The need for complex work on the prosodic aspect of speech. Game exercises that develop the prosodic side of the speech of preschoolers

Like a bolt from the blue, this document appeared - the Draft Resolution of the Plenum of the Supreme Arbitration Court on the freedom of contract and its limits. It is not often that drafts of such documents appear that can become the basis for all private law. And, it seems, on the one hand, what can practice say radically about the principle of freedom of contract? On the other hand, in practice there are quite a few problems with unnamed, mixed contracts and even with the very understanding of this principle. But how the “pancake” came out is a completely different question ...

I have never been a "letter". But there must be a limit to everything. Although, in order.

“The norm that defines the rights and obligations of the parties to the contract is evaluated by the court based on its essence and the goals of legislative regulation.” What is the "essence" of the norm? Are the goals of legislative regulation laid down in the norm related to its essence or not? Judging by the text of the Project, no. Why is it not written directly: the norm is evaluated on the basis of a literal interpretation, the words and expressions contained in it, and legislative purposes? Fear of overweight in favor of formal logic? And it would correspond to Article 431 of the Civil Code of the Russian Federation. Should there be different principles of interpretation of the rules of law and the provisions of the treaty? But what if the “essence” of the norm contradicts the legislative goals? And where can I find a compendium of all legislative goals? And the legislative goal is the goal of the ruling party? Or the purpose of the developers of the draft law? Is there really one clear purpose in the legislative process?

Not a few questions, right? And there are even more of them. I wholeheartedly support the introduction of such a criterion for the interpretation of norms as the goal of legislative regulation (although the term “goal” is correct here?). But such formulations can only lead to confusion, not uniformity of practice.

In relations between entrepreneurs, it is allowed major degree contractual freedom than in the relationship between entrepreneurs and consumers or in the relationship of citizens among themselves. The idea is not new, in general practice follows this rule. As an example - arbitration clauses and rules of jurisdiction in consumer contracts. Although, the practice of courts, albeit of general jurisdiction in the Sverdlovsk region, proceeds from the possibility of including provisions on contractual jurisdiction in a consumer contract.

And what is the status of the Project itself? practical value is? And what is a "degree" of contractual freedom? I can clearly compare the degree of freedom in pants and shorts, but not in hypothetical consumer and business relationships. Another dangerous provision that could potentially lead to unreasonable restriction of freedom of contract in other respects than business.

Looking ahead: the same norm can be dispositive for business relations, and imperative for consumer relations (see paragraph 5).

That's not how they taught me at the law academy. Everyone, not just civilists. It was said that an imperative norm is a norm in which a rule is directly fixed and the possibility of other behavior is not stipulated, including the possibility of establishing a different rule in a contract that is different from the law. The direct fixing of the rule in the norm meant for us, the students, that the norm does not necessarily have to contain exactly the PROHIBITION (in the form like: “forbidden”, “the agreement is void”, “it is not allowed” to establish other rules. The project proceeds from the fact that a norm is imperative if it directly prohibits the establishment of another rule, and if the norm contains a rule, but there is no direct prohibition on the establishment of another rule by the contract, then it can be dispositive! shuddered.

However, this is not all. According to the logic of the Supreme Arbitration Court of the Russian Federation, the norm may become, based on the goals of legislative regulation, imperative only for one party - the stronger one in the contract (see the exact wording in the Draft). That's it!

And further. Despite the absence of a direct prohibition in the norm, it can suddenly become imperative if the court establishes that the rule established in it, based on the same goals of legislative regulation, ensures the protection of legally protected interests (very different, the list is not closed).

And it is possible and so: the imperative nature of the norm may follow from the very essence of the contract.

Directly some attempt to subvert the formation of an adequate sense of justice of the entire legal community. I wonder how many times the effect of the abuse of these provisions will be greater than the effect of freedom of contract?

Here too: based on the Draft, the parties may exclude the application of a provision of the law that does not directly contain a prohibition on establishing a different condition. But here you can fly by: the court may recognize such an exception to the application of a provision of the law as unacceptable if it identifies those very legislative goals in the relevant norm.

From all this, dispositive norm, this is the norm:

My humble opinion: under such criteria the number of dispositive norms in the Civil Code of the Russian Federation, although not equal, tends to zero. Or shall we argue?

And what does the Project envisage in case of abuse of all these dangerous tools? Everything is logical - article 10 of the Civil Code of the Russian Federation. The very dead position that the courts in Russia are afraid to apply.

The rules on unnamed contracts and mixed contracts are quite simple and obvious, so they do not cause such emotions. The relevant rules on other contracts may apply to mixed contracts. directly, and to the unnamed - Similarly.

When applying the rule by analogy to an unnamed contract, the court motivates the decision to apply the analogy, and significant criterion for such a case are the legally protected interests of any party to the contract.

Also allowed the question of the contradiction of special laws of the norms of the Civil Code of the Russian Federation. The priority of a special law over a code is possible only when:

1. They are adopted in accordance with the Civil Code of the Russian Federation (the concept of "compliance" needs to be clarified, because if the norm already contradicts the code, then where is the compliance?);
2. The provisions of the Civil Code of the Russian Federation allow for the possibility of other regulation in a special law or other legal acts.
Both criteria are applied together.

An interesting rule of the Draft is about the application of exemplary conditions as customs if they comply with Article 5 of the Civil Code of the Russian Federation, even if the parties did not agree that they would comply with the exemplary conditions, and the rule of law does not establish a specific rule.

Another bomb: if one of the counterparties of the contract was put in a difficult position regarding the possibility of agreeing on its terms, then this counterparty may receive the right to use the rules on the accession agreement, requiring amendment or termination of the agreement. Of course, if the balance of interests was violated "in a significant way." Although, if such a counterparty - the violator provides evidence that, in contrast, another draft agreement was provided, no longer in his favor, then Magic power the provisions on the possibility of applying the norm on adhesion contracts disappear.

And the last dangerous rule. It concerns the interpretation of the terms of the contract. If the term of the contract cannot be interpreted in accordance with the rules of Article 431 of the Civil Code of the Russian Federation, then it is interpreted in favor of the party on whose draft the contract was concluded or the term was agreed. Why is it dangerous? The fact that the party that represents the project is, as a rule, the stronger and more protected party. Maybe for the interpretation of the condition it is more important how the party to whom the project was offered understood and could understand this condition? Well, it's just a suggestion. But the balance of interests of the Supreme Arbitration Court of the Russian Federation in this situation has clearly shifted not for the better.

With good intentions, the road can go the wrong way ...

I wonder why this fuss with the draft fundamental regulations on the eve of the unification of the courts?

Publicum jus est quod ad statum rei romanae spectat, privatum quod ad singulorum utilitatem .

Public law is that which pertains to the position of the Roman state; private - which refers to the benefit of individuals.

Ulpian

March 14, 2014 The Supreme Arbitration Court of the Russian Federation gave the legal community the opportunity to radically change the idea of ​​how to read and apply the norms of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation). We are talking about the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 “On freedom of contract and its limits”.

A branch of private law, colored by imperative methods of legal regulation ...

We are accustomed to the fact that civil law is the first branch in the list of examples related to private law, as opposed to public law. From the first courses of the university, every lawyer learned that the private law branches bear their name because of the vocation to regulate relations not related to public interest, relations arising between persons, as well as the fact that hallmark private law industries favors the method of dispositive regulation. The dispositivity method is a kind of synonym for the word "freedom", - speaking of civil law, - freedom to choose the most effective tools for the comprehensive implementation of the conditions concluded between the parties of the contracts.

