Preliminary contract: the term of the contract and other historical and legal aspects

The history of the legislative existence of the preliminary treaty dates back many centuries. The preliminary contract (pactum in contrahendo) was familiar to ancient Roman lawyers. This contract was fixed both in the Russian pre-revolutionary and in Soviet civil law. Thus, the Civil Code of the RSFSR of 1922 legalized the contract of sale of an apartment house that existed in the civil legislation of prerevolutionary Russia, which obliged its participants after a certain period of time (which stipulated the term of the agreement) to conclude on the previously accepted terms another - sale and purchase. The need for a preliminary contract was due to the existence of certain obstacles or the absence of any conditions for its conclusion.

Russian scientist-civilian G.F. Shershnev, noted that the reason for the conclusion of the sale, determining how to change the duration of the contract of sale, could be the lack of proprietary rights, or the finding of property under the ban. The Civil Code of those years did not mention the preliminary agreement, but the possibility of its conclusion logically ensued from the meaning of the content of the Civil Code, which allowed the emergence of civil rights not attributed to the law, but not contradicting it. In the economic practice of those years, preliminary contracts were concluded, first of all, in the sphere of supply or foreign trade relations, where the term of the contract of supply, for example, was always a problem. Under the conditions of a planned economy, the legal configuration of such a contract was not properly demanded due to the fact that most of the contracts arose from planned tasks in which the contract duration was determined by itself in the plan.

With the beginning of market transformations, the place of contractual obligations arising from the planned tasks was intended to be occupied by the traditional system of preliminary contracts. After the collapse of the USSR in the Fundamentals of Civil Legislation, this term took its place in 1991. This normative act defines the procedure for concluding, the duration of the contract and other obligations, including the requirement to compel the conclusion of a contract. The basics did not provide for a specific list of preliminary treaties. These could be contracts for sale, performance of works and services, etc.

Now, in the conduct of multi-year contractual relationships, the conclusion by participants of civil legal relations of these treaties and the reservation in them of such an important position as the term of the treaty becomes an absolutely necessary attribute.

Often the decision to conclude a treaty requires complex and lengthy negotiations, preceded by expensive preparatory work, sometimes a highly professional examination is necessary. In such circumstances, the question arises whether the costs incurred at the stage of preliminary preparation of the contract will not be wasted.

Analysis of the legal nature of the preliminary contract allows us to state that this contract is characterized by a number of specific features. As a contract, it is significantly different from those in which future counterparties outline the main and secondary terms of the forthcoming treaty. In some cases, at the stage of preparation for the conclusion of a treaty, its participants form a protocol of intent. This document fixes the achieved results and makes specific commitments (related to the continuation of negotiations or the signing of the treaty) for a certain period.

The protocol of intent may be useful in resolving issues of financing a transaction, obtaining a loan, preparing a business plan and in other cases of practical activity. This document can serve, for example, as confirmation for the accounting department of the negotiations conducted and the basis for writing off the costs of their organization. However, like other ways of fixing the negotiation process, the protocol of intent does not oblige the signatories to obligatory enter into future contractual relations.