Section 4. Contractual obligations to alienate property
LECTURE 1. CONTRACT OF PURCHASE AND SALE. GENERAL PROVISIONS
The subject of the course "Civil Law, Part Two" is all the named contracts, regulated by the legislator in the relevant contractual institutions, as well as non-contractual obligations (obligations from unilateral actions, natural and protective obligations ) ... As you know, all civil contracts can be classified on certain grounds. One of the most significant is the division of contractual obligations depending on their legal purpose, or the direction of the will of the parties. For this reason, it is customary to distinguish: obligations aimed at transferring property into ownership; transfer of property for temporary use; for the performance of work, the provision of compensated services (actual, legal and other); on joint activities. In the future, when studying certain types of obligations, we will adhere to this classification, since it allows us to identify the common features of contracts of one group, and their differences from each other, and also gives a general idea of the system of contractual obligations. In addition, the division of contracts depending on the legal goal was taken into account by the legislator when building the structure of the Civil Code and the legal regulation of relations aimed at the same legal goal.
Let's start our acquaintance with the contractual obligations with a group of contracts, which are one of the options for the disposal of property - contracts on the alienation of the things belonging to him by the owner. This group of contracts includes: purchase and sale, exchange, donation and rent... By concluding these transactions, the parties pursue the same legal goal - transfer of ownership to the interested party to the agreement (acquirer). The inevitable consequence of such a disposal of property is always the termination of the property right from the alienator - the owner. The presence of a common legal goal makes it possible to take this into account when legal regulation: it becomes possible to apply some general rules of one contractual institution to another (for example, the rules on sale and purchase may apply to relations from an exchange agreement).
One of the contracts for the alienation of property is contract of sale, which is one of the most common transactions in civil circulation. Therefore, it is no coincidence that in the Civil Code of the Russian Federation, the regulation of contractual legal relations begins precisely with sales contract, and the set of rules on the conclusion, execution and termination of this agreement is one of the most traditional institutions of civil law. The rules for the sale and purchase are contained in Chapter 30 of the Civil Code and cover a very wide range of relations for the paid transfer of property into ownership. Some of these relations are undoubtedly specific (energy supply, sale of an enterprise), which could not be ignored by the legislator when developing the current codification (the Civil Code has been in effect since January 1, 1995). Therefore, Ch. 30 Civil Code has the following structure: general provisions on buying and selling - norms that are universal in nature and apply to certain types of sale and purchase, if absent special norms on this issue (on essential conditions, obligations of the parties, the consequences of their failure). Then in the chapter there are paragraphs, the norms of which apply to the corresponding varieties of the contract of sale: retail sale; supplies; contracting; power supply; sale of real estate and sale of an enterprise. These types of sale and purchase are distinguished taking into account various criteria (object of legal relationship; purpose of purchasing goods; subject composition).
The general definition of a sales contract is given in Art. 454 of the Civil Code: under the contract of sale, one party (the seller) undertakes to transfer the thing (goods) to the ownership of the other party (the buyer), and the latter undertakes to accept the goods and pay a certain amount of money... It follows from the definition of the contract that the obligation to purchase and sell is onerous, and the counter-provision (price) is always of a monetary nature and is carried out on an equivalent basis. It should be noted that this contract carries mutual character: each of the parties simultaneously acts as both the debtor and the creditor, and the performance of the obligation by one party determines the performance of the obligation by the other party (the transfer of goods by the seller means for the buyer the need to make payment). Such mutual obligations are otherwise called synallagmatic. Another hallmark the purchase and sale agreement is the moment of its entry into force: the obligation arises when the parties reach agreement on the essential conditions (clause 2 of article 432). In other words, the contract is consensual, and the transfer of property is made after the conclusion of the contract (not to be confused with the moment of execution).
Question about the form of the contract purchase and sale is not specifically regulated by the legislator, therefore, the rules on the form of transactions and the consequences of its non-compliance, provided for in the general part of the Civil Code, are applied. The choice of the form depends on the value of the goods, the subject composition and the moment of execution of the transaction (Article 159). However, it must be borne in mind that for some types of sale and purchase there are more stringent requirements for the form and the consequences of non-compliance with the required form (sale of real estate). The specificity of any contractual obligation is also manifested in the range of essential conditions, i.e. conditions that are necessary for the recognition of the contract as concluded. From the analysis of the norms of § 1, Ch. 30 we can conclude that the only one essential condition the sales contract is a condition for the product: when concluding the contract, the parties must agree on the name and quantity of the goods(Clause 3.Article 455 of the Civil Code). All other conditions of the contract of sale are definable: the term for the seller to fulfill the obligation to transfer the goods is established by agreement of the parties, and if not established, then it is determined based on the rules of Art. 314 GK. The price of the product, as a rule, it is determined by the parties at the conclusion of the contract, but if, nevertheless, there is no condition on the price, it can be determined according to the rules of the general part of the Civil Code, to which Art. 485 and which are provided for in paragraph 3 of Art. 424: The price is considered equal to the value of a similar product under comparable circumstances. The term in the obligation to purchase and sell is also not an objectively significant condition, but it can become such due to the desire of the parties or the nature of the obligation (sale of seasonal goods).
Elements of a sales contract:
The subject of the contract(the object of sale) can be any property (things): movable, immovable, defined by generic characteristics or individually defined things, property that is not seized and is not limited in circulation (subject to certain rules) that the seller has at the time of the conclusion of the contract ... The object can also be property that will be created or acquired by the seller in the future.
By the parties sales contracts are the seller and the buyer. The general provisions on sale and purchase do not contain any special requirements for the seller, therefore, any subject of civil law can act as a seller: individuals and legal entities, as well as public law entities (except for the cases when they purchase goods to satisfy state and municipal needs). With regard to citizens - sellers, it is necessary to take into account general rules legal capacity (age restrictions), in relation to legal entities - the existing differences in the legal capacity of commercial and non-profit organizations, and the resulting differences in the possibility of making transactions. So, unitary enterprises, not being the owners of the property assigned to them, have only special legal capacity, and therefore the possibility of making sale and purchase transactions depends on the compliance of the transaction with the goals of the statutory activities, as well as on the type of property being sold (the sale of real estate requires the prior consent of the owner - founder).
Rights and obligations of the parties
The main obligation of the seller, as follows from the definition of the contract of sale, is the obligation to transfer the goods... Moreover, if the product is the main thing or technically complex, information about the main properties or requirements for the operation of which is contained in the relevant documentation, the seller is obliged, along with the goods provided for in the contract, to transfer accessories and necessary documents (technical passport, operating instructions, etc.) ...
Fulfillment of this obligation possibly in several ways, provided for in Art. 458 GK: delivery of goods to the buyer by the seller (common when purchasing bulky items from a retail seller, it is also found in the business sphere). In this case, the goods are considered transferred from the moment they are delivered to the buyer or a person authorized by him. Another possible option for fulfilling the obligation to transfer the goods is to export it by the buyer's forces, or, as the legislator puts it, placing the goods at the buyer's disposal (common in the business sphere). However, the seller in this case must prepare the goods for export (pack, package) and inform the buyer about the readiness of the goods for export. Only if these actions are carried out, the seller is deemed to have fulfilled his obligation to transfer the goods.
Finally, if the parties, when concluding a specific contract, did not choose either the first or the second option, then the transfer of goods is carried out in the manner provided for in paragraph 2 of Art. 458 GK: the seller must use the services of a carrier or a communications organization (default choice). The moment of fulfillment of the obligation to transfer the thing is the day the thing is handed over to the first carrier. Determination of the moment when the seller fulfills the obligation is of great practical importance, since contacts him passing the risk of accidental death, damage things. It should be borne in mind that in this case there is an exception to the general rule about bearing the risk of accidental death by the owner of the thing: Art. 223 of the Civil Code provides that the ownership of movable things under the contract passes from the moment of transfer of the thing, which is understood as its delivery, as well as delivery to the carrier or the organization of communication for delivery to the acquirer. Therefore, when choosing the third option for fulfilling the obligation to transfer the goods, the buyer bears the risk of accidental death even before he becomes the owner of the thing. But since the rule on the transfer of risk is enshrined in the dispositive norm of Art. 459 of the Civil Code, the parties may provide for another option in the contract that is more in the interests of the buyer (transfer of risk from the moment the goods are received or after they have been paid for). It is also necessary to determine the moment of fulfillment of the obligation to transfer the goods in order to find out whether the goods meet the established requirements (quantity, quality, assortment, etc.).
Failure to fulfill the obligation to transfer the goods (not transfer on time or things not provided for in the contract of sale) gives rise to the buyer's right to demand actual performance by compulsory unilaterally(Art. 463). In addition, for the proper fulfillment of the seller's obligation, it is not just the fact of transfer of the goods that matters, but also the compliance of the goods with certain requirements, some of which are of a general nature and are taken into account regardless of the type of goods and the terms of the contract (requirements for the quantity and quality of goods).
The condition on the quantity of goods under the contract of sale (Art. 465Civil Code of the Russian Federation):
Determined by the parties in physical terms (metpax, pieces, tons and other units of measurement) or in monetary terms.
It is considered agreed also in the case when the contract does not contain its precise definition, but establishes the procedure for determining the quantity of goods to be transferred. The seller is obliged to transfer the goods to the buyer in the proper quantity. The consequences of improper performance are provided for in Art. 466 of the Civil Code of the Russian Federation.
Condition aboutthe quality of the goods under the contract of sale (Art. 469-477Civil Code of the Russian Federation):
The seller is obliged to transfer the goods of good quality to the buyer.
The quality of the goods must comply with the sales contract.
The goods transferred to the buyer must meet the quality condition at the time of transfer to the buyer, as well as within reasonable time after transfer.
The seller has the right to provide the buyer with an additional guarantee of the quality of the goods.
By agreement between the seller and the buyer, goods may be transferred that meet increased quality requirements in comparison with the mandatory requirements provided for by law or in the manner prescribed by it.
The quality assurance of the goods also applies to all its constituent parts (components), if otherwise is not provided for in the sales contract. The warranty period begins to run from the moment the goods are handed over to the buyer, unless otherwise provided by the contract of sale.
Disadvantages of a thing (product) can be insignificant (common) and significant. Creaturesidentified shortcomings of a thing (goods) under a sales contract - irreparable or disposable , but manifested repeatedly, shortcomings, the correction (elimination) of which entails disproportionate costs. If the shortcomings turned out to be significant, then the buyer may demand:
Replacement of a thing (goods) with another of the same thing (good quality goods).
Withdraw from the sales contract and request the return of the fee.
Minor (common) deficiencies in the sales contract. When the seller transfers the goods proper quality with the usual disadvantages, the buyer can:
Demand a reduction in the price of the item.
Elimination of (gratuitous) defects by the seller within a reasonable time.
Elimination of deficiencies by the buyer, but at the expense of the seller.
Assortment clause under a sale and purchase agreement (Art. 467, 468 Civil Code of the Russian Federation):
A list of goods (assortment) of a certain name, distinguished by individual characteristics (types, models, sizes, colors), indicating the number of goods of each type to be transferred.
The seller is obliged to transfer the goods to the buyer in the proper range.
If the assortment is not defined in the contract of sale and the procedure for determining it is not established in the contract, but it follows from the essence of the obligation that the goods must be transferred to the buyer in assortment, the seller has the right to transfer the goods in the assortment to the buyer, based on the needs of the buyer, which were known to the seller. at the time of the conclusion of the contract, or to refuse to execute the contract.
If the seller violates the terms of the assortment, the buyer has the right not to accept or pay for the goods transferred in violation of the terms of the assortment.
The seller is obliged to transfer the goods free of the rights of a thirdtheir faces, except for those cases when the buyer agreed to accept the goods encumbered with rights (Articles 460-462 of the Civil Code).
Obligations of the buyer: to accept the goods and pay a certain amount of money (price). The buyer must take the actions necessary to receive the goods, create conditions for the seller sufficient for him to fulfill his obligation to transfer the goods. What kind of actions the buyer needs to take depends on the method of transferring the goods chosen by the parties, the requirements of regulatory enactments, and business practices. Since the buyer's obligation to accept the goods has a counterpart in relation to the seller's obligations, the latter, in the event of the buyer's evasion of accepting the goods, has the right to demand termination of the contract or compulsory acceptance of the goods and compensation for losses (clause 3 of Art. 484).
The buyer, as a general rule, is obliged to pay for the purchased goods immediately before or after its transfer. However, the contract may provide for advance payment of goods or payment on credit (Art. Art. 486-488).
The buyer is obliged to pay the seller the price of the transferred goods in full, if the contract of sale does not provide for payment by installments for the goods.
Non-payment the buyer of the thing in a timely manner according to the purchase agreementsales entitles the seller to:
Refuse to execute the contract of sale and demand the return of the thing.
Demand payment for the thing in judicial procedure and the collection of interest for the unjustified use of other people's money (Article 395 of the Civil Code of the Russian Federation ).
