The actions of the person are directed. Property. A transaction is the actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. General rules for the certification of transactions
Deal- actions of physical and legal entities aimed at establishing, changing or terminating civil rights and responsibilities.
Thus, the transaction is characterized by the following features [ source not specified 1055 days] :
· Is a legal act
A deal is always a volitional act, that is, the actions of people
· this is lawful action
The transaction is specifically aimed at the emergence, termination or change of civil relations
· The transaction gives rise to civil relations only for its participants, but sometimes - "transactions in favor of a third party"
Deal Form [edit | edit source]
The form of a transaction is an external expression of the will of its participants. The transaction can be made orally or in writing, as well as by implicit actions or by silence. The written form, in turn, can be simple or qualified (notarized). Often, a deal is preceded by a framework agreement. To implement currency control a transaction passport can be issued.
Oral form [edit | edit source]
The oral form of the transaction is a verbal expression of will, in which the participant verbally formulates his intention to enter into the transaction, as well as the conditions for its execution. According to Art. 159 of the Civil Code of the Russian Federation in all cases when the law or agreement does not provide otherwise, transactions can be made orally.
Execution of an oral transaction may be accompanied by the issuance of documents confirming its execution (for example, sales receipt). This does not change the essence of the oral form.
Concrete actions [edit | edit source]
A transaction that can be made orally can also be made by a person performing implicit actions. Concrete actions (lat. concludere- to conclude, to draw a conclusion) - behavior from which the intention of a person to enter into a transaction is evident (for example, by putting money into the machine, a person expresses his will to purchase the goods contained in the machine).
In cases expressly provided for by law or agreement, silence may act as a conclusive action, which in the strict sense is inaction (for example, the rule of automatic renewal in a lease agreement: if, in the absence of objections from the lessor, the tenant continues to use the property after the expiration of the agreement, the agreement is considered renewed under the same conditions on indefinite term; thus, the will of the landlord to continue the lease is expressed in silence).
Simple writing [edit | edit source]
A simple written form of a transaction involves the preparation of a special document or a set of documents that reflect the content of the transaction and the will of the parties to the transaction to conclude it. The will to conclude a deal is confirmed by the signatures of the parties or their representatives. Sometimes a simple written form of the transaction can be established Additional requirements: execution on a special form, stamping, etc. In a simple written form, transactions are made:
a) if at least one of its participants is a legal entity;
b) between individuals for an amount exceeding 10 minimum wages;
c) if it is established by law or by agreement of the parties.
A common consequence Failure to comply with the simple written form of the transaction is the deprivation of the parties, in the event of a dispute, of the right to refer to the evidence of the transaction and its conditions in confirmation of the transaction. In these cases, the parties retain the right to provide written (letters, receipts, receipts, etc.) and other evidence.
Failure to comply with the simple written form of the transaction entails its invalidity, if this is directly indicated in the law or in the agreement of the parties
Qualified form [edit | edit source]
A qualified or notarized form of a transaction is a special case of a written transaction and consists in the fact that on a document corresponding to a simple written form, a notary or an official who has the right to perform notarial acts affixes a certification inscription. In accordance with Art. 163 Civil Code RF and Art. 53 of the Fundamentals of the Legislation of the Russian Federation on Notaries, transactions are subject to notarization in the following cases:
1. If the law establishes a compulsory notarial form for them.
2. If the obligatory notarial form is established by agreement of the parties, even if the law does not provide for such a requirement.
Failure to comply with the notarial form entails the invalidity of the transaction.
Transactions requiring notarization:
· Will;
· Power of attorney:
a) for the execution of transactions requiring a notarial form;
b) issued by way of submission;
c) to receive a repeated certificate of state registration act civil status ;
· Contract of annuity, including contract of lifelong maintenance with dependents;
· An agreement on the pledge of movable property or rights to property as security for obligations under the agreement, which must be notarized;
· Assignment of a claim based on a notarized transaction;
· Marriage contract ;
· Agreement on the payment of alimony;
· Consent of the spouse to a transaction requiring notarization or state registration;
A transaction aimed at alienating a share or part of a share in the authorized capital of a limited liability company, with the exception of the following cases:
a) the transfer of the share to the company;
b) distribution of the share between the members of the company;
c) sale of a share to all or some of the members of the company;
d) use preemptive right purchases ;
· Demand of a shareholder for the redemption by the company of his shares, as well as withdrawal of such a demand;
The consent of the pledgor to an out-of-court procedure for foreclosure on the pledged movable property... - Access mode: http://www.privlaw.ru.
