A couple of words about the development of sites under the contract

What is good

The contract is good. A good deal is even better. I am sincerely glad that there are people who agree with this. (It’s people: for not one , not two , not three, and even (action thriller) are not four people.)

But at the same time, we all understand that for the contract to be called good, the opinion of your acquaintance or full-time lawyer is not enough. A good contract means one with which there are no problems . First of all, in court. But judges are people too. They are easier to work on the instructions. True, in order for it to appear, we need a generalized judicial practice, with all its pluses and minuses. And now court cases related to the development of the site - isolated cases.

I explain what it means. The court is not bound by anything. If somewhere in Novosibirisk decided that this is so , then this does not mean that there will be no commercials in Moscow. And vice versa. Moreover, even in the same court, different judges may have completely different decisions.
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Hence the conclusion number 1 : now you can not call any of the existing (including, here, in Habré) agreements good. But that is not all.

Work or service?

All the contracts for the development of the site, which came across to me, were presented either by a contract or by a contract of paid services. As if the creation of the site - work or service. I understand that most habrovchan agrees with this. And that I now, perhaps, turn against myself the bulk of the developers of sites. Believe me, I do not want to do this.

But! Website development is not a job and not a service . (The difference is that.) If you say very, very roughly, the essence of the one and the other is in carrying out some kind of unified activity, and the difference is only in the degree of this unification: the customer loves work for the fact that they have the same contractor, just like others; services - for the fact that they are not the same as everyone else, but approximately similar to one another by this artist.

For example, if there is a bridge drawing and two good construction companies, then no matter which one of them will make a bridge according to this drawing, the result will be the same. If there is a desire to eat and two normal catering of the same level, then the list of dishes, and the method and time of their preparation, and service will most likely be different. I repeat once again: this is a very gross simplification! (In works and services, you can find reverse examples.)

(The difference is two.) Closer to the legal essence, the difference is different: in the works of principle (I would even say the most fundamental) the result is important; in services, the result can also be important, but only if it is inseparable from the customer.

An example is the same: the construction of a bridge and the provision of catering services. The result is there and there, but in the second case, the performer only creates the conditions for its achievement, in the first - directly affects it. But, say, in the activities of a hairdresser, the result is more important, but it is inseparable from the body of the customer. Therefore a service.

(Based on this.) It turns out that in the first difference the site is closer to services, and in the second - to the contract. But even here there are some peculiarities.

First, when we order the <bread> with <water> at this restaurant for the first time, we want to get the product that we like. That is, we are interested in <bread> with a taste known to us, with a taste we liked. In short, we want the same (!) Bread. When the customer again comes to the developer of the site (not for showdown), he wants another (!) Site, not the same as last time.

Secondly, the construction of the bridge depends entirely on how the contractor’s activities will be planned. Completely! All materials that were required from the customer, have already been provided, at the time of signing. Therefore, there it is fully justified that in case of inconsistency of the final term, the contract is considered to be not concluded. This is normal. When developing the site, we know it perfectly well, there is such an important detail: the approval of the design by the customer. That is, at the time of the conclusion of the contract, it is not yet clear when exactly on which day the site developer can complete it. Therefore, the original date can not be agreed.

There is, of course, a way out (at least kill me, I don’t remember which of the habrovchan people use it in practice). Limit the number of proposed layouts or the period during which the design must be approved. I do not like this way out, to be honest. I just put myself in the place of the customer and think like this: “I’m happy with the site, if I don’t like its appearance?” It may be objected to, they say: “Well, you can say right then what you need.” But ... In my opinion, Chekhov said that a thought can never be fully expressed: it always impoverishes the language. I mean: if I even have an idea in my head about what the result should be, I cannot describe it in such a way that they would understand me the first time. And the second and third. I can not. Physically. I do not have such a developed imagination and vocabulary. If I can portray it, then I don’t need a designer either. Therefore, no way out.

For the conclusion number 2 : the contract for the development of the site - this is not a contract and not a contract for the provision of services . This does not mean that all such treaties are automatically invalid or something else like that. You just can not regulate the rules of the road rail traffic. That is, it is possible, of course (in my opinion, even the principle of right-hand traffic is preserved there), but, you see, there is better soup with a spoon, and not a fork. I am in favor of developing a fundamentally, conceptually new treaty.

Or a new contract is not needed, but rather an old one?

Now I will say a banal thing. Site is a work . Consequently, the activity on its creation is regulated by the fourth part of the Civil Code of the Russian Federation. Little of! If the developer does everything himself: and design, and makes up, and programs, - then there is a ready solution for him. It is called the contract of authoring order . But if there are several developers (or rather, one, but it is a legal entity), then, you see, nothing fundamentally changes. Yes? Not! Is changing! From a position of the legislator, changes. The contract of the author's order can be concluded only with the author. And the author is only a citizen. This problem is now hanging ...

Conclusion number 3 : the contract for the development of the site provided by applicable law, but only if the developer - and the reaper and the priest (well, or the reader, it does not matter). In other words, there is a way out. And he is somewhere close. But not in the contract and not in the contract for the provision of services.

upd. 01.03. Transferred to the "Business Studio"