RESOLUTION OF THE PLENUM OF SUPREME ECONOMIC COURT OF THE REPUBLIC OF BELARUS

of December 5, 2012 No. 12

About some questions of hearing of cases arising from delivery agreements of goods

Plenum of Supreme Economic Court of the Republic of Belarus for the purpose of ensuring the correct and uniform application by economic courts of the legislation by hearing of cases, the goods arising from delivery agreements, being guided by Articles 74, 75 Codes of the Republic of Belarus about judicial system and the status of judges, decides to make the following explanations.

1. Judicial protection of the rights and legitimate interests of persons participating in the cases arising from delivery agreements of goods is guaranteed by part two of Article 13 and part one of article 60 of the Constitution of the Republic of Belarus.

Owing to part one of article 8 of the Constitution of the Republic of Belarus the Republic of Belarus recognizes priority of the conventional principles of international law and provides compliance to them of the civil legislation.

Legal regulation of delivery agreements of goods is provided, in particular, by the Convention of the United Nations on agreements of the international purchase and sale of goods concluded in Vienna on April 11, 1980 (further - the Convention on agreements of the international purchase and sale of goods), the Convention on limitation period in the international purchase and sale of goods concluded in New York on June 14, 1974 in editions of the Protocol on change of the Convention on limitation period in the international purchase and sale of goods signed in Vienna on April 11, 1980 (further - the Convention on limitation period in the international purchase and sale of goods), the Agreement on general terms of deliveries of goods between the organizations of the State Parties of the Commonwealth of Independent States of March 20, 1992 (Vyarkho¸naga Savet's Vedamastsi of Respubliki Belarus, 1993, No. 22, the Art. 281) (further - the Agreement on general terms of deliveries of goods between the organizations of the State Parties of the CIS), The civil code of the Republic of Belarus (further - group of companies), the Regulations on deliveries of goods in the Republic of Belarus approved by the resolution of the Cabinet of Ministers of the Republic of Belarus of July 8, 1996 No. 444 (Collection of presidential decrees and resolutions of the Cabinet of Ministers of the Republic of Belarus, 1996, No. 19, Art. 481; 1998, No. 23, Art. 620; National register of legal acts of the Republic of Belarus, 2000, No. 55, 5/3320; 2011, No. 117, 5/34590) (further - Regulations on deliveries of goods), Regulations on goods acceptance by the quantity and quality approved by the resolution of Council of Ministers of the Republic of Belarus of September 3, 2008 No. 1290 (The national register of legal acts of the Republic of Belarus, 2008, No. 214, 5/28293) (further - Regulations on goods acceptance).

2. The convention on agreements of the international purchase and sale of goods and the Convention on limitation period in the international purchase and sale of goods are applied in case of the dispute resolution, following from purchase and sale agreements (delivery of the goods) signed by the parties which are in the different states irrespective of the reference to the specified conventions in the agreement signed by the parties in the presence of one of the following conditions:

agreement parties are in the states, each of which is participant of conventions;

according to the conflict-of-laws rules which are subject to application in case of the dispute resolution the substantive right of the State Party of the specified conventions is subject to application.

It is necessary to consider that according to article 6 of the Convention on agreements of the international purchase and sale of goods of the party can direct specifying in the agreement exclude its application or on condition of observance of article 12 of this Convention to depart from any of its provisions or to change their action.

The national legal system can be applied to the international treaty of purchase and sale of goods (delivery of goods) to which operation of the Convention on agreements of the international purchase and sale of goods extends in cases when agreement parties excluded application of this Convention completely either in certain part or so far as concerns the questions which are not settled in this Convention (and the decision them is impossible by use of its general principles).

3. By consideration of disputes between subjects of managing of the State Parties of the Commonwealth of Independent States it is necessary to consider regulations of the Agreement on general terms of deliveries of goods between the organizations of the State Parties of the CIS.

4. In case of application of the national legal system it is necessary to consider the following.

The delivery agreement of goods is separate agreement type of purchase and sale. The provisions provided by the paragraph 1 "General Provisions about Purchase and Sale" of Chapter 30 (Item 5 of Article 424 of group of companies) are applied to the delivery agreement of goods if other is not provided by the Civil Code and other acts of the legislation on the delivery agreement of goods. In the absence of the relevant standards in paragraphs 3 and 1 of Chapter 30 of the Civil Code it is necessary to be guided by general regulations of group of companies about the agreement, transactions and obligations.

