Agreement with a business partner. Business partner: how to start a joint business and avoid mistakes. Forms of conducting joint activities

Today we'll talk about how to open one IP for two: four options for implementing such an idea will tell you what is needed in order to implement it. Before talking about options for opening a joint venture, it is necessary to disassemble the very essence of the concept of IP.

The law of our country clearly states that individual entrepreneur is a citizen who has passed the registration procedure in accordance with the established procedure, and has the right to conduct business activities without being a legal entity.

Individual Entrepreneur (IP) is a businessman who is engaged in a certain type of activity in order to obtain a regular income. It turns out that, by legal definition, only one person can act in this capacity, but it is not possible to open a business for two persons. cannot be obtained by a group of persons, a collective or several citizens who want to work together. But very often there is a need to open one IP for two, and the reasons for this can be completely different, what to do in this case?

Many Russians will confidently answer that for doing business, the status of an individual entrepreneur provides much more favorable conditions, and getting it is many times easier than creating a legal entity. In fact, this statement is not suitable for all types of businesses, and one such direction is joint business. A well-founded question arises: how to open an individual entrepreneur for two, and is it possible to do it legally? This is what we will talk about next.

In fact, for businessmen who want to join forces to create a joint venture, there is far more than one way to realize this desire. The article presents the four most optimal and common options that citizens use in such cases.

How to open an IP for two?

1. Obtaining the status of an entrepreneur by one of the co-founders of the business.

One of those wishing to participate in the creation of an enterprise must apply to state bodies and go through the registration procedure, in accordance with all requirements and rules. Then the second participant in the business will be able to provide, for example, financial support to the company, but only on non-official grounds, and he will also have the right to manage the business itself.

In our country, very often this is how joint business is organized, and this is due to the fact that the option is not only economical, but also simple. You can reduce expenses on tax deductions, accounting, cash registers, you can not even open a current bank account. But, despite the fact that it looks really tempting, there are many external factors that can adversely affect such a business. In addition, much depends on which direction of work will be chosen.

But a more significant nuance for a joint venture is not so much the opportunity to save a little and the degree of simplicity of the registration process, but the guaranteed security and financial responsibility of the dealers. When accepted decision to open one IP for two, the relationship between the partners is just fine, and they boldly look to the future, but do not forget about the human factor. If disagreements arise between the partners, then if you want to divide the joint business, you will have to turn to the law. And he, in turn, will be on the side of the partner to whom the company is registered, a person who was in the shadows and was not marked in any way in the documentation, simply cannot prove that he was involved in the case. Most likely he will have to part with his share of the business.

Even in the case when relatives organize their business in this way, the most unforeseen situations arise that can lead to conflict, so this moment must be taken into account. To avoid risks, individuals can conclude a loan agreement among themselves. Its essence lies in the fact that one businessman is the documentary owner and organizer of the enterprise, and the other has a paper that confirms that he borrowed a certain amount of money from the organizer of the business.

In other words, it is simple and well-known to everyone, but it must be protected, since it may be the only way to compensate for your expenses on a joint business in the event of a quarrel with a partner. Most often, investments made by an unregistered participant in an enterprise exceed the amount of money specified in the loan agreement. But an individual entrepreneur also risks to a certain extent, because in the event that the enterprise incurs losses, then it is he who will have to pay off debts and loans, and with all his movable and immovable property. This risk does not apply to the participant who acts on an unofficial basis.

Output: Conducting a joint business, formalized in this way, can become a source of large material losses, both for the official representative of the company and for an unregistered party.

2. Partnership under an agreement between two entrepreneurs.

To study this option of joint work, it is enough to study Article 1041 of the Civil Code. The simple partnership agreement also has a second name: an agreement on joint activities. Its essence lies in the fact that several citizens unite in order to develop one business, but do not form a legal entity. A partnership agreement can be concluded only by those persons who have the status of individual entrepreneurs, or who are commercial organizations.
To form a partnership, the participants must determine how much the amount of investments in the common business will be, and the property base, business reputation, professionalism, education, and more can be taken into account. Entrepreneurs themselves give a material assessment of such investments, and accept it only after all parties agree with it.

