The barter agreement is one of the most ancient civil law agreements, which preceded the purchase and sale agreement. According to its terms, each party undertakes to transfer ownership of one product to the other in exchange for another (Clause 1, Article 567 of the Civil Code of the Russian Federation).
Parties to the agreement may be persons who have ownership or other rights to property. Each party is recognized as the seller of the goods that it is obliged to transfer, and the buyer of the goods that it undertakes to accept in exchange.
Article on the topic Giving away an apartment for free: how to properly draw up a gift agreement?
How to draw up an agreement?
The exchange agreement can be concluded either in simple written form or through a notarized document. The document must specify the rights and obligations of the parties, the term of execution of the contract and the terms of the contract.
The form of the agreement can be oral in the case of:
- if the price of exchange between citizens is less than 10 minimum wages;
- if the contract is executed upon its conclusion.
In all other cases, the agreement must be concluded in writing (Articles 152-162 of the Civil Code of the Russian Federation).
Question answer
What responsibilities do notaries have?
The concept of an exchange agreement
Definition 1
A barter agreement is a special form of legal agreement between citizens, upon the conclusion of which both parties undertake the obligation to transfer certain property to each other.
Features of the exchange agreement:
- An exchange agreement is always mutual, compensated, and economically equivalent.
- Any legally capable and able-bodied legal and physical persons and public legal entities may participate in an exchange agreement.
- Without exception, all participants in the exchange agreement must have ownership or any other property right, which includes the power to dispose of the subject of the agreement (trustee). There is the possibility of participation in a transaction by an entity that is not the owner, in the event of an exchange of property during the execution of a commission agreement, the party to the agreement for the exchange of the subject of the agreement is the commission agent, who is authorized to act on his own behalf (Article 990 of the Civil Code). An agent acting on instructions on his own behalf on the basis of an agency agreement (clause 1 of Article 1005 of the Civil Code) has the same powers to conclude an exchange agreement.
- All parties involved are considered sellers in relation to the subject of the contract being sold and buyer in relation to the goods to be received. By purchasing an item from a counterparty under an exchange agreement, each party becomes its owner. But in some cases, there are exceptions provided for by law or the contract itself, when the subject of the exchange agreement does not acquire ownership rights to the subject of the contract.
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The subjects of legal relations include: state and municipal enterprises that have the right of economic management, management of the property and institutions assigned to them. When concluding contracts, such institutions acquire a limited property right over the property received in exchange for that which was transferred to the counterparty, in the event that the specified legal entity becomes the owner of the goods.
The barter agreement is paid or gratuitous
Another characteristic of DM is its remuneration, expressed in the reciprocal obligation of counterparties to transfer to each other goods or things of equal value or with an additional payment.
Important! What distinguishes DM from other compensation contracts is the nature of the consideration. If during purchase and sale goods are paid for in cash, then during exchange the goods are given for goods. At the same time, the Civil Code does not consider transactions involving a reciprocal transfer of services, assignment of the right to claim property from a third party as exchange contracts (paragraphs 1, 3 of the information letter of the Presidium of the Supreme Arbitration Court dated September 24, 2002 No. 69).
Read all the most important positions of the courts on the barter agreement in the List of positions of the higher courts, which was created for the barter agreement in the ConsultantPlus system. The list can be opened by a regular user of the system or by someone who follows the link for a two-day trial access. Even more materials will become available if you constantly access the ConsultantPlus database (here you can order a price list)
Barter agreement: concept, elements, execution features.
Under an exchange agreement, each party undertakes to transfer one product into the ownership of the other party in exchange for another . The exchange agreement is subject to the rules on purchase and sale (Chapter 30 of the Civil Code), if they do not contradict the rules on exchange and the essence of the exchange set out in Chapter. 31 Civil Code (Articles 567-571 Civil Code).