The main source of civil law for us today is the Civil Code of the Russian Federation of 1994, postulating freedom of contract one of the main principles of the industry. At the same time, there is an opinion that the rules governing certain types of contracts in the Civil Code of the Russian Federation are distributed approximately in the following proportion: about 1600 (!) imperative and only 200 optional. Is it possible?

History in three words

The answer to the question posed sounds very simple and lies in political history countries. Is it possible that the main source of the basic private law branch is woven from imperative prescriptions? Yes, because a crystal bridge across a river can be built in one night only in a fairy tale, and legal consciousness can be rebuilt in real life takes decades. The ideology of the planned economy of the Soviet period did not imply the development of civil law relations of a private law nature. The formulation of the prevailing principle of regulation “everything that is not permitted is prohibited” is widely known, and the civil law of that period was no exception.

What happened when the Civil Code of the Russian Federation was adopted in new country in 1994? The authors of the project made an attempt to place in the text of the law the so-called markers of dispositive and imperative norms, which we all know very well. Thus, the addition to the norm that "any other agreement is void" is an example of a marker of imperativeness, while the specification of the norm by means of the phrase "unless otherwise provided by agreement of the parties" is an example of a dispositivity marker. Everything is very clear here, BUT (!) The norms marked with markers in the code are a minority, while the legislator remained silent regarding most of the norms, thereby preparing fertile ground for strengthening the familiar and understandable principle “everything that is not allowed is prohibited” or “everything that is clearly not allowed - prohibited. Judicial practice, the system of thinking of practicing lawyers - everything has taken the usual trend of imperativeness, simple and understandable, there is only one problem - it does not fit well with a market economy and the principle of freedom of contract. All norms not marked with dispositive markers a priori were recognized as imperative. This is how the practice has developed. Did the developers of the GC project want this? The most offensive thing is that it is not, and an analysis of the materials of those years on the preparation of the project, as well as an interview with a participant in that process, confirm this. It is not possible within the framework of this message to elucidate in detail the question of the real goals laid down in a hurry when preparing the project by the authors, however, it is possible to state that the vaguely traced plan to give freedom in the most careful way was doomed to failure. While the familiar understanding of the narrow limits of what is permitted, formed over the years, extended a helping hand and put everything in the wrong places in the minds of law enforcers.

Why did the regulation on freedom of contract appear, what is it about, and how to apply it?

Answer to the question why did the decision of the plenum appear on freedom of contract is also formulated very simply. Because the developing market relations required more and more opportunities to vary the inert formulas prescribed by the text of the Civil Code, and, as we have just found out due to established practice, are perceived as imperative. The turnover made its own adjustments to the foundations of the Soviet consciousness, entrepreneurs allowed deviations from the rules formulated in the norms without markers in the texts of concluded contracts, which in a huge number of cases led to sad consequences - contesting transactions on formal grounds. The turnover stood its ground and gradually, in a number of cases, the Supreme Arbitration Court of the Russian Federation began to defend the right of the parties to agree on a different distribution of rights and obligations than was indicated in the norm, which did not contain a discretionary marker. The formation of such a practice on some issues gave ground for reflection, and gradually led to the preparation of a decree on freedom of contract.

What is the ruling about? In three words, the idea of ​​the document is expressed in giving the courts a very wide scope of powers to interpret the norms without markers. The resolution is intended to explain and finally consolidate in practice the understanding that if a norm does not contain an attribute (marker) of optionality, this does not mean that it is a priori imperative. An interesting and important fact is that in the event of a dispute, the court, which decided to interpret the norm without a marker, as an imperative, still has the right to do so, but must justify his decision and explain what interests and values ​​can justify the need for an imperative qualification and, as a consequence, the restriction of freedom of contract.

How to apply the resolution of the plenum to a practicing lawyer? In paragraph 3. Regulations are given an exhaustive list of grounds leaving the courts to interpret the rule as peremptory:

Protection of the public interest;

interests of third parties or a weak party to the contract;

Prevention of a rough balance of interests of the parties.

These grounds act as a kind of hint to any lawyer who agrees on the terms of a particular contract. There is no need to proceed from an a priori prohibition to agree otherwise, unless such a possibility is directly established by the norm of the Civil Code. It is possible, having previously assessed the conditions to be included in the contract, for compliance with the above criteria.

The decree on freedom of contract is a giant step towards the restructuring of consciousness, towards formulating and strengthening in practice, and not in words, the principle of freedom of contract, the principle “everything that is not forbidden is allowed”. The Crystal Bridge has been built, and our ability to enrich and complicate contractual structures without looking back and without fear of subsequent challenge depends on whether the practice develops the principles embodied in the document under consideration, to formulate them as freely as is done in other jurisdictions, on the basis of whose legislation, now in Russia is great amount agreements. I would like to believe that the crystal bridge between the banks “forbidden, everything that is not allowed” and “everything that is not forbidden is allowed” will eventually turn into stone.

Additional sources:

Karapetov A.G., Bevzenko R.S. Commentary on the norms of the Civil Code on certain types of contracts in the context of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On freedom of contract and its limits” // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2014.№8.

Karapetov A.G., Bevzenko R.S. Commentary on the norms of the Civil Code on certain types of contracts in the context of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation “On freedom of contract and its limits” // Bulletin of economic justice of the Russian Federation. 2014.№9.

Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 “On freedom of contract and its limits”.

Braginsky M.I. On the normative regulation of contracts // Journal Russian law. 1997. N 1. S. 72

Bevzenko R. Resolution on freedom of contract. How to use it to draw up an effective and impeccable contract // Lawyer of the company. 2014. №6.

Interview with the Deputy Chairman of the Council research center private law under the President of the Russian Federation, Dr. Yu. n., professor Alexander Lvovich Makovsky//Arbitration practice.2014.№2. pp.16-23.

Olga Cherkashina-Schmidt - Leading Legal Counsel of Alta Via

Photo from www.rstnw.ru

The Economic Collegium of the Armed Forces, guided by the explanations of the Supreme Arbitration Court on the freedom of contract, decided that the parties have the right to provide in the contract for a fee for early and unmotivated withdrawal from it. Lawyers share this approach, but three lower instances considered differently: compensation was called a fine, which means it contradicts the legal nature of the penalty.

A month ago, the Economic Collegium of the Supreme Court of the Russian Federation confirmed the possibility of establishing in the lease agreement compensation for its early and unmotivated termination (See). She did this as part of a dispute between Mercator Kaluga LLC, a tenant of non-residential premises in Kaluga region, and its lessor LLC "Borovsky plant agroplastics" (hereinafter - the Plant) (No. A40-53452/2014). This approach Konstantin Galin, Senior Associate, Nektorov, Saveliev & Partners, considers it very relevant in the current crisis. "Landlords are trying to keep existing tenants by lowering rental rates, but in return they want to guarantee a long lease term or receive compensation for unreasonable termination of the contract," he explains.

"Contradicts the legal nature of the penalty..."

The dispute itself began with the fact that in April 2012 the parties entered into a lease agreement for a period of five years, under the terms of which Mercator Kaluga paid the Plant 1.771 million rubles. deposit. At the same time, in the contract, the counterparties recorded that this amount is not a rent payment for the first months, but "is retained by the landlord as a guarantee of the tenant's proper fulfillment of obligations." So, if "Mercator Kaluga" wants to terminate the contract before the expiration of its term for reasons not specifically specified, the Plant leaves a deposit for itself "as a penalty." Moreover, if the Plant refuses the transaction, it will have to return the deposit in double size.

