2. A creditor's delay shall give to the debtor the right to compensation of the losses caused by delay, unless the creditor proves that the delay took place for the circumstances for which neither himself, nor the persons to whom by virtue of the legislation or of the creditor's instructions, the acceptance of the fulfillment was delegated are not responsible.
All the unfavorable consequences of the occurrence during the delay of the accidental impossibility to fulfill the obligation shall be imposed upon the creditor who committed the delay.
3. In a pecuniary obligation, a debtor shall not be obliged to pay interest for the time of the delay by the creditor.
Chapter 21. Cessation of Obligations
Article 367. The bases for the cessation of obligations
1. Obligations shall terminate entirely or in the part by the fulfillment, granting of smart money, reckoning, novation, forgiving of debt, coincidence of the debtor and the creditor in one person, impossibility to fulfill, the issue of an act by a state body, demise of the citizens liquidation of the legal entity.
2. The cessation of an obligation by claim of one of the parties shall be allowed only in the cases provided by the legislation.
3. The legislation and agreement may provide any other bases for the cessation of obligations.
Article 368. Cessation of an obligation by the fulfillment
1. The fulfillment executed property shall terminate the obligation.
2. An obligation may be terminated by the replacement of the fulfillment, which is carried out by the debtor with the consent of the creditor.
Article 369. Compensation for termination of an obligation
By agreement of the parties, an obligation may be terminated by offering a compensation instead of the fulfillment (payment of money, transfer of assets etc.). The amount, the deadline and the procedure for offering the compensation shall be established by the parties.
Article 370. Termination of an obligation by set-off
1. An obligation shall be terminated in whole or in part by setting-off a similar counterclaim the deadline for which has arrived, or the deadline wherefore is not provided or defined as the moment of claim. The application of one party shall be sufficient for reckoning.
2. Set-off shall not be permitted in the following cases:
1) where in accordance with the application of one of the parties, the claim is subject to statute of limitations, and the term of the statute has expired;
2) when dealing with the compensation of learn done to life or health;
3) when dealing with levying alimony;
4) when dealing with lifelong support;
5) in any other- cases envisaged by the law or agreement.
3. Set-off shall be carried out where a claim emerged on the basis which existed by the moment of the debtor's receipt of the notification concerning the assignment of the claim and the deadline of the claim arrived prior to its receipt, or the deadline is not indicated, or it is determined by the moment of claim.
Article 371. Cessation of an obligation by coincidence of the debtor and creditor in one person
An obligation shall be terminated by the coincidence of the debtor and creditor in one person.
Article 372. Cessation of obligations by novation
1. An obligation shall terminate by the agreement of the parties to replace the initial obligation which existed between them, by any other obligation between the same persons, which provides another subject or method of fulfillment (novation).
2. Novation is not permitted with respect to the obligations to compensate damage caused to life or health, and to pay alimony.
3. Novation shall terminate any additional obligations related to the initial one, unless it is otherwise provided by agreement of the parties.
Article 373. Forgiving debt
An obligation shall be terminated by the exemption of the debtor by his creditor from the obligations which rest with him, unless this violates the rights of any other persons in respect of the property of the creditor.
Article 374. Cessation of an obligation by impossibility of fulfillment
1. An obligation shall cease by the impossibility of its fulfillment if it is caused by circumstance for which the debtor is not responsible.
2. In the case of impossibility to fulfill by a party of its obligations which impossibility is caused by circumstance for which no other party is responsible it shall have the right to claim from the other party the fulfillment of the obligations unless otherwise is provided by the legislation or agreement. In that respect each party which fulfill the obligation shall have the right to claim return performance..
3. In the case where- it is impossible for the debtor to fulfill the obligation which impossibility is caused by guilty action of the creditor the latter shall not have the right to claim the return of the executor by him on the obligation.
Article 375. The cessation of obligation on the basis of the act of a state body
1. Where as a result of an issue of an act by the body of state par or state administration or by a local administration (public act) the fulfillment of an obligation shall be or becomes impossible fully or partially, the obligation shall cease fully or in appropriate part.
The parties which as a result thereof incurred losses shall have the right to request compensation in accordance with the present Code.
