One of the most common transactions between citizens is a barter agreement. This may be an exchange of real estate, and the exchange of some small items. Of course, such an agreement is used between legal entities. The rules for the preparation and conclusion of this document are regulated by the civil legislation of Russia.
Difference from previous legislation
The Civil Code of the RSFSR, which was in force before the adoption of the current code, fit the concept of a barter agreement into just one article. In the new legislation, the exchange agreement (car, real estate, other property) is regulated by five articles, new provisions are added that were previously absent.
So, earlier legal relations arising as a result of barter were regulated by Article 255. In it, in particular, it was said that as a result of the negotiated agreement between its participants there was an exchange of some specific property for another. The civil legislation of the RSFSR applied to me several rules governing the sale. A participant who entered into an agreement to exchange an apartment or something else was both the seller of the item that he was giving away and the buyer of the thing that passed into his ownership. In addition, the circle of subjects of the treaty in question was significantly limited due to the fact that in situations in which state organizations were a party (or both), it could be completed only in cases directly established by the legislator.
The concept
What is a barter agreement? This definition is enshrined in article 567 of the Civil Code. This concept includes the mutual obligations of the participants in this legal relationship, which consists in transferring certain property from one side to the other in exchange for some other property. Moreover, the word “other” is used twice in this definition. The first time it refers to the subjects of the contract, that is, to the parties, the second time to the object.
In addition to the definition in question, the term “exchange of goods” is used in the normative act regulating civil relations as the title of article 502. This norm is devoted only to one of several possible results that arise in the process of sale of goods that are not food.
The definition of an exchange agreement established in a previous code is different from the concept that defines this agreement now. Therefore, some allegations that the exchange agreement for a land plot or some other object is traditional and consistent with the old legislation are erroneous. The concept of a barter agreement in this Civil Code is a novelty.
Mena in Housing
The exchange of property such as residential premises is a special kind of civil legal relationship. The contract for the exchange of apartments or other real estate is regulated by the housing legislation of Russia. In practice, such an exchange is carried out with the help of specialized organizations, agencies, although it can be carried out without them. The norms of housing legislation stipulate that the tenant and the persons living with him may exchange their home for another one belonging to another tenant. Such a procedure can also be carried out between members of housing cooperatives. At the same time, the right to such an exchange is not limited to the boundaries of any one settlement, that is, parties to the agreement can live in different cities, and objects, respectively, can also be located in different places. The procedure and rules under which a real estate exchange agreement is implemented are established in the Housing Code.
Erroneous use of the term
It is noteworthy that in modern Russia there are many so-called exchange points that supposedly exchange various foreign currencies for Russian rubles. However, in fact, such operations are not a barter, but are considered a sale. The only thing that can be attributed to the exchange is the recent practice of exchanging old foreign currency banknotes for new ones with a certain commission for this operation .
Application of sales regulations
Although the chapter of the Civil Code, which deals with and defines the contract for the exchange of real estate or movable property, establishes that certain rules on sale and purchase can be applied to it, it is also explained that such rules must not be in conflict with this chapter and with the whole being exchanges. For example, these may include articles that involve the payment of a product or product. It is known that barter does not imply and is not accompanied by monetary settlements. The only exception is situations in which property objects that differ in value in exchange are exchanged. Then, accordingly, a surcharge is made in the price.
Commodity Transaction
The possibility of applying the rules governing the sale and purchase established by law is explained by the similarity of these legal relations. Mena, like buying and selling, is considered a commodity transaction. However, its distribution is not so great. This is due to various difficulties both in the completion of the contract and in its execution. The definition of goods is also given by the legislator in civil law. By it we mean any things, but only not taken out of civilian traffic. If an object falls within this definition, then it can be alienated. An example when a share swap agreement occurs is the situation between the Russian government and the Menatep Bank in 1996. Then the latter received a block of shares in several oil companies, and in response transferred to the government a share in the authorized capital of the organization.