According to the "early" scenario, everything happened: At the beginning of 2014, Mercator Kaluga terminated the contract on its own initiative, and the Plant, in turn, withheld the deposit. However, according to Mercator Kaluga, a unilateral refusal to execute a transaction is not a basis for imposing a measure of liability in the form of a fine. The company went to challenge the terms of the contract in court and achieved its goal: the provision was declared invalid.

All three instances qualified the fine for refusing to deal as a forfeit, establishing that it contradicts its legal nature - "as a measure of responsibility applied for violation of civil rights." Early termination of the contract unilaterally is not a civil violation (improper performance of obligations), but is due to the tenant exercising the right granted by the contract, the courts reasoned, which means that the established "contract termination mechanism" is contrary to the norms of civil law.

A norm without a prohibition should be considered as dispositive

But this approach was corrected by the Supreme Court, where this dispute reached on the complaint of the Plant: the economic board (Elena Borisova, Elena Zolotova and Olga Kiseleva) canceled all acts of lower instances and refused the claim of Mercator Kaluga.

The trio of the Armed Forces explained their motives in a recently published definition. First of all, the judges referred to Art. 421 of the Civil Code of the Russian Federation, where the principle of freedom of contract is enshrined, as well as articles 619, 620 of this law [early termination of the contract at the request of the landlord / tenant], which, as they noted, do not contain a ban on early termination on other grounds - not provided for in these norms. Thus, the parties have the right to establish both the grounds and conditions for premature refusal of the transaction, the economic board reasoned: in particular, to condition the right to unilateral refusal of the obligation by the need to pay a certain amount of money to the other party, as was the case with the Plant and Mercator Kaluga ".

The lower authorities also made a mistake in qualifying the disputed amount, the economic board reasoned. This is not a penalty, but compensation that must be paid by one of the parties upon withdrawal from the contract, is explained in the definition of the Supreme Court. And the fact that it is called a fine in the contract does not change its essence - to give any party the opportunity to terminate the contract without giving reasons, and not to hold accountable.

The judges of the Supreme Court also referred to the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16 "On the freedom of contract and its limits", according to which, if the norm does not contain an explicit prohibition on establishing the terms of the contract, different from those provided for in it, and there are no criteria imperative, then it should be regarded as dispositive. In this case, the difference between the terms of the contract and the content of this norm in itself cannot serve as a basis for recognizing them as invalid. Since the Civil Code of the Russian Federation allows any means of securing obligations, there are no grounds for invalidating the disputed provision of the lease agreement between the Plant and Mercator Kaluga, which is aimed at ensuring that the tenant fulfills its conditions and guarantees the legitimate interests of the landlord, the Troika concluded.

The economic board also focused on the fact that the lease agreement was signed by counterparties without comments or objections from Mercator Kaluga. And accordingly, the "troika" reasoned, the company's statement about the invalidity of the disputed condition after sending a notice of early termination without indicating any motives is aimed at non-fulfillment of the obligation that has arisen between the parties.

The new principle of estoppel

This is the definition of the Economic College - significant step towards the liberalization of the Russian law of obligations, believes Galin The Supreme Court supported the general position of the Plenum of the Supreme Arbitration Court on the mechanism for determining the imperative or dispositive nature of the norm of the Civil Code, based on the purpose of legislative regulation, and not from a literal reading of the wording of the norm of the law, he says. In addition, the Economic Board applied the principle of estoppel, new to Russian civil law, Galin believes. "The Sun pointed out that the argument about the invalidity of the condition on the payment for unmotivated termination of the contract is aimed at non-fulfillment of the obligation that arose between the parties, since, when concluding the contract, the tenant knew about this condition, but did not make any comments or objections," he explains.

The approach of the Economic Collegium is also supported by Yulia Bobrova, a lawyer in the litigation practice of the law office "Egorov, Puginsky, Afanasiev and Partners". She notes that now the ability to establish a fee for waiving a contract is directly provided for in the Civil Code of the Russian Federation - in paragraph 3 of Art. 310 new edition effective from 1 June 2015. "This institution is borrowed from foreign law during the reform of the Civil Code and is focused on maintaining a balance of interests of the parties in case of unilateral refusal of the contract, which is usually declared in case of violation of the contract by the counterparty," she says. freedom of contract, comments Artem Kukin, partner of Infralex.

The break-up fee is an important legal instrument widely used in developed market economies, and is also divided Pavel Khlyustov, head of department for resolution of litigation by the Barshchevsky and partners". "But the position of the lower courts indicates that the majority of our judges are not yet ready to adequately perceive the instruments of contract law generally accepted in world commercial practice," he laments.

In early April, the official website of the Supreme Arbitration Court of the Russian Federation appeared new document- Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 No. 16 “On freedom of contract and its limits” (hereinafter - Decree No. 16). Looking ahead, let's say that it contains a lot interesting provisions. BUT main idea comes down to providing unprecedented freedom in determining the terms of the contract. Let's figure out what judges mean by freedom of contract and what are its limits.

In Russian private law, the statement “everything that is not forbidden is allowed” is widely declared. In fact, judicial practice often follows the path of restrictions: "What is prescribed by law is allowed." In other words, anything that is not explicitly allowed is prohibited. However, the current state of affairs requires more freedom than the established judicial practice and the usual interpretation of the norms of the Civil Code of the Russian Federation give. In addition, there are often situations when the terms of the agreement are not clear enough, when the interests of one party are infringed or one of the counterparties abuses the freedom of contract.

The Plenum of the Supreme Arbitration Court of the Russian Federation tried to resolve all these problems in Resolution No. 16. The essence of the document is to expand freedom in concluding contracts. Thus, a number of criteria are established when a rule prescribed by law can be changed or canceled by an agreement. By complying with them, the parties will be able, at their discretion, to amend the rules that have previously been used uniformly. In particular, it becomes possible to establish such significant conditions for business as full compensation for losses by the customer in case of his refusal from the contract for the provision of services, the ability to fix the criteria for the materiality of the violation in supply contracts, and to tie the deadlines for the completion of work to the receipt of an advance payment. Moreover, there are a lot of options for changes and modifications of legal norms.

The red thread in the text of Resolution No. 16 is the idea that the courts, when resolving disputes, rely primarily on the meaning of the legal norm, focus on the essence of the norm and the purpose of regulation, and not just on the legislative wording. Thus, the supreme arbitrators actually change the approach to interpreting the terms of the contract, going beyond the literal understanding of the law.

I must say that this approach is fully justified, because the legislation is imperfect, and the wording of the norms is not always successful. And if the courts, considering cases, proceed from a literal understanding of the law, then the decisions may well turn out to be unfair. At the same time, the West has long recognized that in some cases it is possible to deviate from the letter of the law, from the results of the grammatical interpretation of the norm in favor of the spirit of the law. And this approach works productively in many European countries. Now this practice will take root on Russian soil.

In addition to the problem of targeted interpretation of legal norms, Resolution No. 16 addresses the following issues:

• on permissive and prohibitive norms (clauses 1-4);
• on the rules for applying legal norms to unnamed contracts (clause 5 of Resolution No. 16);
• on the application of exemplary conditions (standard documentation), which are developed by self-regulatory organizations and published in the press (clause 7 of Resolution No. 16);
• on unfair contractual terms (clauses 9, 10 of Decree No. 16);
• on the interpretation of the terms of the contract by the court (clause 11 of Resolution No. 16).

Prohibitory and permissive norms

"Prohibitive" (mandatory) are those rules that are not allowed to be changed by agreement of the parties. “Permissive” (dispositive) norms are those that expressly allow the parties to establish conditions in the contract that are different from them. Prior to the adoption of the document, permissive norms were in most cases recognized by the phrase "unless otherwise provided by the contract." The rest of the norms were recognized as imperative.