The purpose of the contract is extremely important for its qualification. It is no secret that in a number of cases business entities resort to barter in order to minimize the tax consequences of their business activities. Thus, often the objects of exchange are, on the one hand, materials, and on the other, products made from these materials. This transaction can be qualified in different ways, depending on the purpose that its participants had in mind, and the degree of their possible liability will depend on this.
Features of the agreement
The barter agreement is consensual, mutual, compensated.
The parties to the agreement can be any legal entities and individuals (taking into account the general requirements for their legal capacity and capacity), as well as public legal entities .
As a general rule, only those persons who have ownership rights or other real rights, including the power to dispose of the relevant property, can take part in an exchange agreement. For example, such authority is vested in a subject of economic management law, who has the right to dispose, including through exchange, of the property assigned to him, subject to the restrictions provided by law. In a number of cases, the authority to dispose of property may be granted to a person who is not the subject of the right of ownership or other limited proprietary right to this property. Each party is recognized as a seller in relation to the transferred goods and a buyer in relation to the received goods. By purchasing goods from a counterparty under an exchange agreement, each of the parties to this agreement, as a general rule, becomes its owner. However, in some cases provided for by law or contract, the subject of the exchange agreement does not acquire ownership rights to the goods received.
These entities include, firstly, state unitary enterprises and municipal unitary enterprises , which have the right of economic management or operational management of the property assigned to them, as well as institutions . When making contracts for the exchange of any property, they acquire a corresponding limited property right for the property received in exchange for that which was transferred to the counterparty, and the owner of the goods becomes the person who is the owner of the property assigned to the specified legal entities.
Secondly , citizens or legal entities empowered to perform these actions on their own behalf by virtue of a commission agreement, agency agreement or trust management agreement also do not become owners of goods acquired under an exchange agreement.
An essential condition of the barter agreement is the subject , i.e. a condition on the goods being exchanged, which is considered agreed upon if the parties have determined the name and quantity of goods to be exchanged.
Goods are things that have not been withdrawn from circulation and the circulation of which is not limited (clause 1 of Article 455 of the Civil Code). Work, services, information, subjective obligations, property and personal non-property rights are not included in the subject of exchange.
The price of the exchange agreement is the cost of each of the counter offers. The goods exchanged are assumed to be of equal value. Clause 2 of Art. 568 of the Civil Code allows, as an exception, compensation for unequal exchanged goods in cash. Such inequality must be stipulated in advance in the concluded exchange agreement. At the same time, the data contained in the contract about the unequal prices of the goods exchanged do not in themselves indicate their unequal value . This fact alone is not sufficient to establish that the parties entered into an agreement in respect of unequal goods. (For example, when exchanging bills of different denominations, the transaction may be equivalent, since the market value of the security may differ significantly from its par value.)
The ownership of the exchanged goods passes to the parties simultaneously after both parties fulfill their obligations to transfer the goods (Article 569 of the Civil Code), unless otherwise provided by law or agreement. Thus, when exchanging real estate, the right of ownership to it arises from the moment of state registration of its rights to the acquired real estate (Article 223 of the Civil Code).
If the terms of the transfer do not coincide, then the rules on counter-fulfillment of obligations apply (see Article 328 of the Civil Code).
The costs of transfer and acceptance of the exchanged items are borne in each case by the party that bears the corresponding responsibilities (clause 1 of Article 568 of the Civil Code).
The barter agreement must be concluded in a form identical to that in which the purchase and sale agreement for the relevant goods . Thus, the form of this agreement can be oral or written. The conclusion of an exchange agreement orally is applicable to cases where the value of the goods to be exchanged between citizens does not exceed 10 minimum wages. In other cases, a written form of the contract is required.
An agreement in writing can be concluded not only by drawing up one document signed by the parties, but also by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement.
The rules on their state registration are fully applicable to exchange agreements if the subject of such agreements is certain types of real estate.
The content of the exchange agreement consists of the obligations of the parties to transfer the goods to the counterparty and the right to demand such transfer.