Exchange agreement. Legislative regulation
You should be aware that along with the provisions established in the article on the exchange agreement, certain rules on this legal relationship are established in the Civil Code with the aim of regulating other relations, including: pre-emptive right to purchase, disposal of the ward’s property, grounds for acquiring property rights and some others. The provisions applicable to the contract under consideration are contained not only in the Civil Code, but also in other regulatory acts. So, according to the Competition Law, it is forbidden to take any action, to issue acts that will establish certain prohibitions on the exchange, purchase, sale of any goods from one region (region, city, etc.) to another region.
Barter deals
An example of another document regulating the exchange of goods agreement can be a federal export development program, which was established by the government. According to this document, barter contracts concluded with foreign persons for exporting excisable goods abroad are one of the economic incentive measures. In this case, barter contracts are understood as an exchange agreement; this name is often used in civil circulation, and even more so in the field of foreign trade.
The definition of such foreign trade operations today is of considerable interest. The term of such legal relations is set forth in the Decree of the President of Russia, which is called “On State Regulation of Foreign Trade Barter Transactions”. At the same time, an attentive person will immediately see significant differences from the concept proposed by the Civil Code. In accordance with the Decree, the above-mentioned transactions mean contracts concluded during the implementation of foreign trade activities, which provide for the exchange of goods, products, services, and other items of equal price. The regulatory document immediately emphasizes that if cash settlements are used in the process of executing transactions, then such contracts and agreements will not be barter.
Material terms of barter transactions
In the indicated legal act in general terms the objects of barter transactions are named. There is no such generalization and guidance in the Civil Code. The presidential decree classifies barter transactions as a bilateral exchange agreement; at the same time, it requires the determination of essential conditions in the contract, which include:
- the cost of each unit of goods, its quality, quantity and nomenclature, conditions and terms of import, export;
- a list of services, works, results of intellectual activity, price, terms of execution, as well as the time of providing such works or services, the moment of transfer of rights to the results of intellectual activity;
- a list of documents that will be transferred to the Russian side, on the basis of which the fact of the performance of services or works, rights to the results of intellectual activity will be confirmed.
Parties to a barter transaction in barter transactions are Russian and foreign.
Prices and costs
The Civil Code establishes dispositive rules that are twofold in relation to the expenses of the parties under the contract in question. In the first case, the rule of law applies to the exchange of property that is identical in price; in the second, the rules determine the costs of exchanging unequal goods.
The legislator assumes that the exchanged goods are equivalent. However, a slightly different condition may be included in the agreement between the parties. The participants in the transaction have the right to deviate from the text of the law by including, for example, their decision on how the transfer of exchanged property will be carried out and how expenses will be reimbursed in the contract of exchange of land or other property. In this case, the law does not prohibit attributing to such expenses the cost of execution of title documents, transportation prices. This may also include the registration of an exchange agreement. In practice, when exchanges are made between citizens, the option is widespread in which the costs of accepting property received are assigned to the party to whom it is being received. Sometimes citizens divide such expenses in half.
Inequality Compensation
In those situations when the exchanged goods are unequal in value, then, naturally, the participant receiving the more expensive thing is obliged to pay the difference to his counterparty. However, it should be noted that such an additional payment may be made optionally in cash. The parties have the right to establish in the contract other options for additional payments, a different procedure for compensation. For example, if an agreement has been concluded to exchange a car for another vehicle, but more expensive, then the parties to the transaction may agree that the surcharge will be paid in money, or may agree on compensation, for example, by auto parts or some other property.
Terms of exchange
The legislator does not establish any specific terms for the exchange of property. Including such conditions are absent and is applicable to the simultaneous transfer of property by both parties. One side can transfer the goods today, the other after a while, determined by agreement. At the same time, the rights of the party that transferred the property first are protected by law. In particular, the protection of the interests of such a party is regulated by norm 328 of the Civil Code. This article describes the conditions under which the first party can stop the performance of its obligation or completely abandon such performance, and in addition to everything else, demand damages. Such conditions include the counterparty’s failure to fulfill the obligation, as well as all sorts of circumstances that may directly indicate the fact that such an obligation will not be fulfilled on time.
Ownership
A barter agreement is one of the possible grounds for the ownership of an item, thing, etc., from the moment of exchange of property, and more precisely, after both parties fulfill their obligations under a barter agreement, ownership of the things received comes. Along with this, the legislator enables the parties to establish other conditions for determining the moment of transition and the occurrence of this right.