Each individual entrepreneur can find benefits for himself in this form of joint business, because they are all full participants in entrepreneurial activity, and if they have a desire to break off relations with partners, they can continue to work on an independent basis. As for the profit, it will be distributed among all entrepreneurs, and the amount will be calculated depending on the amount of their investment in the business.

As for the negative points, they are also present in this version. Each businessman should have two reports, one of which characterizes independent activity, and the other - comradely. He will not delve into accounting, but, in fact, keeping a partnership's accounts is not only difficult, but also painstaking. Very often, beginners make mistakes in documents, so it is important to carefully check the correctness of filling them out.

Output: The partnership agreement allows each business participant to be sure that he will not be left out of business due to the slightest disagreement, of course, this is a more stable and reliable option than the first one.

3. Limited Liability Company.

It’s not for nothing that business experts advise entrepreneurs to stop being so wary of opening a limited liability company, because that’s exactly what it is. the best option is to open one IP for two. The advantage of societies is that they have more powers than enterprises, for example, access to the sale of alcohol, and so on. But, in addition, it is precisely by way that each business participant can receive a full legal guarantee of security, because the constituent documentation contains information about all the shares of entrepreneurs that belong to them from the authorized capital.

Another nuance: a member of the company does not bear any responsibility for its own property base, therefore, even in the event of a ruin or unprofitable business, everyone will only be responsible in the amount of those funds that were part of the authorized capital. Of course, getting the status of an individual entrepreneur is a little easier than registering a limited liability company. Here you will have to devote time to collecting and compiling constituent documentation, you will need a decision on organizing a company, a current account and a stamp. But even this does not make this option the most optimal for those who want to start a joint business.

Output: To open a society, you will have to spend more financial resources, but then the company will have a current account, and savings on tax deductions, and the status of a solid enterprise.

4. Economic partnership - how to open an individual entrepreneur for two?

This is a new, organizational, legal form, which can be used by citizens who want to organize a business together. On the one hand, there are great similarities with various corporations, such as a limited liability company, for example. a group of persons from two to fifty people is entitled to register in this form, and all of them do not have to be individual entrepreneurs. All contributions made by participants do not need to be independently evaluated, and there are no minimum limits either. As for the procedure for opening a business partnership, it is identical to the one according to which companies are registered.

The question arises why this form has not yet become popular among our citizens? The reasons for this are as follows:

Business partnerships do not have the right to issue bonds and other equity securities;
It is forbidden to advertise your activities;
There are a number of restrictions on establishing and participating in other organizations;
It is important to prepare in detail the main document - a contract for management of a closed nature.

Before you start organizing a joint business, you need to carefully consider the registration procedure itself, and conduct registration in accordance with the established requirements. Despite the fact that it will take time, this approach will protect every businessman and will not allow him to lose all his investments. The choice of option directly depends on the competitive situation.

With partners? This question is perhaps the most important and, at the same time, the simplest. The most important for the simple reason that its future fate largely depends on the form of organization of a partner small business. Well, simple because there is not much choice. But, nevertheless, a lot of novice business partners make a mistake in the form of organizing their business.

Introduction.

Before the future, the question will certainly arise - in what form to register your business? This question is important, and the fate of the business being created depends on the correctness of its solution.

Let me remind you that there are several forms of registration and business organization. These are: IP - individual entrepreneurship, LTD or LLC - a limited liability company. We will not consider other forms of business organization, because they usually have nothing to do with small businesses. So, which is better for - IP or LLC. I will not, within the framework of this article, analyze all the advantages and disadvantages of forms of business organization. I will consider them only from the point of view of organizing a partner business.

First of all, consider the organization of a partner business in the form of an individual entrepreneur. There are two partnership options in this case.

First option- execution of all IP documentation for one of the partners, and the other partner (or partners) are the unspoken co-owners of this.