LECTURE 2. RETAIL SALE
The retail sale and purchase agreement is one of the types of sale and purchase, therefore, on the one hand, it has all the common features of the sale and purchase, and, on the other hand, it has its own distinctive features, its own specifics. The relationship of retail purchase and sale presupposes the satisfaction of the needs of the population in consumer goods, in its systematic supply of industrial and food products. Consequently, the rules on retail sales are aimed at regulating the most common type of transaction, in which billions of people become participants every day. Unlike an entrepreneur who purchases goods, raw materials for production and other commercial purposes and has special knowledge, experience, organizational (skilled workers) and financial resources, an ordinary citizen or a non-profit organization do not have the appropriate opportunities to choose goods and protect their interests in the event of their violation by the seller. In other words, a seller-entrepreneur and a buyer who purchases a product for its consumption have different economic opportunities and are in obviously unequal economic conditions. In this regard, the legislator seeks to eliminate this inequality, to “align” the position of the parties to retail sale and purchase at the expense of norms that are special in relation to general provisions on sale and purchase.
The legal definition is contained in Art. 492 GK: under a retail sale and purchase agreement, a seller engaged in entrepreneurial activity in the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, household, family or other use not related to entrepreneurial activity... From this definition, one can deduce the constitutive features of a contract:
Special subjective composition on the side of the seller. The seller is not any entity, but only legal entities and individual entrepreneurs engaged in retail trade, which implies the presence of a certain place of trade equipped for retail sale (showcases with samples of goods or directly with goods, sales assistants, a certain assortment, cash machine, a sign indicating the owner of the store, opening hours). The organizational and legal form does not matter, but basically, these are commercial organizations in the form of LLC and JSC. For trade in certain types of goods, a permit (license) is required (see the Federal Law "On Licensing certain types activity "dated 08.08.2001). The law does not impose additional requirements on the buyer, so they can be both individuals and legal entities. However, the participation of a citizen on the side of the buyer is taken into account when determining the regulatory framework: along with the Civil Code, the Law of the Russian Federation "On Protection of Consumer Rights" dated 07.02.1992 applies to these relations. as amended by from 25.10.2007.
Purpose of purchasing the goods. The goods sold under a retail sale and purchase agreement are intended to meet the personal needs of citizens (shoes, clothes), household (TV) needs. At the same time, the legislator does not exclude the possibility of purchasing goods intended to meet other needs (agricultural machinery used by a citizen to grow crops, office equipment for activities legal entity). It is important that these other purposes are not intended to be used for carrying out business activities.
As a kind of sales contract, retail sales are characterized as a reimbursable, mutual and consensual contract. The conclusion of a retail sale and purchase agreement can be carried out with using automatic machines - technical devices that respond to a standard command or a sequence of commands... Vending machines are displayed in public places (premises of shops, offices, squares) and allow the consumer to receive the necessary product (coffee, sandwich, gas water) without directly contacting the seller (Article 498). In this case, the contract is considered concluded from the moment the buyer takes all the actions necessary to receive the goods (the list is indicated on the machine, as well as information about the seller, the operating mode).
Retail sale is public contract(Clause 2, Article 492 of the Civil Code). The need to establish this rule is explained by the desire of the legislator to eliminate the already noted economic inequality of counterparties in the relationship of retail purchase and sale. Recognition of a contract as public means, first of all, restricting the principle of freedom of contract for the seller: he has no right to refuse to conclude a contract to any person who turns to him, if there are conditions for this. The seller must also conclude contracts with all buyers on the same terms, including selling the goods at the same price (Art. 426). An exception to this rule is the sale of certain types of goods to certain categories of consumers at a reduced (lower) price.
The law does not establish special requirements for the form of a retail sale and purchase agreement, therefore, the norms of Art. 158-162 GK (oral and written forms are possible). At the same time, the specifics of retail purchase and sale leads to the fact that the prevailing is still oral form since in most cases, the moment of the transaction and its execution coincide (payment and transfer of the thing at the same time or with a very short time interval).
Since retail sale and purchase is a type of purchase and sale agreement, the special nomes of the relevant paragraph of Chapter 30 are primarily applied to it, and in the part not regulated by these norms - the general provisions on the sale and purchase. In addition, relations involving a citizen-consumer are subject to the Consumer Protection Law. The norms of the Law are special in relation to the rules of the Civil Code and are applied if the Civil Code directly refers to them, does not regulate these relations or contains other rules and this is allowed by the Civil Code (clauses 1-2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. courts of cases on the protection of consumer rights "dated 09.29.1994 as amended on 05.11.2005). In addition, by-laws are applied to these relations, in particular, "Rules for the sale of certain types of goods," approved. Decree of the Government of the Russian Federation of 01.19.1998 as amended by dated March 27, 2007 No. 55; "Rules for the sale of goods by samples", approved. By the Decree of the Government of the Russian Federation of 07.21. dated 07.01.2000 No. 918.
Rights and obligations of the parties retail purchase and sale: as common to all relations of sale and purchase (transfer the goods to the seller, accept and pay for it - for the buyer). Along with this, the parties have additional rights and obligations that are characteristic only for this type of contract. So, the seller has an additional obligation: inform the buyer all the necessary and reliable information about the product(Article 495 of the Civil Code). The list of information brought to the attention of the buyer, the procedure and methods of its communication is established by regulatory legal acts and the requirements usually presented in retail trade. The main rules specifying the informational obligation of the seller are established in the Law "On Protection of Consumer Rights", in Art. Article 8-12.
According to Art. 502 Civil Code, 25 of the Law "On Protection of Consumer Rights" buyer has the right to exchange a non-food product of good quality for a similar product from another size, style, dimensions, equipment. In other words, the buyer can “change his mind” and exchange the already purchased product, but under certain conditions: the product must be new, retain all consumer properties and it is necessary to provide evidence of the purchase of the product from this particular seller (check, other document or testimony). In addition, this right is limited to a pre-emptive period of 14 days, excluding the day of purchase. The possibility of exchange can be realized with respect to not all high-quality goods, because when returning some goods, their further sale is excluded or difficult (underwear, disposable tableware, medicines, etc.). Goods of this kind are included in the List of good quality goods that cannot be returned or exchanged for a similar one (Appendix to the Rules of Sale) as amended. from 06.02.2002 If, at the time of contacting the seller, there are no similar, but different in any parameters, goods on sale, the buyer has the right to return the goods and demand a refund of the price paid.
The specificity of retail purchase and sale is also manifested in the legal consequences of the transfer of low-quality goods to the buyer: in accordance with Art. 503 of the Civil Code, the choice of one of the alternative requirements provided for in Art. 475, regardless of whether the deficiency is significant (with the exception of technically complex and expensive goods). Consequently, the buyer has the right to immediately demand that the goods be replaced with a similar one or refuse to perform the contract and demand the return of the money paid, returning the defective goods to the seller. Moreover, the latter is not entitled to recalculate and deduct from the purchase price the amount by which the value of the goods has decreased as a result of its use, loss of presentation. At the same time, the buyer is endowed with the right to demand compensation for the difference between the price of the goods at the time of the conclusion of the contract and the price at the time of the voluntary or compulsory satisfaction of his demand to terminate the contract (clause 4 of Art. 504). To equalize the economic position of the seller and the buyer in the relationship of retail purchase and sale, another special rule has been established: in the event of default by the seller, compensation for losses or payment of a penalty does not relieve him of the obligation in kind. That is, the seller, who has reimbursed losses or paid a forfeit, must also transfer the goods or satisfy other requirements of the buyer related to violation of conditions on quality, assortment, etc. (Article 505).
LECTURE 3. DELIVERY
Before a product reaches a retailer's counter, the manufactured or manufactured product becomes the subject of one or more contracts between manufacturers and wholesalers. This kind of relationship is traditionally governed by civil law through a supply contract. In accordance with Art. 506 of the Civil Code, delivery is defined as an agreement under which the seller engaged in entrepreneurial activity undertakes to transfer, within the period or terms stipulated by the contract, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to family, personal, domestic or other similar using.
Current civil law deals with the supply as a kind of sales contract... Therefore, it is necessary to highlight the specific features of the delivery that distinguish it from other types of sale and purchase. Given the legal definition of the contract, such signs are:
Special subject composition... The seller in the supply agreement is a legal entity or individual engaged in entrepreneurial activity in the production, purchase of goods for their sale. That is, the supplier can be both commercial organizations and individual entrepreneurs. For non-profit organizations, participation in the supply agreement on the side of the seller is uncommon, although it is not excluded (if the possibility of implementing PD is provided for by the constituent documents). Nevertheless, for non-profit organizations that systematically profit from the sale of the goods they produce, it is more acceptable to create commercial legal entities (for example, the society of the blind).
The buyer can be any subject of civil law, but since the legislator determines the purpose of purchasing the goods - use, first of all, in entrepreneurial activity, the contractor of the supplier in most cases is the entrepreneur. Thus, a supply agreement as a kind of a sale and purchase agreement is intended to regulate entrepreneurial relations for the onerous alienation of things, which at the same time retain all the features inherent in the purchase and sale relationship (retribution, consensuality, reciprocity, transfer of ownership).
Since the supply contract is a kind of sale and purchase, the norms of the corresponding paragraph are primarily applied to these relations, and only in the part that is not regulated by special rules, the norms of the general provisions of Ch. 30 GK. In addition, it is necessary to take into account the regulations concerning the characteristics of the subjects (unitary enterprises) or the object of the contract (medicines). Concerning form of contract, then there are no special requirements in the paragraph "Delivery", and one should proceed from the general rules on the form of a transaction concluded between legal entities and individual entrepreneurs- written (Article 160 of the Civil Code).
Participation in the supply agreement of persons carrying out entrepreneurial activity and therefore needing greater clarity and certainty at the stage of concluding an agreement, was reflected in the inclusion in the Civil Code of the rule on the timing of the consideration of an offer and acceptance, as well as responsibility for unreasonably delaying the negotiation stage (Article 507 of the Civil Code).
An essential condition of the supply agreement is the condition of the product (name and quantity), which follows from the recognition of the supply as a type of purchase and sale agreement. The term (terms) for the transfer of goods can be determined in the event that there is no corresponding condition in the agreement. When delivering consignments of goods during the term of the contract (periodic delivery), the delivery period is considered equal to 1 month (Article 508 of the Civil Code), and in case of a single delivery, the period for transferring the goods by the supplier is determined in accordance with Art. 314 of the Civil Code (clause 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 18).
The content of the supply agreement completely coincides with the content of the legal relationship of purchase and sale, the rights and obligations of the supplier and the buyer are mainly governed by the general provisions of Ch. 30 GK. At the same time, the fulfillment of the obligations of the seller and the buyer has some specifics, which is reflected in the paragraph on the supply contract. Considering that in many cases the buyer purchases a consignment of goods for its further resale or sale through retail outlets (there may be several of them), it is possible, when concluding the contract, to indicate that the delivery is not made to the buyer, but directly recipients, bypassing the buyer's warehouse (the so-called transit delivery). In this case, the buyer's instructions on the shipment of the goods in favor of a third party (recipient) are communicated to the seller by sending a shipping order (Art. 509). The content and terms of sending the order are stipulated in the delivery contract, and if the term is not set, then it must be sent to the supplier no later than 30 days before the delivery period. Since the buyer's obligation to send the order is counter to the supplier's obligation to transfer the goods, its failure to fulfill gives the latter the right to refuse to fulfill the contract or demand payment from the buyer for the goods (clause 3 of article 509).
As already noted, in business relations, the timing of the fulfillment of obligations is of great importance. Therefore, the general rule is fulfillment of an obligation on time(specific delivery period). Consequently, both late delivery and early shipment are considered a violation. It is possible only with the consent of the buyer, while the goods accepted upon early delivery are counted towards the number of goods to be delivered in the next period (clause 3 of Art. 508). Delay in delivery may entail the application of sanctions: compensation for losses, as well as the collection of a forfeit (if provided for by the contract). In this case, the forfeit is collected until the actual performance of the obligation within the term of the contract, unless another procedure is established by law or contract (Article 521 of the Civil Code). The buyer has the right to refuse goods, the delivery of which is overdue. But if some of these goods were nevertheless delivered before the supplier received the buyer's notification of the refusal, the latter must accept and pay for these goods (clause 3 of Art. 511).
The legislator clarifies that the supplier's obligation to transfer goods can be fulfilled by means of their delivery (shipment) by their own transport or with the help of a carrier, as well as by taking them out of the supplier's warehouse (sampling). The mode of transport and delivery terms, including the distribution of costs, are determined in the delivery contract. If this condition is absent in the agreement, the seller chooses the mode of transport and delivery conditions. To resolve the issue of the distribution of transport costs, the SAC proposes to the courts to interpret the agreement in order to reveal the actual will of the parties and take into account the established practice of their relations for this (clause 9 of Resolution No. 18). However, he does not offer solutions if the interpretation of the treaty does not help either. It seems that in this case the court should be guided by the customs of business turnover, and in their absence - by the principles of rationality, good faith and fairness (Articles 5-6).
The Civil Code contains rules regarding the situation of shortage of goods: the supplier retains the obligation to make up for the shortage in the following periods, but within the term of the contract (clause 1 of article 511). This rule differs from the general rule of Art. 396 of the Civil Code on the fulfillment of obligations, since real performance in this case is limited only by the duration of the contractual obligation. At the same time, if the delivery is made to several recipients, and one of them received less goods, and the other - more, then the amount delivered in excess of the contractual amount will not be counted towards the coverage of the shortage to other recipients. But this provision of Art. 511 is dispositive. In case of shortage, it is advisable for the parties to determine in which assortment the delivery of the missing quantity of goods will be made. But if the assortment is not defined in the contract, then the rule of Art. 512 Civil Code: the supplier must transfer the goods to the assortment established for the period when the delay occurred (example with a coat).
