Article 380. Freedom of Contract
1. Citizens and legal entities shall be free in concluding agreements. Compulsion to conclude an agreement shall not be allowed, except for the cases where the obligation to conclude an agreement is contemplated by this Code, legislative acts or by the obligation adopted voluntarily.
2. Parties may conclude agreements both as provided for and as not provided for by legislation.
Article 381. Mixed Agreements
Parties may conclude an agreement which contains the elements of various agreements provided for by legislation (mixed agreement). The relations of the parties in certain parts of a mixed agreement shall be subject to relevant legislation concerning agreements, the elements of which are contained in the mixed agreement, unless it otherwise ensues from the agreement of the parties or the essence of the mixed agreement.
Article 382. Defining Provisions of An Agreement
1. Provisions of an agreement shall be defined at the discretion of the parties, except for the cases where the contents of a certain provision are prescribed by legislation.
In the cases where a provision of an agreement is prescribed by a rule which, in accordance with legislation applies, unless the agreement of the parties specifies otherwise (dispositive rule), the parties may by their agreement exclude its application or establish a condition which is different from the one specified in it. Where such agreement does not exist the condition of the agreement shall be determined by the dispositive rule.
2. If a provision of an agreement is not defined by the parties nor by a dispositive norm, the appropriate provisions shall be determined by traditions of business practice, which are applicable to the relations of those parties.
Article 383. Agreements and Legislation
1. An agreement must comply with the rules which are obligatory for the parties and which are established by legislation (imperative rules), which are effective at the moment of its conclusion.
2. When after the conclusion of an agreement, legislation establishes for the parties the rules which are different from those that were effective when the agreement was concluded, the terms of the concluded agreement shall remain valid, except for the cases where legislation establishes that it applies to the relations which arose from the agreements concluded earlier.
Article 384. Chargeable and Non-Chargeable Agreements
1. A agreement in accordance with which one party must receive a payment or other counter consideration for the execution of its obligations, shall be recognised as chargeable.
2. An agreement shall be recognised as non-chargeable in which one party is obliged to supply something to the other party without receiving from it any payment or any other counter consideration.
3. An agreement shall be deemed to be chargeable, unless it otherwise ensues from legislation, contents or the essence of the agreement.
Article 385. Price
1. Execution of an agreement shall be paid in accordance with the price established by agreement of the parties.
In the cases which are stipulated by legislative acts, the prices (tariffs, fees, rates, etc.) shall apply as established or regulated by the state bodies authorised accordingly.
2. Changing prices after concluding agreements shall be allowed in the cases and on the terms as specified in the agreement, legislative acts, or in accordance with the procedure established by legislative acts.
3. In the cases where, in a chargeable agreement, the price is not stipulated and may not be determined on the basis of the provisions of the agreement, it shall be deemed that the execution of the agreement must be carried out at the price which, at the moment of the conclusion of the agreement was usually charged for similar goods, work and services under similar conditions.
Article 386. Validity of an Agreement
1. An agreement shall enter into force and it shall be binding for the parties from the moment of its conclusion (Article 393 of this Code).
2. The parties shall have the right to establish, that the provisions of the agreement concluded by them shall apply to their relations which arose prior to the conclusion the agreement.
3. Where legislation or an agreement specify a validity period of the agreement, the expiry of that term shall entail the cessation of the obligations of the parties under the agreement.
An agreement in which there is no indication as to its validity period shall be recognised as valid until the moment specified in it for the termination by the parties of the execution of the obligation.
4. The expiry of the validity period of an agreement shall not release the parties from the responsibility for its violation which took place prior to the expiry of that period.
Article 387. A Public Agreement
amended by (11) Law No. 154 of 11th July 1997 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan Concerning Issues of Banking Activity.
1. An agreement which is concluded by a commercial organisation and which establishes that organisation's obligations to sell goods, perform work or render services, which such an organisation, by the nature of its business, must carry out with regard to any one who applies to it (retail trade, conveyance by the transport of common use, communication services, energy supply, medical, hotel, services, etc.) shall be recognised as a public agreement.
A commercial organisation shall not have the right to grant preference to one person before another with regard to conclusion of a public agreement, except for the cases stipulated in legislation.
2. The price of goods, work and services and also other provisions of a public agreement shall be established as being the same for all customers, except for the cases where legislation allows the granting of privileges for certain categories of consumers.
3. The refusal of a commercial organisation to conclude a public agreement where there is a capacity to provide to the customer appropriate goods (work, services), shall not be allowed.
When a commercial organisation unreasonably evades entering into a public agreement, the provisions stipulated in paragraph 4 of Article 399 of this Code, shall apply.
4. In the cases provided for by legislative acts, the Government of the Republic of Kazakhstan may issue rules which are obligatory for parties when entering into and executing public agreements (model agreements, regulations, etc.).
