The payment of a lump sum does not indicate the conclusion of a commercial concession agreement

By virtue of paragraph 1 of Art. 1028 of the Civil Code of the Russian Federation [1], a commercial concession agreement is concluded in writing, non-compliance with which entails its nullity.

As a general rule, paragraph 3 of Art. 434 of the Civil Code of the Russian Federation, the written form of the contract is considered to be complied with even if the written proposal to conclude the contract is accepted in the manner provided for in paragraph 3 of Art. 438 of the Civil Code of the Russian Federation - by accepting the offer by conclusive actions, in particular, by paying the appropriate amount.

The Supreme Court of the Russian Federation [2] explained that, within the meaning of paragraph 3 of Art. 438 of the Civil Code of the Russian Federation, for the purposes of qualifying implicit actions as an acceptance, it is sufficient that the person to whom the offer was sent began to execute the proposed contract on the conditions specified in the offer within the time period established for its acceptance.

However, in cases provided for by law or by agreement of the parties, an agreement in writing can only be concluded by drawing up one document signed by the parties to the agreement (clause 4, article 434 of the Civil Code of the Russian Federation).

The law does not contain a literal indication that a commercial concession agreement must be concluded by drawing up one document. In this regard, disputes arise about the admissibility of its conclusion by accepting an offer by conclusive actions, in particular, by paying a fee for the right to use a complex of exclusive rights.

Thus, in case A60-51527/2022 [3], the copyright holder insisted on the conclusion of an agreement, arguing that the user left an application for a consultation on a franchise, requested details for payment and an agreement for review. The copyright holder sent him a draft agreement, under which the user pays the copyright holder a lump-sum fee for the right to use the instrumentation. After receiving the draft contract, the user paid the fee and, in the opinion of the copyright holder, thus accepted the offer.

However, the court did not agree with the copyright holder and referring to Art. 160 of the Civil Code of the Russian Federation noted that a transaction in writing must be made by drawing up a document expressing its content and signed by the persons making the transaction, or persons duly authorized by them. The Court of Appeal [4] supported the approach, pointing out that in this case compliance with the written form of the contract means its signing by both parties.

In addition, the court pointed out that despite the payment of a lump-sum fee, the copyright holder did not provide the user with a counter performance - a set of services and materials necessary for using the complex of exclusive rights.

In a similar dispute in case A63-9524/2021 [5], the court noted that the payment of a lump-sum fee without the actual transfer of the complex of exclusive rights cannot indicate the conclusion of an agreement. At the same time, he indicated that, taking into account the requirements of paragraph 2 of Art. 1028 of the Civil Code of the Russian Federation on state registration of granting the right to use instrumentation under a commercial concession agreement, such an agreement can only be concluded by drawing up one document signed by the parties, which is then subject to submission to the Federal Institute of Industrial Property.

Sources:

1."Civil Code of the Russian Federation (Part Two)" dated 01/26/1996 N 14-FZ (as amended on 07/01/2021, as amended on 07/08/2021)

2.Clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 25, 2018 N 49 "On some issues of application of the general provisions of the Civil Code of the Russian Federation on the conclusion and interpretation of the contract"

3.Decision of the Arbitration Court of the Sverdlovsk Region dated November 28, 2022 in case No. А60-51527/2022

4.Resolution of the Seventeenth Arbitration Court of Appeal dated February 1, 2023 N 17AP-16701/2022-GKu

5.Decision of the Arbitration Court of the Stavropol Territory dated November 22, 2021 in case No. А63-9524/ 2021