Somewhat differently than the general provisions on sale and purchase, the consequences of the delivery of goods of inadequate quality or incomplete goods are determined: the buyer or recipient may demand the elimination of defects, a reduction in the purchase price or replenishment of the goods, if the supplier, having received notification of the violations committed, does not immediately replace the substandard or incomplete goods or completing incomplete goods (Art. 518-519). But if the buyer is a retailer, then he can immediately claim to replace the incomplete product returned to him by the consumer (there is no spare wheel in the car). Instead of presenting the requirements provided for by Art. 475, 480 of the Civil Code, the buyer has the right to purchase undelivered goods from other persons and attribute his necessary and reasonable expenses to the supplier (Article 520).
In more detail in comparison with the general provisions of Ch. 30 regulates the actions of the buyer who refuses the goods in connection with this or that violation of the terms of the contract: he must leave the goods with him for safekeeping, i.e. ensure the safety of the goods, as well as immediately notify the supplier of your refusal (Article 514). If the buyer performs only one of these actions, then the supplier is not considered to be in delay in delivery (clause 10 of the Regulation).
With regard to the supply agreement, the buyer's obligation to accept the goods is specified: the buyer must take the necessary actions to ensure the acceptance of the goods (prepare the warehouse, find out about the time of arrival of the wagon with the goods, etc.), as well as inspect the goods within the time specified in the contract or arising from business customs, check the quantity and quality. If the delivery of the goods was carried out using the carrier, he should check the conformity of the goods with the information specified in transport documents(Article 513). The procedure for checking the quality of some goods is established in GOSTs, technical regulations. Previously, such normative acts as Instructions on the procedure for accepting industrial and technical products and goods were used. popular consumption by quality and quantity No. P-6, P-7, adopted in 1965-66. However, at present they do not act as normative acts, but can become part of the contract when referring to the corresponding paragraphs of the Instructions when concluding a supply contract (clause 14 of the Resolution).
With regard to the buyer's obligation to pay for the goods, the general rules of paragraph 1 apply. However, given that the parties to the contract are, as a rule, entrepreneurs, payments for the delivered goods are made through non-cash payments. The form and procedure are set in the agreement, and if not set, the buyer must use a form such as payment orders. In case of unreasonable refusal of the buyer to pay, the supplier has the right to demand actual performance in court (Article 516). Finally, an additional obligation is imposed on the buyer - to return the reusable containers (cans, boxes, pallets) in the order and juices established by the legal regulation or contract.
Termination of the supply contract is possible both on grounds common to most obligations (expiration of the agreement, impossibility of performance, proper performance, offset of homogeneous requirements), and on special grounds that are associated with a violation of the obligations of one of the parties. So, in Art. 523 provides for cases when a party to a supply contract arises the right to unilaterally refuse to perform the contract, i.e. out of court, by sending a notification to the contractor in breach of the obligation. Such material breaches of the supplier include: delivery substandard goods with significant disadvantages; repeated violation of delivery dates. Violations of the buyer, granting a similar right to the supplier: repeated violation of the terms of payment and repeated non-selection of goods. However, these are not all possible violations that may lead to the termination of the contract. Some of them are also named in the paragraph on the supply agreement (failure to provide the shipping order on time), some can be found in the general provisions on the sale and purchase (sale of goods with significant defects, non-handover of the thing). Finally, it should be borne in mind that the parties themselves in the contract can determine those violations that will be in this case a significant violation of the contract and the basis for its early termination. In all other cases, one should proceed from the general rule of Art. 450 of the Civil Code, which allows the termination of the contract unilaterally in the event of a material breach of the contract, which must be proven in court.
The specificity of the supply contract has caused the emergence of a special rule on the consequences of early termination of the contract due to its violation: if, within a reasonable time, the injured party purchased the goods at a higher price than before or sold at a lower price, then it may demand compensation for losses in the form of a price difference (Article 524). These losses, called "specific" in science, are a kind of lost profit. If a party could not at all purchase or sell the required product on the market where there is a current price for this product, then it has the right to demand compensation for losses in the form of the difference between the price set in the contract and the current price (abstract losses). But even in this case, the plaintiff should prove the very fact of violation of his rights, the presence of losses, a causal relationship, and also provide evidence that they attempted to conclude a new transaction to replace the terminated one.
LECTURE 4. DELIVERY OF GOODS FOR STATE AND MUNICIPAL NEEDS
The supply of goods for state and municipal needs is another legislatively distinguished version of the purchase and sale agreement, the regulation of which is devoted to a special paragraph within the framework of Ch. 30 GK. any state has certain tasks and must perform certain functions to ensure its existence and independence (defense, implementation of social programs, strengthening the economy, etc.). For the effective implementation of these functions, the state needs various resources (food products, weapons, new technologies, scientific developments). The presence of such needs of the state and municipalities, as well as the peculiarities of public law entities (PPO) as subjects civil law were taken into account by the legislator when building a model of a supply agreement: despite the undoubted similarity in the essence of relations under a supply agreement and relations for the acquisition of goods for state or municipal needs, they act as independent types of sales contract.
Thus, the distinguishing features of the supply for state needs are: participation in these relations of the state or a municipality represented by the relevant executive authorities, and special purposes - the acquisition of goods for state or municipal needs.... The concept of state (municipal) needs is disclosed in Art. 525 Civil Code, Art. 3 of the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" dated July 21, 2005 as amended. dated 08.11.2007, No. 94-FZ. The Civil Code indicates 2 signs of state needs: the needs of the Russian Federation or a constituent entity of the Russian Federation and their provision at the expense of budgets or extra-budgetary sources of funding. The Law provides a more detailed definition of state needs, including, along with the named ones, such a sign as nature of need- the need for goods, works, services, as well as their relationship with the functions of the corresponding application software. The functions, the implementation of which requires the conclusion of contracts for the supply of goods, include: implementation of federal, regional or local targeted programs; formation of the state material reserve; fulfillment of the obligations of the Russian Federation under international treaties; ensuring the required level of security and defense capability of the country.
As a kind of sales contract, the supply of goods for state needs is regulated, first of all, by the norms of the corresponding paragraph of Ch. 30 GK. But, since the state performs various functions, the specificity of delivery obligations is also expressed in a number of federal laws. So, relations on the supply of goods to the state material reserve are regulated by the Federal Law "On the state material reserve" dated December 29, 1994. as amended by from 02.02.2006 No. 79-FZ; relations for the supply of goods to maintain the required level of defense and security of Russia - Federal Law "On State Defense Order" dated 27.12.1995. as amended by from 01.12.2007 No. 213-FZ; agricultural products - Federal Law "On purchases and supplies of agricultural products, raw materials and food for state needs" dated 02.12.1994. as amended by from 02.02.2006 No. 53-FZ. There is also the Federal Law "On the supply of products for federal state needs" dated 13.12.1994. as amended by from 02.02.2006, which established the general economic and legal principles supplies for state needs, the procedure for the formation and execution on a contractual basis of orders for the supply of goods for state needs. The specifics of placing public orders are stipulated by the provisions of the Federal Law No. 94-FZ. These regulations apply in the part not regulated by paragraph 4 of Ch. 30 GK. Since the financing of state and municipal purchases is carried out at the expense of the budgets of the corresponding level, the norms of the Budget Code of the Russian Federation are applied (Articles 69-74).
Given the obvious similarity of the relations under consideration with the supply for ordinary business purposes, the law allows for the subsidiary application of the provisions of the paragraph on the supply agreement to the obligation to supply goods for state needs. It should also be borne in mind that some by-laws apply to these legal relations. For example, the Government Decree "On the list of goods, works, services for state and municipal needs, the placement of orders for which is carried out with small businesses" dated 04.11.2006. as amended by from 05.10.2007 No. 642; PP "On approval of registers of state or municipal contracts concluded following the placement of orders .." dated 27.12.2006. No. 807.
In accordance with Art. 526 of the Civil Code under a state or municipal contract for the supply of goods for state or municipal needs, the supplier undertakes to transfer the goods to the state or municipal customer or, at his direction, to another person, and the customer undertakes to ensure payment for the delivered goods (as amended by the Federal Law of 02.02.2006)... It follows from the definition that the basis for the supply of goods is a state or municipal contract, the parties to which are the customer and the supplier. But along with the state contract, a supply contract between the supplier and the buyer can also be concluded. Such a structure of contractual ties when supplying for state needs is called complicated because it involves two different supplier agreements with different entities. If, under the terms of the contract, the goods must be transferred directly to the customer or to a person indicated by him, then there is simple structure of contractual ties, the supplier is bound by an obligation with only one entity - the state customer.
State or municipal customer may be a state body, governing bodies of state extra-budgetary funds, local government bodies, budgetary institutions and other recipients of funds from the federal budget, as well as budgetary institutions and other recipients of funds from regional or municipal budgets, if they are authorized by a state body of a constituent entity of the Russian Federation or a municipal body for placement orders (Article 4 of the Federal Law No. 94). Supplier when supplying goods for state or municipal needs, there can be any entity - legal entities of any organizational and legal form and any form of ownership, location and place of origin of capital, as well as any individual, including an individual entrepreneur (Article 4 of the Law). Foreign legal entities can act as suppliers. persons and foreign citizens, because The law establishes a national regime for the supply of goods originating from a foreign state (Art. 13). However, when supplying goods to ensure the defense and security of the Russian Federation, the Government may impose restrictions on the participation of non-residents. In addition, it should be borne in mind that when placing orders, certain requirements may be imposed on potential suppliers (Article 11 of the Law).
To conclude a government contract and the emergence of a supply obligation for state needs, it is necessary to determine in what goods and in what volume there are needs from the state or a municipal formation in a given financial year. In other words, the application software must first form an order for state or municipal purchases and then start looking for a supplier of the required product.
Placing an order for the supply of goods means the actions of customers, authorized bodies to determine suppliers in order to conclude contracts with them for the supply of goods for state or municipal needs, or provided by law cases of concluding other civil law contracts with them(Article 5 of the Law). Exactly what actions will be taken when placing a government order depends on which method of placement is chosen, but in any case the ultimate goal of placement is to identify a supplier and conclude a state contract with him for the supply of goods or a supply agreement... The possibility of placing an order on a non-contractual basis is an exception provided for in paragraph 14 of Art. 55 GK. The methods of placing an order (determining the supplier-party to the contract) are enshrined in Art. 10 of the Law and can be conditionally combined into 2 groups: with bidding (competition, auction) and without bidding (request for quotes, on the exchange, from a single supplier). At the same time, bidding, which ensures the selection of a supplier on a competitive basis, is declared a priority method for placing a government order. The choice of the method of placing the order is made by the customer, but taking into account the mandatory provisions of the law establishing the selection criteria.
Under competition The law understands the type of bidding in which the supplier is recognized as the winner. Better conditions execution of the state contract and the application of which the first number is assigned (Article 20). The competition can be both open, when the number of potential participants is not limited, and closed. But holding a tender in a closed form is allowed only in the case when an order is placed for the supply of goods, information about which constitutes a state secret. Auction- a type of auction in which the winner is the participant who offered the lowest price for the delivery of goods. Bidding in the form of an auction is possible if the delivery of goods is expected, the comparison of which is possible only by price, and for which there is a functioning market. According to paragraph 4 of Art. 10 of the Law, the Government approves the list of goods, the acquisition of which is possible through an auction (Decree of the Government of the Russian Federation of 15.05.2007, No. 609-r.).
Placing an order by requesting quotes- a method of placement, in which information about the needs for goods for state needs is communicated to an indefinite circle of persons by posting on the official website and the winner is the participant who offered the lowest contract price (Article 42 of Law No. 94-FZ).
Placing an order with a single supplier means that the customer proposes to conclude a contract or supply agreement to only one supplier, without bidding. An exhaustive list of cases when it is allowed to place an order with a single supplier is provided for in clause 2. Art. 55 of Law No. 94-FZ.
Placing an order on commodity exchanges it is possible if the subject of delivery is an exchange commodity and the contract price is at least 5 million rubles (Article 56).
The conclusion of the contract is carried out between the state customer and the supplier recognized as the winner of the auction, request for quotations or the only supplier who has accepted the offer (offer) for the supply of goods for state needs. According to Art. 527 of the Civil Code, the conclusion of a contract is mandatory for the customer from the moment the order is placed (choosing the method of placement and taking actions to place it). For the supplier, the conclusion of a contract is mandatory only in cases stipulated by law and subject to reimbursement of customers for all losses arising in connection with the execution of the order (clause 2 of article 527). However, losses will not be reimbursed if the winner of the auction or request for quotation evades the conclusion of the contract in the event of a deliberate understatement of the offered price. Losses are not reimbursed to state-owned enterprises.
The Civil Code contains rules on the procedure for concluding a contract (Article 528), which establish the sequence of actions of the parties and the timing of the submission of the draft contract by the customer and its consideration and response by the supplier. If within this period the contract is not signed and returned to the customer, the supplier is deemed to have evaded the contract, which gives the customer the right not to return cash, transferred to the security of the application, as well as to apply to the court with a requirement to compel the supplier to conclude a contract and reimburse the losses caused by the supplier's inaction, or send a draft contract to the participant, whose application was assigned the second number.
