in comparable prices for the same services. Payment can be made on the terms of full / partial prepayment or in full on the basis of the provision of services.