The concept, types and forms of transactions are established by the Civil Code of the Russian Federation. The legislation determines that transactions can be oral or written. Written, in turn, are divided: a simple written form of the transaction and a form requiring notarization.
What is a deal?
The concept and forms of transactions are defined in the Civil Code of Russia. By such are meant all operations of legal entities or individuals, the result of which is the emergence or termination of duties and rights of citizens, as well as their change. Moreover, the forms of transactions in civil law and legislation are different.
Transactions should be distinguished from administrative acts. If the former cause certain rights and obligations of the persons committing them, the latter create duties for subordinates regardless of their will.
In transactions is the will of its participants, which may be internal, that is, one that corresponds to the real intentions of the participant, and external, expressed in words and actions. It is very difficult to determine the true internal content of a person’s will, therefore it is judged by his external actions. At the same time, much more importance is attached precisely to the internal intentions of man. If their discrepancy with external manifestations of the will is proved, then the contract is quite likely to be recognized as invalid. So, for example, an elderly person wants to sell his apartment, but due to legal illiteracy or fraud on the part of counterparties, signs a gift agreement. If evidence of his true intentions is presented in court, the transaction will be canceled.
It is noteworthy that the term "deal" by society is perceived negatively. But giving such a negative meaning to this word does not correspond to its actual legal content.
Transactions by the criterion of legality are different from illegal actions. The latter lead to harm and harm to third parties. And although such illegal actions entail civil rights and obligations consisting in the need to compensate for the damage, they are not created from the transaction. Such rights and obligations arise from the fact of causing harm (tort).
In order for a transaction to be lawful, it is not at all necessary that it be explicitly taken into account by law. The main thing is that it does not contradict him and does not violate the established prohibitions.
The main essence of transactions is the expression of will of its participants, therefore, their performance by incapable citizens is not allowed.
Types of transactions
Types and forms of transactions are different. The Civil Code of the Russian Federation provides that there can be several (more than two) parties to a transaction, there can be two (bilateral transactions) or, in general, only one (one-way transaction).
The following signs are characteristic of transactions:
- Transactions always pursue a certain result from a legal point of view.
- Accompanied by volitional actions of the parties.
- Committed by competent persons.
- Meet all the requirements of the law.
It is not necessary to conclude a transaction by the person whose rights and obligations are formed or terminated. The law provides that such persons may issue power of attorney for transactions to third parties. In addition, a transaction in relation to someone can be made on the basis of legislative or other acts. For example, a transaction by parents in relation to young children or a guardian in favor of his ward.
One-way transaction
One-sided transaction will be recognized actions for the fulfillment of which the will of one person is enough. For example, a will or a waiver of a right, the termination of a previously issued power of attorney will be recognized as such. A feature of such transactions is that, as a rule, they affect the rights of the person making it. They cannot assign any duties to other persons.
At the same time, they can nevertheless impose the right to third parties to unilateral transactions, and these persons may not even know about them. When drawing up the same will, the future heir may not even suspect him. Very often, such transactions cause obligations in which persons who commit them become debtors. Such obligations arise when issuing a promissory note.
Such transactions may terminate the obligations of third parties. For example, when forgiving a debt.
Bilateral and multilateral transactions
Other types of activities aimed at changing the rights and obligations in which two or more parties participate are usually called contracts. In practice, such contracts can be called differently: agreements, contracts, etc. These types of transactions include supply contracts, donations, agreements on the determination of shares in common property and many others.
Some types of bilateral transactions should be distinguished from unilateral ones. In order for a transaction to become just an agreement, it is necessary not only to obtain the desired result, it is necessary that the actions of all parties be coordinated among themselves. So, for example, when concluding a gift agreement, one party wants to give something to the second participant, and he must accept this gift. Here, the actions of the first party are accepted and approved by the second party, therefore, the transaction will be bilateral. If, for example, a will is drawn up by one citizen, and after his death the other, indicated in this document, accepts the inheritance, having received a corresponding certificate from a notary, this will not be an agreement, but several consecutive unilateral transactions, despite the fact that the result is obtained (transition property to the heir) corresponded to the will of both parties.