The execution of the state contract differs somewhat depending on the structure of the contractual ties. With a simple structure, the goods are handed over directly to the state customer or to the recipients specified in the shipping orders. If the parties have chosen a complex structure of contractual ties, a third party appears in the supply relationship for state needs - customer, with which the supplier is obliged to conclude a supply agreement on the terms agreed in the contract. The conclusion of the contract is obligatory only for the supplier, while the buyer can refuse to conclude it. The consequences of refusal are provided for in Art. 530 GK. The peculiarity of this variant of the delivery relationship is that the buyer bears the obligation to pay, while the customer acts as a guarantor for the buyer's monetary obligation. Therefore, the law provides that the customer must, within 30 days after receiving the supplier's notification, inform him of the information about the new buyer; issue a shipping order indicating the recipient of the goods; either accept and pay for the goods, i.e. perform duties in place of the buyer. The execution of the contract may turn out to be unprofitable for the supplier, therefore the legislator establishes the obligation of the customer to compensate for losses caused by the performance of the contract within 30 days after the transfer of the goods. Failure to fulfill this obligation gives the supplier the right to refuse to perform the contract and demand compensation for losses caused by the termination of the contract (Article 533). As for the fulfillment by the supplier of his obligations under the supply contract, it does not have any specifics and is governed by the norms of the paragraph on the supply.
For late fulfillment of obligations by the customer, the Law "On Placing Orders" provides such a measure of responsibility as legal penalty... According to Art. 9 forfeit is charged for each day of delay in the amount of 1/300 of the Central Bank's refinancing rate. To be exempted from liability for delay, the customer must prove the existence of force majeure or the fault of the counterparty. As for the sanctions for violation of the terms of delivery by the second party to the contract, they must be established in the contract, the law provides for a minimum penalty limit - 1/300 of the refinancing rate. Penalties for failure to fulfill obligations by the supplier are also provided for in special laws (50% for underdelivery of agricultural products). The grounds for exemption from liability are similar to those provided for the customer (paragraphs 10-11 of article 9 of the Law on placing orders).
LECTURE 5. CONTRACTING
Contracting is a type of sales contract. Under this agreement, the manufacturer (seller) undertakes to transfer the agricultural products grown (produced) by him to the purchaser (buyer, contractor), who purchases it for processing or sale, and the latter undertakes to accept, ensure export and pay for it (Articles 535-538 of the Civil Code of the Russian Federation).
Peculiarities contracting agreements:
The parties to the contract are manufacturer agricultural products and her purveyor, i.e. persons engaged in entrepreneurial activity in the production (growing) of agricultural products (manufacturer), processing or sale (procurement). \
The subject of the contract can be exclusively agricultural products in their raw form or that have undergone primary processing or processing that does not lead to a change in their original properties. As a rule, these are things defined by generic characteristics that will be produced after the conclusion of a contracting agreement.
Growing is associated with various stages (sowing, processing, harvesting),
which do not depend on the will of the producer of agricultural products (drought, rains). The amount to be transferred of agricultural products can not always be expressed in an exact figure.
The discrepancy between the moment of conclusion and the moment of execution of the contracting agreement.
The emergence of special rules on the contract of contracting is associated with the need to protect more weak side contracts - producers of agricultural products, since its activities are subject to various adverse natural phenomena. Regulation is carried out by the burrows of the corresponding paragraph of Ch. 30 of the Civil Code, special regulations (Federal Law "On the procurement and supply of agricultural products, raw materials and food for state needs"), regulations on the supply in the part not regulated by special rules, as well as general provisions on the sale and purchase.
Features of the content and execution of the contracting agreement:
the procurer must export agricultural products himself, unless otherwise provided by the contract.
The procurer does not have the right to refuse the products transferred within the specified time period and corresponding to the contract, if the acceptance is carried out at the location of the procurer or in another place indicated by him.
The contracting agreement may provide for the obligation of the supplier to return to the producer waste from the processing of agricultural products.
As a general rule, the risk of accidental loss of products from the moment of their acceptance by the supplier passes to the latter.
The procurer becomes the owner from the moment of acceptance of the product, which means that he bears the burden of its maintenance, unless otherwise provided by the contracting agreement.
Peculiaritiesresponsibility of the parties to the contracting agreement:
Manufacturer agricultural products in case of non-performance or improper performance contractual obligations bears responsibility to the supplier only if there is his fault.
Procurer as an entrepreneur bears increased responsibility on the basis of risk (clause 3 of article 401 of the Civil Code).
LECTURE 6. POWER SUPPLY CONTRACT
The energy supply contract is defined in art. 539 of the Civil Code as an agreement under which the ESS undertakes to supply the subscriber (consumer) with energy through the connected network, and the subscriber undertakes to pay for the received energy, as well as to ensure the regime of its consumption stipulated by the contract, the safety of operation of the energy networks under its control and the serviceability of the devices and equipment used by it related to energy consumption... In other words, from the standpoint of the current legislation, an energy supply contract is a kind of a sales contract, and energy is considered as special goods, which can be the subject of transactions for paid alienation.
In a physical sense energy is a property of matter, which is given a certain state to perform useful work, to ensure the implementation of various technological operations, to create the necessary conditions for economic activity and satisfaction of basic human needs... Thus, given the immateriality of energy from the point of view of the right, e / energy should be considered in as a special object different from things (the opposite opinion was expressed by I.V. Eliseev). From this specificity of energy as an object of civil law, the following features follow, which are manifested in the process of fulfilling energy supply obligations:
The existence of e / energy can only be judged by its consumption (example with a stove);
Quantitative and qualitative parameters of energy can be determined only with the use of special technical devices (metering devices);
The impossibility of using the usual methods of fulfilling the obligations for transmission and acceptance: the transfer of energy to the consumer is carried out exclusively through the connected network - special power receivers connected to the seller's power networks; In this regard, the legislator does not speak about "transmission", but about "supply" of energy.
The need to take special safety measures in the supply and use of energy;
Impossibility of accumulation, storage: acceptance of e / energy coincides with the moment of its consumption.
The ongoing nature of the energy supply relationship.
In the legal literature, debatable is the question of whether the subject of the energy supply agreement is only electricity, or it also covers thermal energy and the so-called energy resources, i.e. energy carriers(oil, gas, water). The solution to this issue depends on what is considered as a qualifying feature of the contract: the specifics of energy as an object of civil law or the method of fulfilling the transfer obligation - through the connected network. In the first case, the subject of the contract is limited exclusively to energy - electrical and heat, in the second - it includes energy resources, provided that they are transmitted through the connected network (if in cylinders, then delivery). It seems that it is necessary to take into account these two characteristics in aggregate, since energy can be accumulated in special carriers that do not require connection to the technical infrastructure. For example, e / energy is obtained from a battery, gas can be supplied in cylinders, oil - in special containers (tanks). Such relations associated with indirect transmission of energy do not require special legal regulation and are covered by the rules on delivery or general provisions on the sale and purchase.
As for the cases when energy carriers are transmitted through networks (gas through a gas pipeline), the literal interpretation of the provisions of Art. 539, 548 of the Civil Code leads to the conclusion that the legislator does not include them in the subject of the energy supply agreement . In these cases, the supply of energy resources occurs through their transportation through pipelines. Thus, subject of a contract covers actions of the parties; the object of the subscriber's right is e / energy and heat, the transmission ratio of which is regulated special regulations and in a subsidiary manner - by the norms of § 6 of Chapter 30 of the Civil Code. The relations on the supply of gas, oil, water, etc. are regulated by subsidiary rules on the power supply contract, unless otherwise provided by regulatory legal acts and does not follow from the essence of the obligation. So, in relation to the transmission of gas through the pipeline, the Federal Law "On Gas Supply to the Russian Federation" of 03/31/1999 as amended by No. dated 18.12.2006 No. 69-FZ, Gas Supply Rules, approved. By the Decree of the Government of the Russian Federation of 05.02.1998. No. 162 as amended. from 07.12.2005
The legal regulation of energy supply relations has undergone significant changes in connection with the ongoing reform in the electricity sector. Over the past few years, a significant number of regulations have been adopted, which required a change in the hierarchy of norms on energy supply and amendments to Art. 539 Civil Code (Federal Law dated 26.03.03). Thus, first of all, the rules of special laws and regulations are applied to the energy supply contract, and, in the part not regulated by these acts, the norms of the corresponding paragraph of the Civil Code, and in case of their insufficiency - the general provisions on the sale and purchase. The main provisions related to the power supply agreement are contained in the Federal Law “On the Electricity Industry” dated 26.03.2003. as amended by from 18.12.2006 No. 35-FZ and "Rules for the functioning of retail electricity markets in the transitional period of reforming the electric power industry", approved. By the Decree of the Government of the Russian Federation of 08.31.2006. No. 530; "On the rules of the wholesale electricity (capacity) market in the transition period"; Decree of the Government of the Russian Federation of 12.07.1996 as amended by dated 30.12.2003 No. 793 "On the Federal (All-Russian) Wholesale Electricity Market".
Parties to the contract... A significant change in the structure of contractual ties in relations for the circulation of electricity, the emergence of new subjects makes the issue of the parties to the power supply contract urgent. In the Civil Code, the ESP and the subscriber (consumer) are named as such, but there is no decoding. The Federal Law "On State Regulation of Tariffs for Electric and Heat Energy" determined ESO as an economic entity selling produced or purchased electrical (thermal) energy(v. 1). In the legal literature, an opinion has been expressed on the recognition of an ESP of any entity that produces and (or) sells e / energy to the consumer. However, this definition of ESP is too broad, since at present, the production and sale of e / energy can be carried out by various entities both in the wholesale and retail markets. In addition, it should be borne in mind that the energy supply contract is public, that is, for the ESP there is an obligation to conclude an agreement with any person who applies, whose power receiving devices are connected to the network. The only participant in the wholesale and retail trade, for whom freedom of contract is limited by law - supplier of last resort.
The definition of a subject that can currently be recognized by an ESP is also difficult because the necessary certainty is lacking in the normative legal acts regulating relations for the circulation of electricity. Thus, the Rules for the Functioning of Retail Markets distinguish ESPs as an independent entity along with energy sales organizations and guaranteeing suppliers. However, when determining the procedure for concluding an energy supply contract and its execution, only the SOE is mentioned. Taking into account the peculiarities of the status of this participant in legal relations for the supply of electricity (the obligation to conclude an agreement, control over its activities, guarantees of continuous supply of energy to consumers), it should be concluded that a supplier of last resort may participate as an ESS in energy supply relations... Sales organizations can act as a party to an energy supply contract if they take on such an obligation voluntarily (Article 426 of the Civil Code).
The other party to the energy supply contract is subscriber- individuals and legal entities who purchase electricity for household needs or other consumption (consumers), as well as utility service providers in order to fulfill their contractual obligations to tenants or owners of residential premises, can act. The Civil Code provides for the possibility of participation in relations on energy supply of one more participant - sub-subscriber receiving e / energy from a subscriber on the basis of a contract. However, civil legislation does not determine its legal status and the type of contractual relations with the subscriber, in connection with which, in practice, disputes arise about forcing the subscriber to conclude an agreement for the supply of electricity to the latter. The courts have different approaches to resolving these disputes, in some cases equating the position of the subscriber with the position of the ESP in relations with the subscriber, and in others - denying the enforcement action. Despite the fact that the subscriber actually acts as an ESP, supplying the received e / energy to the sub-subscriber, it is legally impossible to recognize his ESP, since he does not own the interconnected grid and is not bound by a public energy supply contract.
Requirements for the form of an energy supply contract are established by the Rules for the Functioning of Retail Markets: as a general rule, the contract is concluded in simple writing by sending an application to the guaranteeing supplier with the attachment of documents confirming the fulfillment of the conditions necessary for its conclusion (clauses 62-62 of the Rules). An exception to the rule on observance of the written form is established for a subscriber - a citizen. According to clause 64 of the Rules, the absence of a written energy supply agreement does not affect the decision on recognizing it as concluded. The proof of the contractual relationship with the SOE is the documents on payment for the consumed electricity, and the moment of the conclusion of the contract is the beginning of the period for which the payment was made for the first time. In the absence of a written power supply agreement, the SE is obliged, upon the request of a citizen-subscriber, to send him, within 5 days, free of charge, information on the conditions under which the power supply is carried out. In this case, the terms of the Model Energy Supply Agreement may be used (see Appendix to the Rules).
WITH social conditions energy supply contracts differ depending on who is on the side of the subscriber - a citizen or an organization. Since the ESO provides the subscriber with the opportunity to use energy from its network within the limits stipulated by the contract, when concluding an agreement with legal. person, an essential condition along with the definition of the subject is the condition on the amount of supplied electrical energy, and its absence entails the recognition of the contract as not concluded. Judicial practice also follows this path (see clause 1 of the Information Letter of the Supreme Arbitration Court of the Russian Federation of August 17, 1998 No. 30). This condition is considered agreed if the contract provides for the number of kilowatt-hours of electricity and the amount of connected or declared capacity of the subscriber's power plant. Along with the condition on the quantity in the contract with the subscriber - legal. person must be determined and power consumption mode, which follows from Art. 541 CC. Term is not an essential condition, and the power supply contract can be concluded both for a certain period, and without defining a period. An agreement with the participation of a citizen is considered, as a general rule, concluded for an indefinite period. Considering the importance of uninterrupted supply of electricity to subscribers, the law provides for a rule on the automatic prolongation of a fixed-term contract by default of the parties (clause 2 of article 540).