5. The provisions of a public agreement, which are not consistent with the requirements established by paragraphs 2 and 4 of this Article, shall be invalid.
Article 388. Model Provisions of Agreements
1. An agreement may specify that its certain provisions are determined by model provisions which are elaborated for the agreements of that type and published in the press.
2. In the cases, where an agreement does not contain any reference to model conditions, such model conditions shall apply to the relations of the parties as traditions of business practice, provided they are consistent with the requirements established by Articles 3 and 382 of this Code.
3. Model provisions may be outlined in the form of a model agreement or any other document which contains those provisions.
Article 389. Adherence Agreement
1. An agreement of which the conditions are determined by one of the parties in pro-formas or any other standard forms and may be adopted by the other party in no other way but by way of adherence to the proposed agreement as a whole, shall be recognised as an adherence agreement.
2. A party which adheres to an agreement shall have the right to claim the dissolution of the agreement if the adherence agreement, although does not contradict legislation, but deprives that party of the rights which are usually granted in agreements of such a type, excludes or restricts the liability of the other party for violation of the obligations or contains other clearly onerous conditions for the adhering party, which it would not accept on the basis of its reasonably understood interests, should it have the possibility to participate in defining the provisions of the agreement.
3. Where the circumstances exist as stipulated in paragraph 2 of this Article, the claim to dissolve the agreement, made by the party which had adhered to the agreement in connection with its exercise of entrepreneurial activities, shall not be subject to satisfaction, if the party which adhered knew or should have known on which conditions it concluded the agreement.
Article 390. Preliminary Agreement
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. In accordance with a preliminary agreement, the parties assume an obligation to conclude in the future an agreement on the transfer of assets, performance of work or rendering services (principal agreement) on the terms specified in the preliminary agreement.
2. A preliminary agreement shall be concluded in the form as established by legislation for the principal agreement, and if the pro-forma of the principal agreement is not established, then in writing. Failure to comply with rules for the pro-forma of the preliminary agreement shall entail its invalidity.
3. A preliminary agreement must contain the provisions which allow the identification of the subject-matter, and other material conditions of the principal agreement.
4. In a preliminary agreement the period shall be indicated within which the parties are obliged to conclude the principal agreement.
When such a period is not defined in the preliminary agreement, the agreement envisaged by it shall be subject to conclusion within one year from the moment of the conclusion of the preliminary agreement.
5. In the cases where one party which concluded a preliminary agreement evades the conclusion of the agreement which is envisaged thereby, it shall be obliged to compensate the other party for the losses incurred by that, unless it is otherwise stipulated in legislation or the agreement.
6. The obligations which are stipulated in the preliminary agreement shall terminate if prior to the expiry of the period within which the parties must conclude the principal agreement, it is not concluded, or none of the parties sends to the counter-party the proposal to conclude the agreement.
7. A letter of intent (agreement of intentions), unless it directly provides for the intent of the parties to impart to it the status of a preliminary agreement, shall not be deemed to be a civil law agreement and failure to execute it shall not entail any legal consequences.
Article 391. An Agreement for the Benefit of a Third Party
1. An agreement shall be recognised to be an agreement for the benefit of a third party, in which the parties established that the debtor shall be obliged to carry out the execution not to the creditor but to a third party who is indicated or not indicated in the agreement and who has the right to claim from the debtor the execution of the obligations for his benefit.
2. Unless it is otherwise stipulated in legislation or agreement, from the moment that the third party expressed to the debtor the intention to exercise its right in accordance with the agreement, the parties may not dissolve or amend without the consent of the third party the agreement concluded by them.
3. A debtor in an agreement shall have the right to make objections against the claim of a third party, which he may make against the creditor.
4. In the case where a third party waives a right which is granted to it in accordance with the agreement, the creditor may use that right, unless that contradicts legislation and the agreement.
Article 392. Interpretation of an Agreement
1. When interpreting provisions of an agreement, the court shall take into account the literal meaning of the words and expressions contained in it. The literal meaning of a provision of an agreement, where unclear, shall be established by way of comparing that with other conditions and the sense of the agreement as a whole.
2. Where the rules contained in paragraph 1 of this Article do not allow to understand the contents of an agreement, the actual common will of the parties must be identified taking into account the objective of the agreement. In that respect, any relevant circumstances, including the negotiations preceding the agreement, and a letter exchange, the practice prevailing in the mutual relations of the parties, tradition of business practice, the subsequent conduct of the parties, shall be taken into account.
Chapter 23. Conclusion of an Agreement
Article 393. Material Terms of An Agreement
1. An agreement shall be deemed to be concluded when consensus is reached between the parties in accordance with the required form, on all the material terms of it.
The provisions concerning the subject-matter of the agreement, the provisions which are recognised by legislation as material or which are necessary for the agreements of that type, and also all the provisions on which according to the application of either party, consensus must be reached, shall be recognised as material terms.