At the same time, the contract is characterized by two unilateral actions of its participants - a proposal to conclude it from the first, acceptance of this proposal from the second. The legislation of the Russian Federation such actions are referred to as the offer and acceptance, respectively.
Contracts can be divided into causal and abstract. The differences between these species are as follows. Causal transactions are completely dependent on the basis for which it was concluded. An example is the case when the buyer makes an advance payment to the store for the purchased goods. If these products are not delivered to the purchaser, then the store will no longer have the right to use the deposited funds.
In abstract transactions, on the contrary, their validity does not depend on the grounds. Typically, such transactions include actions for the transfer of securities, their issuance, bank guarantees, bills and the like.
Conclusion of transactions under the condition
The condition, in terms of transactions, can have more than one meaning. First, the condition may determine the rights and obligations of the parties. Secondly, a condition is a circumstance from the occurrence of which rights and obligations will arise.
If the transaction is concluded with an indication of the circumstance that should occur, then it will be called conditional. For example, participants agreed to buy and sell a car if its owner moved to live in another city. A condition in this contract will be a move or not a move of the car owner.
In the transactions under consideration, the condition should be implemented in the future, since if it occurred before the transaction, it cannot affect the agreement of the parties.
The parties themselves determine what conditions to put. This can be a natural phenomenon, and the behavior of third parties, and the actions of the participants themselves. However, an unlawful or illegal action cannot be made a condition. Another condition can be divided into positive or negative. That is, the following condition can be attributed to the positive - the contractor will repair the premises if he can find the necessary material in trade organizations. Negative - the contractor will repair the roof of the house at the required time if it does not rain.
In addition, contingent transactions are also divided into completed transactions under a conditional or suspensive condition. The first establishes the powers and obligations of the parties not at the time of their conclusion, but at the time of the stipulated condition. The second, on the contrary, establishes the rights and responsibilities of the participants at the time of the contract, but they are valid only until the condition.
Transactions and their forms
In order for the actions of the parties to acquire their legal significance and cause consequences, they must be exposed in the forms of transactions established by law. If a transaction is negotiated, it will be considered oral. Oral transactions include those transactions for which it is enough to perform certain actions or just silence. However, this should be either directly established by law or by agreement between the parties.
Russian legislation defines cases when a simple form of transaction or notarial should be applied. But for oral transactions there are no such direct indications. Therefore, it is believed that the transaction can be concluded orally, unless a written form is provided for by law or by agreement of its participants.
The oral form of the transaction involves the execution at its very conclusion. That is, if the parties agreed to buy and sell a thing, then its transfer and payment must be made simultaneously. If payment is made by installments or on credit, then you need to conclude a written contract.
Any changes, termination of transactions, as a rule, should be executed in the same form as she herself. However, there are exceptions. So, if a loan agreement is drawn up in writing by drawing up a receipt, then its execution can also be executed in writing or orally by returning the receipt to the debtor. In this case, additional registration of the termination of rights and obligations is not required.
Written Transaction Forms
It is necessary to consider in more detail cases when written forms of transactions are applied. In civil law, this form of transaction is established by the legislator in order to, in necessary controversial cases, more reliably confirm the content of the transaction and its general existence. This, in turn, will provide better and more reliable protection for the parties.
This form of transaction is obligatory for contracts concluded in the process of entrepreneurial activity, even if one of its participants is not involved in it. Also, to determine the need to comply with the written form of conclusion of transactions, the amount matters. If a certain price of the contract is exceeded, the transaction must be in writing. The Civil Code of the Russian Federation establishes this price in the amount of 10,000 rubles for citizens. However, the legislator has established cases where such a form should be respected regardless of cost.