Obligations of the seller under the energy supply contract:
The main duty is to supply the subscriber with energy in the amount specified in the contract or necessary for domestic consumption, in compliance with the supply regime and of proper quality, in compliance with the principle of continuity and uninterrupted supply of energy.
Additional obligations (in a contract with a citizen subscriber) are to ensure the proper technical condition and safety of energy networks, energy consumption meters.
Obligations of the subscriber under the power supply agreement:
Ensuring proper technical condition, safety of operated energy networks, devices, equipment, compliance with the established regime of energy consumption, notify the energy supplying organization about accidents, fires and other malfunctions
Pay for energy for the amount of energy actually accepted by the subscriber in accordance with the energy metering data, unless otherwise provided by law or by agreement of the parties.
The subscriber does not have the right to increase or decrease energy consumption in a particular period of the day, etc., in violation of the established limits.
The implementation of the principle of continuity and uninterrupted operation is expressed in the establishment of an exhaustive list of grounds for interruption in the supply, restriction and interruption of the supply of energy (Article 546 of the Civil Code), as well as the procedure for limiting and stopping the supply (paragraph 175 of the Rules for the functioning of retail markets).
Peculiarities of liability in case of violation of obligations under the contract ener state supply: both parties (the energy supplying organization and the subscriber) bear the same limited liability in the form of compensation for non-performance, improper performance of real damage (Article 547 of the Civil Code).
LECTURE 7. REAL ESTATE SALE
The legal definition of such a type of sale and purchase agreement as the sale of real estate is formulated in Art. 549: under the contract for the sale of real estate, the seller undertakes to transfer the ownership of the buyer to the land plot, building, structure, apartment or other real estate... It follows from the definition that the sale of real estate is one of the types of purchase and sale agreement, because presupposes the alienation of things in exchange for the monetary equivalent. Therefore, the characteristics of a sale and purchase agreement as a paid, mutual and consensual agreement are quite applicable to the sale of real estate.
The need to establish special rules governing the alienation of immovable property is mainly due to the specifics of the object of sale. As you know, the legal regime of real estate objects differs significantly from the legal regime of movable things and implies the need for state registration of rights to these objects, as well as special rules for making transactions with them. The legal regulation of relations on the sale of real estate within the framework of the Civil Code is built on the principle of "from particular to general": first, the norms of the relevant paragraph are applied, and only if they are insufficient, general provisions on the sale and purchase are applied. In addition to the Civil Code, these relations are regulated by other regulatory legal acts: many real estate objects are natural resources, the peculiarities of the turnover of which are taken into account in the Land Code (land plots), the Federal Law "On Subsoil" (subsoil plots), "On the turnover of agricultural land", The Water Code (water bodies), the Forestry Code (forest areas), the Air Code (aircraft), KTM (sea vessels), etc. There are also features of the sale of real estate in the execution of court decisions (Federal Law "On Enforcement Proceedings"), in the process of privatization (Federal Law "On the Privatization of State and Municipal Property"). With regard to the registration of the buyer's property rights, the Federal Law "On State Registration of Rights" No. 122-FZ as amended. from 30.06.2008
Special rules for the sale of real estate impose more stringent requirements on the form of the contract in comparison with the general provisions: in accordance with Art. 550 CC, the contract for the sale of real estate must be concluded in simple writing by signing one document by the parties. This means that such possible methods of compliance with the written form, such as the exchange of letters, the use of telephone, postal, electronic communications for the transfer of an offer and acceptance, in this case are not applied. At the same time, the legislator does not establish the need for notarization of the real estate sale agreement, therefore the notarial form can be applied at the discretion of the parties. The consequences of non-compliance with the written form are also more severe than the general rule - the invalidity of the transaction.
With regard to state registration, the sale of most real estate objects does not require registration of the transaction. An exception was established only in relation to residential premises and enterprises (Art. Art. 558, paragraph 2, 560 of the Civil Code). Consequently, if it is intended to sell, for example, an apartment, the contract is considered concluded from the moment an entry is made in the Unified State Register of Legal Entities on the sale and purchase transaction (clause 3, Article 433). The procedure, grounds for registration of contracts with immovable things are enshrined in the law "On state registration of rights", Instructions "On the procedure for state registration of contracts of sale and transfer of ownership of residential premises", approved. By order of the Ministry of Justice No. 233 as amended. from 24.12.2004
Essential conditions... As with the conclusion of a sales contract for other goods, the parties must agree on the condition of the item. However, in relation to the sale of real estate the law contains more stringent requirements: the parties must not only name the property to be transferred (land plot, residential building), but also indicate data that allows it to be definitely established, including data that determine the location of real estate on the corresponding land plot or as part of other real estate(Art. 554). Any immovable thing is always individually defined, and its individualization, separation from a number of similar objects is ensured not only by natural features, but also by introduced features that appear as a result of cadastral and technical registration. Cadastral and technical accounting presupposes the description and individualization of the real estate object, as a result of which the object receives characteristics that make it possible to unambiguously distinguish it from among other real estate objects. Accounting is accompanied by the assignment of a cadastral number to the immovable (Article 5 of the Federal Law "On the State Real Estate Cadastre"). This cadastral number (conditional number in the absence of a cadastral number), along with other data, is indicated in the Unified State Register and serves to determine the object of the buyer's right under the real estate sale agreement. Currently, it is planned to create and maintain a unified register of real estate objects, including land plots. (Federal Law "On the State Real Estate Cadastre dated July 24, 2007 No. 221-FZ"). In accordance with paragraph 6 of Art. 12 of the Law in subsection 1 of the USRR the following information about the real estate object is indicated: address (location); name (type); area (according to the cadastral passport or other document); appointment and other necessary information. Therefore, this information should be reflected in the contract for the sale of real estate. They are entered into the contract on the basis of the data contained in the cadastral plan (for land plots), extracts from the household book (for land plots provided for running a personal subsidiary farm), a technical passport (buildings, structures and premises in them), a declaration of the object real estate (for objects of individual housing construction in the cases provided for in Art. 25.3).
Another essential condition that must be agreed by the parties when selling real estate is price of the object being sold... The absence of this condition in the agreement entails the recognition of the agreement as not concluded, as well as the refusal of the FRS to register the sale agreement or transfer of ownership. The price can be determined in different ways, including by indicating the cost per unit of area or another indicator of its size. In this case, the total price will be equal to the cost per unit × the actual size of the item being sold. It should also be borne in mind that most immovable things have a strong connection with the land, in connection with which the general rule applies: the price of the contract for the sale of real estate includes the price of the part of the land plot transferred with the object or the right to it (clause 2 of Art. 555).
Parties to the contract real estate sales - seller and buyer. The relevant paragraph does not establish special requirements for the seller, therefore, in this capacity, any owners of real estate - citizens and legal entities - can enter into a sales contract. It is also possible to conclude a contract by a person authorized by the owner to sell. So, in relation to federal property sold through privatization, the functions of the Russian Federation in the sale in most cases are performed by the Federal Agency for Federal Property Management (Article 6 of the Federal Law "On Privatization"). At the same time, in addition to the general requirements regarding legal capacity and legal capacity for the seller, it is necessary to remember about the restrictions in force in relation to unitary enterprises, institutions, as well as spouses. For transactions for the disposal of real estate and transactions requiring notarization and (or) state registration, you must first obtain a notarized consent of the second spouse. The consequences of non-compliance with this requirement are the possibility of recognizing the sales contract as invalid within 1 year at the claim of the second spouse (clause 3, Article 35 of the SK).
In relation to the buyer, the law does not establish any requirements, therefore, all subjects of civil law can acquire real estate under a sale and purchase agreement, taking into account the general rules on legal capacity and legal capacity.
Obligations of the seller:
the seller is obliged to transfer the object of the transaction to the ownership of the buyer. The fulfillment of this obligation involves the creation for the buyer of conditions for the unhindered possession and use of the property (delivery of property) and the signing of the corresponding transfer document (clause 1 of Art. 556). A deed of transfer or other similar document must be signed by both parties, therefore, the evasion of any of them from signing is considered a violation of the corresponding obligation - to transfer or accept the immovable. If defects are found in the transferred real estate object, the buyer has the right to declare the requirements provided for in Art. 475 of the Civil Code, except for the requirement to replace goods with a similar one.
The seller must ensure that title is transferred to the buyer. The allocation of this obligation as an independent one is due to the fact that, unlike the alienation of movable things, the transfer of the immovable does not make the buyer the owner: for this it is necessary to make an entry in the Unified State Register on the termination of the seller's right of ownership and its emergence from the counterparty (clause 1 of Art. 551). To fulfill this obligation, the buyer's assistance is also required: according to Art. 16 of the Registration Law and the Rules for maintaining the Unified State Register of Legal Entities, registration of rights is carried out on the basis of statements by the parties to the agreement or a person authorized by them and the presentation required documents(payment document about payment of state duty, title document, a copy of the contract and documents that describe the subject of the transaction). Consequently, the failure to provide these documents to the registering authority is considered as evasion from registration of the transfer of ownership to the buyer. The consequences of evasion are provided for in paragraph 3 of Art. 551 GK: the second party has the right to go to court with a requirement for state registration. In this case, the basis for making entries in the USRR, along with other documents, is a court decision.
Buyer's responsibilities:
Buyer's rights to a land plot when the buildings located on it are sold:
in the case of the sale of a building or construction by the owner of the land plot on which they are located, the ownership of the land plot occupied by this real estate and necessary for its use is transferred to the buyer, unless otherwise provided by law (Article 552 of the Civil Code).
If the seller of the property does not own the land, the buyer acquires the right to use the land on the same terms as the seller (for example, the right to lease). Moreover, as a general rule, the consent of the owner of the land for the sale of real estate is not required (clause 2 of article 552 of the Civil Code).
LECTURE 8. CONTRACT OF SALE OF THE ENTERPRISE
the peculiarities of real estate in case of its paid alienation predetermined the appearance in Chapter 30 of the Civil Code special rules... However, they cover the relationship of purchase and sale of all real estate, with the exception of the enterprise. The peculiarities of the conclusion and execution of the contract of sale of this object are reflected in a separate paragraph of Chapter 30. The legal definition of the contract for the sale of an enterprise is contained in Art. 559 Civil Code: the seller undertakes to transfer the ownership of the buyer to the enterprise as a whole as a property complex, with the exception of rights and obligations that the seller is not entitled to sell to other persons... The definition expresses the peculiarity of this type of purchase and sale - the object of the buyer's right is such a specific object as an enterprise. It should be borne in mind that in this case, an enterprise is understood as an object of civil law, and not a subject - a state or municipal enterprise. This follows from the rule of Art. 559, which in terms of the subject of the transaction refers to the provision of Art. 132 of the Civil Code, where the enterprise is considered as a property complex used for entrepreneurial activity. However, the law does not contain any signs of an enterprise specifying what kind of property complex it is and how it differs from other property complexes. The legislator only gives an approximate list of the constituent elements of the enterprise. Nevertheless, in the legal literature, the elements that make up the enterprise are conditionally grouped into the following groups:
- material elements(real estate objects - buildings, structures, land, movable things - equipment, products, inventory);
- intangible items(rights of claim and debts arising in connection with the activities of the enterprise, as well as exclusive rights to the means of individualization of the enterprise, goods and services). As for the material elements, they are included in the enterprise as a necessary basis for its further activities (the building of the plant, in which the production of dairy products has already been installed and established). But without intangible elements, the acquisition of an enterprise in order to further use it in entrepreneurial activity does not make sense. Therefore, in relation to the sale of an enterprise, the legislator specifies that the exclusive rights to means of individualization (commercial designation, trademark, service mark) or the right to use these means of individualization obtained under a license agreement are also subject to transfer to the buyer upon sale of the enterprise.
As a type of sale and purchase, the contract for the sale of an enterprise is governed by special rules of the corresponding paragraph of Ch. 30 GK. In a subsidiary manner, the rules on the sale of real estate (Articles 549-558) can be applied to these relations, and in case of their insufficiency - the general provisions on the sale and purchase. Along with the Civil Code, there are regulations that take into account the peculiarities of the sale of enterprises in the process of privatization (Federal Law "On the Privatization of State and Municipal Property"), as well as during bankruptcy proceedings in case of the debtor's bankruptcy (Federal Law "On Insolvency (Bankruptcy)").
