Comment to article 399. The conclusion of the contract is mandatory The Civil Code of the Republic of Kazakhstan
The article discusses two cases of concluding a contract without fail: 1) when the conclusion of the contract is mandatory for the acceptor (paragraphs 1 and 2); 2) when the conclusion of the contract is mandatory for the offeror (paragraph 3).
Among the cases of obligation to conclude a contract established by the Civil Code, a public contract can be named (see the commentary to art. 390).
Article 13 of the Decree on a State-owned Enterprise stipulates that it is mandatory for a state-owned enterprise to fulfill a government order. An enterprise has no right to refuse to conclude a contract as a buyer or seller of goods (works, services) if the conclusion of these contracts is provided for by an order from the state.
The time limits set in the commented article for acceptance, drawing up a protocol of disagreements or submitting disagreements to the court are the same (30 days). This avoids confusion about deadlines. In addition, this is a reasonable enough time to perform all of the above actions.
All these terms are dispositive. Other deadlines may be established by legislation on certain types of contracts or agreed upon by the parties.
If the party for whom the conclusion of the contract is mandatory refuses to conclude the contract, the other party has the right to apply to the court with a claim to compel the conclusion of the contract and for damages.
However, this rule has exceptions in some cases. The Civil Code of the Republic of Kazakhstan, unlike the Civil Code of the Russian Federation, does not provide for forcing the party that concluded the preliminary agreement to conclude the main agreement. The other party has the right to claim only damages (see the commentary to art. 390 of the Civil Code).
Damages are compensated according to the rules of clauses 4 of Articles 9 and 350 of the Civil Code.
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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.