An agreement is considered concluded and duly executed if its parties exchanged letters, telephone messages, and other telecommunications means. To prove that such an agreement has been concluded, its participants are required to have all these supporting documents in originals.
There are contracts when one of its parties sends a certain document to the other side with instructions on the necessary actions. The opposite side may not respond to the document sent to her, immediately proceeding with the actions (its execution). For example, shipment of goods or other actions. The written form of the contract in this case will be respected. Here, a direct indication provided by civil law plays a role.
It should be borne in mind that for certain agreements, the legislator requires that not only a simple written form of the transaction be executed, but also its execution on special forms, seals with signatures and the like.
Result of non-compliance with transaction requirements
As a rule, in case of non-compliance with the established form for the contract, the transaction entails its invalidity. However, there is a double understanding. As a general rule, a violation by the parties of the written form may result from the fact that the contract will be declared invalid. But this is only if the participants do not have a dispute that he really was concluded, as well as about his conditions. For example, one citizen borrowed 2,000,000 rubles to another without drawing up an agreement on paper, and the second does not return the money, although he does not refuse that the loan took place and the amount is not in dispute. In this case, the contract will have legal force, and, accordingly, its violation will entail consequences for the guilty party.
Another case is if the debtor refuses that the contract was concluded at all. The outcome of non-execution of the written form then lies with the creditor. In court, he will not be able to rely on testimony, proving the fact of a loan. But he can provide other written documents that can confirm that the transaction was completed. This may be correspondence, bank payment documents and more.
But if the law explicitly establishes a rule stating that non-compliance with the written form will invalidate the agreement, then it will be declared null and void, even if all participants confirm its conclusion.
The form of a foreign economic transaction, that is, an agreement between individuals and legal entities of Russia with counterparties from other countries, must necessarily be a simple written one.
Certificate of notary
The notarial form of the transaction is established for certain types of it. So, a memorandum of association must be certified by a notary. The principle of invalidity in violation of the form also applies here.
The legislator does not allow violations by simplifying the established form. That is, if the requirement of notarization of the contract is established, then it cannot be simplified by compiling it in simple written form or in general verbally. Whereas the complication of the form is quite acceptable. That is, if the legislation allows for the conclusion of a certain transaction an oral form of the contract, then the parties may decide to draw it up in writing and even notarize it. Such actions of the participants will not cause any negative consequences for them.
There are also cases in which one party has already performed certain actions, partially or fully fulfilled its obligations under an agreement requiring a notary's certification. If the other party avoids such assurance, the judicial authorities at the request of the interested party may recognize such an agreement concluded. After such a court decision, it is not required to certify the transaction with a notary. At the same time, one should know that the period during which such a requirement can be brought to court should not exceed one year.
State registration
The regulatory legal acts of the Russian Federation have introduced certain requirements for certain transactions in the mandatory nature of their state registration. Legal consequences of such transactions arise only after this registration with the authorized body.
Registration helps to resolve several important issues. This, as mentioned, is the acquisition of all legal force. Also, a document issued by the registering authority will authentically confirm the rights of the participant that have passed to it under the agreement. In addition, state registration allows interested parties to familiarize themselves with such transactions. Of course, these persons should be granted such rights at the legislative level. This applies to fiscal authorities, law enforcement agencies, other organizations and individuals.
You can find some similarities in the notarization of contracts and in their state registration. However, they vary significantly. So, if notaries directly certify transactions, then the rights arising as a result of them are subject to state registration . Although in the usual sense, it is still said about the registration of transactions. Also, if the contract requires notarization, then this will not mean that it must be registered. And vice versa.
One of the most important objects of registration in the authorized body are real estate transactions. But there are other rights, occurrences, changes, the termination of which must be registered. For example, the emergence of ownership of vehicles.
Knowledge of the main nuances of civil law that defines the concept, types and forms of transactions will not only allow the parties to properly formulate their intentions and wills, but also insure against unforeseen unpleasant moments.