Parties to the contract... The seller in the obligation to sell an enterprise is usually an entrepreneur, which follows from the very essence of the enterprise as an object used in entrepreneurial activity. At the same time, it is possible that the owner of the enterprise will be an ordinary citizen (the enterprise passed by way of inheritance), including those who do not have full legal capacity. When privatizing the property complex of a unitary enterprise, the seller is the authorized authority of the corresponding level (Federal Agency for Federal Property Management; Property Fund of the Kemerovo Region "Kuzbassfond"). After the transfer of ownership to the buyer, the UP activity is impossible and it ceases to exist as a legal entity (Article 27 of the Privatization Law). The buyer of the enterprise, as a rule, is entrepreneur – commercial organization or an individual entrepreneur. But the acquisition of an enterprise by ordinary citizens, a non-profit organization or a public law institution is not excluded. In this case, it will be necessary to attract a specialist to manage the enterprise (trustee) or obtain the status of an individual entrepreneur. The law may establish additional requirements for the buyer (during privatization, there can be no UE, institutions and legal entities, the share of participation of a public law entity in the authorized capital of which is more than 25%).
Recognizing an enterprise as immovable property, the law establishes more stringent requirements for the form of a contract for the sale of an enterprise: according to Art. 560 of the Civil Code, it is concluded in writing by drawing up and signing one document by the parties. Failure to comply with the form entails the invalidity of the transaction. However, the conclusion of a contract for the sale of an enterprise is not limited to the drafting and signing of the relevant document: the parties must take actions to identify and certify the composition of the enterprise and its assessment. Thus, at the time of the transaction, the following documents must be drawn up and reviewed by the parties: inventory act; balance sheet; opinion of an independent auditor on the composition and value of the enterprise; a list of debts with an indication of creditors, the nature, size and timing of their claims (clause 2 of article 561 of the Civil Code). These documents are part of the contract, therefore, their absence is equated with non-compliance with the written form and entails the nullity of the transaction (paragraph 2 of Art. Art. 560). In addition, the law establishes the requirement for state registration of the contract for the sale of an enterprise, which affects the determination of the moment when the rights and obligations of the parties arise. The procedure for registering an agreement for the sale of an enterprise is provided for in the Federal Law "On State Registration", the Rules for making entries on the rights to an enterprise as a property complex and transactions with it in the USRR, approved. By order of the Ministry of Justice dated 04.03.2005. No. 16.
Obligations of the seller:
Notify the creditors of the enterprise in writing about its sale, i.e. on the change of the debtor in the corresponding obligation (Article 556 of the Civil Code). The creditor, who received the appropriate notification, can either agree with the transfer of the debt to the buyer, or disagree and submit claims for early performance or termination of the obligation and compensation for losses incurred in connection with this, or recognizing the contract of sale of the enterprise as invalid in whole or in part. But if such a debt is included in the enterprise and the buyer fulfills the obligation instead of the seller (pays the loan to the bank), the creditor cannot refuse to accept the performance (Article 313). In this case, the seller does not withdraw from the obligation and is jointly and severally liable together with the buyer of the enterprise (clause 4 of article 562). If the creditor was not notified of the sale of the enterprise, then similar claims can be declared by him within a year from the moment when he learned or should have learned about the sale.
carry out all the steps necessary to introduce the buyer into the scope of the acquired business, i.e. transfer the enterprise, providing the buyer with the opportunity to own and use the property complex; participate in signing deed of transfer; conclude an agreement on the alienation of the corresponding exclusive right that is part of the enterprise or on the granting of permission to the buyer to use the result of intellectual activity (means of individualization).
Ensure the transfer of ownership of the enterprise to the buyer. The ownership of the enterprise is subject to state registration by the registering authority, and if there are real estate objects in it, records are made in the USRR about the acquirer's ownership right at the location of each real estate object (Article 22 of the Law "On state registration of rights to real estate and transactions with it" ).
Buyer's responsibilities:
Accept the property, including by signing a deed of transfer;
Pay the price stipulated by the contract.
Buyer's rights:
Before the transfer of ownership, to dispose of the things and rights that are part of the enterprise to the extent that it is necessary for the implementation of entrepreneurial activity.
LECTURE 9. MENA
The definition of a barter agreement is enshrined in Art. 567 GK: under a barter agreement, each of the parties undertakes to transfer one product to the other party in exchange for another. Based on the legal definition, it is possible to distinguish signs exchange obligations:
Obligation to transfer property into ownership; compensatory nature; the counter grant is equivalent; expressed in commodity form. The first three signs combine exchange with other obligations to transfer property into ownership, in particular. With a sales contract. This circumstance is also taken into account by the legislator when determining regulatory framework... The last sign is commercial nature of the provision- is characteristic precisely of the exchange obligation, expresses its specificity, unlike other contracts that involve the onerous alienation of things. Thus, if we compare a barter agreement and a sale and purchase agreement, despite the presence of common, generic features, they are independent types of contracts, the differentiation of which is carried out according to the form of payment for the goods: money (sale and purchase) or goods (exchange). Despite the obviousness of this difference, in practice the qualification of the agreement, which assumes, on the one hand, settlements for mutual deliveries of goods, and on the other hand, mutual offset of claims, as a result of which there is no real payment in cash. However, if at the same time the parties assume the obligation of each party to pay in cash, such an obligation is a sale and purchase, and offset monetary obligations does not change its nature.
Legal regulation of the exchange agreement is carried out by the norms of Chapter 31 of the Civil Code, taking into account the specifics of the content and performance of the agreement. Taking into account the generic commonality of exchange and sale and purchase, the law allows the application of rules on sale and purchase in the part that does not contradict the essence of exchange. Thus, in terms of the fulfillment by the parties of obligations for the transfer of goods, the norms of Ch. 30 on quantity, quality and other performance requirements
Subject of the barter agreement:
Any property that appears to be a physical thing can be, regardless of whether this thing is movable; or immovable.
Things not seized and not restricted in circulation.
Parties: any subjects of civil law, taking into account the requirements for legal capacity (individuals) and legal capacity (legal entities).
Each of the parties is obliged to transfer the goods. The fulfillment of the obligation to transfer, including the requirements for quality, quantity, assortment, etc., as well as the legal consequences of non-fulfillment, improper fulfillment are governed by the relevant rules on sale and purchase. Given the mutual nature of the barter agreement, the law defines the moment of transfer of ownership of the exchanged goods differently: as a general rule, it arises for both parties simultaneously after each of them fulfills the obligation to transfer the goods (Article 570).
Each of the parties must transfer the goods free of the rights of third parties. The legal consequences of failure to fulfill this obligation are provided for in Art. Art. 571 of the Civil Code: the injured party has the right to demand not only compensation for losses, but also the return of the goods transferred to her to the offender.
LECTURE 10. CONTRACT OF GIFT
According to Art. 572 of the Civil Code, a donation is an agreement under which one party (the donor) transfers or undertakes to transfer the thing into the ownership of the other party (the donee) or property right to herself or to a third party, or relieves or undertakes to release her from property obligations to herself or to a third party... Unlike other transactions for the alienation of property, donation is a gratuitous transaction, i.e. does not imply the provision of any equivalent in return for what is received.
Features of the donation agreement:
A promise to donate something is recognized under a donation contract only if the rules on the form of a donation contract are observed.
A promise of donation in case of death is void.
In cases where there is a counter transfer of property under a donation agreement, then this is considered a sham transaction.
The subject of the gift must be specific.
Under a donation agreement, a thing can be transferred exclusively by the donor-owner. The transfer of the gift is carried out by means of its delivery, symbolic transfer (delivery of keys, etc.) or delivery of documents of title.
Subject of the contract donation covers not only the actions of the donor to transfer property into ownership, but also actions to transfer property rights or release from property obligations.
By the parties donation contracts are the donor and the donee. As a donor, both citizens and legal entities and public legal entities can act. If the donor is a minor citizen, then he himself cannot be the donor, even if the transaction amount is small, with the exception of donation at the expense of funds provided for these purposes by legal representatives or other persons with their consent (clause 2 of article 28 of the Civil Code). At the same time, they can be gifted if the subject of the gift is a movable thing. Considering that in the overwhelming majority of cases, the property of a minor or an incapacitated person is disposed of by his legal representatives and the fact that as a result of donation the property sphere always decreases, the legislator prohibits legal representatives from making donations at the expense of the ward's property, with the exception of ordinary gifts, the value of which does not exceed 5 minimum wages (Art. 575).
If the donor is a legal entity, the transaction should be correlated with the scope of its legal capacity. In addition, if the donor is a commercial organization, then donation is possible in relation to all subjects of civil law except for commercial organizations, which follows from a direct prohibition (Article 575). The establishment of this rule is due to the very nature of a commercial legal entity created for the purpose of making a profit. If the donor is a legal entity - non-owner of property (unitary enterprise, institution), then donation of any property and in any form requires the prior consent of the founder-owner (Article 576 of the Civil Code). That is, the rules on donation are special in relation to the rules on the right of economic management and operational management and are applied in the first place. However, the limitation does not apply to giving gifts of small value (5 minimum wages).
In relation to the donee, who can also be all subjects of civil law, the general requirements for the volume of legal and legal capacity apply. But, along with this, the legislator establishes a ban on receiving gifts, the cost of which exceeds 5 minimum wages, for certain categories of citizens: state and municipal employees in connection with the performance of their official duties or official position, as well as for employees of educational, medical institutions, social security institutions and other similar institutions, if the donor is a citizen being treated or supported or his relatives.
The form the donation agreement depends on the subject composition and the moment of transferring the thing to the donee: if at least one of the parties is a legal entity, the value of the gift exceeds 5 minimum wages, and also if the transfer of the gift occurs after the conclusion of the agreement (promise of donation), a written form is required.
Transfer a thing or property right, or release the donee from property obligations to himself or to a third party. The donor has the right to refuse to fulfill this obligation if there is one of the grounds provided for in Art. 577 GK:
If, after the conclusion of the donation agreement (the promise of donation), the donor's family or property status or his state of health has changed so much that the donation will lead to a significant decrease in his standard of living.
In the presence of obvious ingratitude of the donee (if the donee encroaches on the life of the donor or his family members or causes him bodily harm).
There may be cases when the donation agreement has already been performed, and the donee has become the owner of the donor's property or received other property benefits. But if after that he made an attempt on the life of the donor or his close relatives, or deliberately caused bodily harm to the donor, he may demand the cancellation of the donation, i.e. return of the thing, if it was preserved in kind at the time of the cancellation of the donation. If the donor died as a result of the assassination attempt, then his heirs can demand the cancellation of the donation. Other grounds for the cancellation of donation are named in Art. 578 of the Civil Code: if the donee under a donation agreement treats the donated thing in such a way that it threatens its death (or loss). Moreover, this thing should be of value to the donor (non-property, regardless of the price). At the request of the interested person, the court may cancel a donation made by an individual entrepreneur or a legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his entrepreneurial activity, within six months preceding the declaration of such a person as insolvent (bankrupt). The donation contract may stipulate the right of the donor to cancel the donation if he outlives the donee (Article 580).
The consequences of causing harm due to the shortcomings of the donatedstill:
Injury to life, health or property
donee under a donation agreement is subject to compensation by the donor .
Damage is only recoverable if it can be proven that these defects arose prior to the transfer donee , are not explicit and the donor, although and knew about the shortcomings, did not warn the donee about them.
The legally enshrined type of donation contract is donation, the distinguishing features of which are described in Art. 582 GK:
- special subject composition on the side of the donee. They can be citizens, as well as various non-profit organizations (foundations, social, educational and other institutions, museums, religious and public organizations and PPO).
- subject limitation only things and property rights;
- purpose of a gift- for generally useful purposes, i.e. a gift can benefit both society as a whole and its individual groups (donating new medical equipment will help the sick). If the property is donated to a legal entity, then it is not necessary to indicate the specific purposes of using the property; they can be determined by the organization itself, taking into account the goals of its activities, enshrined in the constituent documents. If property is donated to a citizen (library of books on jurisprudence), then it is imperative to indicate the purpose (to enable law students to use books). Otherwise, it is impossible to distinguish this agreement from the usual donation. If, as a result of a change in circumstances, it becomes impossible to use it for its intended purpose (the hospital was closed), it is necessary to obtain the donor's consent to use the property for another purpose, and if he is no longer alive or liquidated, the new purpose of the donated property is determined by a court decision. The use of property not in accordance with the specified purpose or changing the purpose in violation of the established rules gives the donor or his successor the right to cancel the donation (clause 4 of article 584).
LECTURE 11. RENTAL AND LIFETIME CONTENT
an annuity agreement is currently an independent civil law agreement included in the group of agreements on the transfer of property into ownership. This is confirmed by what is stated in Art. 583 Civil Code definition of the contract: under the annuity contract, one party (the recipient of the annuity) transfers the property to the other party (the payer), and the annuity payer undertakes, in exchange for the property received, to periodically pay the annuity to the recipient in the form of a certain amount of money or provide funds for its maintenance in another form... Despite a certain commonality with contracts of sale and exchange (targeting, compensation), rent has a number of independent features that make it possible to distinguish it from related contracts.
the obligation is unilateral - the obligation arises only for the annuity payer to provide periodic annuity payments (annuity).
unlike sale and purchase and exchange, an annuity contract is real in nature, which follows from the legal definition. Consequently, the contract is considered concluded only on the condition that the recipient transfers any property against the payment of rent. Some authors question the real nature of the rental obligation, the subject of which is real estate, because the legislator has established an additional requirement for such agreements - they are subject to state registration (Article 584). However, this requirement does not prevent the recognition of the rent as a real contract, but the legal effect of the transaction arises only if two requirements are met: on the transfer of the immovable and on the registration of the contract.
