Comment to article 401. Grounds for amendment and termination of the contract of the Civil Code of the Republic of Kazakhstan  

An amendment to a contract is understood as the transformation of one or more of its terms that make up the content of the contract.

Termination of a contract is understood as the early termination of a contract that has not been fully or partially executed on grounds not provided for in Articles 367-377 of the Civil Code.  

The commented article distinguishes between three options for changing and terminating the contract: 1) by agreement of the parties; 2) by court decision; 3) as a result of unilateral refusal to perform the contract in whole or in part.

An agreement between the parties is the normal and most acceptable way to amend and terminate a contract, based on the principle of freedom of contract. All other methods of changing and terminating the contract (in court, unilateral refusal of performance) may be applied only in cases stipulated by the Civil Code, other legislative acts and the contract.

By a court decision, the termination of the contract is carried out at the request of one of the parties. The article provides two grounds for termination of the contract. One of them is a significant violation of the contract, that is, a violation that entails such damage to the other party that it is largely deprived of what it was entitled to expect when concluding the contract. For example, when concluding the contract, the customer expected the timely and high-quality completion of the construction project, but the contractor conducts construction work with gross deviations from the contract.

For certain types of contracts, the legislation establishes specific violations that are recognized as significant. For example, for a delivery contract, it is established that violations of the contract are assumed to be significant in cases of delivery of goods of inadequate quality, repeated violations of delivery dates, repeated violations of payment deadlines, etc.  

The second case is the opportunity provided for the establishment of such cases by the Civil Code, other legislative acts or an agreement.  

An example is paragraph 2 of Article 389 of the Civil Code, which establishes the right of the acceding party to demand termination of the accession agreement if it formulates the terms of the agreement to the detriment of the acceding party (see comment).  

Among other legislative acts, it can be noted, for example, the Law "On Housing Relations" of April 16, 1997, Article 103 of which stipulates that a lease agreement from the state housing stock may be terminated at the request of the landlord only on the grounds established by this law (if the house is subject to demolition, if the tenant systematically destroys or spoils dwelling, etc.).  

The wording of paragraph 3 of the commented article was amended by the Law of the Republic of Kazakhstan dated March 2, 1998 to make it clear that unilateral refusal to perform an agreement (renunciation of an agreement) is one of the ways to amend and terminate an agreement. For more information about unilateral refusal, see the commentary to art. 404 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.