In European law, a norm is imperative in two cases: either when the text of the law expressly states this (for example, “otherwise agreement is invalid”), or when it is obvious to the court that the norm is implied to be imperative.

The Plenum of the Supreme Arbitration Court of the Russian Federation followed the example of European law and indicated cases when the norms are recognized as prohibitive:

1. if they contain an explicit prohibition on the establishment of a different rule by agreement of the parties. Examples of a direct prohibition are the following:
   • an indication that such an agreement is void, prohibited or not allowed (clause 2 of article 461, clause 2 of article 977 of the Civil Code of the Russian Federation);
   • an indication of the right of the parties to deviate from the rule contained in the norm only in one direction or another (clause 2 of article 759, clause 2 of article 973 of the Civil Code of the Russian Federation);
   • unambiguous expression of the prohibition in the norm otherwise;
2. if, based on the purposes of legislative regulation, it is necessary for:
   • protection of particularly significant legally protected interests of the weak party to the contract (in transactions with consumers, with monopolists, etc.), the interests of third parties or public interests;
   • preventing gross violation balance of interests of the parties;
   • preventing distortion of the essence of the legal structure, when the prohibitive nature of the norm follows from the essence of legislative regulation;
   • prevention of abuse of freedom of contract.

Tests for determining the prohibition of a norm work even when it has an explicit permissive attribute (“unless otherwise provided by the contract”).

Note

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A party that has fewer opportunities (resource, economic, other) to exercise its right, and also has a smaller set of resources to protect its rights, is considered weak.

The Plenum of the Supreme Arbitration Court of the Russian Federation gives several examples of norms that meet the criteria for prohibition (clause 3 of Resolution No. 16):

• paragraph 2 of Art. 610 of the Civil Code of the Russian Federation on the right of each of the parties to a lease concluded for an indefinite period to refuse it;
• paragraph 1 of Art. 463 of the Civil Code of the Russian Federation on the right of the buyer to refuse to fulfill the contract of sale if the seller does not transfer the sold goods to the buyer, etc.

When there are no grounds for recognizing a norm as prohibitive, it remains for the court to recognize it as permissive. If the norm does not prohibit the parties from including in the contract a condition that differs from the rules contained in it, and there are no imperative criteria described above, the parties have the right to change the rules established by the norm by agreement, or completely exclude their application. Such a norm will be permissive, and the terms of the contract cannot be invalidated as violating the requirements of the law (clause 2, article 168 of the Civil Code of the Russian Federation).

For example, Art. 475 of the Civil Code of the Russian Federation on the consequences of transferring goods of inadequate quality to the buyer does not exclude the right of the parties by their agreement to provide for other consequences of this violation, including in a different way to determine the criteria for the materiality of defects in the goods or to supplement those rights that are granted by this article to the buyer.

Perhaps the most valuable example given in paragraph 4 of Decree No. 16 is the solution of an old problem about the customer's right to refuse a service contract (Article 782 of the Civil Code of the Russian Federation). The supreme arbitrators decided that the parties have the right to agree on a different regime for determining the consequences of withdrawal from the contract or a different procedure for exercising the right of withdrawal than provided for in Art. 728 of the Civil Code of the Russian Federation. Counterparties may establish that both parties, and not only the contractor, compensate for the losses; replace the reimbursement of damages or expenses actually incurred by payment of a fixed amount. By the way, not so long ago, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that Art. 782 of the Civil Code of the Russian Federation (Decree of 07.09.2010 No. 2715/10), but now the court considers this norm permissive.

One more situation. According to paragraph 1 of Art. 476 of the Civil Code of the Russian Federation, the seller is liable for defects in the goods if the buyer proves that they arose before its transfer. Following the instructions of the supreme arbitrators, the parties may:

• exclude liability;
• establish that the buyer is released from the obligation to prove the causes of defects;
• provide that the seller is responsible for accidental defects.

It turns out that now the parties can change such rules with greater confidence, if the criteria of imperativeness listed in Decree No. 16 are not violated. The risk of the contract being invalidated will be minimal.

Before the adoption of Resolution No. 16, in practice everything was simple, clear and unambiguous. If the condition of the contract is prescribed by a rule of law, which is applied when the parties have not established otherwise in their agreement, then this is a permissive rule (paragraph 2, clause 4, article 421 of the Civil Code of the Russian Federation). If the content of the terms of the contract is prescribed by law or other regulatory legal acts, the norm is prohibitive, and this condition cannot be changed by agreement of the parties (paragraph 1, clause 4, article 421, clause 1, article 422 of the Civil Code of the Russian Federation).

Here it is necessary to recall that there are rules in the legislation designed to protect specially protected interests. Thus, it is forbidden to use one's rights solely for the purpose of harming another person, to circumvent the law with an unlawful purpose, or to abuse the right, i.e. act knowingly in bad faith (clause 1, article 10 of the Civil Code of the Russian Federation). In Art. 169 of the Civil Code of the Russian Federation provides for the consequences of a transaction made with a purpose that is obviously contrary to the foundations of law and order or morality. She is deemed insignificant.

Article 16 of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Protection of Consumer Rights" is aimed at protecting the weak side - the consumer. It prohibits the imposition of an unnecessary product, i.e. condition the acquisition of some goods (works, services) by the obligatory acquisition of others.

The whole Federal Law - dated July 26, 2006 No. 135-FZ "On Protection of Competition" - protects public interests in the business field. The antimonopoly authority and the court have broad powers to deal with abuses of contractual freedom. For example, by a court decision, an agreement that violates antimonopoly requirements may be declared invalid in part or in full (subparagraph “b”, paragraph 6, part 1, article 23).

As can be seen, the use of the phrase “to protect especially significant legally protected interests” in Decree No. 16 is due to the presence in the legislation of the Russian Federation of rules that protect these very interests. With the introduction of this turnover, there is greater freedom in agreeing on the terms of the contract. In norms with a fuzzy legal nature, previously used unambiguously imperatively, now there is a chance to find discretion.

Restrictive interpretation of the law

The Plenum of the Supreme Arbitration Court of the Russian Federation sets new guidelines and criteria for the use of a restrictive method of interpreting optional or imperative norms of contract law.

With regard to the prohibition rules, the court may recognize that the prohibition on the agreement of the parties otherwise does not allow the parties to establish only conditions that infringe on the interests of the party whose protection the rule is aimed at (paragraph 2 of Resolution No. 16). We are talking about a deviation from imperative norms in favor of the weak party under the contract (for example, the consumer).

So, part 4 of Art. 29 federal law No. 395-1 of 02.12.1990 “On Banks and Banking Activity” establishes a ban on a unilateral change by a credit institution of the procedure for determining interest under an agreement concluded with a “physicist”. But the court allows a change in this order, as a result of which the amount of interest on the loan is reduced.

Another example. Article 310 of the Civil Code of the Russian Federation allows the agreement in the contract of the right to unilateral change or unilateral withdrawal from the contract only in cases where the contract is concluded in connection with the implementation by both parties entrepreneurial activity. The purpose of this rule, according to the Plenum of the Supreme Arbitration Court of the Russian Federation, is to protect the weak side of the contract. Therefore, the court admits the possibility of granting the right to unilateral change or termination to a party that is not an entrepreneur.

At the same time, paragraph 3 of Resolution No. 16 admits that the freedom of the parties to use the permissive norm may be limited by reasonable limits: the essence of the norm and the goals of legislative regulation.