An annuity obligation has signs of a risky (aleatory) transaction: when concluding an agreement, the parties cannot know exactly what the amount of the counter-provision for the property transferred against the payment of annuity will be. In other words, the annuity payer can pay in the form of annuity payments more than the value of the property received or less (if the recipient dies). Whereas under a contract of rent or exchange, the counter-provision is always the equivalent of the goods received in return.
Annuity presupposes the establishment of a lasting relationship, involving the systematic performance of the obligation by the payer in favor of the recipient, which is not typical for sale and purchase or exchange. Moreover, in the obligation of lifelong maintenance with dependence, the relations of the parties are personally confidential, that is, moral standards are also taken into account when determining proper performance.
Thus, an annuity contract is similar to contracts of sale and exchange, but differs from them in the moment the obligation arises and the nature of the counter grant. The rules of the relevant chapter of the Civil Code are applied to the relations from the annuity agreement, within which there are rules applicable to all rental obligations (form, material conditions) and special ones, taking into account the peculiarities of a particular type of annuity (permanent annuity, when the obligation to pay annuity is not limited in time or life annuity). At the same time, the law allows the application of the rules on the sale and purchase, if the property is transferred against the payment of rent for a fee ( one-time payment at the conclusion of the contract) or on donation, if the property is transferred free of charge.
In most cases, a rental agreement is resorted to by persons who need to maintain a standard of living by earning a certain periodic income, as a rule, socially unprotected categories of the population. In addition, the contract presupposes a long-term nature of the obligation. All this requires the establishment of certain guarantees to respect the rights and interests of the recipient as a weaker party in the contract. In this regard, the law requires compliance not only with the written form of the contract, but with its notarization under the threat of the nullity of the transaction. The real nature of the rent is also a guarantee that the interests of the recipient will be respected, who may change his mind and refuse to conclude an agreement before the transfer of the property. The guarantees of observance of the rights of recipients of rent are expressed in the circle essential conditions that need to be agreed upon by the parties when concluding an annuity agreement:
The name of the property to be transferred against the payment of rent (if it is an immovable thing), then the data must be indicated, which makes it possible to definitely establish this object.
The size of the rental payments (they can also be paid not in cash, but then it is necessary to indicate the cash equivalent).
In the case of transferring movable property against payment of rent, it is necessary to determine in the contract the method of ensuring the fulfillment of the obligation by the payer to pay the rent (surety, bank guarantee, pledge) or establish the obligation of the payer to insure the risk of liability for non-performance, improper performance of the obligation (clause 2 of Article 587).
If an immovable thing (an apartment, a residential building, a land plot, etc.) is transferred against the payment of rent, the payer's proper fulfillment of obligations is ensured by establishing the pledge right of the rent recipient on this property (clause 1 of article 587). The pledge in this case arises by virtue of the law, therefore, making an entry in the Unified State Register of Legal Entities on the encumbrance of property with a pledge is carried out without submitting an application, simultaneously with the registration of the payer's ownership of the property (Article of the Federal Law "On Mortgage"). In this case, this property is encumbered with the right of the recipient of the rent, which follows the immovable property, and when the owner changes with its subsequent alienation, the obligation of the payer passes to the new owner, regardless of whether he knew about the existence of the right of the recipient of the rent (Article 586 of the Civil Code).
Parties to the annuity agreement are the payer of the annuity (the debtor) and the recipient of the annuity (the creditor). Both citizens and legal entities can act as rent payers - the law does not establish any restrictions. Therefore, a general condition for concluding an annuity agreement as a payer is an interest in acquiring property on the basis of ownership and the actual ability to fulfill the obligation during the life of the annuity recipient or for another period. That is, the person concluding the rent agreement must have sufficient funds, which is more likely for legal entities - commercial organizations. It is also possible to participate as an annuity payer and the municipality.
Unlike the payer, the law restricts the subject composition on the second side of the agreement - the recipient of the rent can be citizens and non-profit organizations (in terms of permanent rent). The participation of a citizen in the rental obligation is not related to his age, ability to work, social status, i.e. it can be any person who owns property on the basis of ownership and is interested in receiving a stable income during life or another period of time. Although, as a rule, they resort to a rental agreement, nevertheless, elderly citizens who do not have relatives or who have lost contact with them, disabled people, pensioners and other persons whose income does not correspond to the standard of living. For non-profit organizations, the conclusion of an annuity agreement as a recipient can be excluded only in connection with the goals of their activities, reflected in the constituent documents. As for commercial organizations, they are excluded from the circle of possible recipients of rent due to the fact that the main source of increasing their property should be profit from entrepreneurial activity.
Based on paragraph 2 of Art. 583 of the Civil Code, it can be stated that the rental obligation always exists either in the form permanent annuity or life annuity... In other words, the existence of several types of annuity is currently legally recognized, which differ in terms of the term of existence of the annuity relationship, subject composition, form of annuity payments and periods of their payment, grounds for termination of the obligation.
Contract permanent annuity is a perpetual annuity. May be in favor of a third party. The rights of the recipient of the rent can be inherited. The priority form of rental payments is the sums of money, which are determined by the parties in the contract of permanent annuity. The cash equivalent under a permanent annuity agreement changes in proportion to the increase in the minimum wage. The redemption price of constant annuity is determined by the contract, unless otherwise provided by the contract of constant annuity (Art. 589-595 of the Civil Code of the Russian Federation).
Payer
Citizen.
Legal entity or public law entity.
Recipient under a permanent annuity agreement:
Citizens. However, the right to receive rent does not pass to citizens who cannot be heirs (neither by law, nor by will), but it can be transferred during his lifetime by the recipient of the rent.
Non-profit organizations, but only if this does not contradict the goals, objectives enshrined in their constituent documents and special legislation. It should be borne in mind that rights cannot be transferred to those non-profit organizations that are prohibited from being the recipient of the rent. In cases where a commercial organization becomes the legal successor of a non-profit organization, the rights of the recipient of the rent do not pass to it.
Subject of the contract- any movable and immovable property not withdrawn from circulation.
Monetary form of rental payments as a general rule.
Permanent annuity is paid at the end of each calendar quarter and is determined by the parties in the permanent annuity thief agreement.
Risk of accidental loss of property under a permanent annuity agreement
The accidental risk lies with its owner - the payer of constant annuity.
If the property has passed by contract free of charge, then in case of his accidental death, the payer continues to pay rent, and if for a fee, the payer may demand termination or amendment of the permanent annuity agreement.
Term of rental payments under a permanent annuity agreement:
By law - once every 3 months (at the end of the month). Grounds for terminating a permanent annuity agreement:
The transfer of the rights of the recipient of the annuity to a person who cannot be the recipient of the annuity (for example, the state).
Redemption of permanent annuity. The payer can demand the redemption of the permanent annuity at any time.
Limitation of the payer's right under a permanent annuity agreement- can be established by agreement that during the life of the recipient, it is not subject to redemption within a certain period, but not exceeding 30 years from the date of the conclusion of the contract.
Terms of rent redemption under a permanent annuity agreement:
The payer must notify the recipient in writing at least 3 months before the termination of payments.
The payer cannot terminate the contract until he has paid the entire redemption amount of the annuity.
The recipient of an annuity under a permanent annuity agreement may demand the redemption of annuity in the following cases:
Delay in annuity payments (more than 1 year).
Insolvency of the annuity payer.
If the immovable property transferred under a permanent annuity agreement has become common or is subject to division among several persons.
Violation of the obligation by the payer to secure the payment of annuity under a permanent annuity agreement.
Other cases stipulated by the contract of permanent annuity.
Life annuity is a type of annuity agreement, which differs by the term of the annuity payments. It is established for the life of one or more recipients, therefore the right to receive the rent does not pass as part of the inheritance. Only citizens can be recipients of life annuity. A contract of life annuity concluded in favor of a person who has died by the time of conclusion is considered null and void. The price of the life annuity is determined by the contract, unless otherwise provided by the contract of life annuity. The payer of the life annuity is not released from the obligation to pay it on the terms stipulated by the life annuity agreement, in case of accidental loss of property transferred against the payment of life annuity or accidental damage (Art.596-600 of the Civil Code of the Russian Federation ).
Recipientlife annuity - only a citizen.
Platelesyklife annuity - any subject of civil law.
The subject of the contract for life annuity - any movable and immovable property not withdrawn from circulation.
Only a cash form of payment of rental payments.
The amount of the annuity must be stipulated in the life annuity contract, which is an essential condition. The amount of the rent must be at least the minimum amount wages, established by the state, with the possibility of subsequent indexation with an increase in the minimum wage (Article 598 of the Civil Code).
Paid at the end of each calendar month, unless otherwise provided by the contract of life annuity.
Risk accidental death under a contract of life annuity:
Lies on the payer. Accidental loss of property does not release the payer from the performance of the contract.
Termlife annuity contracts:
The recipient's lifetime.
Termination of the contract for life annuity:
The payer does not have the right to demand the redemption of the life annuity, and the recipient can demand it only in case of a significant violation of the life annuity contract by the payer (Article 599).
The recipient may demand the termination of the life annuity contract and the payment of damages in the event of a material breach of the contract, as well as the return of real estate if the property was transferred free of charge against the payment of annuity.
In the event of the death of the recipient of the annuity.
Lifetime maintenance contract with dependents is a kind of life annuity. Special rules are applied to this agreement (Articles 601-605 of the Civil Code), and in the part that is not regulated - the general rules on life annuity. Under a dependent lifelong maintenance agreement, the recipient transfers immovable property to the payer's ownership, and the payer undertakes to maintain dependent lifelong maintenance.
Recipient under a dependent lifelong maintenance contract- exclusively citizens.
Payer of rent under a contract for life support- any subjects of civil law.
Subject matter of the contract for lifelong maintenance with dependents:
Only real estate (residential building, apartment, other real estate).
Features of the use and disposal of property transferred to ensure lifelong maintenance with a dependent:
A payer under a dependent lifelong maintenance contract may dispose of real estate only with the consent of the recipient.
The payer must maintain the property in proper condition (so that its value does not decrease).
The annuity under the contract of lifelong maintenance with dependents is paid for the life of the recipient and the right to receive it is not inherited (Article 604 of the Civil Code).
Reading time: 9 minutes
Property ownership is the most protected civil institution. One of the few grounds on which this right can be terminated is alienation. The common people are alarmed by this formulation, since it seems to them that it has a negative meaning. To dispel conjectures, consider what the alienation of real estate is.
- purchase and sale;
- donation;
- exchange;
- transfer of property as the authorized capital of another legal entity.
In addition to transactions, the basis for alienation is sometimes a decision of a state body, for example, a court or Federal Service bailiffs (FSSP).
It is also worth clarifying whether the lease of property is an alienation. Some contracts do not imply a transfer of ownership. These include agreements on:
- transfer of the right to use and ownership (lease);
- transfer of administrative rights to trust management;
- granting limited use under an easement agreement;
- mortgage / pledge;
- concessions and so on.
Paid and gratuitous alienation: differences and features
The second criterion by which alienation can be divided is compensation. That is, the onerous alienation of property owned by the Russian Federation or citizens is the transfer of rights to it in exchange for material representation. The most common example is a sale and purchase agreement, the on-demand representation of which is the transaction price.
Paid alienation is provided not only under the contract, but also in case of compulsory withdrawal of an object. For example, in the event of the confiscation of real estate for state needs or in case of requisition, the owner may demand compensation for the value of the lost property.
Property is often lost free of charge, that is, without material representation. This happens both involuntarily and voluntarily. In the first case, this is the foreclosure of the property or its confiscation.
Alienation as a result of a gratuitous transaction is, first of all, a donation or donation agreement. If the agreement contains a reference to a counter-presentation (in exchange for a gift), the substance of the transaction is violated. It will be considered invalid.
A package of documents for the alienation of real estate
In case of a voluntary transfer of rights to real estate, the parties, in addition to the contract, must prepare a package of documents. If this is a purchase and sale or a similar transaction, for its registration you must have:
- passports of the parties;
- a single housing document or an extract from the house register indicating the persons registered in the apartment;
- certificate of absence of utility debt;
- , certificate of ownership or other document of title;
- technical documentation for the object (if it is a house or a land plot);
- consent from the spouse of the seller or permission of the guardianship authorities;
- consent of the buyer's spouse, if married;
- written refusal to purchase by persons who have preemptive right purchases, or a document confirming their notice of sale.
A similar package will be required for Rosreestr during state registration.
Alienation of housing under an annuity agreement
One of the options for the transfer of housing rights, common among single pensioners, is an annuity agreement that provides for the alienation of real estate in exchange for periodic rent payments and the provision of funds for maintenance (Article 583 of the Civil Code).
Simply put, housing is transferred to the ownership of a person who, in return, undertakes to provide former owner financially for the rest of his life. In this case, the recipient of the rent continues to live in the transferred premises - he cannot be evicted forcibly.
The new owner can sell the house, but even this does not give him the right to evict the former owner - the rent burdens the property.
The law allows for three types of rent:
- Permanent, that is, virtually indefinite, if the expiration date of the contract is not set. The right to demand payment can be transferred to third parties or by way of inheritance.
- Lifetime, that is, providing for payments and other representations until the death of the recipient of the annuity.
