Peculiarities of concluding a contract for the supply of food products (in containers, in batches, on request) + a template for a contract for the supply of food products

The supply contract is one of the varieties of the sales contract and is similar to it in form, unless otherwise established by the contract, the law or does not follow from the nature of the relations of the parties. The conclusion of this contract is considered extremely convenient for both legal entities and individual entrepreneurs and is often used in business activities.

Concept of supply contract and features of its application

A supply contract is one of the most widely used contracts in business. The allocation of the supply contract as a separate type of sales contract was dictated by the need to determine the specifics of the specified legal relationship, which require more detailed regulation.

According to the classification of contracts given in the Central Committee, this is not an independent type of contract, but a type of sales contract. Like the sales contract, it is aimed at the transfer of ownership (other real property rights) from the seller (supplier) to the buyer.

All provisions of Art. 655 of the Civil Code of Ukraine - (hereinafter referred to as the Civil Code) on the contract of sale.

According to the supply contract, the seller (supplier), who carries out business activities, undertakes to hand over the goods to the buyer within the specified period(s) for use in business activities or for other purposes not related to personal, family, household or other purposes. similar use, and the buyer undertakes to accept the goods and pay a certain amount of money for them ( Part 1 of Article 712 of the Civil Code ).

The main and defining feature of the supply contract is the transfer of property (food products) to the ownership of the buyer.

In accordance with Clause 92 Part 1 of Art. 1 of the Law of Ukraine "On Basic Principles and Requirements for the Safety and Quality of Food Products" defines: a food product is a substance or product (unprocessed, partially processed or processed) intended for human consumption. Food products include beverages (including drinking water), chewing gum, and any other substance that is specifically incorporated into a food product during production, preparation, or processing. At the same time, the law does not include live animals, as well as plants before harvest, in the composition of food products.

The supply contract, as a rule, has a one-time nature and is concluded mainly for the property that is available and prepared for alienation. At the same time, the value of the alienated property is paid to the seller only in monetary terms. Payment for the purchased property must be made in the national currency of Ukraine, except for the cases provided for by law (Article 524 of the Civil Code ).

A supply contract is a contract under which goods are to be purchased for use in business activities (for industrial processing and consumption, for subsequent sale and other professional activities), or for other activities not related to personal, home, family use of the goods (supply in mobilization resources, army, kindergarten, etc.). It follows from the purpose of the purchase that the second party to the contract - the buyer - is most often an entrepreneur.

In practice, purposes not related to personal use also mean the purchase of goods by the buyer to support his activities as an organization or a citizen-entrepreneur (office equipment, office furniture, vehicles, materials for repair work, etc.). The purpose of the purchase may be derived from the nature of the product, the essence of the contract, or be stipulated in the contract itself.

Scope of the contract

The subject of the delivery contract can be goods that the seller has at the time of concluding the contract or will be created (purchased, received) by the seller in the future (Article 656 of the Civil Code ). It can be a product defined by both generic and individual characteristics.

The subject of delivery is determined by displaying the name, quantity and assortment (nomenclature) of the goods in the contract.

Form of delivery contract

The delivery contract is concluded in writing, as the provisions of the sales contract apply to it. This type of contract does not require mandatory notarization in accordance with the civil and economic legislation of Ukraine.

Essential terms of the contract

When concluding a supply contract, the parties are obliged to agree on its essential terms (Part 3 of Article 180 of the Economic Code of Ukraine):

Contract price

According to Art. 632 of the Civil Code , the price of the contract is set by agreement of the parties. A price change after the conclusion of the contract is allowed only in the cases and under the conditions established by the contract or the law. After the execution of the contract, the price cannot be changed.

When determining the price of the contract, you should take into account whether the contract will be delivered on a regular basis or if it will be a one-time delivery. The price can be specified both in the contract itself and in documents with product specifications. As a general rule, the contract specifies the specification of the product and indicates the price per unit in the case of one-time delivery.

In cases where regular deliveries are made, it is more convenient to indicate the price of the goods in acts of acceptance and transfer and other documents that are integral parts of the contract. This method of determining the price should be specified in the text of the main contract.

The contract price is in foreign currency

According to the general rule and legislation of Ukraine, the national currency of Ukraine is the only legal means of payment on the territory of Ukraine, however, there is no prohibition on setting the price of goods in a foreign currency equivalent (Articles 524 , 533 of the CCU).

Therefore, if it is necessary to set the contract price in a foreign equivalent, it is advisable to use the following algorithm:

1) establish the price of the contract in the national currency of Ukraine and indicate its equivalent in foreign currency at the exchange rate on the date of conclusion of the contract;

2) specify in the contract the possibility of price revision in the event of a change in the exchange rate and the need for the buyer to recalculate the amount on the payment date.