In case of application of the Regulations on deliveries of goods it is necessary to consider its action in space - in the territory of the Republic of Belarus (part one of Item 2 of the Regulations on deliveries of goods); according to Item 2 of the Regulations on deliveries of goods its action:

extends to the relations between legal entities and (or) individual entrepreneurs in the territory of the Republic of Belarus on delivery of goods;

interaction of the ministries, other central governing bodies, local executive and administrative organs, legal entities and individual entrepreneurs by delivery of goods for the state needs does not extend much;

does not extend to relations of legal entities and (or) individual entrepreneurs on warranty periods of operation of difficult technique and the equipment irrespective of the place of their production, including components and components.

The regulations on goods acceptance determine general procedure and acceptance procedures of goods by quantity and quality. Regulations on goods acceptance:

it is applied if the delivery agreement of goods does not provide other (Item 1 of the Regulations on goods acceptance);

it is applied under the delivery agreements of goods signed by legal entities and individual entrepreneurs of the Republic of Belarus it can be applied in case of goods acceptance, delivered according to the agreement in foreign trade if its conditions do not provide other (Item 2 of the Regulations on goods acceptance);

it is not applied to goods for which acts of the legislation or terms of the contract establish other procedure for acceptance by quantity and (or) quality (Item 3 of the Regulations on goods acceptance).

5. Legal relationship of the parties should be qualified as the legal relationship following from the delivery agreement of goods in the presence of the signs containing in Article 476 of group of companies irrespective of the fact how in the text of the agreement are called the agreement, his participants and method of transfer of goods.

Based on part one of Item 1 of Article 402 of group of companies the agreement is considered the prisoner if between the parties in the form required in the subject cases the agreement on all essential terms of the contract is reached.

Proceeding from part two of Item 1 of Article 402, of Item 3 of Article 425, of Item 1 of Article 427, of Article 476 of group of companies essential terms of the contract of delivery of goods are conditions about the subject of the agreement (about the name, goods quantity or procedure for their determination), the conditions which are called in the legislation as essential necessary or obligatory for agreements of this type (about delivery date of goods or procedure for its determination), and also all those conditions concerning which according to the statement of one of the parties the agreement shall be reached.

In case of assessment of approval by the parties of essential terms of the contract of delivery of goods according to the procedure, established by the legislation and the agreement, economic courts according to Article 401 of group of companies should consider availability or lack of disagreements according to the subject of the agreement and other essential terms of the contract (which are those according to part two of Item 1 of Article 402 of group of companies) in the course of making by the parties of actions for delivery and goods acceptance, and also on their payment.

6. Proceeding from Item 2 of Article 404 of group of companies the contract of delivery of goods can be in writing signed by creation of one document signed by the parties and also by exchange of documents by means of the mail, cable, teletype, electronic or other service allowing to determine authentically that the document proceeds from the agreement party.

It is necessary to consider that the standard forms of source accounting documents TTN-1 "Commodity-transport delivery note" and TN-2 "Consignment note" approved by the resolution of the Ministry of Finance of the Republic of Belarus of December 18, 2008 No. 192 (The national register of legal acts of the Republic of Belarus, 2009, No. 41, 8/20328; No. 119, 8/20901; No. 174, 8/21229), contain the details corresponding to essential terms of the contract of delivery.

If the contract of delivery of goods by creation of one document signed by the parties was not signed; goods were transferred by the supplier-seller to the buyer on superimposed TTN-1 (in case of movement of goods with participation of vehicles) or on superimposed TN-2 (in case of movement of goods without participation of vehicles - mail or the courier), economic courts should give assessment to the content of the corresponding delivery note, other data specified in the documents relating to such delivery of goods.