2. In the event of a recognition in accordance with the established procedure, of a public act as invalid, on the basis of which an obligation terminated, the obligation shall be reestablished unless otherwise is provided by the agreement of the parties or the essence of the obligation and where the fulfillment thereof did not forfeit an interest for the creditor.
Article 376. Cessation of an obligation by the death of the citizen
1. An obligation shall terminate with the death of a citizen unless the fulfillment may be carried out without the personal participation of the debtor or the obligation in any other way is inseparably connected to the individuality of the debtor.
2. An obligation shall cease with death of the creditor where the fulfillment is intended personally for the creditor or the obligation in any other way is inseparably associated with the person of the creditor .
Article 377. Termination of an Obligation through Liquidation of a Legal Entity
1. An obligation shall cease on the liquidation of a legal entity (debtor or creditor) except for the cases where the legislation delegates the execution of the obligation of the liquidated legal entity to any other legal entity (on obligations which arise as a result of conflicting damage to life, health, and others).
2. A termination of activities or reorganization of a body of the state far or state administration and also local administration shall not result in the cessation of obligations in which such body or administration were a debtor. The execution of the indicated obligations shall be delegated to the body which manages its treasury or to the body in whose disposal (under whose authority) are the budget resources, unless otherwise provided by the resolution concerning the termination of the activities or the reorganization of the corresponding body.
SUBSECTION II. General Provisions on Agreements
Chapter 22. Concept and Terms of an Agreement
Article 378. The concept of an agreement
1. An agreement of two or several persons concerning the establishment, amendment or cessation of civil rights and obligations shall be recognized as an agreement.
2. The rules concerning bilateral and unilateral transactions which are provided in Chapter 4 of the present Code shall apply to an agreement.
3. The general provisions concerning contract shall be applicable to agreements concluded by more than two parties (multilateral agreements) where this does not contradict the multilateral nature of such agreements,
Article 379. Legal relations arising from an agreement
1. Obligatory, material, authorship and any other legal relationships may arise from contracts.
2. The general provisions concerning obligations (Article 269 - 277) shall apply to the obligations arising from contracts unless otherwise is provided in the rules of this chapter and rules concerning separate -types of contracts which are contained in the present Code.
3. The provisions of this chapter shall apply to material, authors or any other violations which arise from contracts (contracts for activities) foundation agreement, author agreement and other unless otherwise follows from the legislation agreement or the essence of the violation.
Article 380. Freedom of contract
1. Citizens and legal entities are free in concluding a contract. The compulsion to conclude a contract shall be prohibited except for the cases where the obligation to conclude a contract is provided in the present Code, legislative acts or the obligation adopted voluntarily.
2. The parties may conclude a contract (as envisaged) which is not envisaged by the legislation.
Article 381. Mixed agreement
Parties may conclude a contract in which are comprised the elements of various agreements as provided by legislation (mixed agreement). With respect of the relations of the parties to a mixed agreement, the legislation shall be applicable to the relevant parts concerning the agreement, the elements of which are contained in the mixed agreement, unless otherwise follows from the agreement of the parties or the essence of the mixed agreement.
Article 382. Stipulating terms of agreements
1. Condition of the agreement shall be determined by at the discretion of the party except for the cases where the contents of certain provision is prescribed by the legislation. In the cases where the provision is prescribed by the legislation. In the cases where the provision of an agreement is provided in a norm which in accordance with the legislation shall be effective unless the agreement of the parties provides otherwise (disposition norm) the parties may by their agreement exclude the application thereof or establish a term which is different from the term provided in therein. Where such agreement does not exist the conditions of the agreement shall be determined by the optional provision.
2. Where a condition of an agreement is not identified by the parties or the disposition norm the relevant condition shall be determined by the tradition of the business turnover which. are applicable to the relations of those parties.
Article 383. Agreements and legislation
1. An agreement must comply with the rules which are compulsory for the parties and which are established by legislation (imperative norms) which are current at the moments of its conclusion.