The parties are obliged to transfer the goods free from the rights of third parties. The party from whom the goods purchased under an exchange agreement are seized by a third party has the right to demand from the other party the return of the goods received in exchange and (or) compensation for losses.
Responsibility of the parties:
• when transferring goods with defects, the parties are subject to the consequences provided for by the rules of the purchase and sale agreement;
• when a third party withdraws goods received under an exchange agreement, the injured party may demand from the counterparty the goods received during the exchange and compensation for losses (Article 571 of the Civil Code).
63. Commercial concession agreement. Under a commercial concession (franchise) agreement, one party (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use in the user’s business activities a set of exclusive rights belonging to the copyright holder, including the right to a trademark, mark services, as well as other objects of exclusive rights provided for in the contract - commercial designation, know-how, etc.
Characteristics of the contract: consensual, bilaterally binding, compensated .
The main purpose of the agreement is the creation of new economic complexes (shops, restaurants, hotels, industrial enterprises).
The subject of the agreement is a set of exclusive rights belonging to the copyright holder, including the right to a company name and (or) commercial designation, protected commercial information, trademark, service mark, etc.
A commercial concession agreement must provide for the use of a set of exclusive rights, business reputation and commercial experience of the copyright holder to a certain extent (in particular, establishing a minimum and (or) maximum volume of use), with or without indicating the territory of use in relation to a certain area of business activity.
The parties must be commercial organizations or individual entrepreneurs
.
form is written. Failure to comply with it entails the nullity of the contract .
Subject to state registration with Rospatent . If this requirement is not met, the contract is considered void.
The term does not refer to the essential terms of the contract. The contract may be concluded for a period or without specifying a period. An agreement concluded without specifying a term lasts as long as desired and can be terminated at the request of either party in compliance with the requirements provided for in paragraph 1 of Art. 1037 Civil Code.
Obligations of the copyright holder (Article 1031 of the Civil Code):
a) transfer to the user technical and commercial documentation (plans, calculations, drawings), instruct the user and his employees on the exercise of rights transferred under the commercial concession agreement, and also provide the user with other information necessary for the exercise of these rights (the copyright holder should be indicated in the agreement , what information is to be provided);
b) ensure state registration of the commercial concession agreement. This duty, like all subsequent ones, is optional;
c) provide the user with constant technical and advisory assistance , including assistance in training and advanced training of employees. The user is objectively interested in obtaining new information in connection with such training, which can improve his position in the market. In turn, the copyright holder may receive a separate remuneration for providing information assistance;
d) control the quality of goods (work, services) produced (performed, provided) by the user on the basis of a commercial concession agreement. This obligation is easier to fulfill for the copyright holder, as a person more deeply familiar with the process of releasing goods (performing work, providing services), than for the user.
The copyright holder has the right to refuse the user to enter into a commercial concession agreement for a new term, provided that within three years from the date of expiration of this agreement he will not conclude similar commercial concession agreements with other persons and agree to conclude similar commercial subconcession agreements, the validity of which will be extended to the same territory in which the terminated treaty was in force. If, before the expiration of the three-year period, the copyright holder wishes to provide someone with the same rights that were granted to the user under the terminated contract, he is obliged to offer the user to conclude a new contract or compensate for the losses incurred by him. When concluding a new contract, its terms d.b. no less favorable for the user than the terms of the terminated contract (clause 2 of Article 1035 of the Civil Code).
The user is obliged: 1) to use the set of exclusive rights received by him in strict accordance with the terms of the agreement, to the established extent and in the proper manner; 2) promptly pay the right holder the remuneration stipulated by the contract. Remuneration can be paid in any form provided for by the contract, in particular in the form of fixed one-time or periodic payments, deductions from revenue, a markup on the wholesale price of goods transferred by the copyright holder for resale, etc. The choice of the form of payment of remuneration depends on the in the area of commercial activity, a concession is granted, how much trust the parties have in each other, how the records of the copyright holder or user are built, etc.; 3) not transfer the complex of rights received by him or its part into a subconcession without the consent of the right holder ; 4) provide a specified number of subconcessions , if such an obligation is provided for in the contract.