Terms of payment for goods

According to Part 1 of Art. 692 of the Civil Code , the buyer is obliged to pay for the goods after receiving them or receiving the accompanying documents. In addition, the parties may provide for other methods of payment for the goods in the contract, including prepayment, installments or deferred payment. Each of these payment methods has its own characteristics.

• Prepayment If such a method of payment is chosen, it is desirable to specify in the contract the responsibility for late fulfillment of its obligations by the supplier. After all, in the case of non-delivery, there may be difficulties with the return of the paid payment for the undelivered goods. In such a case, a provision should be made for the accrual of interest for the use of other people's funds , in case of violation by the supplier of the terms of delivery, from the day of the delay until the moment of actual delivery.
• Payment installments. In the contract, it is necessary to prescribe the procedure, terms and amounts of payments ( Part 1 of Article 695 of the Civil Code ). At the same time, you can draw up a payment schedule that will be an integral part of the contract.
• Postponement of payment. In this case, the period for which the deferment is granted and the interest accrued on it should be clearly prescribed. It should also be noted that additional interest will be charged in case of non-payment after the end of the payment deferral period.

Term of contract and delivery

The term of validity of the contract is determined by the parties to the contract. It is important to separate in the contract the terms of validity of the contract itself and the terms of delivery.

The supply contract can be concluded both for a year and for a longer period ( Article 267 of the Civil Code ).

If the term of its validity is not specified in the contract, it is considered concluded for one year.

In the event that the parties provide for the delivery of goods in separate batches, the term (period) of delivery of production and technical products is, as a rule, a quarter, and consumer products, as a rule, a month.

The parties can also agree on the delivery schedule (month, decade, day, etc.) in the contract.

Product delivery terms can be associated not only with clearly established dates, but also with certain actions of the buyer, for example, with advance payment, remittance of an advance, receiving a notification from the bank about the receipt of a letter of credit, etc. Such conditions must be reflected in the text of the delivery contract.

The procedure for receiving and handing over goods

The order of acceptance and delivery of goods by the parties should be specified in the delivery contract. Particular attention should be paid to the provisions on the settlement of issues of delivery of low-quality or incomplete goods.

Usually, a sample act of acceptance-handover of the goods is attached to the main contract, which is used for these purposes and is an integral part of the contract.

In the case of receiving goods of inadequate quality, it is recommended to make a corresponding mark in the act of acceptance and transfer, and then send a corresponding claim to the supplier.

The supplier is obliged at his own expense to eliminate the defects of the goods, to replace them or to supply the goods missing from the deed.

Responsibilities of the parties

Liability in the form of a fine can be stipulated in the delivery contract.

If the amount of fines is not determined by law, then according to Part 4 of Art. 231 of the Civil Code , they are applied in the amount established by the contract. The size of the fine can be set by agreement of the parties - in a fixed amount or as a percentage of the amount of the unfulfilled part of the obligation (for example, in the amount of 20% of the amount owed) ( Part 4 of Article 231 of the Civil Code ).

According to Part 6 of Art. 231 of the Civil Code, fines for breach of monetary obligations are established in percentages, the amount of which is determined based on the NBU accounting rate for the entire period of use of other people's funds, unless another amount of interest is provided for by law or contract. But for late payment, the buyer pays a penalty to the supplier, which is established by agreement of the parties and cannot exceed double the discount rate of the NBU that was in effect during the period for which the penalty is paid (part 2 of Article 343 of the Civil Code).

By agreement of the parties, other conditions may be established in the supply contract, for example, the procedure for accepting and handing over the goods, terms of settlements between the parties, etc.

In this contract, for fruitful cooperation and avoiding disagreements in the process of concluding the contract, it is desirable for the parties to provide for the following:

- specify the specification and characteristics of each product unit;

- specify the expiration date of food products and recommendations for their storage;

- to indicate compliance of food products with technical requirements, state standards and norms;

- provide for the requirement to provide relevant certificates for the product;

- specify the requirement for accurate, reliable and understandable for the consumer labeling of goods;

- indicate the physical condition of the product. Information about the physical state (freeze-dried product, quick-frozen, concentrated, smoked, powdered, liquid, etc.) must accompany the name of the food product ;

- specify the list/quantity of ingredients. Includes all ingredients of a food product, listed in descending order of their mass fraction. In some cases, in percentages. Certain ingredients are indicated by the name of the category to which they belong, immediately followed by their name or index according to the European numbering system ;

- indicate special marks, such as "with GMOs", if the share of GMOs exceeds 0.9%. "Without GMOs", for confirmation of the absence of GMOs , the presence of allergens, instructions for use, etc.;

- indicate the method of product packaging that meets the manufacturer's technical conditions and protects it from damage and destruction;

- determine at whose expense product packaging, loading and unloading of goods will be carried out;

- specify the place (buyer's facility) where the delivery will be made;

- agree on the schedule and terms of deliveries (formulated as an appendix to the contract);

- agree on samples of the accompanying documentation.