2. Where after concluding an agreement, legislation provides the compulsory rules for the parties which are different from those which were current at the moment of the conclusion of the agreement, the terms of the concluded agreement shall retain force except for the cases where the legislation provides that its effect shall extend in respect of the relations which arose from the agreements previously concluded .
Article 384. Onerous and non-compensatory agreements
1. The agreement under which a party must receive payment or any other consideration for the execution of its obligations shall be compensatory.
2. Non-compensatory shall be recognized to be an agreement in accordance with one party is obliged to supply to the other party without receiving from if any payment or any counter consideration.
3. The agreement shall be deemed to be compensatory unless the otherwise follows from the legislation contents or the essence of the agreements.
Article 385. Price
1. Fulfillment of an agreement shall be paid in accordance with the price established by the agreement of the parties. In the cases which are provided by the legislative acts the prices shall apply (prices. rates, fees etc.) which are established or regulated by state bodies are authorized therefore.
2. Changing prices after the concluded agreement shall be permissible in the cases and on the conditions which are provided in the agreement the legislative acts or in accordance with the procedure established by the legislative acts.
3. In the cases where compensatory agreement the price is not provided and may not be determined on the basis of the conditions of the agreement it shall be deemed that the fulfillment of the agreement must be carried out at the prices which are at the moment of the conclusion of the agreement under similar circumstances is usually levied for similar goods, work and services.
Article 386. Validity of a contract
1. A contract shall enter into force and it shall be for the parties from the moment of its conclusion (Article 393).
2. The party shall have the right to establish (that the agreement) that the terms of the agreement concluded by them shall apply to their relations which arose prior to the conclusion the agreement which had a reason prior to the conclusion agreement.
3. Where a legislation or an agreement provide the term of validity of the agreement. The expiration of that term shall result in the cessation of obligation of the parties in respect of the agreement. An agreement in which there in no indication as to the term of its validity shall be recognized to be effective to the moment of terminating of finishing the fulfillment by the party of the obligation which are determined in it.
4. The termination of the validity period of an agreement shall not exempt the parties from the responsibility for its violation which took place prior to the expiration of its term of that period.
Article 387. Public agreement
1. An agreement which is concluded by a commercial organization and which establishes its obligations to sell goods, perform work or render services which such organization by the nature of its business and must be carried out in respect of anyone who applies to it (retail trade, conveys by the transport of common designation, communication services, medical, hotel, or banking services, etc.) shall be recognized as a public agreement.
A commercial organization shall not have the right to grant a preference to one person in front of any other in respect of concluding a public agreement except for the cases provided in the legislation.
2. The price of goods, work, and services, as well as any other terms of a public agreement shall be established as the same for any consumer except for the cases where the legislation permits granting privileges for certain categories of users.
3. The refusal of a commercial organization from concluding a public agreement where there is a capacity to grant to the consumer the relevant goods (work, services) shall be prohibited. In the event that commercial organization evades without a basis from concluding a public agreement the provisions of the Code shall apply which are provided in paragraph 4 of Article 399 of the present Code.
4. In the cases which are provided in the legislative acts, the Government of the Republic of Kazakstan may issue rules which are compulsory for the parties when entering and fulfilling a public agreement (statutory agreements regulations, etc.).
5. The conditions of a public agreement which do not meet the requirements established in paragraph 2 and 4 of this Article shall not be valid.
Article 388. Sample conditions of agreement
1. An agreement may provide that some provisions thereof shall be determined by sample conditions which are developed for the agreements of the relevant type and published in press.
2. In the cases where an agreement does not contain a reference to sample conditions, such sample conditions shall apply in respect of the parties as tradition of the business turnover where they meet the requirements established by Article 3 and 382 of the present Code.
3. Sample conditions may be outlined in the form or sample agreement or any other documents which contain those conditions.
Article 389. Agreement of joining (association)
1. An association agreement shall be deemed to be the agreement the conditions thereof are determined by one of the parties in proformas or standard forms and may be adopted by the other party in no other way but by way of adjoining (by accepting) the proposed agreement as a whole.