So, paragraph 2 of Art. 610 of the Civil Code of the Russian Federation provides for the right of each of the parties to a lease concluded for an indefinite period to unreasonably terminate the contract by notifying the other party about this one month in advance (three months in case of real estate lease). This rule does not contain an explicit prohibition to establish otherwise by agreement of the parties. But the court pointed out that the parties to such a lease agreement cannot completely exclude the right to withdraw from the agreement, since as a result of this, the transfer of property into possession and use would actually lose its temporary character. This conclusion follows from the essence of the legislative regulation of lease as an agreement on the transfer of property for temporary use (Article 606 of the Civil Code of the Russian Federation).

In accordance with paragraph 1 of Art. 463 of the Civil Code of the Russian Federation, the buyer may refuse to fulfill the contract of sale when the seller does not transfer the sold goods. Here, too, there is no explicit prohibition to provide otherwise in the treaty. For example, the parties may substitute the right to withdraw from the contract judicial order termination. However, according to the Plenum of the Supreme Arbitration Court of the Russian Federation, the contract cannot completely eliminate the possibility of its termination at the initiative of the buyer, when the seller refuses to transfer the sold goods to him. Such a condition would grossly upset the balance of interests of the parties.

In Decree No. 16, paragraph 1 of Art. 544 of the Civil Code of the Russian Federation. In accordance with it, payment for energy is made for the amount actually accepted by the subscriber, unless otherwise provided by legal acts or agreement of the parties. The supreme arbitrators consider that an agreement to the contrary is allowed only when it is impossible to determine the actually received amount of energy in accordance with accounting data, and the law or other legal acts do not contain a procedure for determining such an amount. Thus, the Plenum of the Supreme Arbitration Court of the Russian Federation protected the public interests provided by government regulation tariffs.

Practical Perspectives

Of course, when agreeing on the terms of contracts, counterparties must be guided by the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation. If the parties decide to “correct” the rules that cannot be changed, or exclude the application of an imperative norm, then the contract or its individual terms may be declared invalid (Article 168 of the Civil Code of the Russian Federation).

It should be noted that the implementation of Decree No. 16 may cause certain difficulties. Only persons with legal education(judges, company lawyers). And that's not all. For others, this may be difficult.

To avoid the risk of recognizing the terms of the contract as invalid, the parties will have to use the services of professionals when drafting contracts. But the opinions of lawyers in applying the uncertain legal norms of the contract may differ.

But as judicial practice develops, conditions will be created for expanding the boundaries of freedom of contract. The provisions of Decree No. 16 encourage the recognition of a permissive norm when there are no obvious signs of a prohibition. In the event of a dispute about the nature of the norm, the court must indicate how the essence of legislative regulation, the need to protect certain interests or prevent a gross violation of the balance of interests of the parties predetermine the imperativeness of the norm or the limits of its optionality (paragraph 3 of Resolution No. 16). However, the decisions of Russian courts can be unpredictable.

On the one hand, Resolution No. 16 provides arbitrators with a mechanism for more precise and individualized dispute resolution. On the other hand, a higher level of qualification will be required from judges, and the limits of judicial discretion are expanding.

Unnamed Treaties

An important clarification is given on the old question of unnamed (not provided for by law) contracts. Decree No. 16 correctly states that when assessing whether a contract is unnamed, it is not the name that is taken into account, but the subject of the contract, the actual content of the rights and obligations of the parties, the distribution of risks and other conditions.

The Plenum of the Supreme Arbitration Court of the Russian Federation suggested that the courts take into account that for unnamed contracts, in the absence of signs of a mixed contract in them (clause 3 of article 421 of the Civil Code of the Russian Federation), the rules on certain types of contracts for general rule do not apply. However, they can be applied by analogy with the law, if the relations of the parties are similar and not regulated by the agreement. At the same time, the application by the court of prohibitive norms to unnamed contracts is possible in exceptional cases, to protect the interests of a weak party, third parties, public interests or to prevent a gross violation of the balance of interests. The court must specifically indicate which interests it is protecting in this case.

Thus, for non-named contracts in standard cases, only general provisions law of obligations ( section III Civil Code of the Russian Federation).

The operation of the law in time

In paragraph 6 of Resolution No. 16, the Plenum of the Supreme Arbitration Court of the Russian Federation copies the provision of paragraph 2 of Art. 422 of the Civil Code of the Russian Federation that new law applies to an already concluded contract only when it is expressly provided by law. The document clarifies that this provision applies to both prohibitive and permissive norms.

This conclusion follows from paragraph 2 of Art. 4 of the Civil Code of the Russian Federation. It says that the law as a whole applies to the rights and obligations that arose after its entry into force.

Approximate terms of the contract

Clause 7 of Decree No. 16 addresses the issue of the application of general conditions (in the decree they are called “exemplary conditions”). Approximate conditions may be developed by self-regulatory or other non-profit organizations and must be published for general access (Article 427 of the Civil Code of the Russian Federation).

Decree No. 16 solves the problem of the validity of standard documentation for contractual relations, which is especially common in the field of the securities market and financial instruments. In the contract, the parties may provide that certain conditions of the standard documentation are applicable to the relationship. The parties also have the right to change the terms of the documentation or exclude certain provisions.

The approximate terms of the contract are applied to the relations of the parties as business customs, if the contract does not contain a reference to them, and the term of the contract is not determined by the parties or a dispositive norm (clause 5 of article 421, clause 2 of article 427 of the Civil Code of the Russian Federation). Applicable exemplary terms must not conflict with the contract as a whole.

The Plenum of the Supreme Arbitration Court of the Russian Federation explained the effect of standard documentation in time. When certain conditions of the contract are determined by reference to exemplary conditions, then when making changes to them, the parties must be guided by the old version, unless otherwise agreed.

abuse of right

It is no secret that freedom of contract is often abused. And the courts quite often have to consider cases in which abuse, as they say, is obvious. These are pre-bankruptcy transactions, the withdrawal of assets, schemes aimed at non-fulfillment of obligations to the state (mainly tax) or creditors, etc.

The courts have the tools to deal with such abuses. These are already mentioned. 10 and 169 of the Civil Code of the Russian Federation, as well as Art. 179 of the Civil Code of the Russian Federation on the invalidity of a transaction made under the influence of fraud, violence, threats or adverse circumstances, art. 428 of the Civil Code of the Russian Federation (we will talk about it later), etc.

The Plenum of the Supreme Arbitration Court of the Russian Federation recommends that the courts deny the abusing party the protection of its right in whole or in part, or apply other measures provided for by law. This requires evidence that one of the parties is abusing its right arising from the terms of the contract, which is different from the permissive norm or excluding its application, or is abusing its right based on the prohibitive norm.

Unfair contract terms

Art. 428 of the Civil Code of the Russian Federation on the accession agreement. According to paragraph 2 of Art. 428 of the Civil Code of the Russian Federation, a party to an accession agreement, the terms of which deprive it of the rights usually granted under agreements of this type, or are clearly burdensome for it, may demand that the agreement be amended or terminated through the courts. It must be proved in court that these conditions are mandatory and the party does not have the opportunity to amend the contract, and joining the contract is forced and it can be concluded only by joining.

The weaker party, which is forced to accept a contract form developed by the counterparty, should be protected from unfair terms, even if these terms are not contrary to law, and the agreement is not an adhesion contract.

The unfair provisions of the contract, according to the court, are burdensome and significantly violating the balance of interests of the parties. These may include provisions:

• on the limitation of liability only in cases of intentional breach of contract;
• on exemption from liability for violations due to the actions of third parties;
• on payment of an excessive amount when exercising the right to unilateral termination.