- Lifetime dependent maintenance. The payer is obliged not only to pay the rent, but also to provide the recipient with all the necessary means for life, including housing.
According to Art. 584 GK, any such agreement is subject to notarization and registration with Rosreestr.
If the payer violates obligations, for example, delays payment, the recipient has the right to demand payment of interest. In case of significant violations of the agreement, the recipient of payments may insist on its termination.
A sample document can be found below.
Alienation of real estate by deed of gift
Donation is an agreement on the alienation of real estate to a relative or other person on a gratuitous basis (Article 572 of the Civil Code). The donor transfers ownership of the apartment / land or promises to donate this property in the future. At the same time, he does not have the right to demand from the second party a counter-presentation (payment for a gift, other thing or service), otherwise the contract will become invalid.
At any time before the transfer of the gift, the donee has the right to refuse it. But if the refusal caused damage to the donor, he has the right to compensation.
The donor can terminate the contract if the donee makes an attempt on the life and health of himself or his close relatives (Article 578 of the Civil Code).
If a promise of donation was made in the future, but the donor's financial situation has deteriorated significantly, he has the right to refuse to fulfill the contract (Article 577 of the Civil Code).
There are no special conditions for the conclusion of this type of agreement. It can be drawn up in simple writing without notarization. Only the transfer of rights to real estate is subject to registration.
We invite you to familiarize yourself with model contract donation.
Alienation of real estate by a representative
The persons authorized by the owner have the right to dispose of real estate. If the owner is outside the state and cannot come to conclude a transaction or his health condition does not allow him to do so, he has the right to appoint a representative.
The right of a person to alienate the owner's property must be confirmed by a notarized power of attorney.
A typical sample of a power of attorney for the alienation of real estate is given below.
Such a document, in addition to general information about the principal and the trustee, must contain detailed description the powers of the representative. In particular:
- the order for alienation itself, specifying the type of transaction;
- description of the alienated object, price;
- prohibition of reassignment and other restrictions;
- other rights that a representative is vested with: receiving money, reissuing, and so on.
Alienation of a share in the ownership of real estate
Sometimes housing is owned by several persons at once. Depending on whether the shares are allocated from the owners, real estate can be joint or shared, on which the procedure for transferring rights to third parties depends.
For example, the alienation of a share of an apartment of joint common ownership is the sale or donation to third parties of the property of the spouses. If one of them, being married, acquired a share in the right of ownership (for example, ½ apartment), and this did not happen through inheritance / donation, both spouses are considered owners. Therefore, the sale is possible only with the consent of both.
It's another matter if the apartment they bought was divided. For example, after the division of common property, each of the spouses received ½ an apartment. In this case, both husband and wife can freely dispose of their shares.
An integral condition for the sale of a share of an apartment is the alienation of a part of the common property in an apartment building. In addition to personal, the ICD also has common property owners:
- pantries,
- basements,
- parking spaces,
- driveways and so on.
Each of the owners has his own share in it, which he can transfer only together with the apartment. Thus, the transfer of a share in ownership is accompanied by the alienation of a proportional share in the common property.
When it is impossible to alienate real estate
Due to various circumstances, a ban on alienation is imposed on some objects. We are talking about encumbrances, the most severe of which is arrest.
The property can be seized by a court or bailiff... In this case, it cannot be sold, donated or otherwise disposed of until the arrest is lifted.
The rest of the encumbrances, although they prohibit the alienation of apartments and land, but only without the consent of the person in whose favor they were imposed. With consent, the ban is lifted. Such encumbrances include:
- mortgage;
- pledge;
- notarial prohibition of the alienation of property.
Any of them is registered in Rosreestr and reflected in the USRN.
Conclusion
Real estate alienation is a general definition legal action aimed at transferring ownership of property to third parties. Depending on the nature of the actions, it can be voluntary or compulsory, compensated or gratuitous.
Alienations can be conditionally divided into two groups. The first includes transactions in which the owner himself transfers ownership. The second group is the decisions of the competent authorities, according to which the property is seized.
The result of these actions, in any case, is subject to registration with Rosreestr and is reflected in the USRN.
Master of Laws in Civil and Family Law. In 2005 he graduated from St. Petersburg State University, in 2012 - the Faculty of Economics, Moscow State University. M.V. Lomonosov with a degree in Financial Analytics. After receiving the second higher education founded an independent appraisal company. I am engaged in the appraisal of real estate, land and other property.
Greetings! In my opinion, laws are specially written so that no one could understand them except for lawyers and notaries. How do you like such a turnover "paid alienation of movable and immovable property located in the Russian Federation"?
Whenever I come across any legal text, I first translate it into "human" language. Sometimes this can only be done with the help of familiar lawyers. And even after such a "translation" the meaning of the document often remains vague.
Therefore, today I decided to investigate such an issue as the alienation of property. What does this term mean and to whom does it concern? And most importantly, what property and when can be alienated without the consent of the owner?
The term "alienation" is simply deciphered. When property or the right to it passes from one owner to another, lawyers call this "alienation". If at one time you were the owner of an apartment or house, and then this property was donated or sold to someone, “alienation of property” took place. And if, God forbid, the same property was sued for non-payment of the mortgage by the bank, “alienation” also took place.
Once again: alienation is when property or (rights to it) is transferred from one owner to another (voluntarily or compulsorily). The "alienator" can be individuals and legal entities, as well as government agencies (municipal or territorial).
What is not considered alienation by law?
- Transfer of property for temporary use (for example, if you rent out your apartment).
- Waiver of ownership (for example, waiver of inheritance).
- Loss or loss of property or rights to it.
- Termination of ownership by court order.
What property can be alienated?
Only objects or things (including money) and rights to something (to own securities, for example) can be alienated. Objects intellectual property, as well as services / works are not alienated.
Three categories of objects of alienation
Real estate
As soon as the owner of an apartment, house or land plot changes, the property is considered “alienated”. Alienation methods: buying, selling, donating, exchanging or renting. In the event of compulsory alienation, the property can be seized from the owner by a court or government agency decision.
Securities
Technically, the alienation of securities occurs in one of the following ways:
- Placement of registered securities (credit entries are made on the accounts of the first owners in the depository or registrar).
- Placement of documentary bonds (credit entries are made on securities accounts or certificates are issued to the first owners).
In fact, securities are alienated in the same way as real estate: they can be sold, donated, exchanged or lost (as a result of confiscation, for example).
Intellectual copyright
Intellectual property is works of science, art and literature, databases, inventions, computer programs, know-how, industrial designs and much more. The one who owns the result of intellectual activity has the exclusive right to it. He can allow or forbid others to use the "something" invented by him.
To obtain an "exclusive right to the result of intellectual activity", it must be officially registered with government agency... Only after that, the exclusive right receives the status of a “product” that can be sold, donated and changed.
An agreement on the alienation of an exclusive right is concluded in writing. It necessarily prescribes the size and procedure for paying remuneration (this, by the way, may be interest deductions from income, and not only one-time payment). In addition to exclusive rights, there are also intellectual and personal non-property rights. Such rights do not participate in alienation transactions!
Voluntary and compulsory alienation
Voluntary alienation of property
Sale. There are two parties involved in the transaction: the seller and the buyer. The transfer of property from one owner to another is formalized by a purchase and sale agreement. Alienation is possible only after state registration of property owners!
Donation. In this case, the property changes its "owner" free of charge under a donation agreement. If you alienate something in favor of a relative, the transaction is exempt from taxation. The "stranger" will have to pay 13% of the cost of the "gift" to the budget.
In legal practice, it happens that donation is compulsory alienation. The owner is forced to draw up documents against his will. And after he signs the contract, it is almost impossible to prove the fact of coercion in court.
Exchange. The exchange is formalized by two contracts of purchase and sale. Each of the participants in the transaction acts as both a seller and a buyer. According to the law, only property of equal value can be exchanged. If the exchange provides for an additional payment, then this amount is subject to personal income tax.
Rent. Oddly enough, rent also refers to alienation. You can sign a life annuity agreement with the property seller. Until the end of his life, you undertake to provide the maintenance of the current owner of the apartment. And only after his death the property will become your property.
In this case, only individuals or non-profit organizations can act as a seller!
Compulsory alienation of property
Such alienation is usually applied by a court order for the confiscation or requisition of property. For example, when the owner cannot pay child support or debt. Or when the transfer of law is dictated by state necessity ( extraordinary circumstances: large-scale disasters, social danger). Theoretically, this also includes the confiscation of the property of corrupt officials if the owner fails to confirm that he acquired it legally.
The law provides for situations where a Russian can be forcibly deprived of ownership of real estate:
- Recovery of real estate according to the obligations of the owner (by law, by court or by contract).
- In connection with the end of the lease or lease agreement.
- If the land plot on which the real estate is located is withdrawn.
- Alienation for the needs of the municipality or the state.
- Alienation due to requisition or confiscation.
- Termination of rights if the property is used for other purposes.
A kind of compulsory alienation: state. For example, when a land plot falls into a state development zone. This is possible only on condition of equal and preliminary compensation for the value of the property.
Alienation of real estate in favor of the state is possible:
- By decision executive bodies(municipal, regional or federal significance).
- With full refund of the cost of the object.
- With the consent of the property owners.
- If “good news” is announced to the owner at least a year before the actual alienation.
- By a court decision, where the state structure will prove its case (in the case when the owner of the real estate does not agree to part with it voluntarily).
Alienation of the leased property
SMEs have a preemptive right to buy out leased property that is state-owned by the Russian Federation.
This is possible if two conditions are met:
- The tenants have no rent payments in arrears.
- The property is leased for two or more years under a contract.
In Moscow, a free redemption service can be ordered on the official website of the Mayor of Moscow (https://www.mos.ru).
Alienation of a share in an apartment
The procedure for the alienation of real estate is quick and easy when it has a single owner. If you single-handedly own a garage, land plot or an apartment in a new building, you can sell or donate all this without consulting anyone.
But such an "ideal" situation is rare. Much more often, after settling in an apartment or house, several owners appear at the property. This form of ownership is called shared ownership. The parties can be the next of kin among themselves. And each of them will own their own share of the real estate (say, one third).
So, how to sell a share of an apartment, taking into account the specifics of such transactions:
- Determine the market price of your share.
- Offer the rest of the apartment owners to buy it out. Owners of shared real estate have the primary right to redemption!
- Draw up a notice (the form of the document can be any) about the sale of your share. You do not need to certify the notice with a notary. The document can be given to other participants in person, sent by mail (by registered mail) or transferred through a notary. The latter option is used when the owners of other shares evade receiving a notification.
- Participants are given one month to make a decision. If, after the expiration of the term, they refused to buy (or simply did not give any answer), the share can be sold to third parties.
It is advisable to certify in writing that all owners refuse to buy an apartment from a notary. The best insurance against future troubles is their abandonment of the right to purchase.
The fact is that within three months after the purchase and sale transaction, the co-owners can challenge it. And if you do not comply with all the rules of civil law, the court may well recognize the sale of the share as invalid. And if a refusal is received, it means that you can sell your share earlier than in a month.
Since 2017, all transactions with shares of real estate must go through a notary (not only sale, but also donation, exchange, inheritance)!
What documents are needed for the alienation of property?
Most of the foreclosure transactions are the sale or transfer of real estate. Other options for alienation (donation or confiscation) are much less common in practice.
The list of documents of the seller for registration of the alienation agreement (sale of an apartment):
- Title deed (which confirms his right to own real estate). Purchase options:
- bought (sale and purchase agreement);
- received as a gift or exchanged (donation or exchange agreement);
- privatized (document on privatization);
- inherited (certificate of the right to inheritance).
- Supporting documents (prove that the property belongs to this particular seller). From January 1, 2017, the state registration of real estate is confirmed by an extract from the USRN. It also includes one more important point: that there are no encumbrances and arrests in the apartment.
- Seller's identification (passport).
- A copy of the financial personal account and a certificate of the absence of arrears on utility bills.
- A signed sale and purchase agreement (it is he who, from a legal point of view, fixes the process of alienation of property).
- The fact of the transfer of rights is confirmed only by the official state registration of rights in the register. Where do you get permission? After buying and selling real estate, you need to order a new extract from the USRN. You will have to pay state duty and tax on the sale of real estate (if the apartment was owned for less than three or five years, it depends on the moment of purchase).
- The spouse's consent to the sale of an apartment or a share in it (if the apartment was purchased in marriage). All property owners must agree to the sale! And you will also need the consent of the guardianship authorities if minors are registered in the apartment.
Alienation of the property of a minor
If the child is less than 14 years old, then legal representatives act on his behalf (parents, guardians, adoptive parents, representatives of the guardianship authorities). The minor owner does not participate in the transaction itself (his presence and personal signature not required).
If the child is between 14 and 18 years old, he participates in the transaction and puts his signature on the documents. But only in the presence and with consent legal representatives... It is not possible to alienate the property of a minor in all cases (even with his consent). For example, if an apartment is being sold, then in return you can buy either the best or equivalent housing in terms of parameters.
Conclusion
Alienation of property - the same purchase and sale, gift or, God forbid, confiscation. The interpretation of the term is simple and logical: alienation is when property or the right to it passes from the old owner to the new owner (voluntarily or compulsorily, for money or free of charge).