Judicial practice materials:
1. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 13.11.2008 N 126 "Review of judicial practice on some issues related to the reclamation of property from someone else's illegal possession" // "Bulletin of the Supreme Arbitration Court of the Russian Federation", N 1, January, 2009.
2. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.04.2009 N 32 (as amended on 30.07.2013) "On some issues related to challenging transactions on the grounds provided for Federal law"On insolvency (bankruptcy)" // "Bulletin of the Supreme Arbitration Court of the Russian Federation", N 7, July, 2009.
3. Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 N 73 (as amended on January 25, 2013) "On certain issues of the practice of applying the rules of the Civil Code Russian Federation on the lease agreement "//" Bulletin of the Supreme Arbitration Court of the Russian Federation ", No. 1, January, 2012.
4. Resolution of the Plenum The Supreme Court RF dated 28.06.2012 N 17 "On the consideration of civil cases by courts in disputes on the protection of consumer rights" // " Russian newspaper", No. 156, 11.07.2012.
Special literature:
Main literature:
1. Russian civil law: textbook: in 2 volumes / V.S. Em, I.A. Zenin, N.V. Kozlova and others; otv. ed. E.A. Sukhanov. 2nd ed., Stereotype. Moscow: Statut, 2011.Vol. 1. a common part... Real right. Inheritance law... Intellectual rights. Personal moral rights... 958 s.
2. Civil law: textbook: in 3 volumes / S.S. Alekseev, I.Z. Ayusheeva, A.S. Vasiliev and others; ed. S.A. Stepanov. M .: Prospect; Yekaterinburg: Institute of Private Law, 2010. T. 1. 640 p.
3. Civil law: Textbook / O.V. Gutnikov, A.S. Gutnikova, S.D. Radchenko and others; ed. HE. Sadikova. Moscow: KONTRAKT, INFRA-M, 2006.T. 1.493 p.
Additional literature:
1. Povarov Yu.S. Invalidity of a transaction made under the influence of deception: current regulation and directions of its reform // Advocate. 2013. N 5.P. 5 - 13.
2. Sklovsky K.I. On the relationship between contract and obligation // Bulletin of civil law. 2013. N 4.P. 4 - 18.
3. Alekberova N.N. Grounds for delimiting imaginary and sham transactions from other types of invalid transactions // Actual problems Russian law... 2013. N 7.P. 823 - 830.
4. Gruzdev V.V. Actual problems of civil restitution // Law and Economics. 2013. N 5.P. 43 - 47.
5. Erdelevsky A.M. About vindication real estate// SPS ConsultantPlus. 2013.
Informational resources:
13 http://www.garant.ru - reference and legal system "Garant"
14 http://www.cons-plus.ru- reference and legal system "ConsultantPlus"
15 http://www.arbitr.ru- the official website of the Higher Of the Arbitration Court RF;
16 http://www.duma.gov.ru - the official website of the State Duma of the Russian Federation;
17 http://www.ksrf.ru - official site The Constitutional Court RF;
18 http://www.supcourt.ru/ - the official website of the Supreme Court of the Russian Federation;
Questions for self-control:
1. Give a definition of the transaction.
2. In what cases is silence recognized as consent to a transaction?
3. Can a unilateral transaction be onerous?
4. How is a transaction concluded under a suspensive clause different from a preliminary contract?
5. In what cases should a written transaction be notarized?
Transactions - deliberate, purposeful, volitional actions of individuals and legal entities, performing which they strive to achieve certain legal consequences. This is revealed even when performing massive, mundane actions. For example, lending money entails the emergence of the borrower (lender) of the right to demand the repayment of the loan, and the borrower (borrower) - the obligation to return the money or things borrowed.
Deal - it is an expression of will addressed by the subject to another person (s). You cannot make a deal with yourself. Transactions include only the expression of the will of the subject, which is made for the purpose of creating, changing or terminating the rights and obligations of the subject in relations with another person (s).