In order for the counterparty to be entitled to protection from unfair conditions, it must be in a position that makes it difficult to agree on certain clauses of the contract. To determine the presence of free will when concluding a contract, the courts are invited to evaluate:

• the actual ratio of the negotiating capabilities of the parties;
• the level of their professionalism in the relevant field;
• competition in the relevant market;
• the fact that the acceding party has a real opportunity to negotiate or conclude a similar agreement with third parties on different terms, etc.

On the other hand, it is possible that unfavorable conditions are offset by advantages from other provisions of the contract or all agreements between these counterparties as a whole. Therefore, there is actually no violation of the balance of interests of the parties. And if so, then the clarification of the totality of all the conditions of the contract and the circumstances of the case remains at the discretion of the court.

It is important that the concept of unfair contractual terms can be applied not only to accession contracts. The court has the right to apply paragraph 2 of Art. 428 of the Civil Code of the Russian Federation to any other agreements, if it is established that the draft agreement was fully prepared by the party, and the counterparty was placed in a position that makes it difficult to agree on its individual terms. Moreover, protection can be granted even to a commercial organization that finds itself weak side contracts.

The supreme arbitrators recalled that no one has the right to take advantage of their bad faith behavior (clause 4, article 1 of the Civil Code of the Russian Federation). Therefore, the weak party to the contract has the right to declare the inadmissibility of applying unfair contractual terms on the basis of Art. 10 of the Civil Code of the Russian Federation or on the nullity of such conditions under Art. 169 of the Civil Code of the Russian Federation.

Interpretation of the terms of the contract by the court

When interpreting certain provisions of the contract, it becomes important which of the parties prepares the contract. One of the key innovations of Decree No. 16 is the establishment of the principle of interpreting the contract "contra proferentem" ("against the professional"). If the terms of the contract external sources(for example, business correspondence) and the use of conventional methods of interpretation (Article 431 of the Civil Code of the Russian Federation) do not allow the court to identify the meaning of the disputed condition and the general will of the parties, it must be interpreted against the developer, in favor of his counterparty.

Until proven otherwise, the person who has drawn up the contract is considered to be the party who is a professional in the relevant field. This is for example:

• bank - under a loan agreement;
• lessor - under a leasing agreement;
• insurer - under an insurance contract, etc.

But in business there are cases when, for example, a contract for the provision of services in which the contractor specializes is concluded on the basis of the customer's pro forma. This is typical for those cases when the customer has greater negotiating power (when concluding contracts between small firms and large corporations, in the field of public procurement, etc.). Then the interpretation of the controversial conditions "against the professional" is not appropriate. Therefore, the court must find that:

• the contract was concluded in a situation of clear inequality of negotiating opportunities;
• the weaker party lacked the ability of the contract to negotiate individual terms;
• the text of the disputed condition was not the subject of individual agreement or compromise.

When recognizing the “contra proferentem” principle, the counterparty who agreed with the proposed wording and does not have any real opportunities object, it would be quite reasonable to expect that, in the event of a dispute, the condition would be interpreted in his favor. This will most often correspond to the balance of interests of the parties and the idea of ​​protecting the weak side of the contract. In addition, such an interpretation of ambiguous conditions leaves chances that, as a result, the meaning of the disputed condition recognized by the court will correspond to the true will of the parties.

Such a commonly accepted method of interpretation can have an extremely important impact on the practice of contract work. If now many companies draw up their contracts carelessly, without thinking about the meaning of the conditions and without caring about their clarity and consistency, then under the conditions of the introduced principle, the situation will begin to change. If any ambiguities remain in the developed draft contract, it is the developer company that will suffer from them, since the disputed condition will be interpreted against it. Perhaps it makes sense to mention in the contract which of the parties prepared the project and how the contract should be interpreted in case of ambiguities.

In the long term, this approach will stimulate the improvement of the quality of contractual work, the use of the most clear and understandable phrases and expressions in contracts.

A few words about government contracts

During the procurement, the customer develops documentation, incl. draft contract, and includes in it the conditions on which relationships with a potential supplier (contractor, performer) will be built.

Article 105 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” gives the right to challenge any provision of the procurement documentation with the antimonopoly authority. In practice, officials often make decisions on complaints based on formal signs of compliance with the law. The Antimonopoly Service does not assume responsibility for assessing the customer's compliance with the principles of civil law, such as reasonableness, proportionality, etc., therefore, in the absence of obvious violations of the law, the complaint is recognized as unfounded.

For example, the contract may specify the delivery time - three days from the date of its conclusion. But if the volume of goods is large, then in fact it can be delivered by a company that knew about the tender before posting information about the purchase, agreed on the terms with the customer in advance and is ready for delivery.

Since the administrative decision in such situations is usually not in favor of suppliers, they are forced to bid and conclude contracts on unfair terms. This logically leads to the question of freedom of contract, its limits and other evaluation categories.

The customer, exposing his conditions, is formally right. The procurement party may or may not participate in the procedure, independently assessing its own risks. But it is necessary to fight the imposition of unfavorable contract terms by customers. We believe that the documentation can be challenged in the arbitration court, referring to Resolution No. 16.

findings

On the whole, Decree No. 16 meets the principle of fairness and is progressive in nature, bringing Russian legal reality closer to European standards. In our opinion, the document removes excessive and unjustified restrictions on freedom of contract. The plenum of the Supreme Arbitration Court of the Russian Federation gives a chance to fully enter into life the thesis "everything that is not prohibited is allowed."

Paragraphs 5-11 of Decree No. 16 are reduced, in essence, to the need for the courts to take into account the interests of the weak party to the contract, which will have the right to declare the inadmissibility of applying unfair contractual terms on the basis of Art. 10 of the Civil Code of the Russian Federation or on the nullity of such conditions in accordance with Art. 169 of the Civil Code of the Russian Federation. The court tried to resolve the long-standing problem of guarantees weak side concluding an agreement with a professional entity.

We also note that the Plenum of the Supreme Arbitration Court of the Russian Federation did not specify the possibility of revising, due to new circumstances, judicial acts adopted in violation of the interpretation that was made in Decree No. 16.

Game exercises that develop the prosodic side of the speech of preschoolers

Preschool age, as you know, is a period of intensive development of the child, and timely mastery correct speech is one of the basic conditions for normal psychophysical development, the formation of a full-fledged personality and preparation for schooling.

Speech, in all its diversity, is a necessary component of communication, in the course of which it, in fact, is formed. The process of speech development involves the development of not only content, but also figurative, emotional side language. A person must master the intonational richness of the language, which is important not only for the formation of a culture of speech, but also for the culture of communication. Therefore, it is very important to start work on the formation of intonational expressiveness of speech as early as preschool age, since this work stimulates the development of coherent speech, avoids such shortcomings of the statement as illegibility of diction, monotony, inarticulateness of speech that affect the understanding of the content and emotional meaning of the statement.

In modern speech therapy practice, one of the urgent problems in preschool children is the correction of violations of the prosodic side of speech with erased dysarthria. Unintelligible speech in dysarthria is caused by an articulation disorder, a violation speech breathing, voicing. The prosodic side of speech also suffers, that is, the power of the voice, tempo, rhythm, intonation and expressiveness.

The relevance of the formation of the main components of the prosodic side of speech in preschoolers as a prerequisite for successful schooling is beyond doubt. Insufficient formation of the prosodic side of speech in preschool age causes difficulties in communicating with others, and in the future entails certain personality changes, i.e. leads to the emergence of complexes in children, preventing them from learning and fully revealing their abilities and intellectual capabilities.

