Comment to article 152. Written form of the transaction  The Civil Code of the Republic of Kazakhstan  

This article lists the cases when transactions must be concluded in writing. The expediency of a written form for these cases is determined by the fact that the written form more reliably confirms both the existence of the transaction and its content. This can provide more reliable protection of the interests of the parties to the transaction and a more accurate accounting system.

Transactions carried out in the course of entrepreneurial activity require a written form, regardless of whether both parties to the transaction or only one of them carry out such activities.

The next sign of a transaction that requires its conclusion in writing is the excess of the minimum amount of the transaction amount, below which it can be made orally.

The commented article expresses the mentioned limit in the number of calculated indicators. This is a common technique used by modern legislation to determine the amount of various types of monetary payments (allowances, allowances, fines, compensations, and others). Its convenience lies in the fact that it is officially approved and allows monetary estimates to offset inflationary fluctuations.  

The legislation, supplementing the commented article, provides for a number of specific types of transactions, which must also be concluded in writing (see, for example, Articles 294, 331, 337 of the Civil Code).

The conclusion of a transaction (contract) in writing through the exchange of letters, telegrams, telephone messages, etc. often forms out separate stages of the contract conclusion process - an offer and acceptance (see Articles 393-397 of the Civil Code and commentary to them). In this case, in order to confirm the conclusion of the contract in writing, each of the parties must have all the documents that the parties exchanged at the time of its conclusion: the originals of all documents received and copies of all documents sent.

In recent years, the exchange of fax letters has become increasingly widespread, especially when concluding one-time, short-term, and similar contracts. The commented article, as a general rule, allows the use of facsimile copying tools.

In contrast, Article 160 of the Civil Code of the Russian Federation permits the use of facsimile reproduction of text and signatures only in cases where this is provided for by legal acts or by agreement of the parties. Consequently, as a general rule, Russian legislation does not attach legal significance to the use of these funds.  

For some types of transactions, their standard or typed forms are used (transportation, insurance, sale of goods on credit, etc.). This is, for example, the usual practice of concluding public contracts, especially accession agreements (Articles 387-389 of the Civil Code).

In such cases, the document expressing the transaction is drawn up in the form established by the standard, standard or sample sample, sample conditions, etc. Such documents are usually developed by the seller, contractor, or service provider. The document may be amended by mutual agreement of the parties. The approximate terms of the contract published in the press, subject to the necessary requirements, can be considered as business practices (see Articles 3, 387, 388 of the Civil Code and commentary to them).  

For some transactions, legislation complicates the simple written form of transactions, requiring not only the preparation of a document signed by the parties, but also the presentation of the contents of the transaction on a certain form, the certification of signatures with a seal, etc. Such requirements for the written form of the transaction are mandatory if they are provided for by law or by agreement of the parties. In all other cases, even if the transaction is concluded by legal entities or with the participation of legal entities, compliance with these requirements is not necessary. It is sufficient not to violate the general rules for making transactions in writing provided for in the commented article.

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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.