2. The party which joins the agreement shall have the right to claim the termination of the agreement where the association agreement does not contradict legislation, but deprives the party of rights which are usually granted in agreements of similar type, exclude or limits the responsibility of the other party for the breach of obligations, or contains any other clearly burdensome conditions for the adjoining party of terms, which it, on the basis of its reasonably understood interests did not except should it have the opportunity to participate in determining the conditions of the agreements.
3. Where the circumstances exist which are provided in paragraph 2 of this Article, the claim to terminate the agreement, presented by the party which had joined the agreement, in relation to the realization of business activity, shall not be subject to satisfaction if that party which joined knew or should have known on what terms the agreement was concluded.
Article 390. Preliminary agreement
1. In accordance with a preliminary agreement the parties shall be obliged to conclude in the future an agreement concerning the transfer of assets, performance of work or rendering services (principal agreement) on the conditions provided on the terms provided on the preliminary agreement.
2. A preliminary agreement shall be concluded in the form which is established by the legislation for the principal agreement and if the form of the principal agreement is not established, then in writing. The failure to comply with rules concerning the form of the preliminary agreement shall result in its invalidity.
3. The preliminary agreement must contain the term which permit to identify the subject and any other significant conditions of the principal agreement.
4. In the preliminary agreement is indicated a period within which the parties are obliged to enter in the principal agreement.
If such a period is not identified in the preliminary agreement the agreement provided in it shall subject to be concluded within one year from the moment of the conclusion of the preliminary agreement.
5. In the event where one party which concluded the preliminary agreement evades from concluding the agreement as provided therein , it is obligated to compensate the other party for the losses incurred by that unless otherwise is provided in legislation or the agreement.
6. The obligations which are provided in the preliminary agreement shall terminate where prior to the expiration of the term within which the party must conclude the principal agreement it shall not be concluded or one of the parties sends to the other party the proposal to conclude the agreement.
7. Letter of intent intention letter) unless directly provides the intention of the parties to give to it the state the forth or the preliminary agreement shall riot be deemed to be agreement its non-fulfillment shall not result in any legal consequences.
Article 391. An agreement for the benefit of a third party
1. An agreement shall be recognized to be an agreement for the benefit of a third party in which the party is established that the debtor shall be obliged to carry out the fulfillment not to the creditor but to the third party which is indicated or not indicated in the agreement and which has the right to claim from the debtor the fulfillment of the obligations for his benefit.
2. Unless otherwise provided by the legislation or agreement, from the moment of the third party expression to the debtor of the intention to exercise its right in respect to the agreement, the parties may not dissolve or change the agreement concluded by them without the consent of the third party.
3. The debtor in the agreement shall have the right to have objections against the claim of a third party which he makes against the creditor.
4. In the event the third party rejects the rights which are granted to it in accordance with the agreement, the debtor may use that right unless that contradicts legislation and the agreement.
Article 392. Interpretation of an agreement
1. When interpreting the terms of an agreement, the court shall take into account the literal meaning of the words and expressions contained in it. The literal meaning of the term of an agreement in the case of its clearness shall be established the way of comparing that with other terms and the sense of the agreement as a whole.
2. Where the rules contained in paragraph 1 of this Article do not permit the definition of the contents of the agreement, there must be revealed the actual common will of the parties taking into account the aim of the agreement. In that respect any relevant circumstances shall be taken into account including those which proceeding the agreement including the negotiations, letters exchanged and which was establish in mutual relations of the parties shall be taken into account as well as the traditions of business turnover and the subsequent conduct of the parties.
Chapter 23. Conclusion of an Agreement
Article 393. Essential conditions
1. An agreement shall be deemed to be concluded when between the parties, an agreement is reached in accordance with the proforma which is required in such cases and in respect of all the essential terms thereof. The essential terms on the subject of the agreement are the terms which are recognized as essential by legislation or which are necessary for the agreement of the given type, as well as all the terms in accordance with the statement of one of the parties to the agreement must be reached.
2. Where in accordance with the legislative acts the conclusion of an agreement required the transfer of assets the agreement shall be concluded from the moment of the transfer of the relevant asset.
Article 394. Proforma Agreement
1. Where the parties acquired to conclude an agreement in accordance with the certain proforma it shall be concluded from the moment of formulating it in accordance with the established proforma if the legislation does not require otherwise for the proforma for that type of the agreement.