The education of rhythm and intonation is not only a problem of improving the expressiveness of speech itself - rich rhythmic speech contributes to the overall mental development of the child and facilitates learning. A child with expressive speech feels more relaxed and confident in any environment, due to the fact that he can adequately express thoughts and feelings, show his creative individuality.

As a rule, children master intonation expressiveness naturally. But as it shows speech therapy examination preschool children with speech disorders have disturbances in the processes of perception and reproduction intonation structures. They do not realize the importance of intonation for conveying the meaning of statements and their attitude to what is happening.

Corrective work with such children on the formation of the prosodic side of speech should combine activities aimed at developing speech breathing, rhythm, tempo, strength and modulation of the voice. And also on the formation of perception and reproduction of the main intonation types, the development of the child's emotional responsiveness and the ability to convey certain feelings and moods with the help of intonation.

Games and exercises

for the development of a smooth oral exhalation
1. "Fly, butterfly!"

Purpose: development of a long continuous oral exhalation; activation of the lip muscles.

Equipment: 2-3 bright paper butterflies.

Game progress: before starting the lesson, tie a thread 20-40 cm long to each butterfly, attach the threads to the cord at some distance from each other. Pull the cord so that the butterflies hang at face level. standing child.

The teacher shows the child butterflies and offers to play with them.
– Look, what beautiful multi-colored butterflies! Let's see if they can fly.
The teacher blows on butterflies.

- Look, fly! How alive! Now you try to blow. Which butterfly will fly farthest?

The child stands near the butterflies and blows on them. It is necessary to ensure that the child stands straight, does not raise his shoulders when exhaling, blows on one exhalation, without getting air, does not puff out his cheeks, and slightly pushes his lips forward.
You can blow for no more than 10 seconds with pauses so that your head does not spin.

2. "Breeze"

Equipment: paper sultans (panicles).
Game progress: before starting the game, it is necessary to prepare panicles. To do this, attach strips of colored paper to a wooden stick. You can use thin tissue paper, or Christmas decorations"rain".

The teacher offers to play with the whisk. Shows how to blow on paper strips, then offers to blow to the child.

“Imagine it's a magic tree. A breeze blew and the leaves rustled on the tree! Like this! And now you blow!

In the second case, the children blow on their panicles at the same time.

3. "Autumn Leaves"

Purpose: teaching smooth free exhalation; activation of the lip muscles.
Equipment: autumn maple leaves, vase.

Game progress: before class, collect a bouquet with your child autumn leaves(preferably maple, as they have long stems) and place them in a vase. Offer to blow on the leaves.

We collected beautiful leaves in the park. Here is a yellow leaf, and here is a red one. Do you remember how the leaves rustled on the branches? Let's blow on the leaves!
An adult, together with a child or a group of children, blows on the leaves in a vase, draws their attention to the rustling of the leaves.

4. "It's snowing!"

Purpose: the formation of a smooth long exhalation; activation of the lip muscles.
Equipment: pieces of cotton.

Game progress: the teacher lays out pieces of cotton wool on the table, reminds the children about winter.

Imagine that it is winter. Snow is falling outside. Let's blow snowflakes!
An adult shows how to blow on cotton wool, children repeat. Then all the children raise the cotton, and the game is repeated again. 5. "Dandelion"

Purpose: development of a smooth long exhalation through the mouth; activation of the lip muscles.

Game progress: the game is played outdoors - in a clearing where dandelions grow. An adult invites children to find among the yellow dandelions that have already faded and pick them. Then he shows how you can blow on a dandelion so that all the fluffs fly off. After that, he invites the children to blow on their dandelions.
Let's blow on dandelions! Blow once, but strongly - so that all the fluffs fly off. Look, fluffs fly like little parachutes.
You can arrange a competition: each of the children blows on his dandelion once. Those of the children who do not have a single fluff on the head of the flower win.

You can also organize the game "Grandfather or woman?":

- Let's play the game "Grandfather or woman?" Blow on your dandelions just once. If there are no fluffs left on the flower head, this is a bald head. So, it turned out to be a grandfather. If the fluff remains - this is the hair on the head - then it turned out to be a grandmother. The one who got the grandfather wins!


6. "Pinwheel"

Equipment: spinner toy.

Game progress: Before starting the game, prepare a spinner toy. You can make it yourself with paper and a wooden stick.

Show the child a turntable. On the street, demonstrate how it begins to spin from the breath of the wind. Then offer to blow on it yourself:

- Let's make the wind - blow on the turntable. That's how it turned out! Blow even harder - the pinwheel spins faster.

The game can be played both individually and in a group of children.
7. "Song of the wind"

Equipment: Chinese wind bell.

Game progress: hang the bell at a distance convenient for the child (at the level of the face of a standing child) and offer to blow on it. Pay attention to how melodic the sound is. Then offer to blow harder - the sound became louder.

The game can be played both individually and in a group of children.

8. "Fly, birds!"

Purpose: development of a long directed smooth oral exhalation; activation of the lip muscles.

Equipment: 2-3 multi-colored paper birds (origami).

Game progress: the child is sitting at the table. One bird is placed on the table in front of the child. The teacher invites the child to blow on the bird so that it flies as far as possible (you can blow it once).

What a beautiful bird you have! And can she fly? Blow so that the bird flew away! You can blow once. Breathe in and take in more air. The bird has flown!

During a group game, you can arrange a competition between two or three children: each blows on his bird. The one whose bird flew farthest wins. An adult makes sure that the children do not puff out their cheeks, blow only once, do not strain too much.

9. "Scroll, pencil!"

Purpose: development of a long smooth exhalation; activation of the lip muscles.
Equipment: pencils with a smooth or ribbed surface.
Game progress: the child is sitting at the table. Place a pencil on the table at a distance of 20 cm from the child. First, the adult shows how to forcefully blow on the pencil so that it rolls to the opposite end of the table. Then he invites the child to blow on the pencil. The second participant in the game catches a pencil at the opposite end of the table. You can continue the game by sitting opposite each other, and rolling a pencil to each other from one end of the table to the other.

By organizing a game in a group, you can arrange a competition: two children are sitting at a table, pencils are in front of them. You can blow on the pencil only once. The one whose pencil rolls the farthest wins.

10. "Funny balls"

Equipment: light plastic ball.

Game progress: Balls can be played in the same way as pencils (see previous game). You can make the game harder. Draw a line on the table. Then take the ball and put it in the middle of the table (on the line). Two children sit at a table opposite each other, on opposite sides of the ball on the line.
- It is necessary to blow on the ball so that it rolls to the opposite side of the table. And you need to try so that the ball does not hit your part of the table. You need to blow harder. Started!

The winner is the one who managed to blow the ball over the line, to the opposite side of the table.

11. "Balloon"

Purpose: development of a strong smooth oral exhalation; activation of the lip muscles.
Equipment: an ordinary balloon on a string; gas balloon.
How to play: hang the balloon at the level of the child's face. Blow on the balloon so that it flies high, then invite the child to blow.
A more complex version of the game is possible. toss up balloon up. Invite the child to blow on the balloon several times so that it does not fall to the floor longer.

- Let's blow on the ball so that it does not fall down. Like this! Stronger!
Can play with hot air balloon filled with gas. In this case, the ball is tied to a chair or something on the floor (it is desirable that the thread remains long). You need to blow on the ball so that it flies as far forward as possible.