I want to say right away that I am not a supporter of such partnerships. Moreover, I think this way for real business is unacceptable. Although many young entrepreneurs are trying to go this way. The ostensible benefits of ease of registration, ease of reporting, and the possibility of a small reduction in taxes are very attractive to them. The disadvantages of this option are not immediately visible, but they are so significant that they outweigh all the visible benefits many times over.

And the main drawback is the completely unjustified risks of partners. And the risks of all.

First of all, the partner for whom the IP is registered is at risk. It is he who will answer to the state authorities if something is wrong in business. It is he who will be the debtor of the tax authorities, suppliers, creditors in case of unprofitability of the business. Moreover, his liability is not limited to the property of the business, but also to his personal property. His personal car, and personal property, and even an apartment can be confiscated from him in payment of debts. Well, unregistered co-owners do not bear any responsibility to anyone, perhaps only to their own conscience.

But the unregistered partner (partners) also risks. After all, only an officially registered partner has all the rights to business. And in the event of a quarrel between partners or their desire to divide the business, problems are inevitable. After all, the only legal owner of the business, and, of course, the owner of everything that is in the business, is the first partner. And the second has no rights and cannot prove his participation in the business.

Can an unregistered partner protect himself. Formally, it is possible to secure the money invested in business. It is necessary to draw up a loan agreement, according to which he lends money to the official owner of the IP. And in the event of a divergence of partners, this agreement can help him return the amount invested in the common cause. But he will not be able to return his part of what the business has earned (if it is successful).

As you can see, the risks of all partners are quite high, and I strongly do not recommend using this partnership method if you create a small business with partners.

Small business with partners in the form of IP.

Second option- each of the partners draws up their IP and then they conclude a simple partnership agreement with each other. This option significantly reduces the risks of partners and is quite widely used in practice. Its essence boils down to the fact that each of the partners registers its own IP. And then they create a single business by signing an agreement on joint activities. In this agreement, the parties prescribe the rights and obligations of each of the partners. Details of the partnership agreement can be found in. This option is in many ways similar to the creation of an LLC by two or more partners, without opening a legal entity.

The advantages of this option seem to be obvious: each of the partners has an independent business; income and expenses are divided depending on the contribution of the parties; in the case of a division of the common business, everyone can remain an individual entrepreneur with his share of the common business.

But there are a lot of disadvantages in this variant as well. After all, each of the partners must have their own reporting. And, besides this, it is necessary to conduct general reporting of the entire business. And in the case of, for example, the implementation of one project, all income and expenses for its implementation should, in proportion to the participation of each, be divided among the partners. This is quite difficult to do with different proportions of partners. A significant drawback is that each of the partners can very easily get out of such a business. Just leave with your share and with the equipment recorded on his IP. And this can lead to the closure of the entire business.

These shortcomings are so significant that I believe that such a small business with partners is not entirely justified.

Partnership business in the form of LLC.

I consider the formation of an LLC to be the most acceptable option to create a small business with partners. In many cases, this may be the only correct option. The very organizational essence of the LLC provides for the elimination of many problems for partners.

Firstly, the registration of an LLC allows you to prescribe in the constituent documents the main parameters of the relationship of co-owners: the share of each of the partners in the common business, the distribution of profits between them.

Secondly, the LLC organization provides legal protection of the rights of each co-owner.

Thirdly, partners in an LLC are proportionally responsible for everything that happens in their business. But, with rare exceptions, they are not liable with their personal property.

Fourthly, all LLC activities, including financial ones, are completely transparent for all partners, and each of them can track the state of the business at any time.

Fifth, none of the partners can simply leave the LLC. There are legal procedures for this. This gives the remaining partners time to make informed decisions about how to continue the business and, if necessary, patch up the holes in the business.

Sixth, it is much easier for an LLC to enter into partnership agreements with other firms, especially large ones, than with a business organized through a simple partnership agreement.

Seventh, LLC must pass all cash flows through a bank account. This disciplines the financial activities of partners and its transparency. Disciplines the activities of partners and the need to print on most LLC documents.

Eighth, maintaining an LLC can be more economical than using a business created through a simple partnership agreement for a partnership. Especially if there are more than two partners. After all, each individual entrepreneur should have an accountant, and in an LLC there will be one. Other organizational duplications will also be excluded.