2. The written proforma of the agreement shall be deemed to be complied with where the written offer to conclude an agreement is accepted in accordance with the procedure provided in paragraph 3 of Article 396 of the present Code.
Article 395. Offer
1. The proposal to conclude an agreement which is made to one or several specific persons, if it is sufficiently definite and expresses the intention of the person who made it to deem himself bound in the event of its acceptance shall be recognized to be an offer.
A proposal shall be deemed sufficiently defined if it contains the essential terms of the agreement or the order of their determination.
2. An offer shall bind the person who sends it from the moment of its receipt by the addressee.
If notification to revoke a offer which was received earlier or simultaneously with the offer itself the offer shall be deemed to be unreceived.
3. The offer received by an addressee may not be revoked during the term established for its acceptance unless otherwise is provided in the offer itself or does not follow from the essence of the proposal or the circumstances under which it was made.
4. Advertising and any other proposals which are addressed to an indefinite circle of persons shall be considered as an invitation to offer unless otherwise is provided in the proposal.
5. The proposal which contains all the significant terms of the agreement from which the will of the person making the proposal is understandable to conclude the agreement on the terms indicated with anyone who fully response shall be recognized as an offer public offer).
Article 396. Acceptance
1. The response of a person to whom an offer addressed about accepting it shall be recognized to be acceptance. Acceptance must be for and unprovided.
2. Silence shall not be recognized as acceptance unless otherwise is provided from the legislative acts. Tradition of the business turnover or any previous business relation of the party.
3. The commitment by the person who received an offer within the period which is established for the acceptance of the action to fulfill the conditions of the agreement which indicated in it (shipment of goods, render of services, performing work, payment of the relevant amount etc.) shall be recognized to be acceptance unless otherwise is provided in the legislative or indicated in the offer.
4. Where a notification of the revocation of acceptance is received by the person who sent offer earlier or simultaneously with the acceptance the acceptance shall be deemed unreceived.
Article 397. The procedure for concluding agreement
1. When an offer contained the date for its acceptance the agreement shall be deemed to be concluded if the acceptance is received by the person who sent the offer within the indicating in it.
2. Where a written offer does not contain the date for the acceptance the agreement shall be deemed to be concluded of the agreement is received by the person who sent the otter prior to the (termination) expiration of the term established by legislation and if such term is not established within the time which is normally required for that.
When an offer is made orally without any indication of the date for its acceptance agreement shall be deemed to be concluded where the other party shall immediately notify of the acceptance.
3. In the cases where notification sent timely or the acceptance is received with the delay the acceptance shall not be considered to be late if the party which has sent the offer did not immediately notify, the other party of receiving the acceptance with the delay.
If the party which sent the offer party of the acceptance of the receipt of the acceptance with tile delay the agreement shall be deemed to be concluded.
4. The response to agree to conclude the agreement on the conditions different than those proposed in the offer shall not be the acceptance. Such a response shall be recognized as a refusal of the offer and it at the same time shall be deemed to be a new offer.
Article 398. The place of concluding the agreement
If the agreement does not provide the peace of its conclusion the agreement shall be deemed to be concluded at the residence of the citizen or in the place of the location of legal entity which sent the offer.
Article 399. Conclusion of agreements in the obligatory procedure
1.In the cases where in accordance with the present Code or any other legislative acts, the conclusion of the agreement is compulsory for one of the parties, that party must send to the other party notification of the acceptance or of the refusal to accept or to accept the offer (draft of agreement) or any other term (protocol of differences to draft agreement) within 30 days from the date of the receipt of the offer unless any other term is established by the legislation or is not agreed by the parties.
2. The party which sent the offer and received from the party for which the conclusion of the agreement is compulsory the notification of its acceptance on any other conditions (protocol of differences, draft agreement) shall have the right to enter the disputes arising when concluding the agreement for the consideration of the court within 30 days from the day of the receipt of such notification or upon the expiration of the term for the acceptance unless the legislation concerning special types of agreements provides any other term.
