Commentary to article 382. Definition of the terms of the contract of the Civil Code of the Republic of Kazakhstan  

The general principle of determining the terms of a contract follows from the freedom of contract. The parties have the right to determine any terms of the contract, except those that are directly stipulated by law.

Paragraph 1 of the commented article distinguishes between imperative and dispositive norms.

In the event that the content of the relevant condition is directly prescribed by law (a mandatory norm), the parties have no right to change this condition. They may or may not provide for it in the contract, regardless of this, they are obliged to fulfill this condition in the form in which it is fixed in the legislation (see the commentary to art. 383 of the Civil Code).  

For example, Article 282 of the Civil Code stipulates that monetary obligations in the territory of the Republic of Kazakhstan must be expressed in tenge. 304 of the Civil Code stipulates that property constituting common property can be pledged only with the consent of all owners. Obviously, the parties to the contract cannot stipulate a condition for monetary settlements in dollars or for the transfer of common property as collateral without the consent of other owners.  

In the event that the condition of the contract is provided for by a dispositive norm, the parties have the right to exclude its application or establish a condition other than that provided for in it.  

For example, Article 285 of the Civil Code stipulates that a debtor who is obliged to perform one of two or more actions has the right to choose, unless otherwise provided by the legislation or the terms of the obligation. Consequently, the parties may provide in the contract for a different procedure for fulfilling an alternative obligation.  

In the event that the parties do not provide anything in the contract regarding this condition, the norm established by law applies.  

There are few mandatory norms in civil legislation. The vast majority are dispositive norms. This follows from the fact that, based on the freedom of the contract, the parties themselves must determine all its terms. Dispositive norms are included so that important conditions for one side or another do not remain unsettled at all. The parties have the right to provide for any conditions in the contract, but if they do not do so (for example, due to ignorance or omission), then the dispositive norm comes into effect.

There may be cases when one or another condition is not provided for either by the parties themselves or by the dispositive norm. Then one can be guided by the customs of business turnover, if, of course, such customs exist and this can be proved (see the commentary to art. 3 of the Civil Code). In any case, this situation is quite rare and controversial. Disputes arising in this regard are resolved by the court.

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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.