2. Where in accordance with legislative the conclusion of an agreement requires a transfer of property, the agreement shall be concluded from the moment of the transfer of that property.
Article 394. Form of Agreements
1. If the parties agreed to conclude an agreement in certain form, it shall be deemed to be concluded from the moment of imparting to it the appropriate form, even if legislation does not require that form for such type of agreements.
2. The written form of an agreement shall be deemed to be complied with, if the written offer to conclude the agreement is accepted in accordance with the procedure provided for by paragraph 3 of Article 396 of this Code.
Article 395. Offer
1. A proposal to conclude an agreement, which is made to one or several specific persons, provided it is sufficiently definite and expresses the intent of the person who made the proposal to deem himself bound in case of its adoption (acceptance), shall be recognised as offer. A proposal shall be deemed to be sufficiently definite, if it contains the material terms of the agreement and the procedure for their determination.
2. An offer shall bind the person who sends it from the moment of its receipt by the addressee.
When the notice of revoking an offer is received earlier than or simultaneously with the offer itself, the offer shall be deemed to be not received.
3. An offer received by the addressee may not be revoked during the period which is established for its acceptance, unless it is otherwise stipulated in the offer itself, or ensues from the essence of the proposal or the situation in which it was made.
4. Advertisements and other proposals which are addressed to an indefinite circle of persons shall be considered as an invitation to make an offer, unless it is otherwise stipulated in the proposal.
5. A proposal which contains all the substantial terms of the agreement, from which the will of the person who is making the proposal is understandable, to conclude the agreement on the terms specified in the proposal with anyone who responds, shall be recognised as an offer (public offer).
Article 396. Acceptance
1. The response of a person to whom the offer is addressed, about accepting it shall be recognised as acceptance.
Acceptance must be entire and unconditional.
2. Silence shall not be recognised as acceptance, unless it otherwise ensues from the legislative act, tradition of business practice or previous business relations of the parties.
3. The commitment by the person who received an offer, within the period which is established for its acceptance, of the actions to implement the provisions of the agreement which are indicated in it (shipment of goods, rendering of services, performing work, payment of the appropriate amount etc.), shall be recognised as acceptance, unless it is otherwise stipulated in legislation or indicated in the offer.
4. If a notice of revocation of the acceptance is received by the person who sent the offer, earlier or simultaneously with the acceptance itself, the acceptance shall be deemed not received.
Article 397. The Procedure for Concluding Agreements
1. When an offer contains a deadline 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 period indicated in it.
2. Where a written offer does not contain any deadlines for the acceptance, the agreement shall be deemed to be concluded if the acceptance is received by the person who sent the offer, prior to the expiry of the period established by legislation, and if such period is not established, - within the time which is reasonably required for that. When an offer is made orally without any indication of the period for its acceptance, the agreement shall be deemed to be concluded, if the other party immediately declares its acceptance.
3. In the cases where a notice of acceptance timely sent is received with a delay, the acceptance shall not be considered late, if the party which sent the offer does not immediately notify the other party of receiving the acceptance with a delay.
If the party which sent the offer immediately notifies the other party that the acceptance of the offer has been received with a delay, the agreement shall be deemed to be concluded.
4. The response of consent to conclude the agreement on the conditions different than those proposed in the offer, shall not be recognised as an acceptance. Such response shall be recognised as a refusal from the offer and at the same time it shall be a new offer.
Article 398. The Place of Concluding an Agreement
When an agreement does not specify the place of its conclusion, the agreement shall be deemed to be concluded in the place of residence of the citizen or in the place of location of the legal entity which sent the offer.
Article 399. Concluding Agreements in an Obligatory Procedure
1. In the cases, where in accordance with this Code or any other legislative acts, the conclusion of an agreement is obligatory for one of the parties, that party must send to the other party the notice of acceptance, or of the refusal to accept, or of acceptance of the offer (draft agreement) on different terms (protocol of differences to the draft agreement) within thirty days from the date of the receipt of the offer, unless a different period is established by legislation or is agreed by the parties.
2. The party which sent an offer and received from the party for which the conclusion of the agreement is obligatory a notice of acceptance on different terms (protocol of differences to the draft agreement), shall have the right to enter the disputes which arose in concluding the agreement, to a court for its consideration within thirty days from the date of the receipt of such notice, or upon expiry of the period for the acceptance, unless legislation concerning specific types of agreements establishes a different period.
3. In the cases where in respect of a draft agreement sent by one party for which the conclusion of the agreement is obligatory, a protocol of differences concerning the draft agreement is received, that party shall be obliged within thirty days from the date of the receipt of the protocol of differences to notify the other party of the acceptance of the agreement in that party's version or of declining the protocol of differences.