The validity of the transaction means the recognition of its qualities legal fact generating that legal result, to which the subjects of the transaction aspired.
It is determined by legislation through the following system of conditions:
a) the legality of the content;
b) the ability of individuals and legal entities performing it to participate in the transaction;
c) conformity of will and expression of will;
d) compliance with the form of the transaction.
If at least one of the listed conditions is not met, the transaction is invalidated.
Types of transactions:
By the number of parties involved, transactions are (Article 154 of the Civil Code of the Russian Federation)
- one-sided, obligations arising from the person who made the transaction (for example, will, power of attorney, acceptance of inheritance). It can create obligations for other persons only in cases established by law or by agreement with these persons. For unilateral transactions, respectively, apply general provisions on obligations and contracts, insofar as this does not contradict the law, the unilateral nature and essence of the transaction.
Unilateral transactions can be divided into law-generating, law-changing and terminating.
Right-giving unilateral transactions- these are transactions that serve the emergence of civil relations: a will, which creates rights and obligations after the opening of the inheritance (clause 5 of article 1118 of the Civil Code); issuance of a power of attorney (clause 5 of article 185 of the Civil Code), etc.
Law-changing unilateral transactions- transactions related to the exercise of rights and fulfillment of obligations by participants in civil legal relations: transfer of property in fulfillment of an obligation; debt acceptance by the creditor; retention of a thing by the creditor (Article 359 of the Civil Code), etc.
Terminating unilateral transactions - these are transactions that entail the termination of legal relations in general or individual rights and responsibilities: refusal of the participant to the general shared ownership from the right preferential purchase(Clause 2, Article 250 of the Civil Code); waiver of ownership (Article 236 of the Civil Code).
- two - or multilateral (treaties) responsibilities for which arise for each party to the transaction. To complete such a transaction, each party must express its will (for example, a sale and purchase agreement, lease).
2. Depending on the moment from which the transaction is considered concluded, there are:
Real deals - are considered concluded if the parties have reached an agreement on all essential conditions contract, and there was a transfer of things (for example, a donation, storage contract);
Consensual transactions - are considered concluded from the moment when the parties have reached an agreement on all the essential terms of the contract (for example, a sale and purchase agreement, a contract). The subsequent transfer of a thing or the commission of other actions is carried out with the aim of performing them.
3. On the basis of compensation, transactions are subdivided into:
Compensated, in which the provision of property by one party requires reciprocal property satisfaction from the other party (for example, a supply contract);
Gratuitous, in which counter property satisfaction is not required (for example, a donation agreement);
Any transaction is assumed to be onerous, unless otherwise provided by law or by the contract itself.
4. By the nature of the purpose of the transaction, it is customary to divide into:
Casual, from the content of which the purpose of the transaction is clearly seen, and the rights and obligations of the parties are determined by this purpose (for example, the lease agreement always indicates which property is transferred to the use of the lessee);
Abstract, the purpose of which is not possible to determine the nature of the relationship between the parties (for example, the transfer of a bill of exchange: which certifies either the unconditional obligation of the drawer (promissory note), or an unconditional offer to the payer specified in the bill (bill of exchange) to pay when the deadline provided for by the bill of exchange the sum of money stipulated in it.It is not visible from the bill of exchange, on the basis of which the right of the bill holder arose to demand the payment of sums of money).
By their content, transactions can be conditional(Article 157 of the Civil Code of the Russian Federation). A transaction is considered completed under a suspensive condition if the parties have made the emergence of rights and obligations dependent on a circumstance regarding which it is not known whether it will come or not.
A transaction is considered completed under a canceling condition if the parties have made the termination of rights and obligations dependent on a circumstance regarding which it is not known whether it will come or not.
If the onset of the condition was unfairly prevented by a party for which the onset of the condition is unprofitable, then the condition is deemed to have occurred.
If the onset of the condition was unfairly facilitated by a party to which the onset of the condition is beneficial, then the condition is deemed not to have occurred.
Transactions are urgent, that is, they include in their content an indication of the period of their validity, and without specifying a period (for example, a work contract must always contain an indication of the period for performing work).