The disadvantages of doing a small business with partners through an LLC, I would only include the more complex and costly registration and closing of a business.

Many people think that maintaining an LLC is more expensive. But even in an LLC, with proper financial management, you can significantly save on taxes, on maintaining bank accounts, and on other expenses.

Conclusion.

As it is easy to see from the above, small business with partners, in my opinion, is best organized through the creation of an LLC. But at the same time, we must not forget that simply organizing an LLC will not solve all the issues that arise when doing business together. Only a well-written, in addition to registration documents, agreement between partners will avoid many problems in the future.

Many start-up entrepreneurs who are on friendly terms have a desire to combine their efforts to organize a common business. The following options for conducting a joint business are possible:

• Registration of one individual as an individual entrepreneur.
• Conclusion of a simple partnership agreement between individual entrepreneurs.
• LLC formation.

IP is a concept that stands for an individual entrepreneur. This is one of the most common organizational and legal forms for modern Russian entrepreneurs who want to run their own business.

An individual entrepreneur can be called an individual who decides to conduct independent entrepreneurial activities at his own peril and risk for profit. Based on the definition of the concept, IP cannot be opened for two.

Sole proprietor in Russian Federation Any capable citizen who is already 18 years old can become. Obtaining the status of an individual entrepreneur has its advantages in comparison with the formation of an LLC. Here are some of them:

• No property tax;
• Quick and easy registration;
• Free circulation of funds;
• Simple decision-making procedure that does not require meetings;
• Ease of liquidation and taxation.

An individual entrepreneur can engage in any type of activity, except for a licensed one.

Options for joint conduct of IP activities

Businessmen ignorant of legal intricacies believe that the legal form of an individual entrepreneur is not suitable for joint business activities. But options are possible. If two people want to combine their business in the IP format, it will be necessary to conclude a simple partnership agreement or create an LLC.

Some get out of the situation by issuing an IP for one person. At the same time, the second one can invest in the development of a common cause in financial terms. This variant of the development of events is possible only with the full mutual trust of the accomplices. It is suitable for close relatives or friends, but quarrels and stumbling blocks can also arise here.

This scenario assumes that only one individual will be able to register as an individual entrepreneur and become the owner own business. Participation in the management of affairs by a second individual will be informal. This means that he can contribute funds to the common capital and perform an advisory function.

Entrepreneurs consider this option of joint business as the most acceptable of all. But few people want to be an unofficial "moneybag" who, in the event of conflicts, has no rights to the business and the profits coming from it.

Registration of one individual as an individual entrepreneur will greatly reduce the cash spent on taxes and the use of cash registers. Accounting can be kept according to a simplified scheme. But the real benefit from such a joint business depends heavily on the activity of the entrepreneur and the types of activities.

Problems can arise if you want to divide an enterprise or firm. It turns out that only one person is the full owner of the business, and the second legally has nothing to do with it. It will be hard to prove you are right.

Both parties must insure themselves against legal problems that may arise in the future. Experts recommend concluding a loan agreement between partners. An unofficial contribution of an individual will be documented in the form of a loan. It turns out that one businessman provided another loan against a subscription. In case of disagreement, the loan agreement will be an official confirmation of participation in the conduct of common business activities.

All receipts must be kept, as well as the contract in writing. But even the preparation of such documents will not be able to fully compensate for the damage to a person who is not an individual entrepreneur. The conclusion is that the registration of one person as an individual entrepreneur can entail real losses for his partner.

But everything is not so rosy for an individual who has all the rights to do business. The general business can turn out to be extremely unprofitable, a businessman can get into serious debts to creditors. And the unofficial participant does not risk anything. Conclusion: this form of joint business can be beneficial and not beneficial for both participants in the process. When making a decision, you need to take into account all the pros and cons of cooperation from your position.

simple partnership agreement

The above solution may not suit both parties. If both persons wish to register as individual entrepreneurs, events may develop according to a different scenario.