Types of commercial concession: a) sales – a unified sales network is created under the general control of the copyright holder; b) trading - trading enterprises are opened that are not legally branches or structural divisions of the copyright holder, but only use its trademark; c) commercial concession in the service sector - for example, a hotel chain; d) production – the user organizes the production of goods using the trademark of the copyright holder.
A subconcession is an agreement under which the user undertakes to transfer to the subuser the entire complex of rights received from the copyright holder under a commercial concession agreement or part thereof.
A commercial concession agreement may provide for restrictions on the rights of the parties under such an agreement.
The conditions limiting the rights of the parties under a commercial concession agreement are void , by virtue of which: the copyright holder has the right to determine the price of sale of goods by the user or the price of work (services) performed (rendered) by the user, or set an upper or lower limit for these prices; the user has the right to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) located (place of residence) in the territory specified in the agreement.
The liability of the parties under a commercial concession agreement occurs regardless of their guilt.
The copyright holder is responsible not only to the user for improper performance of the contract, but also to third parties for the inadequate quality of goods (work, services). Such liability can be either subsidiary or joint.
State registration
2.1. This agreement comes into force and is considered concluded from the moment of state registration in the Unified State Register of Rights to Real Estate and Transactions with It.
2.2. The parties acquire ownership rights after state registration of the transfer of ownership in the body for state registration of rights to real estate and transactions with it [insert full name].
The ownership of the exchanged residential buildings passes to the Parties acting as buyers under the exchange agreement, simultaneously after fulfillment of the obligations to transfer the corresponding residential buildings by both Parties.
2.3. The costs associated with the conclusion and execution of this agreement shall be paid equally by the Parties.
The costs of registering property rights (transfer of ownership rights) incurred by the Parties in connection with the implementation of this agreement shall be borne by each of the Parties to the agreement in its share (amount).
Features of the exchange agreement
The exchange agreement is drawn up in writing, and it must contain the following information:
- data of both parties (full name, passport details, registration);
- information about the exchanged housing (name, address, area, cost);
- on what basis the apartments belong to the parties (most often the number of the certificate of ownership and the agreement under which the apartment was received);
- Additionally, you can indicate the features of both apartments - on what floor it is located, the type of house (panel, brick and others),
- the presence of a balcony or basement, how many rooms, what kind of heating, what kind of built-in appliances and furniture remain, and others;
- It is worth mentioning as a separate point that the apartment is not under arrest or pledged, there are no encumbrances;
- a mandatory point - the contract must contain a list of people who had the right to the old apartment (in the new apartment they must have exactly the same rights);
- the period during which the parties must vacate the apartments and transfer them to each other.
These clauses are included in every barter agreement. But deals are different, so there are some additional conditions
Concept and characteristics of an exchange agreement
A contract of exchange is a very close relative of a contract of sale.
A barter agreement is an agreement under which each party to this agreement transfers ownership of any goods to another party to the agreement in exchange for another product (Chapter 30 of the Civil Code).
Under a barter agreement, two or more parties agree to transfer the ownership of a certain good to the other party in exchange for another good. This agreement ensures the transfer of ownership of the goods. This exchange occurs without the use of money.
The contract of barter is the oldest contract. The contract of exchange is given only 5 articles in the Civil Code. The exchange agreement is subject to the rules of purchase and sale.
An exchange agreement, as well as a purchase and sale agreement, is a consensual, compensated, bilateral agreement.
Owners can participate in this contract, since they must transfer the goods into the ownership of the other party.
Subject of the agreement.