If the game is played in a group, you can organize a competition: two children (or small teams) stand opposite each other facing the ball (the distance to the ball is 50-60 cm) and start blowing at the same time. The winner is the one who managed to send the ball to the opposite territory (you can divide the territory with a ribbon or rope).

12. "Sail, boat!"

Purpose: development of a strong smooth directed exhalation; activation of the lip muscles.

Equipment: paper or plastic boats; basin with water.
Game progress: put a basin of water on a low table, in which a paper boat floats. At first, it is better to use a plastic boat, as paper boats quickly soak and sink. The adult blows on the boat, then offers the child to blow.

Imagine it's the sea. Let's set the boat sailing. Look what strong wind! How fast our ship sailed. Now you try. Well done!
The game can be complicated by inviting the child to ride a boat from one city to another, marking the cities with icons on the edges of the pelvis. In this case, the air stream during oral exhalation should be not only strong, but also directed.

You can play the game in a group. In this case, organize a competition: whose boat will sail to the target faster.

13. "Ducks"

Purpose: development of a strong smooth directed exhalation; activation of the lip muscles.

Equipment: rubber duck with ducklings (bathing set); other light rubber or plastic toys that float in water.
Game progress: put a bowl of water on a low table. The teacher shows the child a duck with ducklings and offers to play.

Imagine it's a lake. A duck with ducklings came to the lake. This is how a duck swims.
An adult blows on toys, offers to blow to a child. Then the game gets more difficult.
Look: the ducklings have swum away from their mother. The duck calls the ducklings to her. Let's help the ducklings swim to the mother duck as soon as possible!

In this case, the air stream during oral exhalation should be not only strong, but also directed. You can play the game in a group of children.

14. "Bulki"

Purpose: development of a strong oral exhalation; learning to blow through a straw; activation of the lip muscles.

Equipment: a glass of water, cocktail tubes of different diameters.
Game progress: in a glass half-filled with water, lower the cocktail tube and blow into it - bubbles with a loud gurgling will rise to the surface. Then give the tube to the child and offer to blow.
“Let’s make fun gurgles!” Take a straw and blow into a glass of water. If you blow weakly, small bubbles are obtained. And if you blow hard, you get a whole storm! Let's make a storm!

By the "storm" in the water, you can easily assess the strength of the exhalation and its duration. At the beginning of classes, the diameter of the tube should be 5-6 mm, in the future, thinner tubes can be used.

Many children who are used to drinking juice from bags through a straw do not immediately understand what is required of them, they can start drinking water (therefore, it is better to use purified drinking water just in case). In this case, first offer to blow through the tube on a piece of cotton wool on the table or on the palm of your hand to feel the air coming out of the tube.
Other from possible problems- the child may bite and gnaw on the soft tube or bend it. In this case, you can use the body of the gel pen - a transparent tube made of hard plastic.
In addition, the child can, holding the tube in the lips, exhale air through the nose. In this case, you should gently pinch the baby's nose with your fingers and offer to blow again.

15. "Grow, foam!"

Purpose: development of a strong oral exhalation; activation of the lip muscles.
Equipment: a glass of water, cocktail tubes of different diameters, dishwashing liquid.

Game progress: this game can be offered to a child after he learns to blow well through a tube into a glass of water (does not drink water, does not bend the tube). Add a little dishwashing liquid to the water, then take a straw and blow into the water - with a loud gurgle in front of the child, a cloud of iridescent bubbles will grow. Then invite the child to blow. When there is a lot of foam, you can blow on it.
"Now I'm doing a hocus pocus!" I take liquid for dishes and drip into the water ... Now I’ll interfere - are-bars-top-top-top! I take a pipe and blow. Look what happened! This is a foam of small and large bubbles! Now you try to blow.

After the children learn how to act correctly in individual lessons - blow into tubes, do not spill water, etc., you can conduct such a lesson in a group.

16. "Birthday"

Purpose: development of a strong long smooth oral exhalation; activation of the lip muscles.

Equipment: marshmallows in chocolate or marshmallow; small candles for the cake; Teddy bear.

Game progress: prepare marshmallows in chocolate or marshmallow and stick one or more holiday candles - today is the “bear's birthday”. Together with your child, set the table using toy dishes, invite guests - a bunny and a doll, sing a song for the bear. Then solemnly bring in the “birthday cake” with a lit candle.

- It's the bear's birthday today. He is one (or more) years old. Let's congratulate the bear! Here is a birthday cake - help the bear blow out the candles.

When the child blows out the candle, make sure that the exhalation is long, strong and smooth. If the candle has not gone out, we again take air into the chest and try again.

Many children, when exhaling correctly, cannot correctly direct the stream of exhaled air - it passes by the flame of a candle. In this case, it is useful for clarity to suggest blowing into a pipe made of a sheet of thick paper (diameter 3-4 cm), because The tube can be used to control the direction of exhaled air.

First, place the candle at a distance of about 30 cm from the child. Gradually, the distance from the child to the candle can be increased to 40-50 cm. Explain to the child that you should not move too close to the candle.

For subsequent games, you can come up with a different plot of the game, or simply offer to blow out the flame. For security reasons, this game is played individually. It is necessary to warn the child that the candle must not be touched and knocked over.

17. "Feather, fly!"

Purpose: development of a strong smooth directed exhalation; activation of the lip muscles.

Equipment: bird feather.

Game progress: toss the feather up and blow on it, preventing it from falling down. Then invite the child to blow. Pay attention to the fact that you need to blow hard, directing the stream of air on the feather from the bottom up.

18. "Soap bubbles"

Purpose: development of a strong smooth exhalation; activation of the lip muscles.
Equipment: a bottle of soap solution, a frame for blowing bubbles, tubes of various diameters - cocktail, made of thick paper, plastic bottle with cut bottom.

Game progress: play soap bubbles with your child: first, the teacher blows bubbles, and the child watches and catches them. Then invite your child to blow bubbles on their own. It should be noted that blowing soap bubbles is often a rather difficult task for babies. Try to help the child - pick up different frames and tubes so that the child tries and chooses with which it is easier to achieve a result. You can make your own soap bubble liquid by adding some dishwashing liquid and sugar to the water. Do not forget to monitor the safety of the child - do not allow to taste and drink the liquid.

19. Whistles

Purpose: development of a strong smooth exhalation; activation of the lip muscles.

Equipment: children's ceramic, wooden or plastic whistles in the form of various birds and animals.

Game progress: before the start of the lesson, whistles should be prepared. Give the children whistles and invite them to blow into them.

- Look at your beautiful whistle toys! Masha has a bird, and Vanya has a deer. Let's arrange a forest concert - each of the animals and birds sings its own song!

The game can be repeated several times. Make sure that the children blow without straining, do not overwork. The game can be played both individually and in a group of children.

20. "Blow the pipe!"

Purpose: development of a strong smooth exhalation; activation of the lip muscles.
Equipment: various wind musical instruments: pipes, pipes, horns, harmonicas.

Game progress: before starting the lesson, you should pick up the tools. Remember that playing wind instruments is one of the most difficult exercises for the development of breathing. Therefore, check the instruments in advance and choose those that are easier to play.

Distribute the pipes to the children and invite them to play them, first in turn, then all together.

Let's have a musical parade! Take the pipes - let's start playing!
If one of the children fails to extract sound from the pipe, make sure it blows correctly: the exhalation through the mouth should be strong and fall exactly into the socket of the pipe, for which it must be tightly clamped with the lips: the air should not go out through the nose.

You can also offer flutes, horns, harmonicas for playing. The game can be played both individually and in a group of children. If one of the children does not succeed, do not insist. Perhaps it is better to return to this task later, when the child is a little older.