Commentary to the articles of Paragraph 4 of the Contract of Chapter 25 of the Civil Code of the Republic of Kazakhstan
The contract agreement regulates relations for the harvesting of agricultural products and raw materials. A contract is one of the types of purchase and sale that is closely related to a supply contract. The rules on supply contracts apply to contractual relations (Clause 2, Article 478 of the Civil Code). Along with the Civil Code, contractual relations are regulated by a number of separate regulations that are more often applied to the supply of specific agricultural products. It should be noted that such regulations more often regulate relations on harvesting agricultural products for the needs of the state. A special feature of these contracting agreements is the participation of the State, represented by authorized bodies, as the procurement party. These are, for example: Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated April 8, 1993 No. 279 "On the purchase of varietal and hybrid seeds of cereals, legumes, oilseeds and herbs for state resources from the 1993 harvest"; Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated September 8, 1994 No. 1013 "On the procedure for harvesting grain for State needs the 1994 harvest"; Decree of the Prime Minister of the Cabinet of Ministers of the Kazakh SSR dated April 19, 1991 No. 62-R "On the delivery of breeding cattle", etc.
The contract agreement is compensatory, consensual and mutual.
The difference from other types of purchase and sale, including the supply contract, is in the subject matter and the subject.
In accordance with Article 478 of the Civil Code, in the contract agreement, the producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to the supplier, the person who purchases such products for processing or sale.
Consequently, the seller's contracting parties are the producer of agricultural products and the procurement contractor. Agricultural organizations such as farms, partnerships, etc. act as suppliers, while entrepreneurs and manufacturers act as buyers. According to some authors, the state and citizens who do not have the status of an entrepreneur cannot participate in the contract agreement.1 This opinion, in our opinion, is controversial, since there may be cases of purchases of agricultural products for public needs, in which case the party is the state, whose interests are represented by special persons - government customers and authorized bodies.
An entity that is directly engaged in the production of agricultural products can act as a seller in a contract agreement. These are usually individual entrepreneurs, heads of peasant or farm farms, or commercial organizations whose statutory activities are agricultural production. Therefore, if the sale of agricultural products produced by someone else will be carried out in the form of a supply or sale agreement, but not a contract. A procurement contractor is also a kind of entity specializing in the processing and harvesting of agricultural products.
The subject of the contract agreement can be any agricultural product (crop production, animal husbandry, animal husbandry, etc.). The subject ("products") are things defined by generic characteristics, and not all, but only produced or grown by the supplier (for example, not watermelons at all, but only grown by this farm).
The specifics of this agreement are that the products that are the subject of the contract are purchased for subsequent processing or sale (Clause 1 of Article 478 of the Civil Code). The object of the contract may be not only agricultural products or raw materials (for example, meat), but also products of their processing (for example, sausages). In most cases, future goods are contracted, crops and offspring that do not yet exist at the time of the conclusion of the contract. However, with regard to the sale of agricultural raw materials processing products, the moments of concluding and executing a contract agreement may sometimes coincide. The subject of the contract is determined using two criteria: first, it is products produced in such an economic sector as agriculture. Secondly, these are products obtained by agro- and zootechnical methods commonly used in agriculture, i.e. by growing or harvesting using nature (land, flora, fauna) as the most important factor of production. Only the combination of these two criteria makes it possible to more or less clearly outline the subject of the contract.
The price is not an essential condition of the contract agreement, as well as the delivery. Its determination is carried out according to the general rules provided for purchase and sale.
Determining the term of the contract agreement is not so important for contracting, because often the terms of conclusion and execution of the contract agreement do not coincide: products must be produced (grown), in addition, it is necessary to take into account such an important feature of agriculture that the production and cultivation of its products are directly dependent on natural factors. Thus, in accordance with the Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated September 8, 1994. No. 1013 "On the procedure for harvesting grain for state needs of the 1994 harvest" grain supplies to grain-receiving enterprises in order to ensure its maintenance and safety must be carried out during the harvesting period, or immediately after their completion, regardless of the status of payments for it.
The duties of the producer of agricultural products are to transfer the manufactured products to the supplier. The only feature of the condition for the transfer of goods in the contract is related to the need to transfer it in an agreed assortment.
The duties of the supplier are reduced to accepting the goods and paying for them. Unlike the general rules applicable to purchase and sale, the supplier is usually obliged to accept agricultural products from the manufacturer at its location, and is obliged to ensure their export outside the producer's farm (paragraph 1 of Article 479 of the Civil Code). If the contract provides for the acceptance of agricultural products at the location of the supplier (or another place specified by him), he does not have the right to refuse to accept agricultural products that comply with the terms of the contract and are transferred to the supplier within the time period stipulated by the contract (paragraph 2 of Article 479 of the Civil Code). Additional duties of the supplier engaged in the processing of agricultural products may include the return of waste from such processing to the producer for an appropriate fee.
The obligation to pay for purchased agricultural products is determined according to the general rules of § 3 of Chapter 25 of the Civil Code on supply and § 1 of the same chapter on purchase and sale. In practice, payment is usually made in advance (in whole or in part), which allows manufacturers to finance the production process.
A feature of the contract agreement, unlike other supply agreements, is the occurrence of liability. By way of derogation from the general rule on liability of entrepreneurs for breach of obligations on the basis of risk, i.e. regardless of guilt, the Civil Code provides for the producer of agricultural products to be responsible only for guilt. A producer of agricultural products who fails to fulfill an obligation or improperly fulfills an obligation is liable if he is guilty (art. 481 of the Civil Code). At the same time, the supplier is responsible for violating the terms of the contract on a general basis for entrepreneurs, i.e. his responsibility is based on the principles of risk. An exception to this rule is the occurrence of liability with the participation of the State as a supplier. The supplier is a government agency under a contract for the purchase of agricultural products for state needs, as well as the producer, is responsible only for the fault.
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G.