The requirements for the labeling of food products must comply with the Law of Ukraine 2639-VIII "On information for consumers regarding food products" .

Delivery in batches and upon request

During the conclusion of the contract for the supply of food products, the parties determine the model of supply. These can be deliveries in batches or deliveries upon request.

In case of choosing deliveries in batches, all information about the products included in the batch, their quantitative and qualitative characteristics, the date and frequency of such deliveries are indicated in the contract.

If the order delivery model is chosen, then the delivery is preceded by the customer drawing up the order and sending it to the supplier. The application must also specify the quantitative and qualitative characteristics of the goods to be delivered, as well as the date and terms of delivery.

In this case, the terms of submission of the application by the buyer, the term of delivery by the supplier, and add a sample application to the contract, which is an integral part of it, must be specified in the supply contract.

Parties to the supply contract

The parties to the supply contract are the supplier (seller) and the customer (buyer).

Suppliers and buyers can be legal entities and natural persons-entrepreneurs who are subjects of economic activity and registered as such in accordance with the procedure established by law.

The supplier under the contract can also be legal entities - non-residents.

DDP / Delivered Duty Paid / Delivery with payment of duties

In cases where we deal with foreign suppliers, the provisions of DDP Incoterms 2020 (Delivered Duty Paid) are applied to the delivery contract.

These provisions provide that the supplier fulfills his obligations under the foreign trade contract when he hands over the products to the buyer ready for unloading at the designated point and for customs clearance both on export and import.

At the same time, the cost of transportation to the designated place, all possible expenses related to customs clearance in both countries, transit through the territory of a foreign state, payment of customs warehouses in case of delays in registration are paid by the seller. Only unloading upon arrival remains the responsibility of the buyer (unless it is transferred by the seller as part of the foreign trade agreement).

If it is necessary to transfer the customs clearance or the payment of some taxes in the country of arrival to the buyer (due to the peculiarities of the legislation or for other reasons), this should be noted in the foreign trade contract as a separate item.

All risks until the moment of delivery of the consignment for unloading to the buyer at the designated point are borne by the seller.

The DDP price means that the contractual (written on the invoice) price includes the final cost of the products, taking into account the costs of customs clearance, the payment of all duties and taxes, as well as the cost of delivering the products to the designated point.

A supply contract related to a government order

Relations related to the state order are regulated by the Law of Ukraine "On Supply of Products for State Needs" dated December 22, 1995 and the Resolution of the Cabinet of Ministers of Ukraine "On the Procedure for Forming and Placing State Orders for the Supply of Products for State Needs and Control" issued on its basis on their implementation" dated February 29, 1996. State customers, according to the Law, are ministries, other central bodies of the state executive power of Ukraine, the government of the Autonomous Republic of Crimea, regional, Kyiv and Sevastopol city state administrations, state organizations and institutions authorized by the Cabinet of Ministers of Ukraine to enter into state contracts with executors of state orders. State customers have the right, on a contractual basis, to delegate part of their functions to relevant enterprises, institutions and organizations under the conditions determined by the Cabinet of Ministers of Ukraine.

In turn, the executors of the state order are economic entities of Ukraine of all forms of ownership, which manufacture and supply products for state needs in accordance with the terms of the concluded state contract.

State customers, based on the interests of the state, conclude a state contract (agreement) with the executors of the state order, independently determining its terms, except for those arising from the state order or provided for by current legislation.

For executors of a state order based entirely or partially on state property (state enterprises, institutions and organizations, joint-stock companies in the charter capital of which a controlling block of shares belongs to the state, leased enterprises based on state property), as well as for subjects of economic activity of Ukraine of all forms of ownership - monopolists on the relevant market of products, state orders for the supply of products are mandatory, if the execution of the state order does not cause losses to the specified performers of the state order.

In case of unjustified refusal of such an executor to conclude a state contract, if there are technical possibilities for its execution, the executor shall pay to the state customer a fine in the amount of the value of the state contract.

Disputes arising between the state customer and the executor of the state order during the conclusion of the contract, making changes to it in the process of execution, as well as regarding compensation for damages, are considered by commercial courts in accordance with the current legislation of Ukraine.

You can draw up and download a supply contract template using the link , or use the extended functionality of the system in terms of keeping a register of counterparties, generate a contract, deed, invoice, filled with data and sign with a qualified electronic digital signature.