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Lecture notes, cheat sheets
Civil law. A special part. Contracts of exchange, donation, rent (the most important)
Directory / Lecture notes, cheat sheets Table of contents (expand) Topic 2. AGREEMENTS OF EXCHANGE, GIFT, RENT 2.1. barter agreement In accordance with paragraph 1 of Art. 567 of the Civil Code, under an exchange agreement, each of the parties undertakes to transfer one commodity to the ownership of the other party in exchange for another. It follows from the above definition that this agreement is consensual, paid and bilateral. By virtue of an exchange agreement, its participants undertake to transfer certain things (goods) to each other in ownership, and each of the parties to this agreement, acquiring a thing in ownership, transfers another thing to the other party instead of paying the purchase price in money. Thus, each of the parties simultaneously acts as a seller in relation to the goods that it undertakes to transfer to the other party, and as a buyer in relation to the goods that it undertakes to accept in exchange. In this regard, the rules on sale and purchase are applied to the exchange agreement, if this does not contradict the special rules established for this agreement, and the essence of the exchange (clause 2 of article 567 of the Civil Code). The object of an exchange agreement can be both movable things and real estate, such as land, residential premises. The barter agreement has some specific features arising from its essence. So, since in accordance with it there is no payment of money for the purchased goods, the parties in the contract may not indicate the price of the exchanged goods. In such cases, these goods are assumed to be of equal value, unless otherwise follows from the contract (paragraph 1 of article 568 of the Civil Code). The party obliged to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices (paragraph 2 of article 568 of the Civil Code). The transfer of ownership of the exchanged goods occurs simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties, unless otherwise provided by law or contract (Article 570 of the Civil Code). 2.2. donation agreement In accordance with paragraph 1 of Art. 572 of the Civil Code, under a donation agreement, one party (the donor) transfers or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to itself or to a third party, or releases or undertakes to release it from a property obligation to itself or to a third party . A donation is not a one-sided transaction; in its implementation, an agreement is concluded, since the acceptance of a gift requires the consent of the donee. As a general rule, a gift agreement is a unilateral agreement in which the donee has no obligations (with the exception of such a type of gift as a donation). A donation can be both real and consensual. According to the current civil legislation, not only the direct gratuitous transfer of property has legal significance, but under certain conditions, the promise to donate property, which entails the emergence of an obligation relationship between the donor and the donee. Donation can be carried out by not only transferring the property of the donee to the property of the donor, but also transferring property rights to the donee or releasing him from property obligations (in both cases, both in relation to the donor and in relation to a third party). The peculiarity of the donation contract is its gratuitous nature, therefore, if there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. A donation agreement concluded in such cases is considered a sham transaction (clause 2 of article 170, paragraph 2 of clause 1 of article 572 of the Civil Code). In accordance with the current civil legislation, a gift agreement recognizes a gift promise if it is made in the proper form prescribed by law and contains a clearly expressed will of the donor. The promise of donation must be specific in its content. A promise to donate all of your property or part of all your property without specifying the specific subject of donation in the form of a thing, right or release from obligation is void (clause 2 of article 572 of the Civil Code). Any natural or legal person acts as a donor. With the exception of cases provided for by law, a donation accompanied by the transfer of a gift to the donee may be made orally. The transfer of a gift is carried out through its delivery, symbolic transfer (delivery of keys, etc.) or delivery of title documents. A contract of donation of movable property shall be made in writing if: ▪ the donor is a legal entity and the value of the gift exceeds five minimum wages established by law; ▪ the contract contains a promise of a gift in the future. A contract entered into orally shall be considered null and void in the above cases. A contract of donation of real estate must also be made in writing, which, in addition, is subject to state registration (clause 3 of article 574 of the Civil Code). The current civil legislation provides for the refusal to execute a donation agreement and the cancellation of a donation. Refusal to execute a donation agreement may take place before the execution of the consensual donation agreement (donation promise) if: ▪ after the conclusion of the contract, the property or marital status or health status of the donor has changed so much that the execution of the contract under new conditions will lead to a significant decrease in his standard of living; ▪ the donee made an attempt on the life of the donor, one of his family members or close relatives, or intentionally caused bodily harm to the donor. Cancellation of a donation may occur after the execution of the donation agreement in the second of