Each party is obliged to transfer the goods. If an act of exchange has taken place, then it is assumed that the goods are of equal value. If they turn out to be unequal, they can still be exchanged, but in this case, the party that transfers the more expensive product has the right to receive the difference in price. An additional payment operation is possible only when the parties agreed in advance at the time of concluding the contract that the goods are of unequal value. If the act of exchange has already taken place, then no additional payment will be made.
Each party becomes the owner when it fulfills its obligation to transfer.
Each party must deliver goods of proper quality. The provisions of the Civil Code for the exchange agreement do not specifically regulate these issues, referring to the purchase and sale agreement.
Each party to the barter agreement acts as a seller of the transferred goods.
Each participant in such an agreement acts as both a seller and a buyer at the same time.
Characteristics of the barter agreement:
1. consensual agreement;
2. compensation agreement - the transfer of goods is accompanied by a counter right to receive goods of equal value;
3. bilateral agreement – the right of one person corresponds to the obligation of another person.
If the parties know that the goods are unequal, but the parties entered into an agreement, then the party that received the more expensive product must return the difference.
You can also exchange rights (not just things).
Subjects of the barter agreement. The subjects of the exchange agreement can be any persons: legal entities and individuals, states, government organizations and enterprises, municipalities, etc.
Topic 3. Donation agreement.
A gift agreement is an agreement under which one party (the donor) transfers (or undertakes to transfer) to the other party (the donee) the ownership of certain property, free of charge or gratuitously transfers property rights or releases the donee from any property obligation to himself or to a third party .
Features of the gift agreement:
1. the gift agreement is always free of charge,
2. this agreement is one-sided (the donee has no obligations);
3. an agreement between living persons (you cannot enter into a gift agreement with the condition “after the death of the donor”);
4. it can be both real and consensual. A consensual gift agreement must be concluded in writing. In its original form, the gift agreement has no legal force.
5. the gift agreement is closely related to moral norms and is personal in nature (gives rise to rights that are closely related to the individual).
The law provides for cases when a donor who has promised to give something in writing may not fulfill his obligation:
1. when the donee committed actions directed against the personality of the donor;
2. if, after the donor promised to give an expensive gift, his life conditions have changed significantly and it is difficult to fulfill the contract, the donor may refuse this contract.
The right that arises in the donee is personal in nature. The donee cannot cede this right. If the donee died before receiving the gift, then the heirs do not have the right to receive the gift. This right is not inherited. The responsibility of the donor, in turn, is transferable, and may be separated from the personality of the donor. The responsibility of the donor is inherited.
Form of gift agreement. Real contracts are usually concluded through implied actions. A written form of agreement is necessary when the agreement is consensual in nature. An oral agreement has no legal significance.
The donation of real estate must always be in writing, and the agreement is subject to state registration with the state registry authorities.
Subject of the gift agreement . The subject of the contract may be property benefits - a thing or a set of things that have not been withdrawn from circulation, property rights, but this property right must be separable from the person (securities, receipt, etc.), release of the donee from property obligations (debt forgiveness) .
If the donee's obligation exists to a third party, the donor can transfer this obligation to himself, but the creditor (third party) must give his consent.
Parties to the gift agreement. The donor can be the owner or the holder of the right. A gift agreement can be concluded not only by citizens, but also by legal entities, as well as government organizations.
Minors and incompetent persons cannot act as a donor (such an agreement is void). Commercial organizations do not have the right to enter into gift agreements between themselves.
There are persons who do not have the right to accept gifts:
1. civil servants, if this gift is related to their official activities;
2. employees of medical, educational institutions, social assistance institutions (neither from those persons who are in these institutions, nor from their relatives).
However, it is allowed to take gifts in connection with protocol events (for example, the University’s anniversary), if the value of the gift does not exceed 3 thousand rubles. If the value of the gift is above 3 tr, then the gift is the property of the state or municipality.
Contents of the agreement.