In case of delivery of goods based on superimposed TTN-1 or superimposed TH-2, in the column "Leave Basis" of which the agreement, the invoice, the request and other basis to which the party in reasons for the requirements or objections refers is not specified, the economic court should consider availability of other delivery agreements of goods, correspondence of the parties and other proofs signed between the parties for determination of the agreement in pursuance of which goods are delivered. If superimposed TTN-1 or delivery note of TN-2 contains the essential conditions necessary for the conclusion of the delivery agreement of goods, then based on part one of Item 1 of Article 402 of group of companies the delivery agreement of goods is considered the concluded way of creation of the corresponding superimposed TTN-1 or superimposed TN-2.

7. In case of absence in the delivery agreement of goods of strictly certain delivery date or different way of its determination rules, the stipulated in Clause 295 Civil Code are subject to application. Application of this regulation follows from Article 427 of group of companies according to which in case of absence the seller of obligation to transfer goods in the agreement of specific completion date completion date of its obligation is determined according to rules, stipulated in Article 295 groups of companies.

Delivery dates of job lots (the delivery periods) under the delivery agreement of goods by which such terms are not determined are regulated by Article 478 of group of companies.

8. According to the subitem 1 of Item 1 of Article 428 of group of companies if other is not provided by the delivery agreement of goods, the obligation on delivery of goods is considered to the buyer performed in date of transmission of goods or person specified to them or delivery of goods to carrier.

If the delivery agreement of goods contains condition about selection of goods by the buyer in the location of the supplier (Item 2 of Article 480 of group of companies), then the obligation fulfillment moment is determined by delivery according to the rule of the subitem 2 of Item 1 of Article 428 of group of companies if other moment of obligation fulfillment on delivery is not provided by the delivery agreement of goods.

9. In case of the dispute resolution, the goods connected with improper execution of the delivery agreement, it is necessary to consider that the underdelivery takes place as in case of delivery of the goods quantity caused by the contract with violation of terms, and in case of delivery of goods with adherence to deadlines or the delivery periods, but in quantity smaller, than it is provided by the agreement.

The underdelivery takes place and in that case when goods of inadequate quality or incomplete are delivered and the buyer declared at the scheduled time the requirement about their replacement, fitting or remedial action with forces of the supplier.

10. In case of the dispute resolution, the goods connected with improper execution (non-execution) by the supplier-seller of obligation on delivery in set (set of goods), it is necessary to recognize that the moment of proper execution by the supplier-seller of the obligation shall be determined by transfer of all goods included in set proceeding from the rule, stipulated in Item 1 Article 449 of group of companies.

11. In case of the dispute resolution, following from the delivery agreement of goods signed with condition of its execution to strictly certain term (Item 2 of Article 427 of group of companies) is necessary to mean that early delivery of goods or completion of the undersupplied goods quantity in the next period or the periods is allowed according to this obligation only in the presence of the consent of the buyer. Under delivery agreements of goods to strictly certain term the notification is not required by the buyer of the supplier-seller about refusal to accept overdue goods. If the specified goods are accepted by the buyer, obligations of the supplier-seller are considered performed with violation of fixed term.

If the delivery agreement of goods establishes obligation of the supplier-seller on delivery of goods to strictly certain term, however goods are delivered by the supplier-seller and accepted by the buyer ahead of schedule before the delivery date specified in the agreement, in the absence of the agreement on other, payment is in that case made according to the procedure and the terms provided by the agreement.

12. According to subitems 1 and 2 of Item 2 of Article 438 of group of companies if along with goods which range corresponds to the agreement goods with violation of condition about assortment are delivered, the buyer has the right to refuse as the goods which are not corresponding to condition about assortment, and all goods delivered at the same time, in the latter case the buyer has the right to declare the requirement about payment of penalty for underdelivery of all batch (Article 491 of group of companies).

13. The buyer shall pay the delivered goods in time, established by acts of the legislation or the contract of delivery of goods, and in case of its absence is direct to or after goods receipt (Item 1 of Article 456 of group of companies), that is in time which shall be as close as possible by the time of receipt (transfer) of goods by the buyer.

In the delivery agreement of goods of the party can specify specific payment due date of goods or establish procedure for determination of such term (for example, payment in time, specified in the invoice). If in the agreement the procedure for determination of payment due date is established and the supplier-seller did not make necessary actions for determination of this term (for example, did not send to the buyer the invoice), are subject to application of the rule of Article 295 of group of companies.