The Civil Code of the Russian Federation provides for the possibility of concluding a simple partnership agreement between two individual entrepreneurs.

This joint venture agreement does not require the formation of a legal entity for the joint activity of two individual entrepreneurs or commercial organizations.

The result of the signing of the contract will be the formation of a partnership. As for the financial and intellectual contribution to the common cause, its size is determined by businessmen by mutual agreement.

This option seems ideal only at first glance. It has obvious shortcomings. Inexperienced people who are not familiar with the nuances accounting, there may be problems in this area and in solving taxation issues.

But there are also positive aspects. If entrepreneurs want to terminate the agreement, they will be able to exist in the form of separate individual entrepreneurs and conduct their activities. The distribution of profits does not infringe on the rights of partners. They receive money depending on the size of individual investments in a common cause. The benefit also lies in the fact that both co-owners of the business have absolutely equal rights to it.

Conclusion: the conclusion of a simple partnership agreement is the best option for joint business if businessmen have experience in accounting and taxation.

Another option for conducting joint business activities is the formation of a limited liability company.

LLC stands for a company in which several persons participate in the establishment. In this case, the authorized capital may be divided into parts. The size of the shares must be determined by the founding documents. Unlike other commercial companies, a limited liability company has the following features:

• The member of the association bears the overall responsibility for their contributions;
• LLC can be founded by legal entities and individuals;
• The formation of the authorized capital comes from the investments of the LLC participants.

The number of participants in a limited liability company may not exceed fifty people. Only an LLC has the right to conduct certain activities, for example, to engage in the sale of alcoholic beverages.

Each LLC participant can protect himself from a legal point of view, since the shares of each entrepreneur are prescribed in the constituent documents. It will be necessary to bear responsibility for the obligations of the community only within the limits of the shares of the authorized capital. This is another positive aspect of organizing a limited liability company.

Unlike registration of an individual entrepreneur, the formation of an LLC takes more time and is considered a more complicated procedure. It will require the mandatory preparation of special constituent documents, the production of an enterprise seal and the opening of a current account.

But, despite certain difficulties in the registration process, this form of organizational and legal activity is predominant.

Some businessmen believe that the formation of an LLC is a more costly option than registering an individual entrepreneur. But this is a delusion. You can also save on paying taxes by organizing a limited liability company.

Conducting a joint activity of two or more private entrepreneurs must be correctly executed and registered from a legal point of view.

Each of the described options for joint business activities has its own advantages and disadvantages. Before giving preference to one of them, you should carefully weigh the pros and cons, assess the likely risks and possible damage.

In any case, it is much more profitable and safer to conduct a joint business than to engage in individual entrepreneurial activities separately. LLC is solid, profitable and safe for businessmen.

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Lawyers' answers (8 )

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Alexander

Good afternoon. Yes, it will, according to the signs, the agreement suits you under a simple partnership agreement:

Article 1041 of the Civil Code of the Russian Federation

1. Under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity in order to derive profit or achieve another goal that does not contradict the law.

2. Only individual entrepreneurs and/or commercial organizations.

Article 1044 of the Civil Code of the Russian Federation Conducting common business of comrades

1. When conducting common affairs, each partner has the right to act on behalf of all partners, unless the simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in the simple partnership agreement.

When doing business together, each transaction requires the consent of all partners.

2. In relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing.

3. In relations with third parties, the partners may not refer to restrictions on the rights of the partner who made the transaction to conduct the common affairs of the partners, unless they prove that at the time of the conclusion of the transaction the third person knew or should have known about the existence of such restrictions.

4. A partner who has made transactions on behalf of all partners in respect of which his right to manage the common affairs of partners has been limited, or who has concluded transactions in the interests of all partners on his own behalf, may demand compensation for expenses incurred by him at his own expense, if there were sufficient grounds to believe that these deals were necessary in the interests of all comrades. Partners who have suffered losses as a result of such transactions have the right to demand their compensation.

5. Decisions relating to the common affairs of the partners are taken by the partners by common agreement, unless otherwise provided by the simple partnership agreement.

No, this is not necessary, the contract is valid even without notarization.