Agreement concluded by implied actions (real)
: This agreement is considered concluded and does not give rise to any obligations. Such agreements are called “real agreements”. Legally, Roman law did not know the gift agreement. There were no legal consequences. On the other hand, this agreement is immediately concluded and immediately executed. Still, responsibilities arise: the donor must ensure the recipient’s right of ownership.
An agreement concluded in writing (consensual).
Here certain rights and responsibilities arise.
Obligations arise only for the donor:
1. The donor is obliged to transfer the gift. This obligation disappears only in two cases (the property status of the donor has changed significantly for the worse; when the donee has committed actions directed against the personality of the donor). In the contract, the “gift” must be precisely defined and only then will this contract be valid. If the donor has not fulfilled this obligation, then the donee can reclaim the property from the donor (recover the value of this property). If the donee did not have time to receive the gift and died, then the heirs do not have the right to receive this gift.
2. The donor is obliged to ensure that the donee has the right of ownership. If the donor gave someone else's property, the donee can recover damages from the donor;
3. This property must be free of defects. If defects appear in the property and these defects cause some losses, then the donee may demand compensation for losses because they are caused by the inadequate quality of the donated property. For this claim to be satisfied, a number of conditions are required:
· defects should not be obvious, but hidden;
· the donor knew about these defects and did not warn the recipient about them;
· the fault of the donor is taken into account.
The donee has a legal obligation to accept the gift. For violation of this obligation, liability is limited: in case of refusal of the gift, the recipient is obliged to reimburse the expenses incurred by the donor.
Termination of the gift agreement. Cases of termination of the contract:
1. the donee has committed an intentional unlawful act (crime) directed against the personality of the donor or against persons close to the donor;
2. if the donated property retains value for the donor, but the donee does not value this property and treats the gift in such a way that it can be destroyed, the donor has the right to demand that the donee return this property to the donor;
3. the donor survives the donee, and this is expressly provided for in the gift agreement.
Contract concept
Barter is a special process by which property belonging to one person or company is exchanged for another value. In this case, additional payment from any side is allowed. The exchange process is regulated by Ch. 31 Civil Code.
To complete this procedure, an appropriate formal contract must be drawn up. A sample exchange agreement can be viewed below.
According to the law, after signing this agreement, a voluntary transfer of property rights to a certain object to another person is made, and at the same time the rights to another thing will be obtained.
According to Art. 567 of the Civil Code, the parties to the exchange are both sellers and buyers. To regulate such an agreement, the same requirements and conditions apply as for transactions involving the purchase and sale of property. Typically, under an exchange agreement, an exchange of equivalent property is made. If the cost differs significantly, then an exchange is carried out with an additional payment.
Barter agreement taxation
In accordance with Article 658 of the Civil Code of the Russian Federation, if goods of equal value are exchanged, the exchange agreement is not subject to taxation. If the parties agree to exchange unequal goods and one of the parties pays monetary compensation, this amount is considered income and tax must be paid on it. It is 5% of the difference in the cost of the goods.
In order not to pay taxes legally, the amount of compensation must be included in the deduction (Article 220 of the Tax Code of the Russian Federation). In addition, when preparing documents, the parties need to pay a state fee. Its value directly depends on the type and subject of the contract.
Subject of the exchange agreement
What is the subject of the barter agreement?
Based on the peculiarities of legal relations arising from such an agreement, its subject will be specific property that has individual characteristics specified in the agreement between the two parties.
For example, if the parties agree to exchange their residential premises, then such an agreement will necessarily indicate the technical parameters of the real estate.
Based on the fact that the vast majority of contracts always indicate the subject matter, price and timing of their execution, the exchange agreement occupies a special position.
In such contracts, the main detail is the subject, and the price and terms are secondary values that will not affect the responsibility of the parties.
It is important to remember that when exchange (barter) occurs between business entities, special legislation requires the agreement to contain not only the subject, but the price and timing of the agreement.