By virtue of Art. 158 of the Civil Code of the Russian Federation, transactions can be made by direct expression of will - orally or in writing, as well as by indirect expression of will - in the form implicit action or silence.
Transactions are concluded verbally:
For which a written (simple or notarial) form is not established by law or by agreement of the parties;
Transactions executed at the very moment of their execution (with the exception of transactions for which a notarial form is established, and transactions, non-observance of a simple written form, which entails their invalidity).
Concrete actions
According to the norm of paragraph 2 of Art. 158 of the Civil Code of the Russian Federation, a transaction that can be concluded orally is considered complete even in the case when the person's behavior reveals his will to complete the transaction. This behavior is otherwise called implicit actions - actions through which the intention of a person to enter into a transaction is revealed. Thus, by dropping money into the machine, the person expresses the will to purchase the goods contained in the machine.
Silence
It may have legal force if such a property is given to it by law or by agreement of the parties. Only in these cases does silence indicate an expression of the subject's will to generate or allow legal implications... So, if the lessee continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed under the same conditions for an indefinite period.
Deal in writing must be committed by drawing up a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them.
The law, other legal acts and the agreement of the parties may establish additional requirements to which the form of the transaction must comply (execution on a form of a certain form, seal, etc.), and provide for the consequences of non-compliance with these requirements. If such consequences are not foreseen, the consequences of non-compliance with the simple written form of the transaction shall apply (paragraph 1 of Article 162).
The use of facsimile reproduction of the signature when making transactions by means of mechanical or other copying, electronic signature or any other analogue of a handwritten signature is allowed in the cases and in the manner prescribed by law, other legal acts or by agreement of the parties.
If a citizen, due to a physical handicap, illness or illiteracy, cannot sign with his own hand, then at his request another citizen can sign the deal. The signature of the latter must be certified by a notary or other official who have the right to do so notarial act, indicating the reasons why the person making the transaction could not sign it with his own hand.
Must be made in simple writing, with the exception of transactions requiring notarization:
1) transactions of legal entities between themselves and with citizens;
2) transactions of citizens among themselves for an amount exceeding ten thousand rubles, and in cases provided by law - regardless of the amount of the transaction.
Failure to comply with simple writing transaction deprives the parties of the right, in the event of a dispute, to refer to evidence of the transaction and its conditions, but does not deprive them of the right to provide written and other evidence. In cases directly specified in the law or in the agreement of the parties, non-observance of the simple written form of the transaction entails its invalidity.
Notarization of the transaction means checking the legality of a transaction, including whether each of the parties has the right to complete it, and is carried out by a notary or an official who has the right to perform such a notarial act, in the manner prescribed by the law on notaries and notarial activities.
A written notarial form is required in the following cases:
1) in the cases specified in the law (power of attorney, contract of lifelong maintenance with dependent, power of attorney by way of transfer)
2) in the cases stipulated by the agreement of the parties, at least by law this form was not required for transactions of this type.
In cases where the law provides for state registration of transactions, the legal consequences of the transaction occur after its registration. A transaction providing for a change in the terms of a registered transaction is subject to state registration.
Consequences of evading notarization or state registration of a transaction:
1) If one of the parties has fully or partially executed a transaction that requires notarization, and the other party evades such certification of the transaction, the court, at the request of the party that executed the transaction, has the right to recognize the transaction as valid. In this case, the subsequent notarization of the transaction is not required.
2) If a transaction requiring state registration has been made in the proper form, but one of the parties evades its registration, the court, at the request of the other party, has the right to make a decision on the registration of the transaction. In this case, the transaction is registered in accordance with the court decision.
3) In the cases provided for in paragraphs 1 and 2 of this article, a party that unreasonably evades notarization or state registration of a transaction must compensate the other party for losses caused by a delay in the execution or registration of the transaction.
4) Term limitation period for the requirements specified in this article is one year.
Legally relevant messages:
Statements, notifications, notices, demands or other legally significant messages, with which the law or the transaction associates civil consequences for another person, entail such consequences for this person from the moment the corresponding message is delivered to him or his representative.
A message is considered delivered even if it was received by the person to whom it was sent (the addressee), but due to circumstances depending on him, it was not delivered to him or the addressee did not familiarize himself with it.