14. In case the payment due date of the delivered goods is not established by the delivery agreement of goods and the procedure for determination of such term is not established, and calculations are made by payment orders, the delay of the buyer comes after fixed term for implementation of bank transfer which is estimated from the date of, the goods receipt following behind day.

The same rule is applied if the delivery agreement of goods provides advance payment of goods and the condition about the subsequent payment of goods is not determined, and the supplier-seller delivered goods to the buyer without advance payment.

If the parties provided payment procedure on payment request in the delivery agreement of goods, the buyer is considered delayed the obligation after the term established for representation of payment request in bank receiver if the payment request was not adopted by bank sender due to the lack of the statement of the payer on the acceptance in bank sender. In the presence of the statement of the payer on the acceptance in bank sender and non-presentation in bank receiver of payment request the creditor is considered the Civil Code which delayed the obligation according to Article 377 as did not make the actions provided by the agreement before which making the debtor could not fulfill the obligation.

If the delivery agreement of goods contains condition about payment of goods as by means of payment orders, and payment requests, then the obligation of the buyer on payment of the delivered goods arises from the date of, the goods receipt following behind day.

15. If the buyer when implementing payment of goods did not specify the agreement (in the absence of the agreement - superimposed TTN-1 or superimposed TH-2) according to which payment is made, payment is set off on account of obligation fulfillment under the agreement (in the absence of the agreement - superimposed TTN-1 or superimposed TH-2) on which completion date of obligations came earlier. If completion date of the obligation under several agreements came at the same time, the provided execution is set off in proportion in repayment of obligations under all agreements (Item 3 of Article 492 of group of companies).

If in the payment instruction the agreement is specified (in the absence of the agreement - superimposed TTN-1 or superimposed TH-2) on account of which payment is made, payment is set off in repayment of agreement obligation (in the absence of the agreement - superimposed TTN-1 or superimposed TH-2), specified in the payment instruction.

16. Untimely payment of the received goods attracts responsibility of the buyer in the form of interest payment under Article 366 of group of companies according to Item 3 of Article 456 of group of companies. Responsibility of the supplier-seller in the form of interest payment under Article 366 of group of companies in case of non-execution of obligation on delivery of prepaid goods arises according to item 4 of Article 457 of group of companies.

By the delivery agreement of goods also collection of percent on commercial loan (Item 1 of Article 762, Article 770 of group of companies) which are paid by the supplier-seller on advance payment amount from the date of its obtaining until delivery of goods, the buyer - on the amount constituting the cost of the delivered goods can be provided from the moment of its obtaining to day of payment.

17. In case of the dispute resolution, connected with improper execution (non-execution) by the buyer of obligation on return to the supplier-seller of multireusable tare and means of packaging, it is necessary to recognize that the multireusable tare and means of packaging in which goods arrived shall be returned to the supplier according to the procedure and the terms established by the law, other regulatory legal acts or the agreement.

If it is impossible to determine terms of return of multireusable tare and means of packaging in the called procedure, term shall be determined proceeding from rules, stipulated in Article 295 groups of companies.

18. According to Article 493 of group of companies in case of fundamental breach of the delivery agreement of goods of one of the parties other party has the right to refuse unilaterally at the choice execution of such agreement both completely, and partially or to unilaterally change such agreement.

Agreement breach of delivery of goods is supposed essential in the cases provided by Items 2, 3 Articles 493 of group of companies, Item 103 of the Regulations on deliveries of goods.

According to Item 5 of Article 423 of group of companies the party which declared unilateral refusal in connection with fundamental breaches of the terms of the contract from the partner having the right to impose indemnification requirements caused by termination or change of the agreement.

By consideration of the dispute following from the delivery agreement of goods under which the refusal of obligation fulfillment was declared to economic court in all cases it is necessary to estimate arguments of the parties about legality of such refusal if it is related to claims. At the same time the economic court should consider proportionality of the allowed violation in relation to effects of unilateral refusal of agreement performance of delivery of goods.

19. When under the terms of the delivery agreement of goods transfer of goods is performed by job lots, the refusal of its execution on the bases provided by Articles 479 and 485 of group of companies attracts termination of the obligation in general if other was not declared in the refusal.

