legislative history of the existence of a preliminary contract has for many centuries.The preliminary contract (pactum in contrahendo) was a sign of a Roman lawyers.This agreement was secured in the Russian pre-revolutionary and Soviet civil law.So, GK RSFSR 1922 legitimized existed in pre-revolutionary Russian civil law contract sale of an apartment house, which obliged the participants after a certain time (provided that the term of the contract), to enter into a pre-acceptance of another - for sale.The need for a preliminary contract was due to the existence of some of the obstacles or the lack of any condition to its conclusion.
Russian scholar and jurist GFHornets noted that the reason to enter into sales, establish how you can change the validity of the contract of sale, it could be the lack of proprietary rights or the property is located under the ban.The Civil Code of those years are not mentioned preliminary contract, but the possibility of its conclusion logically follows from the meaning of the content of the Civil Code, which allowed the emergence of civil rights, not assigned by law, do not contradict it.The business practices of those years preliminary agreements were concluded, primarily in the area of supply and trade relations, where the validity of a contract to supply, for example, has always been a problem.Under the conditions of planned economy the legal configuration of such an agreement was not properly claimed due to the fact that most of the contracts arose from the planned tasks, in which the validity of the agreement itself is determined by the plan.
Since the beginning of market reforms the place of contractual obligations arising from the planned tasks, was intended to take the traditional system of preliminary contracts.After the collapse of the Soviet Union in the Fundamentals of Civil Legislation such term took its place in 1991.This normative act defined procedure for the conclusion, the validity of the treaty and other obligations, including the requirement about compulsion to conclude a contract.Fundamentals did not provide a specific list of preliminary agreements.It could be contracts for the sale of works and services, etc.
Now, in the conduct of long-term contractual relationships, the conclusion of the participants of civil relations of these contracts and disclaimer them such an important position as a term of the contract, it becomes absolutely essential attribute.
Often, the question of the contract requires complex and lengthy negotiations, preceded by a costly preparatory work, sometimes you need a highly professional expertise.In such circumstances, the question arises, whether there will be costs incurred during pre-training contract means wasted.
analysis of the legal nature of the preliminary contract allows to declare that the contract has a number of specific features.As a contract it is significantly different from those in which the future contracting scheduled primary and secondary conditions of the upcoming agreement.In some cases, in preparation for the conclusion of the contract, the participants form a protocol of intent.The document recorded the results achieved and taken specific commitments (related to the continuation of the negotiations or the signing of the agreement) for a specified period.
Protocol of Intent may be useful in dealing with the financing of the transaction, obtaining credit, business plan preparation, and in other cases the practice.This document may be, for example, accounting for confirmation of the conducted negotiations and the basis for the write-off costs for their organization.However, as with other methods of fixation of the negotiation process, a protocol of intent does not obligate signatories to the obligatory entry in the future contractual relationship.