3. In the event that, with respect of a draft agreement sent by one party for which the conclusion of agreement is required, the protocol of differences is received within 30 days, that party shall be obliged, within 30 days from the date of the receipt, to notify the other party of the acceptance of the agreement in its version or of the declining this protocol of differences.
When declining the protocol of differences or non receipt of the notification concerning the result its consideration within the established period of time the party which has sent the protocol of differences shall have the right to enter the differences dispute which arose in the conclusion of an agreement for the consideration of the court unless the legislation concerning special types of agreement does not provide otherwise.
4. If a party for which in accordance with the present Code or any other legislative acts the conclusion of agreements compulsory is evading its conclusion the other party shall have the right to appeal to the court with the claim. to compel to conclude the agreement.
The party which unfoundedly evade the conclusion of the agreement shall be obliged to the other party the losses incurred in the refusal to conclude the agreement.
Article 400. Pre-contract Disputes
In the events provided in paragraphs 2 and 3 Article 399 of the present Code, and also where the dispute that arose at the conclusion of the agreement, or by the agreement of the party entered for the consideration of a court, the terms of the agreement on which the parties had differences shall be determined in accordance with the decision of the court.
Chapter 24. Alteration and Termination of an Agreement
Article 401. Reasons for amending and terminating agreements
1. Changes and termination of agreements shall be possible by the agreement of the parties unless otherwise is provided in the Code and any other legislative acts and the agreement.
2. Upon the requirements of one of the party the agreement may be amended or dissolved upon the decision of the court only as follows:
1) when there is a material breach of the agreement by the other party;
2) in other cases which are provided in the present Code and any other legislative act or the agreement.
The significance of the breach of the agreement by one of the party shall be recognized as sufficient if it entails for the other party such a damage that it in a substantial degree loses that, on which he had the right to hope to obtain when concluding the agreement.
3. In the event of a unilateral refusal of performance of an agreement entirely or in part when such a refusal is permitted by legislative acts or the agreement of the parties, the agreement shall be respectively terminated or amended.
Article 402. Procedure for changing and terminating an agreement
1. The agreement to change or terminate an agreement shall be permitted in the same form as the agreement, unless from legislation the agreement or the provision of the custom of business turnover results otherwise.
2. A claim to change or terminate an agreement may be filed by a party to the court only after the receipt of the refusal of the other party to the proposal to amend or terminate the agreement or in the nonreceipt of the response within the deadline indicated in the proposal or established by legislation or the agreement and indicates of where it does not exist within 30 days time.
Article 403. Consequences of amending or terminating an agreement
1. When dissolving an agreement the obligations of the parties cease.
2. When changing an agreement the obligations of the parties continue to be in effect in an amended form.
3. In the case of terminating or changing an agreement, the obligation shall be deemed terminated or changed from the moment of the achievement of the agreement by the party concerning the change and termination of an agreement unless otherwise follows from the agreement of the parties or the nature of the amendment of the agreement. and in the case of changing or terminating an agreement in the traditional procedure, from the time of the court decision interring into legal force on the decision concerning the change or termination of the agreement.
4. The party shall not have the right to require the return of something which was used by them on the obligation before the time of termination or change of the agreement unless otherwise established in the law or the agreement of the parties.
5. Where the material breach of an agreement by one of the parties is the reason for the termination or change of the agreement, the other party shall have the right to claim the restitution of losses inflicted by the termination or change of the agreement.
Article 404. Change and termination of agreement upon the application of one party
An agreement may be amended or dissolved upon the application of one party in the following cases:
1) it is impossible to perform an agreement (Article 374 of the present Code);
2) violation by the other party of terms provided in legislation or the agreement concerning the quality, terms of performance and any other conditions;
3) recognition in the established procedure of the other party as bankrupt;
4) amendment or canceling of an act of a governmental body, on the basis of which the agreement was concluded;
5) in other events provided by legislation or the agreement. In the event of a unilateral amendment or termination of an agreement, the party must notify the other party thereof not later than within one month.
Article 405. Extension of an agreement
The parties shall have the right to extend the agreement for a new term. The extension of the term of the agreement shall be carried out in accordance with the rules of Article 397 hereof.