It is necessary to consider that the relevant party has the right to require indemnification, goods caused by agreement cancelation of delivery in connection with unilateral refusal from its execution, only if the violation allowed by the partner is essential (Item 2 of Article 420 and Items 2, 3 Articles 493 of group of companies).

20. By consideration of the requirement about collection of legal penalty it is necessary to consider that owing to Item 1 of Article 313 of group of companies the right of the creditor require payment of the penalty determined by the legislation can be realized irrespective of:

whether the obligation of its payment is provided by the delivery agreement of goods;

whether the refusal of payment of the penalty determined by the legislation is provided by the agreement of the parties.

In case of collection of legal penalty it is necessary to consider that according to Item 2 of Article 313 of group of companies change by the agreement of the parties only of the size of legal penalty is allowed if the legislation of it does not prohibit. Item 2 of Article 313 of group of companies does not provide possibility of change of type of legal penalty (for example, penalty fee instead of penalty).

Stipulated in Item 91 Regulations on deliveries of goods the legal penalty (penalty) is applied if other (other size of penalty) is not established by Regulations on deliveries of goods or the agreement.

The parties have the right to establish in the delivery agreement of goods for non-execution or improper execution of the obligations other, not stipulated by the legislation types and the extent of responsibility which are not contradicting the legislation (contractual penalty - Item 1 of Article 311 of group of companies).

Proceeding from Article 311 of group of companies the term of the contract of delivery of goods about penalty is considered approved if the parties in writing determined the sum of money which is subject to payment in case of non-execution or improper execution of the obligation.

When the parties in the agreement put the size of penalty fee into dependence on refunding rate of National Bank of the Republic of Belarus and at the same time in the agreement there is no specifying much of determination of interest rate, economic courts should consider changes of refunding rate of National Bank for every period of non-execution of the obligation.

It must be kept in mind that the responsibility for improper execution of the obligation provided in the agreement is applied as well in case of non-execution in full of this obligation.

21. If the legal penalty for violation by the buyer of terms of the contract of delivery of goods about advance payment is not established, such penalty can be defined by the delivery agreement of goods.

22. According to Item 1 of Article 294 of the Civil Code obligation fulfillment which arose from the agreement it can be assigned in general or in part to the third party if it is stipulated by the legislation or the agreement.

Owing to Item 2 of Article 486 of group of companies if the delivery agreement of goods provides that payment of goods is performed by the receiver (payer) and the last unreasonably refused payment or did not pay goods in the time established by the agreement, the supplier-seller has the right to demand payment of the delivered goods from the buyer. The legislation does not provide that responsibility for non-execution or improper execution of the delivery agreement of goods is born by the payer who is not the buyer under the agreement. Therefore, in case of unpaid amount of goods by the payer who is not the buyer under such agreement, the penalty fee provided by the agreement is collected only from the buyer.

23. Economic courts should distinguish delivery agreements of goods from other agreement types of purchase and sale, in particular from delivery agreements of goods for the state needs, contracting, power supply and others. Legal regulation of agreements:

deliveries of goods for the state needs it is performed based on the provisions provided by paragraph 4 of Chapter 30 of the Civil Code. According to Item 2 of Article 495 of group of companies rules about the delivery agreement (Article 476-493 of group of companies) are applied to the relations on delivery of goods for the state needs if other is not provided by the Civil Code and other acts of the legislation;

contractings it is performed based on the provisions provided by paragraph 5 of Chapter 30 of the Civil Code. Rules of the delivery agreement of goods are applied to the relations under the agreement of contracting if they are not settled by regulations of paragraph 5 of Chapter 30 of the Civil Code (Item 2 of Article 505 of group of companies).

24. Declare invalid the resolution of the Plenum of Supreme Economic Court of the Republic of Belarus of December 23, 2004 No. 13 "About some questions connected using regulations of the Civil code of the Republic of Belarus about the delivery agreement" (The national register of legal acts of the Republic of Belarus, 2005, No. 9, 6/427).

Chairman

V. S. Kamenkov

Judge, secretary Plenuma

L. A. Kolesnikova

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