There are a lot of cooperation agreements on your site, but they all concern legal entities. Do not help me choose a sample contract for individuals, of course with the refinement of their nuances. Thank you in advance!

Preparation of a document is a separate option on the site, or you can contact any lawyer in the chat and order the preparation of a document.

As for the samples that you yourself can use, there are special differences from the contract, where the parties will be legal. there is no face, so you can also use this sample.

Good luck to you!

Sincerely,
Vasiliev Dmitry.

Good afternoon!

I agree with my colleagues about the agreement on joint activities. But why don't you create a 50/50 LLC and conduct this activity on behalf of this legal entity? Resources in an LLC can be invested both in the authorized capital and leased, gratuitous use, etc.

From a financial point of view, this scheme is the most cost-effective.

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Mikryukov Alexey

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Hello Sergey.

As my colleagues rightly say, a simple partnership agreement is regulated by the Civil Code.

Article 1041

1. Under a simple partnership agreement
(joint activity agreement) two or more persons (partners)
undertake to combine their contributions and act jointly without formation
legal entity for profit or to achieve otherwise
illegal purpose.

2. Parties to a simple partnership agreement,
concluded for the implementation of entrepreneurial activity, may
be only individual entrepreneurs and (or) commercial
organizations.

3. Features of a simple partnership agreement concluded for the implementation of joint investment activities (investment partnerships) are established federal law"On Investment Partnership".

That is, if the purpose of the partnership (joint activity) is to achieve profit (entrepreneurial activity), then the individual partners must have the status of an individual entrepreneur.

Notarization of the agreement on joint activity is not required.

Well, I don’t have an approximate form between two individuals, but this is easy to fix. Order it via chat and it will be ready. ;-)

Well, as a bonus - a scheme regarding a simple partnership (may come in handy)

Sincerely, Mikryukov Alexey

Joint activity Joint activityEntity.doc Entity.doc

Hello

Will an agreement concluded between individuals on joint business conduct be legally binding (without the creation of an LLC and other forms of enterprise, the issue of responsibility for conducting commercial activities is not considered within the framework of this issue)?

Alexander

Controversial question. On the one hand, the law does not provide for the existence of contracts of this type. On the other hand, there is the principle of freedom of contract. I think that this agreement should be considered from the standpoint of existing judicial practice. That is, as far as I understand, the contract is needed in order to protect yourself in case of incorrect distribution of profits. That is, can you win a court case if and as a result of violation of such an agreement.

Do I need to certify this kind of contract in a notary's office? And are notaries allowed to certify such contracts?

Alexander

Since such an agreement is not named in the law in principle, then the notarial certificate

Good afternoon Alexander.

Will an agreement concluded between individuals on joint business conduct be legally binding (without the creation of an LLC and other forms of enterprise, the issue of responsibility for conducting commercial activities is not considered within the framework of this issue)?

Alexander

In my opinion, such an agreement will not have legal force. As Irina noted above, in this case, your actions will qualify as entrepreneurial. According to the current legislation, in order to carry out entrepreneurial activities, it is necessary to have an appropriate legal status Sole Proprietor, or establish a commercial legal entity with relevant goals.

Consequently, any actions of citizens (including the conclusion of any agreements) aimed at conducting joint business activities in circumvention of the rules established by the state for conducting such activities will be considered null and void in the eyes of the state.

Those. after the conclusion of such an agreement, you will not be able to enforce its execution, because. there are no relevant legal mechanisms regulation of such relations.

Thus, you either need to register an individual entrepreneur / legal entity and enter into the simple partnership agreement described above, or establish a joint legal entity.

In my opinion, any agreements between citizens on the conduct of any business activities do not give rise to any legal consequences.

Sincerely,

According to Art. 421 of the Civil Code of the Russian Federation

Citizens and legal entities free in prison
contracts.

Coercion to conclude a contract is not allowed, for
except in cases where the obligation to conclude a contract is provided for
this Code, the law or a voluntarily accepted obligation.