When declining a protocol of differences or in the case of failure to receive the notice concerning the results of its consideration, within an indicated period, the party which sent the protocol of differences, shall have the right to enter the differences which arose in the conclusion of the agreement for the consideration of the court, unless legislation concerning specific types of agreements establishes otherwise.
4. When a party, for which in accordance with this Code or any other legislative acts, the conclusion of an agreement is obligatory, 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 unreasonably evaded the conclusion of an agreement must to compensate to the other party for the losses caused by the refusal to conclude the agreement.
Article 400. Pre-Contractual Disputes
In the cases specified in paragraphs 2 and 3 of Article 399 of this Code, and also if the disputes which arose in concluding an agreement, were by consensus of the parties entered into a court for its consideration, the provisions of the agreement, on which the parties had differences, shall be determined in accordance with decision of the court.
Chapter 24. Amendment and Dissolution of An Agreement
Article 401. Bases for Amending and Dissolving Agreements
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. Amendments to and dissolution of an agreement shall be possible by agreement of the parties, unless it is otherwise stipulated by this Code, other legislative acts and the agreement.
2. Upon the claim of one of the parties the agreement may be amended or dissolved upon the decision of the court only as follows:
1) when there is a material violation of the agreement by the other party;
2) in other cases which are stipulated in this Code, other legislative acts or the agreement.
A violation of the agreement by one of the parties shall be deemed material if it entails for the other party such damage that it to a substantial degree loses something on which it had the right to count when concluding the agreement.
3. An agreement shall be deemed to be amended or terminated in the case of a unilateral refusal to implement it (partial or full denial of an agreement accordingly (Article 404 of this Code).
Article 402. Procedure for Amending and Dissolving
an Agreement
1. An arrangement to amend or dissolve an agreement shall be performed in the same form as that of the agreement, unless it ensues otherwise from legislation, the agreement, or traditions of business practice.
2. The claim to amend or dissolve an agreement may be entered by a party to the court only after the receipt of the refusal of the other party with regard to the proposal to amend or dissolve the agreement or in the case of failure to receive a response within the deadlines indicated in the proposal or established by legislation or the agreement, and where it does not exist, - within thirty days time.
Article 403. Consequences of Dissolving and Amending
an Agreement
as amended by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. When dissolving an agreement, the obligations of the parties shall cease.
2. When amending an agreement, the obligations of the parties shall continue to be valid in an amended form.
3. In the case of dissolving or amending an agreement the obligations shall be deemed to be terminated or amended from the moment of the reaching the consensus of the parties concerning the amendment or dissolution of the agreement, unless it otherwise ensues from the agreement of the parties or the nature of the amendment to the agreement, and in the case of termination or amending the agreement in a judicial procedure, - from the moment of the court decision concerning the dissolution or amendment of the agreement entering into legal force.
4. The parties shall not have the right to claim the return of what was executed by them in the obligation prior to the moment of dissolution or amendment to the agreement, unless it is otherwise established in the law legislative acts or the agreement by the parties.
5. Where a substantial violation of an agreement by one of the parties served as the reason for the dissolution or amendment of the agreement, the other party shall have the right to claim the restitution of losses caused by the dissolution or amendment of the agreement.
Article 404. Cases of Amendment and Dissolution of Agreements Upon
the Application of one Party
replaced by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
Article 404. Unilateral Refusal to Implement An Agreement
(Rescission of an Agreement)
replaced by (12) Law of No. 211 of 2nd March 1998 of the Republic of Kazakhstan. Concerning the Introduction of Amendments and Additions to the Civil Code of the Republic of Kazakhstan (General Part), and to the Decree of the Supreme Soviet of the Republic of Kazakhstan "Concerning the Implementation of the Civil Code of the Republic of Kazakhstan (General Part)".
1. A unilateral refusal from the implementation of an agreement (rescission of an agreement) shall be allowed in the cases provided for by this Code, other legislative acts or agreement of the parties.
2. Either party shall have the right to refuse to implement the agreement in the following cases:
1) impossibility to perform an obligation based on the Agreement (Article 374 of the present Code);
2) recognition, in accordance with the established procedure, of the other party as bankrupt;
3) amendment or abolition of the act of the state body, on the basis of which the agreement was concluded.
3. A unilateral rescission of performance of an agreement shall be allowed in the cases when the agreement is entered into without indication of a period, unless it is otherwise provided for by legislative acts or the consensus of the parties.
4. In the case of a unilateral rescission of the performance of an agreement the party must notify the other accordingly, not later than one month prior, unless it is otherwise provided for by this Code, other legislative acts or consensus of the parties.
Article 405. Extension of the Validity Period of
an Agreement
The parties shall have the right to extend the validity of the agreement for another period.
Extension of the validity period of an agreement shall be carried out in accordance with the rules of Article 397 of this Code.
President of the Republic
of Kazakhstan
N. Nazarbaev