the above cases, and also if: ▪ the recipient’s handling of a donated item that is of great non-property value to the principal (for example, letters, diaries, manuscripts) creates the threat of its irretrievable loss; ▪ when the court considers the request of an interested person to cancel the donation, it is established that the donation was made by an entrepreneur or legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within six months preceding the declaration of such a person as insolvent (bankrupt ). In addition, the gift agreement may specifically stipulate the right of the donor to cancel the gift if he outlives the donee (paragraph 4 of article 578 of the Civil Code). The donee has the right to refuse the gift at any time before its transfer. In this case, the donation agreement is considered terminated (paragraph 1 of article 573 of the Civil Code). According to Art. 579 of the Civil Code, the rules on the donor's refusal to fulfill the gift agreement and on the cancellation of the gift do not apply to ordinary gifts of small value. Donation is a form of donation. A donation of a thing or right for generally useful purposes is recognized as a donation (clause 1 of article 582 of the Civil Code). 2.3. Annuity agreement Rent is a regularly received income from capital, property or land, which does not require entrepreneurial activity from its recipient. An annuity agreement is new to Russian civil law. Its legislative consolidation is due to the transition to market relations. In accordance with paragraph 1 of Art. 583 of the Civil Code, under a rent agreement, one party (the rent recipient) transfers property to the other party (the rent payer), and the rent payer undertakes, in exchange for the property received, to periodically pay rent to the recipient in the form of a certain amount of money or provide funds for its maintenance in another form. Under an annuity agreement, it is allowed to establish the obligation to pay rent indefinitely (permanent annuity) or for the life of the recipient of the annuity (lifetime annuity) (paragraph 2 of article 583 of the Civil Code). The question of whether an annuity contract can be consensual is debatable. More correct is the opinion that a rent contract is always a real contract, since without the actual transfer of property to the payer of the rent, it makes no sense to talk about the emergence of rent relations. This agreement also applies to reimbursable and unilateral agreements. The parties to the annuity agreement are the recipient of the annuity (the annuity creditor) and the payer of the annuity (the annuity debtor). Only citizens can be recipients of rent in a life annuity agreement, including a life maintenance agreement with a dependent. According to paragraph 1 of Art. 589 of the Civil Code, non-profit organizations are also recipients of permanent rent, if this does not contradict the law and corresponds to the goals of their activities. The recipient of the rent may not coincide with the person transferring the property against the payment of rent, for example, when establishing a life annuity by one citizen in favor of another citizen or group of citizens (clause 1,2 of article 596 of the Civil Code). The law does not establish any restrictions on the range of possible rent payers. Accordingly, they can be both citizens and legal entities, both commercial and non-commercial, interested in acquiring ownership of the proposed property and able to fulfill the condition of paying rent in exchange for it. The question of the subject of an annuity agreement is controversial, but it is generally recognized that the object of this agreement can be things (both movable and immovable), cash and documentary securities. An annuity agreement is subject to notarization, and an agreement providing for the alienation of immovable property against the payment of an annuity is also subject to state registration. Property that is alienated against the payment of rent may be transferred by the recipient of rent to the ownership of the payer of rent for a fee or free of charge. The law pays special attention to protecting the interests of the recipient of the rent. Rent payments can be made in the form of cash payments (clause 1 of article 590, clause 1 of article 597 of the Civil Code), as well as in the form of providing a dependency, including providing for housing, food, clothing, etc. (Clause 1, Article 602 of the Civil Code). The law establishes the minimum amount of life annuity (clause 2 of article 597 of the Civil Code) and the minimum cost of the total amount of maintenance with a dependent (clause 2 of article 602 of the Civil Code). Regardless of the form, all rental payments must have a monetary value. An essential condition of the agreement on the transfer of a sum of money or other movable property against payment of rent is the condition that the payer of the rent provides security for the fulfillment of his obligations (pledge, retention of the debtor's property, surety, etc.) or insurance in favor of the recipient of the rent of the risk of liability for non-performance or improper performance these obligations (clause 2 of article 587 of the Civil Code). Author: Ivakin V.N. << Back: Contract of sale (General provisions on the purchase and sale agreement. Retail purchase and sale agreement. Agreement for the supply of goods. Agreement for the supply of goods for state or municipal needs. Contract agreement. Energy supply agreement. Agreement for the sale of real estate. Agreement for the sale of an enterprise) >> Forward: Rental, leasing, loan agreements (Lease agreement. Financial lease agreement (Leasing). Free use agreement (Loans))
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