2. The parties may conclude an agreement, either as provided for or
and not provided for by law or other legal acts.

3. The parties may conclude an agreement containing
elements of various agreements provided for by law or other legal
acts (mixed contract). To the relations of the parties under a mixed contract
apply in the relevant parts of the rules on contracts, the elements of which
are contained in a mixed contract, unless otherwise follows from the agreement of the parties or
essence of a mixed contract.

4. The terms of the contract are determined at the discretion of the parties, except
cases where the content of the relevant condition is prescribed by law or other
legal acts (Article 422).

In cases where the terms of the contract are provided for by the norm,
which is applied insofar as the agreement of the parties does not provide otherwise
(dispositive norm), the parties may, by their agreement, exclude its application
or set a condition different from that provided for in it. With absence
of such an agreement, the condition of the contract is determined by a dispositive norm.

5. If the terms of the contract are not determined by the parties or
dispositive norm, the relevant conditions are determined by the customs of business
turnover applicable to the relationship of the parties.

Too, you have the right to conclude one contract - mixed
contract.

DECISION
Plenum of the Supreme Arbitration Court
Russian Federation
Moscow#16March 14, 2014

Freedom of contract and its limits clarified

1. In accordance with paragraph 2 of article 1 and article 421
of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) citizens and
legal entities are free to establish their rights and obligations on the basis of
contract and in determining any conditions that do not contradict the law
contracts.

According to paragraph 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract
determined at the discretion of the parties, unless the content
the relevant condition is prescribed by the rules binding on the parties,
established by law or other legal acts (imperative norms),
valid at the time of its conclusion (Article 422 of the Civil Code of the Russian Federation). In cases where
the term of the contract is stipulated by the rule, which is applied insofar as
agreement of the parties does not establish otherwise (dispositive rule), the parties may
by their agreement to exclude its application or to establish a condition different from
provided for in it. In the absence of such an agreement, the terms of the contract
is determined by the dispositive norm.

In applying these provisions, courts should take into account that
the norm defining the rights and obligations of the parties to the contract is interpreted by the court on the basis of
from its essence and goals of legislative regulation, that is, the court takes into
attention not only to the literal meaning of the words and expressions contained in it, but
and those goals that the legislator pursued by establishing this rule.

That is, you are free to establish your rights and
obligations on the basis of the contract and in determining any non-contradictory
the law of the terms of the contract.

Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 19, 2010 to
case N A79-7792/2009"..

As follows from the case file, the municipal unitary
enterprise "Leninsk district department of housing and communal
economy” (legal predecessor of the Enterprise, customer) and the Company
(contractor) entered into a contract for maintenance, sanitary
maintenance and current repair of housing stock and adjoining territories from
02/01/2008 N 11, under the terms of which the contractor assumed an obligation to
on behalf of the customer to perform work on maintenance, sanitary
maintenance and current repair of the housing stock, engineering infrastructure and
adjoining territories located at the customer on the right of economic management
(operational management). general characteristics housing stock, targeted
list of objects handed over by the customer to the contractor for safety and operation
housing and non-residential stock, a list of engineering equipment, data on
adjoining territories are given in Appendix N 1. The list, composition and
the frequency of work is given in Appendix N 2 (clauses 1.1 and 1.2
of the agreement). In pursuance of the terms of the agreement, the Company completed the work and provided
services provided by the contract, and presented them to the customer for payment.
The specified works and services are accepted by the customer according to acts without
comments. Non-fulfillment by the Company of the obligation to pay 312,673 rubles 39
kopecks of debt was the basis for the Company's appeal to the arbitration court with
this claim. The legal relationship of the parties is based on a mixed contract,
containing elements of a contract for the provision of services for a fee and an agreement
contract..."

That is, your legal relationship will not be based on a mixed
an agreement containing elements of an agreement for the provision of services for a fee and
contract agreements...

T Thus, you should conclude a mixed contract.

I can provide a contract drafting service.
With uv.

Many entrepreneurs create businesses with partners who share common goals and visions. However, the initial atmosphere of mutual understanding in the future, as the business develops, can develop into a conflict. Further discord can lead to more serious consequences, for example, attempts by one of the partners to take over the business by raider. And here all the legal mistakes made during the registration of the partnership come up. What are the typical mistakes?

1. Business is registered in the name of authorized persons. Trusted persons are relatives or friends of partners. This usually happens when partners do not want to officially shine as business owners for various reasons. Relatives seem to be an absolutely reliable option, but in fact a sister or nephew can start an independent game, making decisions not in the interests of the beneficiaries.

If the business is registered with friends, then there is a risk of losing business - customers, contracts and assets. Another risk is bringing the owners to criminal liability, since the formation or reorganization of a legal entity through nominees and the provision of information about them to the tax office (which leads to the entry of false data into the Unified State Register of Legal Entities) is punishable under Part 1 of Art. 173.1 of the Criminal Code.

2. The business is registered in the name of one of the partners or is run by him as a general director. Often one of the owners is more energetic, enterprising, more savvy in doing business than the other. It happens that one of the co-founders does not want to deal with the corporate routine (signing documents, making difficult decisions), he is only interested in making a profit. As a result, the business is registered legally for only one of the partners. In the event of a conflict, he initially finds himself in a more advantageous situation. The second owner does not have serious legal levers of pressure on his partner, so the chances of getting the property or money due in court tend to zero.

If one of the partners becomes a general director with unlimited powers, then this can also lead to adverse consequences for the second. The production company sued for damages against the former to CEO. It turned out that he created a parallel business: he took important clients to another company that was engaged in a similar activity, where he was also in a leadership position. As a result of his illegal activities, the company and his partner suffered damage of 1 billion rubles.

3. Shares in the business are distributed equally among the partners. In this case, in the event of a corporate conflict, the company's activities will actually be paralyzed, since each of the partners will block the decisions of the other. This situation is called deadlock. The co-owner can solve the problem through the court by filing a lawsuit to exclude another co-owner. But this is not the easiest way out, because the other side is filing a similar counterclaim. Supreme Court pointed out that in order to exclude a participant from the list of founders, it is necessary to prove that he grossly violated his duties or interfered with the activities of the company.

4. The scheme of distribution of future profits is not fixed. This is the most common cause of discord between partners. By general rule net profit is distributed in proportion to the shares of participants in the authorized capital, but in practice the agreements are different.

How to avoid conflicts?

When creating a JSC or LLC, partners must conclude an agreement on the establishment of a company. It should regulate the activities of the founders. This is not a founding document, but an agreement on joint activities. In the agreement on the establishment of the company, the partners may provide for certain conditions that exclude conflicts, for example, at the initial stage. It may contain provisions on the liability of the founders (forfeit, fine, penalties) in case of non-payment of a share in the authorized capital; the procedure for distributing the costs associated with the creation of a company; the procedure for settling any disagreements that may arise in the process of establishing a company.

Partners can sign a corporate agreement (on the exercise of the rights of LLC participants or a shareholder agreement for JSC). In it, the parties undertake to exercise their rights in a certain way or even waive their exercise. For example, to vote in a certain way at a general meeting of participants; acquire or sell shares (shares) at a certain price or upon the occurrence of certain circumstances; refrain from selling shares (shares) until a certain point, etc.

A corporate agreement is especially useful when both partners have an equal number of shares (shares). It can provide for various options for the development of the conflict and model ways to resolve it, as well as establish the responsibility of each of the parties for violation of the adopted provisions.

If the partners are individual entrepreneurs, then they can conclude a simple partnership agreement. In it, they undertake to combine their contributions and work together to make a profit. In this case, a legal entity is not formed. The contribution under the law can be anything: money, property, professional and other knowledge, skills, abilities, business reputation, business connections. However, the contract must specify the cost of contributions; ownership of the contributed property and income received; the procedure for the use of common property; the obligations of partners in maintaining common property and the reimbursement of expenses associated with it; order of conducting common affairs; procedure for covering expenses and losses.

The advantage of a simple partnership is that its participants can choose convenient rules for joint activities. Minus - the impossibility of applying to it a preferential taxation regime - a single tax on imputed income.